W, R v [2003] EWCA Crim 1632

Case No 200206428S4[2003] EWCA Crim 1632
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
IN THE MATTER OF A REFERENCE BY THE
ATTORNEY-GENERAL UNDER SECTION 36
OF THE CRIMINAL JUSTICE ACT 1972
(NO 5 OF 2002)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 June 2003
Before
LORD JUSTICE CLARKEMR JUSTICE MORISONDAME HEATHER STEEL DBE
Between
REGINACrown-v-
Between
“W”
David Perry, Simon Brand and Alison Morganrepresented the Attorney-GeneralGilbert Gray QC and Timothy Roberts (instructed by Brown, Beer & Co) represented“W”Hearing Hearing date: 8 April 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Introduction

[1]This is the opinion of the court in a reference by the Attorney-General (no 5 of 2002) under section 36 of the Criminal Justice Act 1972 (‘the 1972 Act’), which provides that, where a person tried on indictment has been acquitted, the Attorney-General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, which shall consider the point and give its opinion on it.[2]In this case the person tried on indictment who has been acquitted is W. The Attorney-General desires an opinion on a number of questions of law which he says have arisen in the case. As amended in the light of discussion in argument, they may be stated as follows: i) Does section 17 (1) of the Regulation of Investigatory Powers Act 2000 (‘RIPA’) operate so as to prevent in criminal proceedings, any evidence being adduced, question asked, assertion or disclosure made or other thing done so as to ascertain whether a telecommunications system is a public or a private telecommunications system? ii) Is the answer to question (i) above different if the evidence being adduced or question asked etc relates to events which took place before RIPA came in to force? iii) Where an interception of a communication has taken place on a private telecommunications system, is it permissible in criminal proceedings to ask questions or adduce evidence etc to establish that the interception has 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?

Background

[3]We take the background substantially from the reference, but as to some extent amended in the light of submissions made by Mr Gray. The Crown case may be summarised in this way. Between 2 June 1996 and 21 June 1997 three serving police officers provided, or assisted in providing, confidential and sensitive information to a known criminal, C. The three police officers were Detective Sergeant W, Detective Sergeant M and Detective Constable H. In addition to the information provided to C, the prosecution alleged that DS W had provided sensitive and confidential information both to a man known as L and to journalists.[4]On 30 May 1996, the Chief Constable of the relevant police force gave his consent, in writing, for the interception of communications to take place on a number of specific telephone extensions at a police station. The extensions in question were part of the internal telephone system and were those used by DS W while acting as a police officer. The internal telephone system at the police station was made up of a network of Private Automated Branch Exchanges (‘PABX’s), which allowed for the routing or switching of calls between telephone extensions within the system. No licence was required under the Telecommunications Act 1984 for the operation of a PABX. The point of connection between the internal network and the public network was a test jack frame.[5]The equipment used to carry out the interception was a system known as ‘Dial Up’ which worked in the following way. A telephone call received or made from the telephones in question activated the interception equipment. The interception equipment created a ‘duplicate call’ which was relayed through a BT telephone line to another police station where equipment capable of recording the calls had been installed. The telephone conversations were thus monitored and recorded.[6]The product of the interception revealed that information of a highly confidential and sensitive nature obtained by DS W in his capacity as a police officer was being provided to persons who had no entitlement to the information in question. The interception continued until 21 June 1997.[7]The evidence obtained by the investigation led to the prosecution of the three police officers and C. The information obtained from the interceptions was crucial to the success of the prosecution case.[8]The indictment contained six counts. Count one, which was laid against the three police officers and C, alleged an offence of conspiracy to commit misconduct in a public office contrary to section 1(1) of the Criminal Law Act 1977. Count one was intended to reflect the agreement to provide C with sensitive and confidential information. Counts two to six, which were laid against DS W, alleged offences of misconduct in a public office contrary to common law. Those counts were intended to reflect the supply of sensitive and confidential information to L and to journalists.[9]We understand from Mr Gray that before the trial the defence asked to check the surveillance equipment but were told that they could not. We were further told that there was at least one PII application to the trial judge but that nothing was revealed to the defence as a result. However, none of those aspects of the case is relevant for present purposes, save to note the crucial fact that the defence wished to assert that the interceptions took place on a public communications system.[10]We should further note that the defence did not admit the Crown case as outlined above. For example, it was the defence case that the telephone system used to make the interceptions was a system which linked several police stations and which comprised several PABXs linked together via BT ‘Megastream’ lines, which were component parts of the public telecommunications system operated by BT under licence from the Secretary of State pursuant to section 9 of the Telecommunications Act 1984 (‘the 1984 Act’). Further it was said that four different telephone extensions at more than one police station were monitored at different times and that this was not a case concerning the interception of communications within a system contained within one police station as suggested by the Crown.[11]The resolution of those issues would or might have been relevant had the judge permitted evidence to be given or assertions made as to whether the system or systems used were public or private. They are not however relevant to the issues with which we are concerned because we are asked only to consider the questions of principle raised in the reference.

The Trial

[12]The trial was fixed to take place in May 2002 in the Crown Court at Leeds before His Honour Judge Macgill. Before the trial the Crown served expert evidence on the defence in order to establish that the interceptions had taken place within a private communications system. Before that evidence was called it was submitted on behalf of the defence that section 17 of 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.[13]On 3 May 2002 the judge handed down his judgment on those submissions. He accepted the submission that section 17 prevented the defence from asserting that the interception had taken place on the public side of the system, although he held that it did not prevent the Crown from adducing evidence that it took place on the private side. Thereupon it was immediately submitted on behalf of the defendants that the judge should not admit that evidence because the effect of his earlier ruling was that the defendants could not ask questions or adduce evidence designed to show that the interception had in fact taken place on the public side of the telecommunications system and that it followed that the admission of evidence designed to show that the interceptions had taken place within a private telecommunications system (without permitting the defence to adduce evidence to the contrary) would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it under section 78 of the Police and Criminal Evidence Act 1984. The judge accepted those submissions and excluded the evidence.[14]In those circumstances the Crown had no alternative but to offer no evidence against any of the defendants and on 7 May 2002 they were all acquitted by direction.

