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Cases in briefAppeal—contempt of court—removal of right of appeal to Supreme Court from Court of Appeal Criminal Division—by inadvertence—construction of statute—rectificationOB v SFO [2012] EWCA Crim 901; May 2, 2012Amendments made (as minor and consequential amend-ments) by the Armed Forces Act 2006 s.378 and Sched.16 para.45(2) to the Administration of Justice Act 1960 s.13(2)(c) removed express provision for appeals in relation to contempt of court from the “Court of Criminal Appeal” (to be read as the Court of Appeal Criminal Division: Senior Courts Act 1981 Sched.4 para.3(a)) to the Supreme Court. While the provision as amended included a reference to “the Court of Appeal”, that was to be read as a reference to the Court of Appeal, Civil Division in any Act passed before the coming into effect of the Criminal Appeal Act 1966: Senior Courts Act 1981 Sched.4 para.3(c). As a matter of statutory construction, the reference to the Court of Appeal could not be read as including both divisions. The words had been in the section since 1960 and the provision in the 1981 Act clearly applied. That the term “Court of Appeal” must (at least) include the Criminal Division in another part of s.13 (s.13(2)(bb)) did not affect this construction, as it was in-troduced by the Courts Act 1971 (Sched.8 para.40(1)), so was not affected by the glossing required by the 1981 Act. The amendment did, however, fall into the criteria for judi-cial rectification of legislative drafting errors in Inco Europe v First Choice Distribution [2000] 1 W.L.R. 586. The Court was satisfied so that it was “abundantly sure” of the mat-ters set out in Inco as justifying such rectification: “(1) the intended purpose of the statute … (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made… had the error in the Bill been noticed” (per Lord Nicolls at 592). The Court accordingly did not have to decide a submission based on European Convention on Human Rights Art.14 (although, provisionally, the Court would have rejected it).

Disclosure—whether general duty of disclosure post convic-tionR. (NUNN) v CHIEF CONSTABLE OF SUFFOLK [2012] EWHC 1186 (Admin); May 4, 2012N, who desired access to materials in the possession of the

police to pursue his contention that he had been wrongfully convicted, contended that there was at common law a gen-eral duty of disclosure post-conviction. There was no such duty. There was a general duty on the state to guard against miscarriages of justice, which implied various legal obliga-tions (comprising the system of investigation, prosecution and defence culminating in trial, the duty on the prosecu-tion to act in the interests of justice, common law and statu-tory duties of disclosure, the right of appeal and the role of the Criminal Cases Review Commission). But statutory duties of disclosure did not apply after conviction (Crimi-nal Procedure and Investigation Act 1996 s.7A), and the duties accepted post-conviction in the Attorney-General’s guidelines and by the CPS guidance (Reviewing Previously Finalised Cases—CPS policy) were limited to material com-ing to light after trial which might cast doubt on the safety of a conviction, or to review a case where there was some appropriate subsequent “trigger”. There was no such argu-ment available to N.

Police powers—unlawful search—subsequent assault on of-ficer—whether officer acting in execution of his duty even if trespasser as a result of unlawful searchSOBCZAK v DPP [2012] EWHC 1319 (Admin); May 1, 2012In the course of confused and violent events in a squatted house, a police officer conducted a cursory pat down search of S. Shortly after, as the officer attempted to remove the jaws of a police dog from a person the dog handler had or-dered the dog to bite, he was advanced on by S in such

CONTENTS

Cases in brief ........................................................1

Sentencing cases ..................................................3

Case in detail .........................................................4

Feature ..................................................................5

Comment ...............................................................9

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a manner as to put him in fear of immediate unlawful vio-lence. S had been correctly convicted of assaulting an of-ficer in the execution of his duty contrary to the Police Act 1996 s.89. The officer’s search of S was unlawful, as he had not taken reasonable steps to inform S of the matters in the Police and Criminal Evidence Act 1984 s.2(2) before the search. But even if the unlawful nature of the search made the officer a trespasser (as indicated by “ancient authority” not specified by the Court), and S, a squatter, had superior title, the officer was nonetheless acting in the execution of his duty when the assault took place. It was his duty to seek to minimise the harm to the person the dog was biting and to prevent further violence, and to that his status as a tres-passer was immaterial. The Court accordingly declined to consider whether he was, in fact, a trespasser as a result of the unlawful search.

Prosecution appeal—conditions precedent—immediacy; ap-proach by judges—permission to appeal—disposalM [2012] EWCA Crim 792; April 26, 2012The recorder allowed M’s submission of no case to answer, and told him that he would be formally acquitted by the jury when a late juror arrived. After a 10 minute adjourn-ment, the court reconvened and Crown counsel informed the court of the Crown’s intention to appeal against the rul-ing (Criminal Justice Act 2003 s.58(4)). The jury returned and were discharged on the basis of the intention to appeal, after which counsel informed or attempted to inform the court of the acquittal agreement (s.58(8)). The recorder interrupted counsel, and it was not clear that she appreci-ated that he was seeking to inform the court of a decision to seek to appeal. There was some further miscommunication between the recorder and counsel, and apparently acting on the belief that a decision to appeal had not finally been made, the recorder adjourned until the following day, when counsel informed the court of the decision to intend to ap-peal and of the acquittal agreement, or repeated it.(1) The conditions precedent to the jurisdiction of the Court of Appeal to entertain the appeal had not been established. Following a terminating ruling, either an adjournment must be sought immediately, or the decision to appeal and the ac-quittal agreement must be notified to the court immediate-ly. In any event, the acquittal agreement must be provided by at latest the time when a decision to intend to appeal was notified. In this context “immediately following the ruling” (Criminal Procedure Rules r.67.2(1)(a), correctly interpret-ing the Act: T(N) [2010] 2 Cr.App.R. 12 [13]) meant there and then and in any event before anything important had happened. It would be going too far to say that it meant si-multaneously with the conclusion of the ruling. But plainly there was no room whatsoever for temporising. In this case, the first attempt to inform the court of the acquittal agree-ment was not “at or before” the court was informed of the intention to appeal. It took place after the jury had entered and been discharged. The discharge of the jury was a sig-nificant event. It brought M’s trial to a close. Even if this first attempt to inform the court had been effective, the Court inclined to the view that it was too late. However, the recorder interrupted counsel before he got to the critical words of the undertaking, and did not appear to appreciate what was being said, so it could be said that the prosecu-tion had not discharged its duty to “inform” the court. In any event, Crown counsel was then content to allow his an-

