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

*** Not all recordings are kept, with the examining magistrate responsible for
advising the police and selecting which recordings to keep.
130. As is the case generally under the French inquisitorial system, most of
the evidence gathering and deliberation is done during the pre-trial phase and
the trials themselves are relatively short. As evidence collected is the result of
a judicially supervised enquiry 6 , evidential material, including intercept, is less
likely to be challenged during the trial. There is less cross-examination than
in the UK, and defence objections to intercept evidence are rare. It is,
however, unusual for convictions to be based on intercept alone.
131. Administrative intercept for intelligence purposes may be authorised by
the Prime Minister for the purpose of safeguarding national security, scientific
and economic well-being or to prevent terrorism, and is carried out by the
French security agency 7 . Although administrative intercept is kept totally
separate from judicial intercept, a report derived from such intercept can be
passed to an investigating magistrate and form part of a dossier of evidence
in a criminal case. It is always unsourced (or attributed to an ‘anonymous
source’). Such evidence would require corroboration and would not secure a
conviction alone. If defence lawyers ask any questions about this evidence,
the agencies are not obliged to answer them. It is also possible for
administrative interception to lead to judicial interception with the security
agencies informing an examining magistrate of their suspicions, allowing the
latter to start an investigation using judicial intercept.
132. The French are very clear about the benefits that intercept as evidence
brings them and are confident that their use is compliant with ECHR
requirements. They have developed a system which enables them to benefit
from law enforcement use of intercept as evidence to help secure criminal
convictions, whilst enabling separate more sensitive intercept capabilities to
be used for intelligence purposes by security agencies.
Ireland
133. The example of the Republic of Ireland is particularly interesting as it is
the only other Common Law jurisdiction, apart from Malta, that is also subject
to ECHR.
134. The Commissioner of An Garda Síochána, the national police force,
may apply to undertake lawful interception under the relevant Act 8 either in
connection with an investigation of a serious criminal offence or in the
interests of the security of the State (as An Garda Síochána is also the
6 The examining magistrate (juge d’instruction) is responsible for the collection of evidence to
establish the truth
7 DST- Direction de la Surveillance du Territoire
8 The Interception of Postal Packets and Telecommunications Messages (Regulation) Act
1993
Chapter VII
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