E, R. v

This appellant is one of a number of accused due to be tried in the Crown Court for offences of conspiracy to supply controlled drugs of different descriptions. A preparatory hearing was held pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. At it the trial judge ruled admissible evidence of recordings which had been made by a surveillance device secreted in the accused's car by investigating police officers.

This appeal is brought under section 35 of the 1996 Act to establish, before the trial, whether that ruling is correct or not.

It raises questions relating to the construction of the Regulation of Investigatory Powers Act 2000, to which we shall subsequently refer by its customary initials as RIPA.. It also raises questions as to the impact upon that matter of European Commission Directive 97/66.

The learned judge granted leave to appeal so that the matter could be brought before this Court without delay.

All that it is necessary to say about the facts is this. In the course of an investigation into suspected drugs dealings on a substantial scale and as part of quite extensive observation procedures the police obtained permission under the Police Act 1997 and RIPA to place a listening device in the accused's car. It provided recordings of words spoken in that car over two periods, one of about 4 weeks and the second about 4 days.

The Crown asserts that those recordings help to prove the accused guilty of the offences charged and it wishes to adduce them in evidence. The accused contends that they are inadmissible.

The words spoken and recorded included the following. First, words spoken by the accused to other people who joined him in the car. Second, words spoken by those other people to him. Third, words spoken by the accused when in the car and using a mobile telephone. The device recorded the accused's end of any such telephone conversations. It did not pick up any speech from whoever it was to whom the accused was speaking. Quite a substantial part of the total speech recorded in the car consisted of the accused speaking into his mobile telephone. It may be that it was approaching or as much as half of the total recorded material.

It is the fact that this third category of speech was recorded by the listening device, which gives rise to the argument mounted on behalf of the accused, that all the evidence of the product of the device is inadmissible.

Placing the listening device in the accused's car involved entry into his private vehicle. That entry was lawful, under section 92 of the Police Act 1997, only if it was properly authorised under that Act. That meant, in summary, that it needed to be authorised by the Chief Constable of the relevant force and that that authority was subsequently approved by a Commissioner appointed for the purposes of the Act, who will be a person either holding or having held high judicial office. For those propositions see section 91(5) and 97(1) of the 1997 Act.

A listening device of this kind also constitutes intrusive surveillance, as that expression is defined by section 26(3), (4) and (5) of RIPA. Whether any separate authority is needed in a case where Police Act authority is given is a question on which we have not heard detailed argument. But authority was in fact given under RIPA as well and at a similar high level and also subject to notification to a Commissioner.

We are, if we may say so, grateful to both Mr Meeke QC and Mr Glen QC for carefully and concisely made submissions in this case. We should record also the assistance that we have derived from a discussion and analysis undertaken by Professor Ormerod and Mr McKay published in the Crim LR 2004, page 15, albeit that we are unable to endorse some of the conclusions there suggested.

Mr Meeke argues that the evidence produced by the listening device is inadmissible. His submissions are these:

For present purposes, it is necessary to look at section 17(2) which provides, so far as relevant, as follows:

The result of that is that if there was an interception pursuant to a warrant from the Secretary of State, evidence of the contents of it is inadmissible. Such contents are equally inadmissible if there was an interception without a warrant, which was the result of an offence by the police officer against section 1(1). Although section 17 is expressly made subject to section 18, in the present case none of the exceptions provided for in that second section applied.

Furthermore, there is an offence against section 1(1) only if the interception is carried out without lawful authority. Sections 3 and 4 provide statutory authority, in certain cases, including those where both parties to a telephone conversation consent, or are reasonably believed to do so and those where one party consents and surveillance authority under part 2 of the RIPA is in force. However, none of those situations provided for by any of sections 3, 4 or 18 apply in the present case.

We are accordingly satisfied that, if what happened here was interception, evidence of the content of any telephone calls is rendered inadmissible by section 17(1)(a). If it was interception, it is therefore unnecessary to get as far as the discretionary power to exclude evidence pursuant to section 78 of the Police and Criminal Evidence Act.. Accordingly, Mr Meeke's fourth submission does not arise for consideration. It follows that the critical question is whether what occurred here was interception.

We are not here concerned with recording both sides of the telephone conversations by one or other of the participants - something which sometimes is referred to as "participant monitoring". What happened here was that the listening device picked up what the accused said in the car. It did not distinguish between what he said to a companion in the car and what he said into his mobile telephone. What he said into his mobile telephone was certainly recorded. The question is whether it was also, at those times when he was on the telephone, intercepted.

