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

Roland Perry lists at internetpolicyagency.com
Fri Dec 9 09:54:00 GMT 2016

In article <d19cb683-9584-f1de-0ed0-aaa2aec0302c at pmsommer.com>, Peter 
Sommer <peter at pmsommer.com> writes
>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 

If you've got as far as arguing about EI evidence in a specific case, 
then the cat is out of the bag. What the agencies need is for [most] 
perpetrators to be unaware of the very existence and extent of the EI 

>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.

Roland Perry

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