R v W
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 2003 |
| Date | 12 June 2003 |
| Court | Court of Appeal (Criminal Division) |
Court and Reference:Court of Appeal, 2002/6428/S4
: Clarke LJ, Morrison J and Dame Heather Steel DBE
Appearances: D Perry, S Brand and A Morgan for the Attorney-General; G Gray QC and T Roberts (instructed by Brown, Beer & Co) for W
: Whether s. 17 of the Regulation of Investigatory Powers Act 2000 prevents evidence being given in order to determine whether a telecommunications network is a public or private system
: W, a Detective Sergeant, was charged with a number of counts of misconduct in a public office, including (jointly with 2 other officers) one count of conspiracy. The Crown case was that between 2 June 1996 and 21 June 1997 W had provided, or assisted in providing, confidential and sensitive information to a known criminal and that he had provided sensitive and confidential information both to a man known as L and to journalists. On 30 May 1996, the Chief Constable gave his written consent for the interception of communications to take place on a number of specific telephone extensions used by W at a police station. The extensions in question were part of the internal telephone system; the interception created a 'duplicate call' which was relayed through a BT telephone line to another police station where equipment capable of recording the calls had been installed. The product of the interception revealed that confidential and sensitive information obtained by W in his capacity as a police officer was being provided to persons who had no entitlement to it. The interception continued until 21 June 1997. At the time of the alleged offences the Interception of Communications Act 1985 ("IOCA") was in force; it regulated the interception of public telecommunications. By the time of the trial IOCA had been repealed and the Regulation of Investigatory Powers Act 2000 ("RIPA") had been passed; it regulated the interception of both public and private telecommunications.
Before the trial the Crown served expert evidence on the defence in order to establish that the interceptions had taken place within a private communications system and that it had not therefore been necessary to comply with the provisions of IOCA. The defence wished to assert that the interceptions took place on a public communications system. Section 17 of RIPA prevents enquiries being made in a criminal trial that tended to suggested that an offence under s. 1 of IOCA had been committed: s. 1 of IOCA provided that it was an offence to intercept a communication on a public telecommunication system in the absence of consent or a warrant from the Home Secretary.
The defence submitted that s. 17 of RIPA prevented any investigation into whether the interception had taken place on the public side of the telecommunications system. The Judge held that s. 17 prevented the defence from asserting that the interception had taken place on the public side of the system, but that it did not prevent the Crown from adducing evidence that it took place on the private side. The Judge then acceded to a submission on the part of the Defence that admitting the evidence would be unfair and that it should be excluded under s. 78 of the Police and Criminal Evidence Act 1984.
The Attorney-General referred to the Court of Appeal the following questions as to the interpretation of s. 17 of RIPA: (i) Whether s. 17 prevented anything being done in a criminal trial to ascertain whether a telecommunications system is a public or private system, (ii) whether the answer to (i) depends if the events took place before RIPA came in to force, (iii) Whether, in the case of an interception of a communication on a private system, it is permissible in criminal proceedings to seek to establish that the interception has been carried out by or on behalf of the person with the right to control the operation or use of the system (a) if the interception took place before RIPA, (b) if it took place after RIPA.
Introduction
1. This is the opinion of the court in a reference by the Attorney-General (no 5 of 2002) under s. 36 of the Criminal Justice Act 1972 ('the 1972 Act'), which provides that, where a person tried on indictment has been acquitted, the Attorney-General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, which shall consider the point and give its opinion on it.
2. In this case the person tried on indictment who has been acquitted is W. The Attorney-General desires an opinion on a number of questions of law which he says have arisen in the case. As amended in the light of discussion in argument, they may be stated as follows:
i) Does s. 17(1) of the Regulation of Investigatory Powers Act 2000('RIPA') operate so as to prevent in criminal proceedings, any evidence being adduced, question asked, assertion or disclosure made or other thing done so as to ascertain whether a telecommunications system is a public or a private telecommunications system?
ii) Is the answer to question (i) above different if the evidence being adduced or question asked etc relates to events which took place before RIPA came in to force?
iii) Where an interception of a communication has taken place on a private telecommunications system, is it permissible in criminal proceedings to ask questions or adduce evidence etc to establish that the interception has been carried out by or on behalf of the person with the right to control the operation or use of the system
a) where the interception took place before RIPA came into force; and
b) where the interception took place after RIPA came into force?
Background
3. We take the background substantially from the reference, but as to some extent amended in the light of submissions made by Mr Gray. The Crown case may be summarised in this way. Between 2 June 1996 and 21 June 1997 3 serving police officers provided, or assisted in providing, confidential and sensitive information to a known criminal, C. The 3 police officers were D Sgt W, D Sgt M and DC H. In addition to the information provided to C, the prosecution alleged that DS W had provided sensitive and confidential information both to a man known as L and to journalists.
4. On 30 May 1996, the Chief Constable of the relevant police force gave his consent, in writing, for the interception of communications to take place on a number of specific telephone extensions at a police station. The extensions in question were part of the internal telephone system and were those used by DS W while acting as a police officer. The internal telephone system at the police station was made up of a network of Private Automated Branch Exchanges ('PABX's), which allowed for the routing or switching of calls between telephone extensions within the system. No licence was required under the Telecommunications Act 1984 for the operation of a PABX. The point of connection between the internal network and the public network was a test jack frame.
5. The equipment used to carry out the interception was a system known as 'Dial Up' which worked in the following way. A telephone call received or made from the telephones in question activated the interception equipment. The interception equipment created a 'duplicate call' which was relayed through a BT telephone line to another police station where equipment capable of recording the calls had been installed. The telephone conversations were thus monitored and recorded.
6. The product of the interception revealed that information of a highly confidential and sensitive nature obtained by DS W in his capacity as a police officer was being provided to persons who had no entitlement to the information in question. The interception continued until 21 June 1997.
7. The evidence obtained by the investigation led to the prosecution of the 3 police officers and C. The information obtained from the interceptions was crucial to the success of the prosecution case.
8. The indictment contained 6 counts. Count one, which was laid against the 3 police officers and C, alleged an offence of conspiracy to commit misconduct in a public office contrary to s. 1(1) of the Criminal Law Act 1977. Count one was intended to reflect the agreement to provide C with sensitive and confidential information. Counts 2 to 6, which were laid against DS W, alleged offences of misconduct in a public office contrary to common law. Those counts were intended to reflect the supply of sensitive and confidential information to L and to journalists.
9. We understand from Mr Gray that before the trial the defence asked to check the surveillance equipment but were told that they could not. We were further told that there was at least one PII application to the trial judge but that nothing was revealed to the defence as a result. However, none of those aspects of the case is relevant for present purposes, save to note the crucial fact that the defence wished to assert that the interceptions took place on a public communications system.
10. We should further note that the defence did not admit the Crown case as outlined above. For example, it was the defence case that the telephone system used to make the interceptions was a system which linked several police stations and which comprised several PABXs linked together via BT 'Megastream' lines, which were component parts of the public telecommunications system operated by BT under licence from the Secretary of State pursuant to s. 9 of the Telecommunications Act 1984 ('the 1984 Act'). Further it was said that 4 different telephone extensions at more than one police station were monitored at different times and that this was not a case concerning the interception of communications within a system contained within one police station as suggested by the Crown.
11. The resolution of those issues would or might have been relevant had the judge permitted evidence to be given or assertions made as to whether the system or...
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