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

CHAPTER VIII - LEGAL MODELS
INTRODUCTION
185. The present legal model for interception (see Chapter II) precludes the
use of intercept as evidence in any ordinary legal proceedings. If this is to be
changed, there are a number of legal issues, following from the European
Convention on Human Rights (ECHR), that must be taken into account in
devising a new model. In addition to being legally sound any new model has,
of course, to be operationally practicable, affordable and effective.
186. Several such models have been considered in previous Government
reviews of Intercept as Evidence, or have been proposed by interested parties
outside Government. The present Review has re-examined all of these. We
decided to look in some detail at three candidate models:
The “PII Plus” model developed late 2006 – early 2007;
A model developed for this Review by Lord Carlile of Berriew QC; and
A new “Two Warrant” model developed by the Review, based in
particular on the system used successfully in Australia, and
elaborated to take account of the needs of interception in the IP era.
These are covered in separate sections below. We have carefully considered
other models that have been put forward in the past, but conclude that none
of them are viable options.
187. The Review has sought Counsel’s advice from Jonathan Crow QC on
the three candidate models. We asked for his opinion on
Whether the three candidate models complied with the European
Convention on Human Rights (ECHR);
If not, whether they could be modified to do so, without putting
sensitive capabilities at risk or imposing unreasonable burdens on the
intercepting agencies;
If a new model was adopted and failed, whether it would then be legally
possible to revert to the status quo.
LEGAL ISSUES
188. Two Articles of the ECHR are principally engaged when considering
the use of Intercept as Evidence. These are
Article 6, which guarantees the right to a fair trial, and
Article 8, which deals with the right to private and family life.
189. A number of relevant principles have been derived from Article 6. They
include
There must be fair disclosure of the case to the defence. In English
law 23 this is regulated by the Criminal Procedure and Investigations Act
1996 (CPIA), which imposes a duty on the prosecution to retain all
material that might be relevant, and to disclose
o all material on which the prosecution relies, and
23 In Scotland a different system applies – there is no equivalent to PII.
Chapter VIII
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