Coulson & Anor v REGINA

Factual and Procedural Background

The Appellants, charged with conspiring unlawfully to intercept communications contrary to section 1(1) Criminal Law Act 1977 and section 1(1)(b) Regulation of Investigatory Powers Act 2000 ("RIPA"), appealed a ruling on a point of law made by Judge Fulford during a preparatory hearing. The underlying allegation is that the Appellants, employed as editors or journalists by Company A, conspired to intercept mobile telephone voicemail messages without lawful authority. The legal issue arose from dismissal applications challenging the interpretation of certain subsections of RIPA, specifically concerning when the course of transmission of a voicemail message ends and whether voicemail messages saved on a public telecommunications system remain "in the course of transmission." The ruling under appeal held that section 2(7) RIPA extends the concept of transmission to include periods when the system stores a communication in a way that enables the intended recipient to access it, regardless of whether it has previously been received.

Procedurally, the Criminal Appeal Office raised a preliminary jurisdictional point regarding the appeal's validity, but it was determined that the appeal could proceed despite some procedural irregularities concerning arraignment timing during the preparatory hearing.

Legal Issues Presented

1. Whether the phrase "in the course of transmission" in section 1(1) RIPA extends to voicemail messages stored on a public telecommunications system after first access by the intended recipient.
2. The proper construction of subsections 2(1), 2(2), and 2(7) of RIPA in relation to voicemail interception.
3. Whether the extended protection under section 2(7) is limited to transient storage prior to first access or includes ongoing storage allowing repeated access.
4. The compatibility of the statutory interpretation with relevant European Directives concerning data protection and privacy in electronic communications.
5. The implications of the statutory interpretation for legal certainty, admissibility of evidence, and harmonisation with other legislation such as the Computer Misuse Act 1990 and the Data Protection Act 1998.

Arguments of the Parties

Appellants' Arguments

• The ordinary meaning of "transmission" involves conveyance from one person or place to another, thus the course of transmission ends when the voicemail is first accessed by the intended recipient.
• Section 2(7) RIPA extends the course of transmission only to cover transient storage necessary for transmission before receipt, not ongoing storage.
• The statutory language should be interpreted narrowly to avoid creating parallel offences and to maintain legal certainty, especially given differences with the Computer Misuse Act 1990 and the Data Protection Act 1998.
• The European Directives support a limited interpretation, distinguishing between stored communications and transient storage for transmission, with obligations to erase traffic data upon call termination.
• Reliance on Recital 27 of the 2002 Directive suggests transmission ends upon first receipt of the communication.
• Concerns that a broader interpretation would impose disproportionate obligations on communications providers and disrupt harmonisation within the internal market.

Crown's Arguments

• Section 2(7) RIPA extends the concept of transmission to any period during which the system stores the communication enabling the intended recipient to collect or otherwise access it, including after first access.
• The words "collect" and "have access to" are distinct; voicemails are "accessed" rather than "collected," supporting ongoing transmission while stored.
• The statutory language explicitly includes times when the communication "is being, or has been, transmitted," indicating ongoing transmission beyond first access.
• The statutory interpretation aligns with the mischief rule, addressing unauthorized access to stored communications.
• While the statutory protection goes beyond the minimum required by European Directives, Parliament is entitled to provide greater privacy protections.
• Voicemail messages stored on a public telecommunications network fall within the definition of "communications" under the relevant Directives, thus warranting protection.
• Admissibility of evidence under RIPA is not adversely affected by the broader interpretation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the statutory language of section 2(7) RIPA, which extends the definition of "course of transmission" to include times when the communication is stored in a manner enabling the intended recipient to collect or otherwise access it. The court rejected the Appellants' argument that this extension should be limited to transient storage prior to first access, emphasizing the natural meaning of the words "is being, or has been, transmitted," which clearly contemplates ongoing storage and access beyond initial receipt.

The court distinguished prior authorities relied upon by the Appellants, noting that those cases either concerned different technologies or did not address the scope of subsection 2(7). It found that the distinction between "collecting" (as with e-mails) and "accessing" (as with voicemail) was meaningful and supported a broader interpretation of transmission.

Applying the mischief rule, the court accepted that the provision was designed to address unauthorized access to communications stored on systems, whether or not previously accessed by the intended recipient.

Regarding European Directives, the court acknowledged that while RIPA's protection extends beyond the minimum required by the relevant Directives, this is permissible as Parliament may provide greater privacy protections than those mandated by EU law. The court also rejected concerns that the broader interpretation would undermine harmonisation or legal certainty, noting that the provisions of other statutes such as the Computer Misuse Act 1990 and the Data Protection Act 1998 operate alongside RIPA without legal conflict.

Finally, the court considered the admissibility of evidence and found that the wider interpretation of section 2(7) does not adversely affect evidentiary rules under RIPA.

Holding and Implications

The court DISMISSED the appeal.

The holding confirms that under section 2(7) RIPA, the course of transmission of a voicemail message continues while the message is stored on the telecommunications system in a manner that allows the intended recipient to access it, even after first access. This interpretation extends statutory protection against unlawful interception beyond initial receipt, encompassing ongoing storage and access.

This decision clarifies the scope of "transmission" in the context of voicemail interception and affirms Parliament's authority to provide privacy protections exceeding those required by European Directives. No new precedent beyond the statutory interpretation was established, and the ruling directly affects the parties by upholding the charges against the Appellants under this interpretation.