Phone-hacking: The law may be difficult to understand but that’s no excuse

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By Simon McKay

In 1928 the iconic United States Supreme Court Justices Holmes and Brandeis dissented in a judgment that ruled the product of telephone conversations derived from “wiretapping” admissible. With characteristic eloquence, Mr Justice Brandeis held that “the confined criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw”. The judges could be forgiven for thinking that, at least in terms of the English law, eighty years on, things haven’t changed much.

There is a connection between the phone hacking row, which appears to be the preserve of celebrities who fear their calls may have been listened into and the changes to control orders, inelegantly re-named Terrorism Prevention and Investigatory Measures. On the one hand, there is a gaggle of media lawyers and their clients complaining that the Metropolitan Police has failed to take action against individuals eavesdropping on the most private of conversations and on the other the same material is secretly relied upon by the State to confine individuals, who have not been convicted of any offence, to effective house arrest and to impose other Orwellian sanctions. The apparent juxtaposition becomes manifest; the police and agencies rely on the material to counter terrorism, yet appear impotent in terms of investigating allegations of what is given the seemingly neutral term of phone hacking.

There needs to be some attempt to de-mystify what is meant by phone hacking, sometimes referred to as phone tapping. It is clear that practically what is meant is eavesdropping on voicemail messages.

Previously the police have asserted they could not rely on the evidence provided on the ground that it is not admissible. This is a reference to a legal provision in the Regulation of Investigatory Powers Act 2000 that prohibits the use of intercept product in court proceedings. However, it has been misunderstood. The prohibition largely relates to product of intercept warrants that the State obtains to protect national security and investigate other threats as well as serious crime – this is why terror suspects aren’t prosecuted in the criminal courts – the intelligence implicating them cannot be used for this purpose. It expressly does not apply where an illegal interception has occurred.

But is a third party listening to a voicemail an interception? The simple answer is that it might be, particularly if it has not been listened to (if it is, it is a criminal offence) but if it is not, it is almost certainly an offence under the Computer Misuse Act 1990. Where such offences may have been committed there is no question that the incident and evidence of interception or hacking is admissible and capable of being used by the police. Even if there was an argument to the contrary, the consent of the “victim” alleviates any remaining difficulty concerning the issue (if an individual consents to their calls being intercepted the prohibition on admissibility no longer applies).

To fair to the police, the highest courts in the land have found the question of what may amount to an interception “particularly puzzling” and the legislation “difficult to understand”. It is almost impenetrable but that is not really any excuse.

Add to this the fact that the law in this area is under review (again). A cynic could muse what all the fuss is about; surely the simplest thing would be to make the product of intercept admissible, even if it would earn the enmity of Justices Holmes and Brandeis? This would mean the celebrity gets their redress and the terror suspect his or her day in court (even the tax payer catches a break and no longer has to meet the bill for control orders, lawyers fighting control orders, or new governments re-naming control orders). However, successive governments are reluctant to cross this constitutional Rubicon in the belief, which is becoming increasingly difficult to justify, that making intercept admissible will in some way undermine the way we fight terrorism. That is a very different debate. For present purposes, it is sufficient to hear the echoes of Brandeis’ wisdom and allow everyone equality under the law; those accused, whether journalist or terrorist, as well as those whose rights may have been unquestionably violated.

This article is reposted with permission from The Times [subscription required]. Simon McKay is a solicitor-advocate and author of Covert Policing: Law & Practice.