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16th Apr 2014
Howard Stevens QC (instructed by Charles Russell LLP) acted for the Commissioner of Police, the Attorney General of the Bahamas and the United States of America in this Privy Council Appeal.
 UKPC 12 PC (Bah) (Lord Mance, Lord Sumption, Lord Hughes, Lord Toulson, Lord Hodge) 16/04/2014)
CONSTITUTIONAL LAW – POLICE – EXTRADITION – TELECOMMUNICATIONS AUTHORISATIONS : BAHAMAS : CONSTITUTIONAL RIGHTS : EXTRADITION REQUESTS : INTERCEPTION OF COMMUNICATIONS : TELEPHONE CALLS
In extradition proceedings, the Board considered the constitutionality of the Listening Devices Act 1972 (Bahamas) and the legitimacy of authorisations issued under it.
The appellants (X) appealed against decisions of the Court of Appeal of the Bahamas in proceedings concerning challenges to the validity of the Listening Devices Act 1972 (Bahamas) and/or of 17 authorisations issued under it.
X were the subject of extradition requests by the United States on suspicion of having committed drug trafficking offences. During proceedings, the respondents (Y) sought to adduce evidence obtained by the interception by the Bahamanian police of X’s telephone conversations. In intercepting the conversations, Y relied upon authorisations issued by the Bahamanian commissioner of police in purported compliance with s.5(2)(a) of the Act. Six questions were referred by the magistrate to the Supreme Court: the first three went to the requirements of the Act and the lawfulness of the authorisations and of their use under its terms, while the remaining three went to more fundamental questions regarding the constitutionality of the Act itself. The Court of Appeal’s reasoning was that all mobile telephone users must be aware that it was comparatively simple to intercept relevant signals, and that criminal activity could not enjoy a right to privacy.
X submitted that a regime authorising secret surveillance needed to be accompanied by safeguards against abuse which they argued that the Bahamanian regime lacked, and relied on arts 15, 21 and 23 of the Bahamas Constitution 1973.
HELD: The Board did not agree with the Court of Appeal’s approach: the technical possibility of intercepting a private conversation could not mean that the parties were content that it should be intercepted. Those engaging in suspicious activity did not wish or expect to have their conversations intercepted, recorded or used against them. The provision in s.5(2) enabling authorisation of a listening device in relation to offences committed or believed or about or likely to be committed, was there precisely because the legislator accepted and recognised that a conversation about such a subject would fall within the concept of “private conversation” as defined in s.2(1). The questions posed by the magistrate were correct in proceeding on the basis that the Act applied according to its terms, and that the issue was whether its terms were constitutional and had been complied with. To pass the test of constitutionality, a document purporting to be such an authorisation had to identify the person authorised to use a listening device to conduct an investigation into an offence that had been committed. It also had to specify the date as from when such authorised use of a listening device was given and the offence that had been committed or was about to be committed or was reasonably likely to be committed. Furthermore, the authorisations had to comply in such manner and form as required by law. The authorisations were not defective for failure to specify the identity of the persons authorised to use the devices, the date from which and period for which the authorisations were given or the relevant offence. It was open to X to seek to investigate further during the extradition proceedings whether the limits of the authorisations were observed, and the consequences if it proved that they were not were a matter of general law. The only substantial criticism that could be made of the present Bahamanian system was of want of independent supervision, whether at the stage of initial authorisation by the commissioner or subsequently in terms of want of arrangements for the independent review of, and reports on, the operation of s.5, Klass v Germany (A/28) (1979-80) 2 E.H.R.R. 214, Malone v United Kingdom (A/82) (1985) 7 E.H.R.R. 14, Major v Superintendant of Her Majesty’s Prison and Armbrister v Commissioner of Police [1977-78] 1 L.R.B. 549 considered. The Board did not consider that, judged by the standards applicable in the period 1969 to 1973, the absence of any greater degree of independent decision-maker or oversight would or should have been regarded then as unconstitutional. The Act was saved by art.30(1) of the 1973 Constitution, even though, under current standards, a further element of independent safeguarding would be required. The case was remitted to the magistrate for the continuation of the extradition proceedings (see paras 7, 10-11, 16, 47, 56, 59 of judgment).
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