Judgments - Morgans v. Director of Public Prosecutions (On Appeal from a Divisional Court of The Queen's Bench Division)

(back to preceding text)

The present state of the authorities

    As a general rule evidence is admissible irrespective of the means used to obtain that evidence: Reg. v. Sang [1980] A.C. 402. The question whether or not an offence was committed in the course of obtaining evidence by intercepting a communication by post or by means of a public telephone system is, in the absence of a statutory provision to the contrary, irrelevant to the admissibility of that evidence. Special rules apply to admissions and confession and to evidence obtained from the accused after the commission of the offence that amounts to a confession. These special rules do not arise for consideration in this case. However, as the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude unfair evidence, fairness to the accused would entitle him to ask questions about the lawfulness of the interceptions and the nature and purpose of the steps which were taken to obtain them by the prosecuting authorities, if evidence of the communications which were intercepted were to be held to be admissible.

    The question as to the effect of section 9 of the Act of 1985 on the admissibility of evidence of intercepted telephone calls arose for the first time in Reg. v. Effik, (1992) 95 Cr. App. R. 427. The appellants had been convicted of a number of offences of conspiracy to supply heroin and cocaine, which are controlled drugs. The evidence against them included evidence of telephone calls made by the use of a cordless telephone. It was designed to transmit radio signals to a base unit which was connected to a public telecommunication system. These calls had been intercepted and recorded by the police. It was admitted that the police had not obtained a warrant to intercept them under section 2 of the Act. An application was made to the trial judge to exclude this evidence on the ground that the calls had been intercepted in the course of their transmission through the public telecommunication system and that section 9 of the Act rendered them inadmissible. The judge held that, as the calls had been intercepted when they were passing between the cordless telephone and the base unit and the cordless telephone was not part of the public telecommunication network, evidence of the intercepted calls was not excluded by the Act of 1985.

    The appellants appealed against their convictions, and renewed their argument that section 9 of the 1985 Act rendered this evidence inadmissible. The Court of Appeal (Criminal Division) assumed in the appellants' favour that the cordless telephone in that case was part of a public telecommunication system. It held that section 9 prohibited the asking of questions which tended to suggest that an offence had been committed. But the appeals were dismissed on the ground that section 9 did not provide that evidence obtained as a result of an interception was inadmissible. Steyn L.J., giving the judgment of the Court, said at p. 432:

    "The starting point is the principle that all logically probative evidence is admissible. Any legislative inroad on this principle requires clear expression. Language to the effect that any evidence obtained as a result of an interception will be inadmissible could achieve such a purpose. But that is not what section 9 provides. It merely provides that no questions may be asked which tend to suggest that an offence under section 1 has been committed by specified persons or that a warrant has been or is to be issued to any of these persons. . . . The express terms of section 9 do not provide that no evidence obtained as a result of an interception may be admitted. The forbidden territory is drawn in a much narrower fashion. And there is a logical reason for the narrow exclusionary provision. That is the reflection that it cannot be in the public interest to allow those involved in espionage or serious crime to discover at a public trial the basis on which their activities had come to the notice of the police, the Customs and Excise or the Security Services, such as, for example, by questions designed to find out who provided the information which led to the issue of the warrant. So interpreted section 9(1) makes sense. And it would make no sense to stretch that language to become a comprehensive exclusion of all evidence obtained as a result of any interception."

    When the case came before this House on appeal in Reg v. Effik [1995] 1 A.C. 309 the appellants succeeded on a ground which did not raise any issue about the construction of section 9 of the Act of 1985. It was held, affirming the decision of the trial judge, that the material obtained by intercepting signals passing between a base unit and the hand set of a cordless telephone was admissible because no communication was being made by means of a public telecommunication system when the calls were intercepted by the police.

    The question as to the effect of section 9 was raised again in Reg v. Preston (1992) 95 Cr. App. R. 355, which was heard in the Court of Appeal (Criminal Division) just a few weeks after the decision by a differently constituted court in Effik. The appellants had been convicted of conspiracy to evade the prohibition on the importation of cannabis resin, a controlled drug. They had been under intensive surveillance by the police. In the course of the surveillance a warrant was issued to the police permitting the interception of telephone calls. The Crown relied on evidence of the fact that various telephone conversations had taken place between the appellants. Schedules were produced of calls made during the material times to various addresses by means of mobile telephones. But, with certain exceptions, the Crown did not seek to introduce evidence of the contents of the conversations. The appellants contended on various grounds that there had been a material irregularity in their trial. One of these was that the prosecution had failed to disclose details of the telephone communications which had been intercepted by the authorities. They said that the disclosure should have included the content of each interception and the identity of the persons who had taken part in the conversations.

