Tuesday Law Report: Pager messages could be intercepted

THE TRANSMISSION of pager messages on the radio wave of a private system between a base station and individual receiving sets was not protected from interception by the deeming provisions of section 10(2) of the Interception of Communications Act 1985.

The Court of Appeal dismissed the appeal of Sean Taylor-Sabori against his conviction, with others, of conspiracy to supply a Class A controlled drug.

The prosecution alleged that the appellant and a co-accused Hahn were the principal financiers and organisers of an operation to supply MDMA (ecstasy). The appellant appealed against his conviction on the ground, inter alia, that the trial judge had erred in law in admitting evidence of pager messages sent from Holland.

Shaun Spencer QC and Paul Marshall (Registrar of Criminal Appeals) for the appellant; Anthony Donne QC and Paul Lambert (Crown Prosecution Service) for the Prosecution.

Lord Justice Henry said that the appellant had sought to exclude evidence of the communications on the ground that their interception by the police had been done without a warrant and so was a criminal offence under section 1 of the Interception of Communications Act 1985, because the police had "intentionally intercept[ed] a communication in the course of its transmission . . . by means of a public telecommunications system".

The messages in question had emanated from Holland. The sender would telephone the pager bureau in the United Kingdom. That was on the normal landline, which was, once within the UK, part of the BT public telecommunication system. The sender would give his message orally to the operator, who would key it into the computer terminal, and read it back to the sender for confirmation.

The written message on the computer would then be sent from the pager bureau to the pager terminal, again on the public telecommunication system. At the pager terminal, the written message would be relayed by radio transmission to one of four regional base stations, where the electronic pulse which reflected the typed message would be converted into radio waves and sent to the appellant's pager. The messages were then intercepted by the police, who had acquired pagers which responded to similar signals.

At the time of interception, therefore, it was clear that the communications intercepted were, in the words of section 10(2) of the1985 Act, transmissions "otherwise than . . . by means of a public telecommunications system".

Under section 10(2) such a transmission would be deemed to be "in the course of its transmission by [a public telecommunication system]" if a) it was to be or had been transmitted by such a system; and b) it had been sent from, or was to be sent to, a country or territory outside the British Isles. That deeming provision did not however come into play unless, inter alia, the following further requirement was satisfied, i.e. that the "mode of transmission" at interception "identified" the communication as one which satisfied a) and b) above.

It was clear that section 10(2) was there to bridge the gap between a message leaving the protected public system of a foreign state (at its borders) and coming within our protected public system (at our borders). If the message was transferred from border to border by, for example, satellite, the satellite used would identify the communication as coming from the Dutch public system for connection with ours.

Section 10(2) thus preserved the integrity of transmission on, for example, satellite, which would otherwise be without the protection of the Act. It did nothing, however, to prevent the interception of messages on the radio wave of the private system between the regional base stations and the receiving sets of each individual. That "mode of transmission" did not identify the communication as having been sent from a country outside the British islands.

Kate O'Hanlon,

Barrister