England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Friday 25th September 1998

B e f o r e:

LORD JUSTICE HENRY

SIR PATRICK RUSSELL

and

HIS HONOUR JUDGE BEAUMONT QC

(Sitting as a Judge of the CACD)

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R E G I N A

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SEAN MARK TAYLOR-SABORI

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(Handed Down Transcript of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel: 0171 404 1400

Official Shorthand Writers to the Court)

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MR S SPENCER QC and MR P MARSHALL appeared on behalf of the Appellant

MR A DONNE QC and MR P LAMBERT appeared on behalf of the Crown

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J U D G M E N T

(As Approved by the Court)

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LORD JUSTICE HENRY:

This is the judgment of the Court. On 30th September 1997 in the Crown Court at Bristol before His Honour Judge Foley, the appellant was convicted of conspiracy to supply a Class A controlled drug, contrary to Section 1 of the Criminal Law Act, 1977. The particulars of offence being

"that Sean Mark Taylor-Sabori, Michael Paul Hahn, Colin Jones, Andrew Wyatt and Mark Anthony Hicks, between the 1st day of September 1995 and the 20th day of January 1996, conspired together with another and persons unknown to supply a controlled drug of Class A, namely methyl dioxymethyl amphetamine (MDMA) to other persons unknown in contravention of Section 4(1)(b) of the Misuse of Drugs Act, 1971.

On the 23rd of October 1977 Taylor-Sabori was sentenced to ten years’ imprisonment. He appeals against sentence by leave of the Single Judge. He appeals against conviction by leave of the Full Court, granted only in respect of Grounds 1 and 2 of the Perfected Grounds of Appeal. Ground 1: the trial judge erred in law admitting evidence of pager messages sent from Holland. Ground 2: the judge erred in law in his direction to the jury in answer to a question asked of the court on the second day of their deliberations.

Of the appellants co-accused, Michael Hahn changed his plea to guilty of the conspiracy on 16th September 1997. He was sentenced to six years’ and 8 months’ imprisonment. Colin Jones changed his plea to guilty to the conspiracy on 16th September 1997. He was sentenced to three years’ and eight months’ imprisonment. Andrew Wyatt pleaded not guilty to the conspiracy and was acquitted by the jury. Mark Hicks was acquitted by the jury on the conspiracy. He pleaded guilty to an offence of production of a Class B controlled drug.

The facts are these; on 16th January 1996 the appellant and Hahn travelled to Amsterdam. They took £10,000 which they no longer had when they returned to Heathrow Airport the following day. On 18th January 1996 the appellant met Wyatt, Hicks and Hahn in Bristol. On 19th January 1996 the appellant and Hahn made a number of telephone calls to Jones at the Edward Hotel in London. Wyatt and Hicks drove to London in Wyatt’s Ranger Rover motor vehicle and went to the Edward Hotel. Wyatt went inside the hotel and collected a bag from Jones. As he travelled back to Bristol with Hicks the Range Rover was stopped and searched by police. A total of 22,393 Ecstasy tablets were found inside the bag, worth £268,000.

The Prosecution alleged that the appellant and Hahn were the principal financiers and organisers of the operation. The Crown’s case was that the purpose of their trip to Amsterdam on 16th January was to arrange the purchase of the Ecstasy tablets. The drugs were said to be brought to England by courier, handed to Jones in London and then collected by Wyatt and Hicks. The Crown’s case relied on evidence of association between the appellant and his co-accused prior to 19th January 1996. The association was shown by pager messages which passed between them and a sixth person in Holland. Parallel pagers held by the police received the same messages as those transmitted to the user of the “original” pager. By this method the police built up a pattern of messages to the appellant and Hahn throughout the Autumn of 1995. The pager messages revealed an associate in Holland known as “Santa Claus”, “Fat Man” or “Fat Friend”, alleged to be the Dutch supplier. The Crown also relied upon a schedule of observations showing association between the defendants prior to January 1996 and the planning of the enterprise to supply Ecstasy. On 3rd November 1995 a trip by Jones to Amsterdam was observed. That day Jones travelled by air to Amsterdam. Pager traffic for the day before showed that the Dutch associate was concerned about the time he would arrive. At 2023 on 3rd November, Hahn’s pager displayed a message which read:

"Concerned that the old man has not arrived."

