R v E (Leon)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HUGHES,THE VICE PRESIDENT |
| Judgment Date | 26 April 2004 |
| Neutral Citation | [2004] EWCA Crim 1243 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 April 2004 |
| Docket Number | No: 200400234/B5 |
[2004] EWCA Crim 1243
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
The Vice President
(Lord Justice Rose)
Mr Justice Hughes
Mrs Justice Gloster
No: 200400234/B5
MR MEEKE QC appeared on behalf of the APPELLANT
MR I GLEN QC & MR W HART appeared on behalf of the CROWN
This appellant is one of a number of accused due to be tried in the Crown Court for offences of conspiracy to supply controlled drugs of different descriptions. A preparatory hearing was held pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. At it the trial judge ruled admissible evidence of recordings which had been made by a surveillance device secreted in the accused's car by investigating police officers.
This appeal is brought under section 35 of the 1996 Act to establish, before the trial, whether that ruling is correct or not.
It raises questions relating to the construction of the Regulation of Investigatory Powers Act 2000, to which we shall subsequently refer by its customary initials as RIPA. It also raises questions as to the impact upon that matter of European Commission Directive 97/66.
The learned judge granted leave to appeal so that the matter could be brought before this Court without delay.
All that it is necessary to say about the facts is this. In the course of an investigation into suspected drugs dealings on a substantial scale and as part of quite extensive observation procedures the police obtained permission under the Police Act 1997 and RIPA to place a listening device in the accused's car. It provided recordings of words spoken in that car over two periods, one of about 4 weeks and the second about 4 days.
The Crown asserts that those recordings help to prove the accused guilty of the offences charged and it wishes to adduce them in evidence. The accused contends that they are inadmissible.
The words spoken and recorded included the following. First, words spoken by the accused to other people who joined him in the car. Second, words spoken by those other people to him. Third, words spoken by the accused when in the car and using a mobile telephone. The device recorded the accused's end of any such telephone conversations. It did not pick up any speech from whoever it was to whom the accused was speaking. Quite a substantial part of the total speech recorded in the car consisted of the accused speaking into his mobile telephone. It may be that it was approaching or as much as half of the total recorded material.
It is the fact that this third category of speech was recorded by the listening device, which gives rise to the argument mounted on behalf of the accused, that all the evidence of the product of the device is inadmissible.
Placing the listening device in the accused's car involved entry into his private vehicle. That entry was lawful, under section 92 of the Police Act 1997, only if it was properly authorised under that Act. That meant, in summary, that it needed to be authorised by the Chief Constable of the relevant force and that that authority was subsequently approved by a Commissioner appointed for the purposes of the Act, who will be a person either holding or having held high judicial office. For those propositions see section 91(5) and 97(1) of the 1997 Act.
A listening device of this kind also constitutes intrusive surveillance, as that expression is defined by section 26(3), (4) and (5) of RIPA. Whether any separate authority is needed in a case where Police Act authority is given is a question on which we have not heard detailed argument. But authority was in fact given under RIPA as well and at a similar high level and also subject to notification to a Commissioner.
We are, if we may say so, grateful to both Mr Meeke QC and Mr Glen QC for carefully and concisely made submissions in this case. We should record also the assistance that we have derived from a discussion and analysis undertaken by Professor Ormerod and Mr McKay published in the Crim LR 2004, page 15, albeit that we are unable to endorse some of the conclusions there suggested.
Mr Meeke argues that the evidence produced by the listening device is inadmissible. His submissions are these:
What occurred was "interception" of the telephone calls made by the accused when he was in the car;
therefore, they were either interceptions authorised by a warrant of the Secretary of State, issued under section 5 of RIPA or, if they were not, they constituted an offence of unlawful interception, contrary to section 1(1) of the same Act and committed by police officers;
whichever of those two possibilities was the correct one, the consequence of section 17 of RIPA is that the evidence of intercepted calls is inadmissible;
alternatively, if the second possibility is the correct one and what happened was an offence of unlawful interception, then evidence of intercepted calls resulting from it should be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984.
Those first four submissions are the principal ones with which we have to deal. In relation, however, to all the recorded material, including that which was not recorded when the accused was using a telephone, Mr Meeke makes the following additional submissions:
Because the police officers knew that they were likely to record conversations made when the accused was using his mobile telephone or, failing that, because, as the surveillance proceeded they knew that that was what was in fact happening, it was their duty to tell the Chief Constable and the Commissioners so, either when applying for authorities or subsequently as the position became clear.
They did not do so specifically, and their failure to discharge that duty represents a lack of candour amounting to either to bad faith, or at least to something which might have the appearance of bad faith to the accused. Accordingly, it was a misuse of the authorisation system such as deliberately to infringe the rights of the accused under, amongst other things, Article 8 of the European Convention on Human Rights. As a result the Chief Constable and the Commissioner were deprived of the opportunity to given informed consent to what was proposed.
Accordingly the court should exclude, under section 78 of the Police and Criminal Evidence Act, all the material gathered by a listening device, for which authority had thus wrongly been obtained. That should include not only the telephone material, but also ordinary conversations between persons in the car, on the broad ground that the application which had been made for authority was tainted.
Section 1(1) of the RIPA provides as follows:
"(1) It shall be an offence for a person intentionally and without lawfully authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of:
(b) a public telecommunication system."
Section 17(1)(a) provides as follows:
"Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other things done in, for the purposes of or in connection with any legal proceedings which (in any manner)
(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data…"
Not all evidence of interception is accordingly necessarily inadmissible. What is inadmissible is evidence where it may be inferred to have its origin in something falling within section 17(2). Moreover, the exception in section 18 must not apply.
For present purposes, it is necessary to look at section 17(2) which provides, so far as relevant, as follows:
"(2) The following fall within this subsection
(a) conduct by a person falling within subsection (3) that was or would be an offence under section 1( 1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985.
(c) the issue of an interception warrant or of a warrant under the Interception of communications Act 1985".
For the purposes of that subsection 17(2)(a), a person falling within section 17(3) includes a police officer.
The result of that is that if there was an interception pursuant to a warrant from the Secretary of State, evidence of the contents of it is inadmissible. Such contents are equally inadmissible if there was an interception without a warrant, which was the result of an offence by the police officer against section 1(1). Although section 17 is expressly made subject to section 18, in the present case none of the exceptions provided for in that second section applied.
Furthermore, there is an offence against section 1(1) only if the interception is carried out without lawful authority. Sections 3 and 4 provide statutory authority, in certain cases, including those where both parties to a telephone conversation consent, or are reasonably believed to do so and those where one party consents and surveillance authority under part 2 of the RIPA is in force. However, none of those situations provided for by any of sections 3, 4 or 18 apply in the present case.
We are accordingly satisfied that, if what happened here was interception, evidence of the content of any telephone calls is rendered inadmissible by section 17(1)(a). If it was interception, it is therefore unnecessary to get as far as the discretionary power to exclude evidence pursuant to section 78 of the Police and Criminal Evidence Act. Accordingly, Mr Meeke's fourth submission does not arise for consideration. It follows that the...
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