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

CANDIDATE MODELS
PII Plus
191. All intercepted material would be potentially admissible as evidence.
Agencies could decide whether or not to conduct interception to evidential
standards (there would not be different kinds of warrant). If they chose to
conduct interception evidentially, they would record and retain all the product.
They would be required to transcribe any sections required by the
prosecution, and to keep minimal records of the rest. If they did not so
choose, they would handle the material as required for intelligence purposes,
and additionally retain for later review any material judged to be exculpatory.
Standards for retention and recording would be set out in statutory guidance,
which would exist in both public and classified versions.
192. Once charges had been laid, all potentially exculpatory material would
be reviewed along with other unused material; if it met the threshold for
disclosure, it would be disclosed to the defence subject to Public Interest
Immunity (PII). Closed hearings, at which the defendant’s interest would be
represented by a Special Advocate, would be used to address any defence
challenges to the admissibility of intercepted material where sensitive
technical information was relevant.
193. PII would be enhanced and put on a statutory basis, replacing the
current case law that has evolved over several years. The statute would set
out the process to be followed in deciding what material is liable to be
disclosed to the defence, and what the prosecution and the trial judge must do
if there appears to be a public interest against disclosing certain information.
There would be a right of appeal for both sides against the trial judge’s
decision, and a statutory bar on judges ordering the disclosure of sensitive
material. Instead the judge would have to stop the trial if he concluded that a
fair trial was not possible. While the question is outside this Review’s scope,
we suggest that any new statutory PII should apply to all sensitive material,
not just intercept.
Lord Carlile’s Model
194. Intercepted material would be potentially admissible as evidence,
provided that the admission of the evidence is necessary in the interests of
justice in the specific case. If this criterion is met it would be for the
prosecution to decide whether to use intercept evidence in a case.
195. If current guidelines required exculpatory intercept to be disclosed, and
the Attorney General certified that disclosure would be adverse to the national
interest, a special regime would apply. A closed ex parte hearing would be
held before a judge appointed by the Master of the Rolls 27 (with a Special
Advocate to represent the defendant’s interest if the judge so requires) to
27 Alternatively the trial judge could be appointed in this way, and deal with disclosure as well
as running the trial.
Chapter VIII
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