Regina v Sargent

The House of Lords held that section 9(1) of the Interception of Communications Act 1985 operates to exclude from evidence the product and fruits of an unlawful interception where the interceptor is a person "engaged in the running of a public telecommunication system" within the meaning of section 9(2)(c), irrespective of whether the interceptor was acting within the scope of his duties. The court rejected an argument that the unlawful character of such an intercept ipso facto precludes any use of the material in police interviews to obtain confessions. Instead the admissibility of confession evidence obtained after deployment of unlawfully intercepted material is to be judged by the ordinary fairness test, notably section 78 of the Police and Criminal Evidence Act 1984 and established common law principles (for example R v Sang). Applying those principles to the facts, the court found the conviction unsafe because the jury had been exposed to inadmissible intercept evidence that materially supported the confession evidence.

This was an appeal against conviction for conspiracy to commit arson (contrary to section 1(1) of the Criminal Law Act 1977). At trial in the Crown Court at Manchester the appellant was convicted after the jury heard evidence of an audio tape and a transcript made by a telecommunications employee, Neil Page, who had intercepted the appellant's telephone conversation with a third party using employer equipment for private purposes. The intercept had been given to police and used in interview; the appellant made admissions after being shown the tape and transcript.

On appeal to the Court of Appeal the conviction was dismissed only in the sense that the Court of Appeal rejected the defendant's submissions and certified two questions of law of general importance concerning (i) whether material obtained illegally by an unauthorised telephone tap by a person committing an offence under section 1 of the Interception of Communications Act 1985 was admissible in evidence, and (ii) whether a confession elicited after the police used such material at interview should be excluded under the common law or under section 78 of PACE. The appeal was brought to the House of Lords.

The issues framed and decided by the House of Lords were: (i) the meaning of the words "engaged in the running of a public telecommunication system" in section 9(2)(c) of the 1985 Act and whether they require that the interceptor be acting within the scope of his employment, and (ii) whether the unlawful interception itself prevented the use of the intercepted material in police interviews so as to render any resulting confession inadmissible.

The Lords concluded that "engaged in" in section 9(2) denotes the person’s status or position (ie employment or engagement with the operator) at the relevant time and does not require the interceptor to have been acting within the scope of his instructions or duties. Thus the interception by Mr Page brought the material within the statutory exclusion in section 9(1) and made the intercept (and its fruits) inadmissible at trial. The court rejected the submission that inadmissibility in itself forbids use of the material at interview; instead admissibility of confession evidence should be judged by the fairness discretion in section 78 of PACE and common law principles. Applying those criteria, the Lords found that because the jury were told about the intercept and its contents and saw the appellant’s reaction, the confession evidence was materially supported by inadmissible material and the conviction was unsafe. The appeal was allowed and the conviction set aside.

Appeal allowed. The House of Lords held that section 9(1) of the Interception of Communications Act 1985 renders inadmissible the product and fruits of an unlawful interception carried out by a person "engaged in the running of a public telecommunication system" within section 9(2)(c) regardless of whether the interceptor acted within the scope of his duties. The court further held that the unlawful nature of an intercept does not automatically render inadmissible a confession subsequently obtained after the police used the material in interview; instead the judge should apply the fairness discretion under section 78 of the Police and Criminal Evidence Act 1984 and the common law. Applying those principles on the facts, the conviction was unsafe because the jury had been exposed to inadmissible intercept material that materially supported the confession, and the conviction was set aside.

Convicted after trial at the Crown Court at Manchester. Appeal to the Court of Appeal (Criminal Division) dismissed but two questions of law were certified. Appeal to the House of Lords allowed: [2001] UKHL 54.