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

(back to preceding text)

    It is true, as Stuart-Smith L.J. observed in Reg. v. Rasool [1997] 1 W.L.R. 1092, 1098E-F and 1100B in his analysis of the speeches in Reg v. Preston [1994] 2 A.C. 130, that the House of Lords held in Preston that it was the combined effect of sections 2(2)(b) and 6 of the Act of 1985 which had the result of prohibiting the product of telephone intercepts carried out under warrant from being admissible in evidence. Lord Mustill made it clear at pp. 163-164 that he thought that the right place to search for a solution to the problem raised in that case was in section 2 of the Act rather than section 9. He then examined both section 2 and section 6 and identified a reading of them which, in his words at p. 167A, "makes sense of the otherwise impenetrable section 9."

    But this part of his speech does not explain his conclusion that the decision in Reg. v. Effik 95 Cr. App. R. 427 should be overruled. In Effik the court was dealing with interceptions by the police for which they had no warrant. The Crown argued that the evidence should nevertheless be held to be admissible. In Preston the police had obtained a warrant, but the Crown did not seek to lead evidence of the material which had been obtained by the interception of the telephone calls. The argument in that case was about the Crown's decision not to disclose that material to the defence. The position of the Crown was that the material which had been obtained under warrant in Preston should have been destroyed long before it came into the hands of the counsel for the prosecution, let alone the trial. In the result, as Lord Mustill said at p. 169C, the arguments addressed in Effik were fundamentally different from those which were addressed to their Lordships in Preston. It is to be noted, as Lord Mustill mentioned at p. 166A, that it was the position of counsel for the Crown in Preston that the judgment in Effik should be overruled.

    The explanation for Lord Mustill's opinion that the decision of the Court of Appeal in Effik should be overruled is to be found in the following passage of his judgment at p. 168F-G:

    "When invited to explain how it happened that in Effik, 95 Cr. App. R. 427, the prosecution had successfully pressed for the admission of evidence which according to the stance now taken should have been destroyed long before it reached counsel for the prosecution, let alone a trial, [counsel for the Crown] could do no more than say that counsel in Effik had been wrongly instructed. This total failure to understand and apply even the elements of the system does not inspire confidence in the delicate balance between destruction and disclosure which the decision-maker is required to perform."

I think that it is clear from these observations that he regarded the position which the Crown had successfully adopted in Effik as wholly incompatible with that which it had decided to adopt, in the result also successfully, in Preston. And observations which he made elsewhere in his judgment show that, far from seeking to draw a distinction between warranted and unwarranted intercepts, he regarded the provisions of sections 2 and 6 as to the treatment of warranted intercepts as indicative of the scheme of the Act of 1985 as a whole. Observations to the same effect can be found in the speeches of Lord Templeman and Lord Jauncey. The background to these observations is to be found in the passage which I have already quoted from Woolf L.J.'s judgment in the Court of Appeal in Reg. v. Preston, 95 Cr. App. R. 355, 365 where he pointed out that, in order to lay the groundwork for material to be admissible in evidence, it will normally be necessary for the manner in which the material has been obtained to be given in evidence. This will almost inevitably extend into the "forbidden territory" which Steyn L.J. identified in Reg. v. Effik, 95 Cr. App. R. 427.

    Lord Mustill said at p. 167B-C, after making his point that the narrower reading of section 2 made sense of section 9:

    ". . . 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. Inquiries as to these matters were to be confined to the tribunal under section 7, and the defendant was not to have the opportunity to muddy the waters at a trial by cross-examination designed to elicit the Secretary of State's sources of knowledge or the surveillance authorities' confidential methods of work. Evidently the proscription of questioning on the existence of warrants was seen as an economical means of achieving this result.

    The narrower reading of section 2 is strongly supported by the history of the Act. I need not repeat this. The criticisms in Malone v. United Kingdom, 7 E.H.R.R. 14 which prompted the Government to change its mind and legislate were directed not to the long-established practice but its inaccessibility, imprecision and lack of formal safeguards. The Act was plainly designed to put these matters right, and I can see no reason to suppose that the Government had suddenly and spontaneously decided to go much further and overturn the practice which had persisted for decades of separating the process of surveillance from the prosecution of offenders."

    Lord Templeman said, at p. 140E-F:

    "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."

    Lord Jauncey said, at p. 142E, after referring to various Reports and White Papers including the White Paper on the Interception of Communications in the United Kingdom (1985) (Cmnd. 9438), that 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. The question which he then proceeded to consider was whether the Act of 1985 had altered this practice, even although the decision in Malone did not require such alteration. He expressed his conclusions at pp. 143H-144B, after quoting the terms of section 9(1):

    "It was argued by the defendants that this subsection merely prevented the asking of questions as to whether or not an interception had taken place but did not prevent the material derived from such intercept being introduced in evidence in some other way, such as by admission. However, the clear purpose of the subsection is to prevent evidence being elicited which suggests that an intercept has been made and this would be a pointless exercise if, nevertheless, the content of that intercept was to be disclosed. Indeed it is very difficult to see how such content could be used in evidence without disclosure of the circumstances in which it became available.

