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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Stanford, R. v [2006] EWCA Crim 258 (01 February 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/258.html Cite as: [2006] EWCA Crim 258, [2006] WLR 1554, [2006] 1 WLR 1554 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
(Lord Phillips of Worth Matravers)
MR JUSTICE CRESSWELL
MR JUSTICE OPENSHAW
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R E G I N A | ||
- v - | ||
CLIFFORD STANFORD |
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Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
MISS S WHITEHOUSE appeared on behalf of THE CROWN
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Crown Copyright ©
Wednesday, 1 February 2006
THE LORD CHIEF JUSTICE:
Conviction
"(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of --
(a) a public postal service; or
(b) a public telecommunication system.
(2) It shall be an offence for a person --
(a) intentionally and without lawful authority, and
(b) otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this section,
to intercept, at any place in the United Kingdom, a communication in the course of its transmission by means of a private telecommunication system.
(3) Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either --
(a) an interception of that communication in the course of its transmission by means of that private system; or
(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.
....
(5) Conduct has lawful authority for the purposes of this section if, and only if --
(a) it is authorised by or under section 3 or 4;
(b) it takes place in accordance with a warrant under section 5 ('an interception warrant'); or
(c) it is in exercise, in relation to any stored communication, of any statutory power that is exercised (apart from this section) for the purpose of obtaining information or of taking possession of any document or other property.
(6) The circumstances in which a person makes an interception of a communication in the course of its transmission by means of a private telecommunication system are such that his conduct is excluded from criminal liability under subsection (2) if --
(a) he is a person with a right to control the operation or the use of the system; or
(b) he has the express or implied consent of such a person to make the interception."
The facts as alleged by the prosecution
The facts as alleged by the defence
"(a) X exists.
(b) At the material time X was an employee of Redbus Interhouse Plc.
(c) X was in possession of an administrator username and password.
(d) The use of passwords at RBI -- that is Redbus Interhouse -- was lax. This reflected a policy at RBI of 'We trust our employees', which meant that passwords were not generally secret.
(e) At least one and probably more of those with administrator access were content for his password to be known and used by many RBI employees.
(f) X had been given the administrator username and password by Y. Y was authorised to use an administrator username and password.
(g) Y allowed X to use the administrator username and password.
(h) No express limit was placed on the tasks which X could perform using the administrator username and password, but X was not explicitly given permission by Y, or anybody else, to put in place the diverts in question.
(i) X put in place the diverts in question by using the administrator usernames and password given by Y, in order to gain access to the relevant part of the system.
(j) Mr Stanford himself did not put in place the diverts in question by hacking into the system, or otherwise.
(k) Mr Stanford gained access to the intercepted e-mails by means of the diverts put in place by X."
The Judge's Ruling
"Access of any kind by any person to any programme or data held in a computer is unauthorised if --
(a) he is not himself entitled to control access of the kind in question to the programme or data."
Lord Hobhouse commented:
"the word 'control' in this context clearly means authorise and forbid .... it is plain that [the subsection] is not using the word 'control' in a physical sense of the ability to operate or manipulate the computer."
The Grounds of Appeal
"The effect of the judge's definition was wholly to undermine the legislative intent. His ruling criminalised X even though the username/password s/he had been given gave them the unfettered ability to control the operation and use of the system and also the right to do so since they have been knowingly given it without any restrictions as to its us."
"there is no .... provision in domestic law to regulate interceptions of telephone calls on [private telecommunications systems]. It cannot therefore be said that the interference was "in accordance with the law" for the purposes of Article 8(2) of the Convention, since the domestic law did not provide adequate protection to Ms Halford against interference by the police with her right to respect for her private life and correspondence."
The sections in the Act relating to interceptions of a private telecommunication system were enacted in order to remedy the deficiencies noted by the European court in Halford."
