rebekah-brooks-andy-coulsonThe Court of Appeal, Criminal Division, today dismissed appeals by phone hacking defendants from a ruling of Mr Justice Fulford that the interception of previously read voicemails was an offence under section 1(1) of the Regulation of Investigatory Powers Act 2000 (“RIPA”). The unsuccessful appellants included Rebekah Brooks, the former chief executive of News International, and Andy Coulson, David Cameron’s former head of communications.

The Lord Chief Justice, giving the judgment of the Court ([2013] EWCA Crim 1026), upheld the trial judge’s preliminary ruling that section 2(7) RIPA extends the concept of transmission to include the period when the transmission system stores the communication, in such a manner that enables the intended recipient to have access to it, whether or not it has previously been received by the intended recipient.

The Court allowed the names of the defendants to be reported today on the grounds that there was no one in the country who did not know who they were, saying that “We must not be unrealistic. There can hardly be anyone in the country who does not know to whom this case applies.”

The Court refused leave to appeal to the Supreme Court and refused to certify that there was a point of law of general public importance.  This means that the application for permission cannot be renewed in the Supreme Court (Gelberg v Miller [1961] 1 WLR 459).

The criminal cases against these defendants, along with three others, will now commence on 9 September 2013 at the Old Bailey.

The defendants, who also included former News of the World news editor Ian Edmondson, former senior reporter James Weatherup and former managing editor Stuart Kuttner had argued that section 1 of RIPA  did not extend to cover voicemail messages once they have been accessed by the intended recipient.

Section 1(1) RIPA which provides:

 “1.— Unlawful interception.

 (1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of–

 (a) a public postal service; or

 (b) a public telecommunication system.”

The appellants argued that the references in RIPA to the “course of transmission” in the context of the use of a telephone system should be understood as meaning that the transmission ends when the signal delivered to the handset is converted back into sound waves or the call is terminated [10].   The Crown contended that the effect of section 2(7) was to extend the meaning of “the course of transmission”

Section 2(7) provides:

 “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 issue was, therefore, whether section 2(7) meant that the period of storage referred to comes to an end on first access or collection by the intended recipient or whether it continues beyond such first access for so long as the system is used to store the communication in a manner which enables the intended recipient to have subsequent or even repeated access to it.

The Court considered the statutory language concluding that

“these words in their natural meaning are entirely apt to cover a situation, such as that presently under consideration, where a message having been initially received by the intended recipient is stored in the communications system where the intended recipient may thereafter have access to it by playing back the message. In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation”. [27]

The Court also considered the effect of Directive 97/66/EC of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (“the 1997 Directive”). This was because one purpose of RIPA was to implement Article 5 of the 1997 Directive and, as a result, as far as possible RIPA had to be interpreted in a manner which was consistent with it.

The Court held that section 2(7) had gone beyond what was required by the Directive but what it did was not prohibited by EU law [39].

As a result, the appeal was dismissed.