“Internet Law Book Reviews” Provided by Rob Jerrard LLB LLM
 
Telephone intercept evidence inadmissible
Regina v Sargent
House of Lords (2001) The Times, 30 October
 
Keywords
 
Police and Criminal Evidence Act 1984, s. 78; discretion to exclude relevant evidence; Regulation of Investigatory Powers Act 2000; Khan v United Kingdom [2000] Crim LR 68-1; Jerrard on 'Illegal Evidence', 147 JPN 725
 
The Statutes
 
The Interception of Communications Act 1985.
 
Section 1 of the 1985 Act provides:
  1. (1). . . a person who intentionally intercepts a communication in the course of its transmission . . . by means of a public telecommunications system shall be guilty of an offence
 
Section 9 provides:
 
(1) In any proceedings before any court . . . no evidence shall be adduced . . . which . . . tends to suggest - (a) that an offence under section 1 above has been . . . committed by any of the persons mentioned in subsection (2).. .
(2) The persons referred to . . . are . . . any public telecommunications operator and any person engaged in the running of a public telecommunications system . . . .
 
Police and Criminal Evidence Act 1984. Section 78 provides:
 
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
 
The Facts
 
A car and house belonging to Neil Page were damaged by fire. Mr Page, a telephone engineer, thought that Sargent and Mr Page's ex-wife Christine, who were lovers, might have had something to do with it.
 
He accordingly, without authority, put a tester on a telephone line supplied to Christine by the company for whom he worked and heard a conversation between Sargent and Christine, which he tape-recorded. He believed that it concerned the burning of his car and accordingly gave the tape and a transcript to the police, who arrested Sargent and Christine.
 
At interview, Sargent denied involvement in the burning, but on being told of the tape-recording he made admissions and was charged with conspiracy to commit arson. At his trial, the judge overruled defence submissions that the intercept evidence and the confessions should be excluded.
 
Evidence was given by Mr Page of the interception and of the making of the tape and transcript, which were made exhibits. Evidence was also given of what Sargent had said at interview, and a transcript of the material parts was given to the jury. Neither Sargent nor Christine gave evidence.
 
Lord Hope said that it had only been when the police had showed Sargent, at interview, the transcript of the conversation between himself and Christine that he had begun to make the admissions about his involvement in the car being set alight that had provided the basis in evidence for his conviction.
 
It had been accepted at the trial that in carrying out the intercept Mr Page had committed an offence contrary to s. 1(1) of the 1985 Act.
 
The crucial question, therefore, as to the admissibility of the evidence of the intercept was whether he had at the time been a person 'engaged in the running of a public telecommunication system' within s. 9(2).
 
While he had been working for a public telecommunications operator, he had plainly not been acting in the course of his employment when he had intercepted the conversation.
`Engaged in' was capable of two meanings. On one view, it simply indicated the person's office, status or position within the relevant organisation. On that view, it would be enough to show
that he had been an employee or other agent of that organisation when he had carried out the intercept.
 
The other view was that the words were used to indicate that at the time the person had been embarked on a particular activity. On that view, the admissibility of the intercept would depend on whether he had been acting within the scope of his employment or instructions. The difficulties that would be involved in investigating the scope of a person's duties, the extent of his authority and the instructions that he had been given suggested quite strongly that the first meaning was the one that the words bore. That impression was confirmed by other provisions in s. 9. The scheme of the Act suggested strongly that no use of the intercept should be permissible irrespective of whether it had been lawful, authorised or instructed by the telecommunications operator. Accordingly, the effect of s. 9(1) was that the evidence of the interception of the telephone call and of the contents of the intercept had been inadmissible at Sargent's trial. Section 9 did not in terms prohibit the use at a person's police interview of an inadmissible intercept. Nor was it a necessary implication that that was the effect of ss 1 and 9. The use at a person's interview of illegally obtained material did not of itself make evidence of what was said at that interview inadmissible.
 
It was well established that the police could put to a suspect at interview information available to them, such as the contents of a confession by another suspect, that would not be admissible against him in evidence.
 
Each case should be approached on its own facts as to whether the use of the intercept at the interview had been unfair. Section 78(1) of the Police and Criminal Evidence Act 1984 provided the essential safeguard to ensure that the accused had a fair trial. It had, however, been crucial to the success of the prosecution's case against Sargent that his confession had been accepted by the jury as genuine. Powerful support for its being genuine had been afforded by Sargent's reaction on being made aware of the intercept.
 
The question was whether the jury would inevitably have convicted if the transcript of the interview had been edited so as to exclude all inadmissible mention of the intercept and the transcript of the intercept itself had been withheld from them. His Lordship was unable to say that that high test was satisfied. It was always a matter for concern when an accused was convicted solely on the basis of a confession. In the interests of fairness some other factor should be looked for that indicated that the confession was genuine.
That other factor had been before the jury when they had been told about the fact and content of the intercept and had been able to observe its effect on Sargent when interviewed. Once that element was stripped out of the case the position was quite uncertain. All that one was left with was the progress of the interview from its initial stage, when Sargent had made no admissions, to the later stage when, necessarily without explanation, he had changed his position and begun to admit his part in the offence.
 
In the absence of evidence about the intercept the jury might have had at least some doubt as to whether his confession was genuine. That led to the inevitable conclusion that his conviction was unsafe.
 
