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

miscarriages of justice. A class of potential evidence (such as
intercepted material) should only be excluded if there are powerful
reasons for doing so.
7. The challenge of this Review has therefore been to judge, on the basis
of the best available evidence, whether a legal and operational regime could
be devised which allows for the evidential use of intercept in line with these
principles. The Terms of Reference set out a clear set of issues to consider,
which provide the basis of the structure of the Report. Nevertheless our task
has not been simple. The benefits and risks of intercept as evidence involve
a complex interplay of legal, operational, technical, resource and
organisational matters of principle and practice. The issue is one of critical
judgement, rather than absolute assertion, and this has been acknowledged
by most witnesses.
8. It is also an issue of confidence: if key contributors to intelligencegathering
do not believe that the security of the process is completely
protected, sources of intelligence may dry up, or their concerns may in
practice preclude the use of any new power to deploy intercept as evidence.
On the other hand there can be a lack of confidence in a criminal justice
system where evidence which might be crucial in reaching a just verdict is
withheld by law.
9. We have had to consider from a broad perspective whether a regime
for intercept as evidence can be developed that safeguards national security,
(including our ability to prevent and disrupt serious crime and terrorism -
which often requires operational speed and flexibility), and at the same time
will allow more successful and fair prosecutions. We have attempted to
assess and weigh the potential benefits of intercept as evidence, based upon
a workable legal regime, against the risks and costs, including any impact on
the current use of intercept.
10. In this exercise we believe, as foreshadowed in our terms of reference
and set out more fully in Chapter II, that the UK’s strategic intelligence
capability must not be compromised. By contrast, the current use of
interception as intelligence to serve tactical operational requirements (such as
the disruption of terrorist and serious crime networks) and to support law
enforcement through prosecutions based on evidence often derived from
intercept, but not based on using it evidentially; and its potential future use
directly as evidence are both (by no means mutually exclusive) ways of
supporting the same objectives of combating terrorism and serious crime. We
have attempted to judge the value of their respective contributions to the
prevention, disruption and prosecution of terrorists and serious criminals, and
how the introduction of intercept as evidence would be likely to affect these
contributions.
11. This is the seventh report to Ministers on the issue of intercept as
evidence in the last thirteen years, but it is the first to have been produced by
people who are not currently within government. It is based upon the latest
material available, including meetings with nearly 40 individuals and over 30
Chapter I
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