nounced intention to appeal to be superseded by the grant of an adjournment for the Crown to consider its decision. At that point therefore there was no announced decision to appeal; only an adjournment to allow the Crown to consider its position, and that was already after the jury had been dis-charged. On the following day counsel informed the judge that the Crown did intend to appeal, but no acquittal agree-ment was confirmed. If in truth (which was doubted) it had already been given, that would not matter; but if it had not been, the failure to inform the court would possibly have been fatal by itself, although the Court noted that nothing further of any significance had happened between the two hearings.(2) The Court did not overestimate the significance of the judge telling M that he was to be acquitted, but there would be wisdom in judges being cautious not to jump the gun and anticipate even the most keyed up of prosecutors.(3)Permission to appeal had been granted by the single judge, who appeared not to have appreciated that the ju-risdictional issue remained live. Had he done so, he should perhaps have referred the application to the full Court. Since leave has been given but the appeal was not compe-tent, none of the provisions of s.61 of the 2003 Act were appropriate. Nor did the conditions of the Crown’s acquittal agreement apply. However, the effect of T(N) was that in such cases the incompetent appeal was simply dismissed. It followed that the judge’s ruling, being neither reversed nor varied, was confirmed. The court directed M’s acquittal pursuant to s.61(3).LSA [2009] EWCA Crim 1034; CPS v C, M and H [2009] EWCA Crim 2614; T(N) [2010] 2 Cr.App.R. 12 and O, J and S [2008] EWCA Crim 463 considered.

Retrial for serious offences—“new evidence”—evidence ruled inadmissible at original trialB [2012] EWCA Crim 414; February 29, 2012In the Criminal Justice Act 2003 s.78, the words “the pro-ceedings” were designed to cover the entire process which resulted in the original acquittal. However, as a matter of statutory construction it did not follow that all evidence which was available to be deployed in the earlier proceed-ings was not “new” evidence for the purposes of the Act. Subject to the interests of justice requirement (s.79), evi-dence which was available to be used, but which was not used, may be “new” evidence for the purposes of s.78(2). Thus, where the judge wrongly (Attorney-General’s Refer-ence No.3 of 1999 [2001] 1 Cr.App.R. 34) ruled evidence in-admissible at B’s first trial, it constituted “new” evidence for the purposes of an application under s.76. Once the judge had ruled that the evidence should not be admitted, not-withstanding that it was available for his consideration, and indeed that he considered it, it was not “adduced” in the proceedings.

Sexual offences prevention order—order as enunciated by judge in court determinative—good practice in drawing up ancillary ordersPELLETIER [2012] EWCA Crim 1060; May 10, 2012P was wrongly convicted when he pleaded guilty to breach-ing a sexual offences prevention order, when the conduct in question was covered by the written order (“… must not take any unaccompanied children … away”), but not that

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announced in court by the judge (… “preventing you taking unaccompanied children … in the course of any work which you undertake”). The Court observed that a disconnection between the order which the judge made and the order as recorded in the Crown Court office was an occupational hazard but one which must be avoided. It was particularly a risk when, as was now common, judges had to contemplate a large number of ancillary orders at sentencing. Much the best method was for judges to insist that ancillary orders were put before them in draft in writing. They then should either make them in the form tendered in draft or amend them. The document bearing either their approving initials or the amended terms of the order, plus initials, should then be placed with the papers by the court associate and trans-lated in proper form in the office afterwards. It would also be quite sensible if, particularly with orders of the kind in this case, when they were provided to the defendant he or she was asked to sign for receipt.

Tax credit fraud—passive receipt of overpayments—whether capable of constituting offence under Tax Credits Act 2002 s.35NOLAN AND HOWARD [2012] EWCA Crim 671; April 4, 2012Where, after an initial correct claim, N and H dishonestly received overpayments as a result of fraudulent activity by S, an administrator at a Tax Credit Office, and did nothing to stop the payments, they could not be guilty of being “know-ingly concerned in any fraudulent activity undertaken with a view to obtaining payments of a tax credit by him or any other person” contrary to the Tax Credits Act 2002 s.35. On a strict reading of the section, it required proof of behav-iour calculated to achieve, rather than calculated to capital-ise upon what had already been achieved. Permitting their bank accounts to be used by S did not prove that N and H behaved so that, prospectively, S could perpetrate the fraud. The Crown’s allegation was that by the time they realised that their accounts were richer than they should have been, the fraudulent manipulation had already occurred. That each continued dishonestly to use funds in her account could without difficulty have been reflected in counts differ-ently phrased and particularised.

