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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Morgans v. Director of Public Prosecutions  UKHL 9;  2 All ER 522;  2 WLR 386;  Crim LR 576 (17th February, 2000)
Cite as:  2 All ER 522,  Crim LR 576,  2 Cr App R 113,  2 WLR 386,  2 Cr App Rep 113,  AC 315,  1 AC 315,  UKHL 9
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Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Steyn Lord Hope of Craighead Lord Clyde
DIRECTOR OF PUBLIC PROSECUTIONS
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 17 FEBRUARY 2000
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Mackay of Clashfern and Lord Hope of Craighead. For the reasons they give I would allow this appeal.
LORD MACKAY OF CLASHFERN
I gratefully adopt the narrative and explanation of the issues in this case which is contained in the speech of my noble and learned friend, Lord Hope of Craighead, which I have had the advantage of reading in draft.
In view of the considerable importance of this case and its possible impact in other cases, I wish to add these observations.
The decision in this House in Reg. v. Preston  2 A.C. 130 was concerned with the question whether there was an obligation on the prosecutor to disclose to the defence material which had been obtained as a result of the interception of a telephone under a warrant issued by the Secretary of State under section 2 of the Interception of Communications Act 1985. The House unanimously reached the conclusion that section 2(2)(b) of the Act of 1985 "for the purpose of preventing or detecting serious crime" did not include the purpose of gathering evidence for criminal proceedings in respect of such crime. They held that the use of material gathered under warrant as evidence in such a prosecution was prohibited by the scheme of the Act including section 6 and section 9. In particular, section 9(1)(a) prohibited in any proceedings before any court or tribunal evidence being adduced which tended to suggest that a warrant had been issued. This prevented it being admitted as a matter of fact on which the court should proceed that a warrant had been issued and it also prevented evidence being adduced and questions in cross-examination being asked which in either case tended to suggest that an offence under section 1 of the 1985 Act had been, or was to be, committed by any of the persons listed in section 9 sub-section 2, being persons holding office under the Crown, the Post Office and any person engaged in the business of the Post Office, any public communications operator and any person engaged in the running of a public telecommunications system. In the course of their consideration of these issues the members of the House who took part in the decision were led to the view that the scheme of the Act in relation to warranted interceptions was intended to continue the previous practice and that no use in evidence of the product of such intercepts is permissible. In my opinion this conclusion carries with it the consequence that where a warrant has not been obtained and where the interception without a warrant would be unlawful the same consequence must apply. It would be quite extraordinary and unacceptable if the contents of an intercept which had been unlawfully made could be used, whereas the content of an intercept lawfully made could not.
This leaves for consideration the precise limits within which this scheme derived from the Act extends. In his speech in Preston after narrating the general prohibitions in section 1 of the 1985 Act Lord Mustill goes on, at page 149
This leads me to the conclusion that Lord Mustill, with whom the other members of the House agreed, did not have to consider whether the provisions of subsection (1)3 fell within the scheme which he later described. This is important in the present case since this appeal relates to two convictions of the appellant for offences contrary to section 42 of the Telecommunications Act 1984. However, it was conceded by the Crown in the Divisional Court that the interception that took place was not to detect telephone fraud but to "investigate a case of suspected computer hacking". And therefore in this case the Crown accepted that the interception was not for purposes connected with provision of postal or public telecommunications services or with the enforcement of any enactment relating to the use of those services, although the purpose of adducing the content of the intercepts was for the latter purpose. In consequence section 1(3) did not apply to it.
When following the decision of Malone v. United Kingdom (1984) 7 E.H.R.R. 14 in the European Court of Human Rights, it was decided to introduce legislation to provide a statutory authority for what had previously been done on the authority of Secretaries of State without such authority, the pre-existing system in relation to interception in the postal and public telecommunication services and with regard to the use of wireless telegraphy did not require to be provided for in a new way. Just to take one example, interception by staff of the Post Office who have authority to open postal packets in certain circumstances, for example under section 8(3) of the Post Office Act 1953 was a pre-existing statutory authority for interception. In my opinion therefore it is reasonable to conclude that the House in Preston was not concerned with matters covered under section 1(3). And therefore a construction of section 9 should be sought which gives effect to the limits of the scheme of the Act described, in particular, by Lord Mustill in Preston namely that the scheme described does not apply except to situations in which a warrant is required and where without it, the interception would be without statutory authority. The challenge is to find a construction of section 9 which would provide a workable boundary. The difficulty is that any discussion in evidence of the question whether a particular exception to section 1 applied would be in essence a discussion of whether or not the interception resulted from an offence under that section. I have reached the view that this is best dealt with by saying that in construing section 9, it should not apply where the proceedings are for the enforcement of any enactment relating to the use of postal or public telecommunications services or where the proceedings relate to a communication being transmitted by wireless telegraphy and the communication is intercepted by the authority of the Secretary of State.
