R v Ian Michael Sargent
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 25 October 2001 |
| Neutral Citation | [2001] UKHL 54 |
| Date | 25 October 2001 |
| Court | House of Lords |
[2001] UKHL 54
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Hutton
Lord Hobhouse of Wood-borough
HOUSE OF LORDS
My Lords,
I have had the advantage of reading a draft of the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hobhouse of Woodborough. For the reasons they give, and with which I agree, I would allow this appeal.
My Lords,
I have read the opinions of my noble and learned friends Lord Hope of Craighead and Lord Hobhouse of Woodborough. For the reasons they give, I would also allow the appeal and set aside the conviction.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hobhouse of Woodborough. I gratefully adopt his narrative of the facts of the case and the statutory background. I would like however to add two points by way of further explanation as to the background.
The first is that Mr Emmerson QC for the appellant did not seek to maintain the argument which was submitted to but rejected by the Court of Appeal that there had been a breach of the appellant's right to privacy under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd 8969) which in itself rendered the resulting evidence inadmissible. He directed his principal argument to the proposition that sections 1 and 9 of the Interception of Communications Act 1985 rendered both the fact that there had been an interception and the material which had been obtained by means of it inadmissible in evidence. The second is that his submission with regard to the second certified question was that the effect of sections 1 and 9 was that it was unlawful for the police to make any use whatever of the intercept when the appellant was being interviewed. It was this unlawfulness rather than the inadmissibility of the intercept in evidence which, according to his argument, made the confession which resulted from its use at the interview inadmissible.
The context for these submissions can best be appreciated by noting the following exchange which took place in the course of Detective Constable Hussey's interview of the appellant at Eccles police station on 2 August 1997, as recorded on page 21 of the transcript:
"A. He's illegally taped something has he?
Q. I'm going to come to that in a minute mate. Do you know who he works for?
A. Nynex.
Q. Right. Have there been any problems at all between Christine and Nynex or Neil and Nynex about his previous actions or 85
A. There's has been a lot of er things going on for the past nine or ten months about him er making malicious phone calls to her and Nynex aren't doing anything about it.'
DC Hussey showed the appellant a tape, which he said was a tape of a conversation which had taken place between himself and Christine Page at 10.15 am on the same day that Neil Page's car was set alight in the early hours. He also showed him a transcript of the conversation which he said had been prepared by Neil Page, and he told him that apart from the odd spelling mistake it was an accurate record. He asked the appellant whether, before he went through the transcript, he wished to change what he had said in answer to his previous questions as to what he knew about the car being set alight. It was only then that the appellant began to make the admissions about his involvement which provided the basis in evidence for his conviction. Such was the effect of the production of these items however that the appellant had already made a full confession before DC Hussey went through the transcript and the details of the conversation which had been recorded on the tape were put to him. It is plain that the appellant already knew that Neil Page worked for Nynex Cable Co Ltd, the public telecommunications operator from whom Christine Page rented her telephone line, and that Mr Page had the opportunity, if so minded, to tape her telephone conversations illegally.
Section 9(2) of the 1985 Act
It was accepted at the trial that, in carrying out the intercept, Neil Page had committed an offence contrary to section 1(1) of the 1985 Act. The crucial question therefore as to the admissibility of the evidence of the intercept was whether he was at that time a person "engaged in the running of a public telecommunication system" within the meaning of section 9(2)(c) of the Act. As Lord Bingham of Cornhill CJ said in the Court of Appeal, while Mr Page was working for a public telecommunications operator, he was plainly not acting in the course of his employment or for the purposes of his employer when he intercepted the telephone conversation. As the Lord Chief Justice put it, Mr Page was acting entirely off his own bat for his own private purposes. But does this mean, as the Court of Appeal held, that he was not "engaged in" the running of a public telecommunication system?
The words "engaged in" which appear in both section 9(2)(b) - "engaged in the business of the Post Office" - and in section 9(2)(c) - "engaged in the running of a public telecommunication system" - are capable of two meanings. On one view, the words are used simply to indicate the person's office, status or position within the relevant organisation. On this view, it would be enough to show that the person was an employee or other agent of that organisation when he carried out the intercept. The other view is that the words are used to indicate that at the time the person was embarked upon a particular activity. On this view, it would be necessary to examine what he was doing at the time and to determine whether or not it was within the scope of his duties or his instructions. The admissibility of the intercept would depend not on whether he was employed by the organisation but on whether he was acting within the scope of his employment or on his instructions at the time of the interception.
It is plain that the second of these two alternatives would require more detailed investigation than the first to determine whether the intercept was inadmissible under section 9(1) of the 1985 Act or was admissible. Indeed, it is hard to see how an investigation into the person's activities at the time of the intercept could be conducted without entering into what was described in by Steyn LJ in R v Effik (1992) 95 CrAppR 427, 432 as the "forbidden territory." Section 9(1)(a) provides that no evidence shall be adduced and no question asked in cross-examination which tends to suggest that an offence under section 1 of the Act has been committed by the person who carried out the intercept or whether a warrant has been or is to be issued to him. The underlying purpose, as Lord Mustill said in R v Preston [1994] 2 AC 130, 167, is to protect information as to the authorisation and carrying out of official intercepts. But the prohibition extends to unauthorised as well as to authorised activity. It reflects the public interest that the circumstances in which the activities of those involved in serious crime came to the knowledge of the police should not be capable of being explored at a trial.
Questions as to the scope of the person's duties, the extent of his authority and the instructions which he had been given would be hard to avoid if the decision as to admissibility were to depend on evidence as to whether he was acting within the scope of his employment at the time when the interception was carried out. They would be almost certainly crucial to the issue of admissibility if the intercept was carried out, as it was in this case, at the person's place of work using his employer's equipment within normal working hours. They indicate the difficulties which the prohibition in section 9(1) would create in the conduct of such an investigation. These difficulties suggest quite strongly that the first alternative meaning of the phrase is the one which it bears in the present context.
This impression is confirmed by other provisions in section 9. First on the list of persons mentioned in section 9(2) is any person "holding office under the Crown": section 9(2)(a). No inquiry into the person's authority or instructions is necessary in his case. All that is needed to determine inadmissibility is evidence of the person's status. This suggests that the same exercise is appropriate in the case of the persons mentioned in section 9(2)(b) and section 9(2)(c).
Then there is the list of relevant offences in section 9(4)(a) to which, by section 9(3)(a), section 9(1) does not apply. Included in this list is section 45 of the Telecommunications Act 1984. Section 45(1) provides that a person engaged in the running of a public telecommunication system who "otherwise than in the course of his duty" intentionally intercepts a message sent by means of that system or, where a message so sent has been intercepted, intentionally discloses to any person the contents of that message shall be guilty of an offence. The phrase "otherwise than in the course of his duty" appears also in section 45(2), which makes it an offence for a person engaged in the running of a public telecommunication system to disclose to any person the contents of any statement of account specifying the telecommunication services provided to another person by means of that system. These provisions contemplate that a person may be "engaged in" the running of a telecommunication system and yet at the same time be acting "otherwise that in the course of his duty". All the offences mentioned in section 9(4)(a) of the 1985 Act involve unlawful acts by persons referred to in section 9(2) which are outwith or contrary to their duty or their instructions. Unless the context requires...
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