New RIPA ammendment(s) probably coming in "autumn"

[Peter Fairbrother]

Owen Lewis wrote:

>> On Behalf Of Peter Fairbrother

>>> Roland Perry wrote:
>> 
>>>> Yes, and who will ensure that the CoPs are adhered to?
>>> 
>>> As well as the Commissioners, the various investigating bodies have
>>> professional standards units. And the slightest whiff of malpractice is
>>> enough to get a case thrown out of court.
>> 
>> Err, this is England (or the UK if you prefer) not the US. Illegally
>> obtained evidence is usually admissable. A "whiff of malpractice getting a
>> case thrown out" is a nice fantasy, but in practice it doesn't happen.
> 
> There is precedent for the admission of evidence unlawfully obtained. AIOLI,
> the judge in each case determines what evidence he will allow to be heard.
> No doubt one of the lawyers here can provide chapter and verse but a
> determination on any matter of admissibility would seem to be one of the
> functions of a 'voir dire' hearing, before the case is tried before a jury.
> 
> Owen

A whiff of lying to the Court will sometimes get evidence thrown out, but in
general evidence is rarely excluded on grounds other than unreliability.

AIUI a Judge cannot (?or will not) exclude evidence solely on the grounds
that it was illegally obtained, although he can use the illegality as a
consideration in his judgement as to the evidence's reliability, fairness
etc. - but IANAL.

That's based on my memory of advice given in a case from the 70's, so the
situation may have changed since then, and some more recent Appeal decisions
which make me think it hasn't in fact changed. I'm not sure if the QC said
the Judge "cannot" or "will not" exclude evidence, but I think it was
"cannot".



There are a couple of clauses written into various laws which make some
evidence inadmissable (including s.17 of RIPA, which makes some
interceptions inadmissable, but see the Sargent case which deals with a
similar restriction in IOCA), but even those are often in practice ignored.

Eg the "verballing" that PACE was meant to (and largely did) stop still
happens occasionally, and see the Donald Ramsbottom posts to ukcrypto "R. v
Sargent" dated 31/10/01 and "Regina v Loverage" dated 3/5/01. There is
another case about DNA illegally retained and later used to collect more DNA
for evidence in a rape case, but I can't find a ref.
 

-- Peter Fairbrother

ps what does AIOLI mean, apart from garlic?

pps "voir dire" is about examining jurors (or witnesses) for impartiality