Select Committee on European Union Twelfth Report

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


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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