On call

The law of the interception of communications is complex and controversial. The euphemism 'phone hacking', which has become common parlance over the last 12 months, is a derivation of the offence of intercepting a communication, contrary to section 1 of the Regulation of Investigatory Powers Act 2000 (RIPA).

Former journalists Clive Goodman and Glen Mulcaire were imprisoned in 2007 after they pleaded guilty to conspiring to intercept communications, although the interpretation of what amounted to an interception was, it seemed, not an issue in the case. The Metropolitan Police '“ of the view then that a third party listening to a voicemail that had already been picked up '“ shelved the wider investigation. Following a sustained campaign by Guardian journalist Nick Davies that the determining factor was not whether voicemails had or had not been listened to but whether they had been intercepted, a train of events was put in place that led to the collapse of the News of the World, the arrest of several newspaper officials and the Leveson Inquiry.

It is commonly believed that the product of the interception of communications is not admissible in UK law. This is, however, incorrect. There are a number of circumstances where the content of an intercepted call may be admitted as evidence in legal proceedings: an employer's lawful monitoring of its employees' calls, the monitoring of prisoner's calls or a telephone call where one party to it consents.

The exclusion of intercept material as evidence only relates to the product of a call intercepted by the state where the public authority has obtained a warrant to do so. Even then there are exceptions: proceedings before the Special Immigration Appeals Commission, a public inquiry or an inquest, for example. Importantly, it is admissible in respect of an offence of unlawful interception.

This overview of the legal position makes it understandable why the senior courts and respected academics have referred to RIPA variously as 'not easy to understand', 'particularly puzzling' and 'impenetrable'. The expert has a critical role in trying to untangle this intellectual minefield. In order to do so, some clarification is required as to where expert opinion may be needed.

The key provision of RIPA is section 1. This creates two offences. First, it is an offence for a person to intercept any communication at any place in the UK in the course of its transmission by means of either a public postal or a public telecommunications system where it is done intentionally and without lawful authority. The second offence relates to interceptions of communications at any place in the UK transmitted by means of a private telecommunications system. The offence is committed if the interception is intentional and takes place without lawful authority but not if the person carrying out the interception is a person with the right to control the operation or the use of the system or has the express or implied consent of such a person to make the interception. Both offences carry maximum prison terms on conviction on indictment of two years and/or a fine or on summary conviction the statutory maximum.

The parameters of the right to control the operation or use of the system under section 1(6) was considered by the Court of Appeal in R v Stanford [2006] EWCA Crim 258, a case that arose out of a dispute between co-directors. The defendant had made his former colleague's emails available to himself for the purposes of discrediting him. His defence was that he was a person with the right to control. The Court of Appeal held that the trial judge was right to conclude that 'control' was wider than 'the right to operate or use the system' and meant 'authorise or forbid'. One of the objectives of section 1 was to protect the privacy of private telecommunications that would be undermined if the effect of section 1(6) was to give unfettered access to persons with the ability to operate and use a telecommunications system.

Two key issues arise that may need expert input are: (i) whether the telecommunications system is a private or public system; and (ii) whether the interception occurred in the 'course of its transmission'. The answer to (i) is likely to be straightforward although was an issue in Halford v United Kingdom [1997] 24 EHRR 523 and the Attorney General's Reference (No 5 of 2002) [2004] UKHL 40. In the final analysis it will be an issue of fact for the trial judge in due course.

Question of interception

The issue of whether the interception takes place in the course of its transmission is much more interesting, less for its impact an English law and more because it could play a vital role in a future ruling about the compatibility of RIPA in the context of the European Convention on Human Rights.

A telecommunication is in the course of its transmission once sound waves get converted from speech to electromagnetic pulses by the telephone system. So, if a witness hears what is being said during a telephone call because they are in the same room as the suspect, then this will be admissible (indeed there is special provision within RIPA where this person may be a covert human intelligence source). The same is true if the conversation is picked up by a listening device. It remains in the course of its transmission until the electromagnetic pulse is converted back into speech by the recipient of the call.

If the call relates to a voicemail and it is recorded and intercepted this is still an interception for the purposes of the RIPA. Whether a third party listens to it before or after the recipient does is irrelevant in the context of the offence.

The issues were considered in R v McDonald, Rafferty and O'Farrell [2005] EWCA Crim 1945. An expert testified, although the evidence in fact agreed (described by the judge as uncontroversial) that the time period between the conversion of electromagnetic pulses to sound waves took 29 microseconds. This did not affect the judge's decision that no interception in fact took place.

The real value of this kind of evidence will be in a challenge about the legal certainty of the RIPA. The threshold of 'in the course of transmission', while clearly sustainable, significantly undermines the value of the privacy interest at stake, as the law is presently drafted.

The principle of legality that lies behind article 8 is critical, including as it does the rule of certainty that requires the state to provide sufficient information to enable individuals to foresee the likely consequences of their actions. The European Court has recognised that absolute certainty is unattainable and that 'excessive rigidity' can be undesirable and that 'the law must be able to keep pace with changing circumstances'.

The issue of legal certainty arose in the case of Liberty and others v United Kingdom (Application No. 58243/00, 1 July 2008), although in the context of oversight and protection against abuse. The case concerned the previous regime under the Interception of Communications Act 1985 and resulted in an adverse finding against the UK.

It is not clear that the new Act meets the standard the court identified as being required: 'The court does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of the very wide discretion conferred on the state to intercept and examine external communications'¦ in particular'¦ the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material.'

The McDonald case has gone to Strasbourg, although on questions of entrapment and public interest immunity, but it is only a matter of time before the ambiguity of the provisions of RIPA and the artificial distinction of what amounts to an interception (the communication is practically only protected when no one can in fact understand it) are questioned. This is where the role of the expert will come into its own. Despite the value of this most intrusive material, it has to be balanced against the rights of the citizen.

As Justices Holmes and Brandeis said in Olmstead v The United States [1928] 277 US 438 (an eavesdropping case): 'To declare that in the administration of the criminal law the end justifies the means'¦ would bring terrible retribution.'