Yes, interception of communications is a criminal offence; the question is what do we require and understand as a criminal intent to intercept? The City of London Police thinks it cannot be proved about BT's use of Phorm in trials. The reasoning is unclear. I just wonder if there is not a confusion here between motivation/motives and intent. Intent to intercept is knowledge that the action taken, here the use of Phorm, will lead to the ability to know about e-mails' communications by BT customers. Whether it is to improve the customer service or not is of no relevant to the criminal intent given that this would constitute the motive not the intent.
See https://nodpi.org/2008/09/22/city-of-london-police-to-complex-to-spend-public-money/ and "UK Says Phorm Clickstream Tracking Is Okay... If Clearly Explained To Customers" (19 September 2008) - well I think it is slightly different but...
Addition: obviously BT has not been detered to reuse the technology (29 September 2008) but at least customers will be asked their consent
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