R v Ebanks

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 05 November 2013
• Date: 05 November 2013
• Court: Grand Court (Cayman Islands)

Grand Court, Criminal Division

(Quin, J.)

R.

and

E.K. EBANKS

Ms. L. Manson, Crown Counsel, for the Crown;

M. Wingrave for the defendant.

Cases cited:

(1) Morgans v. D.P.P., [2001] 1 A.C. 315; [2000] 2 W.L.R. 386; [2000] 2 All E.R. 522; [2000] 2 Cr. App. R. 113, followed.

(2) Porter v. H.M. Advocate, 2005 1 J.C. 141; 2005 SLT 271; 2005 S.C.C.R. 13, followed.

(3) R. v. Ahmed, English C.A., March 29th, 1999, unreported, referred to.

(4) R. v. E, [2004] 1 W.L.R. 3279; [2004] 2 Cr. App. R. 29; [2004] EWCA Crim 1243, followed.

(5) R. v. Effik, [1995] 1 A.C. 309; [1994] 3 W.L.R. 583; [1994] 3 All E.R. 458; (1994), 99 Cr. App. R. 312; [1994] Crim. L.R. 832, referred to.

(6) R. v. Smart, [2002] Crim. L.R. 684; [2002] EWCA Crim 772, dicta of Clarke, L.J. applied.

(7) R. v. Tea, English C.A., June 30th, 2000, unreported, referred to.

Legislation construed:

Information and Technology Authority (Interception of Telecommunications Messages) Regulations 2011, reg. 2: The relevant parts of this regulation are set out at para. 2.

reg. 9: The relevant parts of this regulation are set out at paras. 3–4.

Telecommunications-interception-recording of communication-recording after signal completes transmission through telecommunications system not ‘interception’ requiring warrant under Information and Technology Authority (Interception of Telecommunications Messages) Regulations 2011-placing of recipient”s SIM card in recording device not interception of communication

The accused applied to prevent the admission of certain phone conversations into evidence on the ground that they had been intercepted without a warrant.

The Royal Cayman Islands Police Service (RCIPS), working with the complainant, recorded two phone conversations between the complainant and the accused by placing the complaint”s SIM card into a recording device. The accused was unaware that these conversations had been recorded or that the complainant”s SIM was being used in this way. He applied for the recordings to be excluded as evidence at his trial on the ground that they had been ‘intercepted’ without a warrant in violation of the Information Technology Authority (Interception of Telecommunications Messages) Regulations 2011.

The accused submitted that-as reg. 2 defined ‘intercept’ as including ‘monitoring and interrupting’ and reg. 9(2) stated that an ‘intercepted communication’ meant any communication ‘intercepted in the course of its transmission by means of a . . . telecommunication system’-the RCIPS had intercepted the phone calls by moving the complainant”s SIM card into a recording device, as their actions meant that the accused”s calls had not reached the intended phone. Although the complainant had consented to the recording of the conversations, they were inadmissible because the accused had not also done so.

The Crown submitted in reply that the communication had not been diverted in any way and that the recording equipment was analogous to placing a tape recorder next to a telephone”s speaker. The RCIPS had, therefore, only recorded the conversation and there had been no interference or abstraction of the signal necessary for interception to occur.

Held, dismissing the application:

The recording of the phone conversation had not been an interception under the Information and Technology Authority (Interception of Telecommunications Messages) Regulations 2011. A telephonic communication was composed of a signal or electrical impulse which was transmitted from one telephone to another. Although the regulations did not provide a clear meaning of the word ‘intercept,’ an interception of a telephonic communication would require some form of interference or abstraction of those signals or impulses. The recording, however, had not interfered with the signal itself as it had only recorded the accused”s voice after the signal had completed its transmission through the telecommunications system. The RCIPS”s recording had therefore been substantially the same...