Jack Straw' View

[Donald Ramsbottom]

SNIPS

>'Traditionally' the results of intercepts have not been available to the
>prosecution as evidence. It follows from the ideas that
>1 It might not be admitted as unfair anyway, and
>2 It leaves too many questions open to a defence about how the
>information was gathered, which the prosecution would not want to
>answer.

Agreed.

>
>An unanswered (to me) question. Is such material disclosable to the
>defence?

It should be in theory, but I suspect not in practice. I don't do Criminal,
but think there is a disclosure provision of all "evidence" buried in PACE.
Ah, but its not evidence you say, well it would but for the provision of
Parliament. Evidence :"All the legal means, exclusive of mere argument,
which tend to prove or disprove any matter of fact, the truth of which is
submitted to judicial investigation"

>
>He is saying that this has, traditionally, caused difficulties. The
>whole point about the need to update IOCA, was that it had become ragged
>at the edges. This is a process of justification under HRA by
>clarification. Thus the new definition.

But if you want to keep the data out of evidence why widen the clause and
mention: 
"But the same formulation of "prevention and detection" exists in each of the
five other powers of the Bill where we most certainly do want the phase to
have a wider meaning and to include **gathering evidence**."
>
>Whilst this applies to the results of interception of communications,
>there is no reason, as the law stands, why this should apply the
>products of traffic analysis and obliged decryption. Neither is seen to
>be inherently unfair, and neither invites too close a questioning of
>Intelligence service practices.

Agreed.


>
>>
>>("(4A) For the purposes of this Act detecting crime shall be taken to
include-- 
>>   (a) establishing by whom, for what purpose, by what means and
>>   generally in what circumstances any crime was committed; and 
>>   (b) the apprehension of the person by whom any crime was committed; 
>>and any reference in this Act to preventing or detecting serious crime
>>shall be construed accordingly, except that, in Chapter I of Part I, it
>>shall not include a reference to gathering evidence for use in any legal
>>proceedings.").

What about :

"I believe that this clarification should be welcomed. It means that it is
possible to use the powers in Chapter II of Part I and in Parts II and III of
the Bill for the purpose spelled out in Amendment No. 215." 

>
>
>-- 
>David Swarbrick, Solicitor. Computer and Internet Law and Contracts
>david@swarb.freeuk.com T: +44(0)1484 722531 F: +44(0)1484 716617
>Law-index of 11,200+ case summaries at www.swarb.co.uk


I think I must being thick or something, but it all points, in my tiny mind,
to the possibility that they are contemplating using intercepts in **some**
circumstances as "evidence", it does not as far as I can see reinforce the
S16 exclusion, but undermines it.

Of Course, the Noble Lord BB, could be just playing fast and loose with
terminology and this is a semantic debate, and I have just missed the point!

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists
5 Seagrove Avenue, Hayling Island, Hants, PO11 9EU, England.
Tel (023) 9246 5931 Fax (023)9246 8349
Ramsbottom & Co is regulated by the Law Society in the conduct of investment
business