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Morgans v DPP - Evidence of Interceptions

The interception of Communications Act of 1985 has been the source of legal dispute ever since it was passed. Its meaning was clarified, by a case Morgans v Director of Public Prosecutions (2000) HL (see here. Naturally, this decision has come about only just as the original Act is about to be repealed.

In R v Effick, the courts had decided that although the Act prevented it being mentioned that evidence had been obtained under a warrant, the results of the interception were nevertheless admissible. That decision was later criticised (politely), but this case finally marks the death of the Effick case (.. no longer Effick casious (very sorry)).

Here, police were investigating offences under the Computer Misuse Act 1991, and the Telecommunications Act 1984. They did not at first appreciate the extent of the defendant's criminality. They attached to the defendant's phone line at the exchange, equipment which recorded details of the calls made from the phone. The details recorded were the date, time and duration of the call, and the number called. The intention was not to record the content of the call as such. Whether by design or accident, the equipment picked up the fact that the defendant was, after making connection to one number, then ringing on from that to another. By ringing a free-phone number, then piggybacking (somehow) a call to another number, he was making expensive calls for free.

Two relevant questions arose. The first was whether the evidence was admissible at all. The answer came back clearly, 'No.' Effick was incorrectly decided. The intention behind the Act, was that evidence gathered, with or without a warrant, by the means of interceptions was not to be admitted. The Act made clear provision which made it impossible for the defendant to challenge the provenance of any such evidence, and the consequence was that it could not be fair to allow the prosecution to admit the evidence.

The second, seemingly incidental, conclusion is that the interception of the dialling sequence was itself an interception. It must be remembered that in this case, the police had introduced not merely the records of the calls made, but the records created whilst during those calls the defendant called other numbers. Lord Hope made the distinction, but said that the interception of even the electrical impulses during the calls was an interception of a communication, and was caught by the Act. He made a clear distinction from exactly the same impulses which were used first to establish a connection.

Hmmm ...

It is worth re-reading this case after taking a proper look at the Regulation of Investigatory Powers Act 2000.

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18 October 2013 188 18 October 2013