Interception is defined in the Act, by section 2 (2):

For the purposes of this section the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently."

In our view, the natural meaning of the expression 'interception' denotes some inference or abstraction of the signal, whether it is passing along wires or by wireless telegraphy, during the process of transmission. The recording of a person's voice, independently of the fact that at the time he is using a telephone, does not become interception simply because what he says goes not only go into the recorder, but, by separate process, is transmitted by a telecommunications system. That view is consistent with the expressions contained in the Act to which we have drawn attention.

Interception, moreover, as section 2(2) closely defines it, is concerned with what happens in the course of transmission by "a telecommunications system." Section 2(1) defines a telecommunications system in the following terms:

What was recorded here was what happened independently of the operation of the telecommunications system. Of course, the recordings were made, questions of milliseconds apart, at the same time as the accused's words were being transmitted. They were not, however, recordings made in the course of transmission. What being recorded was not the transmission but the words of the accused taken from the sound waves in the car.

Mr Meeke submits that, if that is so, devices may exist which are capable of picking up the contents of both ends of the telephone without there being interception and thus without the need for a warrant from the Secretary of State. We do not know whether that is so or not. We observe that even if it is, that would not mean that a device which overheard one end of a call that was being put through a loud speaker such as a speakerphone or handsfree set with loud speaker attached thereby became an intercepting device. That conclusion is consistent with the view frequently taken in cases before this Court and the House of Lords.

In R v Effik [1995] 1 AC 309 the recording was made at a stage when what was being said was being transmitted by radio waves from a cordless telephone handset to a base receiver, from which it was then to proceed via the British Telecommunications Public System. Under the legislation then in force, the Interception of Communications Act 1985, only interception in the course of transmission by means of a public system was regulated. The cordless handset and the signal it sent to the base receiver were not part of the public system. The House of Lords held that there had been no interception in the course of transmission by means of the public telecommunications system and thus nothing subject to the regulation of the Act then in force.

The decision on the facts would now be different because sections 1(2) and 2(1) of RIPA together bring within the regulatory system transmissions made through a private telecommunication system, where it is attached to a public one. But their Lordships' views upon when the interception occurred remains directly in point. At page 320C Lord Oliver, with whose speech all their other Lordships agreed, approved the following statement, made in this Court, by Evans LJ, in R v Ahmed, unreported 29th March 1994:

The same applies to the decision of the House of Lords in DPP v Morgans [2000] 2 Cr App R 113. The House was there dealing with surveillance of a prisoner's telephone calls taking place before the coming into force of RIPA. It followed (a) that only interception in the course of transmission by means of a public telecommunication system was regulated, and (b) the specific exceptions for prison monitoring which are now contained in section 4(4) of RIPA were not then in force. The prisoner's conversations were listened to at the stage when they were passing through the prison's private system, en route to the British Telecom system to which it was connected. They were held not to be interception within the 1985 Act on grounds that, at that stage, the system was a private system rather than a public one. Once again the submission made here would have concluded the case, if it were correct. The conversation even though listened to on a private system was at the same time being sent from the private system across the public British Telecom system.

Next in R v Smart & Beard [2002] EWCA Crim 772, this Court had to deal with a situation identical to that which existed here, that is to say, a listening device placed in a suspect's car which recorded speech both between the occupants of the car and when one or other of them was using a mobile telephone. Following, Effik and Morgans, Clarke LJ, giving the judgment of this Court said this, at paragraph 68:

In R v Alan, Bunting and Boodo [2001] EWCA 1005, this Court dealt with another case of prison monitoring, again under the 1985 Act. The Court repeated the proposition taken from R v Ahmed, to which we have earlier referred. The decision was cited with approval by this Court recently in Attorney-General's Reference No 5 of 2002 [2004] 1 Cr App R(S) No 2 page 11 at paragraph 54.

We add this. We are, as we have already said, not here concerned with what is sometimes called 'participant monitoring', where one party to a telephone call records the conversations. Such was, however, considered by this Court in R v Hammond McIntosh & Gray [2002] EWCA Crim 1243 and in R v Hardy & Hardy [2003] 1 Cr App R(S) No 30, at page 494. It was also considered, at first instance, in a comprehensive ruling by Astill J in R v MacDonald (Woolwich Crown Court, 23rd April 2002). For the avoidance of doubt, the conclusion of this Court in Hardy was that there was no interception albeit that, had there been interception, it would in any event have been lawful as a consequence of section 3(2) of RIPA. The decision in all of those cases is consistent with the line of authority we have rehearsed.

