Criminal

Telephone intercept - Crown alleging interception on private telecommunications system - defence entitled to question whether system public or private

Attorney-General's Reference (No 5 of 2002): CA (Lord Justice Clarke, Mr Justice Morison and Mrs Justice Steel): 12 June 2003

A police officer was charged on indictment with conspiracy to commit misconduct in a public office, which was intended, by the Crown, to reflect an alleged agreement to provide a person who had no entitlement to it with highly confidential and sensitive information.

The Crown sought to rely on the evidence of intercepted telephone calls made on an internal telephone system at the police station.

The judge ruled that section 17 of the Regulation of Investigatory Powers Act 2000 prevented the defence from asserting that the interception took place on the public side of the system, but that it did not prevent the Crown from adducing evidence that it took place on the private side, whereupon the defence submitted, and the judge accepted, that that would have such an adverse effect on the fairness of proceedings that the court ought not to admit that evidence under section 78 of the Police and Criminal Evidence Act 1984.

Therefore, the police officer was acquitted by direction.

The Attorney-General referred the matter for the Court of Appeal's opinion.

David Perry, Simon Brand and Alison Morgan (instructed by the Crown Prosecution Service, HQ) for the Attorney-General; Gilbert Gray QC and Timothy Roberts (instructed by Brown Beer & Co, Redcar) for the police officer.

Held, that in criminal proceedings, section 17 did not operate so as to prevent questions being asked to ascertain whether a telecommunications systems was a public or private one, even if such questions related to events which had taken place before the 2000 Act came into force; that where an interception had taken place on a private system, it was permissible to ask questions to establish that the interception had been carried out by, or on behalf, of the person with the right to control the operation or use of the system where the interception took place before the Act came into force and also, subject to the facts of a particular case, after the Act came into force.

Judicial precedent - Court of Appeal (Criminal Division) - discretion to decide that previous Court of Appeal decision wrong

R v Simpson: CA (Lord Woolf Chief Justice, Lord Justice Kennedy, Mr Justice Mitchell, Mrs Justice Hallett and Mr Justice Pitchers): 23 May 2003

The defendant pleaded guilty to cheating the public revenue, being knowingly concerned in the fraudulent evasion of value added tax (VAT), conduct involving the commission of a VAT offence and producing a false document for the purposes of VAT.

A confiscation order was made pursuant to section 71 of the Criminal Justice Act 1988.

The defendant appealed against the confiscation order on the ground that defects in the notice served on the court deprived the court of jurisdiction in the confiscation proceedings, contending that the court should apply its decision in R v Palmer (2002) The Times, 5 November, and hold that the court in R v Sekhon [2003] Gazette, 27 February, 29; [2003] 1 Cr App R 575, had not been entitled to decide that R v Palmer had been wrongly decided.

Raymond Walker QC and Simon Taylor (assigned by the Registrar of Criminal Appeals) for the defendant; Jonathan Fisher QC and John Law (instructed by the Solicitor, Customs & Excise) for the Crown.

Held, dismissing the appeal, that rules as to precedent reflected the practice of the courts, their objective being to assist in the administration of justice, but they should not be regarded as so rigid that they could not develop in order to meet contemporary needs; that, while there might be a case for not interpreting the law contrary to a previous authority if a defendant who otherwise would not have committed an offence would be held to have committed an offence, that approach should not apply where a defendant relied upon a wrongly decided case to provide a technical defence; that it was not safe to rely on a decision given in the absence of relevant information if it were at least probable that that information would have affected the decision; that the law had been misunderstood and misapplied in R v Palmer and there had been ample grounds for the court in R v Sekhon to regard R v Palmer as being not binding upon it; that the Court of Appeal (Criminal Division) would not normally look behind one of its previous decisions, but it undoubtedly had a degree of discretion to decide whether a decision should be treated as binding when there were grounds for saying that it was wrong; that the discretion to depart from a previous decision was not to be exercised lightly and, in exercising that discretion, the constitution of the court was of relevance; and that, accordingly, any defects in the notice did not deprive the judge of jurisdiction and the confiscation order had been properly made.

(WLR)

Alternative verdict - defendant charged with attempted murder - judge entitled to leave to jury alternative of attempted grievous bodily harm with intent

R v Morrison: CA (Lord Woolf Chief Justice, Mr Justice Roderick Evans and Mr Justice Royce): 20 May 2003

The defendant was charged with a single count of attempted murder but the judge left to the jury an alternative verdict of attempting to cause grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861, of which the defendant was convicted.

The defendant appealed on the ground that, under section 6(3) of the Criminal Law Act 1967, the judge had not been entitled to leave that alternative verdict to the jury since an indictment containing a single count of attempted murder did not expressly or impliedly amount to or include an allegation of attempting to cause grievous bodily harm with intent.

Jerome Lynch QC (assigned by the Registrar of Criminal Appeals) and Robert English (acting pro bono) for the defendant; Malcolm Swift QC and Alan Landsbury (instructed by the Crown Prosecution Service, Luton) for the Crown.

Held, dismissing the appeal, that the question whether an indictment containing a single count of attempted murder expressly or impliedly amounted to or included an allegation of attempting to cause grievous bodily harm with intent had to be answered without having regard to the facts; that the distinction between the two offences was in the mens rea since, in the case of attempted murder, an intention to kill was required whereas, in the case of attempted grievous bodily harm with intent, an intention to cause grievous bodily harm was required; that a person could not intend to kill someone without also intending to cause that person grievous bodily harm; and that, accordingly, the judge had been entitled to leave the alternative verdict of attempting to cause grievous bodily harm with intent to the jury.

(WLR)