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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Newbold v The Commissioner of Police (Bahamas) [2014] UKPC 12 (16 April 2014) URL: https://www.bailii.org/uk/cases/UKPC/2014/12.html Cite as: [2014] UKPC 12 |
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[2014] UKPC 12
Privy Council Appeal No 0059 of 2011
Gordon Newbold
(Appellant) v The Commissioner of Police (Respondent)
Shanto Curry (Appellant) v The Commissioner of Police (Respondent)
Sheldon Moore (Appellant) v The Commissioner of Police (Respondent)
Trevor Roberts and Devroy Moss (Appellants) v The Attorney General of the Commonwealth of the Bahamas and the Government of the United States of America (Respondents)
Melvin Maycock Senior (Appellant) v The United States of America and another (Respondents)
Maycock Edward Fitzgerald QC Ruth Brander Maurice O Glinton Paul Moss (Instructed by Simons Muirhead & Burton) |
The Commissioner of Police, the Attorney General of the Commonwealth of the Bahamas and the United States of America Howard Stevens QC Navjot Atwal (Instructed by Charles Russell LLP) |
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![]() Maurice O Glinton |
LORD MANCE:
""listening device" means any instrument, apparatus, equipment or device capable of being used to hear, listen to or record a private conversation while it is taking place;
"private conversation" means any words spoken by one person to another in circumstances indicating that those persons or either of them desire the words to be heard or listened to only by themselves or by themselves and some other person, but does not include a conversation made in circumstances under which the parties to the conversation ought reasonably to expect the conversation to be overheard."
"(2) Where the Commissioner of Police after consultation with the Attorney-General is satisfied –
(a) that for the purpose of the conduct by a police officer of an investigation into an offence that has been committed or that the Commissioner believes to have been committed, the use of a listening device is necessary; or
(b) that an offence is about to be, or is reasonably likely to be, committed and that, for the purpose of enabling a police officer to obtain evidence of the commission of the offence or the identity of the offender, the use of a listening device is necessary,
the Commissioner after consultation with the Attorney-General, may in writing authorise the use by a police officer of a listening device for that purpose in such manner and for such period (not exceeding fourteen days) as may be specified in the authorisation. …..
(4) A record of the particulars of every authorisation given by any person under this section shall be kept by him."
"Where any record is made, whether in writing or otherwise, of information obtained by the use of a listening device pursuant to an authorisation given by any person under section 5 of this Act, that person shall, as soon as possible after that record has been made, cause to be destroyed so much of the record as does not relate directly or indirectly to the purpose for which the authorisation was given."
Section 10(1) provides that:
"Where a private conversation has come to the knowledge of person (sic) as a result, direct or indirect, of the use of a listening device used in contravention of section 3 of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings."
"AUTHORIZATION PURSUANT TO THE
LISTENING DEVICES ACT, CHAPTER 83
I Paul H. FARQUHARSON, Commissioner of Police, Royal Bahamas Police Force. after consultation with the Honourable Attorney General, Mr. Alfred SEARS, am satisfied that it is necessary for listening devices to be used to enable the conduct of an investigation by the Officer-In-Charge of the Drug Enforcement Unit and any subordinate officers into the commission of illegal drug trafficking crimes. Accordingly for that purpose, I authorize the use of listening devices for a period of fourteen (14) days with effect from [DATE], 2003.
CELLULAR AND HARD LINE NUMBERS
[NUMBERS]
[SIGNATURE]
Paul H. Farquharson
Commissioner of Police"
Each authorisation listed a series of between eight and twenty-four numbers, all of them in fact cellular (mobile) telephone numbers. In many cases, the authorisations for later fourteen day periods covered at least some numbers included in one or more of the earlier authorisations.
"1. Whether to pass the test of constitutionality, a document purporting to be an Authorization given by the Commissioner of Police to the police officer to use a listening device in accordance with section 5 (2) of the Listening Devices Act must in order to authenticate itself in law in manner and form provide or specify the following particulars:
(a) the identity of the person authorized to use a listening device to conduct an investigation into an offence that has been committed;
(b) the date as from when such authorized use of a listening device was given;
(c) the offence that has been committed or that is about to be, or is reasonably likely to be committed, it being the very reason for the authorized use of a listening device in the police officer's conduct of the investigation.
2. If the answer to question (1) is in the affirmative, whether the Authorizations comply in such manner and form as required by law.
3. If the answer to question (2) is in the affirmative, whether the use now known to have been made of the Authorizations as given is lawful.
4. Whether to pass the test of constitutionality, the power to authorize the use of a listening device to "here [sic], listen and record" a private conversation in accordance with section 5(2) of the Listening Devices Act, may lawfully avail any authority or person for its or his (or her) use or purpose at their absolute discretion (as in the instance of the Commissioner of Police under the section) or for any use or purpose without prior judicial supervision.
5. Whether the law as represented and regulated by the provision of the Listening Devices Act, particularly by section 5 (2) therefore [sic], satisfies a qualitative test in that it provides essential safeguards and protections consistent with the rule of law in a democratic society.
6. Whether the powers and discretion availing the Commissioner of Police under section 5 (2) of the LDA violate Article 23 of the Constitution."
"15. Whereas every person in The Bahamas is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his home and other property and from deprivation of property without compensation,
the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. …
21. (1) Except with his consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision-
(a) which is reasonably required-
(i) in the interests of defence, public safety, public order, public morality, public health…
23. (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this Article the said freedom includes freedom to hold opinions, to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision-
(a) which is reasonably required-
(i) in the interests of defence, public safety, public order, public morality or public health; ….
