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Inadmissibility of Intercept Evidence

Document Cited authorities 7 Cited in Related
Vincent
Date01 February 2007
DOI10.1350/jcla.2007.71.1.33
Published date01 February 2007
Subject MatterComment
JCL 71(1) dockie..Comment Samuels .. Page33 COMMENT
Inadmissibility of Intercept Evidence
Alec Samuels
As a general rule, intercept evidence is inadmissible in English law. This
is a matter of considerable and continuing controversy.
The case for admissibility
Society faces very real threats from terrorists and serious criminals such
as drug traffickers and armed gangs and fraudsters. There is a need to
strengthen the prosecution to deal with such threats. Serious criminals
must be tried and convicted, yet the inadmissibility of intercept evidence
allows them to escape conviction. There may be no other evidence
available. Intercept evidence may in fact be the best evidence, both
reliable and compelling, such as evidence of a telephone conversation
between D1 and D2 engaging in a criminal conspiracy, or of damning
evidence from intercepting e-mails. Powerful ‘bugging’ evidence cannot
be used in court against terrorists, so that the government has resorted
to control orders. However, surely better the prosecution and conviction
of terrorists, where the evidence meets the standard of proof, than
restraint upon unconvicted terrorists. Most other countries have
admissibility, for example Australia and the USA. Admissibility is advo-
cated by many reputable people, such as Lord Goldsmith QC, the
Attorney-General, Lord Lloyd, a former law lord, Lord Goodhart QC,
the current DPP and his predecessor Sir David Calvert-Smith, Jonathan
Fisher QC, Andrew Hall QC, chairman of the Criminal Bar Association,
senior police officers, Sir Ian Blair, Commissioner of the Metropolitan
Police, and Shami Chakrabati, Director of Liberty.
Safeguards
Safeguards can be built in. The prosecution can be relied upon to act
responsibly and cautiously in order to avoid impairing the safety and
integrity of the intelligence and security services. Intercept evidence
would be adduced only where it was sensible to do so. The leave of the
judge could be required. It could be edited, for example where thought
in the public interest to be...

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