Appeal court rejects phone tap objections

Recorded threats were properly used to identify voice as accused's

News, 14 April 2005

Three appeal judges have upheld a conviction for extortion against two accused, supported by evidence through an unauthorised phone tap.

Lords Marnoch, Hamilton and Weir in the criminal appeal court refused appeals by Alexander Henderson and Douglas Marnoch against a guilty verdict on a charge of extortion by threats against the Pell family of Hampshire.

Mr Pell had identified the accused and the Crown led police evidence identifying the recorded voice on phone calls made to the Pells’ house as that of Henderson.

The Pells had agreed to their phone line being tapped but at trial the Crown failed to produce the written authorisation of a senior police officer, required by the Regulation of Investigatory Powers Act 2000.

The appeal court was agreed that the appeal had to be decided on the basis that the Crown had failed to produce the necessary authorisation. But Lord Marnoch quoted the comment in the 1950 case of Lawrie v Muir, that the law was intended as "protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference", rather than "for the guilty citizen against the efforts of the public prosecutor to vindicate the law".

Having regard to the good faith of the officers placing the tapping equipment, that the evidence obtained was only used for voice identification (though the court would probably have allowed it to prove the substance of what was said), the seriousness of the charges and that it was doubtful that there had been any breach of the accused’s right to privacy under article 8 of the European Convention, the judges ruled the evidence admissible and that there had been no unfairness at trial.

The full opinions can be read at http://www.scotcourts.gov.uk/opinions/2005HCJAC47.html .