E, R. v

For the purposes of Regulation of Investigatory Powers Act 2000, interception requires the making available of communications by interference with, or monitoring of, their transmission through a telecommunications system. A covert device which records a speaker’s voice from sound waves in the same place does not intercept the speaker’s telephone call merely because the words are simultaneously transmitted by telephone.

The statutory exclusion of intercepted material therefore does not apply to lawfully authorised surveillance recordings of one end of a mobile telephone call. The Directive and article 8 of the Convention require lawful regulation of surveillance, not exclusion at trial of material lawfully obtained under that regulatory framework. Codes of practice cannot alter the clear statutory meaning. Exclusion under section 78 remains governed by the statutory fairness test.

The appellant faced a Crown Court trial for conspiracy to supply controlled drugs. At a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, the judge ruled admissible recordings made by a covert listening device placed in the appellant’s car under Police Act 1997 and Regulation of Investigatory Powers Act 2000 authority.

The device recorded conversations in the car, including the appellant’s side of mobile telephone calls. On a pre-trial appeal under section 35 of the 1996 Act, the appellant contended that this was interception, making the telephone material inadmissible under RIPA, and that all the material should alternatively be excluded under section 78 of the Police and Criminal Evidence Act 1984.

The central issue was whether recording speech in the car while it was also spoken into a mobile telephone constituted interception in the course of transmission.

1. Appeal dismissed. The recordings were admissible. The covert device recorded the appellant’s speech from sound waves in the car. It did not intercept an electrical impulse or signal passing through a telecommunications system. The fact that the same words were, at the same time, transmitted by mobile telephone did not convert the independent recording into interception.
2. On the construction of sections 1 and 2 of the Regulation of Investigatory Powers Act 2000, interception concerns interference with or monitoring of the communication while it is transmitted through the telecommunications system. The court followed the established line of authority, including R v Smart & Beard [2002] EWCA Crim 772. Section 17 consequently did not bar the evidence. Had there been interception, its contents would have been inadmissible under section 17; no relevant exception under section 18 applied.
3. The court rejected the submission that Directive 97/66 or article 8 of the European Convention on Human Rights required a broader construction. RIPA regulates surveillance, including the monitoring of conversations, through Part II authorisation provisions. Neither the Directive nor article 8 requires a domestic rule excluding at trial lawfully obtained surveillance material. The statutory exclusion for interception is a distinct United Kingdom rule directed to wider public-interest concerns.
4. The relevant codes of practice could not prevail over the clear statutory meaning. Their more cautious language did not make this recording interception.
5. The alternative challenge under section 78 of the Police and Criminal Evidence Act 1984 also failed. The appellate court could interfere only if the judge had exercised the discretion unreasonably. There was no material failure to inform the authorising officers, no arguable infringement of article 8, and ample basis for the finding that the officers acted in good faith. An accused person’s own perception of bad faith is not the test; the question is whether admission would adversely affect trial fairness so that exclusion ought to follow.

• Court of Appeal (Criminal Division): dismissed the appellant’s pre-trial appeal under section 35 of the Criminal Procedure and Investigations Act 1996 against the admissibility ruling.
• Crown Court: at a preparatory hearing under section 29 of the 1996 Act, ruled the covert recordings admissible.