European Human Rights Law

Sections 15 to 18 of RIPA address the scope of the issue around the use of evidence from intercepted communication. Another illogical aspect of RIPA is the conflict of provisions within the Act. In section 15 (3) of RIPA there is a requirement that all copies of intercept material and related communications are to be destroyed as soon as they are no longer required to be retained for any of the authorised purposes.

This may cause substantial difficulties in trying to use evidence for a significant purpose in court proceedings, as it may have to be destroyed before the case even makes it to court. And under s19 of RIPA failure to comply with the requirements of s. 15[30] or with the restrictions on handling intercept material in relation to copying, disclosing and destroying may constitute a criminal offence.

These provisions under RIPA are highly illogical and puzzling, and the conflicting natures of these provisions were reflected in the unsatisfactory decision in Preston v UK in regards to the destruction of interception evidence. [31] It is understandable in cases where there is a need to maintain secrecy of interception evidence however these cases should be limited to secret services cases and not be used in criminal proceedings were the defendant is heavily reliant on the evidence itself.

There are issues with conflict of Article 6; Right to a Fair Trial when it comes to disclosure of intercept evidence in court proceedings, however, the Justice report highlights a more significant point, in that only the UK and Hong Kong maintains a ban on such evidence being used. It states; “the UK is the only country in the common law world that prohibits completely the use of intercepted communications as evidence in criminal proceedings.

” So it is not impossible for the UK to be on par with the rest of the world on lifting the ban of intercept evidence. It has been suggested that lifting the ban on intercept evidence might damage the relationships between police and intelligence agencies, however LIBERTY condemns these suggestions and believes “removing the bar would remove some of the inter-agency tensions that have been created by the current legal position which must frequently frustrate the desires of the police and the CPS to prosecute suspected terrorist and criminals. ”[33]

In 2006 the Government explained that it is “committed to find, if possible, a legal model that would provide the necessary safeguards to allow intercept to be used as evidence”[34] and yet no developments have been made since. This paper has assessed some of the provisions set out by RIPA in relation to the use of intercept evidence in UK legal proceedings and have found RIPA to fall short in many aspects. The current law states that under s. 17[35] intercept evidence is inadmissible in legal proceedings however the gaps in the law in RIPA provide several opportunities for evidence to be taken into consideration.

Future recommendations on RIPA have been advanced by many, for example, recommendations set forth in the 2008 Chilcot review[36] and the 2003 Newton Committee also concluded that lifting the ban would be “one way of making it possible to prosecute in more cases. ”[37] In Butterfield J. 's acknowledgement, in his Review of Customs and Excise policies following the London Bond cases, that “the provisions of the Act in relation to the obtaining and use of intercept material are not universally understood. ”[38] This is certainly the case, in that the provisions set out by RIPA are incoherent, illogical and at times contradicting of each other.

It lacks clarity and transparency; in that the public would not be able to comprehend how courts reached the decisions they did in previous intercept cases. RIPA is not all negative, Kennedy v United Kingdom[39] highlighted the enormous steps the Government has taken to get to RIPA, although the enactment was of a direct result from the pressure of Strasbourg. The developments in UK law in this area have been substantial, but “there are loop-holes that still need to be addressed- communications interception is still far from being ‘in accordance with the law’ as required by Article 8 of the Human Rights Act 1998.

Bibliography

Journal Articles: Barnum, D. , 'Warrantless Electronic Surveillance in National Security Cases: Lessons from America. ' [2006] EHRLR 514-540 Esen, R. (2012) ‘Intercepting Communications In Accordance with the Law’. Journal of Criminal Law, Vol. 76, pp. 164-178 European Human Rights Law Review, (2010), Case Comment, Kennedy v United Kingdom (26839/05): interception of communications- Regulation of Investigatory Powers Act 2000 Ferguson, G & Wadham, J (2003) ‘Privacy and Surveillance: a review of the Regulation of the Investigatory Powers Act 2000’, European Human Rights Law Review