    For the Crown, as Woolf L.J. observed at p. 364 and Lord Mustill was later to remark in the House of Lords [1994] 2 A.C. 130, 165G-H, the opposite contention was advanced from that which had been advanced in Effik. The warrant to intercept had been issued under section 2(2)(b) of the Act, which gives power to the Secretary of State to issue a warrant "for the purpose of preventing or detecting serious crime." It was submitted that the material revealed by an interception under a warrant would only be used to enable the Crown to take steps to obtain evidence, and that no communication intercepted in the course of its transmission by means of a public telecommunication system could be disclosed to the prosecution or the defence for the purposes of or in relation to a criminal trial. The Court of Appeal was of the view that the purpose identified in section 2(2)(b) did not include obtaining evidence to be used for prosecuting offenders. Reference was made to the safeguards in section 6 of the Act, which lays down various requirements designed to limit its disclosure that must be satisfied in relation to the intercepted material. These were said to show that this material should not be disclosed or retained to the extent that would normally be necessary if it were to be used in proceedings in a court by the prosecutor.

    As to the question whether, if evidence was in fact obtained as a result of an interception, it could be used as evidence in court proceedings, Woolf L.J. said this, at p. 365:

    "Although we may have heard fuller argument than was advanced in Effik, we do not find it possible to regard that decision as other than binding upon us. We therefore accept, in accord with the Effik decision, that section 9 does not directly prohibit the giving in evidence of material obtained as a result of an interception of a telephone communication, notwithstanding that the White Paper suggests that this was not the result which the government of the day intended to achieve. However, from a practical point of view, we doubt whether this is of any significance and therefore regard [counsel for the Crown's] concern about the effect of the Effik case as unjustified. This is because, notwithstanding the Effik case, so far as telephone interceptions are concerned, we are firmly of the view that the literal application of the language of section 9(1) will, other than possibly in the most exceptional case, prevent any material derived from an interception of the communication being adduced in evidence. We will explain the reasons for our view. In order to lay the groundwork for material to be admissible in evidence the manner in which the material has been obtained will normally have to be given in evidence in court and this in turn will tend to suggest either an offence under section 1 has been committed or a warrant has been issued which therefore contravenes section 9. It is this evidence of how the material was obtained which is the 'forbidden territory' and the fact that it should not be adduced in evidence will also usually prevent the material which was obtained as a result of the interception being given in evidence."

He pointed out, at p. 365, that it had been admitted in Effik that a warrant had not been issued. He observed that, on the basis of the reasoning in that case, the effect of the admission was that the prohibition on the admissibility of what had been learned as a result of the interception was removed. The admission, on a matter which Steyn L.J. said in Effik it would usually be perfectly proper for counsel for the Crown to decline to say anything, meant that the asking of the prohibited questions in that case was unnecessary. But he went on to say this, at p. 366:

    "However, where no admission is made, the position is otherwise and as an admission should not be made, the effect of section 9(1) is to erect a fence which will, other than in exceptional cases, prevent the use of the material obtained by the interception of a communication. This is because it will not be possible to give evidence as to how that material has been obtained."

    That case was then appealed to your Lordships' House: Reg v. Preston [1994] 2 A.C. 130. The leading speech was delivered by Lord Mustill, with whom Lord Keith of Kinkel and Lord Browne-Wilkinson agreed and Lord Jauncey of Tullichettle, while adding further reasons of his own, also expressed his entire agreement. Lord Mustill rejected the argument that the grounds for issuing a warrant under section 2(2)(b) included the prosecution of crime as well as its investigation in favour of what he described as the "narrower reading" of the subsection. On that reading its purpose was confined to the forestalling of potential crimes not yet committed and to the seeking out of crimes already committed, at which point the purpose of the warrant comes to an end. He observed that this conclusion accorded with the practicalities of section 6, the plain intention of which was to allow the products of the interception the narrowest possible currency. He said, at p. 167, that it also made sense "of the otherwise impenetrable section 9":

    ". . . on the narrower reading of section 2 there would be no need to make explicit provision for the admissibility of materials which by virtue of section 6 would no longer exist, and the purpose of section 9 can be seen as the protection, not of the fruits of the intercepts, but of information as to the manner in which they were authorised and carried out."

