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

81. We have been told that the use of non-jury trials has been one of the
factors leading to more stringent disclosure requirements in Northern Ireland
courts than in England and Wales. ***
82. ***
83. In addition, public enquiries have wide-ranging powers to order
disclosure, that cannot be fettered by public interest immunity, which would
need to be considered. The Police Ombudsman for Northern Ireland may
also, in accordance with section 66 of the Police (Northern Ireland) Act 2000,
require that the Chief Constable of the Police Service of Northern Ireland
provide him with any information in his possession, regardless of its nature or
potential sensitivity. While the Police Ombudsman is confident that he has
appropriate measures in place to protect sensitive information, this Review
will need to take due regard of these powers. Because of these particular
risks, we recommend no change to the current legal regime for
interception in Northern Ireland.
SCOTLAND
84. There are also a number of particular issues and risks concerning the
implementation of intercept as evidence in Scotland and how the Scottish
legal system would have to be adapted. The interception of communications
is listed among the reservations in Schedule 5 to the Scotland Act 1998 so
that Westminster retains competence, although Scottish Ministers are
authorised to sign interception warrants relating to serious organised crime.
The law of criminal procedure is however devolved and Scottish Ministers and
the Scottish Parliament have competence to deal with such matters as the
use of intercepted evidence in the context of a Scottish prosecution. The
Scottish Government also have devolved responsibility for policing. We have
therefore had to consider the impact that the mixture of reserved and
devolved competences would have on making any changes in Scotland.
85. A particular issue in Scotland is that any intercept as evidence model
likely to be considered would probably rely on some form of Public Interest
Immunity, entailing a combination of pre-trial ex parte 3 hearings or other
methods of protecting sensitive material, consistent with the procedures set
elsewhere in the UK by the Criminal Procedures and Investigation Act 1996.
There are currently no provisions for PII in Scotland, although ex parte
hearings can be held. In the absence of PII, the risks of disclosure in
Scotland would be significantly greater than in England and Wales. A review
on the ’Law and Practice of Disclosure in Scotland’ has recently been
completed by the Rt Hon Lord Coulsfield. He has recommended that
legislation should provide a system of Public Interest Immunity hearings in
Scotland along the lines of those in England and Wales. The Scottish
Government will be consulting shortly on Lord Coulsfield’s recommendations
and legislation may follow. We therefore recommend no change to the
3 Ex Parte – closed hearings in the absence of the other party
Chapter IV
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