Before 1985

[15]Until 1937, the interception of communications occurred without warrant. The increasing use of the telephone led to this policy being reviewed and it was decided that in future the interception of telephones could only occur on the authority of a warrant signed by the Secretary of State.[16]In September 1951, the Home Office issued guidelines to the Metropolitan Police and Customs & Excise which laid out the conditions which had to be satisfied before a warrant for interception could be authorised by the Secretary of State. Those conditions were: i) the offence must be really serious; ii) normal methods of investigation must have been tried and failed, or must, by the nature of things, be unlikely to succeed if tried; and iii) there must be good reason to think that an interception would result in a conviction.[17]Despite the need for ‘good reason to think that an interception would result in a conviction’, the invariable practice was that material intercepted as a result of telephone tapping was not used in evidence. This was made clear in the 1957 Report of the Committee on the Interception of Communications, known as ‘The Birkett Report’. The Committee accepted the view of ‘all the authorities’ that any disclosure of the extent of the use of interceptions would impair their effectiveness and be contrary to the public interest. Thus the culture was that maintaining secrecy was the paramount consideration. This had the consequence that the intercepts were not used in criminal prosecutions nor disclosed in any other way.[18]In Malone v Metropolitan Police Commissioner [1979] 1 Ch 344, Sir Robert Megarry VC considered the lawfulness of telephone tapping. The issue arose following a trial in the Crown Court in which the prosecution had admitted that there had been interception of the plaintiff’s telephone conversations on the authority of a warrant issued by the Secretary of State. The plaintiff issued a writ claiming that the interception had been and was unlawful. Although he dismissed the plaintiff’s claim, the Vice Chancellor said (at page 380E-G):
“Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts … this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation.”
[19]The Malone judgment was followed by a White Paper called ‘The Interception of Communications in Great Britain’ published in April 1980. The Government decided not to introduce legislation but agreed that it would be desirable if there were a continuous independent check to ensure that interception was being carried out in accordance with established procedures. Lord Diplock was appointed to carry out the continuous independent check and his first report was published in March 1981. It was called ‘The Interception of Communications in Great Britain’.[20]In Malone v United Kingdom (1984) 7 EHRR 14, the European Court of Human Rights decided that the facts of Malone’s case involved a violation of Article 8 of the European Convention on Human Rights. Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder and crime … .”
The Court said (in paragraph 64) that the interception pursuant to a warrant was an ‘interference by a public authority’ with the exercise of the right identified in Article 8(1).[21]The Court further held that Article 8 was infringed because the law of England and Wales did not meet the requirement that any interference with the right of privacy must be ‘in accordance with the law’: see paragraphs 68-80. We quote two short extracts from paragraphs 68 and 79:
“68. … 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. 79. … In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.”
[22]The decision in the Malone case (together with the privatisation of telecommunications services in the 1984 Act, which put control over telephone lines into the hands of a private corporation), led the Government to conclude that legislation was necessary to provide a clear framework within which the interception of communications on public systems would be authorised and controlled.[23]The Government’s proposals were published in a White Paper called ‘The Interception of Communications in the United Kingdom’ which was published in February 1985 and proposed a Bill. In paragraph 6, the White Paper referred to the decision of the European Court of Human Rights in Malone and in paragraph 7 said:
“The Government’s aim in introducing legislation is to provide a clear statutory framework within which the interception of communications on public systems will be authorised and controlled in a manner commanding public confidence.”
The White Paper also included this statement at paragraph 12(f): “The Bill will provide for controls over the use of intercepted material. By making such material generally inadmissible in legal proceedings it will ensure that interception can be used only as an aspect of investigation not of prosecution.” (Our emphasis) The Bill referred to in The White Paper became the Interception of Communications Act 1985 (‘the 1985 Act’).

