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trewmte
(@trewmte)
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POLICE — Powers — Special procedure material — Police seeking e-mail information from telecommunications company — Company having to transfer e-mails to preserve information pending court hearing — Whether unlawful interception — Police and Criminal Evidence Act 1984, s 9, Sch 1, para 11 — Regulation of Investigatory Powers Act 2000, s 1(1)(b)(5)©
R (NTL Group Ltd) v Crown Court at Ipswich
QBD Lord Woolf CJ and Curtis J 22 July 2002

A telecommunications company would not commit a criminal offence under s 1 of the Regulation of Investigatory Powers Act 2000 if it intercepted e-mails which were the subject of an application for production of special procedure material in order to preserve them pending the hearing of the application.

The Queen's Bench Divisional Court so held in dismissing an application by NTL Group Ltd, a telecommunications company, for judicial review of the decision of Judge Devaux, sitting in the Crown Court at Ipswich on 27 September 2001, to grant an application by the Chief Constable of Suffolk Constabulary under s 9 of and Sch 1 to the Police and Criminal Evidence Act 1984 for an order for the production of special procedure material in the form of e-mail information relating to a particular e-mail address during a specified period.

The 1984 Act provides by Sch 1, para 11 "Where notice of an application for an order … has been served on a person, he shall not … destroy … or dispose of the material to which the application relates except (a) with the leave of a judge; or (b) with the written permission of a constable, until (i) the application is dismissed or abandoned; or (ii) he has complied with an order … made on the application."

The 2000 Act provides by s 1 "(1) It shall be an offence for a person intentionally and without lawful authority to intercept … any communication in the course of its transmission by means of … (b) a public telecommunication system … (5) Conduct has lawful authority for the purposes of this section if, and only if … © it is in exercise, in relation to any stored communication, of any statutory power that is exercised (apart from this section) for the purpose of obtaining information or of taking possession of any document or other property; …"

LORD WOOLF CJ, giving the judgment of the court, said that NTL had a computer system which automatically stored e-mails from an internet service provider. The e-mails were routinely deleted one hour after being read by the recipient. The only way to preserve a customer's e-mails was to transfer them to a different address. NTL submitted that any order made by the court on an application under s 9 of the 1984 Act could not apply to information in the system prior to the order being made because, if it took the steps contemplated by para 11 of Sch 1 to the 1984 Act to preserve the information pending the court hearing, it would be committing an offence under s 1 of the 2000 Act. In their Lordships' judgment, in view of s 2(7)(8) of the 2000 Act there would be an offence committed by NTL if it transferred e-mails to another address so that they could be available subsequently if the court made an order under s 9 of the 1984 Act, unless NTL were entitled to rely on some lawful authority. The question was whether para 11 of Sch 1 provided statutory authority for such action for the purposes of s 1(5)© of the 2000 Act. Their Lordships found it impossible to accept that the intention of Parliament in legislating in the terms it did in s 1 of the 2000 Act was to defeat the police's powers under s 9 of the 1984 Act for all practical purposes. It was implicit in the terms of para 11 of Sch 1, when read with s 9, that a body subject to an application under s 9 had the necessary power to take the action which it had to take to preserve e-mails within the system until such time as the court decided whether or not to make the order. That implicit authority provided lawful authority and no offence was committed if NTL acted in accordance with para 11 of Sch 1 when served with an application under s 9.

Appearances Anthony Hudson (Charles Russell) for NTL; Rupert Overbury (County Solicitor, Suffolk County Council, Ipswich) for the Suffolk Constabulary, as interested party.
Reported by Jill Sutherland, barrister.

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International Conference for Communications Interception 2010

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Posted : 07/09/2009 4:30 am
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