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

[Mark Lomas]

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.

Mark

On 8 December 2016 at 07:53, Roland Perry <lists at internetpolicyagency.com>
wrote:

> In article <040b01d24fbe$624e60d0$26eb2270$@liddicott.com>, Ben Liddicott
> <ben at liddicott.com> writes
>
> The Register has an article up about this today:
>>
>> The Investigatory Powers Act allows the State to tell lies in court
>> Is this correct, or is it overstating the case? And if so by how much?
>>
>
> El Reg has got the wrong end of the stick (again).
>
> The rule they mention (which has existed in RIPA since 2000) is that you
> cannot use intercept evidence in court. Not that you can use it, but lie
> about where it came from.
>
> The point of the rule isn't to stitch up defendants, but it's to protect
> the security service's tradecraft by preventing them getting into the
> situation of having to explain in open[1] court how such evidence was
> obtained.
>
> What they have to do is find *other* evidence to prove their case, once
> the intercept evidence has put them on the right trail.
>
> [1] The exemptions are therefore closed court proceedings. Whether such
>     proceedings are a good or bad thing is a somewhat separate question,
>     but we are where we are, and they do exist.
> --
> Roland Perry
>
>
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