The appellant’s pager showed a similar message at 2025. “Old man” referred to Jones.

On 16th January 1996 the appellant and Hahn travelled to Amsterdam. An undercover surveillance officer was present in a coach they used at Heathrow airport. He saw a bundle of notes produced by the appellant from one of his pockets. He thought the appellant gave the notes to Hahn. They appeared to be split up into two halves. He thought the bundle was £10,000, but could not see the denominations.

A Customs Officer at Heathrow spoke to Hahn who said that he had £10,000 of UK sterling and was interested in buying a barge. He said he was travelling alone. In fact the appellant and Hahn travelled together to Amsterdam. They arrived back at Heathrow Airport on 17th January 1996.

There the appellant was stopped by Customs Officers. He said that he had been staying at an hotel in Amsterdam. He had travelled alone but had a few friends there. They recommended a boat to him but he did not buy it. He worked on barges for a living. He did not own one, but wanted to live on one. That was the reason why he had gone to Amsterdam and he had left £5,000 there.

Hahn was similarly stopped and questioned at Heathrow Airport. He said that he worked in Amsterdam. He had to return to England and had left his tools in Amsterdam because he intended to go back. He was searched but nothing of interest was found. The £10,000 was not in his possession. He said that he had travelled alone.

On 18th January 1996 there were meetings between the appellant and his co-accused at Wyatt’s home address at Ashton Gate Terrace in Bristol. At 0949 on 19th January a telephone kiosk near the Edward Hotel was used to ring a pager number. At 0951 the appellant’s pager displayed the message:

"The old man would like you to ring [the telephone number of the Edward Hotel]"

The appellant and Hahn left Wyatt’s address and made two phone calls to the Edward Hotel from a public telephone box. They returned to Wyatt’s home then left in a Mercedes motor vehicle. Wyatt and Hicks followed in a Range Rover. Having stopped at a telephone kiosk the appellant telephoned the Edward Hotel. The appellant and Hahn walked over to speak to Wyatt and Hicks in the Range Rover, then returned to the Mercedes. Both vehicles then drove away. The appellant and Hahn were seen to make various calls from telephone kiosks.

The receptionist at the Edward Hotel gave evidence to the effect that a “Mr Brown” booked into the hotel on 19th January. Two telephone calls were received for him. She could not put the first call through as there was no reply from the room. The second call sounded like the first, but gave a different name. Both callers seemed to have the same voice.

At 1300 police officers saw Wyatt leave the Edward Hotel carrying a blue bag. He got into the Range Rover where Hicks was sitting in the passenger seat and drove away. Pager traffic showed that at 1312 on 19th January the appellant’s pager recorded “No problems. On our way home. Andy”. Whilst driving back to Bristol the vehicle was stopped by police and Wyatt and Hicks were arrested in possession of the drugs found secreted under a duvet. When interviewed on his arrest the appellant made no comment to all questions asked.

The appellant gave evidence at trial. His defence was that he had known his co-accused for some ten years. Hahn was an acquaintance whom the appellant met via an associate in the music business. He met Hank, a Dutchman, through Clark. Hank invited the appellant and his girlfriend to Amsterdam for the New Year in 1995. Hank was involved in bars and night-clubs in Amsterdam as well as in England. The appellant wanted to borrow £30,000 to buy a night-club in Easton. He borrowed the money from Hank and £2,000 from Hahn who gave him a free pager. Hahn could then contact him about the money he owed him. The appellant was repaying his loan to Hank at the rate of £1,000 per month.

The appellant telephoned Hank on 15th September and 14th October to discuss the money he owed. The calls had nothing to do with an arrangement for the supply of Ecstasy. The appellant was annoyed because although he was keeping up with his payments, Hank kept on contacting him via Hahn. The appellant then started to receive messages from Hank to pass on to Hahn. He had a row with Hank because he did not want to be used as a messenger. He knew, however, that if he ignored the messages Hahn would come looking for him. Throughout November he was forced by Hahn to make calls to Hank. All calls were about the loan, not about drugs. Before Christmas 1995 the appellant went to Holland for a party. Whilst in Holland the appellant met a man called Da Silva who threatened him. Hank and Da Silva wanted the remaining £5,000 the appellant owed to Hank within 1 week. The appellant said that he would give the money to Hahn who had plans to fly to Amsterdam. They insisted that he returned personally with the money. They also wanted him to look at a barge.

