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

security service 9 ). Intercept applications are authorised by the Minister for
Justice, Equality and Law Reform.
135. Section 12 of the 1993 Act 10 states that the Minister shall ensure that
such arrangements as he considers necessary exist to limit to the minimum
necessary the disclosure of the fact that an authorisation has been given and
the contents of any communication which has been intercepted. This
restriction on disclosure coincides with the practice of An Garda Síochána not
to use intercept product as evidence in prosecutions. So, although not
prohibited by statute, in practice intercept as evidence is not used in Ireland.
136. This practice is long standing and there are no plans at present to
change it. *** On balance, it is believed that the long-term net effect of using
intercept evidence would be to reduce both the quantity and quality of
intelligence gained and, consequently, the quantity and quality of convictions
secured.
137. ***
138. Although a number of the concerns given for justifying the practice of
not using intercept as evidence in Ireland are not insurmountable, and indeed
have been addressed to varying degrees by countries that do use intercept as
evidence, we gave serious consideration to the fact that the legal jurisdiction
closest to the UK’s has decided against the use of intercept as evidence.
This comparison underlines the need for the UK to conduct such an analysis
ourselves, as we have done in this Report.
Netherlands
139. Intercept in the Netherlands is carried out through two entirely separate
systems of intelligence and law enforcement intercept.
140. Law enforcement interception is authorised by the Special Powers of
Investigation Act, which came into effect in 2000. It allows for interception in
cases of serious crime (four or more years imprisonment), on the authority of
an examining magistrate. Interception is carried out by the National Police,
under the coordination of the Platform for Interception, Decryption and Signals
Analysis. Its capability has significantly improved recently. The value of
intercept as evidence is almost always dependent on being combined with
other evidence, particularly in organised crime cases. *** All intercept
material has to be retained, examined (not necessarily in real time) and noted;
relevant material has to be fully transcribed. All material (but not the methods
by which it was obtained) has to be disclosed to the defence, at the risk of
disclosing capability through knowledge of intercept having taken place. ***
9 Chief of Staff of the Permanent Defence Forces may also apply for an authorisation in
interest of security of the State
10 The Interception of Postal Packets and Telecommunications Messages (Regulation) Act
1993
Chapter VII
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