In my view, some such restriction on the scope of section 9 is required to give effect to the obvious intention of Parliament to exempt from the new regime set up under the Act of 1985 the existing statutory arrangements for postal public telecommunications services and wireless telegraphy. However, it is possible as this case illustrates, that although proceedings are for the enforcement of one of these specified enactments the interception was not made for purposes connected with such enforcement but for some other purpose, in which case it would be right to allow that to be the subject of evidence and if it were demonstrated that the purpose was not connected with the enforcement of a specified enactment then the communication intercepted should not be admitted in evidence. I have not found it possible to propose a form of words to be implied in section 9 to accord with what I believe to be the true construction of the Act as a whole which would give effect to the exception in section 1(2)(b) since this could arise in any form of proceedings and therefore the discussion in evidence cannot be related to the form of the proceedings. If the prosecutor and the accused were agreed that the interception had been consented to, so as to bring the case within section 1(2)(b), I see no objection to evidence being led on the basis of that admission, since I do not consider that section 9 would prohibit that admission being made and once made section 9 would not have any residual application. However, if agreement between the prosecutor and the accused was not forthcoming I find it difficult to see how the question whether section 2(1)(b) applied could be explored in evidence without transgressing the provisions of section 9, and I can see no reasonable implication that can be formulated on section 9 to prevent this.
I should add that I entirely agree with my noble and learned friend that what has been founded on by the Crown in this case is a communication within the meaning of section 1 of the Act of 1985.
Subject to the views I have expressed on the scope of the decision in Preston, I agree with the reasoning of my noble and learned friend Lord Hope of Craighead and would allow this appeal.
In giving the judgment of the Court of Appeal (Criminal Division) in Reg. v. Effik (1992) 95 Cr. App. R. 427 I gave a restrictive interpretation to section 9 of the Interception of Communications Act 1985, by holding that it contains no provision making clear that any evidence obtained as a result of an interception will be inadmissible. Eight years later, aided by the incisive arguments of counsel in the present case, I have had an opportunity to re-examine the point. I am now fully persuaded that my earlier interpretation was wrong. And I agree with the speech of Lord Hope of Craighead. But it is appropriate, if only for the historical record, that I explain shortly the reasons for my conversion.
The starting point is the language of section 9 of the Act of 1985. I now accept that even if one concentrates only on the language of section 9 of the Act of 1985 the words "no evidence shall be adduced" are at least capable of amounting to a general provision that any evidence obtained as a result of any interception will be inadmissible. The second factor was lucidly and compellingly explained by Woolf L.J. (now Lord Woolf of Barnes, M.R.) in Reg. v. Preston (1992) 95 Cr. App R. 355. The point is that in practice "to lay the goundwork 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 will in turn tend to suggest either an offence under section 1 has been committed or a warrant has been issued which therefore contravenes section 9": at 365. As Woolf L.J. observed this practical consideration would "other than possibly in the most exceptional case, prevent any material derived from an interception of the communication being adduced in evidence." This observation about the way in which the section would operate in the real world of trials tends to support a wider construction of section 9 of the Act of 1985. Thirdly, before the passing of the Act of 1985 the invariable practice was that material intercepted as a result of telephone-tapping was not used in evidence: see the White Paper on The Interception of Communications in the United Kingdom (1985) (Cmnd. 9438); Reg. v. Preston  2 A.C. 130, at 142F and 144B, per Lord Jauncey of Tullichettle. If Parliament in enacting the Act of 1985 had not intended the practice to continue one would have expected a clear provision to that effect. The importance of this contextual aid to the interpretation of section 9 was not considered by the Court of Appeal in Effik. In combination these three substantive factors demonstrate that my narrow interpretation of section 9 was wrong.