Voyeurism—“observes”—meaning; defendant unfit to be tried—“act … charged as the offence”—what constituted byBURKE [2012] EWCA Crim 770; April 20, 2012(1) The verb “observes” in the offence of voyeurism (Sex-ual Offences Act 2003 s.67(1)) connoted a deliberate deci-sion on the part of the defendant to look at someone doing a “private act”, as opposed to an accidental perception, and also excluded a careless or reckless perception.(2) B had been found unfit to be tried, and the question arose as to which ingredients of the offence of voyeurism constituted “the act … charged as the offence” under the Criminal Procedure (Insanity) Act 1964 s.4A(2). The link between deliberate observation and the purpose of sexual gratification of the observer was central to the offence. It was that purpose which turned the deliberate observation of another doing an intimate act (such as undressing) in private into an “injurious act” (using Lord Hutton’s phrase in Antoine [2001] 1 A.C. 340). Enquiring into someone’s purpose was to enquire into that person’s state of mind at the time of the relevant act, but a person’s state of mind was

as much a fact as the outward act of deliberate observation and the creation of the state of mind must be the result of a positive thought process by the observer. For the offence of voyeurism, these two actions, the one aimed at the outside world and the other going on in the consciousness of the observer, had to go together. The deliberate observation must be done simultaneously with the specific, albeit sub-jective, purpose of obtaining sexual gratification. Thus the “act… charged as the offence” was that of deliberate obser-vation of another doing a private act where the observer did so for the specific purpose of the observer obtaining sexual gratification. That omnibus activity was the injurious act. Although the activity had two components, they were indissoluble. However, the observer’s knowledge that the person observed did not consent to being observed was not directly linked to the outward component of the “act”. It referred to the state of mind that the observer must have. Accordingly, it was not a part of the “act…charged as the offence” and so was not something the jury would be con-cerned to determine.

SENTENCING CASESSentencing Council definitive guideline for drug offences— whether guideline operates retrospectivelyBOAKYE AND OTHER CASES [2012] EWCA Crim 838; April 3, 2012The Sentencing Council guideline on sentencing for drug offences does not operate retrospectively so as to allow an offender who was sentenced before the publication of the guideline to a sentence which was consistent with the levels of sentence and sentencing conventions which were in effect before the publication of the guideline to appeal against his or her sentence on the ground that under the guideline a shorter sentence might have been passed. The Sentencing Council’s guideline was deliberately expressed by the Council to be prospective and not retrospective. The guideline was stated to come into operation on February 27, 2012.In relation to couriers or “mules” the guideline did not treat all couriers the same. Each case should be assessed indi-vidually accordingly, first to the harm done by the offence (which was broadly measured by the quantity and type of the drug concerned) and secondly according to the culpa-bility of the offender, which was broadly measured by the role or function of the offender in the offence. The objective of distinguishing between different couriers had been ac-complished by Step One of the new guideline. A third world offender exploited by others would be likely to be assessed by the judge as having a lesser role. By contrast, a courier who was worldly wise, knew what he or she was doing, and did it as a matter of free choice for money, was likely to be assessed as having a significant role. These two classes of offender might both attract the generic label “courier”, but that was not the test. There would be different ranges of sentencing for the two groups.

Compensation order—traffic accident—whether compensa-tion order properly made in favour of insurance companySTAPYLTON [2012] EWCA Crim 728; April 18, 2012A compensation order may properly be made in respect of in-jury, loss or damage arising out of a traffic accident in favour

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of an insurance company which has paid out the cost of the damage to its insured, but compensation orders should not be made unless there was a realistic possibility of compliance.

Football banning order—statutory requirementsDOYLE AND OTHERS [2012] EWCA Crim 995; May 16, 2012A court making a banning order under the Football Specta-tors Act 1989 against a person who has been convicted of an offence should ensure that the statutory conditions under which a banning order can be made are satisfied. These are that the defendant was convicted of an offence listed in Sched.1 to the Act and the judge was satisfied that there were reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football match. If an order was made, the prohibitions it contained must be those spec-ified in the legislation. In relation to certain offences listed in Sched.1 to the Act it was necessary for the sentencing court to determine whether on the particular facts of the offence as it was committed on the occasion in question, the offence was “related to football matches”. The Act made clear that the mere fact that the defendant was on a journey to or from a match was not enough; it must be shown that the offence related to football matches.

Sentencing guidelines—duty of sentencer to follow Sentencing Council guidelinesHEALEY AND OTHERS [2012] EWCA Crim 1005; May 9, 2012It is not open to the sentencing judge to decline to follow

the Sentencing Council’s guideline on sentencing for drug offences on the ground that to do so would produce a sen-tence which was inadequate and therefore contrary to the interests of justice. There was deliberately built into the guidelines a good deal of flexibility, but although the flex-ibility available to sentencing judges was appreciable, but it did not extend to deliberately disregarding the guidelines, not on the grounds that the case had particular facts which warranted distinguishing them from the general level, but because the judge happened to take a different view about where the general level ought to be. The sentencer’s job was to read the guidelines for what they were.An offender who created a purpose built room in the loft or the cellar or the garage, or dedicated a bedroom to the exclusive purpose of cultivating cannabis, having invested substantially in professional equipment for watering, light-ing and electronically controlled timing of those operations, could not sensibly be described as having a “lesser role” within the guidelines. Such people should be described as having the kind of level of culpability which was the next level up from those who were the lowest level—that la-belled “significant role.” The prospect of future supply did not generally call for the inclusion of an additional count for possession with intent to supply. The offence of possession with intent to supply related to possession of an identifiable quantity of drug which was in being. It did not relate to the possession of plants from which drugs might or would in future be extracted. In cultivation cases it followed that the prospect of future supply very often had to be evaluated by the judge and could not be the subject of a jury verdict.

