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

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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 Chapter VIII 46
evidence, and the failure of that attempt, would add weight to a contention that a bar on intercept as evidence was an appropriate balance between the legitimate needs of the State and the rights of individuals. Chapter VIII 47
Page 1 and 2: PRIVY COUNCIL REVIEW OF INTERCEPT A
Page 3 and 4: Crown Copyright 2008 The text in th
Page 5 and 6: PRIVY COUNCIL REVIEW OF INTERCEPT A
Page 7 and 8: public, as at least key parts of it
Page 9 and 10: written submissions received. It al
Page 11 and 12: are included in a schedule, which c
Page 13 and 14: independent facilities, however the
Page 15 and 16: - often in real time - and those co
Page 17 and 18: CHAPTER III - POTENTIAL USE AND BEN
Page 19 and 20: sensitivity or the risk to other, m
Page 21 and 22: 66. The existence of an official ca
Page 23 and 24: 81. We have been told that the use
Page 25 and 26: intercept as evidence would bring.
Page 27 and 28: CHAPTER V - RESOURCE IMPLICATIONS I
Page 29 and 30: CHAPTER VI - NEW COMMUNICATIONS TEC
Page 31 and 32: telephone is being set up, any part
Page 33 and 34: CHAPTER VII - RELEVANCE OF EXPERIEN
Page 35 and 36: security service 9 ). Intercept app
Page 37 and 38: 149. Spain provides another example
Page 39 and 40: 159. Although over 90% of offences
Page 41 and 42: Procedures Act 1980 (CIPA). This al
Page 43 and 44: 182. However, even with these examp
Page 45 and 46: o any ‘exculpatory material’ -
Page 47: decide whether disclosure was neede
Page 51 and 52: The intercepting agency shall decid
Page 53 and 54: considered for cases in the civil c
Page 55 and 56: ANNEX B - LIST OF WITNESSES Attorne
Page 57 and 58: ANNEX C - LIST OF WRITTEN SUBMISSIO
Page 59 and 60: ANNEX D - BIBLIOGRAPHY Regulation o
Page 61 and 62: CSP Communications Service Provider
Page 63 and 64: Lawful Interception The interceptio
Page 65 and 66: SOCA Serious Organised Crime Agency
Page 67: Published by TSO (The Stationery Of

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