Regina v. Sargent

Section 9 of the Interception of Communications Act 1985 excludes evidence of an unlawful interception and its fruits where the interceptor belongs to a specified class. An employee is “engaged in” running a public telecommunication system by reason of employment or status. The exclusion applies even when the employee acts without authority and for private purposes.

An unlawful or inadmissible intercept may nevertheless be used during a police interview. A resulting confession is not automatically inadmissible. Its admissibility depends on the case-specific fairness test in section 78(1) of the Police and Criminal Evidence Act 1984. If inadmissible intercept evidence was placed before the jury and materially strengthened the prosecution case, the conviction cannot stand unless it would inevitably have followed without that evidence.

The appellant was convicted of conspiracy to commit arson after a telephone-company employee unlawfully intercepted and recorded an incriminating conversation. The police disclosed the recording during interview, after which the appellant confessed. Both the intercept and the interview were placed before the jury.

The Court of Appeal dismissed the appeal. It held that the employee was not “engaged in” running a public telecommunication system when acting privately and without authority. It certified questions concerning the admissibility of the intercept and the admissibility of a confession obtained after police use of inadmissible intercepted material.

The House considered whether sections 1 and 9 of the Interception of Communications Act 1985 required exclusion of the interception and its fruits, whether the confession also had to be excluded, and whether the conviction was safe.

1. The appeal was allowed unanimously and the conviction set aside. Lord Hope of Craighead and Lord Hobhouse of Woodborough delivered substantive speeches and agreed with each other. Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton agreed with their reasons.

2. Per Lord Hope and Lord Hobhouse, a person is “engaged in” running a public telecommunication system within section 9(2)(c) of the Interception of Communications Act 1985 by reference to employment or status, rather than whether the particular act was authorised or performed for the employer. The statutory scheme contemplated misuse of an employee’s position. Construing the phrase as requiring authorised conduct would also necessitate the very inquiry into the legality and authority of the interception which section 9(1) was designed to prevent.

3. The employee used his employer’s equipment at work to perform acts of the kind ordinarily forming part of his employment, although for an unlawful private purpose. He therefore remained within section 9(2)(c). Section 9(1) required exclusion both of evidence that the interception occurred and of its fruits. The Court of Appeal’s contrary construction was wrong.

4. Per Lord Hope and Lord Hobhouse, neither the unlawfulness nor the evidential inadmissibility of an intercept automatically renders a confession obtained after its use in interview inadmissible. Illegally obtained material may be used in investigating crime. The resulting evidence is governed by section 78(1) of the Police and Criminal Evidence Act 1984, which requires consideration of all the circumstances and the effect of admission upon the fairness of the proceedings. There had been no oppression, deceit, entrapment or non-disclosure. An edited interview containing the freestanding admissions could properly have been admitted.

5. The trial had not, however, proceeded on that basis. The jury received the inadmissible intercept, its contents and the appellant’s reaction to it. This produced two mutually reinforcing sets of admissions and made the prosecution case almost unanswerable. The House could not conclude that the jury would inevitably have convicted had those references been removed. The conviction was therefore unsafe.

1. House of Lords: Allowed the appeal unanimously and set aside the conviction: [2001] UKHL 54.

2. Court of Appeal (Criminal Division): Dismissed the appeal but certified two points of law of general public importance. No citation is stated in the judgment.

3. Crown Court at Manchester: The appellant was convicted by a jury of conspiracy to commit arson and sentenced to three years’ imprisonment.