R v Stephen Preston
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Mustill |
| Judgment Date | 04 November 1993 |
| Judgment citation (vLex) | [1993] UKHL J1104-1 |
| Court | House of Lords |
| Date | 04 November 1993 |
[1993] UKHL J1104-1
HOUSE OF LORDS
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
Lord Keith of Kinkel
Lord Templeman
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Mustill
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree, I would dismiss these appeals.
My Lords,
By section 2(1) of the Interception of Communications Act 1985:
"… the Secretary of State may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by post or by means of a public telecommunication system, such communications as are described in the warrant; and such a warrant may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant."
By section 10(1) "intercepted material" in relation to a warrant means the communications intercepted in obedience to that warrant.
By section 2(2) the minister shall not issue a warrant unless he considers that the warrant is necessary inter alia "for the purpose of preventing or detecting serious crime". By section 6, where the minister issues a warrant he must make arrangements to secure that disclosure of intercepted material is limited to the minimum necessary for the purpose of preventing or detecting serious crime and must secure that each copy of any intercepted material is destroyed as soon as its retention is no longer necessary for the purpose of preventing or detecting serious crime.
The arrangements made by the minister to comply with section 6 when he issues a warrant for a telephone to be tapped have been outlined and approved by the Commissioner appointed under section 8 of the Act to keep under review the carrying out by the minister of his functions and duties. When a warrant is issued to an official of the telecommunications service for a telephone to be tapped in order to prevent or detect serious crime, the official prepares a tape and transcript, the police officer in charge of the relevant investigation takes note of any information which he deems to be helpful and the tape and transcript are then destroyed, usually within 24 hours. Thus if a suspected drug smuggler arranges by telephone to meet a friend at London Airport the police are in a position to make use of that information but no records of the telephone conversation are allowed to be kept.
By section 9 of the Act in any court proceedings no evidence shall be adduced and no questions asked in cross-examination which tend to suggest that a warrant has been issued.
Thus the Act makes it impossible for a record of a telephone conversation to be given in evidence and makes it impossible for evidence to be given that a warrant was issued for a telephone conversation to be intercepted.
On 30 July 1989 the appellant Stephen Preston travelled from Amsterdam to his house in Waterfall Road in London. He came, on his own admission, to find out what had happened to part of a consignment of drugs illegally imported from Holland to England and then hi-jacked, and to see that the suppliers in Amsterdam received the price which they had stipulated for the whole consignment. On 3 August 1989 Stephen Preston emerged from his Waterfall Road house carrying two holdalls and entered a car which held the appellants Clarke and Salter. The occupants of the car were arrested and the holdalls were found to contain £225,680 in cash. A third holdall at the Waterfall Road house held 10 kg. of cannabis. The papers found in the car and at the house implicated the appellants, all of whom were charged with conspiracy to import drugs. The appellants Clarke and Austen made damaging admissions. Stephen Preston admitted that he was taking part in a conspiracy to distribute drugs but alleged that he was acting under duress exercised in Amsterdam by the aggrieved suppliers who held his girlfriend and his son as hostages. Each of the other appellants pleaded ignorance of anything to do with drugs. The trial of the appellants began on 1 November 1990. The appellants believed, correctly, that the success of the police in arresting the appellants and catching them red-handed was due partly to information received from an informer and partly from information received as a result of telephone tapping which had been authorised by the Secretary of State. The police were unwilling to disclose information about the informer and were debarred by the Act of 1985 from giving any information about the content of the telephone intercepts. The defence concentrated on complaining to the judge that their clients could not have a fair trial unless they could identify the informer and be supplied with details of all the telephone conversations which had taken place.
On Tuesday 27 November 1990 counsel for Stephen Preston saying that he had "never been a shrinking violet so far as disclosing my defence is concerned" condescended to outline the instructions which Preston had given to his solicitors to explain why the suppliers of the drugs had fixed upon him, innocent though he claimed to be, as the right person to go to England and complete the distribution of the drugs and recovery of the moneys. On the same day, namely the 27 November 1990 when Stephen Preston's instructions to his solicitors were revealed to the judge and the prosecuting authorities for the first time, the prosecuting counsel confirmed that pursuant to the statutory provisions regarding telephone tapping and following the procedure which had been approved by the Commissioner, all the tapes and transcripts of telephone conversations had been destroyed immediately after the police had gathered the information which enabled them to arrest the appellants. Prosecuting counsel also informed the judge and defending counsel that representatives of the police who had used the information derived from telephone tapping knew of nothing which would support a defence of duress or a defence of innocence. Stephen Preston changed his plea to guilty on 6 December 1990.
The appellants having been caught red-handed in the circumstances I have outlined, and there being ample evidence to make the defence of ignorance unbelievable, all the other appellants were duly convicted. Counsel for the appellants pursued their complaints that there could not be a fair trial of their clients because they had not been given the name of the informer and had not been supplied with details of the telephone conversations which had been intercepted. These complaints were rejected by the trial judge and by the Court of Appeal and the appellants now appeal to this House against conviction. The appellants also put forward a further complaint. The arguments about the informer and the telephone tapping had taken place in the judge's room in the absence of the appellants. Counsel were forbidden to tell their clients about the arguments exchanged and the information confided in the course of discussions in the judge's room. The trial did not conclude until 15 February 1991.
Defence counsel now complain that argument should not have taken place in the absence of the appellants and certainly should not have been concealed from the appellants. My noble and learned friend Lord Mustill will deal with the principles which apply to the undesirable practice of secret exchanges between judge and counsel. In the present case the procedure had no effect on the outcome.
For my pan I consider that the arguments put forward on behalf of the appellants are quite untenable. The Act of 1985 requires the destruction of material which might otherwise be probative of the guilt or innocence of the accused. Parliament cannot have intended that an accused should be able to rely on the absence of that material in order to secure an acquittal. The trial must proceed as if the intercepted telephone conversations had never been recorded. I would dismiss these appeals.
My Lords,
Section 2(2)( b) of the Interception of Communications Act 1985 empowers the Secretary of State to issue a warrant authorising telephone-tapping "for the purpose of preventing or detecting serious crime." The principal issue in these appeals is whether these words also cover the prosecuting of such crime. The appellants contend that they do with the consequence that the defence is entitled to have access to intercepted material. This contention is opposed by the respondent.
It is common ground that the Act of 1985 was passed as a result of the decision of the European Court of Human Rights in Malone v. United Kingdom (1984) 7 E.H.R.R. 14. That case decided that there had been a violation of Article 8 of the European Convention on Human Rights inasmuch as the law of England and Wales did "not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities". The mischief which the Act was intended to deal with was accordingly the lack of a clear statutory framework within which telephone-tapping could take place and the lack of any form of redress for someone claiming that his telephone had been wrongly tapped.
Prior to the passing of the Act the invariable practice was that material intercepted as a result of telephone-tapping was not used in evidence. This is made clear in the Birkett Report of 1957 (Cmnd. 283), the White Paper of 1980 (Cmnd. 7873), the Diplock Report of 1981 (Cmnd. 8191) and the White Paper of 1985 (Cmnd. 9438). Did the Act alter this practice even although the...
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