Case in detailIBRAHIM [2012] EWCA Crim 837; April 22, 2012The appellant had been convicted on three counts of rape, on an indictment which had had 11 allegations of rape. The complainant in respect of the first count had died before the trial and the Crown had applied to admit her three state-ments under the Criminal Justice Act 2003 s.116. The de-fence had accepted that, in principle, they were admissible and that any argument to exclude them would be under the Police and Criminal Evidence Act 1984 s.78. No such argu-ment was made but a submission of no case to answer had been refused. Agreed facts in relation to the complainant’s credibility were put before the jury.The Court of Appeal (Aikens L.J.) allowed the appeal against the conviction on count one (and upheld the sen-tence of 10 years for the other two rape convictions). After a very detailed review of the relevant case law, the Court concludes (at paras 90–91):It seems to us that, consistently with the judgments of the Court of Appeal and Supreme Court in Horncastle, but, we think, in practice also consist-ently with the approach of the Grand Chamber in Al-Khawaja, we must deal with four questions in order to determine whether the appellant had a fair trial and so determine whether his conviction on count one is safe. The first is: was there proper justification for admitting the untested hear-say evidence in Ms W’s statements. Under English law, this must depend on whether the conditions of s.116(1) and (2)(a) were satisfied, although that test is also subject to the ‘counterbalancing measures’ in the statu-tory ‘code’ and the common law. Secondly, how important are the three

untested hearsay statements of Ms W in relation to the prosecution’s case against the appellant on count 1? Do they amount to the ‘central corpus of evidence without which the case could not proceed’ on count one, to use Professor Spencer’s phrase. Thirdly, how ‘demonstrably reliable’ are those statements? Fourthly, were the ‘counterbalancing safeguards’ inherent in the common law, the CJA and s.78 of PACE properly applied in this case so as to ensure that the appellant did have a fair trial?

... all these four issues are interlocking, particularly the latter three. The more central the untested hearsay evidence, the greater the need to ensure that there is proper justification for its admission; and the greater the need to ensure that the untested hearsay evidence is reliable and to ensure that there are adequate ‘counterbalancing measures’ which have been properly applied in this particular case.

Applying these questions to the facts of this case, the Court was not convinced (at paras 106–107) that the complainant’s statements were reliable.… In our view, if counsel for the defence had had the benefit of the judg-ments of the Court of Appeal and Supreme Court in Horncastle and that of the Grand Chamber in Al-Khawaja, he would have been bound to have made a submission that even though Ms W’s hearsay statements satisfied the conditions in section 116(1) and (2)(a), the court should exercise its power to exclude them, pursuant to section 78 of PACE… If the court were to have considered all the factors set out in section 114(2) of the CJA as a kind of checklist, we think that, inevitably, the scales would have come down firmly in favour of excluding the statements.

… It seems to us that the clear effect of the judgments of the Court of

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Appeal and Supreme Court is that it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it can be admitted. That is also the view of the Grand Chamber of the ECtHR. That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the CJA.

Even if that view were wrong, the Court concluded that the judge should have acceded to the defence submission made pursuant to s.125 of the CJA (at paras 108 and110):The judge erred in stating that the evaluation of the untested hearsay evi-dence of Ms W was a matter for the jury. First, under section 125(1)(a) the judge had a duty to decide whether the case against the appellant on count 1 was based wholly or partly on Ms W’s statements... Secondly, under section 125(1)(b) the judge then had to decide whether the evidence was so ‘uncon-vincing’ that, considering its importance to the case against the appellant on count 1, his conviction of the offence would be unsafe.

We are not convinced that the test in section 125 and that in Galbraith will necessarily be the same. When there is a submission of no case to answer, the judge does not have to satisfy himself that the relevant evidence has been shown to be reliable before leaving the case to the jury. Under Gal-braith, provided the evidence gets over the threshold tests set out in that case, issues of reliability and the importance of particular pieces of evidence

are quintessentially jury issues. But under section 125, given the approach of the courts in Horncastle and that of the Grand Chamber in Al-Khawaja, it seems to us that the judge is duty bound to make his assessment of reliabil-ity and importance of the hearsay evidence that has been admitted, before making his decision on whether to let the case proceed or not.

There were also criticisms of the judge’s summing up: she did not specifically invite the jury to scrutinise the evidence in the hearsay statements with particular care; she did not point out specifically the risks of relying on untested hear-say statements which were central to the prosecution case on count 1; she did not draw the jury’s attention specifically to the discrepancies between the various statements.

[Comment: The Court of Appeal carefully weighs up the “counterbalancing measures” contained in the CJA 2003 and in the common law. The four questions identified may well prove useful to trial judges, as is the analysis of Profes-sor John Spencer mentioned by the Court (above), which comes from his Feature article at [2012] 1 Archbold Review 5 (though not so attributed by the Court of Appeal!)].

FeatureCovert Surveillance—A Snoopers’ Charter?By Adam Gersch,1 of Argent Chambers

The United Kingdom could be considered to be the most expansive communications surveillance regime in the dem-ocratic world2 with some estimating that there are more than 4.2m CCTV cameras, the equivalent of one camera for every 14 people. The government now proposes to in-troduce an even more comprehensive surveillance policy: the announced Communications Data Bill. What follows is a brief review of the historical context, some key highlights of the technical and legal changes proposed, and a discus-sion of the ramifications for criminal lawyers.As the law struggles to keep up with the pace of technical innovation, battle lines are being drawn between the ad-vocates of greater state power and control of private com-munications and those who wish to preserve civil liberties and freedom of expression. Lawyers grapple with issues of disclosure and the use of evidence in court; there has been substantial debate on the justification for retaining secrecy in relation to the mere existence of covert surveil-lance and the ban on the use of such material as evidence in court. The present framework for reviewing such issues is increasingly outdated. Although a comprehensive review of the law is required, sweeping powers on the scale pro-posed will be subject to much legal challenge. It remains to be seen whether the new legislation will result in an “arms race” between surveillance attempts and anti-surveillance tactics.3

1 I am grateful to Rebecca Bax for her research assistance.2 Police Engagement Network, Briefing on the Interception Modernisation Programme (LSE, 2012), p.46, available at www.lse.ac.uk/collections/informationSystems/research/policyEngagement/IMP_Briefing.pdf3 See Bart Cammaerts and Bingchunn Meng at eprints.lse.ac.uk/39659/1/blogs.lse.ac.uk-The_DEA_and_our_online_privacy.pdf

The secrecy governing the existence of covert surveil-lance means that there are many cases where misuse goes unchallenged. Protections are difficult to apply when parties are not even aware that covert surveillance features in a case. Supervision and review of the existing and the proposed new powers provides the only real safe-guard against abuse. If non-disclosable covert informa-tion is obtained more routinely, in circumstances where the reliability of that information is not susceptible to any challenge or independent scrutiny, there is a real danger of an increasing number of wrongful convictions.4 Any appellate judgment may be outdated by the time the case has been heard and the decision reported: technological developments are evolving at a pace that is much faster than reported consideration of those changes by the courts.