Lord Mustill said this of the decision in Effik, at p. 169:

    "My Lords, I am conscious that in giving my reasons for this opinion I have omitted any detailed analysis of the judgments of the Court of Appeal in Effik and in the present case. In doing so I intend no discourtesy to the Court of Appeal whose judgments I have studied with care and profit. The fact is, however, that the arguments addressed in Effik were fundamentally different from those which your Lordships heard, and the concentration on section 2 rather than section 9 has given a new perspective to the arguments in the present case. I therefore believe it permissible not to prolong an already long judgment by discussion of these cases, and simply to say that I agree with the decision of the Court of Appeal in the present case albeit not altogether with the reasons for it, and that in my opinion the decision in Effik should be overruled."

    It might have been thought that this express overruling of the decision of the Court of Appeal in Effik had put an end to the matter. But, as Kennedy L.J. remarked in the present case [1999] 1 W.L.R. 968, 978H, the decision of the Court of Appeal in Effik was given a new lease of life by two further decisions in the Court of Appeal (Criminal Division) to which I must now refer.

    In Reg. v. Rasool [1997] 1 W.L.R. 1092 objection had been taken to the admission of evidence which had been obtained by recording a telephone conversation between the appellant and a police informer who had consented to the interception. The appellant did not know that his conversation was being recorded, but it is sufficient for the purposes of section 1(1)(b) of the Act that only one of the parties to the communication has consented, so no offence was being committed when the interception took place. After considering the relevant passages in the judgments which were delivered in the House of Lords in Reg. v. Preston [1994] 2 A.C. 130, Stuart-Smith L.J. said at p. 1100B and G-H:

    "It seems to me to be reasonably clear that the reason why the Court of Appeal's judgment in Reg. v. Effik was overruled is as a result of the combined effect of sections 2(2)(b) and 6 of the Act of 1985 and [counsel for the defendant] accepted this. These sections have no application to a consensual interception . . . Accordingly it seems to me that the general statement of the law on the construction of section 9(1) to be found in the Court of Appeal's judgment in Reg. v. Effik, 95 Cr. App. R. 427, namely that it does not prevent the admission of the product of a telephone intercept to which the Act applies, is to be modified only to the extent that it relates to a warranted intercept. Accordingly section 9(1)(a) is not sufficient by itself to prevent admissibility of a consensual interception. Furthermore, since, on the question of admissibility, the fact that the evidence may have been obtained unlawfully is irrelevant, cross-examination to show that the intercept was not consensual cannot be entertained, quite apart from the prohibition in section 9(1)(a)."

    In Reg. v. Owen [1999] 1 W.L.R. 949 a telephone communication had been intercepted by the prison authorities in which one of the appellants, Stephen, admitted to his wife that he had taken part in a robbery with which he had been charged. A transcript of a recording of the conversation was introduced into the evidence. No warrant had been issued under section 2 of the Act of 1985. Objection was taken by Stephen's counsel to this evidence on the ground that it was inadmissible under section 9 of the Act as it tended to disclose the commission of an offence by the prison authorities. The judge found after holding a voire dire that the prison authorities had reasonable grounds to believe that Stephen had given his knowing consent to the monitoring of his telephone calls, so he allowed the transcript to be placed before the jury. The argument that this evidence was inadmissible was renewed in the Court of Appeal. The court rejected this argument, for reasons which were explained by Buxton L.J., at p. 960B-E:

    "We are therefore driven back to the conclusion that section 9(2)(a) prevents any investigation, in any proceedings, of whether in a non-warrant case an interception by an officer of the Crown is covered by section 1(2)(b). That view is in accordance with the ruling of this court in Reg. v. Effik, 95 Cr. App. R. 427, setting out the forbidden areas of inquiry, including whether or not the interceptor had the benefit of what is there described as the defence afforded by section 1(2)(b). We are bound to follow that ruling in view of the further ruling by this court in Reg. v. Rasool [1997] 1 W.L.R. 1092, equally binding upon us, that Reg. v. Effik is overruled by Reg. v. Preston [1994] 2 A.C. 130 only to the extent that it related to warranted intercepts.

