Use of intercept intelligence

Simon McKay, of McKay Law Solicitors and Advocates, looks at the issues that arise from the acquisition and retention of intercept material.
There is some evidence, albeit anecdotal, that criminals are coming to terms with the provisions of the Regulation of Investigatory Powers Act (RIPA) 2000 and beginning to see where the prosecution may be vulnerable to legal challenge.
One area of acute difficulty for the police and other agencies are the issues that arise from the acquisition and retention of intercept product. This was previously governed by the ruling of the House of Lords in R v Preston in 1993 which considered the provisions of the Interception of Communications Act 1985 (repealed by RIPA 2000). Lord Templeman considered the practical effect of obtaining a warrant and how the product should be handled:
“When a warrant is issued to an official of the telecommunications service for a telephone to be tapped in order to prevent or detect serious crime, the official prepares a tape and transcript, the police officer in charge of the relevant investigation takes note of any information which he deems to be helpful and the tape and transcript are then destroyed, usually within 24 hours. Thus, if a suspected drug dealer arranges by telephone to meet a friend in a London airport the police are in a position to make use of that information but no records of the telephone conversation are allowed to be kept.”
In the aftermath of this case, the police and other law enforcement agencies evolved what became known as the ‘Preston Briefing’. Although any retained material needed to be the subject of consideration for disclosure, the prevention and detection of serious crime did not extend to the prosecution of the offences, ending at the charge desk, therefore the prosecution duty to retain and if necessary disclose to the defence all relevant material did not apply to information obtained from an intercept authorised under the prevention of serious crime provision.

Disclosure of intercept
Under the 2000 Act, the prohibition on the use of intercept has been widened and disclosure is governed by section 18.
This section (among other things) requires a judge to order disclosure of intercept product to himself if it is in the interests of justice to do so. If, having reviewed it, an issue of disclosure arises, then if this cannot be achieved without offending the prohibition the case effectively collapses since the prosecution cannot proceed without committing an offence. Unless, therefore, a form of admission can be drafted by the prosecutor with the judge’s approval that does not disclose or tend to disclose the existence of an intercept warrant, for example, then the case must be and in some cases is dropped.
But what about the retention of intercept in light of the procedure set out in ‘Preston’? If no product has been retained, it does not need to be revealed to the prosecutor and therefore disclosed to the defence. This is now effectively governed by section 15 of RIPA 2000. Material obtained as a result of an intercept warrant should be destroyed once its retention is no longer necessary for the purpose upon which it was obtained. In the typical criminal case, applying Preston, once the suspects are charged, the material should still be destroyed. If this was the case, life would continue as it had before the 2000 Act came into force but there are a number of problems with it:

1.Section 18 envisages circumstances where intercept product will continue to be in existence.
2.The role of intelligence-led policing can mean that the ‘purpose’ of obtaining the intercept goes beyond merely arresting one or two individuals and the intelligence can legitimately be kept to inform ongoing long-term operations against organised criminals and terrorists.
3.Other developments in the law have considered “preventing and detecting crime” extends beyond the charge desk (in the Court of Appeal’s judgment in the DNA case, Marper [2004], their Lordships mooted th