Intercept as evidence

Simon McKay, solicitor advocate, of McKay Law Solicitors & Advocates of Leeds, says it’s time to make the product of interceptions admissible.

The law governing the use of intercepted
telephone calls as evidence has been described by some of the country’s most senior judges as “puzzling” and “difficult to understand”, but the same could be said of the Government’s
objections to its use for this purpose.
Telephone tapping has had a controversial history in English law. As long ago as 1979, the judiciary was saying that it was an area of law “crying out for legislation”. It took a challenge before the European Court of Human Rights in Strasbourg to force the enactment of the Interception of Communications Act 1985, the first law to regulate its use. This Act covered only public communications, so was found wanting when Alison Halford, a senior police officer with Merseyside Police, discovered her private phone calls were being intercepted as she discussed with her lawyers a claim for sexual discrimination against the very chief constable who had authorised that her calls should be listened to.
This, added to huge technological advances in telecommunications (mobile phones, text messaging and emails all evolved after the 1985 Act), resulted in the law being brought up to date in the Regulation of Investigatory Powers Act 2000 (RIPA).
It is this legislation that creates a prohibition on the use of intercept as evidence. The provisions are flawed and clumsy but clear in their effect; no disclosure or other thing can be said or done that suggests, or tends to suggest, that there is an intercept warrant in place. Indeed, it is a criminal offence to do so.

Anomalies
The anomalies arise in relation to the Government’s reasons for the prohibition existing. The official line is that sources will be compromised, the extent to which telephone tapping is used by the state revealed and as a result the efficacy of the technique undermined. This makes no sense. Sources cannot be compromised, since no sources are involved, interception is a purely technical resource and the number of warrants issued is published annually in the report of the interception watchdog.
Practically, it can be sensibly argued that the real reason why there is so much resistance to the use of intercept as evidence is that the costs implications of doing so are enormous (transcripts of many months of bugging would need to be transcribed, copied and disclosed to defendants accused of offences).
Using intercept against terrorists, in itself, is not an aberration. When the authorities suspect an individual may be a terrorist but they do not have the evidence to support a criminal prosecution, they can seek to deport them through a tribunal known as the Special Immigration Appeals Commission or SIAC. These cases are largely heard in secret but the judges are entitled to consider intercept material. The system seems to work reasonably successfully, at least as far as the use of intercept evidence is concerned. There are other examples of similar tribunals being empowered to consider this highly secret material.
For as long as intercept has existed (which is as long as communications themselves have existed – the Royal Mail has its origins in the King seeking to exercise control of the postal system for the very purpose of intercepting treasonous mail) – there have been calls for its use in evidence. Most recently, the Privy Council reported on the issue in January of this year and for the first time recommended its use as evidence. However, it was a highly qualified “yes” and the report raised more questions than it answered. Importantly, the intelligence agencies would need to be happy with any model that was capable of being conceived to facilitate the use of intercept in court. Yet both MI5 and MI6 have publicly resisted any attempt to open up one of their most secret resou