The Interception of Communications Act 1985

[24]The 1985 Act was, as its long title made clear, ‘an Act to make new provision for and in connection with the interception of communications sent by post or by means of public telecommunications systems … ’. It did not purport to regulate communications by means of private systems.[25]Section 1 of the 1985 Act provided, so far as relevant, as follows:
“(1) Subject to the following provisions of this section, a person who intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunication system shall be guilty of an offence … (2) A person shall not be guilty of an offence under this section if – (a) the communication is intercepted in obedience to a warrant issued by the Secretary of State under section 2 below; or (b) that person has reasonable grounds for believing that the person to whom, or the person by whom, the communication is sent has consented to the interception. (3) A person shall not be guilty of an offence under this section if – (a) the communication is intercepted for purposes connected with the provision of postal or public telecommunication services or with the enforcement of any enactment relating to the use of those services; or (b) the communication is being transmitted by wireless telegraphy and is intercepted, with the authority of the Secretary of State, for purposes connected with the issue of licences under the Wireless Telegraphy Act 1949 or the prevention or detection of interference with wireless telegraphy (4) No proceedings in respect of an offence under this section shall be instituted – (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; …” (a) the communication is intercepted in obedience to a warrant issued by the Secretary of State under section 2 below; or (b) that person has reasonable grounds for believing that the person to whom, or the person by whom, the communication is sent has consented to the interception. (a) the communication is intercepted for purposes connected with the provision of postal or public telecommunication services or with the enforcement of any enactment relating to the use of those services; or (b) the communication is being transmitted by wireless telegraphy and is intercepted, with the authority of the Secretary of State, for purposes connected with the issue of licences under the Wireless Telegraphy Act 1949 or the prevention or detection of interference with wireless telegraphy (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; …”
[26]Section 2 gave the Home Secretary the power to grant interception warrants to the police or the security and intelligence service. Section 2 (2) provided:
“The Secretary of State shall not issue a warrant under this section unless he considers the warrant is necessary – (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) for the purpose of safeguarding the economic well-being of the United Kingdom.” (b) for the purpose of preventing or detecting serious crime; or (c) for the purpose of safeguarding the economic well-being of the United Kingdom.”
[27]Section 6 provided, so far as relevant, as follows: “(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing –(a) that the requirements of subsections 2 and 3 below are satisfied in relation to intercepted material; and(b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person. (2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely – (a) the extent to which the material is disclosed; (b) the number of persons to whom any of the material is disclosed;(c) the extent to which the material is copied; and(d) the numbers of copies made of any of the material, is limited to the minimum that is necessary as mentioned in section 2(2) above. (3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2(2) above.” (a) that the requirements of subsections 2 and 3 below are satisfied in relation to intercepted material; and (b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person. (a) the extent to which the material is disclosed; (b) the number of persons to whom any of the material is disclosed; (c) the extent to which the material is copied; and (d) the numbers of copies made of any of the material, is limited to the minimum that is necessary as mentioned in section 2(2) above.[28]Section 7 established a tribunal to which a person who suspected that his communications were being intercepted could complain, although the tribunal’s powers were limited to examining interceptions under warrant. Section 8 provided that the Prime Minister should appoint a commissioner to keep under review the granting of interception warrants and to report to the Prime Minister annually.[29]Section 9, which is important in the present context, provided, so far as relevant as follows:
“(1) In any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked which (in either case) tends to suggest – (a) that an offence under section 1 above has been or is to be committed by any of the persons mentioned in subsection (2) below; or (b) that a warrant has been or is to be issued to any of those persons. (2) The persons referred to in subsection (1) above are – (a) any person holding office under the Crown; … (3) Subsection (1) above does not apply – (a) in relation to proceedings for a relevant offence or proceedings before the Tribunal; or (b) where the evidence is adduced or the question in cross-examination is asked for the purpose of establishing the fairness or unfairness of a dismissal on grounds of an offence under section 1 above or of conduct from which such an offence might be inferred; and paragraph (a) of that subsection does not apply where a person has been convicted of the offence under that section.”
Section 9(4) identified the meaning of “relevant offence”. (a) that an offence under section 1 above has been or is to be committed by any of the persons mentioned in subsection (2) below; or (b) that a warrant has been or is to be issued to any of those persons. (a) any person holding office under the Crown; … (a) in relation to proceedings for a relevant offence or proceedings before the Tribunal; or (b) where the evidence is adduced or the question in cross-examination is asked for the purpose of establishing the fairness or unfairness of a dismissal on grounds of an offence under section 1 above or of conduct from which such an offence might be inferred; and paragraph (a) of that subsection does not apply where a person has been convicted of the offence under that section.”[30]Section 10 provided that the expression ‘public telecommunications system’ was to be given the same meaning as in the 1984 Act. Under the 1984 Act a ‘telecommunications system’ means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy, of (among other things) speech, music and other sounds (section 4) and a public communications system was one designated and licensed as such by the Secretary of State (section 9).[31]Section 4 (2) of the 1984 Act provides: “For the purpose of this Act telecommunication apparatus which is situated in the United Kingdom and –(a) is connected to but not comprised in a telecommunication system; or(b) is connected to and comprised in a telecommunication system which extends beyond the United Kingdom, shall be regarded as a telecommunication system and any person who controls the apparatus shall be regarded as running the system.” (a) is connected to but not comprised in a telecommunication system; or (b) is connected to and comprised in a telecommunication system which extends beyond the United Kingdom,[32]The effect of those provisions was to limit the effect of the 1985 Act to the public telecommunications system, which is that part of the system designated and licensed as such. A private telecommunications system, which includes an internal telephone system, did not fall within the provisions of the 1985 Act. It appears that private systems were omitted because it was felt that there was a lesser intrusion into privacy in circumstances where individuals might, for example, have implicitly consented to such interceptions as part or their terms of employment.[33]The 1985 Act has been considered by the House of Lords on a number of occasions, namely in R v Preston [1994] 2 AC 130, R v Effick [1995] AC 1309, Morgans v DPP [2001] 1 AC 315, R v Sargent [2001] UKHL 54, [2003] 1 AC 347 and R v P [2002] 1 AC 146. It was described by Lord Mustill in Preston as “a short but difficult statute”. We will return to those decisions below.[34]Because the 1985 Act did not cover interceptions made on private systems the United Kingdom was open to the same arguments as they had faced in Malone following an intercept placed on Ms Halford’s internal telephone. In Halford v United Kingdom (1997) 24 EHRR 523 at paragraph 51, the Court said:
“The Court notes that the 1985 Act does not apply to internal communications systems operated by public authorities, such as that at Merseyside Police Headquarters, and that there is no other provision in domestic law to regulate interceptions of telephone calls made on such 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 interferences by the police with her right to respect for her private life and correspondence.”
[35]Just as the decision in Malone had played its part in bringing about the enactment of the 1985 Act, so the decision in Halford played a significant part in bringing about the enactment of RIPA. In a Preliminary Note, the editors of Halsbury’s Statutes observe:
“The purpose of this Act … is to consolidate the law on the use of investigatory powers and to ensure that investigatory powers are used in accordance with human rights … This Act regulates the use of the investigatory powers which are to be externally supervised and aims to ensure that law enforcement and other operations are consistent with the duties imposed on public authorities by the European Convention on Human Rights and by the Human Rights Act 1998. … Human rights considerations dominated the drafting of this Act and it is intended to reflect a change in the United Kingdom’s stance on human rights. It seeks to strike a balance between protecting individuals’ convention rights and recognising the necessity of investigatory powers to the protection of society as a whole.”
We agree with this analysis of the legislative purpose.[36]RIPA provides, as far as relevant, as follows:
“1 (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 subsection, to intercept, at any place in the United Kingdom, any 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; and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes. (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. …. (8) No proceedings for any offence which is an offence by virtue of this section shall be instituted— (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; … 2 (1) In this Act— “private telecommunication system” means any telecommunication system which, without itself being a public telecommunication system, is a system in relation to which the following conditions are satisfied— (a) it is attached, directly or indirectly and whether or not for the purposes of the communication in question, to a public telecommunication system; and (b) there is apparatus comprised in the system which is both located in the United Kingdom and used (with or without other apparatus) for making the attachment to the public telecommunication system; (2) For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he - (a) so modifies or interferes with the system, or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication. 3 (1) Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which, or which that person has reasonable grounds for believing, is both— (a) a communication sent by a person who has consented to the interception; and (b) a communication the intended recipient of which has so consented. (2) Conduct by any person consisting in the interception of a communication is authorised by this section if— (a) the communication is one sent by, or intended for, a person who has consented to the interception; and (b) surveillance by means of that interception has been authorised under Part II. (3) Conduct consisting in the interception of a communication is authorised by this section if— (a) it is conduct by or on behalf of a person who provides a postal service or a telecommunications service; and (b) it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunications services. … 4 (2) Subject to subsection (3), the Secretary of State may by regulations authorise any such conduct described in the regulations as appears to him to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any business, of monitoring or keeping a record of— (a) communications by means of which transactions are entered into in the course of that business; or (b) other communications relating to that business or taking place in the course of its being carried on. 5 (1) Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following— (a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant; (b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described; (c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described; (d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data. (2) The Secretary of State shall not issue an interception warrant unless he believes— (a) that the warrant is necessary on grounds falling within subsection (3); and (b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. (3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary- (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; (c) for the purpose of safeguarding the economic well-being of the United Kingdom; … ” (a) a public postal service; or (b) a public telecommunication system. (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 subsection, to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system. (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. (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; and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes. (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. (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; … “private telecommunication system” means any telecommunication system which, without itself being a public telecommunication system, is a system in relation to which the following conditions are satisfied— (a) it is attached, directly or indirectly and whether or not for the purposes of the communication in question, to a public telecommunication system; and (b) there is apparatus comprised in the system which is both located in the United Kingdom and used (with or without other apparatus) for making the attachment to the public telecommunication system; (a) so modifies or interferes with the system, or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, (a) a communication sent by a person who has consented to the interception; and (b) a communication the intended recipient of which has so consented. (a) the communication is one sent by, or intended for, a person who has consented to the interception; and (b) surveillance by means of that interception has been authorised under Part II. (a) it is conduct by or on behalf of a person who provides a postal service or a telecommunications service; and (b) it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunications services. (a) communications by means of which transactions are entered into in the course of that business; or (b) other communications relating to that business or taking place in the course of its being carried on. (a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant; (b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described; (c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described; (d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data. (a) that the warrant is necessary on grounds falling within subsection (3); and (b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. (b) for the purpose of preventing or detecting serious crime; (c) for the purpose of safeguarding the economic well-being of the United Kingdom; … ”
[37]Section 15 is in very similar terms to section 6 of the 1985 Act and thus closely regulates what use can be made of material obtained as a result of communication intercepted as a result of a warrant. Section 16 provides for certain further safeguards in addition to those in section 15.[38]Sections 17 and 18 provide, so far as relevant: 17(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)— (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.(2) The following fall within this subsection— (a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985; (b) a breach by the Secretary of State of his duty under section 1(4) of this Act; (c) the issue of an interception warrant or of a warrant under the Interception of Communications Act 1985; (d) the making of an application by any person for an interception warrant, or for a warrant under that Act; (e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.(3) The persons referred to in subsection (2)(a) are— (a) any person to whom a warrant under this Chapter may be addressed; (b) any person holding office under the Crown; (c) any member of the National Criminal Intelligence Service; (d) any member of the National Crime Squad; (e) any person employed by or for the purposes of a police force; (f) any person providing a postal service or employed for the purposes of any business of providing such a service; and (g) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service.(4) In this section “intercepted communication” means any communication intercepted in the course of its transmission by means of a postal service or telecommunication system. 18 (1) Section 17(1) shall not apply in relation to – (a) any proceedings for a relevant offence; … (3) Section 17(1) shall not prohibit anything done in, for the purposes of, or in connection with, so much of any legal proceedings as relates to the fairness or unfairness of a dismissal on the grounds of any conduct constituting an offence under section 1(1) or (2), 11(7) or 19 of this Act, or section 1 of the Interception of Communications Act 1985. (4) Section 17(1)(a) shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of section 1(5)(c), 3 or 4.(5) Where any disclosure is proposed to be or has been made on the grounds that it is authorised by subsection (4), section 17(1) shall not prohibit the doing of anything in, or for the purposes of, so much of any legal proceedings as relates to the question whether that disclosure is or was so authorised.(6) Section 17(1)(b) shall not prohibit the doing of anything that discloses any conduct of a person for which he has been convicted of an offence under section 1(1) or (2), 11(7) or 19 of this Act, or section 1 of the Interception of Communications Act 1985.(7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to – (a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or (b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone. … (12) In this section ‘relevant offence’ means – (a) an offence under any provision of this Act; (b) an offence under section 1 of the Interception of Communications Act 1985; …” (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur. (a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985; (b) a breach by the Secretary of State of his duty under section 1(4) of this Act; (c) the issue of an interception warrant or of a warrant under the Interception of Communications Act 1985; (d) the making of an application by any person for an interception warrant, or for a warrant under that Act; (e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant. (a) any person to whom a warrant under this Chapter may be addressed; (c) any member of the National Criminal Intelligence Service; (d) any member of the National Crime Squad; (e) any person employed by or for the purposes of a police force; (f) any person providing a postal service or employed for the purposes of any business of providing such a service; and (g) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service. (a) any proceedings for a relevant offence; … (a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or (b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone. (b) an offence under section 1 of the Interception of Communications Act 1985; …”