    The effect in the present case is that it was not open to the defence to question whether or not the interceptors had reasonable cause to believe that Stephen was consenting to the interception. Therefore the judge (with whom we sympathise in having to deal with this intractable subject without even the full report of Reg. v. Rasool [1997] 1 W.L.R. 1092) was, in the circumstances of the case and of the arguments that were sought to be put against the admissibility of the intercept, wrong to order a voire dire to investigate the existence or otherwise of a section 1(2)(b) belief on the part of the prison officers. The intercepts were admissible without further such inquiry."

    In the present case Kennedy L.J. made it clear in the course of his judgment [1999] 1 W.L.R. 968, 978H and 979G that he found it difficult to accept that Effik had survived to the extent indicated in Reg. v. Rasool [1997] 1 W.L.R. 1092 and Reg v. Owen [1999] 1 W.L.R. 949. He observed at p. 979H that, if the court had been considering a consensual interception in this case, it would have been bound to follow Rasool. That was not the type of interception which occurred in this case. But, having identified the ratio decidendi in Owen in Buxton L.J.'s statement at p. 960C that Effik had been overruled only to the extent that it related to warranted intercepts, and having acknowledged that the court was bound by it, he said at p. 980C-D:

    "Since we must apply the approach in Reg. v. Effik, 95 Cr. App. R. 427 (in the Court of Appeal) not merely to consensual interceptions but also to interceptions falling within section 1(3)(a) of the Act of 1985, it would seem to follow that the first question posed for our consideration [which I have quoted above, at p.6] must be answered in the affirmative.

    Mr. Blackman valiantly sought to persuade us this morning that the decision in Reg. v. Owen [1999] 1 W.L.R. 949 really turned on the question of whether or not there should have been a voire dire. That, I am afraid, is not how I read the case and, in my judgment, the ratio decidendi of the decision is that which I have sought to identify."

    From this review of the authorities it can be seen that the position which has now been reached in the Court of Appeal, as a result of its interpretation of the extent to which the decision in Effik was overruled by the House of Lords in Preston, is that evidence obtained by any of the persons mentioned in section 9(2) of the Act of 1985 by the interception of communications for which a warrant has been issued under section 2 of the Act is inadmissible. But evidence obtained by those persons by the interception of communications for which no warrant has been issued but for which a warrant was required, as they were not carried out for the purposes mentioned in section 1(3) of the Act, is admissible - whether or not the person who intercepted the communication had reasonable grounds for believing that the person to whom, or the person by whom, the communication was sent had consented to the interception. This is because no inquiry may be conducted as to whether there was a reasonable belief on their part that the interception was consensual. Kennedy L.J. described this [1999] 1 W.L.R. 968, 977G-H as a somewhat astonishing state of affairs. If this is indeed the effect of the Act of 1985, it has created a remarkable and, one may reasonably think, an unacceptable anomaly.

The issues

    After this introduction I can now return to the issues which arise for decision in this case.

    In the first place I must deal with a preliminary point as to whether the material which was intercepted by the authorities in this case was a "communication" within the meaning of section 1(1) of the Act of 1985. This is because the Crown have contended that the information which was obtained by means of the Monolog devices was metering information only and not communication. Then I must examine the much more substantial issue as to the effect of section 9(1) of the Act on the admissibility of evidence obtained by means of interceptions by any of the persons mentioned in section 9(2), other than interceptions which have been carried out for the purposes mentioned in section 1(3) to which, as my noble and learned friend Lord Mackay of Clashfern has observed, section 9(1) does not apply. When I am dealing with this issue I shall have to return to the judgment in Reg. v. Preston [1994] 2 A.C. 130 in order to identify the extent to which the decision of the Court of Appeal (Criminal Division) in Reg v. Effik (1992) 95 Cr. App. R. 427 was overruled by it. Looking at the matter more broadly, I shall have to address the anomaly revealed by the present state of the authorities, that evidence obtained legally by means of warranted intercepts is inadmissible while evidence illegally obtained may be admitted because there can be no inquiry as to whether or not the interception without warrant was consensual.


    Mr. Houlder Q.C. for the Crown submitted that the information which was produced in evidence as a result of the interceptions was metering information only, not the product of any communication which was being transmitted by the public telecommunication system. He said that it was necessary to distinguish between evidence of the contents of a communication on the one hand and evidence as to the use of the system on the other. Here the only information which had been obtained was of numbers dialled on the appellant's telephone line before and after a connection had been made between it and another telephone line. The dialling of these numbers was the means by which a communication was to be achieved. It was merely a means to an end in the making of a communication and did not in itself amount to a communication. This was so closely analogous to metering information as to be indistinguishable from it.

