USE OF INTERCEPT MATERIAL AS EVIDENCE IN CRIMINAL
PROCEEDINGS
21. There is, in the UK, a statutory prohibition
on the use of intercept material as evidence in criminal proceedings[7].
The prohibition is territorially limited and only extends to
intercepts effected within the UK. Foreign intercept material
may therefore be admissible in proceedings in UK courts[8].
The Government's consultation paper, Interception of Telecommunications
in the United Kingdom[9],
noted that many other European States use intercept material in
criminal cases. This practice, insofar as it relates to fair
trial guarantees under Article 6 of the European Convention on
Human Rights, has been approved by the Strasbourg Court. But
unlike in the UK, an investigating judge generally orders the
interception. In the UK, law enforcement agencies supervise criminal
investigations. For that reason, the Government has emphasised
the importance of the principle of "equality of arms"
as between prosecution and defence in determining whether or not
to admit intercept material as evidence in court proceedings[10].
22. As mentioned in paragraph 13 above, the Convention
contemplates the interception of the communications of a person
present on the territory of another (the visited State) without
the latter's technical assistance. Once notified of the interception,
the visited State has 96 hours (extendable for up to eight days)
to decide whether or not to object. If the visited State consents
to the interception, it is entitled, but not bound, to impose
any conditions on the intercepting State as might apply in a similar
domestic case. This might include, in the case of interception
of communications of a person in the UK, a prohibition on the
use of intercept material as evidence in criminal proceedings
in the intercepting State[11].
23. A potential difficulty arises in cases where
the visited State takes some time to decide whether or not to
permit the interception. Until a decision is reached, the interception
is lawful, and so the question arises as to the possible use of
intercept material obtained during this period of deliberation.
Early drafts of the Convention required the explicit consent
of the visited State to the use of already intercepted material
as evidence in criminal proceedings. The final text of the Convention
includes a general prohibition (not just limited to criminal proceedings)
on the use of such material subject, however, to two exceptions.
The first is the express consent of the visited State; the second
is to prevent an immediate and serious threat to public security.
24. The Committee expressed concern that the scope
of the prohibition in circumstances where the visited State had
not explicitly agreed to the interception or to the use of the
intercept material was imprecise. If the intention was to make
it broader than a simple prohibition on evidential use in criminal
proceedings, we suggested that a requirement to destroy the intercept
material would seem to be an essential safeguard. The Government's
explanation for the omission of such a requirement seems difficult
to reconcile with the actual text of the Convention. We were
told that retention of the intercept material to justify a particular
course of action taken on the basis of it was an important principle
for some Member States. Yet, in the absence of explicit consent,
intercept material may only be used to take "urgent measures
to prevent an immediate and serious threat to public security".
The Convention would not seem to permit the retention of intercept
material for any other purpose, such as to serve as a source of
intelligence, or as a basis for action in non-urgent case, or
to avert some future threat which is not immediate and serious.
The Government has confirmed this analysis. The prevention of
an immediate and serious threat to public security would be the
sole basis for the retention and use of intercept material without
the consent of the visited State.
25. We also doubted whether the public security test
(as interpreted in a footnote to an earlier draft of the Convention)
would impose a significant limitation on the use of otherwise
prohibited intercept material. We perceived a danger that, without
further clarification, too low a threshold might be adopted and
the intercepting Member State would have too extensive a discretion
to determine whether to apply the exception permitting the use
of intercept material in a given case. We suggested that, in
the interests of consistency and legal certainty, there should
be a more precise definition of the category of (serious) crimes
in respect of which preventative measures might be taken under
the second limb of the exception. We welcome the Government's
commitment to take this up when the Explanatory Report to the
Convention is under negotiation.
| Use of intercept material - Article 20(4)(b)
|
| Letter from Lord Tordoff to Kate Hoey, MP |
06 May 1999 | p.39
|
| Letter from Kate Hoey, MP to Lord Tordoff |
15 June 1999 | p.43
|
| Letter from Lord Tordoff to Barbara Roche, MP
| 11 November 1999
| p.45 |
| Letter from Barbara Roche, MP to Lord Tordoff
| 26 November 1999
| p.47 |
| Letter from Lord Tordoff to Barbara Roche, MP
| 02 December 1999
| p.48 |
| Letter to the Legal Adviser from the Home Office
| 22 March 2000 |
p.71 |
| Letter from Lord Tordoff to Barbara Roche, MP
| 23 March 2000 |
p.72 |
| Letter from Barbara Roche, MP to Lord Tordoff
| 20 April 2000 |
p.73 |
| Letter from Lord Tordoff to Barbara Roche, MP
| 25 May 2000 |
p.74 |
| Letter from Barbara Roche, MP to Lord Tordoff
| 28 June 2000 |
p.75 |
7 
