Coulson & Anor v R

Regulation of Investigatory Powers Act 2000, section 2(7), extends the course of transmission of a communication to any period during which the transmitting telecommunications system stores it so that the intended recipient can collect it or otherwise access it. The extension is not confined to transient storage before first receipt or first access.

A voicemail remains in the course of transmission while it is stored within the network and remains accessible to its intended recipient, even after that recipient has listened to it. The statutory words contemplate a continuing state of affairs and expressly include a communication which has been transmitted. The applicable EU privacy directives did not require a narrower construction or prevent Parliament from affording greater protection.

Andrew Coulson, supported by Stuart Kuttner, was charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. The alleged substantive offence was unlawful interception of mobile voicemail messages under section 1(1) of the Regulation of Investigatory Powers Act 2000.

During a preparatory hearing in the Southwark Crown Court, Fulford LJ ruled that a voicemail stored on the mobile network remained in the course of transmission while the intended recipient could access it, whether or not the recipient had previously listened to it. Saunders J endorsed that ruling and granted leave to appeal.

The appeal concerned whether section 2(7) of the Act ended the relevant period of storage on the recipient’s first access, or continued while the system stored the message in a manner enabling later access.

1. Appeal dismissed. The court had jurisdiction because the appeal challenged a ruling of law made during a preparatory hearing, rather than the earlier refusal of an application to dismiss. The fact that arraignment occurred during, rather than before, that hearing did not justify declining to determine the appeal.

2. Section 2(7) of the Regulation of Investigatory Powers Act 2000 deliberately extends the ordinary concept of a communication being in the course of transmission. Its language contains no restriction to transient storage or to the period before the intended recipient first collects or accesses the communication.

3. The alternatives in the phrase enabling the recipient to “collect” a communication or “otherwise” have access to it accommodate different technologies. A voicemail is accessed by listening to it while it remains stored in the network; it is not necessarily collected by being removed from that system. Access may be repeated. The intended recipient remains dependent on the telecommunications system to replay the message.

4. The words referring to a system by which a communication “is being, or has been, transmitted” confirm that the statutory extension can continue after initial receipt. Therefore, a voicemail stored in the network and accessible to its intended recipient remains in the course of transmission after it has been heard. Unauthorised access to it can fall within section 1(1).

5. The earlier authorities relied upon by the appellants concerned different issues, including communications before collection, external recording of speech, or legislation without an equivalent to section 2(7). They did not restrict the provision’s express wording. The court also held that the EU directives did not compel a narrower reading and permitted more protective domestic privacy standards. Parallel criminal offences and the evidential provisions of the Act did not create legal uncertainty or an adverse evidential consequence requiring a different construction.

• Court of Appeal (Criminal Division): The appeals were dismissed: Coulson & Anor v R [2013] EWCA Crim 1026.
• Southwark Crown Court: Fulford LJ’s ruling at a preparatory hearing that section 2(7) of the Regulation of Investigatory Powers Act 2000 covered stored voicemail after first access was endorsed by Saunders J, who granted leave to appeal.