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Surveillance Evidence. 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

Extracts from this document...

Introduction

´╗┐Surveillance & The Law Explaining to what extent is it accurate to state that evidence obtained from the interception of telephone calls is inadmissible in legal proceedings in the UK, critically evaluate the merits of the current legal position in this respect and make recommendations for how it might be improved. ________________ 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] ...read more.

Middle

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.[32] 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. ...read more.

Conclusion

Interception of Communications Code of Practice contemplates the retention of material up to the point of criminal proceedings being ?rare? [31] Also see Natunen v Finland (application no. 21022/04) [32] Olmstead v. United States [33] Liberty?s Response to the Joint Committee on Human Rights: ?Relaxing the Ban on the Admissibility of Intercept Evidence?, February 2007, Jago Russell and Barbara Davidson, pg. 6 (CF Telegraph, ?Lift phone tap ban in terror trails, says new Met Chief,? 6th February 2005 [34] The Government Reply to the Twenty-Forth Report from the Joint Committee on Human Rights?, September 2006- Liberty?s Response to the Joint Committee on Human Rights: ?Relaxing the Ban on the Admissibility of Intercept Evidence?, February 2007, Jago Russell and Barbara Davidson, pg. 3 [35] ?17.?(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)? (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.? Regulation of Investigatory Powers Act, 2000, s.17 [36] Privy Council Review of Intercept as Evidence, Report to the Prime Minister and the Home Secretary, 30 January 2008, Cm 7324 (http://www.official-documents.gov.uk/document/cm73/7324/7324.pdf) (accessed 26/11/2012) [37] Privy Counsellor Review Committee: ?Anti-terrorism, Crime and Security Act Review: Report?, 18th December 2003, para 208 [38] See Malone v UK (1984) 7 E.H.R.R. 14, Halford v UK (1997) 24 E.H.R.R. 523 and Khan v UK (2001) 31 E.H.R.R. 45. Review of criminal investigations and prosecutions conducted by HM Customs and Excise by the Hon Mr Justice Butterfield (2003), Ch.12, paras 116-117. [39] 26839/05 [2010] ECHR 682 (18 May 2010) [40] ?Intercepting Communications ?In Accordance with the law?, Rita Esen, 76 J. Crim. L. 164 2012 ...read more.

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