Discussion

[39]So far as relevant, except for section 1(3) RIPA came into force on 2 October 2000, which was the same day as the Human Rights Act 1998. The 1985 Act was repealed by section 82 and schedule 5 of RIPA and the repeal took effect on 2 October 2000. It follows that the events which led to the trial of W and the others took place before the 1985 Act was repealed whereas the trial took place after RIPA came into force and thus after the 1985 Act was repealed.[40]It is in our view plain from those facts and from the terms of section 17 of RIPA that the question which the judge was asked to decide depended upon the true construction of section 17 of RIPA and not of section 9 of the 1985 Act, which had by then been repealed. This is clear from the terms of section 17(1)(a) and (b) of RIPA, which we have set out above.[41]In particular, so far as presently relevant, the combined effect of section 17(1)(b), (2)(a) and (3)(b) is that no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with a criminal trial which tends to suggest that an offence was committed under section 1 of the 1985 Act. For short (and for convenience) we will refer to the prohibition in section 17 as being of questions asked or assertions made. Thus it is to section 17 of RIPA that we must look to determine whether questions or assertions which the defence wished to ask or make designed to show that the intercepted communications were transmitted by means of public telecommunications system were prohibited. The judge held that section 17 of RIPA and not section 9 of the 1985 Act applied to these proceedings and to the determination of that question. In our view he was plainly right so to hold.[42]The question is whether he was right to hold that such questions or assertions were prohibited by section 17 of RIPA. As we read the judge’s reasons, he had regard to the fact that an important purpose of RIPAwas to regulate the interception of transmissions by means not only of a public telecommunications system but also of a private telecommunications system. We entirely agree that that was indeed one of the purposes of RIPA. As already stated, it arose in part at least out of the decision of the European Court of Human Rights in Halford and was put into effect by section 1(2) of RIPA which we have quoted above. Thus the effect of RIPAis that intercepts by means of both public and private communications systems are now regulated by law in the United Kingdom.[43]The judge also construed section 17 of RIPA in its historical context, which of course included in particular section 9 of the 1985 Act and the decisions of the House of Lords on the construction of that section.[44]Mr Perry’s submissions may be summarised as follows. i) Section 17 of RIPA should be construed in the light of the closely analogous section 9 of the 1985 Act. ii) Given that the events took place before RIPA came into force, the judge was wrong to have regard to the introduction of regulation of interception of transmissions by means of private communication systems. iii) The judge was also wrong to hold that the defence was not entitled to ask questions or make assertions designed to show that the relevant telecommunication system was public and not private. He should have held that section 17 of RIPA did not prohibit such questions or assertions, so that both parties were entitled to ask questions and make assertions relevant to whether the system was public or private. It follows that the basis upon which the judge excluded evidence that the system was private under section 78 of PACE no longer applies. iv) Even if the judge was right to have regard to the introduction of regulation of interceptions of transmissions by means of a private telecommunications system, the position remains the same, as it does in the case of events which took place after RIPA came into force. v) The enquiry permitted by RIPA includes asking questions and making assertions relevant to these questions: is the system public or private and, if it is private, who is the controller of the system and did the controller consent to the intercept? vi) It would be a startling anomaly if the admissibility or otherwise of the fruits of the intercept depended upon the character or status of the controller. Parliament cannot have intended such an anomaly to exist. vii) The distinction between private and public systems drawn in RIPA and the provision that an interception on a private system is not an offence where consent has been given points to the conclusion that the fact of consent can be asserted and proved by the Crown in order to render admissible the contents of conversations lawfully intercepted with the consent of the owner of the private system, provided that they would otherwise be admissible in evidence. We will consider each of those submissions in turn.[45]We accept the first submission. Section 17 of RIPAis indeed closely analogous to section 9 of the 1985 Act, albeit somewhat wider, and should be considered in the light of the decisions of the House of Lords on the construction of section 9.[46]We also accept the second submission. When the relevant events occurred, that is when the interceptions 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 communications system. In these circumstances we cannot see how the fact that RIPA subsequently introduced regulation of interception of private communications can be relevant in deciding what questions or assertions are prohibited under section 17 of RIPA in relation to events which occurred before such regulation was introduced.[47]We have reached the clear conclusion that the question whether the defence was entitled to ask questions or make assertions with regard to whether the interceptions were of communication by means of a public telecommunications system must be decided by reference to the true construction of section 17 of RIPA as it applies to offences created by the 1985 Act and without reference to the subsequent introduction of the offence of intercepting communications in the course of their transmission by means of a private telecommunication system subsequently introduced by section 1(2) of RIPA. We are therefore of the opinion that the judge was wrong to have regard to the introduction of regulation of interception of transmissions by means of private communication systems.

