Sargent, R v. [2001] UKHL 54 (25th October, 2001)

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sargent, R v. [2001] UKHL 54 (25th October, 2001) URL: http://www.bailii.org/uk/cases/UKHL/2001/54.html Cite as: [2002] 1 Cr App Rep 26, [2002] 1 All ER 161, [2003] AC 347, [2001] UKHL 54, [2001] 3 WLR 992, [2003] 1 AC 347, [2002] 1 Cr App R 26

HOUSE OF LORDS

Lord Nicholls of Birkenhead Lord Steyn Lord Hope of Craighead Lord Hutton Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

1. I have had the advantage of reading a draft of the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hobhouse of Woodborough. For the reasons they give, and with which I agree, I would allow this appeal.

2. I have read the opinions of my noble and learned friends Lord Hope of Craighead and Lord Hobhouse of Woodborough. For the reasons they give, I would also allow the appeal and set aside the conviction.

3. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hobhouse of Woodborough. I gratefully adopt his narrative of the facts of the case and the statutory background. I would like however to add two points by way of further explanation as to the background.

4. The first is that Mr Emmerson QC for the appellant did not seek to maintain the argument which was submitted to but rejected by the Court of Appeal that there had been a breach of the appellant's right to privacy under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd 8969) which in itself rendered the resulting evidence inadmissible. He directed his principal argument to the proposition that sections 1 and 9 of the Interception of Communications Act 1985 rendered both the fact that there had been an interception and the material which had been obtained by means of it inadmissible in evidence. The second is that his submission with regard to the second certified question was that the effect of sections 1 and 9 was that it was unlawful for the police to make any use whatever of the intercept when the appellant was being interviewed. It was this unlawfulness rather than the inadmissibility of the intercept in evidence which, according to his argument, made the confession which resulted from its use at the interview inadmissible.

5. The context for these submissions can best be appreciated by noting the following exchange which took place in the course of Detective Constable Hussey's interview of the appellant at Eccles police station on 2 August 1997, as recorded on page 21 of the transcript:

6. DC Hussey showed the appellant a tape, which he said was a tape of a conversation which had taken place between himself and Christine Page at 10.15 am on the same day that Neil Page's car was set alight in the early hours. He also showed him a transcript of the conversation which he said had been prepared by Neil Page, and he told him that apart from the odd spelling mistake it was an accurate record. He asked the appellant whether, before he went through the transcript, he wished to change what he had said in answer to his previous questions as to what he knew about the car being set alight. It was only then that the appellant began to make the admissions about his involvement which provided the basis in evidence for his conviction. Such was the effect of the production of these items however that the appellant had already made a full confession before DC Hussey went through the transcript and the details of the conversation which had been recorded on the tape were put to him. It is plain that the appellant already knew that Neil Page worked for Nynex Cable Co Ltd, the public telecommunications operator from whom Christine Page rented her telephone line, and that Mr Page had the opportunity, if so minded, to tape her telephone conversations illegally.

7. It was accepted at the trial that, in carrying out the intercept, Neil Page had committed an offence contrary to section 1(1) of the 1985 Act. The crucial question therefore as to the admissibility of the evidence of the intercept was whether he was at that time a person "engaged in the running of a public telecommunication system" within the meaning of section 9(2)(c) of the Act. As Lord Bingham of Cornhill CJ said in the Court of Appeal, while Mr Page was working for a public telecommunications operator, he was plainly not acting in the course of his employment or for the purposes of his employer when he intercepted the telephone conversation. As the Lord Chief Justice put it, Mr Page was acting entirely off his own bat for his own private purposes. But does this mean, as the Court of Appeal held, that he was not "engaged in" the running of a public telecommunication system?

8. The words "engaged in" which appear in both section 9(2)(b) - "engaged in the business of the Post Office" - and in section 9(2)(c) - "engaged in the running of a public telecommunication system" - are capable of two meanings. On one view, the words are used simply to indicate the person's office, status or position within the relevant organisation. On this view, it would be enough to show that the person was an employee or other agent of that organisation when he carried out the intercept. The other view is that the words are used to indicate that at the time the person was embarked upon a particular activity. On this view, it would be necessary to examine what he was doing at the time and to determine whether or not it was within the scope of his duties or his instructions. The admissibility of the intercept would depend not on whether he was employed by the organisation but on whether he was acting within the scope of his employment or on his instructions at the time of the interception.