On 16th January 1996 he went to Amsterdam with Hahn. They had between them approximately £10,000 which included the appellant’s £5,000. The appellant was met by Hank and he repaid his £5,000. He returned to Heathrow on 17th January. He met Clark on 18th January and was told by him he owed £1,000 in interest to Hank. He was shocked. That evening Hahn arrived and asked him to go to London the following morning. Hahn offered £200 to cover expenses, but would not give any reason for the trip.

The appellant and Hicks spent the night at Wyatt’s home. The following morning, on 19th January, Hahn arrived. Hahn admitted that the trip to London involved drugs. The appellant did not want anything to do with drugs. He telephoned the Edward Hotel to say that he was not coming. He did not know who the “old man” was. After making the call he gave the £200 to Wyatt but did not tell him about the drugs because of the “threat in the background”. He later made a couple of calls to London to warn Wyatt but could not contact him. He did not answer questions in interview because to do so would have put him in serious danger. He did not take part in any agreement to supply drugs.

The jury retired to consider their verdicts on the morning of Monday 29th September 1997. By the late afternoon of that day no verdicts had been returned. The judge permitted the jury to separate and to return to continue their deliberations the following morning. Within a short space of time they asked the following question:

"If a person was asked to go and pick up a package or parcel but then finds out it was drugs and says that he is not doing it but sends someone else to pick up the parcel but doesn’t tell them it’s drugs, then is that person involved in a conspiracy to supply drugs."

Judge Foley sought the assistance of counsel as to how this question should be answered. Having obtained such assistance the jury returned to court. First an enquiry was made of them whether the “he” in the jury question referred to the appellant. The foreman of the jury reply that it did. The judge then directed the jury in these terms:

"You have to be satisfied so that you are sure that there was an agreement between two or more persons to commit the allegation in question. The second limb, and this is important in the context of your question and I am going to read it out very slowly to you ‘that the defendant whose case you are considering was a party to that agreement in the sense that he agreed with one or more of the other persons referred to in the count that the crime should be committed and, at the time of agreeing to this, he intended that they should carry it out. You may think that it is only in a rare case that a jury would receive direct evidence of a criminal conspiracy. When people make agreements to commit crimes you would expect them to do so in private. You would not expect them to agree to commit crime in front of others or to put their agreements into writing, but people may act together to bring about a particular result in such a way as to leave no doubt that they are carrying out an earlier agreement. Accordingly, in deciding whether there was a criminal conspiracy and if so whether the defendant whose case you are considering was a party to it, look at all the evidence as to what occurred during the relevant period including the behaviour of each of the defendants. If, having done that, you are sure that there was a conspiracy and that he was a party to it you must convict. If you are not sure you must acquit.

I am going to add to that a specific answer to your question. The facts at all times remain for you. You decide what the factual situation in this case is. Now, directly in answer to your question: if on the facts as you find them to be what Taylor-Sabori did was intended to be in furtherance of the conspiracy the answer to your question is ‘Yes’."

The jury retired to consider their verdicts further at 11.02 and returned to court at 11.23 to convict the appellant and acquit Wyatt and Hicks.

The Court heard the appellant’s Perfected Ground 2 first, since such, if successful, would be dispositive of the conviction of the whole. Mr Spencer QC submitted that the proposition of fact implicit in the jury’s question was not the case advanced by the Crown, was not the subject of argument on behalf of the appellant to the jury, and was not left as the basis of conviction by the trial judge in his summing-up.

It is contended that the consequences are twofold. Firstly the judge should have directed the jury that the Crown had never presented its case in that way; the Defence had not had the opportunity to respond to the case being put that way; the jury should consider only the case which the Crown had put forward. The terms of the question called for the judge to analyse the evidence and to consider whether it disclosed a basis for the jury’s question. The judge should have directed the jury that there was no basis on the evidence for their question. It was implicit in his direction to the jury that the “facts” set out in the question were facts which it was open to them to find on the evidence. In fact, they were not. In support of this contention R -v- Adair 42 Cr App R 227 is cited.

