Gordon Newbold v The Commissioner of Police

Telephone interception engages the constitutional protection of freedom from interference with correspondence. A statutory scheme for secret surveillance may nevertheless be valid where its safeguards are reasonably justifiable in a democratic society. Relevant safeguards include necessity and proportionality, the purpose and duration of authorisations, record-keeping, destruction of irrelevant material, and protection against arbitrary use. Judicial supervision is desirable but not invariably essential. A constitutional saving for existing laws preserves a pre-existing statutory scheme by reference to the constitutional standard applicable when it was enacted, even if contemporary standards would require additional safeguards.

Five conjoined appeals arose from long-running extradition proceedings in The Bahamas. The appellants faced United States requests concerning suspected drug trafficking. The respondents relied on telephone conversations intercepted under seventeen authorisations issued by the Commissioner of Police under section 5(2) of the Listening Devices Act 1972.

A magistrate referred six questions concerning the formal validity and use of the authorisations and the compatibility of the statutory scheme with articles 15, 21 and 23 of the 1973 Constitution. Isaacs J answered the formal questions and constitutional questions substantially in favour of validity, considering himself bound by Major and Major v Superintendent of HM Prisons. The Court of Appeal upheld the substantive validity of the scheme and also concluded that the intercepted conversations were not private. The central issues before the Board were whether the authorisations complied with the Act, whether interception was constitutionally protected, and what effect article 30’s saving for existing laws had.

The Board unanimously advised that the case be remitted to the Magistrate for continuation of the extradition proceedings.

1. Privacy and the statutory scheme. The technical possibility of interception does not deprive a conversation of privacy. Suspected criminal activity, including the use of coded language, may reinforce the expectation that conversations will remain private. Section 5(2) proceeds on the basis that conversations concerning suspected offences may fall within the statutory definition of private conversation.
2. Validity of the authorisations. The authorisations identified particular cellular telephone numbers and periods not exceeding fourteen days. They sufficiently specified the manner of use by confining interception to remote capture, without trespass, of telephone conversations conducted by those telephones. The Listening Devices Act 1972 did not authorise trespass. If it could do so, an authorisation would have to specify the proposed trespass, which these authorisations did not. Questions (1) and (2) were answered affirmatively.
3. Further investigation and evidence. The appellants could investigate whether the limits of the authorisations had been observed. The consequences of non-compliance were governed by general law, including the principles in R v Sang and the discretion under section 178 of the Evidence Act.
4. Constitutional rights. Interception of telephone conversations falls within article 23’s protection against interference with correspondence. Article 21 was not extended to such interception because its language and constitutional history focused deliberately on searches of person or property and entry on premises. Article 15 is a preamble and does not confer freestanding rights overlapping the specific protections in articles 21 and 23.
5. Safeguards and existing law. Section 5(2) requires necessity, including consideration of alternatives and proportionality. Written authorisation, a maximum fourteen-day period, record-keeping under section 5(4), destruction of irrelevant recorded information under section 7, and evidential and criminal sanctions provide significant safeguards. Contemporary standards might require more independent supervision, but article 30(1) saved the Listening Devices Act 1972 because the relevant constitutional assessment was that applicable in 1969–1973 when the legislation was enacted.
6. Executive acts and remedies. Article 30(1) protects performance of an unavoidable duty imposed by an existing law. The principle that executive acts must comply with the Constitution applies where genuine alternative means of performance exist. A separate executive omission outside the statutory duty could justify declaratory relief or consideration of evidential fairness, but would not itself engage section 10 of the Listening Devices Act.

Questions (4) and (5) were answered yes, and question (6) no, in the same sense as Isaacs J but for different reasons. Question (3) was left open for investigation during the extradition proceedings.

• Privy Council: Questions (1) and (2) were answered affirmatively. Question (3) remained open for investigation. Questions (4) and (5) were answered yes and question (6) no. The case was remitted to the Magistrate.
• Court of Appeal of The Bahamas: On 28 January 2010, the Court of Appeal addressed the substantive issues and upheld the validity of the statutory scheme. It also concluded that the intercepted conversations were not private.
• Supreme Court of The Bahamas: Isaacs J gave judgments on 9 October 2008 on six questions referred by the Magistrate. He treated himself as bound by Major and Major v Superintendent of HM Prisons.