Morgan & Preston

[Donald Ramsbottom]

Just so we have some idea what th cases that Lord BB quoted said they are
set out below in gazetted form. I am afraid I do not have the full texts.
The reports are from Lawtel. As ever if you are not interested in the case
law disregard.



R v STEPHEN PRESTON : R v ZENA PRESTON : R v CLARKE : R v SALTER : R v
AUSTEN (1993) 

HL (Lords Keith, Templeman, Jauncey, Browne-Wilkinson, Mustill) 4/11/93 

CRIMINAL PROCEDURE - EVIDENCE 
DUTY TO DISCLOSE UNUSED MATERIAL : TELEPHONE TAPPING : UNFAIR EVIDENCE :
INFORMER'S
IDENTITY : UNFAIR EVIDENCE : AGENT PROVOCATEUR 

Prosecution was under no duty to disclose any interception material to the
defence. 

Appeals against dismissal of appeals against convictions concerning the
importation of cannabis R v Preston (1992)
TLR 13/5/92 on the ground of non-disclosure of material obtained through
telephone interceptions, exclusion from
hearings in chambers which only counsel attended and non-disclosure of the
identity of a police informer and material
provided by him. 

HELD: (1) All material obtained from telephone tapping was destroyed prior
to the trial in accordance with the
requirements of s.6(3) Interception of Communications Act 1985. The need for
surveillance, the need to keep it secret
and the need to protect the privacy of those whose conversations were
overheard all point to the Act barring complete
disclosure of unused material. The prosecution being barred from using such
material as evidence, was accordingly
under no duty to retain or disclose it to the defence. Such material was
held to be admissible in R v Effik (1992) 95
CAR 427 but as the material should have been destroyed before trial, the
decision in R v Effik should be overruled. (2)
The evidence of the "metering" of calls by testifying as to the number of
calls made on various dates was not unfair and
the trial judge did not err by failing to exclude it. (3) There was no
material in the transcripts to indicate that the trial
judge's refusal to order disclosure of the informer's identity was wrong.
The first appellant believed that he knew the
informer's identity and nothing in the arguments about whether the judge
should order disclosure would have told the
first appellant anything he did not already know or put the informer's
safety in further peril. (4) Two important errors
were made. Firstly the appellants and their solicitors ought not to have
been excluded for such long periods. Secondly
there was no reason for the judge to prevent counsel from telling their own
clients what was going on and there was no
reason why appellants should have been excluded from the arguments about
disclosure. However the proviso in s.2(1)
Criminal Appeal Act 1968 that these matters did not cause any miscarriage of
justice, would be applied as they do not
cast any doubt upon the reliability of the verdicts. 

Appeals dismissed. 

TLR 8/11/93 : (1993) 3 WLR 891 : (1993) 4 AER 638 



STEPHEN ALAN MORGANS v SOUTHWARK CROWN COURT sub nom MORGANS v DIRECTOR
OF PUBLIC PROSECUTIONS (2000) 

HL (Lords Nicholls, MacKay, Steyn, Hope and Clyde) 17/2/2000 

CRIMINAL PROCEDURE - COMMUNICATIONS - EVIDENCE - INFORMATION TECHNOLOGY -
HUMAN RIGHTS 
INTERCEPTION OF COMMUNICATIONS ACT 1985 : STATUTORY CONSTRUCTION : PROHIBITION
ON ADDUCTION OF EVIDENCE : CONTENTS OF COMMUNICATION : NO DISTINCTION WHERE
INTERCEPTION AUTHORISED OR UNAUTHORISED : PRECEDENTS : DOCTRINE OF STARE
DECISIS 

Evidence of material obtained by the persons identified in s.9(2)
Interception of Communications Act 1985 of
communications of the kind described in s.1(1), except for the purposes of
s.1(3), would always be
inadmissible. R v Rasool (1997) 1 WLR 1092 and R v Owen (1999) 1 WLR 949
overruled. 

Appeal from a decision of the Divisional Court ('DC') (summarised below) by
the appellants. The DC certified that the
following points of law of general importance were involved in the decision: 

(1) Whether s.1 and s.9 Interception of Communications Act 1985, on their
true construction, prohibited the adduction
in any proceedings before any court of the contents of a communication made
by means of a public telecommunication
system that had been obtained by the interception of that communication by a
person within the categories specified in
s.9(2) when no warrant in respect of that communication had been issued
under s.2, and the situation did not fall within
any of the categories specified in s.1(2)(b) and s.1(3) of the Act. 

(2) Whether the decision of the Court of Appeal (Criminal Division) in R v
Effik (1992) 95 CAR 427 was overruled by
R v Preston (1994) 2 AC 130, only to the extent that it related to warranted
intercepts: see R v Rasool (1997) 1 WLR
1092 and R v Owen (1999) 1 WLR 949. 