Secondly, it is submitted that such analysis was necessary in view of the fact that the judge had earlier in his summing-up mis-stated Taylor-Sabori’s evidence as being that it was he who gave the instructions to Wyatt about where to go and what to do. An error pointed out by learned leading counsel on behalf of the appellant. The promised correction was never forthcoming.

The Court is satisfied that even if the jury question represents the concluded state of the jury’s deliberations, as opposed to a query raised by one or more of their number in the course of their deliberations, then a finding of fact represented by the question in the light of the judge’s direction (in terms requested by leading counsel acting on behalf of the appellant) would have entitled the jury to convict the appellant of the offence alleged in the conspiracy to supply a Class A controlled drug.

The appellant in giving evidence in chief had described being asked on the night of 18th January by his co-accused Hahn to go to London the next morning for a purpose which would be explained to him in the morning. The appellant arranged a lift with Andrew Wyatt and was given £200 by Hahn to cover his expenses. The next morning when he asked Hahn what he had to collect, Hahn prevaricated. The appellant was aware of the receipt of a pager message from Holland. This, together with the circumstances of the trip he was being asked to undertake, caused him to be suspicious. He asked Hahn what was going on and was told: “It is gear”, which he understood to be drugs. He telephoned the Edward Hotel which he understood to be the pick-up point in order to say that he was not coming. He gave Wyatt the £200 in cash in order to make the collection without warning him what it was that was going on. When he was cross-examined he agreed that he had given the instruction to Wyatt to make the collection without telling him or the driver what was to be collected. When later cross-examined by the Crown he resiled from his earlier evidence that the payment to Wyatt came after he contacted the pick-up point in London in order to say that he was not prepared to make the journey.

In Adair (supra) the jury, after retirement, had returned and put a question to the court the form of which indicated an approach to the facts and issue different from that which was put forward by the Crown. It was held by the Court of Appeal presided over by the Lord Chief Justice, Lord Goddard, in the judgment of the Court given by Ashworth J:

"In our view it would not be right to say that in every case where by the form of their question a jury indicate a different approach to the problem from that which was put forward on behalf of the Crown, it is necessary by way of further direction to review all the evidence relevant to the points involved in the jury’s question. But if the form of the question shows that the jury appear to be assuming facts or drawing inferences for which there was no supporting evidence, further direction is called for and they should be reminded how far the relevant evidence went."

While the Prosecution contended that the appellant’s involvement in the conspiracy was of much longer standing than a narrow construction of the jury’s question represented, the form of the question, unlike Adair, did not show that the jury appeared to be assuming facts or drawing inferences for which there was no supporting evidence.

On the contrary, there was ample evidence from which the jury would be entitled to conclude that the appellant had knowingly participated in the conspiracy alleged in the first count of the indictment. Furthermore, in framing his response to the jury’s question the judge did what he was asked to do by the appellant’s counsel. He went no further than to remind the jury that the facts were for them to decide and to repeat his directions as to what they should find before they could convict the appellant of the conspiracy alleged in the first count of the indictment. This was a multi-handed trial involving not only the appellant but co-accused, each of whom had given evidence. What evidence was accepted and what rejected was a matter for the jury. The Court is satisfied that it was not appropriate in the circumstances confronting him for the judge to seek to analyse the question the jury wanted answered and them to comment on any such analysis by reference to particular parts of the evidence.

The Court is satisfied that there was an evidential basis for the jury’s conviction of the defendant as being a knowing participant in the conspiracy alleged in Count 1. The Court turns from there to consider the subsidiary point raised, that the trial judge failed to correct a mis-statement of the appellant’s evidence in a manner that renders his conviction unsafe.

Paragraph 1.12 of the appellant’s skeleton argument dated 23rd July 1998 was not relied on in the Perfected Grounds of Appeal. It relates to what the judge said when summarising the appellant’s evidence at page 41E-G of the summing-up. The correction sought was put forward on page 63D to 64D. The passage at page 41 was perhaps ambiguous looked at in isolation. But it seems to us that the matter was fully dealt with by the judge the next trial day (see the summing up page 66C-F and 70G to 72D.

The Court is satisfied that by this stage of the summing-up there can have been no doubt in the jury’s mind as to what the correct evidential position was. No issue as to the safety of the verdict arises thereby. So this ground of appeal must fail.