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
"2. This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution, shall prevail and the other law shall, to the extent of the inconsistency, be void.
28. (1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction-
(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this Article,
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its power under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.
(3) If, in any proceedings in any court established for The Bahamas other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the provisions of the said Articles 16 to 27 (inclusive), the court in which the question has arisen shall refer the question to the Supreme Court."
"30.(1) Subject to paragraph (3) of this Article, nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question-
(a) is a law (in this Article referred to as "an existing law") that was enacted or made before l0th July 1973 and has continued to be part of the law of The Bahamas at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters the existing law and does not thereby render that law inconsistent with any provision of the said Articles 16 to 27 (inclusive) in a manner in which, or to an extent to which, it was not previously so inconsistent. ….
(3) This Article does not apply to any regulation or other instrument having legislative effect made, or to any executive act done, after 9th July 1973 under the authority of any such law as is mentioned in paragraph (1) of this Article."
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Supreme Court interpreted the Fourth Amendment as protecting people, not places, and on that basis as precluding the admission in evidence of the petitioner's end of a telephone conversation captured and recorded by a device fitting to the outside of a public telephone box. In United States v Jones [2012] 565 US a recent Supreme Court re-emphasised by a majority the Fourth Amendment's original property based focus, while acknowledging that the Fourth Amendment also had the meaning put on it in Katz. In considering that meaning, it may however be relevant to bear in mind that the nearest equivalent in the American Constitution to article 23 of the Bahamian Constitution is the First Amendment, which simply provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
"68. There was also some debate in the pleadings as to the extent to which, in order for the Convention to be complied with, the 'law' itself, as opposed to accompanying administrative practice, should define the circumstances in which and the conditions on which a public authority may interfere with the exercise of the protected rights. The above-mentioned judgment in Silver v United Kingdom (1990) 5 EHRR 347, which was delivered subsequent to the adoption of the Commission's report in the present case, goes some way to answering the point. In that judgment, the Court held that 'a law which confers a discretion must indicate the scope of that discretion', although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law. The degree of precision required of the 'law' in this connection will depend upon the particular subject matter. Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference."
"the system does not for the time being afford adequate safeguards against various possible abuses. For example, the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order are nowhere defined. Nothing obliges a judge to set a limit on the duration of telephone tapping. Similarly unspecified are the procedure for drawing up the summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court. The information provided by the Government on these various points shows at best the existence of a practice, but a practice lacking the necessary regulatory control in the absence of legislation or case law."
"24. We do not find the case of Malone to be applicable to the Bahamian situation. Interception of communications in this country is governed by statute which comes within the limitation to the fundamental right relied on. The threshold test in our case is whether the authorisation to listen is reasonably justifiable in a democratic society and the burden is on the appellants to show it was not. ….
25. We are of opinion that there are adequate safeguards in the provision to ensure as far as reasonably possible that an authorisation issued under section 5 (2) would likely be reasonably justifiable in a democratic society. We find the following constraints on the exercise of the power vested in the Commissioner of Police to be of significance; (i) the authorisation can only be issued after consultation with the Attorney General; (ii) it must be in writing; (iii) it is only given where necessary, (iv) it is given for the clearly defined purpose of investigation into an offence that has been committed; or (v) for the purpose of obtaining evidence of an offence or the identity of an offender where an offence is about to be or is reasonably likely to be committed; (vi) the authorisation must prescribe the manner in which it is to be used; (vii) it must be for a limited period as specified, not exceeding fourteen days; and (viii) a record of the particulars of every authorisation must be kept.
26. These limitations on the power of the Commissioner of Police to authorise the use of a listening device are clearly intended by Parliament to ensure effective control over the use of the procedure. They are also equally designed to instil confidence in the public that the power will be used responsibly for the purpose of bringing to light criminal conduct and the identity of offenders. In our view the exercise of the power in this case was clearly within the rule of law and, Mr. Kemp has been unable to persuade us that its exercise was not reasonably justifiable in a democratic society."
"89. It seems to me that that last caveat is important in a small jurisdiction such as The Bahamas since the involvement of judicial officers (in which I include Magistrates as well as Registrars of the Supreme Court) at the investigatory stage of suspected criminal activity would create serious problems of perception of objectivity at the trial stage of such activity and may well lead to the blurring of the line between executive and judicial functions. It also tends to confuse the continental system in which there are investigating judges/magistrates with a system in which the courts are separate from the executive which has the duty to investigate and prosecute persons for the commission of criminal offences."
The Board accepts the force of this observation, which the Court of Appeal was well-placed to make. In its light no doubt, the main focus of Mr Fitzgerald's submissions as regards the Attorney General's role was that the LDA should have required his consent, rather than simple consultation, as a minimum safeguard.
"The effect of art 30 on art 25 in this case is that the content of section 230(3) of the Code cannot be rendered void by arts 2 and 23, but that any 'executive act' on the part of the Commissioner of Police since 9 July 1973 done under the authority of section 230(3) of the Code must fall within the exceptions provided in para (2) of art 25.
The same conclusion may be expressed in another way by saying that the relevant section of the Code is only statutory authority for the executive acts of the Commissioner of Police (since 9 July 1973) in so far as those acts comply with the Constitution.
Where a provision of the existing law is such that no executive act which is constitutionally valid can be performed under its authority, the preservation of that existing law is of no consequence.
It is where the provision of the existing law could be used as the authority for constitutional or unconstitutional executive acts, and the provision is not severable, that art 30 comes into play. It preserves the law despite the Constitution, but only permits its use for constitutional purposes."