The present case, in which nothing was recorded which had passed through any telecommunication system, even if the words did simultaneously go into it is, if anything, a clearer case of the absence of interception than are those cases of participant monitoring.

The Regulation of Investigatory Powers Act was enacted following at any rate the earlier of those statements of principle in the House of Lords and this Court. During the Committee stage of the Bill whilst in the House of Lords, the government minister, Lord Bassam, offered this explanation:

If, and to the extent that, there is an ambiguity in the expression 'interception', which we do not believe that there is, that explanation of the intention of framers of the Act assists in resolving it. It resolves it against the submission made on behalf of the accused here.

Mr Meeke, however, draws attention to Directive 97/66 of the European Parliament and of the Council of the European Community of 15th December 1997, commonly known as the Telecommunications and Data Protection Directive. Its aim plainly is to require of members states protection by them of confidential data and communications and to harmonise the provisions made by different States.

The second of its several preliminary recitals reads as follows:

Next, to return to the directive, Article 5 reads as follows:

Mr Meeke submits that RIPA was enacted in part to achieve compliance with the Directive, and in any event should be construed so as to comply both with it and with Article 8 ECHR. He relies on the fact that the protection called for by the Directive extends to protection against listening storage and surveillance of communications as well as against tapping. His submission is that the need to comply with the Directive requires a fresh approach to the construction of the expression "interception" as used in RIPA, and thus that the authorities to which we have referred are no longer of assistance.

We do not, for a moment, doubt that RIPA should be construed, if possible, so as to comply with both the Directive and Article 8, and we are moreover satisfied that it can be. We accept that it was part of the objective of Parliament that RIPA should comply with both those European obligations. We accept also that the ambit of the Directive extends beyond interception to call for protection against infringement of confidentiality of communications by means other than simple interception. It does not, however, follow that what is required is the construction of the expression 'interception' for which Mr Meeke contends.

First, it should be observed that the Directive expressly permits measures judged necessary in Member States for the enforcement of the criminal law. That appears at several points in the Directive. Recital 12 says as follows:

Secondly, the Directive requires protection for the confidentiality of communications. But RIPA and the Police Act form part of the protection provided in the United Kingdom for such confidentiality. In particular, Part II of RIPA contains a complex of rules requiring surveillance in different forms to be regulated and that includes the surveillance of communications. The Act regulates such surveillance and it calls for authorisation of it before it is lawful. Section 48 of RIPA defines surveillance, for the purposes of its regulation in Part II, in terms which clearly include the monitoring of conversations, whether telephonic or otherwise. Surveillance for that purpose clearly includes listening with or without the further step of interception. It follows that RIPA does regulate those interests which the Directive requires shall be protected. Nothing in the Directive requires that the protection afforded by Member States by way of regulation of the confidentiality of communications should extend to a prohibition upon the giving in evidence, at a trial for a criminal offence, of the kind of material which is in question here, where it has lawfully been obtained in accordance with authority properly given.

Similarly, Article 8 ECHR requires indirectly that surveillance of communications be conducted according to a framework of law and that it shall be such as is necessary for the various purpose recognised by Article 8 paragraph 2, which includes the prevention of crime. It does not require, in addition, that lawfully obtained material should be inadmissible at trial for a criminal offence.

It is the fact that in the United Kingdom it has for many years been the approach of successive governments to telephone surveillance by way of interception, properly so-called, that the content of interceptions may inform police investigations but may not form part of the evidence at any subsequent trial. That is the origin of section 17 of RIPA and its somewhat differently expressed predecessor, section 9 of the Interception of Communications Act 1985.

The reasons why this has been the approach in this country need not detain us in this judgment. They are referred to in the speech of Lord Mustill in R v Preston [1994] 2 AC 130 at 146A-148G and at 163-167E at 664 onwards. We need only record that the reasons for that approach do not lie in any irrelevance or in any unfairness to an accused of evidence emanating from an interception. They lie in wider considerations of public interest in the confidentiality of methods of investigation and of the sources of information. Plainly, it was a deliberate choice of Parliament to maintain this position when RIPA was enacted.