In any event, as a matter of precedent the issue appeared to be finally and comprehensively settled by the decision of the House of Lords in Reg. v. Preston  2 A.C. 130 in which the decision of the Court of Appeal (Criminal Division) in Effik was expressly overruled. But two decisions in the Court of Appeal have breathed new life into the decision in Effik. This result was achieved by holding that the House of Lords in Preston only overruled Effik to the extent that it related to warranted intercepts: Reg. v. Rasool  1 WLR 1092 and Reg. v. Owen  1 WLR 949. My Lords, this will not do. In the leading judgment by Lord Mustill in Preston, crafted with his customary clarity and precision, the overruling of Effik was expressly announced in general terms. In Cross and Harris, Precedent in English Law, 4th Edn., 127-128 it is stated:
The ratio decidendi of Effik was that section 9 does not contain a sufficiently clear provision for the exclusion of evidence of an interception, i.e. Effik did not differentiate between cases where a warrant was obtained or not. The decision of the House in Preston destroyed the foundation of this reasoning. It would, of course, have been possible for the House to hold that the ruling in Effik was wrong only in respect of warrant cases. But it did not do so. Like Lord Hope of Craighead I find the idea that Effik was only overruled in part quite implausible. Moreover, as counsel for the appellant rightly emphasised, it would have been remarkable if the House, by only overruling Effik in part, sanctioned the absurd distinction that any evidence obtained pursuant to a warrant is inadmissible but evidence obtained without a warrant is admissible. Rightly in the present case Kennedy L.J. observed that such a result would be "a somewhat astonishing state of affairs:" Morgans v. Director of Public Prosecutions  1 W.L.R. 968, at 977G. It is perfectly plain that the decisions in Rasool and Owen cannot stand and must be overruled.
I would allow the appeal.
LORD HOPE OF CRAIGHEAD
The appellant was convicted by the Bow Street Stipendiary Magistrate of five charges of obtaining unauthorised access to a computer system, contrary to section 1(1) of the Computer Misuse Act 1990 and two charges of fraudulent use of a telecommunications system, contrary to section 42 of the Telecommunications Act 1984. He appealed against his conviction to the Crown Court at Southwark, which dismissed his appeal. He then appealed by way of case stated to the Divisional Court. His appeal was allowed by the Divisional Court (Kennedy L.J. and Sullivan J.)  1 W.L.R. 968 in respect of all five charges under section 1(1) of the Computer Misuse Act 1990, on the ground that these charges had been brought against him when they were out of time. No appeal has been taken against that decision by the prosecutor. His appeal was dismissed in respect of the two charges under section 42 of the Telecommunications Act 1984.
The question in the appeal against his conviction on the charges under section 42 of the 1984 Act related to the admissibility of evidence resulting from the interception of telephone calls on which his conviction had been based. This is the matter which is now before your Lordships. It raises important questions as to the effect of the Interception of Communications Act 1985 on the admissibility of such evidence.
The charges which were brought against the appellant under section 42 of the Telecommunications Act 1984 alleged that on two occasions in July 1995 he dishonestly obtained a telephone service by means of a telecommunication system belonging to Mobil Data Services Ltd. with intent to avoid payment of the charge which was applicable. Section 42 of the 1984 Act provides that a person who dishonestly obtains a service provided by means of a licensed telecommunications system with intent to avoid payment of any charge applicable to the provision of that service shall be guilty of an offence. Prosecution for that offence may be summary or on indictment. In this case the offences which the appellant was said to have committed were prosecuted summarily.
In 1995 British Telecommunications plc (BT) were asked by the Computer Crime Unit of New Scotland Yard to provide assistance in connection with a case of suspected computer hacking. The appellant was suspected of using the telephone line provided to him by BT to obtain unauthorised access to the computer systems operated by a number of different companies. At that stage it was not suspected that he was engaged in telephone fraud, that is to say, the obtaining of telecommunication services without paying for them. Arrangements were made for a call logging device, called "Monolog," to be fitted to the appellant's telephone line at the telephone exchange. Its function was to log all the digits dialled on that line, whether manually or otherwise. The first device which was fitted developed a fault after a few days, so it was replaced by another one which remained in place until it was removed after about two months.
The information which these devices obtained was reproduced in the form of a printout. This showed (1) the time and date of the use of the telephone, (2) the duration of each call time and (3) the digits dialled, whether before or after connection to another telephone line. Information as to the time and date, the call time and the digits dialled before connection is recorded as a matter of course by BT for the purposes of rendering an account for the service to the subscriber. A significant feature of the Monolog device is that it is capable of recording the digits dialled after a connection has been made to another telephone line.
