Intercepted evidence can’t be used in court

“The UK's Investigatory Powers Act allows the State to tell lies in court”

The Register, 6 December 2016

The Investigatory Powers Act, a major overhaul and consolidation of the powers of Britain’s spies to intercept communications, was passed into law on 29 November 2016. As one would expect, it has been controversial.

One criticism is that the law “creates a legally guaranteed ability—nay, duty—to lie about even the potential for State hacking to take place, and to tell juries a wholly fictitious story about the true origins of hacked material used against defendants in order to secure criminal convictions”.

Can this be right?

It appears not. While no law is a guarantee against wrongdoing by the authorities, this one seeks to ban intercepted evidence from being used in court. It doesn’t affect existing rules about fair trials and lying in court.

A ban on using intercepted evidence in court has been in place for decades

The relevant bit of the Investigatory Powers Act is section 56. It says that, with some exceptions we’ll pass over, evidence gathered by intercepting communications can’t be used in court. This includes doing anything that “tends to suggest that any interception-related conduct has or may have occurred or may be going to occur”.

This replicates, almost exactly, section 17 of the Regulation of Investigatory Powers Act 2000. The words have been shifted around a little, but the substance is the same. The Interception of Communications Act 1985 also covered this ground.

A parliamentary committee set up to look at the draft law said that section 56 “maintains the status quo which prohibits intercepted material from being used as evidence in court”.

The ban on using intercepted evidence in court has been looked at by eight separate reviews since 1993, according to David Anderson QC, the Independent Reviewer of Terrorism Legislation.

So whatever else this section is, it’s not new.

The official line

The ban on ‘intercept as evidence’ reflects a concern that spies’ interception techniques might be compromised if evidence gathered by them were made available in court.

Keeping such evidence out of court creates a “‘level playing field’, in that neither side can gain any advantage from the interception”, according to the Crown Prosecution Service.

The latest review of the ban was carried out in December 2014 under Sir John Chilcot. It concluded that if intercepted evidence were to be allowed in a criminal trial, all relevant material would have to be carefully recorded and made available to the defence. The costs of this, weighed against the uncertain prospect of more convictions, led the government to decide that the ban should continue.

Even though evidence gathered from intercepted communications can’t be used in court, the authorities still find it useful as a source of intelligence.

Are prosecutors under a duty to lie about where evidence comes from?

There is nothing in section 56 that creates a “duty” for prosecutors to cover up the source of intercepted evidence. On the contrary: it says that they can’t present such evidence in court.

Nor does section 56 affect the law on perjury. It is still a criminal offence to knowingly tell lies in court.

Mr Anderson, the independent reviewer, says that the idea that section 56 permits lying by the state is a “myth”. He points to the role of the trial judge, who can order that intercepted material be disclosed to the court if necessary to ensure a fair trial—although prosecutors will reply that “I am not in a position to answer that” if asked whether interception in fact took place.

The European Court of Human Rights has held that the UK’s regime on intercept evidence complies with human rights law. In a 2000 decision, it emphasised that the trial judge is “in a position to monitor the relevance to the defence of the withheld information both before and during the trial”.

The 2014 Home Office review also pointed to the right to a fair trial and the role of judges in making sure that defendants aren’t put at a disadvantage by the existence of intercepted evidence.

A Home Office spokesperson told us that:

“UK law since 1985 means intercepted material cannot be used in court—only in very exceptional circumstances could it be disclosed to a judge, for example if it could exonerate the defendant. It is therefore categorically untrue to say that the Investigatory Powers Act allows prosecutors to use it to support a prosecution and then lie about where it came from.”