We turn to Ground 1 of the Notice of Appeal. That ground challenges the admission in evidence of messages passing between the defendants and an associate in Holland through the medium of the British Telecom Radio Paging System. The Crown invited the jury to draw inferences adverse to the defendants from the contents, the timing and the frequency of those messages. That evidence was prima facie relevant. The appellant’s ground for seeking to exclude it were based on the provisions of the Interception of Communications Act, 1985 (the 1985 Act).

The communications between the pagers were both domestic (ie both originating and received in the UK) and international (originating in Holland). Initially before the judge, counsel for the appellant sought to exclude evidence of all those communications. His arguments were simple: the interception by the police of those communications was done without a warrant and so was a criminal offence under Section 1 of the 1985 Act because the police had “intentionally intercept[ed] a communication in the course of its transmission ... by means of a public telecommunications system”, and the defences provided by Section 1(2) and (3) (including that of being empowered so to act by a warrant issued by the Secretary of State) were not available to them. So, the evidence having been obtained by criminal conduct, it was inadmissible.

The live issue before the judge was whether the point of interception of the messages was when they were being transmitted on a public telecommunications system, as the appellant contended, or whether (as the Crown contended) at the time they were being transmitted on a private system, in which case no offence had been committed, and there were no grounds for excluding the evidence.

The judge preferred the Crown’s contention, and it is now conceded that he was right to do so. This is made clear by two authorities: R -v- Effik [1995] 1 AC 309 and R -v- Ahmed (unreported, CACD 29th March 1994, 1995 Criminal Law Review 246). In the former case, the intercepted calls were received on a cordless telephone, which, as its manual made clear, operated on radio frequencies assigned to cordless telephones, and so were liable to be overheard - as they were by police officers on surveillance operating a radio receiver from a nearby flat. Their Lordships held, as a matter of statutory construction, that the cordless telephone was part of a privately run system not “comprised in” the public British Telecommunications system which ended at the telephone socket, and that at the point of interception the communication was not passing through the public system. In Ahmed a co-accused was held in custody at the police station. He used the police internal pay phone on the private side of the junction box. His calls were intercepted before they reached the public system. Evans LJ pithily gave the Court’s conclusions.

"Our conclusions are as follows: first, we hold that the interception of a communication takes place when, and at the place where, the electrical impulse or signal which is passing along the telephone line is intercepted in fact. Secondly, if there is an interception of the private system, the communication which is intercepted is not at that time passing through the public system. It is not, in our judgment, in the course of transmission by means of the public telecommunications system. Third, the fact that later or earlier signals either have formed part of, or will form part of, the same communication or message does not mean that the interception takes place at some other place or time. Finally, ‘communication’ in our judgment, does not refer to the whole of a transmission or message; it refers to the telephonic communication which is intercepted in fact, and on the evidence to which I have been referred that consists of what has been variously described as the electrical impulse or signal which is affected by the interception that is made."

That reasoning applies equally in this case. In Effik Lord Oliver approved those remarks. He also provided valuable guidance as to the legislative intent:

"A more reliable guide to construction is, I think, to be found in a consideration of the limited purposes of the Act and of the mischief at which it was aimed. It set out, as it seems to me, to achieve three objects, viz: first to protect the integrity of that system of communication which is under public, and not under individual, control by creating a specific offence of interception of communications through the public system; secondly, to provide for the authorisation of such limited exceptions, under proper safeguards, as are necessitated by the requirements of national security and the prevention of serious crime; and, thirdly, to ensure that the use of material acquired by resort to these exceptional procedures is strictly limited to the purposes for which it has been acquired and is not used for any other purpose. It was not an Act designed nor does it purport to confer any general protection against eavesdropping or intrusion on the privacy of individuals or to provide for any general authorisation for telephoned tapping on private premises. And there is logic in this. The individual who connects his own private apparatus to the public system has means at his disposal to protect that apparatus from interference. What he cannot protect himself from is interference with the public system without which his private apparatus is useless. Hence the necessity for statutory protection of that system."

Therefore, the overall legislative intent was the protection of the public system.

