APPENDICES
amount to interception of a communication within s2.436 Further, a recording of one side of a telephone conversation picked up by a surveillance device in a car that does not record the speech of the other party does not amount to interception of a communication.437
¶5.8 The Inquiry has heard evidence that there has been some uncertainty as to the circumstances
in which an offence will be committed under s1, and the interpretation of interception, as defined in s2(2).438 In particular, the statutory provisions are unclear as to whether an offence will be committed only if a voicemail message was intercepted before it was accessed by the intended recipient (the narrow view), or whether an offence is also committed if a communication is intercepted after it was accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which will enable the recipient to have access to it (the wide view). Whilst there is arguably some support for the narrow view in the judgment of Lord Woolf CJ in R (NTL Group) v Crown Court at Ipswich the written opinion of Leading Counsel articulates persuasive arguments in favour of the wide view.439 Without seeking to determine the point, I endorse the view expressed by Leading Counsel that there are convincing arguments in support of a wider construction of the meaning of interception.
¶5.9 The offence is not committed in circumstances where the person intercepting the
communication has lawful authority to do so. Lawful authority is defined in s1(5) as: (a) authorisation by virtue of the consent to the interception of both the person who sent the communication and the intended recipient of the communication (s3); (b) authorisation under s4 (in relation to a person outside the UK and the interception is in accordance with circumstances set out in regulations made by the Secretary of State)440 (c) interception takes place in accordance with an interception warrant (s5); (d) interception in relation to any stored communication in the exercise of any statutory power that is exercised for the purpose of obtaining information or of taking possession of any document or other property.
¶5.10 The provisions and procedures in relation to issuing, exercising and overseeing a warrant are set out in ss5-11 of RIPA. 5.11 There is no public interest defence for breach of the provisions and there is no provision
for anyone outside the police or security services to obtain a warrant to intercept calls or messages.
¶5.12 The maximum penalty on conviction on indictment is a term of two years of imprisonment and/or a fine, or on summary conviction a fine not exceeding the statutory maximum.
1929¶Appendix 4 | Legal Materials
¶Computer hacking – Computer Misuse Act 1990 5.13 The Computer Misuse Act 1990 was introduced in August 1990 following a Law Commission
report surrounding computer misuse and the need to react to increasing technological development and potential abuse of this technology.441
¶5.14 The Act provides, in ss1, 2,3 Visits 9 Chapter 2: the approach 10 Challenging the evidence 31 The nature and standard of proof 43 Chapter 4: the Report 49 Timing and content 50 PARt B: the PRess And the PuBlIC InteRest 53 Chapter 1: Introduction 55 Chapter 2: the freedom of the press and democracy 56 The importance of a free press: free communication 61 Personal autonomy and civil liberties 73 Prime Minister Blair: 1997-2007 1143 Prime Minister Cameron: 2010-present 1209 Human Rights Act 1998 1262 In particular, in relation to the knowledge and understanding (a) in 2002 of Surrey Police as to the interception of the mobile phone of Milly Dowler and (b) in 2008 of Cleveland Police in relation to e mail hacking of John Darwin who had faked his own death in a canoe 'The Freedom of the Press'-proposed preface to 'Animal Farm', publication of which was delayed until the end of the war to avoid causing offence to the Soviet Union pp361-363, ibid p3, ibid ibid http://www.newscorp.com/investor.html http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 ibid, p4 p16, lines 12-18, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p42, para 83, ibid pp2-3, para 5, ibid para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry- Rules-2006.pdf Transcript of the proceedings before Gross J on 26 January 2007, p70E This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry pp4-5, lines 17-12, Charlotte Church, ibid p34, lines 16-25, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-December-20111.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-Bernard- Hogan-Howe1.pdf pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf p15, para 3.1.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1. pdf pp32-33, lines 4-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-5-December-2011.pdf p26, para 6.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf Part H, Chapter 5, para 2.62 p6, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p22, lines 7-14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-16-May-2012.pdf p4, lines 6-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p6, ibid http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0003. htm#11071379000002 p9, lines 20-25, ibid pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf p9, line 8, Ian Hislop, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning- Hearing-18-January-2012.pdf p4, para 18, and p18, para 85, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement- of-Nick-Clegg-MP2.pdf; pp10-11, lines 15-24, Nick Clegg MP, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf p14, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Hunt-of-Wirral. pdf p36, lines 9-20, Lord Black, ibid p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Campaign-for-Press-and- Broadcasting-Freedom1.pdf p51, lines 11-15, Professor John Horgan, ibid K Part F, Chapter 6 Part K, Chapter 7, para 4.28 K Part K, Chapter 7, para 4.8 In McCartan Turkington Breen v Times Newspapers Ltd [2001] 1 AC 277, Lord Steyn noted that even before the coming into force of the HRA 1988, "the principle of freedom of expression [had] attained the status of a constitutional right with high attendant normative force", with reference made to Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 207G-H and 3A for criminal sanctions for unauthorised access to any
material held on a computer and for impairment of the operation of a computer, with further sanctions if this is done with a view to the commission of a crime and for making, supplying or obtaining articles for use in the relevant offences.442
¶5.15 The Computer Misuse Act introduced three new offences into UK criminal law which can
be summarised in broad terms as follows: unauthorised access to computer material, unauthorised access with intent to commit a further offence, and unauthorised modification.
¶5.16 Section 1 concerns unauthorised access to computer material. It provides that a person is guilty of an offence if they:
(a) cause a computer to perform any function with intent to secure access to any program or data held in any computer;443 (b) the access intended is unauthorised; and (c) the person knows at the time when they cause the computer to perform the function that that is the case.444
¶5.17 The meaning of computer is not defined in the Act, although there are strong arguments in favour of an interpretation which includes a voicemail system within the meaning of computer.
¶5.18 A person guilty of an offence under these provisions is liable on conviction on indictment to
imprisonment for a term not exceeding two years and/or to a fine, or on summary conviction to imprisonment for a term not exceeding six months and/or to a fine not exceeding the statutory maximum.445
¶5.19 Section 1 does not require the use of one computer to gain unauthorised access to another:
1930an offence under section 1 can be committed if a program or data is accessed directly from the computer to which the defendant has access: A-G's Reference (No 1 of 1991).446 Further, s1(1) creates an offence which can be committed as a result of having intent to secure unauthorised access without in fact actually succeeding in accessing any data.447 The offence is drafted to include conduct that ordinarily would be within the scope of the law of attempt.