The Queen v Elvis Kelsey Ebanks
| Jurisdiction | Cayman Islands |
| Judge | The Hon, Mr. Justice Charles Quin |
| Judgment Date | 05 November 2013 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | INDICTMENT NO: 0105/2012 |
| Date | 05 November 2013 |
The Hon, Mr. Justice Charles Quin
Ms. Laura Manson for the Crown
Mr. Michael Wingrave of Stenning & Associates for the Defendant
Following the empanelling of jurors but prior to the opening of the case, the Defence made an application to oppose the admission into evidence of the transcripts and/or audio recordings of two telephone calls made from the Defendant's phone to a telephone owned by the Complainant. The Defence submits that the two calls were ‘intercepted’ without the required warrant from His Excellency, the Governor, and therefore the transcripts and or audio recordings are inadmissible.
The Information and Technology Authority (Interception of Telecommunications Messages) Regulations 2011 (hereafter annotated the ‘Regulations’) defines “intercept” as ‘including monitoring and interrupting’ and ‘message’ as ‘a communication sent, delivered, received, or transmitted, or intended to be sent, delivered, received or transmitted by telecommunication and includes and information that enables the identification of the origin and destination of the communication and the date and time it was transmitted or received.’
Regulation 9(1) reads:
‘9.(1) No evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of, or in connection with, any legal proceedings or proceedings.…'’
Regulation 9(2) reads:
‘ 9.(2) In this section ‘intercepted communication’ means any communication intercepted in the course of its transmission by means of a postal service or telecommunication system.’
Counsel for the Defendant, Mr. Wingrave, submits that Regulations 4 and 5 clearly state, not only that a warrant from the Governor is required before an intercept may take place, but also that such a warrant may only be issued on specified grounds.
The Defence submits that there is no warrant in this case and the specified grounds set out in Regulation 5, for which one might be issued, are absent.
The Defence argues that tire Regulations are almost identical to the provisions of the United Kingdom Interception of Communications Act 1985, with the same general prohibition being set out in s,9 of that Act. The Law in England has moved on with the passage of The Regulation of Investigatory Powers Act (2000) (‘ RIPA’), however, no parallel law has been passed in the Cayman Islands.
The Defence rely on the House of Lords case of Morgans v. DPP [2001] 1 A.C. 315 where the Law Lords found that any such evidence would always be inadmissible.
The Defence submit that, in the Cayman Islands, the Regulations are even more restrictive, because they refer to the prohibition of the evidence in any legal proceedings and, accordingly, on the basis of the above-intercepted telecommunications, the evidence is inadmissible by operation of the Regulations. Furthermore, the Defence submits this evidence will always be inadmissible even if the consent is obtained from one of the parties to the call.
The Defence further submits that the Royal Cayman Islands Police Service (RCIPS) only obtained the evidence by removing a SIM1 card from a cell phone and placing into a recording device with the consent of the Complainant, but, without the knowledge of the Defendant. First, the Defence submits that the telecommunication did not reach the cell phone it was intended for and was thus interrupted. Secondly, the telecommunication was monitored, in that it was listened to and recorded without the knowledge of the caller.
On the basis of the above submissions, the Defence submits that the transcripts and/or the audio recordings of the two telephone calls made from the Defendant's phone to the phone ( SIM card) owned by the Complainant, are inadmissible.
Ms. Manson on behalf of the Crown submits that the recordings are not interceptions and as such are admissible.
The Crown further submits that the telephone calls from the Defendant's phone to the Complainant's phone were not ‘monitored’ or ‘interrupted’ within the meaning of the Regulations.
The Crown's position is that the two telephone calls were recorded by means of the SIM card of the Complainant being placed into another device, which allows the calls to be recorded. The electronic signal was not diverted or interrupted in any way and it was simply as if a tape recorder had been held to the earpiece of the telephone.
Crown counsel contends that technology has advanced since the early days of the tape recorder, and this digital recording is the modem equivalent of the old tape recorder.
The Crown also relies upon the fact that the Complainant gave his permission for the call to be recorded and the permission was granted by the Deputy Commissioner of Police for the recording equipment to be used for this purpose.
To illustrate the difference: Crown counsel accepts that, if the police had sought to intercept a call — a method usually used when neither party is aware of the recording of the call — then a warrant from the Governor would have been obtained. However, the two calls in this case were not interrupted or monitored; they were simply recorded with the permission of the receiver.
The Crown relies upon the following United Kingdom cases to illustrate that this method of recording calls does not fall within the Regulation of Investigatory Powers Act 2000.
Crown counsel, Ms. Manson, cites the case of R v....
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