Criminal law

Sections 1 and 2 of the Regulation of Investigatory Powers Act 2000 provides, so far as material: ‘1(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the UK, any communication in the course of its transmission by means of…(b) a public telecommunication system…2(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.’

The appellants worked at the News of the World as editors or journalists where they were employed by News International. They were charged with conspiring unlawfully to intercept communications in the course of their transmission without lawful authority. The underlying allegation against the appellants was that they in different permutations conspired, without lawful authority, to intercept mobile telephone voicemail messages.

At a preparatory hearing, the appellants made dismissal applications on a ground which raised the true construction of sections 2(1), 2(2) and 2(7) of the Regulation of Investigatory Powers Act 2000 (RIPA). The issue turned on when the course of transmission of a voicemail message ended and, in particular, whether a voicemail message which was saved by the recipient on the voicemail facility of a public telecommunications system remained in the course of transmission. The appellants submitted that, save in the particular circumstances provided for in section 2(7) of RIPA, the references to the course of transmission in the context of the use of a telephone system should be understood as meaning that the transmission ended when the signal delivered to the handset was converted back into sound waves or the call was terminated.

They accepted that section 2(7) effected an extension of the ‘course of transmission’ but submitted that the ordinary meaning of ‘transmission’ contemplated conveyance from one person or place to another and that therefore the extension was limited to covering the transient storage of electronic communications before receipt. They submitted that section 2(7) would apply to periods of transient storage that arose as a consequence of the use of modern electronic communications, as well as communications such as email and voicemail when the intended recipient had not been immediately available.

However, they submitted that that was the limit of the extension effected by section 2(7). The prosecution submitted that there was no warrant for the restrictions which the appellants sought to impose on section 2(7). The prosecution did not maintain that the course of transmission necessarily included all periods during which the transmission system stored the communication. However, it submitted that it did apply to those periods when the system was used for storage in a manner that enabled the intended recipient to collect it or otherwise have access to it. Following two decisions that endorsed the prosecution’s submissions, the appellants appealed.

It fell to be determined whether, on the proper construction of section 2(7) of RIPA, the period of storage referred to comes to an end on first access or collection by the intended recipient or whether it continued beyond such first access for so long as the system was used to store the communication in a manner which enabled the intended recipient to have subsequent or even repeated access to it.

The appeal would be dismissed.

Section 2(7) of RIPA was clearly intended to extend the scope of the course of transmission. There was no justification for limiting the extension to periods of transient storage that arose as a consequence of the use of modern electronic communications as well as when the intended recipient was not immediately available. There was nothing in the language of the statute to indicate that section 2(7) should be read in such a limited way. Further, there was no basis for reading into the statutory language a limitation restricting it by reference to the first occasion when the intended recipient had access to it. Furthermore, the words of section 2(7) made it entirely clear that the course of transmission might continue notwithstanding that the voicemail message had already been received and read by the intended recipient (see [20], [24], [26] of the judgment).

The words of s 2(7) in their natural meaning were entirely apt to cover a situation such as that presently under consideration (see [27] of the judgment). R v Effik [1994] 3 All ER 458 considered.

Clare Montgomery QC and Alison Macdonald (instructed by DLA Piper) for the appellants. Andrew Edis QC, Daniel Beard QC, Rebecca Chalkley and Ligia Osepciu (instructed by the CPS, Special Crime Division) for the Crown.