Historical developmentTelephone tapping and recording of telephone calls by the police for the prevention or detection of crime was given statutory recognition in s.80 of the Post Office Act 1969. In Malone v Metropolitan Police Commissioner (No.2) [1979] Ch. 344, M failed to persuade the domestic court of the mer-its of his civil action for a declaration that the interception of his telephone calls (which supported his prosecution for handling stolen goods) was unlawful and breached his Eu-ropean Convention rights under Arts 8 and 13. The court held that there was no general right to privacy nor was there any right of confidentiality arising from the provision of telephone services but suggested that any regulation of 4 See the dreadful example only this week of the release of Sam Hallam, having served years in prison for a murder he did not commit.

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telephone tapping and its complexities ought to be a matter for legislation. Eventually, M won his case in the European Court of Human Rights5 paving the way for the Interception of Communications Act 1985.Prior to the 1985 Act, and notwithstanding apparent protec-tions under the European Convention on Human Rights, various forms of interception and covert surveillance were conducted by the state under the Royal Prerogative with no formal statutory oversight. When the UK telecommu-nications industry evolved from a branch of the state-run General Post Office to British Telecom to a privatised com-pany, further legislation was required. Covert surveillance authorised on the basis of a “nod and a wink” was no longer a workable option.The Interception of Communication Act 1985 created an offence of unlawfully intercepting communications sent by post or by a “public telecommunications system”. The Act provided for legal permission to be granted for inter-ception of communications subject to a system of warrants and provided a legal framework for lawful interception. It also established a complaints tribunal, the forerunner to the Investigatory Powers Tribunal (IPT) and created the Inter-ception of Communications Commissioner to oversee the use of intercepts.The most comprehensive and significant reforms came with the Regulation of Investigatory Powers Act 2000 (RIPA) which regulates five different types of surveillance: (i) interception of communications: telephone calls or con-tent of emails, (ii) intrusive surveillance: covert surveil-lance in residential premises or private vehicles, (iii) di-rected surveillance: covert surveillance in a public place, (iv) Covert Human Intelligence Sources: informants or un-dercover agents and (v) communications data: any record of the communication but not the actual content of the com-munication. RIPA also contains controversial provisions enabling delegated legislation. Organisations as diverse as the Royal Pharmaceutical Society and the Milk Marketing Board were given new powers to conduct covert surveil-lance. By 2008, there were a reported 792 agencies actively using RIPA including hundreds of local authorities.6 Com-plaints from the subjects of covert surveillance have includ-ed a nursery suspected of selling pot plants unlawfully, a family suspected of lying in a school application7 and paper-boys suspected of wrong paperwork. Lady Manningham-Buller, the former head of MI5, expressed her concerns to the House of Lords8:When RIPA was introduced ... I assumed wrongly that the activities author-ised by that legislation would be confined to the intelligence and security agencies, the police, and Customs and Excise. The legislation was drafted at the urgent request of the intelligence and security community so that its tech-niques would be compatible with the Human Rights Act when it came into force in 2000. I can remember being astonished to read that organisations such as the Milk Marketing Board, and whatever the equivalent is for eggs, would have access to some of the techniques. On the principle governing the use of intrusive techniques which invade people’s privacy, there should be clarity in the law as to what is permitted and they should be used only in cases where the threat justified them and their use was proportionate.

5 Malone v United Kingdom (A/82) (1985) 7 E.H.R.R. 14.6 http://www.guardian.co.uk/politics/blog/2008/dec/10/terrorism-law7 Paton v Poole BC (2000) IPT/09/01/C where the IPT ruled that this was not a proper purpose for surveillance and breached the family’s right to privacy. (The IPT is the judicial body established to determine ECHR and HRA based claims against the conduct of the agencies and public authorities with RIPA powers.)8 http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/81209-0006.htm#08120935000423; December 9, 2008, Col.297.

Despite Home Office assertions that RIPA is supervised by “a strict regulatory framework”, there are few safeguards in place. The Home Office now seeks wide ranging powers to monitor data in real-time and to retain this data without a warrant but with senior officer authorisation. The pro-posed changes deal with “communications data” and not “content”.9 According to the new proposals, “communica-tions content” will only be sought on the basis of a Home Secretary signed warrant. Such a protection, the Home Office argues, will safeguard abuse and privacy concerns. Evidence derived from “communications content” would be inadmissible evidence, presently covered by s.17 of the RIPA which provides that:(1) ... no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)—

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.

