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

Procedures Act 1980 (CIPA). This allows material to be shown to the judge
alone, who can rule that
it need not be shown to the defence;
it must be disclosed (in original or redacted form) to cleared defence
lawyers; or
It must be disclosed (in original or redacted form) to the defendant.
***
172. CIPA gives the right to appeal any disclosure decision before actual
disclosure occurs. In some instances defence counsel can be cleared to
review classified material on the client’s behalf. So long as the defence can
adequately represent their client without classified information, the court can
forbid discussion of sensitive matters with the client. *** In particular the
proceedings of the Foreign Intelligence Surveillance Court, which authorises
interception under FISA, have never been revealed to the defence.
173. New technology presents a challenge for both intelligence and law
enforcement. *** As stated in Chapter VI, we do not expect the US to use the
product of its most sensitive new techniques in evidence.
174. US law enforcement see intercept as evidence as an invaluable tool.
They generally use intercept in conjunction with other evidence, but playing a
tape in court can be critical. Intercept can corroborate informant and
documentary evidence, and (used in conjunction with plea bargaining)
frequently results in guilty pleas and willingness to cooperate. When this
happens, cooperating defendants can help explain the meaning of intercepted
material to the court, so securing the conviction of top-level criminals. Most
large organised crime cases include intercept evidence, as do many whitecollar
crime cases. Intercept product was a critical part of a series of
operations that resulted in the conviction of the five major New York mafia
bosses.
175. The United States experience illustrates how intercept as evidence can
be used to combat serious crime. However, in *** cases where the most
sensitive intercept techniques are used, their product is seldom used as
evidence, because of the risks of capability being compromised.
176. In making comparisons between the US and UK systems, it is
important to recognise that UK law enforcement and intelligence agencies
currently use intercept to combat serious crime and terrorism at least as
extensively as the US, using intercept as a criminal intelligence and
investigative tool, despite the US population being five times greater. ***
177. The resulting UK conviction rates are also relatively impressive. In the
US, even allowing for a time lag between the date of interception and eventual
arrest and conviction, the highest arrest to conviction rate, as a result of
interception, between 1996 and 2006 was 56.4% 21 . In the UK, a Metropolitan
police study of operations carried out involving intercept as intelligence only in
21 Administrative Office of the United States Courts 2006 Wiretap Report
Chapter VII
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