R v Governor of Belmarsh Prison, ex parte Martin
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Divisional Court |
Extradition - Committal proceedings - Evidence - Telephone intercept - Evidence against applicant contained in telephone calls intercepted in United States - No evidence that telecommunications operator in United Kingdom involved - Whether interception by non-resident outside U.K. creating offence triable in U.K. - Whether evidence of telephone intercept abroad admissible -
The United States Government sought the extradition of the applicant to face trial for conspiracy to cause explosions and attempting to procure arms and munitions for use by Irish terrorists. At the proceedings before the stipendiary magistrate for his committal for extradition the case against the applicant consisted largely of evidence of three telephone calls alleged to have been made from the United States to the applicant in Ireland, which had been intercepted in the United States by United States Government agents. The magistrate found that there was a prima facie case against the applicant and committed him to await the directions of the Secretary of State.
On an application for habeas corpus on the grounds that, by virtue of the Interception of Communications Act 1985,F1 evidence obtained by intercepting telephone calls was inadmissible in all proceedings in the United Kingdom:—
Held, dismissing the application, that section 1 of the Interception of Communications Act 1985 could not be construed so as to create an offence triable in the United Kingdom although committed by a non-resident outside the United Kingdom; that, in any event, for the purposes of excluding evidence under section 9 of the Act of 1985, it was necessary to show that an offence under section 1 had been committed by a public telecommunications operator or any person engaged in the running of a public telecommunication system within the United Kingdom and there was no evidence that any such person in the United Kingdom had been involved in any way in the interception; and that, accordingly, evidence of the intercepted telephone calls was admissible in the extradition proceedings (post, pp. 420E–G, 422B–C).
The following cases are referred to in the judgments:
Air-India v. Wiggins [
Cox v. Army Council [
Macleod v. Attorney-General for New South Wales [
Malone v. United Kingdom (
Reg. v. Effik [
Reg. v. Governor of Ashford Remand Centre, Ex parte Beese [
Reg. v. Governor of Gloucester Prison, Ex parte Miller [
Reg. v. Governor of Pentonville Prison, Ex parte Kirby (Note) [
Reg. v. Governor of Pentonville Prison, Ex parte Osman [
Reg. v. Preston [
The following additional cases were cited in argument:
Reg. v. Governor of Pentonville Prison, Ex parte Alves [
Reg. v. Governor of Pentonville Prison, Ex parte Voets [
Application for writ of habeas corpus.
The applicant, Michael Martin, was detained at Belmarsh Prison pursuant to an order made by Mr. J. G. Connor, the Bow Street Metropolitan Stipendiary Magistrate on 14 July 1994 to await the directions of the Secretary of State for his extradition to the United States of America to face charges of conspiring to cause explosions and attempting to procure arms and munitions. The applicant applied for a writ of habeas corpus ad subjiciendum directed to the Governor of Belmarsh Prison to issue unless he could show cause why the applicant should not be released immediately on the grounds that the magistrate had wrongly ruled that there was evidence of a prima facie case against him.
The facts are stated in the judgment of the court.
Ben Emmerson for the applicant.
James Lewis for the Governor of Belmarsh Prison and the United States Government.
21 October. McCowan L.J. read the following judgment of the court. The applicant, Michael Martin, applies for a writ of habeas corpus, challenging his committal on 14 July 1994 to await the Secretary of State's decision as to his return to the United States of America. His extradition is sought so that he can face charges of conspiracy to cause explosions and attempting to procure various arms and munitions from the U.S. for use by the Provisional Irish Republican Army. The evidence against him is contained in three telephone calls which were intercepted in the U.S.
The chronology of events is as follows. On 20 November 1989 two men, McKinley and Moley, met U.S. undercover agents and began negotiations for purchase of a Stinger missile. On 31 December 1989 McKinley and Moley made a telephone call from Florida in the U.S. to the applicant in Eire. That telephone call was the first of the intercepted conversations. On 3 January 1990 the second and third telephone calls were made from Florida by McKinley and Moley to the applicant. These two calls were intercepted by agents in the U.S. On 7 January 1990 a man called McColgan arrived in the U.S. On 12 January 1990 Moley, McKinley and McColgan were arrested in the U.S. On 7 June 1991 Moley, McKinley and McColgan were convicted of conspiracy to receive and export munitions. In August 1992 proceedings were launched against six further alleged co-conspirators which ended in their acquittal in April 1994.
On 14 April 1994 the applicant was arrested in South Armagh. On 26 June 1994 the Secretary of State issued authority to start extradition proceedings against the applicant. As we have indicated, on 14 July 1994, Mr. Jeremy Conner, a metropolitan stipendiary magistrate, committed the applicant to await the Secretary of State's decision on his return to the U.S.
Before the magistrate a number of points were taken. Before this court the applicant abandoned all the points which he had previously taken and relied on a new point not taken in the court below. We have been told by counsel that this point has not previously been taken in any extradition proceedings. The point which counsel for the applicant, Mr. Emmerson, has taken relates to the admissibility of the evidence of the three telephone calls. As we have already indicated, that evidence came from material intercepted in the U.S. by U.S. Government agents. Put shortly, Mr. Emmerson contended that, by virtue of the provisions of the Interception of Communications Act 1985, evidence obtained by intercepting or tapping telephone calls was rendered inadmissible in all proceedings in the United Kingdom, including extradition proceedings.
In order to understand his argument, he told us of three different methods by which telephone calls can be made between the U.S. and Eire. They are by satellite communication, by cable or through the usual designated systems of British Telecommunications Plc. or some other designated operator. It was explained to us that in the cases of satellite communication and by cable, the call is made direct from the U.S. to Eire. However, in the case of a call made through one of the designated systems, the call from the U.S. to Eire is channelled through one of the U.K. systems. As to which of the three routes was used at any time, that was dependent upon the amount of traffic at the time when the call was made. We were told that the selection of one of the three routes of communication was made randomly, and that no records were made as to which of the routes were used for any particular call.
Accordingly, it was accepted by both the applicant and the respondent that it was now impossible to prove which of the routes had been used, and hence impossible for the respondent to prove that the system routing calls through the U.K. had not been used in respect of the three intercepted telephone calls. Mr. Emmerson submitted that this court should approach this matter on the basis that the respondent was unable to prove that these calls had not been routed through a designated U.K. system. We shall refer to that route as “the U.K. route.”
Mr. Emmerson put the case for the applicant that the evidence of the three telephone calls was inadmissible on two bases. First, he contended (in an argument to which we have already referred) that the provisions of the Act of 1985 rendered that evidence...
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