9. It is plain that the second of these two alternatives would require more detailed investigation than the first to determine whether the intercept was inadmissible under section 9(1) of the 1985 Act or was admissible. Indeed, it is hard to see how an investigation into the person's activities at the time of the intercept could be conducted without entering into what was described in by Steyn LJ in R v Effik (1992) 95 CrAppR 427, 432 as the "forbidden territory." Section 9(1)(a) provides that no evidence shall be adduced and no question asked in cross-examination which tends to suggest that an offence under section 1 of the Act has been committed by the person who carried out the intercept or whether a warrant has been or is to be issued to him. The underlying purpose, as Lord Mustill said in R v Preston [1994] 2 AC 130, 167, is to protect information as to the authorisation and carrying out of official intercepts. But the prohibition extends to unauthorised as well as to authorised activity. It reflects the public interest that the circumstances in which the activities of those involved in serious crime came to the knowledge of the police should not be capable of being explored at a trial.

10. Questions as to the scope of the person's duties, the extent of his authority and the instructions which he had been given would be hard to avoid if the decision as to admissibility were to depend on evidence as to whether he was acting within the scope of his employment at the time when the interception was carried out. They would be almost certainly crucial to the issue of admissibility if the intercept was carried out, as it was in this case, at the person's place of work using his employer's equipment within normal working hours. They indicate the difficulties which the prohibition in section 9(1) would create in the conduct of such an investigation. These difficulties suggest quite strongly that the first alternative meaning of the phrase is the one which it bears in the present context.

11. This impression is confirmed by other provisions in section 9. First on the list of persons mentioned in section 9(2) is any person "holding office under the Crown": section 9(2)(a). No inquiry into the person's authority or instructions is necessary in his case. All that is needed to determine inadmissibility is evidence of the person's status. This suggests that the same exercise is appropriate in the case of the persons mentioned in section 9(2)(b) and section 9(2)(c).

12. Then there is the list of relevant offences in section 9(4)(a) to which, by section 9(3)(a), section 9(1) does not apply. Included in this list is section 45 of the Telecommunications Act 1984. Section 45(1) provides that a person engaged in the running of a public telecommunication system who "otherwise than in the course of his duty" intentionally intercepts a message sent by means of that system or, where a message so sent has been intercepted, intentionally discloses to any person the contents of that message shall be guilty of an offence. The phrase "otherwise than in the course of his duty" appears also in section 45(2), which makes it an offence for a person engaged in the running of a public telecommunication system to disclose to any person the contents of any statement of account specifying the telecommunication services provided to another person by means of that system. These provisions contemplate that a person may be "engaged in" the running of a telecommunication system and yet at the same time be acting "otherwise that in the course of his duty". All the offences mentioned in section 9(4)(a) of the 1985 Act involve unlawful acts by persons referred to in section 9(2) which are outwith or contrary to their duty or their instructions. Unless the context requires otherwise, the words "engaged in" ought to be given the same meaning in section 9(2) as they have for the purposes of section 9(4)(a).

13. Then there is the prohibition in section 9(1)(a). It extends to evidence or cross-examination tending to suggest that an offence under section 1 has been committed by any of the persons mentioned in section 9(2). In Morgans v Director of Public Prosecutions [2001] 1 AC 315, 406 it was recognised 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) 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. An anomaly of the same magnitude would result if the words "engaged in" were to be read in such a way as to confine the persons mentioned in section 9(2)(b) and section 9(2)(c) to persons who were acting within the scope of their instructions or their employment. This would mean that a person's departure from the scope of his authority or the instructions given to him by the Post Office or the telecommunications operator, such as where he carried out the intercept for his own private purposes or those of a third party by whom he had been threatened or been bribed, would render admissible evidence which if it had been obtained within his authority or instructions would have been inadmissible. The scheme of the Act suggests strongly that no use of the intercept should be permissible irrespective of the question whether it was lawful or had been authorised or instructed by the telecommunications operator.

14. I would hold therefore that the Court of Appeal were wrong to find that there was nothing in the 1985 Act to preclude the introduction into evidence of the interception of the appellant's telephone call and of the contents of the intercept. In my opinion the effect of section 9(1) of the Act is that this evidence was inadmissible.

