Criminal Justice and Public Order Act

Generally it is accepted that the evidence obtained from the interception of telephone calls is inadmissible as evidence in criminal proceedings in the UK. There are however, a few exceptions to this rule and this paper is going to assess in which circumstances it is admissible. There is an overwhelming amount of controversy over this issue as many believe the use of intercept material as evidence would be more beneficial to our legal system and the conviction rates in our country.

[1] However it is also widely recognised that ‘the tasks of recognising and regulating the impetus towards state surveillance in the information age is extremely challenging,’[2] particularly in relation to the vast amount of technological advances made over the past decade, it has proved difficult to keep up to date with change. This paper will attempt to assess the current law and its merits and conclude with some effective reform recommendations to how the law might be improved in this area, i. e. , how RIPA (Regulation of Investigatory Powers Act 2000) may be improved. Background on Interception of Communications

In order to understand the current legal position in regards to the interception of telephone calls and the admissibility of intercept material as evidence in UK courts, it is important to recognise how the UK got to the position it is currently in. Prior to 1985, there was no requirement to follow a particular legal procedure when authorising the tapping of telephones or the intercepting of mail. The tapping of telephone was neither a civil wrong, nor a criminal offence; “The conditions for issuing warrants for interception of postal or telephonic communications were laid down in administrative rules which had no legal force.

”[3] It was then the decision of the European Court of Human Rights in the infamous case of Malone v UK[4] which triggered the introduction of the Interception of Communications Act 1985. During this case the Vice-Chancellor observed the ECHR decision in Klass v FRG[5] and recognised that telephone tapping was “a subject crying out for legislation. ”[6] The court held that the UK did not meet the requirement of being ‘in accordance with the law’ under Article 8 of the ECHR and this case subsequently brought in the first piece of statutory footing for interception of communications in the UK.

This seen the introduction of Interception of Communications Act 1985 (IOCA), however it was found that the scope of the Act was inadequate, as it only covered public telephone communications. There were no provisions for private communications, which was highlighted by the case of R v Effik[7] were the evidence was admissible on basis ‘that a cordless telephone did not form part of the public telecommunications system’[8] and therefore wasn’t covered by IOCA.

[9] It was then the 1997 case of Halford v UK[10] which brought about change in the law. A Government Consultation paper in June 1997 put forward a proposal for ‘a single framework which deals with all interception of communications in the UK, regardless of the means of communications, how it is licensed or at which point on the route of communications it is intercepted. ’[11] This then saw the introduction of the Regulation of Investigatory Powers Act 2000, brought into force in the advent of the Human Rights Act 1998.

One of the fundamental reasons for the enactment of RIPA was so that the UK could be seen to be in line with the European Convention of Human Rights (particularly Articles 6 & 8) and the Human Rights Act 1998. This is often seen as a negative thing from critics, the UK wasn’t proactively trying to regulate interception of communications, but the ECHR pushed them into doing so, in order to be ‘in accordance with the law. ’ The enactment of both IOCA and RIPA was; “a measure in which the minimum action possible was grudgingly taken to comply with the letter of rulings under international agreements. ”[12]

Assessing the Current Legal Position on Admissibility Currently, the interception of communications is regulated by the Regulation of Investigatory Powers Act 2000 (RIPA), with consideration also being made to the Human Rights Act 1998, Articles 6 & 8 of the European Convention of Human Rights and The Data Protection Act 1998. The Regulation of Investigatory Powers Act or RIPA ‘provides regulation of, for example, the interception of communications, the use of covert surveillance and decryption of documents, including the disclosure of an encryption key in order to have access to protected material.

Authority must be obtained for carrying out of any of this; and the granting of any authorisation under the Act must take into account ‘necessity’ and ‘proportionality’. Any surveillance which is performed other than under this Act, or without some other statutory authority, is unlawful. ’[13] In other words, for interception of communication to be seen to be ‘in accordance with the law’ it must be both ‘necessary’ and ‘proportionate. ’ This is often measured by the Secretary of the State, who authorises warrants for specified intelligence and law enforcement agencies to intercept communications.

A warrant is often given; ‘in the interests of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic well-being of the United Kingdom. ’[14] There is criticism that this method does not offer sufficient protection against abuse and in Klass v Germany[15] the ECHR stated; “in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.

”[16] Instead of complete responsibility laid onto one person, in which case the pressure would be expediential,[17] Liberty argued that judicial authorisation would guarantee more consideration for each request for interception warrants and would be a reform for RIPA worth considering. [18]For example, in 2004 the Home Secretary issued 1,849 warrants and the report published by JUSTICE explains how this is higher than the number of judicial intercept warrants issued for the whole of the United States. [19]

Although it is said that the interception of communications or the use of evidence from this would subsequently affect our personal privacy which is protected by Article 8[20] of the ECHR, this does not mean that interception or the use of material from interception of communications should not be used at all, Liberty stated ‘the right to privacy is not absolute’. [21] It is sections 17[22] and 18 of RIPA which specifically relate to the use of intercepted telecommunications evidence in court proceedings.

These sections of RIPA state that the use of intercepted evidence is not allowed, however when we look at case law there are several circumstances where evidence has been admissible, these are often a result of the incoherency and illogical nature of the provisions set out by RIPA. For example, in section 17 (4) its states: “In this section “intercepted communication” means any communication intercepted in the course of its transmission by means of a postal service or telecommunication system.

” The words in the ‘course of transmission are significant. In R v Hardy[23] the court held the evidence of a tape was admissible in court and not a breach of articles 6 or 8, as it was not seen to be an interception of communications ‘in the course of transmission’. The courts came to a similar outcome in R v E. [24]These are examples of were even though the law is set out in RIPA, it is not completely in accordance with this.

In regards to the words ‘in the course of transmission’ it’s beneficial to mention the case of R v McDonald[25] also, in this case the court held that using an earpiece to record a conversation, was not classed as an interception, bizarrely this was based on the 22 millisecond delay in transmission from the earplug to the phone. This is where the lack of clarity of the provisions of RIPA was beneficial to the prosecution. Similarly in R v Allsopp and Others[26], the court held it was not an interception as only one side of a conversation was picked up, another loophole in the law.

As previously mentioned, the case of R v Effik[27] highlighted the idea of private lines and the lack of legislation to allow interception of private lines, this is now not the case as in places of business or institution, those with authority can intercept phone calls made within their lines. Ormerod and Mc Kay recognise the incoherency of RIPA in another, basic aspect in that “there is something inherently incoherent and illogical in a scheme which seeks to authorise an activity (ss.

1-9), recognises that that activity must lead to material which will be relevant at trial (s. 18), and yet seeks to suppress that material and even the fact of its existence (s. 17). ”[28] There is a significant conflict of interests here, it is difficult to understand why provisions would be set in place for the interception of communications to be allowed, with the knowledge that information would be gathered from this interception and yet it is inadmissible in court.

The logic behind this principle is puzzling. It is also said that only material intercepted under a UK interception warrant is affected by this bar. It does not apply for example to material intercepted in a foreign country under that country’s law; to a telephone conversation recorded with the consent of one of the participants; or to a telephone conversation recorded by a hidden microphone not connected to the telephone.

In all of these cases the material may be adduced as evidence, and is subject to the same disclosure rules as any other relevant material. [29] So material which has been intercepted from another country on a person in the UK is admissible in court however, if someone in the UK intercepts communications from another person in the UK, it is inadmissible under RIPA, the conflicting nature of RIPA makes it impossible to follow, it seems to be used to benefit the prosecution more so than being ‘in accordance with the law. ’