Advocates can be left tongue-tied if clients who correctly suspect that they are under surveillance refer to this in their evidence in front of a jury. The author was involved in one such case where the defendant spontaneously told the jury that police had withheld records of surveillance on him which he believed would assist his case. As the defendant had in fact been under surveillance, neither counsel was able to comment. This bar relates to the “content of commu-nications”. Whilst s.17(1)(b) is potentially wide, advocates tend to treat any references to covert surveillance in the same way as references to PII and often the rules overlap. Lord Lloyd proposed a private members bill10 in 2006, cur-rently before the House of Lords, which would abolish s.17 of RIPA. The Bill is unlikely to succeed but has generated much debate.When the Anti-Terrorism, Crime and Security Act 2001 was rushed through Parliament in the wake of the Sep-tember 11 terrorist attacks, voluntary codes of practice were introduced for the retention of data. The responsi-bility for retention fell on the communications services providers (CSPs). To comply with Art.8 of the European Convention on Human Rights, CSPs have to demonstrate a real need for data retention rather than its wholesale capture in case it is needed at some future point in time.11 Since April 2009, when the UK introduced EC Directive 2006/24, CSPs have been required to retain specific com-munications data for a period of six months to two years. Since many telephone services allow unlimited calls and broadband internet services do not require detailed data recording for billing purposes, arguably less information is retained as it is never collected. Conversely, where too much data is collected, this in itself can render its use un-workable.12

9 Distinguishing between communications “data” and “content” is problematic. “Data” would include detailed telephone bills, a list of the times of text messages between numbers or cell site information. “Content” might include an actual recording of a telephone call.10 Interception of Communications (Admissibility of Evidence) Bill.11 Briefing on the Interception Modernisation Programme, LSE, p.9.12 Thus US intelligence services have been criticised for failing to act on specific intelligence about planned terror attacks where the threat has been one of many thousands being monitored.

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New proposalsSweeping powers of surveillance were announced in the Queen’s speech on May 8, 201213:My Government intends to bring forward measures to maintain the ability of the law enforcement and intelligence agencies to access vital communica-tions data under strict safeguards to protect the public, subject to scrutiny of draft clauses.

The last Labour government made similar proposals in the Interception Modernisation Programme (IMP) in 2006. The IMP was expected to form part of a Communi-cations Data Bill announced in May 2008 but was ditched in 2009 when concerns were raised about cost and feasibil-ity. When the Coalition government came to power in May 2010 the policy was revived under a new name—Commu-nications Capabilities Development Programme (CCDP); it is these measures which form the substance of the new proposals.The powers to be introduced are for the purpose of “main-taining capabilities” of police, public safety and national security authorities to keep up with terrorism and or-ganised crime. Data collected would include information not usually gathered by CSPs, such as email recipients or details from instant messages, and other third-party data which could only be gathered through interception and “deep packet inspection”. According to the Home Office14 it will implement key proposals for the storage and acquisition of internet and email records, including introducing legislation as necessary by the end of June 2015. It is unclear when a draft bill may be introduced, but a select committee is likely to examine the proposals before enactment.

Black boxes/DPIDeep packet inspection (DPI) is not a reference to the in-timate search of your crisps. It involves the use of “black boxes”, devices that filter the data stream sent to all the customers of CSPs, extract and retain the communications data and reject the content.15 DPI is used by the CSPs to analyse the content, in addition to the communications data which is being used. As an automated system, DPI is unable to distinguish between when a CSP has received a warrant, granting permission to actively look at the con-tent, and when there is no warrant present. Further, any form of DPI would be currently classed as an interception under s.1 of RIPA and thus illegal unless covered by an appropriate warrant.16 Current provisions allow the inter-ception of the entirety of a communication (content and data) in the course of travel, subject to a warrant issued by the Secretary of State. Once obtained, the information is however inadmissible in evidence in any legal proceed-ings. All intercepts are also subject to the Data Retention (EC Directive) Regulations 2009.At the LSE’s recent Scrambling for Safety conference, Douwe Korff17 suggested that in order to comply with the most basic of data protection regulations three principles should be considered. First, personal data must be col-lected for specified, explicit and legitimate purposes and

13 www.cabinetoffice.gov.uk/queens-speech-201214 Home Office Structural Reform Plan Monthly Implementation Update, April 2012, para.5.3.15 Briefing on the Interception Modernisation Programme, LSE, p.37.16 ibid. p.21.17 http://scramblingforsafety.org/2012/korff.pdfScrambling for Safety, London School of Economics, The European legal framework, April 19, 2012.

not further processed in a way incompatible with those purposes. Secondly, personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data was collected or for which it is further processed. Thirdly, any departure from these basic principles con-stitutes an “interference” with the right to private life and, if related to communications, with the right to re-spect for [the confidentiality of] one’s communications. If such interferences are to have a proper legal founda-tion they must be “necessary” and “proportionate”. Korff raises serious concerns about the compatibility of the new proposals with EU law, in particular the European Commission Data Retention Directive (DRD). The DRD does not cover much of the data that would be collected under the new proposed reforms, including data such as that generated by the use of technology such as Skype or instant messaging and social networking sites such as Facebook.Other concerns are more practical. Jim Killock, Execu-tive Director of the Open Rights Group, responding to the announcement of the Communications Data Bill said “[g]aining access to your Facebook and Google data with-out court supervision is not preserving powers, it is a mas-sive extension of the ability of a police officer to see what you are doing.”18

Practical and technical challengesAnecdotal experience from criminal practitioners is that it is unusual to find cases where RIPA authorisation is refused; prosecutions by benefits agencies and local authorities reg-ularly make use of covert surveillance in routine cases. Pro-fessor Peter Sommer, an expert in digital forensics, argues that the definitions of “communications data” and “com-munications content” lack clarity and thus are difficult to enforce.19 If the telephone company or internet service pro-vider (ISP) gets the designation wrong and releases “con-tent” without a warrant, it would commit a criminal offence. Challenges to these definitions could also open the way for abuse of process arguments and applications to exclude the evidence obtained.Strictly speaking, data in internet terms is limited to the command a user sends to a remote web-server and every-thing else is content. It becomes more complex when one considers that references to the content of web pages can be defined by the long web link address (HTML) that ap-pears beyond the home web address. The legal aims and technology have to be tightly coupled and the legislation will not succeed unless these definitions properly reflect how the surveillance method works.Further, the increasing use of webmail, bulletin boards, in-stant messaging, social media, voice over internet teleph-ony (VoIP), apps, widgets, internet connected games con-soles and smart TVs means there is no easy way to discern the difference between data and content. The lack of clarity in the Home Office proposed definitions is therefore a rec-ipe for spiralling costs in implementation, may not comply with Human Rights obligations and is likely to generate le-gal challenge.