15. Mr Emmerson submitted that the effect of section 1 and section 9 of the 1985 Act, taken together, was to prohibit the use at interview of an intercept which would be inadmissible in evidence at trial. He said that there was an implied statutory prohibition against its use in these circumstances. Alternatively he submitted that it would have been wrong for the trial judge, had he appreciated that the intercept was inadmissible, to have admitted the confession evidence in view of the fact that the transcript of the intercept was inadmissible. He made it clear that he was not seeking to suggest as a general proposition that material which was inadmissible in evidence could not be used when a person was being interviewed. There is ample authority to the contrary. In Fox v Chief Constable of Gwent [1986] AC 281, 292 Lord Fraser of Tullybelton referred to the well established rule, recognised in R v Sang [1980] AC 402, that apart from confessions, to which special considerations apply, any evidence which is relevant is admissible even if it has been obtained illegally. If that rule is applied, the fact that the appellant was confronted with the intercept in the course of his interview would not of itself render his confession inadmissible.

16. Section 9 of the 1985 Act does not in terms prohibit the use at a person's interview of an inadmissible intercept. Mr Emmerson said that the prohibition was to be found by necessary implication from sections 1 and 9 of the Act, read alone or in conjunction with article 6 of the Convention. His proposition was that, as the intercept evidence was rendered inadmissible, it necessarily followed that it was unlawful to deploy it in a person's interview for the purpose of eliciting a confession which was to be used against him in evidence at his trial. The basis for this proposition lay in the rules about disclosure which were established in R v Preston [1994] 2 AC 130 and Morgans v Director of Public Prosecutions [2001] 1 AC 315. The duty to give complete disclosure of unused materials does not extend to any material obtained by means of an interception which has been withheld from the prosecutor, whether or not it was obtained under a warrant or was obtained consensually. He said that the use of such material in an interview would put the defence at an unfair disadvantage, as the police would be free to put unfavourable material to the accused without being under any corresponding obligation to disclose any favourable interception material. This was inconsistent both with the concept of fairness at common law and with the principle of equality of arms between the prosecution and the defence which is inherent in the requirement of fairness under article 6(1) of the Convention: see Jasper v United Kingdom (2000) 30 EHRR 441.

17. I am not persuaded that these considerations demonstrate by necessary implication that the effect of sections 1 and 9 of the 1985 Act is that an inadmissible intercept can never be used by the police at interview. Three factors seem to me to indicate the contrary. The first is the general rule that the test of admissibility is whether the evidence is relevant. The fact that it was obtained illegally does not render it inadmissible if the evidence is relevant. From this it follows that the use at a person's interview of illegally obtained material does not of itself render evidence of what was said at that interview inadmissible. It is well established that the police can put to a suspect at interview information available to them, such as the contents of a confession by another suspect, which would not be admissible against him in evidence. The second is the fact that Mr Emmerson's proposition, if sound, would extend to cases where there had been a frank and full disclosure not only of the fact of the intercept but also of all the intercepted material. The present is indeed such a case. It is plain from the passage which I quoted at the outset that the appellant knew that Mr Page was in a position to intercept the contents of his telephone conversations with Christine Page illegally. He was shown a full and accurate transcript of the conversation which was said to be incriminating. There is no suggestion that any trick or improper pressure was brought to bear upon him, that he was misled or that his confession when he was shown the tape and the transcript was other than voluntary. There was no inequality of arms here, as nothing was withheld from him. The better view therefore is to approach each case on its own facts as to the question whether or not the use of the intercept at the interview was unfair. The third is that section 78(1) of the Police and Criminal Evidence Act 1984 provides the essential safeguard that is needed to ensure that the accused receives a fair trial. Section 78(1) provides:

The scope of this discretionary power is plainly wide enough to enable the trial judge to take into account any disadvantage that may result from the rules about the non-disclosure of intercepts.

18. There are other considerations too which seem to me to indicate clearly that an absolute rule against the use of inadmissible intercepts in a police interview is not to be read into section 9 of the 1985 Act. As Lord Steyn said in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118E, the purpose of the criminal law is to permit everyone to go about their daily lives without fear or harm to person or property. It is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must, of course, be fairness to all sides. But in the context of the criminal law the interests of the victim and the public interest must be taken into account as well as that of the accused. A rigid rule which excluded the use in all cases of all inadmissible intercepts at a person's interview would go further than was necessary to protect the accused. It could create an imbalance in his favour which would operate against the public interest, and that of the victim, when an alleged crime was being investigated. I do not think that a rule in such absolute terms can be justified.