It is now conceded that the interceptions in this case were made on a private system and not when the messages were on the public system. Therefore there is no appeal against the admission in evidence of those messages that were internal to the “British Islands” as Ahmed and Effik are conclusive on that point. But in relation to the evidence of communications received from Holland, an appeal is founded on a secondary submission, based on a deeming provision contained in the definition section, Section 10(2) of the 1985 Act:

"For the purposes of this Act a communication which is in the course of its transmission otherwise than by means of a public telecommunication system shall be deemed to be in the course of its transmission by means of such a system if its mode of transmission identifies it as a communication which-

(a) is to be or has been transmitted by such a system; and

(b) has been sent from, or is to be sent to, a country or territory outside the British Islands."

As the international element is introduced here for the first time, it is necessary to consider the statutory definition of “public telecommunication system”. Section 10(1) of the 1985 Act gives this the same meaning as in the Telecommunications Act, 1984 (the 1984 Act). The point is that the “public telecommunication system” is one which will be licensed and designated by the Secretary of State, and so the system defined in the Act will stop at the aerial for receiving or sending foreign signals. The public telecommunication system referred in the Act is that system within the British Islands licensed and designated by the Secretary of State. But that protection would be frustrated if calls originating from the public telephone system of another country and destined for the public telephone system of the UK could be intercepted on the link between the two public systems.

Before analysing Section 10(2) it is necessary to set out the facts, which we believe to be non-controversial.

The messages in question 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. That is Stage 1.

Stage 2 is the communication of the written message on the computer from the Pager Bureau to the Pager Terminal. It is common ground that this too was on the public telecommunication system. But there is an issue as to whether it is a new communication (as the Crown allege) or a continuation of the original communication in Stage 1, as the appellant asserts.

At the Pager Terminal, the written message received is relayed by radio transmission to one of four Regional Base Stations (Stage 3).

In Stage 4, the Base Station converts the electronic pulse that reflected the typed message into radio waves, and sent it to the appellant’s pager. Then came the moment of interception. It was possible to intercept the messages because the police had acquired pagers which responded to similar signals. Therefore they received the same messages as the conspirators on their “parallel pagers”. At the time of interception, therefore, it was perfectly clear that the communication intercepted was not “in the course of its transmission ... by means of a public telecommunication system”. The radio communication from the Regional Base Station to the pagers was a transmission on a private system added on to the licensed and designated public system, and thus (in the words of Section 10(2)) was a transmission “otherwise than by means of a public telecommunication system”. All of this the appellant now accepts, and rightly so. The case is in principle indistinguishable from both Effik and Ahmed.

Under Section 10(2) such a transmission shall be deemed to be “in the course of its transmission by [ a public telecommunication system]” if the requirements of that subsection apply. They require detailed examination. It is a subsection that has puzzled the courts.

First, it is clear that at Stage 1, the original communication (the oral telephonic instructions to the Pager Bureau) on arrival at the UK aerial was transmitted by a “public telecommunication system” (subsection (2)(a)).

Second, that that communication was sent from a country “outside the British Islands” (subsection (2)(b)).

But the deeming provision of Section 10(2) does not come into play unless both of two further requirements are satisfied..

The first is that “the mode of transmission” at interception “identifies” the communication as one which satisfies subsection (2)(a) and (2)(b). The second is that the “communication” whose transmission is intercepted must be the same communication as that which is to be or has been transmitted on a UK licensed and designated public telecommunication system (subsection (2)(a)) having been sent from a country outside the “British Islands”.

We take those questions in that order. As Professor Sir John Smith commented in his note on Ahmed (1995 Criminal Law Review 247) "the policy underlying [Section 10(2)] is not easy to discern", but it must be a policy consistent with that of the 1985 Act, as summarised by Lord Oliver.

In his note Professor Smith assumes that if in Ahmed the calls from the police station’s payphone had been made to Holland and not to the United Kingdom, the interception of that call before it reached the public line would have been an offence if the call was destined for the British Islands, but not if it was destined for Holland. In so doing he does not specifically confront the problem that the “mode of transmission” of the communication on the private system does not identify the call as destined for a foreign country. Only the number called will do that - and that is the contents of the transmission and not the mode of transmission. The question that has to be answered if the appellant is right is why a police intercept on the private system should be no offence if the message was sent to it from within the country, but is an offence if the sender is outside the country.