18 www.openrightsgroup.org/press/releases/comms-data-bill-will-mean-widespread-snooping-powers19 “Scrambling for Safety”, London School of Economics, The European legal framework, April 19,

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When analysing emails and other forms of data that contain “data” and “content” it may not be possible to separate the different categories of material simply using technology. If this process cannot be automated, analysts would be re-quired to undertake this manually—an incredible waste of time and resources. The alternative is to change the legal definition to “appropriate information” which would then al-low wholesale surveillance without the protection of a war-rant being issued.The introduction and use of “black box” measures poses a potential risk by opening up further security vulnerabili-ties within the UK’s critical national infrastructure.20 The new proposals will require CSPs to retain “black boxes” and conduct DPI on an on-going basis. Several concerns arise over the excessive use of such technology. There is the excessive cost that this will take to implement. Many more government IT projects fail than succeed, as a result of excessive cost and red-tape.Whilst the new proposals are estimated by the govern-ment to cost in the region of £2 billion, the LSE21 suggest that the real cost may be closer to £12 billion (based on government allocations) and that the measures will not be effective against terrorism. Rather they simply represent a general-purpose surveillance of the entire nation.22 With a vast amount of data being collected on an unprecedented scale, the requirements of retention, analysis and engage-ment of huge numbers of analysts will prove incredibly difficult. Many may argue that the cost and resource re-quired would be better spent on boosting existing law en-forcement.There is the fundamental problem of relating the informa-tion obtained to a particular individual or individuals. An IP address, the computer’s unique footprint, can be changed or hidden behind others. Internet cafes can also be used or communications made within internet games software. Extensive use of Wi-Fi enables vulnerable networks to be exploited and can render suspicious communications un-traceable.A further concern is that law enforcement officers of-ten appear to have little appreciation of the concept of proportionality.23 Examples include officers who believe that directed surveillance conducted from a public place renders the activity overt or those who state that sur-veillance was proportionate because it is the only way to further the investigation. Documentation of surveillance has been found to be poor, a major concern given that any supervision of powers is heavily reliant on adequate record keeping. Many human rights groups have con-cluded that RIPA powers are already widely abused by government agencies.

Implications for criminal lawyersSurveillance of internet and email traffic becomes more complex given the international nature of the internet; an 20 http://www.bigbrotherwatch.org.uk21 Briefing on the Interception Modernisation Programme, LSE, pp.4 and 45.22 http://wiki.openrightsgroup.org/wiki/Communications_Data_Bill-Queen’s Speech debate, May 9, 2012 as per David Davis MP.23 Annual Report of the Chief Surveillance Commissioner (Sir Christopher Rose) to the Prime Minister and Scottish Ministers for 2007–2008, pp.12–13.

ISP can be located in any jurisdiction. Identification of a sus-pect is also challenging with software available that covers electronic tracks and the frequently encountered difficulty of multiple users of computers or devices. Opportunities to challenge the evidence relied upon to locate a suspect may be limited if the present regime of non-disclosure of the existence of covert surveillance is maintained. Internet connections can be hijacked, creating a reverse burden of proof on the legitimate user of the computer or device in demonstrating that they were not to blame for a suspicious communication.As more covert surveillance becomes lawful and interna-tional information is shared between friendly states, the Crown Prosecution Service has a greater challenge in discharging its disclosure obligations. The prosecutor’s duties with regard to the disclosure were clarified by the Court of Appeal in GS [2005] EWCA Crim 887: the validity or otherwise of surveillance authorisations goes to lawful-ness and not admissibility.24 In the event that mass surveil-lance is permitted and access to such material widened, officials may engage more frequently in “fishing expedi-tions”. This may prove to be a blunt instrument when it comes to investigation of an offence. The nature of the al-leged offence should be a factor in deciding what type of intrusion is justified. It remains unclear how information obtained will be regulated and overseen. No doubt further criminal offences will be introduced for misuse of informa-tion or breach of guidelines. Meaningful supervision and compliance is difficult to achieve when more resources are put into the monitoring of data than its regulation. Unless it is fully resourced, any regulator cannot do more than scratch the surface to ensure compliance with the rules. A tiny fraction of complaints are ever considered against many thousands of authorisations for covert surveillance: in 2010 there were just 164 cases of complaint to the IPT of which 6 were upheld.25

ConclusionThere are strong reasons to seek to enhance security by exploiting the latest technology to fight national and signifi-cant threats. As the Prime Minister stated,26

I do not want to be the Prime Minister standing at this Dispatch Box saying ‘I could have done more to prevent terrorist acts, but we did not have the courage to take difficult steps’.

Yet there are reasoned concerns of those who oppose wholesale surveillance of law abiding members of society. Whatever individual standpoint is taken in respect of the forthcoming Communication Data Bill, it is clear that this will represent the most significant piece of legislation of covert surveillance that we have ever seen. There is a real need for further discussion of the legal implications of such measures in the coming months. Do of course be careful what you say, where, on what device and to whom (just in case...).

24 See also CPS Legal Guidance—Disclosure Manual Chapter, 26.8.25 Investigatory Powers Tribunal Report 2010 available at http://www.ipt-uk.com26 Queen’s Speech Debate, May 9, 2012.

