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

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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 Chapter IX 50
considered for cases in the civil courts, in Scotland (at any rate before new disclosure legislation is in place), or in Northern Ireland. 216. We conclude that it would be possible to provide for the use of intercept as evidence in criminal trials in England and Wales by developing a robust legal model, based in statute and compatible with ECHR, starting from the PII Plus model described in Chapter VIII. We recommend that the Government, in order to achieve this, put in hand the confidence-building measures and the work set out above. Chapter IX 51
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 and 48: decide whether disclosure was neede
Page 49 and 50: evidence, and the failure of that a
Page 51: The intercepting agency shall decid
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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