IPA s.56 (Exclusion of matters from legal proceedings etc.

[Peter Sommer]

The original Register article confuses the arrangements for interception 
with those for equipment interference.  EI evidence unlike intercept is 
not subject to statutory exclusion.  However I suspect that in many 
instances the police / prosecutor etc will want to approach a judge to 
get the precise methods excluded from disclosure on PII grounds.  Almost 
certainly if they are successful the consequence will be as you say - 
the prosecution will have to make its case on the basis of other evidence.

What is less clear is what would happen if the defence suggested that 
the possible use of EI on a specific device rendered the whole of that 
device unreliable as evidence and sought to have it excluded under s 78 
PACE.

Peter Sommer


On 08/12/2016 14:51, Roland Perry wrote:
> In article
> <CACAki+vU+1Q9DPpyf2LyLuYmDjrf53yu3mNSQ1HF7TK2NOaCtA at mail.gmail.com>,
> Mark Lomas <ukcrypto at absent-minded.com> writes
>> I agree with Roland's interpretation. Section 56(1)(a) requires that
>> you should not disclose content or secondary data unless it is
>> available from another source. It does not permit you to lie about that
>> source.
>>
>> However, it would also appear to preclude a defendant from suggesting
>> that intercept evidence contradicts the evidence disclosed by the
>> prosecution.
>>
>> Usually the prosecution is obliged to disclose all available evidence
>> to the defence, which provides a safeguard against bias in selection or
>> presentation. Intercept evidence is exempted from that rule. Rather
>> than ask about lies - deliberate dishonesty - it might be better to ask
>> what safeguards are (or should be) in place to recognise when intercept
>> evidence might support a defendant's case.
>
> The difficulty with that is explaining to the court how the intercept
> evidence was obtained, and why it's relevant to the defendant, also
> breaches the 'tradecraft' rule.
>
> This specific policy issue has been batted backwards and forwards for a
> very long time (pre-RIPA even).
>
> I remember when, at the time of RIPA, and a few years after, the
> existence of the cellsite location information which we take for granted
> today, was also a 'tradecraft secret' and voluntarily wasn't used in court.
>
> iirc the police eventually broke that embargo when they had a difficult
> kidnapping case which required the confluence of the victim and gang's
> cellsite information to prove they did it.


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