Submission iii)

[48]With regard to the third submission, we consider first the position as it would have been before the repeal of section 9 of the 1985 Act and its replacement by section 17 of RIPA. We shall then consider the effect of that replacement. We do so because the two sections are similar and because there are two decisions of this court and two decisions of the House of Lords which seem to us to be relevant to the question which arises here and which were decided while section 9 of the 1985 Act was still in force. In chronological order they are R v Ahmed, unreported, 29 March 1994, R v Effik [1995] 1 AC 309, Morgans v DPP [2001] 1 AC 315 and R v Allan, Bunting and Boodhoo [2001] EWCA Crim 1025/6, which was decided on 6 April 2001.[49]It is convenient to refer first to Allan as being the most recent decided case. In that case the authorities intercepted telephone conversations on card phones used by prisoners in Leicester prison. The conversations were with people outside the prison. The question was whether the contents of the conversations were admissible in evidence against the appellants Allan and Bunting, who took part in the conversations while detained in the prison. The trial judge, Holland J, held that they were. The issue decided by this court (Keene LJ, Steel J and Sir Brian Smedley) was defined in paragraph 22 of the judgment of the court, which was given by Keene LJ, as whether the interceptions made by the prison authorities were of a ‘communication in the course of its transmission … by means of a public telecommunications system’ within the meaning of section 1(1) of the 1985 Act. The court added that the issue could be narrowed still further, to whether the telephone call boxes and lines within the prison, at least up to and including the point at which interception took place, were comprised in a ‘public telecommunication system’. The judge held that they were not and this court agreed.[50]The facts were agreed and for present purposes can be stated in this way. The lines came into the prison from the BT network. They ran to a control room in which there was a box which contained an isolator switch for each line. The isolator switch could be operated by prison officers to activate or deactivate each line. A recording device was attached to each line and all calls were automatically recorded as soon as a card phone handset was lifted from the rest position. The prisoner used a card to make a phone call.[51]A notice, which

the judge described as reasonably visible was displayed by each card phone stating:

“Notice to inmates. Conversations on this card phone will be recorded and are liable to be monitored by prison staff. The card phone is provided for use by those prisoners who consent to this.”
The cards were purchased in bulk by the Home Office from BT and could only be used inside the prison. Before an inmate could use one of the phones the prison service had to activate it. Those in the control room could listen to the calls and terminate them at any time if they wished. The phones could only be used for outgoing calls.[52]The relevant statutory provisions were sections 1 and 9 of the 1985 Act which we have quoted. All the events and the trial took place before RIPA came into force. The Crown case was that the evidence of the interceptions and the contents of the conversations was admissible because it was probative of the case against the appellants and was not excluded by section 9 on the ground that it did not tend to suggest that an offence under section 1 had been committed or that a warrant had been issued by the Secretary of State. The Crown case was that the interception was not of a communication in the course of its transmission by means of a public, as opposed to a private, telecommunication system.[53]In paragraph 32 the court observed that the House of Lords made it clear in Morgans v DPP [2001] 1 AC 315 that intercepts said to have been carried out by consent were inadmissible in evidence if they were communications falling within section 1(1) of the 1985 Act. The court in Allan added that it thus became of central importance to determine whether the calls were being transmitted by a public telecommunication system at the time and place of interception.[54]The court in Allan then referred to Ahmed, in which this court upheld the decision of the trial judge that evidence of the contents of intercepted communications was admissible because the interception was not on the public telecommunication system. Giving the judgment of the court, Evans LJ said this:
“Our conclusions are as follows: first, we hold that the interception of a communication takes place when, and at the place where, the electrical impulse or signal which is passing along the telephone line is intercepted in fact. Secondly, if there is an interception of the private system, the communication which is intercepted is not at that time passing through the public system. It is not, in our judgment, in the course of transmission by means of the public telecommunication system. Thirdly, the fact that later or earlier signals either have formed part of, or will form part of, the same communication or message does not mean that the interception takes place at some other place or time. Finally, ‘communication’, in our judgment, does not refer to the whole of a transmission or message; it refers to the telephonic communication which is intercepted in fact, and on the evidence to which I have referred that consists of what has been variously described as the electrical impulse or signal which is affected by the interception that is made.”
[55]As the court observed in paragraph 33 in Allan, those conclusions were expressly approved by the House of Lords in Effik at p 320. It added, hence the importance of determining whether the point at which the prison authorities intercepted the telephone calls was something comprised in a public telecommunications system. If it was, it was agreed that the evidence of the contents of the intercepted communications was inadmissible, whereas, if it was not, it was agreed that the evidence was admissible.[56]In paragraph 34 the court added:
“It is not contended by the appellants that the problems over enquiring during trial how the interception took place give rise to the difficulties which persuaded the House of Lords in Morgans to conclude that section 9 of the 1985 Act could be breached by the mere process of enquiry. As Crane J pointed out in Heskey (unreported), dated 16 October 2000, the 1985 Act does not bite at all unless the system in question is a public telecommunication system, and that issue is one which can be investigated without any trespassing into the forbidden territory of section 9.”
The remainder of the judgment comprised a discussion of whether the intercepted transmission in question was by means of a public or private telecommunication system. It was held that it was the latter and not the former and that the evidence was therefore admissible.[57]It might be argued that none of those cases determines the question whether it is permissible for evidence to be given or a question to be asked in order to decide whether the relevant communication was by means of a public or private telecommunication system because in none of the cases was it contended that section 9 prevented such evidence or such a question. It is, we think, correct that in none of the cases until this one has the point been taken expressly.[58]Thus in none of the cases decided so far has it been argued that evidence on the question whether the transmission was by means of a public telecommunications system was inadmissible by reason of section 9(1) because it tended to suggest that an offence under section 1(1) had been committed. It seems to us that such an argument could have been advanced on the basis that, since section 1(1) expressly provides that, subject to the following provisions of the section, a person who intentionally intercepts a communication in the course of its transmission by means of a public telecommunications system shall be guilty of an offence, the proof that the communication was by means of a public telecommunications system is an essential part of the prosecution case and tends to suggest that an offence under section 1(1) had been committed.[59]However, if section 9 had that effect, as we see it Ahmed and Allan should have been decided differently. So too should Effik. Moreover, in Effik the House of Lords should not have approved the propositions quoted above from Ahmed. Thus in Effik the Crown sought to adduce evidence of telephone calls on the ground that they were intercepted in the course of transmission by means of a public telecommunications system. However, having heard evidence, the trial judge ruled that it was a privately run system which was connected to a publicly run system but was not part of that public system.[60]In the House of Lords the sole question for decision was whether that ruling was correct. The appellants said that the system was public whereas the Crown said that it was a private system. Having approved the passage from Ahmed quoted above, the House of Lords held that it was a private system and upheld the convictions. We note that no one suggested that the judge should not have heard evidence relevant to the question whether the system was public or private. We cannot therefore accept the submission made on behalf of W that a key feature of the decision in Allan was that the primary facts were agreed.[61]In Morgans Lord Hope simply observed at p 327 that in Effik it was held, affirming the decision of the trial judge, that the material obtained by intercepting signals passing between a base unit and the handset of a cordless telephone was admissible because no communication was being made by means of a public system when the calls were intercepted by the police. It does not appear to have occurred to any of their Lordships to doubt the decision in Effik on the basis that it was not permissible to adduce evidence or ask questions tending to show that the system was public. The House was concerned with a different question, namely whether the contents of communications said to have been intercepted by consent were admissible if the interceptions were of transmissions by means of a public system.[62]As we see it, the reason that it appears to have occurred to no-one in those cases that evidence of whether the relevant system is private or public might be inadmissible under section 9(1) must be that, as Crane J pointed out in Heskey, the Act does not bite at all unless the system is public. The Act was not intended to regulate interceptions on private systems or to render the fruits of such intercepts inadmissible in evidence. It follows that evidence that the system was private was intended to remain admissible and that section 9(1) cannot have been intended to prevent defendants from asserting and adducing evidence to show that the system was public and not private. Otherwise, as happened here, the court would be almost bound to hold that evidence that the system was private should be excluded under section 78 because it would be unfair to allow the Crown to adduce evidence that the system was private but not to allow the defence to call evidence or ask questions tending to show that it was public. Such a conclusion cannot, in our view, have been intended by Parliament because it would have the result that evidence of the contents of intercepts on a private system which were otherwise admissible would in practice be inadmissible.[63]In all these circumstances we have reached the conclusion that we should follow the approach in those cases and hold that, if section 9 had still been in force at the time of the trial in the instant case, 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. The determination of that question would not tend to suggest that an offence under section 1 of the 1985 Act had been committed or that a warrant had been issued.[64]Given our conclusion (and that of the judge) that the relevant question here is whether the questions which the defence wanted to ask or the assertions which they wanted to make were forbidden, not by section 9 of the 1985 Act, which had been repealed, but by section 17 of RIPA, which replaced it, we turn to consider whether the position is any different under section 17, which is in important respects wider than section 9.[65]The submissions made on behalf of W may be summarised in this way. Section 17 is far more proscriptive than section 9 because it is not limited to evidence and questions but prohibits (among other things) both any assertion which might in any manner tend to suggest that an offence has been committed under section 1 of the 1985 Act or that a warrant has been issued and any disclosure from which such an inference might be drawn. Thus the section prohibits the defence from serving an expert’s report demonstrating that the system was a public and not a private system because it might reasonably be inferred that the defence intend to allege that an offence had been committed.[66]We do not accept that submission. It does not seem to us that the widening of the section alters the position which existed under section 9, at any rate in relation to events which occurred before RIPA came into force and thus while interceptions on private systems remained unregulated.[67]Evidence that the system is public does not in any way disclose the contents of the communications and so is not prohibited by section 17(1)(a). Nor in our view does it tend to disclose that anything falling within section 17(2) has or may have occurred or be going to occur. The only possible candidate in section 17(2) is section 17(2)(a), namely conduct by a police officer that was or would be an offence under section 1(1) or (2) or under section 1(1) of the 1985 Act. In our view there was no possible conduct that was or would be an offence under section 1(1) or (2) of RIPA because those sections were not in force at the time of the relevant events and, as we see it, no relevant evidence could be adduced which tended to suggest that conduct had occurred which was or would be an offence under section 1 of RIPA.[68]The remaining question is whether questions asked or assertions made which were relevant to the question whether the interceptions were of transmissions by means of a public or private system tended to suggest that an offence had been committed under section 1 of the 1985 Act. In this regard we can see no relevant distinction between the provisions of section 9 of the 1985 Act and section 17 of RIPA. It follows that the conclusion we have reached with regard to the position under section 9 applies to the position under section 17 and thus to the facts of this case.[69]In these circumstances we have reached the conclusion that the ruling made by the judge that section 17 of RIPA prevented the defence from adducing evidence, asking questions or making assertions designed to show that the intercepts were (as he put it) of and via the public system was wrong. He should have held that section 17 had no such effect. If he had done so, he would not have excluded the evidence that the intercepted transmissions were by means of a private system under section 78 of PACE on the ground which he did, namely that it would be unfair to allow the Crown to adduce that evidence but to prevent the defence from adducing evidence etc designed to show that it was by means of a public communication system. Whether there would have been any other basis for excluding the evidence under section 78, as for example for lack of disclosure, is not something with which the judge was concerned and nor are we.[70]Subject to any argument that the evidence should in any event have been excluded under section 78, the correct course as we see it 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 telecommunication system. That was what was done by the trial judge in Effik and there is nothing in the reasoning of the House of Lords in Effik which disapproves of the approach which he adopted. On the contrary, having upheld his ruling, the House must have approved his approach. If, having heard the evidence, the judge held that it was by means of a private system he should (and no doubt would) have ruled that the evidence was admissible, subject of course to any new point raised under section 78 of PACE. On the other hand, if he held that it was by means of a public system, he should (and no doubt would) have held that the evidence was inadmissible.[71]It follows from the above that we accept Mr Perry’s third submission.