Counsel for the appellant submitted, with no obvious enthusiasm, that the deeming provision was included because of contemporary concern as to whether trades unions’ telephones might be tapped under Section 2(2)(c) of the 1985 Act, (“for the purpose of safeguarding the economic well-being of the United Kingdom”) to ensure that though information could be obtained this way, evidence of the interception and its fruit could not be given (see Section 9 of the 1985 Act and generally R -v- Preston 98 Cr App R 405). Counsel did not expand on the bare summary of his skeleton argument. We confess that we do not understand the point, and are not persuaded. His wide construction does not deal with the requirement that the mode of transmission must identify the call as a sub-section (2)(a) or (2)(b) call. Counsel for the Crown simply made the point that the mode of transmission did not identify the call as one satisfying Section 10(2)(b) but could not enlighten us further as to the policy behind the deeming provision. But it is clear to us that it must be compatible with the general policy of the Act, as set out by Lord Oliver above, namely for the protection of the public system, but not to protect add-ons to that system.

Though both counsel had consulted Parliamentary material, neither specifically relied on any before us. In our search for the policy behind Section 10(2), we looked at some such material and came across three cases where appellants had sought unsuccessfully to put a wide construction on Section 10(2).

First, R -v- Governor of Belmarsh Prison ex parte Martin [1995] 1 WLR 433. There the evidence on which the United States sought to extradite the appellant consisted on telephone calls to the defendant in Ireland made from and intercepted in America. These conversations might have been transmitted by satellite, or by cable or by a designated British Telecom system. Only the third mode of transmission would involve Britain. Selection of the route was made randomly, dependent on the traffic at the time. It was impossible to know which route was used. But if the BT line had been used, then it was unsuccessfully claimed that Sections 1 and 10(2) of the 1985 Act rendered unlawful American interception, creating an offence which was triable in the UK, even though committed by a non-resident outside the UK. That wide construction was rejected, and the case also emphasises that the statutory definition of “public telecommunication system” in the 1985 Act restricts that system to the United Kingdom.

The subsequent case of R -v- Aujla [1998] 2 Cr App R 16 confirms that the Interception of Communications Act, 1985 does not bar the use of material obtained by foreign telephone tapping as evidence in proceedings in this country. There Section 10(2) was not referred to. But that section was referred to in the unreported case of R -v- Bray & Others (CACD 26th June 1998 per Beldam LJ).

There the facts were as in Aujla. Again, as in Martin and Aujla, the extra-territorial effect that a wide reading of Section 10(2) was rejected. The Court specifically dealt with the nature of the extend meaning to be given by Section 10(2):

"Mr Joyce’s riposte was short and to the point. It could not possibly have been the intention of Parliament to create an extra-territorial offence or to extend the reach of section 1 to a foreign territory. The Secretary of State could not issue warrants under section 4, which applied to such interception. There was, he said, a perfectly reasonable interpretation which could be put on section 10(2). The extended definition was intended to cover communications coming from, or being directed to, the public telecommunications system of this country or a country or territory outside the British Isles which had left the system in which it originated but had yet to arrive in the public telecommunications system of its destination [emphasis added]. Such communications are deemed, for the purposes of the Act, to be in the British telecommunications system. Moreover, he submitted that it is inconceivable that Parliament would have used a section intended only to give an extended meaning to the word ‘communication’ to create an extra-territorial offence.

We prefer Mr Joyce’s explanation for the extended meaning given to ‘communication’ in section 10(2). Support for his argument is to be found in the Home Office White Paper on ‘The Interception of Communications in the United Kingdom’, issued in February 1985, Command Paper 9438, where, in paragraph 12, referring to ‘the legislation’, the paper says:

‘The legislation which the Government will bring forward will provide a comprehensive framework for interception. It will place interception on a clear statutory basis and will reinforce existing arrangements for control over authorised interception which have been operated by successive governments. Its main features will be as follows:

(a) The Bill will apply to the interception of all communications on the United Kingdom’s postal or public telecommunication systems, ...’"

We add emphasis to the next passage:

‘... including links between our public telecommunication systems and those in other countries .’"

It is clear to us that Section 10(2) was there to bridge the gap between a message leaving the protected public system of the foreign state (at its borders) and coming within our protected public system (at our borders). Thus, if the message is transferred from border to border, for example by satellite, the satellite used (the mode of transmission) will identify the communication as coming from the Dutch public system for connection with ours. Section 10(2) preserves the integrity of transmission on, eg satellite, which would otherwise be without the protection of the Act. But it does nothing 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” does not identify the communication as having been sent from a country outside the British Islands.

