Consultation on change to RIP interception definition

[Francis Davey]

On 11 November 2010 09:01, Andrew Cormack <Andrew.Cormack at ja.net> wrote:
>

>
> Actually I'm struggling to think how a 3(1) that was dependent on the *fact* of whether that person had consented (which I think would be the effect of deleting the "reasonable belief" clause: Francis?) could ever be safely relied on by anyone. So maybe the net effect of the proposed change will actually be to delete the whole of 3(1)???
>

To answer this and Peter's question.

At the moment the section 1(1) offence has two elements (that's how I
read the "and"): first the action must be intentional, so accidentally
or negligently permitting something that amounts to interception is
not enough, the prosecution must prove intention. The crime is
therefore one of specific intent (so for example could not be
committed by someone too intoxicated to form the necessary intention).

The intention obvious question is whether the acts intended are just
the interception, or whether there needs to be intention to do so
without lawful authority. My reading is that the two are separable
(the "and"). There needs to be no intention to do the act without
lawful authority.

The second element is that the action is "without lawful authority".
This looks to me like something that would have to be raised by the
defence, but if raised would then have to be proved by the prosecution
(caveat: I don't do crime, so someone else may know more about this
than I).

As things stand the second element also has a mental element in that
if section 3(1) is relied on as a basis for lawful authority, the
prosecution will need to prove both that (i) conditions (a) and (b)
were not met and (ii) that the defendant had no reasonable ground for
believing they were met.

A mistaken and honest but unreasonable belief that (a) and (b) hold
will not amount to lawful authority and so a defence based on such a
belief and s3(1) would fail.

There are circumstances where a genuine but unreasonable belief in a
state of affairs is a good defence, for example in R v Williams
(Gladstone) (1984) 78 Cr App R 276, where the defendant believed,
unreasonably, that a police officer conducting an arrest was actually
committing an assault and ran to the defence of the person being
arrested.

Removing "unreasonable belief" from s3(1) wouldn't emasculate it
utterly - you would still be able to require the prosecution to prove
that (a) and (b) weren't met - but it seriously reduces the scope of
"lawful authority" and that part of the test then becomes one of
strict liability.

I hope that's clear and/or helpful.

-- 
Francis Davey