19. It was crucial to the success of the prosecution case that the appellant's confession was accepted by the jury as genuine. The other facts and circumstances of the case, while indicating motive, had no direct bearing on this issue. But, once the intercept was admitted into evidence and the full text of the interview was presented to the jury unedited, the whole case against him fell into place. Powerful support for the proposition that the confession was genuine was afforded by the appellant's reaction as soon as he was made aware of the intercept. He confessed without waiting for the contents of the transcript of his telephone conversation with Christine Page to be put to him. By the time the contents were put to him it was all over. The contents were used simply to confirm what he had already said. The question is, as Mr Houlder QC for the Crown accepted, whether the jury would inevitably have convicted if the transcript of the interview had been edited so as to exclude all mention of the intercept and the transcript of the intercept itself had been withheld from them.

20. I am unable to say that this high test is satisfied in this case. It is always a matter for concern when an accused is convicted solely on the basis of a confession which he has given to the police. In the interests of fairness to the accused it is right that one should look for some other factor in the evidence before the jury that indicates that the confession was genuine. For the reasons which I have just given, I consider that that other factor was before the jury when they were told about the fact and contents of the intercept and were able to observe its effect on the appellant when he was being interviewed. But once that element is stripped out of the case the position is far less clear and, in my opinion, quite uncertain. All one is left with is the progress of the interview from its initial stage when the appellant made no admissions to the later stage when, necessarily without explanation, he changed his position and began to admit his part in the offence. Coupled with that admission however were remarks from which it might be inferred that he was intent on sheltering Christine. In the absence of evidence about the intercept the jury might have had at least some doubt as to whether his confession was genuine. This leads to the inevitable conclusion that the conviction was unsafe.

21. For these reasons, and those given by my noble and learned friend, Lord Hobhouse of Woodborough, with which I agree, I would allow the appeal and set aside the conviction.

22. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Hobhouse of Woodborough. For the reasons which they give I also would allow this appeal.

23. On 24 March 1998 after a trial in the Crown Court at Manchester before Judge Lewis and a jury, Ian Sargent, the Appellant, was convicted of conspiracy to commit arson being reckless as to whether the life of Neil Page would thereby be endangered contrary to s.1 (1) of the Criminal Law Act 1977 and was sentenced to 3 years imprisonment. He appealed to the Court of Appeal, Lord Bingham of Cornhill CJ, Kennedy J and Jackson J, who dismissed his appeal but certified two points of law as being of general public importance. These are:

"Is it the law that material obtained illegally through the public telecommunications system by means of an unauthorised telephone tap by a person committing an offence under s.1 of the Interception of Communications Act 1985 is admissible in evidence?" and

"Where material has been obtained in contravention of a statutory prohibition on interception and such material is inadmissible in evidence but the material is used by the Police in an interview to obtain a confession, should the Judge exercise his discretion at Common Law or under s.78 of the Police and Criminal Evidence Act 1984 to exclude that confession?"

The relevance of these questions turns primarily upon the application of s.9 of the 1985 Act to the particular facts of this case.

24. Neil Page was the former husband of Christine Page. The Appellant was a lover of Christine Page. There was continuing ill will between Neil and Christine Page with the Appellant taking the part of Christine. In the early hours of 29th July 1997, someone set fire to the car belonging to Neil Page which was standing close to the garage door of his house. The police were on the scene almost at once and the fire brigade were called and were able to put the fire out quickly. The house was damaged but not seriously. By chance, Neil Page was away in Blackpool that night so his life was never in fact at risk. He returned the next morning and discovered what had happened. He suspected that Christine and the Appellant may have had something to do with it. Neil worked as a telephone engineer with a telephone company called Nynex Cable Company ("Nynex"). At his workplace his job included making use of equipment there to check telephone lines and their use and it enabled him to monitor and record telephone calls. He knew that Christine had a telephone line supplied by Nynex. His authority to use the equipment was strictly limited and did not allow him to use it for any private purpose. He had got into trouble previously for misusing the equipment. Notwithstanding this, he took the opportunity that morning to put a 'tester' on Christine's telephone line so that if any calls were made on the line that morning he would be able to overhear what was said. He wanted to discover whether Christine had anything to do with the burning of his car. When, in mid-morning, a call was made on the line, he connected the headphones and listened in on the conversation. He recognised the voices of Christine and the Appellant and things which they said led him to believe that they were talking about the burning of his car. He connected the line to record and recorded the conversation on a tape and later made a transcript of what he thought were the relevant and incriminating parts. He later gave the tape and partial transcript to D.C. Hussey who was handling the investigation. This led to Christine and the Appellant being arrested and questioned.

