Intercepted Evidence: Now You Hear Me, Now You Don't
| Author | Adam Tomkins |
| Date | 01 November 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01985.x |
| Published date | 01 November 1994 |
CASES
Intercepted Evidence:
Now
You
Hear
Me,
Now
You
Don’t
Adam
Tomkins
*
As is well known, the Interception of Communications Act was passed in
1985
in
response to the European Court of Human Rights’ judgment in the
Mulone
case.’
The Act has been widely criticised in both legal and political circles.2 Before now
the concerns have focused on three main aspects of the Act: first, the grounds on
which warrants authorising interception may be granted, which appear to be
broader than under the previously stated practice3; secondly, the fact that
warrants are granted by the Secretary of State rather than by a judge or
magistrate4; and thirdly, the comparatively weak and limited powers enjoyed by
the Tribunal and Commissioner established under
ss
7
and
8
of
the Most
of
the initial concerns thus related to the process by which interception may take
place, and the limited grounds of appeal and redress. By comparison, very little
has been written about the question
of
what happens to material obtained through a
phone tap and, in particular, when evidence arising out
of
such material may be
admissible in court. This note examines recent case law on this aspect
of
the
Interception
of
Communications Act, comparing the present position in English
*School of Law, King’s College London.
1
would like to thank my colleagues Andrew Ashworth, Lionel Bently, Brian Bix, Keith Ewing, Conor
Gearty and Peter Oliver for their comments on an earlier draft of this note. The views expressed in this note
and any errors that remain are my responsibility alone.
Malone
v
Metropolitan Police Commissioner
[1979]
Ch
344;
Malone
v
UK,
Judgment of 2 August
1984;
Series A,
Vol
82
(1985) 7
EHRR
14.
75
HC Deb
151
(12
March
1985)
(2nd reading); Lcigh
[
19861
PL
8;
Lloyd
(1986) 49
MLR
86;
Ewing
and Gearty,
Freedom Under Thatcher
(Oxford: Clarendon Press,
1990)
pp
65-83.
s
2(2)
of the Act provides that warrants may
be
granted when necessary ‘(a) in the interests of national
security; (b) for the purpose
of
preventing or detecting serious crime; or (c) for the purpose of
safeguarding the economic well-being
of
the United Kingdom.’ Whereas the Act leaves national
security undefined, the previous law had stated that warrants may be authorised on the narrower
ground of ‘major subversive
or
espionage activity.’ See Ewing and Gearty,
ibid
p
67.
s
2(
1). Compare provisions in the Police and Criminal Evidence Act
1984
concerning search warrants
which may be authorised only by a magistrate
(s
8)
or by a circuit judge
(s
9
and Sched
I).
The Tribunal sits in camera, it may review the legality
of
warrants only on the limited grounds
established in judicial review (ie, in Lord Diplock’s formulation, illegality, irrationality and
procedural impropriety: see
Council
of
Civil Service Unions
v
Minister for
the
Civil Service
[
19851
AC
374;
see also Rules of the Supreme Court, Order
53)
and judicial review
of
the Tribunal’s decisions
(including decisions as
to
jurisdiction) is ousted:
s
7(8).
The Commissioner is appointed directly by
and reports annually to the Prime Minister. Only a part of the Commissioner’s reports is made public
-
indeed, only a part of the reports
is
even laid before Parliament. There is thus no Parliamentary
oversight of interception of communications and no Parliamentary review of the bodies who are
charged with monitoring compliance with the Act. The position under the Interception
of
Communications Act is in accordance with the limited powers of Parliamentary review under the
Security Service Act
1989
(dealing with MI5) and the Intelligence Services Bill
1993
(dealing with
MI6
and GCHQ). Review
of
intelligence and related matters is far more advanced in other
Commonwealth jurisdictions and in the United States: on the
US
position, see Intelligence Oversight
Act
1980
(codified at
50
USC
s
413)
and Tomkins, ‘Secret Intelligence, Public Accountability’
(1993)
Vol
105,
No
6
Fabian Review
1.
On Canada and Australia, see Lustgarten and Leigh,
In From
the
Cold
(Oxford: Clarendon Press,
1994).
1
2
3
4
5
0
The Modem Law Revicw Limited
1994
(MLR
57:6.
November). Puhlished by Blackwell Publishers,
108
Cowley Road,
Oxford
OX4
11F
and
238
Main Street. Cambridge, MA
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