Regina v Austin and others: CACD 16 May 2008

The defendants sought leave to appeal against convictions for conspiracy to supply drugs. The prosecutor relied on surveillance evidence showing meetings and telephone calls between the defendants; evidence from recording devices in defendants’ cars; evidence of money transfers, and he placed reliance on telephone intercept material. This material was in the form of recordings of mobile phone conversations said to have been made by intelligence agencies in Colombia; and recordings on cassette of conversations between a defendant in England and a defendant on a Colombian landline, again said to have been made in Colombia. Disclosure of intercept evidence gathered outside the United Kingdom is not prohibited under section 17 RIPA. The defendants challenged the admissibility of the intercept evidence on the ground that there was no evidence that it had been obtained by Colombian rather than British authorities. They further argued that even if it was obtained by Colombian authorities, there was evidence that it had been altered and fabricated and so was unreliable and should not be admitted. The judge ruled that the intercepts were made in Colombia and that their reliability was a matter for the jury. He gave a later ruling that, in light of the strictures of section 17 RIPA, the defence at trial could only suggest the negative, i.e. that the recordings had not been made in Colombia, and not the positive, i.e. that the recordings had been made in the United Kingdom and therefore infringed RIPA. The defendants appealed, arguing that the interpretation of section 17 by the judge did not accord with the House of Lords judgment in Attorney General’s Reference No 5 of 2002.
Held: It was arguable that the judge’s approach was too restrictive in law and that some investigation of whether the intercepts were made in the UK may have been permissible.


[2008] EWCA Crim 1183


Regulation of Investigatory Powers Act 2000 17 18


England and Wales


CitedAttorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .

Cited by:

CitedKnaggs v The United Kingdom ECHR 14-Jan-2009
The claimants had been prosecuted following authorised intrusive surveillance. They challenged the laws which prevented them from asking questions about interception, and therefore from defending themselves. The defendants said that the police had . .
Lists of cited by and citing cases may be incomplete.

Police, Criminal Practice

Updated: 07 May 2022; Ref: scu.372613