Extract from Government's Consultation
Paper "Interception of Communications in the United Kingdom"
(enclosed with Kate Hoey's letter of 15 June 1999)
Chapter 8
USE OF INTERCEPT MATERIAL IN EVIDENCE
8.1 Section 9 of the Interception of Communications
Act 1985 has the effect of prohibiting the evidential use of intercept
material gathered under a warrant issued under the Act. The value
of this provision has been the subject of much debate over the
years, with opinions sharply divided. More recently, the use of
foreign intercept material in UK trials has highlighted the difference
between our practice and that of Europe.
8.2 There are strong arguments both for
the repeal and retention of this particular part of IOCA. Those
seeking repeal believe use of this material is one of the few
ways of gathering evidence against those who plan crimes but engage
others to carry them out. The Inquiry into Legislation Against
Terrorism, undertaken by Lord Lloyd[26]
addressed the law on interception evidence, recommending that
"section 9 of IOCA be amended so as to allow the prosecution
to adduce intercept material in cases affecting national security
. . .".
8.3 The main counter-argument, for retention
of the prohibition on evidential use, is that exposure of interception
capabilities will educate criminals and terrorists who will then
use greater counter interception measures than they presently
do. This would mean that any advantage gained by repeal would
be short lived and would make interception operations more difficult
in the longer term.
8.4 In addressing this part of IOCA, the
Government will have to bear in mind the requirement of Article
6 of the European Convention on Human Rights, which guarantees
the right to a fair trial. Implicit in this guarantee is the principle
that there must be "equality of arms" between the prosecution
and the defence in criminal proceedings. Any rule of evidence
or procedure which favours one party over the other may conflict
with this principle.
8.5 The question of whether section 9 of
IOCA undermines the principle of "equality of arms"
and introduces an unfairness into proceedings where interception
played a part in the investigation was addressed by the European
Commission in the case of Preston v UK[27].
The applicants claimed, amongst other things, that their trial[28]
was unfair because knowledge of material gathered through interception
of communications gave the prosecution an advantage in preparing
their case. They also claimed that the use in evidence of data
relating to communications, while interception material was excluded,
amounted to an inequality of arms. The Commission did not agree,
noting that section 9 prevented either party adducing evidence
which could tend to suggest that interception had taken place.
The Commission did not consider that the applicants had shown
how access to interception material by the police had any effect
on subsequent proceedings, or in what respect that material was
used to the applicants' detriment in preparing the prosecution
case, other than to provide the prosecuting authorities with a
starting point from which to gather admissible evidence against
the applicants. The Commission, by a majority, declared the application
inadmissible.
8.6 In many other European states, intercept
evidence is used in criminal cases and, so far as Article 6 is
concerned, this practice has been approved by the European Court.
See, for example, Valenzuela Contreras v Spain (30 July
1998) and Lambert v France (24 August 1998).
8.7 However, in those States interception
is generally ordered by an investigating judge. The United Kingdom
is in a different position, since criminal investigations are
not supervised by judges but by the law enforcement agency. For
that reason, the principle of equality of arms as between prosecution
and defence will be particularly relevant in devising any system
which allows the use of intercept material in evidence. Furthermore,
any arrangements which make intercept material available to one
or both parties would have to be both practical and affordable.
8.8 To date, no satisfactory arrangements
have been found. Nevertheless, the Government continues to work
on the question, and would welcome the views of others.
The Government welcomes suggestions for a
regime which would enable intercept material to be used in evidence
and to make appropriate disclosures to the defence, bearing in
mind the effects upon sensitive information, resources and the
efficient operation of the criminal justice system.
26 Cm 3420, published October 1996. Back
27
Application number 24193/94 (2 July 1997). Back
28
House of Lords 4 All ER 640 (1993). Back
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