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CommentAdmissions in PCMH StatementsBy L.H.Leigh, Formerly Professor of Criminal Law at the LSENewell [2012] EWCA Crim 650; [2012] 4 Archbold Review 3 deals with when a statement by a defendant’s advocate in a PCMH form should be excluded under PACE s.78 not-withstanding that it is, as a matter of law, admissible. The issue here was whether the trial judge was right to admit as evidence a previous inconsistent statement that the appel-lant’s previous counsel wrote on a PCMH form at a PCMH hearing. The appellant was charged and convicted of pos-session of cocaine with intent to supply. He gave a no com-ment interview. At a PCMH in November 2010 neither the Crown nor the defence advocate were advocates at the trial. No defence case statement had been served. In answer to question 10.4 on the PCMH form which asks what the real issues are if not clear from the defence case statement the appellant’s advocate wrote “no possession”.On the first day of the trial (in July 2011) a defence case statement was prepared in which the appellant admitted possession of the cocaine but denied intent to supply. He further said that he had earned the money found and that it was not attributable to the supply of drugs. The prosecution then added a further count of simple possession to which the appellant pleaded guilty.Prosecution counsel sought to and was permitted to cross-examine the appellant on counsel’s entry on the PCMH form on the grounds that it was inconsistent with his de-fence and with his plea of guilty to possession. The appel-lant said that the entry was the result of a misunderstanding by counsel. The judge after giving two adverse inference directions directed the jury that if it was satisfied that the words “no possession” were entered at the appellant’s insti-gation it could treat those words as a lie and if so consider whether this supported the case against him.Two issues arose on appeal: whether the statement was ad-missible and, if so, whether it should have been excluded under PACE s.78. This latter question raised issues concern-ing the nature and purpose of PCMH statements. On admis-sibility, the law is clear. CJA 2003 s.118(1)(a) preserved the common law rule that an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated. The circumstances here were such that what counsel said was prima facie authorised by the ap-pellant (see Turner (Bryan) (1975) 61 Cr.App.R. 67; Hayes [2004] EWCA Crim 2844. Ordinary principles of agency ap-ply.1 The trial judge was therefore entitled to conclude that the statement was admissible against the appellant.

Discretion to excludeThis, the more difficult issue in this case, raised questions concerning the nature and purpose of the PCMH and its form. In R. (Firth) v Epping Forest Magistrates’ Court [2011] EWHC (Admin) 388 the defendant, charged with assaulting a woman on a train, identified the issue on a Case Progres-sion Form (now superseded by a Trial Preparation Form) 1 A possible problem with the hearsay rules where a statement is not made by counsel before the court is identified by Ormerod at [2011] Crim.L.R. 717.

as self-defence. By implication therefore he was present and used force against the victim. Charged with a more serious offence the defendant challenged the sufficiency of identifi-cation evidence. The prosecutor sought to rely on what was said in the Form as evidence that he was present at the scene of the offence. The Divisional Court, emphasising the values of the overriding obligation to deal with cases justly, to assist the court, and in particular, mutual disclosure by the defence and prosecution of their respective cases held that what was contained in the statement did not amount to compulsory self-incrimination, and did amount to an admission and not merely a forecast of the issues to be raised. Save exception-ally where PACE s.78 might apply the emphasis should be on admissibility. This raised fears on the part of defence so-licitors who became somewhat reticent about providing in-formation. The CPS then issued guidance to the effect that assertions in PCMH forms should not be used to bolster an inherently weak case. An application to raise such evidence should only be made where necessary and appropriate, for example to counter an ambush defence.The Court of Appeal, having looked carefully at the nature and spirit of the Criminal Procedure Rules, has now clari-fied matters. The Rules do not dispense with the Crown’s obligation to prove its case. Information in a PCMH form is intended to provide information to assist the Court. Un-less the position is clear concerning the status of informa-tion in the form the administration of justice could be ham-pered. The danger to be guarded against is the possibility that information provided to assist the court would be used against the defendant as an admission, so leading to reluc-tance by the defence to comply fully with the rules.2The CPR require openness in the identification of issues. Breaches of the requirements attract sanctions provided for by r.11. Provided that the case is conducted in accordance with the letter and spirit of the Criminal Procedure Rules in-formation or a statement contained in a PCMH form should not be admitted in evidence as a statement that can be used against the defendant. It should be excluded under PACE s.78. In an exceptional case different considerations may arise. As the court points out these issues are fact-specific. By way of example the Court cites a case where no defence case-statement has been provided, where the defence at-tempts an ambush defence, and where the proposed de-fence has not been suggested on the PCMH form. Evidence of statements in the form in such an exceptional case as this could be admitted where to do so would avoid an adjourn-ment. Such cases, as the Court states, will be rare. It may parenthetically be thought that they would represent a fail-ure of case management by the Court as well as the parties.The position in the magistrates’ court is similar. Statements in a Trial Preparation Form should not normally be admit-ted where they are not contained in that section of the form relating to admissions.

2 A. Edwards, “Case Management Forms” [2011] Crim.L.R. 547.

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Editor: Nicola PadfieldCases in Brief: Richard PercivalSentencing cases: Dr David Thomas Q.C.Articles for submission for Archbold Review should be emailed to sweetandmaxwell.archboldreview@thomsonreuters.comThe views expressed are those of the authors and not of the editors or publishers.Editorial inquiries: House Editor, Archbold Review.Sweet & Maxwell document delivery service: £9.45 plus VAT per article with an extra £1 per page if faxed. Tel. (01422) 886277Archbold Review is published by Sweet & Maxwell, 100 Avenue Road, London NW3 3PFPart of Thomson Reuters (Professional) UK Limited(Registered in England & Wales, Company No 1679046. Registered Office and address for service: Aldgate House, 33 Aldgate High Street, London EC3N 1DL)For further information on our products and services, visitwww.sweetandmaxwell.co.ukISSN 0961–4249© 2012 Thomson Reuters (Professional) UK LtdSweet & Maxwell ® is a registered trademark of Thomson Reuters (Professional) UK Ltd.Typeset by EMS Print DesignPrinted by St Austell Printing Co

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