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

210. We believe that a limited number of new successful prosecutions would
be made possible by the use of intercept as evidence. The UK already
achieves very high rates of successful prosecution of serious criminals and
terrorists; there is limited room for substantial further improvement in such
cases through the use of intercept as evidence. We have not seen any
evidence (see Chapter III) that the introduction of intercept as evidence would
enable prosecutions in cases currently dealt with through Control Orders.
211. We need so far as possible to enable the UK to retain the immense
value to public protection of the current use of intercept as an investigative
tool together with close intelligence agency and law enforcement cooperation
whilst improving justice by removing the ban on intercept as evidence with
marginal costs to the current arrangements.
212. We recognise that there are substantial fears among those who
operate the present system that any model for intercept as evidence, however
robustly constructed, might later encounter legal difficulties which could
damage the essential national security interests described above. They
rightly believe that these interests must be protected.
213. In order to develop the necessary confidence we recommend that, if
the Government decides to introduce an intercept as evidence regime, it
provides an undertaking at the outset that it would take action if either
the practical operation of the regime or subsequent adverse legal
rulings meant that the operational requirements set out above could no
longer be met. An adverse legal ruling should involve no loss of security: a
criminal court cannot oblige the Government to release sensitive material, as
the Government always has – and must be prepared to exercise – the option
of abandoning the particular prosecution. In the event of adverse rulings
action would consist either of modifying the new regime to meet the particular
difficulty, or of returning to the current regime. The Government would in
this way make clear that in no circumstances would there be a sacrifice
of the essential security requirements we have listed.
214. Before legislation could be introduced along these lines, further
extensive work would be required to develop a detailed regime by:
completing the development of an ECHR compatible legal model,
based in statute, starting from the PII Plus model;
exploring the operational consequences of such a model and devising
pragmatic ways to reconcile divergent interests;
in advance of any repeal of RIPA s17, ensuring that such a regime met
the operational requirements set out above; and
creating confidence amongst the relevant interests (including
communication service providers and international partners) that the
introduction of such a regime would enhance justice and public
protection in the UK, whilst safeguarding national security and partners’
legitimate needs.
215. For the reasons set out in detail in Chapter IV, we recommend that for
the time being no change to the current legal regime for interception be
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