Submissions iv) to vii)

[72]We have had some doubt as to whether we should consider these further submissions on the footing that it may be said that they are not points that have arisen in the case. However, we have reached the conclusion that we should consider them because part of the argument on behalf of W that the judge was correct is that RIPA regulates intercepts on private as well as public systems and that this an important factor in construing section 17. If, contrary to our view, it were held that, even in relation to events which occurred before RIPA came into force, that argument were correct (so that it was relevant to have regard to the introduction of the regulation of the interception of transmissions by means of private systems introduced by section 1(2) of RIPA), it would be necessary to consider what flows from that fact. In these circumstances we think that these further points can fairly be regarded as having arisen in the case.[73]These points are also of some considerable importance for the future because the effect of the judge’s approach is or would be that evidence of the contents of conversations which have been lawfully intercepted cannot be adduced in evidence because it would not be permissible to ask questions or make assertions designed to show that the relevant system was private, let alone questions or assertions designed to show that the controller or the private system consented to the intercept.[74]We have summarised Mr Perry’s submissions above. In short he submits that section 17 should not be construed as forbidding questions or assertions designed to show both that the system was private and that the consent of the person with a right to control the operation or use of the system (whom we will call ‘the controller’ for short) had been obtained. He submits that both prosecution and defence should be permitted to adduce evidence, ask questions and make assertions both on the question whether the system was public or private and, if private, on the question whether the relevant consent had been obtained. The argument to the contrary is that there would be no point in permitting evidence on the first question because if the system is public, it is common ground that evidence of the contents of the communications is inadmissible under section 17 and, if the system is private, evidence of consent is inadmissible on the true construction of the section.[75]Mr Perry places considerable reliance upon the approach of the House of Lords to the regulation of public telecommunications systems in the cases and submits that the same considerations do not apply to the regulation of private systems. The policy behind section 9 of the 1985 Act has been summarised in several of the cases. It is perhaps sufficient to refer to the following statement in the speech of Lord Hobhouse (with whom the other members of the House agreed) in Sargent at paragraph 28:
“This [ie section 9] is a statutory provision which has the effect of excluding evidence which would otherwise be admissible under the principle in R v Sang [1980] AC 402. It reflects the statutory policy of preserving secrecy identified in R v Preston [1994] 2 AC 130 and later cases (eg R v P [2002] 1 AC 146). As Lord Mustill put it in R v Preston [1994] 2 AC 130, 170, “Parliament has grasped the nettle and put the interests of secrecy first.”
It also has the indirect consequence of necessitating the exclusion of evidence of the results of the interception: Morgans v DPP [2001] AC 315, overruling R v Rasool [1997] 1 WLR 1092 and R v Owen [1999] 1 WLR 949. In Morgans … Lord Hope of Craighead, giving the leading speech, referred to the fact that the exclusions in section 9 and the necessity for a fair trial provided a strong indication that it had not been the intention of Parliament that evidence obtained by unlawful interceptions should be admissible. He said, at p 338:
“evidence of material obtained by interception by the persons mentioned in section 9(2) of the 1985 Act 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.””
See also per Lord Hobhouse in R v P [2002] 1 AC 146 at pp 162-6. “evidence of material obtained by interception by the persons mentioned in section 9(2) of the 1985 Act 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.””[76]Thus the underlying purpose of section 9 of the 1985 was to preserve secrecy in the case of interceptions of transmissions by means of public systems. This was in the context of the 1985 Act as a whole, the purpose of which was described by Lord Oliver in Effik at p 319 (quoted by Lord Hope in Morgans at p 336) as follows:
“It set out, as it seems to me, to achieve three objects, viz: first, to protect the integrity of that system of communication which is under public, and not under individual, control by creating a specific offence of interception of communications through the public system; secondly, to provide for the authorisation of such limited exceptions, under proper safeguards as are necessitated by the requirements of national security and the prevention of serious crime; and, thirdly, to ensure that the use of material acquired by resort to these exceptional procedures is strictly limited to the purposes for which it has been acquired and not used for other purposes.”
[77]In Preston it was held that the combined effect of sections 6 and 9 was that (as Lord Jauncey put it at p 144) neither the existence of a telephone intercept under warrant nor the result of the intercept could be put in evidence. In Morgans it was recognised, as Lord Hope put it in Sargent at paragraph 13, that it would be an extraordinary and unacceptable anomaly if the position were to be that evidence obtained by any of the persons mentioned in section 9(2) of the 1985 Act by the interception of communications for which a warrant had been issued under section 2 was inadmissible but evidence which they had obtained by an interception for which a warrant was required but had not been issued was admissible. It was accordingly held that the contents of communications intercepted in the course of transmission by a public system were inadmissible whether or not the intercepts were lawful by reason of section 1(2)(b) of the 1985 Act as being reasonably thought to be consensual.[78]Lord Hope (with whom the other members of the House of Lords agreed) expressed the relevant principles in this way at pp 337-8:
“Broader Considerations 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 R v Preston [1994] 2 AC 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 defendant 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 1985 Act, 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 LJ pointed out in the Court of Appeal in R vPreston 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.”
[79]Lord Hope added as part of his conclusions on p 339:
“Sections 1 and 9 of the 1985 Act prohibit the adducing in any proceedings before any court or tribunal of evidence of the contents of a communication 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.”
We refer below to the exception which Lord Hope and the House of Lords made with regards to section 1(3) of the 1985 Act, which seems to us to be of some significance.[80]Mr Perry submits that none of those considerations applies to the regulation of the interception of transmissions by means of private systems. Thus the purpose of regulating such transmissions cannot have been to protect the integrity of the public system or to provide for authorisation only under such special safeguards as are necessitated by the requirements of national security or the prevention of serious crime. Nor can it have been to ensure secrecy in the sense referred to by Lord Hobhouse. We entirely agree that the purpose of regulating interception in the case of private systems cannot have been the same as in the case of public systems.[81]The position with regard to intercepts on the public system is essentially the same as before. The question is whether Parliament has provided that evidence of the contents of intercepts lawfully made on a private system is inadmissible. Mr Perry submits that it makes no sense to hold that that was what Parliament intended. For example he submits that there can be no reason not to admit evidence derived from intercepts carried out by those who are not included in the list in subsection (3) of section 17. Equally, he submits that, where the intercepts are carried out by those who are on the list, there is no reason in principle not to permit evidence obtained as the result of intercepts agreed to by the controller of the system because, in the case of private systems, there is no reason of public policy similar to that which the House of Lords has identified as underlying the regulation of intercepts in the public system.[82]There is, in our view considerable force in these submissions, to which we will return below. However, we consider first the submissions made on behalf of W. The submissions contained in W’s skeleton argument prepared by Mr Gray and Mr Timothy Roberts (and amplified by Mr Gray in oral argument) may be summarised in this way. i) Section 17(2)(a) expressly includes offences under section 1(1), which relates to public systems, and under section 1(2), which relates to private systems. The exceptions to section 17 are set out in section 18, which sets out a closed list of exceptions, so that if the exception relied upon is not contained in section 18 it does not exist and section 17 apples in its full rigour. ii) The list does not include an exception with regard to a private system in circumstances in which the Crown wish to say that a defence exists under section 1(6), namely that the person making the interception had the right to control the operation or the use of the system within section 1(6)(a) or had the consent of such a person to make the interception within section 1(6)(b). iii) Section 18(4) specifically provides for the limited circumstances in which disclosure of the contents of a lawfully intercepted communication can be made. Such disclosure is limited to situations provided for in sections 1(5)(c), 3 and 4, none of which is relevant here. iv) If Parliament had intended to allow disclosure in legal proceedings of interceptions made on a private system which might be rendered lawful by section 1(6)(a) or (b) it would have included an express provision to that effect in section 18, which it did not. v) Section 17 does not prohibit judicial inquiry into whether a telecommunications system is public or private, but it prohibits any assertion that an offence might have been committed. It thus prevents any assertion that consent had not been given because an interception by, say, a police officer without the consent of the owner of the system would be an offence. It follows that the section prevents the assertion that consent had been given because such an assertion involves a consideration of whether or not consent had been given and, the absence of consent would tend to suggest that an offence under section 1(2) had been committed.