HELD: (1) The House declined to answer the first of the two certified
questions, because it sought to draw a distinction
between the situation where the case fell within the category specified in
s.1(2)(b) and the situation where it did not. The
effect of s.9(1) was to prevent evidence being led or questions being put in
cross-examination tending to show that an
offence had been committed. Section 1 and s.9 of the Act prohibited the
adduction in any proceedings before any court
or tribunal of evidence of the contents of a communication made by means of
a public telecommunication system by a
person within the categories specified in s.9(2), except where the
communication was intercepted for the purposes
mentioned in s.1(3) of the Act or where the proceedings were for a "relevant
offence" as defined in s.9(4) or were
before the tribunal established under s.7. 

(2) The House answered the second of the two certified questions in the
negative. R v Rasool and R v Owen (supra)
did not draw any distinction between the use of intercepted materials in
non-warrant cases and their use in warrant
cases. R v Effik should have been treated as overruled in its entirety. Both
cases were wrongly decided and were
accordingly overruled. 

Appeal allowed. 

Full text available online. 

Lionel Blackman (Solicitor Advocate) for the appellant. Bruce Houlder QC and
David Perry instructed by the CPS for
the respondent. 

LTL 17/2/2000 : TLR 18/2/2000 : (2000) 2 WLR 386 : (2000) 2 AER 522 

Document No: C7700071 

DECISION APPEALED 

DC (Kennedy LJ, Sullivan J) 7/12/98 : * HL (Lords Slynn, Clyde and Saville)
9/7/99 

Appeal by way of case stated from a decision of the Crown Court sitting at
Southwark on 29 May 1997 dismissing the
appellant's appeal against his conviction by a stipendiary magistrate on
seven charges. Five of the charges alleged that
the appellant had obtained unauthorised access to a computer system,
contrary to s.1(1) Computer Misuse Act 1990.
Two of the charges alleged fraudulent use of a telecommunications system
contrary to s.42 Telecommunications Act
1984. The Crown's case was that the appellant was using a public
telecommunications system for the purpose of
hacking. In July 1995 a call logger was fitted to the appellant's telephone
number. It logged all digits dialled in printed
form. The appellant was arrested on 13 September 1995. On 16 February 1996
the police submitted the matter to the
Crown Prosecution Service for advice who formed the opinion that there was
sufficient evidence to warrant
proceedings and in August 1996 signed a certificate to that effect. Three
questions were identified, namely whether: (i)
Section 9 Interception of Communications Act 1985 precluded the court from
receiving in evidence the print-outs from
the logging devices; (ii) The prosecutor for the purposes of s.11 of the
1985 Act was the Crown Prosecution Service,
and therefore in light of the certificate signed under that section were all
charges under the Act brought within the
relevant time limit; and (iii) the time limit under s.11 of the 1990 Act ran
from when the evidence came into possession
of the prosecutor, or from when he came to his opinion that the evidence was
sufficient to warrant proceedings. 

HELD: (1) Section 9(1) of the 1985 Act did not preclude the Crown Court from
receiving in evidence the print-outs
from the logging devices placed upon the appellant's line following R v Owen
: R v Stephen (1998) TLR 11/11/98. 

(2) Following R v Preston (1993) 3 WLR 891 the decision of the Court of
Appeal in R v Effik (1995) 1 AC 309
survived to the extent indicated in R v (1) Rasool (2) Choudhury (1997) 1
WLR 1092. That decision was binding on
the Divisional Court and if the court was considering a consensual
interception it would be bound to follow it. That was
not the type of interception with which the court was concerned in the
present telecommunications case. 

(3) The ratio of R v Owen (supra) was that Effik (supra) was overruled by
Preston (supra) only to the extent that it
related to warranted intercepts. 

(4) Until the Crown Prosecution Service took over the prosecution the police
officer was the prosecutor. 

(5) Once the police had all the material on which the prosecution would
eventually be brought then for the purposes of
s.11(2) of the 1985 Act time began to run. 

(6) That s.11(2) was an exception to the normal rule that summary offences
should be prosecuted within six months. As
an exception in favour of the prosecution it should be strictly construed. 

Appeal allowed. 

* The House of Lords granted an application from Stephen Morgans for leave
to appeal in this case on 9 July 1999.
The Appeal Committee had made a provisional unanimous decision to grant
leave following a consideration of the
applicant's petition and invited objections from the respondent on 5 July
1999. The appeal to the House of Lords was
set down for hearing and referred to an Appellate Committee. 

Lionel Blackman (Solicitor Advocate) for the appellant. Mr Brook instructed
by the CPS for the respondent. 

LTL 7/12/98 EXTEMPORE : TLR 29/12/98 : (1999) Crim LR 490 : (1999) 2 CAR 99
: (1999) 1 WLR 968 : *
(1999) 1 WLR 1444 
Donald Ramsbottom LL.B, BA (Hons).

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