"There are a number of legitimate reasons why non-public networks operators might wish to monitor or record communications passing over their network. Some, particularly within the financial sector, use recording as a tool to provide evidence of transactions. Some operators offering telesales services monitor their staff when they are dealing with customers by telephone for training and development or quality control purposes. And some employers need to monitor communications for internal security or the prevention of fraud. There is a need to take account of this requirement in new legislation, yet also to protect the rights of the employee against interception where they have a legitimate expectation of privacy."
Sentence
"At the material time:
a. X, an employee of Redbus Interhouse plc, was responsible for the interceptions in question.
b. X was in possession of an administrator username and password.
c. X had been given the administrator username and password by Y. Y was authorised to use an administrator username and password.
d. Y allowed X to use the administrator username and password.
e. No express limit was placed on the tasks which X could perform using the administrator username and password but X was not explicitly given permission by Y (or anyone else) to put in place the diverts in question.
f. X put in place the diverts in question by using the administrator username and password given by Y in order to gain access to the relevant part of the system.
g. The [applicant] himself did not put in place the diverts in question by hacking into the system or otherwise.
h. The [applicant] obtained the intercepted e-mails as a result of the diverts put in place by X.
i. The [applicant's] purpose in obtaining the intercepted e-mails in question was to obtain corroborative evidence of his belief that there existed an undisclosed concert party relating to Redbus Interhouse plc between John Porter and others which the [applicant] believed was illegal and/or in breach of the Takeover Panel rules.
j. In February 2003, when preparing an application to the Panel on Takeovers and Mergers in relation to the activities of John Porter, the [applicant] sought legal advice about the legality of obtaining e-mails via X in this way. He was not advised that this was illegal."
In his sentencing remarks the judge made the following comments about this basis of plea:
"The Crown's case, about which there has been understandable silence in your basis of plea, is that you, Mr Stanford, arranged to intercept e-mails with the hope that, by gaining knowledge of the conduct of John and Shirley Porter that might be disadvantageous to them, you could use that information to further your ambitions in relation to Redbus.
....
.... I take into account the basis of your plea, which is helpfully set out in a document, and which learned counsel for the Crown says, to use a well-worn expression, the Crown is unable to gainsay. I have read this with care and I make it clear that I am prepared to accept this basis of plea and act on it accordingly, but, having said that, in this connection there are three important matters to be noted: first, it is not your case, and, in any event, if it were I would not accept that the person you name as X was a person in a position to control the operation or the use of the equipment, in the sense of that phrase upon which I ruled yesterday. Second, nor is it contended, and nor would I accept without evidence, that Y, whoever he or she is, either knew, or would have given consent to the use of the password for the purpose to which it was actually put. Third, although there has been some mention of taking legal advice after these events, and I have seen the papers in respect of that, I have no doubt that if the lawyers had known anything of the kind of e-mail conversation which took place in September, 2002, to which I have referred, you would have received very strong advice about your intentions.
I am afraid that I cannot accept the submission made on your behalf that your conduct was on the borderline between criminal and civil liability. This was not behaviour in some sort of grey area, but, in my view, plainly criminal. Moreover, whatever the outcome of your later going with this material to the press, both of you know that, at the time when you actually committed this offence, it was not then your intention to affect the outcome of any proceedings between the Westminster Council and Dame Shirley Porter, but, in effect, it was your intention, Mr Stanford, to take over this company."
"The [applicant's] purpose in obtaining the intercepted e-mails in question was to obtain corroborative evidence of his belief that there existed an undisclosed concert party relating to Redbus Interhouse plc between John Porter and others which the [applicant] believed was illegal and/or in breach of the Takeover Panel rules."
What this paragraph does not state is the use that the applicant intended to make of this evidence. It is, however, common ground that the applicant wanted to use this evidence to gain control of Redbus. The judge's reference to the e-mail conversation which took place in September 2002 suggests that he may have attached weight to the possibility that the intercepted material might have been used for blackmail. We are not, however, persuaded that he did so. He found, and was entitled to find, that the applicant's objective was not to place the intercepted material before the appropriate authorities. The judge further found, and rightly found, that the applicant's objective in obtaining the intercepted material was to oust the Chairman of a company and wrest control of that company for himself. High financial stakes were involved.