W, R v

Regulation of Investigatory Powers Act 2000, section 17 does not prevent either party from adducing evidence, asking questions or making assertions to establish whether a telecommunications system is public or private. That is so whether the interception occurred before or after the Act came into force.

Where an interception on a private system was made by, or with the consent of, the person entitled to control that system, section 1(6) excludes criminal liability. Section 17 is therefore not engaged merely by investigating and proving those facts. The contents may be admitted, subject to the court's discretion under section 78 of the Police and Criminal Evidence Act 1984. If the system was public, or the required private-system consent is absent, the contents are inadmissible.

The Attorney-General referred questions of law following the directed acquittal of W and others at Leeds Crown Court. The prosecution relied on recordings of calls made from police-station telephones. It contended that the recordings were made within a private system. The defence contended that the relevant system was public.

The trial judge held that section 17 of the Regulation of Investigatory Powers Act 2000 prevented the defence from investigating or asserting that the system was public. He then excluded the prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984 because that ruling made its admission unfair. The central questions concerned the proper scope of section 17, both for pre-Act interceptions and for intercepts on private systems made with the controller's consent.

1. The reference was answered in favour of the Attorney-General. Section 17(1) of the Regulation of Investigatory Powers Act 2000 did not bar evidence, questions or assertions directed to whether the relevant telecommunications system was public or private. Such an inquiry did not disclose intercept contents and did not, without more, tend to suggest an offence under the earlier statutory regime.

2. For interceptions made in 1996 and 1997, the question had to be resolved by reference to section 17 as it applied to conduct formerly regulated by the Interception of Communications Act 1985. The subsequent criminal regulation of interceptions on private systems could not enlarge section 17's effect in relation to that earlier conduct. The court followed the approach in R v Ahmed and R v Allan, Bunting and Boodhoo, and regarded R v Effik as approving the trial process of determining whether interception occurred on a public or private system.

3. For post-Act private-system interceptions, section 1(6) was decisive. An interception made by the controller, or with the controller's consent, is excluded from criminal liability. In that situation, evidence of the contents and surrounding circumstances does not tend to suggest an offence within section 17(2)(a). Section 17 therefore does not prevent the factual inquiry or the adducing of the resulting evidence.

4. The court distinguished the secrecy rationale governing public-system interception under the 1985 legislation, discussed in Morgans v DPP [2001] 1 AC 315 and R v Sargent [2001] UKHL 54. That rationale did not require exclusion of lawfully controller-authorised private-system intercepts. Admissibility remained subject to section 78 of the Police and Criminal Evidence Act 1984.

5. Accordingly, the trial judge should have heard evidence and argument on whether the system was private and, if so, whether the controller had consented. If either issue were answered negatively, the intercepted contents would be inadmissible. The court proposed, subject to submissions, to refer the questions to the House of Lords under section 36(3) of the Criminal Justice Act 1972.

• Court of Appeal (Criminal Division): On an Attorney-General's reference under section 36 of the Criminal Justice Act 1972, the court answered the questions of law and proposed referral to the House of Lords.
• Crown Court at Leeds: The trial judge excluded the interception evidence under section 78 of the Police and Criminal Evidence Act 1984; the Crown offered no evidence and the defendants were acquitted by direction on 7 May 2002.