Law Report: Lords rule on phone tap material: Regina v Preston and others - House of Lords (Lord Keith of Kinkel, Lord Templeman, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Mustill), 4 November 1993

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The Interception of Communications Act 1985 required the destruction of material obtained by authorised telephone tapping even if the material might assist an accused at his trial.

The House of Lords unanimously dismissed appeals by five appellants from the Court of Appeal's dismissal (1992) 95 Cr App R 355 of the appellants' appeals against convictions.

The appellants were convicted of conspiracy to evade the prohibition on the importation of cannabis resin. The appellants denied any part in the conspiracy and raised the defence of duress. The prosecution relied on, inter alia, telephone calls passing between the appellants.

The possibility of intercepted telephone calls was raised in cross-examination. The defence raised the possiblity of disclosing intercepted material which might assist the defence. Section 2 of the Interception of Communications Act 1985 permits the Secretary of State to issue a warrant to intercept messages by post or a public telecommunications system 'for the purpose of preventing or detecting serious crime'.

By section 6, any intercepted material was to be destroyed as soon as its retention was no longer necessary for the purpose of preventing or detecting serious crime. By section 9, no evidence should be adduced in court proceedings and questions asked in cross-examination which tend to suggest that a warrant had been issued.

Prosecuting counsel was instructed by the Attorney General that it was not counsel's duty to acquaint himself with any material relating to any interception, since nothing which might be disclosed to him could, under section 9, be put in evidence.

Sydney Kentridge QC, who did not appear below, and Simon Stafford Michael (Offenbach & Co); Geoffrey Robertson QC, who did not appear below and Roderick Price (Offenbach & Co); Sir Ivan Lawrence QC, who did not appear below, and Lionel Lassman (Ralph Haeems & Co); John Perry QC, who did not appear below and Brendan Keany (Joy Merriam & Co); Andrew Collins QC, who did not appear below and Michel Massih (Lizzimore Braithwaites) for the appellants; Alan Moses QC, who did not appear below, John Aspinall and Philip Havers, who did not appear below (CPS) for the Crown.

LORD MUSTILL said that the Attorney General's instruction to prosecuting counsel was unsustainable. The fact that an item of information could not be put in evidence did not mean that it was worthless. The test was materiality, not admissibility. The essential function of the investigating and prosecuting authority was to ensure that the prosecution of a suspected offender was conducted fairly. If the Attorney General was right it must follow that, even if the contents of the intercept would clearly demonstrate to prosecuting counsel that the accused person was innocent, he must be kept in ignorance of it, and in the interests of secrecy left to press unwittingly for an unjust conviction. There was no sound reason for refusing disclosure to prosecuting counsel.

However, on a narrow reading of section 2 the purposes for which the grant of a warrant were necessary did not extend to the prosecution of suspected offenders and therefore the destruction of material was an act which those responsible were bound by section 6 to perform. The apprehensions voiced by counsel for the appellants could not prevail over the plain intent and wording of the Act. The history, structure and terms of the statute were such that the prosecution's duty to give complete disclosure of unused material to the defence had to give way. The decision in R v Effik (1992) 95 Cr App R 427 would be overruled.

In the conduct of the trial two important errors were made. First, the exclusion of the appellants and their solicitors for long periods. Second, counsel had been prevented from telling their own clients what was going on. However, applying the proviso of section 2(1) of the Criminal Appeal Act 1968, the unsatisfactory aspects of the trial did not case doubt on the reliability of the verdicts.

Ying Hui Tan, Barrister