This exclusionary rule of evidence, however well established a United Kingdom rule it may be, goes, however, significantly further than is required by either Article 8 of the European Convention or by the Directive. Neither of those requires more than regulation of interference with communications; they do not require the exclusionary rule which is applied in this country. The facts behind the decision of the House of Lords in R v P [2001] 2 Cr App R 121 illustrate this. What was in question there was the admissibility in evidence in an English criminal trial of recordings made via telephone interceptions in a foreign country; the foreign country was a party to the European Convention and the Convention had been part of its law for many years. In that country, such intercepted material is by law admissible in evidence in a criminal trial. A national framework of rules controls and authorises when interception can take place. That national framework of rules has been found by the European Court of Human Rights to be Convention compliant (see paragraph 11 of the speech of Lord Hobhouse in P). Mr Meeke expressly accepted that a similar position obtains in a number of European countries.

We conclude, for all these reasons, that the Directive and Article 8 are complied with by RIPA and that neither the Directive nor Article 8 requires the altered construction of the expression 'interception' for which the accused here contends.

Lastly, on the construction point, Mr Meeke relies upon passages in Codes of Practice issued under the Police Act 1997 and RIPA. They are Codes of Practice which are formal documents. They require consultation and laying before Parliament and they are, by law, admissible in evidence in either a civil or criminal court. In a Code of Practice issued in 1999 for the purposes of the Police Act 1997, there appear these three sentences, in notes for guidance:

The reference in the latter Code to the sole purpose being to overhear the speech being transmitted by telecommunication system should be noted. It should also be observed that both Codes refer to a surveillance device being inappropriate where what happens is that monitoring of speech being transmitted by a telecommunication system occurs.

Those passages may have been included out of caution, or uncertainty as to the interpretation of the expression 'interception'. That may particularly be so in the case of the earlier Code since the 1985 Act which was then in force contained no definition of interception. However that may be, we are satisfied that they go further than the law as enacted requires, and it is plain that they cannot prevail against the clear meaning of the statute.

We are, accordingly, satisfied that the line of authority to which we have referred continues to apply and it is against the submission made on behalf of the accused in this case. We hold that there was in this case no interception for the purposes of RIPA.

Lastly, we turn to Mr Meeke's alternative submissions under section 78 of the Police and Criminal Evidence Act. They are those which we have set out, as his submissions 5, 6 and 7. The learned judge rejected those submissions and held that the police had clearly acted in good faith. He had before him, as indeed did the defence, the various applications and authorities in properly redacted form. We can only interfere with the judge's discretion under section 78 if it were demonstrated that he had exercised it unreasonably. It is not arguable that he did. First and foremost, once "interception" is given the meaning which we have held that it bears, there was no arguable material misleading of the Chief Constable or the Commissioner in the applications which were made. It may be that no separate reference was made in those applications to any possibility that one side of a telephone conversation was likely to be overheard, or was being overheard. But since that did not constitute interception requiring the quite different process of a Secretary of State warrant, there was no occasion for the applications to refer to it. We pause to say that it is in any event extremely improbable that any Chief Constable or Commissioner could fail to be aware of the likelihood that a listening device in a car of anybody, let alone a suspected drug dealer, would pick up one end of mobile telephone conversations.

Secondly, if and to the extent that Mr Meeke contended for the proposition that Article 8 of the European Convention on Human Rights was, in any event, infringed by what occurred, we are, with respect, unable to agree. What was done was done in accordance with the law and for one of the purposes accepted as proper by Article 8(2).

Third, the judge's finding of fact that the officers acted in good faith was plainly open to him. Indeed it was fully justified and we cannot go behind it.

Fourthly, we do not accept that contention that it is sufficient ground to exclude evidence under section 78 that the accused may himself feel that there has been bad faith. The test is the statutory one. It is whether the admission of the evidence would have such an adverse effect upon the fairness of the trial that it ought to be excluded. It follows that the alternative submissions made, however attractively, for the appellant must also fail. This appeal must, for those reasons, be dismissed.

THE VICE PRESIDENT: For the avoidance doubt, we make an order under section 4(2) of the Contempt of Court Act 1981, that pending final verdicts, on the trial of the appellant and his co-accused, no report of this judgment may be published which tends to identify either the appellant or his co-accused, or the Crown Court, at which they are to be tried. This order is not intended to prohibit or postpone a law report of the judgment provided that therein the appellant is identified by an initial other than his own, and the Crown Court is not identified.

THE VICE PRESIDENT: We shall make the order that the appellant pay the prosecution costs in relation to this appeal in a sum to be assessed, after the conclusion of the trial, and that order not to be enforced before the conclusion of the trial. Is there anything else?