Privy Council Review of intercept as evidence: report - Official ...

Organised Crime and Police Act 2005 gave powers to grant a suspected
offender immunity from prosecution, or to pass a reduced sentence, in return
for the offender’s written agreement to provide assistance. CPS experience is
that such agreements are greatly facilitated when clear evidence is available
at an early stage; they believe that intercept evidence would be particularly
powerful, and could be crucial in achieving agreements.
EFFECTS ON PROSECUTIONS
52. While everyone can agree that using intercept as evidence would result
in some additional successful prosecutions, we have heard very different
views on the scale of the increase and the sorts of cases involved. Those
with experience in interception have emphasised that the vast majority of
communications between serious criminals or terrorists are scrappy, highly
allusive, and often deliberately disguised as legitimate conversations.
Regardless of language, they make extensive use of dialect and slang. Clear,
understandable exchanges that plainly inculpate those involved are very
much the exception. For the rest, much interpretation – as well as translation
in many cases – is needed to reveal what the exchange is really about. This
need is particularly acute where multiple media are used – see Chapter VI.
53. A substantial piece of work was carried out as part of a previous review
of this subject in 2003-04, which took a considerable number of real cases in
which interception had been used, examined whether the actual intercept
obtained would have been of evidential value, had it not been barred from
use, and estimated the effect on the outcome. Its conclusions were that
intercept would result in 25-30 additional convictions each year across the
UK, mainly of second and third tier organised criminals (ie not the most
important targets). It concluded that few additional convictions of terrorists or
first tier organised criminals would be obtained, on the grounds that they
generally observe good communications security and avoid inculpating
themselves over media that can be intercepted.
54. These conclusions have been criticised in evidence to this Review. It
is suggested that if intercept were available as evidence, listeners would be
more alert to inculpatory conversations of evidential value. Where the
intercepted conversations were inconclusive, other evidence would have been
sought to resolve the point. We accept that there is force in these criticisms,
which are supported by the successful use in UK courts of foreign intercept
(which is exempt from the bar on use as evidence) and eavesdropping, as
well as by the use of intercepted material in Control Order and Special
Immigration Appeals Commission proceedings.
55. But there are also considerations that pull the other way. For example,
the 2003-04 work was based on monitors’ notes of the intercept, rather than
the recordings themselves; a jury might not be convinced that the monitor’s
interpretation of the spoken words was the correct one. Further it assumed
that all available intercept would be used as evidence: in reality the Crown
may decide not to adduce certain intercept on grounds such as exceptional
Chapter III
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