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

current legal regime for interception in Scotland until new legislation is
in place and its potential impact has been assessed.
CIVIL PROCEEDINGS
86. Although this Review has largely focused on whether a regime to allow
the use of intercepted material in criminal court can be devised, we have also
considered the particular risks that would result in making intercept product
admissible as evidence in civil proceedings. Repeal of section 17 of RIPA
would open up the possibility of using intercept material in civil proceedings,
including civil proceedings against the State (eg employment tribunals). In
criminal proceedings, if the disclosure of damaging sensitive material is
otherwise legally unavoidable, the prosecution has the option of discontinuing
the prosecution. In civil cases, where such damaging disclosure to the
plaintiff is otherwise legally unavoidable, the only practicable way of
discontinuing proceedings would be to pursue a settlement. However, there
could well be instances where the plaintiff would be more interested in gaining
disclosure of the sensitive material and would not settle, or where his lawyer
thought that by pursuing the issue of intercept, the State would be under
greater pressure to settle on favourable terms. There would also be cases
where the State was not a party to the case, but where one of the parties
claimed that there was relevant intercept evidence that should be disclosed; in
these instances the State would not have the option of withdrawing from the
case or settling.
87. Another significant difference between civil and criminal procedures is
that in a civil trial it is only the judge, rather than a jury, who decides both the
facts and the law. In a criminal trial it is beneficial, to ensuring a fair trial, for a
judge to have oversight of material withheld from the jury (eg on a PII
application). However, in a civil case if the material undermines the case of a
party from whom it is being withheld, then there is a risk that the trial judge will
be prejudiced by seeing it, and if he were to rule it inadmissible the result
would be unfair to the other party, whose case could have been undermined
in the eyes of the judge by evidence which they had not seen.
88. Because of the particular risks involved in introducing intercept
as evidence in civil proceedings, we recommend that any change to the
current legal regime for interception in the civil courts only be
considered following successful change in criminal proceedings.
89. While our Report was in the final stage of drafting, the Home Secretary
announced her intent to amend RIPA so as to allow intercept to be used at
Coroners’ Inquests subject to certain limitations and on the basis that there
would be no jury. This announcement came too late in our consideration for
us to investigate or assess it without delaying our Report.
RISK TOLERANCE
90. The Review has considered at some length the extent to which it is
reasonable to tolerate these risks as a reasonable price for the benefits that
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