    My Lords, I have no doubt that Parliament intended that the existing practice of not using intercepted material as evidence should continue."

    As Preston was a warrant case and the question of disclosure lay at the heart of the argument, their Lordships were drawn inevitably into a consideration of the provisions of sections 2 and 6 and the light which these sections cast on section 9(1), whose provisions have caused so much difficulty. But, as I read their judgments, they were able to find guidance in these sections as to the purpose of the Act as a whole and to express their conclusions in terms which were not confined to the warrant cases. If there was a distinction to be drawn between the use of intercepted materials in non-warrant cases and their use in warrant cases, one would have expected this to have been made clear by Lord Mustill in his most careful judgment. But he made no such distinction. When the Act of 1985 came before the House again in Reg. v. Effik [1995] 1 A.C. 309, which was a non-warrant case, Lord Oliver described the purposes of the Act in these terms, at p. 319G-H:

    "It set out, as it seems to me, to achieve three objects, viz.: first, to protect the integrity of that system of communication which is under public, and not under individual, control by creating a specific offence of interception of communications through the public system; secondly, to provide for the authorisation of such limited exceptions, under proper safeguards, as are necessitated by the requirements of national security and the prevention of serious crime; and, thirdly, to ensure that the use of material acquired by resort to these exceptional procedures is strictly limited to the purposes for which it has been acquired and it not used for any other purpose."

    It seems to me therefore that the Court of Appeal in Reg. v. Rasool [1997] 1 W.L.R. 1092 took too narrow a view of the decision of this House in Preston, and that they were wrong to conclude that the judgment of the Court of Appeal in Reg. v. Effik, 95 Cr. App. R. 427 had been modified only to the extent that it related to a warranted intercept. They should have treated the Court of Appeal's decision in Effik as having been overruled in its entirety and the judgment of this House in Preston as applicable also to consensual intercepts.

    The situation in regard to interceptions carried out for the purposes mentioned in section 1(3) of the Act of 1985 was not discussed in Preston. It appears that the exception which was provided for by that subsection reflected the existing practice in regard to interceptions which were made for these purposes. I do not think that anything in what was said in Preston suggests that section 9 renders evidence obtained for these purposes inadmissible in proceedings for offences of the kind mentioned in that subsection.

Broader considerations

    I do not however think that it would be satisfactory to decide this case on the basis that the issue which it raised had already been decided in Reg. v. Preston [1994] 2 A.C. 130. While I believe that this is how the decision in Preston should be read, there are a number of other considerations which have led me to a firm conclusion that there is no room for the drawing of a distinction between interceptions under a warrant, which are undoubtedly lawful, and those whose lawfulness will depend on whether or not they can be shown to have been consensual.

    The most striking point, to which Mr. Blackman for the appellant attached much importance in the course of his helpful and succinct argument, is the anomaly which would be created if material which had been obtained by means of interceptions without a warrant were to be held to be available to the prosecutor as admissible evidence. It would be quite extraordinary if material which had been obtained without authorisation, and which was not therefore subject to the safeguards which the Act lays down in the case of warranted intercepts, were to be exempted from the system which, consistent with pre-existing practice, has confined the use of interceptions to the prevention or detection of serious crime and precludes their use by the prosecutor. The interception of communications by means of a public telecommunication system without a warrant is lawful if it is consensual. But section 9(1)(a) prevents the leading of evidence or the asking of questions in cross-examination which tends to suggest that an offence has been committed by the persons mentioned in subsection (2). So the issue as to whether the interception was under a warrant or, if it was not, whether it was consensual cannot be made the subject of evidence. The safeguards which the Act lays down in the case of interceptions under a warrant, the effect of which is to confine their use to the purposes stated in section 2(2) of the Act of 1985, are absent in the case of those for which no warrant has been issued. The integrity of that system would be put at risk if material obtained by interceptions for which a warrant was required but had not been issued were to be available for use in court by the prosecutor, as the question whether or not they were consensual cannot be explored in evidence. Therein would lie the seeds of temptation for the unscrupulous. It is difficult to imagine that there were sound reasons for creating such an anomaly.