25. In interview the Appellant initially denied any involvement or knowledge of how the car came to be burnt. But when he learnt of the existence of the tape recording made by Neil Page and was shown it, he began to make admissions. The gist of the admissions was that he had paid a man £100 to burn the car on the driveway of the house in order to frighten Neil and get back at him for the way he had treated Christine. After he had made these admissions D.C. Hussey took him through the partial transcript and obtained his confirmation of what had been said. He throughout clearly appreciated that the tape had been unlawfully made. He showed a concern to shield Christine from any responsibility for what had happened. The Appellant was charged and in due course committed for trial. It seems that Christine was not charged. At the Appellant's trial evidence was given by Neil of the interception of the call and the making of the tape and the transcript, both of which he produced and were made exhibits in the case. D.C. Hussey gave evidence of what the Appellant had said in interview and a transcript of the material parts of the interview was given to the Jury. It was the evidence of Neil and D.C. Hussey which provided the incriminating link between the Appellant and the burning of the car. The Appellant elected not to give evidence. Christine was not called as a witness by either side. After a summing up which is not criticised and a retirement of two hours including the midday adjournment, the jury returned a unanimous verdict of guilty.

26. It is not in dispute that Neil Page had committed an offence under s.1 of the 1985 Act when he intercepted the call on Christine's telephone line. S.1 makes it an offence to intercept a communication in the course of its transmission on a public telecommunication system intentionally unless it is done in obedience to a warrant or in belief that one of the parties has consented. There is a general exclusion for communications "intercepted for purposes connected with the provision of … public telecommunication services": s.1(3)(a). Neil could not have said that his interception was for any such purpose. His purposes were purely private and he had no warrant or other justification. With the consent of the Director of Public Prosecutions he could have been prosecuted but he was not and was simply cautioned.

9. (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) the Post Office and any person engaged in the business of the Post Office; and

(a) in relation to proceedings for a relevant offence or proceedings before the Tribunal [established under the Act]; 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.

(b) an offence under section 1 or 2 of the Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which tends to suggest as mentioned in subsection (1) above;

(bb) an offence under section 4 of the Official Secrets Act 1989 relating to any such information, document or article as is mentioned in subsection (3)(a) of that section;

(d) attempting or conspiring to commit, or aiding, abetting, counselling or procuring the commission of, an offence falling within any of the preceding paragraphs; and

(e) contempt of court committed in the course of, or in relation to, proceedings for a relevant offence."

28. This 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 [2001] 2 WLR 463). As Lord Mustill put it in Preston at p.170:

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 s.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:

29. Therefore, unless the present case can be brought within one of the limitations to the operation of s.9(1), the evidence of Neil Page's telephone tap had to be excluded. The exclusion in s.9(1) is limited by the provisions of subsections (2) and (3). Under subsection (3) the exclusion does not apply to the giving of evidence in proceedings under s.1 of the Act or under a number of similar statutory provisions listed in subsection (4) nor to proceedings before the statutory tribunal constituted under s.7. Similarly, once a person has been convicted of the offence under s.1, the prohibition ceases to apply presumably because that means that the relevant facts have entered the public domain. These limitations do not apply to the present case because the prosecution of the Appellant was for an offence unrelated to any interception and because Neil had never been prosecuted for his offence under s.1, merely cautioned. That leaves subsection (2). This restricts the persons to whose involvement in the interception s.9(1) applies. The person has to fall within one of the three classes set out in s.9(2). Neil was not an officeholder under the Crown nor was he employed by or engaged in the business of the Post Office. The question is therefore whether he was a person engaged in the running of a public telecommunication system. It is not in dispute that Nynex's system was a public telecommunication system. It is also not in dispute that the question whether he was so engaged must be answered by reference to the time when he was committing the offence under s.1, ie intercepting the telephone call between the Appellant and Christine.