Accordingly, the evidence of the Dutch pager messages was clearly admissible. In these circumstances we need not consider the Crown’s second point that the communication had to be, but was not, the same communication throughout.

Therefore, this ground of appeal against conviction also fails, and the appeal is dismissed.

(There then followed an appeal against sentence)

LORD JUSTICE HENRY: This appeal against sentence follows on after our dismissal of the appeal against conviction and that judgment should be referred to for any facts not stated in the appeal against sentence.

The appellant was convicted on count 1 of an indictment of conspiracy to supply a controlled class A drug, the particulars being that between the 1st day of September 1995 and the 20th day of January 1996 the appellant conspired together with another and with persons unknown to supply a controlled class A drug. The Crown's case, as put before the jury, was that the appellant was one of the two principal financiers and organisers of the conspiracy and it is realistically conceded by Mr Spencer QC on behalf of the appellant that if it were proper for the trial judge to have sentenced this appellant on the basis that he was the principal financier and organiser, there would have been nothing wrong with the sentence. But it is said that he ought not to have been sentenced on that basis because the jury, after they had retired, returned to court to ask the judge a question. That question was this:

"If a person was asked to go and pick up a package or parcel but then finds out that it is drugs and says that he is not doing it but sends someone else to pick up the parcel, but does not tell them that it is drugs, then is that person involved in a conspiracy to supply drugs?"

As a result of that question having been asked, the learned judge discussed with counsel what the response to that question should be. The formula arrived at by the judge and counsel for the prosecution and the defence was that the judge should confirm with the jury that the person referred to in the hypothetical question was this appellant and then tell the jury that within the grounds of the direction that the facts were for them, but if satisfied that the facts fell within the conspiracy then they could convict him on that basis. The judge dealt with the matter in that way; the jury shortly afterwards convicted and it is now submitted that in all the circumstances the appellant must be sentenced on the facts as set out in the jury's question, despite the fact that there is no way of knowing whether that question reflected a solitary doubt by one juror, which doubt was later stilled, or whether it reflected the views of the whole jury. That then is the question posed.

It is suggested before us that as a result of that question it might be that a separate count should have been added to the indictment by way of amendment. We do not think that an additional count should have been added to reflect the question. First no one asked for that course to take place; second, it does not seem to us that it would have been necessary or desirable at that stage of the trial to make such an amendment.

The principles involved here are clear. First, where the verdict of the jury can be explained only on one version of the facts, then the appellant must be sentenced on that version. That was not this case. The judge cannot in our judgment have been compelled to have sentenced on the basis that this defendant did not know that what he was concerned with was drugs until that moment. It was a case where in the ordinary course of events the whole spectrum of involvement would have been open to the judge to form a view on and sentence on that basis in the normal way. But this second principle, namely that where the verdict of the jury is consistent with more than one version of the facts so the sentencer may reach his own conclusion, is qualified by this rider, that he must give the accused the benefit of any doubt there might be - because it is impossible to read into the jury's question what their view was or might have been. It is not as though the jury had made their view known. It is not the sort of situation which might arise if the jury had added a rider to their verdict indicating that they were convicting only on the basis of the facts set out in that question and the answer the judge gave to it. In the absence of any such clear cut indication of the jury's view on this matter, the question as to whether there is a doubt is a matter for the trial judge's state of mind when he is deciding how central the involvement of the convicted conspirator is, as he will have to decide in the vast majority of conspiracy cases. The jury's question was not sufficient to raise a doubt in our conclusion. What the judge said was this. He made it perfectly clear that he was sentencing the appellant on the basis that he and his co-defendant Hahn were the principal organisers and financiers, and he said this:

"You persisted in fighting the case, notwithstanding overwhelming evidence of long-term involvement. The jury rejected your account."

And on that basis he passed sentence. It is clear from that passage in our judgment that the judge correctly looked to see whether he should give the appellant the benefit of any doubt there might be. It was a matter for him; he had heard the case and heard the appellant give evidence; he found that evidence overwhelming evidence of long-term involvement, that would have to be on the facts of this case long-term involvement as a principal organiser and financier. That was a conclusion that he was entitled to come to and therefore in those circumstances there are no grounds for allowing this appeal against sentence which is dismissed.