Section 17 Regulation of Investigatory Powers Act 2000 did not operate so as to prevent any evidence being adduced in criminal proceedings to ascertain whether a telecommunications system was public or private.Reference by the Attorney-General under s.36 Criminal Justice Act 1972 on several points of law arising from the trial and acquittal of W. W was a police officer who was charged along with two other police officers and another person with conspiracy to commit misconduct in a public office contrary to s.1(1) Criminal Law Act 1977 and offences of misconduct in a public office contrary to common law. The Crown's case was that W had, with the other officers, provided sensitive and confidential information to his co-accused and to journalists. The Chief Constable of the relevant police force had given his consent in writing for the interception of communications on a number of specific telephone extensions at W's police station. The extensions in question were part of the internal telephone system made up of a network of private automated branch exchanges. The interception equipment created a duplicate call which was relayed through a BT telephone line to another police station where the calls were monitored and recorded. Before trial the Crown served expert evidence on the defence to establish that the interceptions had taken place within a private communications system. Before the evidence was called the defence submitted that s.17 Regulation of Investigatory Powers Act 2000 ('RIPA') prevented any investigation into the circumstances of the interception and, in particular, into whether the interception had in fact taken place on the public side of the telecommunications system. The judge held that s.17 RIPA prevented the defence from asserting that the interception had taken place on the public side of the system and, in the interests of fairness, excluded the Crown's evidence under s.78 Police and Criminal Evidence Act 1984 ('PACE'). Consequently, the Crown offered no evidence and the defendants were acquitted by direction. The Attorney-General sought the court's opinion on the following questions of law: (i) did s.17(1) RIPA operate so as to prevent in criminal proceedings any evidence being adduced, question asked, assertion or disclosure made or other things done so as to ascertain whether a telecommunications system was public or private?; (ii) was the answer to (i) different if the evidence being adduced etc. related to events which took place before RIPA came into force?; and (iii) where an interception of a communication had taken place on a private telecommunications system, was it permissible to ask questions etc. to establish that the interception had 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? The Attorney-General submitted: (a) s.17 RIPA ought to be construed in the light of the closely analogous s.9 Interception of Communications Act 1985; (b) given that the events took place before RIPA came into force, the judge was wrong to have had regard to the introduction of regulation of interception of transmissions by means of private communication systems; (c) the judge was wrong to hold that the defence was not entitled to ask questions or make assertions designed to show that the relevant telecommunications system was public and not private and, therefore, the basis upon which the judge excluded the Crown's evidence under s.78 PACE no longer applied; (d) even if the judge was right to have had regard to the introduction of regulation of interception of transmissions by means of a private telecommunications system, the position remained the same as in the case of events which took place after RIPA came into force; (e) the enquiry permitted by RIPA included asking questions and making assertions relevant to whether the system was public or private and, if private, who was the controller of the system and whether the controller consented to the intercept; (f) Parliament could not have intended that the admissibility or otherwise of the fruits of the intercept depended upon the character or status of the controller; (g) the distinction between private and public systems drawn in RIPA and the provision that an interception on a private system was not an offence where consent had been given pointed to the conclusion that the fact of consent could be asserted and proved by the Crown in order to render admissible the contents of the private system, provided that they would otherwise be admissible in evidence.HELD: (1) The events that led to the trial took place before the 1985 Act was repealed whereas the trial took place after RIPA came into force and after the 1985 Act had been repealed. The judge had been right to hold that s.17 RIPA applied to the proceedings. However, s.17 RIPA was closely analogous to s.9 of the 1985 Act and had to be considered in the light of the decisions of the House of Lords on the construction of s.9. (2) When the relevant events occurred in 1996 and 1997 they were regulated by the 1985 Act. Thus, they were only unlawful in English law if they were interceptions by means of a public communication system. The fact that RIPA subsequently introduced regulation of interception of private communications was not relevant in deciding what questions or assertions were prohibited under s.17 RIPA in relation to events that occurred before such regulation was introduced. The question whether the defence was entitled to ask questions about the telecommunications system had to be decided by reference to the true construction of s.17 RIPA as it applied to offences created by the 1985 Act. The judge had been wrong to have had regard to the introduction of regulation of interception of transmissions by means of private communication systems. (3) The case law under s.9 of the 1985 Act (see R v Effik (1994) (1995) 1 AC 309) demonstrated that, had s.9 still been in force at the time of the trial, it would not have prevented evidence being adduced or questions being asked as to whether the communications were intercepted in the course of their transmission by means of a public or private telecommunications system. It was necessary to see if the position was different under RIPA. Section 17 RIPA did not alter the position that existed under s.9. Evidence that the system was public did not in any way disclose the contents of the communications and so was not prohibited by s.17. The ruling made by the judge that s.17 RIPA prevented the defence from adducing evidence, asking questions or making assertions designed to show that the intercepts were of and via a public system was wrong. The correct course would have been for the judge to hear evidence and argument in order to decide whether the interceptions were in the course of a transmission by means of a public or private communications system. Had the judge, having heard the evidence, ruled that it was by means of a private system he should have ruled that the evidence was admissible, subject to any new point raised under s.78 PACE. Had he found that it was by means of a public system he should have held that the evidence was inadmissible.Judgment accordingly. Points of law referred to the House of Lords under s.36(3) Criminal Justice Act 1972.

[2003] EWCA Crim 1632

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