    There is another reason for regarding it as inconsistent with the scheme of the Act that evidence of interceptions for which no warrant has been issued should be held to be admissible. The fact is, as Woolf L.J. pointed out in the Court of Appeal in Reg. v. Preston, 95 Cr. App. R. 355, 365, that a basis will almost always have to be laid in practice for the leading of such evidence. Proof that the interceptions were of communications passing through the public telecommunication system from a particular telephone number will require an explanation of the means by which the interceptions were carried out and the circumstances in which this was done. The prosecutor may be able, by careful questioning, to avoid trespassing into the forbidden territory. But the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude unfair evidence. Trespassing into the forbidden territory is likely to be essential if the defendant's interests are to be properly safeguarded. The prohibitions which are set out in section 9(1) are inconsistent with the defendant's right to a fair trial. This consideration provides a strong indication that it was not the intention of Parliament that evidence of material obtained by interceptions for which no warrant has been issued should be admissible.

    In the Court of Appeal in Reg.v.Effik, 95 Cr. App. R. 427, 432 Steyn L.J. said that it would make no sense to stretch the statutory bar imposed by section 9(1) so that it amounted to a comprehensive exclusion of all evidence obtained as a result of any interception. There is much force in his point that, in the public interest, one should approach the departure from the express provisions of section 9(1) which this would involve with an initial element of scepticism. But the more complete analysis of the Act of 1985 which was undertaken by the House of Lords in Preston, and the wider considerations which I have mentioned, lead inevitably to the conclusion that evidence of material obtained by the interception by the persons mentioned in section 9(2) of the Act of 1985 of communications of the kind described in section 1(1) of that Act, except for the purposes described in section 1(3), will always be inadmissible. It is not possible to say that section 9(1) of the Act provides for this in express language. But, in the context of the Act as a whole, the prohibitions which it contains lead inexorably to that result. So I would hold that it has that effect by necessary implication.

Disclosure

    The principal issue in the appeal to the House of Lords in Reg. v. Preston [1994] 2 A.C. 130 was that of disclosure. For the Crown it was contended that there was no need for the material which had been obtained under warrant in that case to be disclosed to the defence since none of that evidence could be led at the trial. Concern was expressed as to the consequences of this argument on the defendant's right to a fair trial. At pp 168F-169B Lord Mustill said this of the competing arguments:

    "In the end, however, I consider that the very real apprehensions voiced by counsel for the defendants cannot prevail over the plain intent and wording of the Act. The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. Hence sections 2 and 6. These policies are in flat contradiction to current opinions on the 'transparency' of the trial process. Something has to give way, and the history, structure and terms of the statute leave me in little doubt that this must be the duty to give complete disclosure of unused materials. The result is a vulnerable compromise, but it may be the best that can be achieved. At all events I conclude that it is the one which the statute does achieve, and I therefore accept the argument for the prosecutor on the principal issue in the appeal."

    There remains the question whether the reasoning in this passage extends to unused materials which are the result of interceptions for which a warrant was required, as the interception was not for the purposes mentioned in section 1(3), but for which no warrant has been issued. Sections 2 and 6 do not apply to them. But the need for surveillance and the need to keep it secret are not confined to those cases where a warrant has been obtained for the interceptions. A warrant is unnecessary if the interception is with the consent of one of the parties to the communication who, as he is an informer, wishes tp remain anonymous. Other cases may be envisaged where it is necessary for the authorities in an emergency to intercept a communication without a warrant in the interests of national security or to prevent the commission of a serious crime. The scheme of the Act is that material obtained by the interception of communications is to be used only for the purpose for which it was obtained and that, except where the interception was for the purposes mentioned in section 1(3), none of this material, whether it has been obtained under a warrant or otherwise, is to be passed to the prosecutor. It seems to me that it would be consistent with the scheme to hold that the duty to give complete disclosure of unused materials does not extend to any material obtained by means of an interception which is withheld from the prosecutor, whether or not it was obtained under a warrant and whether or not the safeguards in section 6 apply to it.

Conclusion

    I would answer the second of the two certified questions in the negative. In my opinion Reg.v. Rasool [1997] 1 W.L.R. 1092 and Reg. v. Owen [1999] 1 W.L.R. 949 were wrongly decided and they should be overruled.

    I would decline to answer the first of the two certified questions, because it seeks to draw a distinction between the situation where the case falls within the category specified in section 1(2)(b) and the situation where it does not. In my opinion, as the effect of section 9(1) is to prevent evidence being led or questions being put in cross-examination tending to show that an offence has been committed because the case does not fall within that category, no such distinction is appropriate. Sections 1 and 9 of the Act of 1985 prohibit the adducing in any proceedings before any court or tribunal of evidence of the contents of a communication made by means of a public telecommunication system by a person within the categories specified in section 9(2), except where the communication was intercepted for the purposes mentioned in section 1(3) of the Act or where the proceedings are for a "relevant offence" as defined in section 9(4) or are before the Tribunal established under section 7.

     I would allow the appeal.

 
continue previous