Criminal

Undercover police operation - tape recording of telephone conversation between undercover officer and suspect not interception of telecommunication - operation constituting surveillance involving conduct and use of covert human intelligence sources

R v Hardy and another: CA (Lord Justice Rose, Mr Justice Hughes and Mr Justice Royce): 31 October 2002

The defendants, suspected of conspiring to import drugs, were placed under police surveillance.

Two undercover police officers, posing as owner-drivers of heavy good vehicles, were recruited by the first defendant.

Each officer tape recorded face-to-face meetings and telephone conversations, which they had with the defendant.

One officer was sent abroad to collect an assignment of cannabis, which was loaded under the oversight of the second defendant.

The officer drove back to England where the first defendant was caught in the act of unloading.

At trial, the defendants requested that the Crown disclose the authority under which the surveillance had been carried out, particularly in relation to the tape recording of the telephone calls.

The judge decided that the surveillance was in accordance with proper authority and that the documents need not be disclosed to the defendants since they would not assist their defence.

Nevertheless, the prosecution disclosed redacted copies of the authorisation, whereupon the defendants pleaded guilty to conspiracy to supply a class B drug.

They appealed against conviction on the grounds that the judge had erred in finding that the tape recordings were authorised by section 3 or section 26 of the Regulation of Investigatory Powers Act 2000.

Robin Pearse Wheatley (assigned by the Registrar of Criminal Appeals) for the defendants; Amanda Pinto (instructed by Crown Prosecution Service, Hertfordshire) for the Crown.

Held, dismissing the appeals, that the tape recording of a telephone call by one of the speakers did not amount to the interception of a communication in the course of its transmission by a telecommunication system, within the meaning of section 2(2) of the 2000 Act; that the conduct of the police officers did amount to surveillance to which part II of the Act applied and could be characterised as 'the conduct and use of covert human intelligence sources' within section 26(1)(c); and that proper authorisation had been given by a duly qualified officer for the deployment of the undercover officers to carry out this type of surveillance.

(WLR)