Three companies, Hogg Robinson Ltd., G.B.C. U.K. Ltd. and Mobil Data Services Ltd., provided computer generated printouts which recorded the operation of their computer controlled Meridien telecommunications networks for the relevant period. A comparison of these printouts with the printout of the information obtained by means of the Monolog showed that the appellant's telephone number was responsible for accessing the Meridien telecommunication networks of these companies. The Monolog showed that repeated attempts had been made to guess the personal identification number, or "PIN," that was needed to gain access to the part of the computer system that enabled authorised users to telephone an outside line at the expense of the company. There was evidence that, having identified the correct PIN, a caller was able to abuse the Meridien system by dialing into it without authority, listen in on messages which had been recorded on voice mail and make use of that part of the system which enabled authorised users to telephone outside lines free of charge. By linking the system to an 0800 number the caller was able to dial out free of charge to BT from his own telephone line. The appellant's telephone number had been used to make calls free of charge by means of this system to telephone numbers with the international dialling code for the Philippines.
The Crown Court had before it evidence from representatives of BT and each of the three companies whose computer systems had been accessed, all of whom were specialist telecommunications experts. They produced the computer generated printouts which enabled the Crown Court, with the assistance of another expert witness, to make findings of fact to the effect that the appellant's telephone number had been used to make numerous calls of significant length to the Philippines at the expense of the companies without incurring any charge on his own account with BT. These findings were based on a comparison of the printouts of the information which the Monolog had obtained by intercepting the digits dialled on the appellant's telephone and the printouts from the telephone networks of the three companies.
The appellant had admitted when he was interviewed by the police that he was the principal user of the telephone line and that he had scanned for 0800 numbers in order to search for free information from computers and to test out software. He said that he had been provided by a friend with a telephone number through which he could obtain discounted telephone calls and that, as his wife came from the Philippines, he had been making telephone calls at reduced charges to relatives there. He told the police that he stopped this practice when his BT telephone account showed that no charges at all had been made for the calls which he had made in the belief that they would be charged for at a discount. He repeated this explanation when he gave evidence, but the Crown Court held that he knew that his access to the Meridien systems was for the dishonest purpose of enabling him to avoid having to pay for the telephone calls.
The evidence which had been obtained by means of the fitting of the Monolog devices to the appellant's telephone line was an essential element in the case for the prosecutor. Without that evidence it would not have been possible for the Crown to prove that the telephone calls made free of charge to the user by means of the companies' Meridien systems had been made from the appellant's telephone number. At the outset of the hearing in the Crown Court a challenge was made to the admissibility of this evidence. It was argued that section 9 of the Interception of Communications Act 1985 prohibited the court from allowing in evidence the product of the intercept on the appellant's telephone line because to do so would be to adduce evidence which tended to suggest that that an offence had been committed under section 1 of the Act.
Subsections (1), (2) and (3) of section 1 of the Act of 1985 provide:
Subsections (1) (2) and (3) of section 9 of the Act are in these terms:
The expression "relevant office" is defined in subsection (4) of section 9. It includes various statutory offences relating to the interception and disclosure of postal and telecommunication messages. This is in contrast to the offences mentioned in section 1(3)(a), which relate to the use of these services.
The argument that section 9 of the Act of 1985 precluded the leading of this evidence was rejected by the Crown Court, which held that the evidence was admissible. In the case stated for consideration by the Divisional Court the following question (this was the first of three questions in the stated case, the other two of which are no longer in issue) was identified by the Crown Court:
The Divisional Court answered that question in the affirmative. It certified that the following points of law of general public importance were involved in the decision:
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  AC 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:
When the case came before this House on appeal in Reg v. Effik  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  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:
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:
That case was then appealed to your Lordships' House: Reg v. Preston  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":
Lord Mustill said this of the decision in Effik, at p. 169:
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  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  1 WLR 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  2 A.C. 130, Stuart-Smith L.J. said at p. 1100B and G-H:
In Reg. v. Owen  1 WLR 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:
In the present case Kennedy L.J. made it clear in the course of his judgment  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  1 WLR 1092 and Reg v. Owen  1 WLR 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:
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  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.
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  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  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  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:
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  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  1 WLR 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  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:
It is true, as Stuart-Smith L.J. observed in Reg. v. Rasool  1 WLR 1092, 1098E-F and 1100B in his analysis of the speeches in Reg v. Preston  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:
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:
Lord Templeman said, at p. 140E-F:
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):
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  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 seems to me therefore that the Court of Appeal in Reg. v. Rasool  1 WLR 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.
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  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.
The principal issue in the appeal to the House of Lords in Reg. v. Preston  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:
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.
I would answer the second of the two certified questions in the negative. In my opinion Reg.v. Rasool  1 WLR 1092 and Reg. v. Owen  1 WLR 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.
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. For the reasons he has given I too would allow this appeal.