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

CHAPTER IX – CONCLUSIONS AND RECOMMENDATIONS
204. The State has an overriding duty to protect the public, including from
threats such as international terrorism and serious organised crime. One
important contribution to this duty is to prosecute cases of serious organised
crime and terrorism whenever possible. This requires that the best evidence
is made available for such prosecutions. At the same time the trials must be
(and be seen to be) fair. The Review is confident that these two objectives
would be supported by the use of intercept as evidence. We therefore agree
with the principle that intercept as evidence should be introduced.
205. However, the ability to prosecute serious organised crime and terrorism
is only one way of achieving the protection of the public. We would therefore
support intercept as evidence only if, on balance, it would at one and the
same time safeguard national security, facilitate bringing cases to trial and
allow the effective use as intercept as intelligence to continue.
206. We believe a legal regime could be devised that should be ECHR
compatible. No such regime has yet been fully developed, but we believe one
could be along the lines of the PII Plus model described in Chapter VIII. It
would make all intercepted material, whether originating in intelligence or law
enforcement agencies, potentially useable as evidence, without of course
compelling such use. Sensitive capabilities would need to be protected by
PII.
207. Any legal regime must address the following costs and risks:
The potential need for intelligence as well as law enforcement agencies
to preserve and perhaps monitor an enormous amount of intercept
product which might be relevant to future criminal cases.
A risk of disclosure of intercept capabilities and techniques, including
those of the intelligence agencies. We understand and accept that no
absolute guarantee can be given, but none of the legal models looked
at up to this point have by themselves provided in our view a sufficient
basis to strike the right balance between ensuring a fair trial, including
defence ability to probe the integrity of intercept product, whilst
ensuring that disclosure of intercept capabilities and techniques is kept
to an acceptable level. The heightened risk of disclosure is a direct
result of lifting the ban on prosecution use of intercept product and the
need to ensure that a new ‘equality of arms’ balance is struck. This
risk is inherent in any realistic legal model, and will have to be
addressed by separate Government undertakings to abandon cases if
necessary to prevent damaging disclosure.
208. Although we believe that a legal regime could be developed that is
ECHR compatible and enhances justice by enabling intercept evidence to be
adduced in court, any such regime would also need to meet the following
operational requirements as set out in Chapter IV, in order to ensure that the
UK’s strategic intelligence capability was safeguarded and the ability of
intelligence and law enforcement agencies to protect the public was not
harmed:
Chapter IX
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