The Decision
 
A telephone engineer who for unauthorised private purposes in breach of s. 1(1) of the Interception of Communications Act 1985 intercepted and recorded a conversation implicating Sargent in a crime was a 'person engaged in the running of a public telecommunication system' within s. 9(2) of that Act and, accordingly, under s. 9(1) evidence of the intercept and its contents had been inadmissible at Sargent's trial. The House of Lords allowed an appeal by Sargent from the Court of Appeal who, on 18 January 1999, had dismissed his appeal against his conviction at Crown Court on 24 March 1998 of conspiracy to commit arson.
 
Comment
 
The 2000 Act has repealed the Interception of Communications Act 1985. This case concerned facts which took place before the new law.
 
The Regulation of Investigatory Powers Act 2000
 
There are many areas of investigation that the 2000 Act leaves untouched. Similarly, the Act extends beyond activities amounting purely to the investigation of crime. Primarily, the 2000 Act addresses the interception of communications and the covert acquisition of information about people. The Act's main purpose is to make sure that these activities, when carried out by public authorities, are subjected to a robust statutory framework which allows for proper independent control and monitoring. One of the main purposes behind the legislation is the need for such practices to conform to the European Convention on Human Rights, particularly since the former regulatory provisions were held to be inadequate in this regard; see Khan v United Kingdom [2000] CLR 68-1. (The House of Lords case was reported in Police Journal (1997) PJ 70 (1).)
 
Repealing the Interception of Communications Act 1985, the 2000 Act appears in five parts:
·Part I: the interception of communications and the acquisition and disclosure of data;
·Part II: surveillance and use of covert human intelligence sources (informers, agents and undercover officers);
·Part III: the investigation of electronic data (for example encrypted files);
·Part IV: the supervision of investigatory powers and Codes of Practice;
·Part V: miscellaneous provisions.
 
General considerations of exclusion rules
 
At Common Law the courts have a general discretion to exclude relevant evidence in order to ensure a fair trial. Section 78 PACE Act 1984 is an additional (statutory) discretion. The development may be traced from Christie [1914] AC 545, 559 and 564 respectively. Modern statements continue with Noor Mohamed [1949] AC 182; Harris v DPP [1952] AC 694, 707; Selvey v DPP [1970] AC 304 and the landmark decision of R v Sang [1980] AC 402.
The duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police. Fox v Chief Constable of Gwent [1985] 3 All ER 392, 397.
 
In Mason (1988) 86 Cr App R 349, 354, the court said that in its opinion s. 78 did no more than re-state the common law, but in Fulling (1987) 85 Cr App R 136, 141 the court said the Act was a codifying Act and courts should decide uninfluenced by any previous state of the law.
 
Some notes on the new 2000 Act
 
Offence - unlawful interception of private communications -Regulation of Investigatory Powers Act 2000, s. 1(2). The Regulation of Investigatory Powers Act 2000, s. 1(2) states:
(2) It shall be an offence for a person
(a) intentionally and without lawful authority, and
(b) otherwise than under circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection, to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.
 
This offence is new and had no equivalent under the Interception of Communications Act 1985.
Although sharing many of the other features of the offence under s. 1(1), this offence applies only to the interception of a communication that is being transmitted by a private telecommunications system.
 
A 'private telecommunications system' is defined at s. 2(1). Generally, it must satisfy the following criteria. It must be: Attached (directly or indirectly) to a public telecommunications system; and have apparatus comprised in it which is located in the United Kingdom and used for attaching it to that public telecommunication system.
 
Under the former offence under the 1985 Act, interception of a communication between a cordless handset and the base set of a domestic telephone was held to fall outside the concept of a public system, even though the line ultimately connected with a public system R v Effik [1995] 1 AC 309. Now under such circumstances, it would probably be an offence under s. 1(2).
The finding of the Court in Effik was:
 
A cordless telephone operated through a base unit which is connected to the public telecommunications system is not part of that public system but is instead a private system connected to the public system. Accordingly, the interception by the police of telephone conversations on a cordless telephone is not subject to the Interception of Communications Act 1985 and evidence at a criminal trial of such conversations is not rendered inadmissible under s. 9(1) of the Act by reason of the fact that the interception has taken place without a warrant.
The above offence requires proof of intention and also the absence of lawful authority.
 
Authorising directed surveillance.
 
Directed surveillance must be authorised by a designated person. The people who can grant authorisations for directed surveillance are prescribed by s. 30 and the relevant order(s) made by the Secretary of State. In the case of police services, the relevant rank will generally be superintendent and above. However, where it is not reasonably practicable:
·To have the application considered, by someone of that rank in the same organisation,
·having regard to the urgency of the case, then an inspector may give the relevant authorisation.
·Authorisations must generally be made in writing but, in urgent cases, a superintendent may give an oral authorisation s. 43 (1)(a).
·Additional procedural safeguards may be made under the Codes of Practice.
 
How long will an authorisation last?
 
Unless it is renewed, the authorisation given by a superintendent will ordinarily cease to have effect after three months beginning on the day that it was granted (s. 43(3)(c)). If that authorisation was given orally by the superintendent in an urgent case, it will only last for 72 hours unless renewed (s. 43(3)(a)(i)).
 
Where the case was urgent and the authority was given by an inspector, it will cease to have effect 72 hours later unless renewed (s. 43 (3)(a)).
 
Rob Jerrard

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