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

preserved in its entirety, there would be an increased risk that the
regime would be held not to produce a fair trial.
There would be an enhanced risk of successful challenges being
brought by the defence if all product was not required to be noted,
indexed and preserved to a high standard. If relevant material was
simply recorded, without being monitored, noted and indexed, there is
an increased risk that the regime would be held not to produce a fair
trial.
If the defence was deprived of any effective opportunity to challenge
the authenticity and accuracy of any material, it would undermine the
prospect of successfully defending the ECHR compatibility of the
regime.
201. There are also features of any regime that might mitigate these
difficulties and contribute to the regime’s compatibility with the ECHR. These
include:
Express statutory enactment. In order to satisfy the ECHR test of
legality it would be highly desirable for as many features of the regime
as possible to be set out in primary legislation. Notwithstanding that
general advice, he advises that there would be no clear benefits in
seeking to codify the PII regime in statute (others have taken a different
view).
Judicial supervision. One of the fundamental concerns underlying the
ECHR is to prevent the arbitrary exercise of executive power over the
individual. As such the ECtHR is always comforted if the exercise of
any executive power is tempered by judicial supervision.
Special advocates. It would further assist in providing an effective form
of judicial supervision if special advocates were available when
necessary in order to introduce an adversarial element into the
process.
Supervision by the Interception Commissioner.
202. Turning to the specifics of the candidate models, the advice is that:
There is no fundamental flaw in the ECHR compatibility of the PII Plus
model;
Lord Carlile’s model represents a variant of the PII Plus model; it
equally has no fundamental flaw, but offers no advantages over PII
Plus;
The Two Warrant model contains a fundamental flaw that would
expose it to a significant risk of successful legal challenge, in that it
would afford different treatment to intercepted material based only on
the agency which intercepted it, failing to meet the requirement that
any measure that restricts the rights of the defence must be shown to
be strictly necessary. This flaw cannot be rectified by any small
change to the model.
203. If a new model were to be adopted and then fail for any reason, the
advice is that it would be legally possible, in terms of ECHR compliance, to
revert to the current situation with intercept barred from most legal
proceedings. We were advised that the fact of an attempt to use intercept in
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