30. The Court of Appeal held that what Neil did did fall outside s.9. Differing from the trial judge, Lord Bingham LCJ delivering the judgment of the court said:

This approach adopts a criterion similar to scope of employment and the inclusion of the phrase "acting as such" (which I have emphasised) confirms this.

31. There is a reference to the purpose for which the interception has been made in s.1(3)(a) already referred to. If the call had been intercepted for a purpose connected with the provision of a public telecommunication service, it would have not come within s.1 and no offence under that section would have been committed. The question in the present case under s.9 only arises because the intercept was for an alien purpose. S.9(2) is concerned with defining the three categories of persons to whom s.9(1) refers. It already presupposes that they have (or may have) committed an offence under s.1, ie that, where a public telecommunications employee is concerned, his purpose was not connected with the services which his employers provided. It is in this context that s.9(2)(b) and (c) have to be construed. The effect of the Court of Appeal's interpretation would be to confine these paragraphs to authorised acts of the employee done in the interests of his employer. This focus upon the act or conduct of the person both detracts from the force of s.1(3)(a) and conflicts with the drafting of s.9(2) which is concerned with categorising the person. The words "engaged in" denote the person's employment at the relevant time not whether he was acting within his authority.

32. On the facts of the present case, on the morning of 28 July, Neil was at his place of work, engaged on doing his job, using his employer's equipment and having access there to the Nynex lines. There is no suggestion that what he did in putting a tester on to Christine's line and then monitoring it was not the same as or similar to the acts which he was ordinarily employed to do for his employers nor that they did not ordinarily form part of acts incidental to the provision of a public telecommunication system. What distinguished what he did that morning from what he did on other mornings was not what he did but his purpose in doing it; the acts were done for an unlawful and unauthorised purpose. But this does not alter the fact that he was that morning a person engaged in the running of a public telecommunication system. Sections 1 and 9 clearly contemplate and cover the misuse of an employee's position. Further the clear and express intent of s.9(1) is to exclude evidence which touches upon whether the person concerned was acting lawfully or not, that is to say, whether he was acting with lawful authority or not. The interpretation put on s.9(2) by the Court of Appeal would require the court to inquire into the lawfulness of the interceptor's conduct before deciding whether he was a person who came within s.9(2). Such an inquiry would expressly conflict with s.9(1). The interpretation adopted by the Court of Appeal cannot stand.

33. On the facts of this case Neil was at the material time a person engaged in the business of running a public telecommunication system. He took advantage of the opportunity it gave to intercept the Appellant's communication with Christine contrary to s.1. The evidence of his having done so and the fruits of his interception were accordingly inadmissible under s.9(1) and the statute required that they be excluded from the evidence adduced at the trial. The Appellant was convicted in part on inadmissible evidence.

34. At the trial the defence moved to exclude both the intercept evidence and the confessions in interview. Judge Lewis held that Neil was a person falling within s.9(2)(c). He did not have the advantage of the decision in Morgans. He therefore held that the exclusion of evidence did not extend to the fruits of the interception. There was nothing which made the interview confessions inadmissible. He considered the fairness of admitting the evidence and decided, in the exercise of his discretion under s.78, to allow the intercept and confession evidence to be given. In his summing up, the judge reminded the jury of this evidence.

35. In the Court of Appeal, the question under s.9 was, as I have stated, decided in favour of the Crown. The remaining question for the Court of Appeal was therefore whether the evidence should be excluded on the ground of some rule of policy to be derived from the 1985 Act or human rights law or the common law or under s.78. The Court of Appeal upheld the judge's ruling that it was fair to admit the evidence.