[83]There is undoubtedly force in those submissions, but we have reached the conclusion that it would not be right to accept them in so far as they relate to a case of this kind, where it is said that section 1(6) of RIPA applies, so that the conduct of the person making the interception is ‘excluded from liability’.[84]In order to avoid the problems encountered in the Halford case it was essential that some statutory regime should be introduced which would enable an interference with a private system to be ‘in accordance with the law’. The regime laid down by RIPA is set out in section 1(2). It is in our view important to note the difference between paragraphs (a) and (b) of section 1(2). Section 1(2) makes it an offence for a person(a) intentionally and without lawful authority to intercept a telecommunication on a private system and(b) otherwise than in circumstances in which his conduct is excluded by section 1(6) from criminal liability. Section 1(2) thus makes such an interception an offence unless the interception was accidental (ie not intentional) or with lawful authority or was made by or with the consent of the controller of the private system.[85]The difference between (a) and (b) is that, whereas the interception of a communication on a private line without the consent of the owner might involve an offence, where the intercept is made by or with the consent of the controller of the system, no question of a criminal offence arises because such conduct is ‘excluded from criminal liability’.[86]Lawful authority for the interception of a telecommunication on a private or public line falls into two categories: authority without a warrant (sections 3 and 4) and authority with a warrant (section 5). Those sections apply to private lines which are part of ‘a telecommunication system’ which, by definition (section 2(1)) includes ‘any telecommunication system’ as opposed to a ‘public telecommunication system’ which would exclude private lines.[87]As appears from the parts of RIPA quoted above, in order to provide the balance of interest between the state and the individual, sections 15 to 20 inclusive contain ‘restrictions on use of intercepted material etc’. Sections 15 and 16 are concerned with ‘warrants’ and the duties of the Secretary of State. Section 17 deals with ‘exclusion of matters from legal proceedings’ and is expressly subject to section 18. It is clear that there is nothing in section 18 which would prevent the application of section 17 if it otherwise applied to the case with which we are concerned. We are not of course concerned with a case in which it is said that the intercept was lawful because of appropriate consent under section 3, which was the subject of Morgans, albeit under the somewhat different provisions of section 1(2)(b) of the 1985 Act. Here it is said that the controller consented to the intercept.[88]As we see it, the question is whether a case to which section 1(6) of RIPA is said to apply falls within section 17(1)(a) or (b). If it does, there is nothing in section 18, as it were, to disapply it, whereas if it does not, the fact that none of the exceptions in section 18 applies is irrelevant.[89]It seems clear that, as with the 1985 regime, what is not permissible is for questions to be asked which ‘open up’ the warrant system to scrutiny. The question whether or not a warrant has been issued is not a question to which the state is prepared to give an answer. Questions about the warrant system and whether a warrant has been granted are impermissible. Because questions about the warrant system cannot be asked, the statutory regime says that the products of the intercepts are not admissible in evidence. That would also be so in relation to a warranted interception of a private system. Thus section 17 would apply if the interception were made on a private line pursuant to a warrant.[90]Under the 1985 Act as construed in Morgans, for the reasons given by Lord Hope and quoted above, the same principle applied to the contents of intercepts not authorised by warrant, even if it was said that it was reasonably thought that there was a relevant consent within section 1(2)(b) of the 1985 Act. One of those reasons was that by introducing into evidence the contents of an intercept the prosecution would be inviting questions about the circumstances in which the interception came to be made and whether it was lawfully obtained or not. The provision of RIPA which is the equivalent of section 1(2)(b) is section 3, although it is in wider terms. Questions may arise in the future as to what evidence or assertions are permitted in this regard in the light of section 18(4) of RIPA. They do not, however, arise for consideration on this reference.[91]The key point here is that, as we see it, if no question of an ‘offence’ can arise because the circumstances in which the interception was made are ‘excluded from criminal liability’ (section 1(6)), then it seems to us that section 17(2)(a) does not arise. If the controller consented to the intercept (or was the interceptor) the interceptor could not be committing an offence under section 1(2) of the Act so that the disclosure of the contents of the intercepted communication could not lead to the inference that an offence under section 1(2) had been committed. Equally an assertion that the controller had so consented could not tend to suggest that such an offence had or may have occurred or be going to occur.[92]In these circumstances, save perhaps on the facts of a particular case which cannot at present be foreseen, on a proper interpretation of the RIPA section 17 does not prevent the introduction into evidence of the contents of an intercept made by the person with the right to control that line. This view is supported by this consideration: if a hotelier tapped his own internal telephone system and provided the contents of the intercept to the police, section 17(2)(a) could not apply because he would not be a person falling within subsection (3). If subsection (2) does not apply nor does section 17(1). In those circumstances, the contents of the intercepted calls would be admissible in evidence, subject to the judge’s discretion under section 78 of the Criminal Justice Act. We do not see any policy reason why the same should not be true whether the interceptor, or indeed the controller of the system, is a person within section 17(3) or not.[93]We have reached the conclusions that in this regard the submissions of Mr Perry are to be preferred to those of Mr Gray. The conclusions we have reached seem to us to achieve a fair balance between the interests of the state and the rights and interests of individuals. We can see no reason why, subject to section 78 of PACE, and to the consent of the owner of the private system concerned, the contents of and (subject perhaps to the facts of a particular case) the circumstances surrounding the intercepts should not be investigated and adduced in evidence. It seems to us that, just as the House of Lords indicated in Morgans that section 9 of the 1985 Act did not apply to a case said to fall within section 1(3), as opposed to section 1(2)(a) or (b) of the 1985 Act, so section 17 of RIPA does not apply to a case within section 1(6) of RIPA.[94]On this basis, there are likely to be two potential issues of fact before the court. The first is whether the interception was of a communication in the course of transmission by means of a private telecommunications system and the second is, if so, whether the interception was made by or with the consent of the person with the right to control the operation or use of that system. If the answer to either question is no, then the contents of the intercept would be inadmissible. If objection were taken to the admissibility of the evidence, the judge would have to determine the matter and give his ruling. The same would be true of other issues of fact which might arise in a particular case.[95]Subject to the facts of a particular case which we cannot foresee at present, that process could not infringe the spirit of the legislation or involve a foray into the forbidden territory. There could be no questions about the warrant system and matters involving PII would be most unlikely to arise. The question whether the line was private or public would or might require expert evidence and any expert instructed on behalf of the defence would have to be given sufficient access to the system in question to enable an opinion to be formed. Any problems about access and the like could be resolved by a judge in advance of the trial. The issue of who controlled the line, if private, and whether his consent had been given seems to us to be most unlikely either to involve any great complexity or to take much time.[96]As explained above, the courts have already accepted that issues about whether a line was private or public are properly justiciable. For the reasons we gave earlier, we do not think that there is anything in RIPA to suggest that that position has changed. We view with equanimity the prospect of a judge being required to consider whether the controller of a private system consented to the relevant intercept.

