Juries 'should hear phone taps' to nail crime gangs

[Peter Sommer]

At 12:30 08/09/2002 +0100, Richard Clayton  wrote:
>There's a long
>discussion of this in the 1999 consultation paper on amending IOCA

reproduced below - even now there's no single "police" view

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 24 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 P reston v UK25. The applicants claimed, 
amongst other things, that their trial 26 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. 23 24Cm 3420, published October 
1996. 25Application number 24193/94 (2 July 1997). 26House of Lords 4 All 
ER 640 (1993).

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 Lamber t 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. 24



Peter Sommer
hcorn@cix.co.uk; P.M.Sommer@lse.ac.uk
Academic URL: http://csrc.lse.ac.uk//Sommer.htm
Commercial URL: http://www.pmsommer.com