36. Before your Lordships' House the Appellant has argued that the Court of Appeal was wrong on both of the issues before it - both the narrower question under s.9 and the broader question of the exclusion of evidence on one or more of the grounds mentioned. The evidence upon which the Appellant was convicted included both the intercept and the interview. If the exclusion of the intercept should have led to the exclusion of the interview, or at least the incriminating parts of the interview, there would be no sufficient evidence to support the conviction of the Appellant and his appeal should clearly be allowed. It is therefore appropriate to refer briefly to the hypothetical situation of what the judge should have done about the interview evidence if he had ruled (as he should have done) that the intercept evidence was inadmissible. The interview transcript would have had to be edited so as to remove the direct and indirect references to the intercept. This could have been done. In my judgment what was then left could have been properly put before the jury. D.C. Hussey conducted the interview in essentially three sections. First he obtained the Appellant's accounts of his movements and his blanket denials of any involvement saying that he had known nothing of the incident until he had driven past Neil's house the following morning on his way to work and seen the burnt out car. Secondly, he told the Appellant of the arrest of Christine and the existence of the taped conversation and questioned the Appellant more closely as to his involvement in the incident, the Appellant making detailed and incriminating admissions. Finally, he took the Appellant through the transcript of the taped conversation obtaining confirmation of what the Appellant had said earlier in the interview. The incriminating admissions made during the second part of the interview were freestanding, although no doubt motivated by the Appellant's knowledge that he had incriminated himself during the telephone conversation. To exclude all reference to the telephone conversation would in no way have been adverse to the Appellant. There was no entrapment, oppression or deceit of the Appellant. No problem of non-disclosure arose. The Appellant clearly understood what had happened, that Neil had acted illegally and that the tape contained, as it did, a recording of the bulk of his telephone conversation the following morning with Christine. His case at the trial was that he had made the admissions to D.C. Hussey which he did because he was seeking to shield Christine not because they were true. Therefore, had the Judge appreciated that he must exclude the evidence of the intercept, he could have required the transcript of the interview to be edited accordingly and the oral evidence of Neil and D.C. Hussey to be similarly limited. In my judgment a fair trial would have been possible on that basis. The Judge was not required to exclude the evidence of the confessions made in interview.

37. However that was not what occurred. The inadmissible evidence was admitted. The jury were therefore left with an almost unanswerable case against the Appellant. He had incriminated himself twice, once in the telephone conversation and a second time in interview. He could try to explain away what he said in interview by suggesting that he was trying to shield Christine but this provided no explanation for what he had said during the telephone conversation. The comment made by the judge during his summing up was inevitable:

If the intercept evidence had been excluded, the jury would have heard of only one set of admissions, those made during the second part of the interview. The case against him would have still been strong and, it may be thought, would have been likely to have led to his conviction. But it is far from impossible that the exclusion of the intercept evidence would have enabled the defence case to be put more convincingly, perhaps with evidence from the Appellant himself, and might have enabled the defence to raise a doubt in the minds of the jury. In my judgment the evidence which was wrongly admitted was relevant and cogent. The statute required that it be excluded. The Appellant's trial cannot be said to have been in accordance with the law nor can it be said that his conviction was in the circumstances safe.

38. It follows that the Appellant's appeal should be allowed and his conviction set aside. The answers to the certified questions have in substance been provided by earlier decisions of your Lordships' House. The exclusion of evidence required by s.9 of the Interception of Communications Act 1985 extend to the fruits of the interception as well as to the interception itself: Morgans v DPP (sup). The fact that an interception was unlawful does not itself preclude the use of the material so obtained; the criteria to be applied are those contained in s.78 of the Police and Criminal Evidence Act 1984: R v Khan [1997] 2 AC 558 and the same case in the European Court of Human Rights, Khan v United Kingdom (2000) 8 BHRC 310 and R v P (sup).

39. I have had the advantage of reading the speech of my noble and learned friend Lord Hope of Craighead in which he gives his reasons for agreeing that the appeal should be allowed. I agree with what he says. As regards the submission of counsel for the Appellant that the unlawfulness of the intercept itself, ipso facto, meant that evidence could not have been given of the police interview, the submission was clearly unsound and contrary to established authority. Cases such as Sang and Khan (sup) decide that the use of illegally obtained material in the course of the investigation of a suspected crime does not, without more, render any evidence obtained as a result of such use inadmissible. As previously stated, s.78 (which has been upheld by the ECHR) provides the criterion for deciding whether to exclude such evidence. It requires the trial judge to assess the fairness of admitting it "having regard to all the circumstances, including the circumstances in which the evidence was obtained". Neither the inadmissibility of the intercept evidence nor the fact that it was obtained unlawfully would necessitate the exclusion of the interview evidence provided that its admission would not have such an adverse effect on the fairness of the proceedings that the judge ought not to admit it. This is the point I have discussed in paragraph 36 above.

United Kingdom House of Lords Decisions