Conclusions

[97]For the reasons we have given, we answer the questions posed in the reference, as modified and set out in paragraph 2 above, as follows: i) Does section 17 (1) of the Regulation of Investigatory Powers Act 2000 (‘RIPA’) operate so as to prevent in criminal proceedings, any evidence being adduced, question asked, assertion or disclosure made or other thing done so as to ascertain whether a telecommunications system is a public or a private telecommunications system? No. ii) Is the answer to question (i) above different if the evidence being adduced or question asked etc relates to events which took place before RIPA came in to force? No. iii) Where an interception of a communication has taken place on a private telecommunications system, is it permissible in criminal proceedings to ask questions or adduce evidence etc to establish that the interception has 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? As to a), yes. As to b), yes, subject to the facts of a particular case.[98]We have found RIPA to be a particularly puzzling statute and have found the points relevant to the third question difficult to decide. They are points which are of considerable significance for the future. Section 36(3) of the 1972 Act expressly provides that this court may of its own motion refer the point or points to the House of Lords if it appears to the court that it or they should be considered by the House of Lords. The House of Lords has already considered the 1985 Act (‘a short but difficult statute’) on a number of occasions. RIPA too is in our view a difficult statute (if somewhat longer) and it is our present view that the points raised by the questions we have tried to answer (and especially those raised by the third question) should be considered by the House of Lords.[99]In these circumstances, subject to any submissions which counsel may wish to make, either before or when this opinion is handed down, we propose to refer the questions which we have been asked to the House of Lords.

Cited in 1 later judgment