    The comparison which was made between the information obtained from the appellant's telephone number by means of the Monolog devices and the printouts from the Meridien telecommunication networks of the three companies showed that the appellant was communicating with those networks when he dialled numbers on the keypad of his telephone after making a connection with them. As Lord Oliver of Aylmerton said in Reg. v. Effik [1995] 1 A.C. 309, 317G-H a communication through a telecommunication system consists of a series of electrical impulses. By dialling a number on the keypad of his telephone the appellant was able by means of an electrical impulse to activate a computer generated response from the network to which he was connected. By dialling the appropriate number he obtained access to messages which had been recorded on voice mail, and by dialling another number he was provided with a connection from the company's network to an outside line. The numbers which he dialled before making the connection to the network can properly be described as the means by which he intended to make the connection. If the information which had been intercepted by the Monolog devices had been confined to the recording of the numbers dialled at that stage it could properly have been described as metering information. But the numbers which he dialled after making the connection were in an entirely different category. At this stage he was communicating with the networks to which he had been connected. The numbers which he dialled resulted in the transmission of signals to those networks. They produced the same kind of computer generated response from them as he would have achieved if they had been programmed to respond to the human voice. He was communicating with those networks, and obtaining responses from them, as effectively as if he had been issuing instructions to them verbally.

    In Reg. v. Effik [1995] 1 A.C. 309, 320C-F Lord Oliver referred with approval to the conclusion of the Court of Appeal (Criminal Division) in Reg. v. Ahmed (unreported) 29 March 1994 where Evans L.J., giving the judgment of the court, said:

    ". . . 'communication,' in our judgment does not refer to the whole of a transmission or message; it refers to the telephonic communication which is intercepted in fact, and on the evidence to which I have referred that consists of what has been variously described as the electrical impulse or signal which is affected by the interception that is made."

In that passage Evans L.J. was making an important point about the meaning of the expression "communication" for the purposes of the Act of 1985. It is sufficient, to constitute a communication by means of a public telecommunication system for the purposes of the Act, for an electrical impulse or signal to be transmitted from the telephone number from which the impulse or signal is sent to the telephone number with which it has been connected. The sending of an electrical impulse or signal in either direction will do, irrespective of the response which it elicits from the recipient and the length or content of the message which it conveys. Any intentional interception of that electrical impulse or signal while it is in the course of transmission through a public telecommunication system will be subject to the provisions of the Act.

    I would therefore reject Mr. Houlder's argument that the information which was obtained by means of the Monolog devices was not the product of a communication within the meaning of the Act of 1985.

The decision of the House of Lords in Reg. v. Preston

    The overruling by the House of Lords in Reg. v. Preston [1994] 2 A.C. 130 of the decision of the Court of Appeal in Reg. v. Effik, 95 Cr. App. R. 427 is to be found in a short passage in Lord Mustill's judgment, at p. 169. As he himself remarked, he did not subject that decision to any detailed analysis. But there is no indication in his judgment, with which Lord Keith of Kinkel, Lord Jauncey of Tullichettle and Lord Browne-Wilkinson agreed, that it was his intention to overrule that decision in part only with the result that it was to be regarded, as Stuart-Smith L.J. in Reg. v. Rasool [1997] 1 W.L.R. 1092, 1100G-H regarded it, as having been modified only to the extent that it related to a warranted intercept.

    When, in the following year, the appeal in Reg. v. Effik was heard in this House, Lord Oliver of Aylmerton said [1995] 1 A.C. 309, 312H that the question framed by the Court of Appeal when it certified that a point of law of general public importance was involved in their decision to dismiss the appeals had already been answered by the House in Reg. v. Preston. He repeated that observation at p. 320F, and Lord Mustill said at p. 320G that he agreed with the speech which had been prepared by Lord Oliver. The question which the Court of Appeal had certified in Effik was in these terms:

    "Whether sections 1 and 9 of the Interception of Communications Act 1985 render inadmissible evidence of the contents of any material intercepted pursuant to the said Act notwithstanding the relevance of such evidence to the issues in a criminal trial."

continue previous