Morgans v Director of Public Prosecutions

Evidence of the contents of a communication intercepted in the course of transmission through a public telecommunications system by a person specified in section 9(2) of the Interception of Communications Act 1985 is inadmissible by necessary implication. The rule applies whether or not a warrant was issued and whether or not the interception was consensual.

The exclusion does not apply where the interception was made for a purpose specified in section 1(3), or where the proceedings concern a relevant offence or are before the statutory tribunal. A communication includes an electrical impulse or signal sent after connection to a telephone network, irrespective of its length, content or the response elicited.

The appellant was convicted of computer misuse offences and two offences under section 42 of the Telecommunications Act 1984. His appeal to the Crown Court was dismissed. On appeal by case stated, the Divisional Court allowed his appeal against the computer misuse convictions because they were out of time, but upheld the telecommunications convictions: [1999] 1 WLR 968.

The prosecution had proved the telecommunications offences by comparing company records with data obtained from a device fitted to the appellant's telephone line. The device recorded digits dialled both before and after connection. The evidence obtained after connection was essential to prove that the appellant had accessed company networks and made calls without charge.

The House considered whether those signals were communications and whether sections 1 and 9 of the Interception of Communications Act 1985 prohibited evidence derived from an unwarranted interception.

1. The appeal was allowed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Nicholls of Birkenhead, Lord Steyn and Lord Clyde agreed with his reasons. Lord Mackay of Clashfern agreed with the result and Lord Hope's reasoning, subject to his observations about the limits of the statutory scheme.

2. Per Lord Hope, the digits dialled after connection to the company networks were a communication within section 1(1) of the Interception of Communications Act 1985. A communication need not comprise an entire message. An electrical impulse or signal transmitted through the public telecommunications system is sufficient, irrespective of its content, duration or the response elicited. The Monolog device therefore intercepted communications when it recorded signals sent after connection.

3. Per Lord Hope, evidence of material obtained by a person specified in section 9(2) through interception of a section 1(1) communication is inadmissible by necessary implication. This rule applies whether the interception was warranted, unwarranted or consensual. A contrary distinction would make lawfully warranted material inadmissible while permitting unlawfully obtained material, whose lawfulness could not be investigated because of section 9.

4. The exclusion is subject to the statutory scheme's limits. It does not extend to interceptions made for the purposes specified in section 1(3), nor to proceedings for a relevant offence within section 9(4) or proceedings before the tribunal established under section 7. Lord Mackay likewise considered that section 9 should not apply to proceedings enforcing enactments concerning postal or telecommunications services, or to the specified wireless-telegraphy context. If an interception relied upon in such proceedings had in fact been undertaken for an unrelated purpose, its product should not be admitted.

5. The Court of Appeal decision in Reg v Effik (1992) 95 Cr App R 427 had been overruled in its entirety by Reg v Preston [1994] 2 AC 130. It did not survive for unwarranted or consensual interceptions. Reg v Rasool [1997] 1 WLR 1092 and Reg v Owen [1999] 1 WLR 949 were accordingly overruled.

6. Per Lord Hope, consistently with the statutory scheme, the duty of complete disclosure of unused material does not extend to intercepted material withheld from the prosecutor, whether or not a warrant was obtained. The principal intercepted evidence was inadmissible and essential to the convictions. The appeal was therefore allowed.

1. House of Lords: The appeal was allowed unanimously. The Divisional Court's decision upholding the two convictions under section 42 of the Telecommunications Act 1984 was reversed.
2. Divisional Court of the Queen's Bench Division: The appeal by case stated was allowed in respect of five time-barred charges under section 1(1) of the Computer Misuse Act 1990, but dismissed in respect of the two telecommunications charges: [1999] 1 WLR 968.
3. Crown Court at Southwark: The appellant's appeal against conviction was dismissed.
4. Bow Street Magistrates' Court: The appellant was convicted of five computer misuse offences and two offences of fraudulent use of a telecommunications system.