Law Report: Tap on cordless telephone admissable: Regina v Effik and another. House of Lords (Lord Templeman, Lord Roskill, Lord Ackner, Lord Oliver of Aylmerton and Lord Mustill), 21 July 1994

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A cordless telephone was not 'comprised in' a public telecommunications system within the Telecommunications Act 1984, and unauthorised interception of conversations, by recording signals transmitted from the base unit to the handset using a radio receiver, was not an interception of a communication in the course of its transmission by means of a public telecommunication system within section 1(1) of the Interception of Communications Act 1985.

The House of Lords dismissed the appellants' appeals against the Court of Appeal's dismissal of their appeals against conviction for conspiracy to supply drugs.

The prosecution evidence consisted of calls between each appellant and a third party using a BT approved Geemarc 400B cordless telephone. The apparatus consisted of a handset and base unit connected to mains electricity, and to a telephone socket. Police officers, without a warrant, used a radio receiver to pick up the signals. The trial judge rejected the appellants' submission that evidence of the calls was inadmissible under the Interception of Communications Act 1985, section 1(1) of which renders it an offence intentionally to intercept 'a communication in the course of its transmission by . . . a public telecommunication system'.

John Roberts QC and Thomas Buxton (Maxwells) for the appellants; Alan Moses and Philip Havers (CPS) for the Crown.

LORD OLIVER said that the 1985 Act was directed at the control of interception of communications on public systems. The cordless phone was a privately run system. The apparatus was not 'comprised in' the public British Telecommunications system although it was connected to it by means of the socket.

A communication through a telecommunication system consisted of a series of electronic impulses and what was actually intercepted by the police officers' radio receiver consisted of the impulses transmitted between the base unit and the handset, both of which formed part of a telecommunication system 'run' by the third party, but formed no part of the public system run by BT.

That did not provide a final answer to the question in section 1(1) posed by the words 'in the course of its transmission'. In R v Ahmed and others, unreported, 29 March 1994, the Court of Appeal (Criminal Division) concluded 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 . . . '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 the interception takes place at some other place or time. Finally, 'communication' . . . does not refer to the whole of a transmission . . . it refers to the telephonic communication which is intercepted in fact . . . that consists of . . . the electrical impulse or signal which is affected by the interception that is made.'

That statement of the legal result of applying the statutory provisions to the facts of the appeal could not be improved. The appeal would be dismissed.

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