Regulation of Investigatory Powers Act 2000, Part I: Meaning of ‘Interception’
| Author | Simon McKay |
| DOI | 10.1350/jcla.69.2.106.63518 |
| Published date | 01 April 2005 |
| Date | 01 April 2005 |
| Subject Matter | Court of Appeal |
effect a withdrawal from the procedure before the witness has an
opportunity to observe it. In contrast, once a suspect has provided an
image, control over the procedure is ceded to the police. In the previous
version of the Code, under which the parade was the principal proced-
ure, had the police suggested holding a parade involving those whose
images appeared in the second video identification procedure, the ap-
pellant would, no doubt, have refused to cooperate and consequently it
would not have taken place. The video identification procedure is open
to abuse and while in the present case the unfairness of the procedure
was glaring, in other cases the fairness of video procedures might be
more difficult to assess. Although likely to be resisted on the ques-
tionable grounds that the judge and the jury are able reach their own
conclusions, ‘equality of arms’ concerns raised by the degree of control
over the procedure exercised by the police could be addressed by permit-
ting the defence to adduce expert evidence of empirical tests of the
fairness of the procedure (see generally G. Wells, M. Lieppe, and M.
Ostrom, ‘Guidelines for Empirically Assessing the Fairness of a Lineup’
(1979) 3 Law and Human Behavior 285; T. Valentine and P. Heaton, ‘An
Evaluation of the Fairness of Police Line-Ups and Video Identifications’
(1999) 13 Applied Cognitive Psychology S59–S72, for a study of the fairness
of procedures conducted by police forces in England and Wales).
Andy Roberts
Regulation of Investigatory Powers Act 2000, Part I:
Meaning of ‘Interception’
R v E [2004] EWCA Crim 1243, [2004] 2 Cr App R 29
The appellant was one of a number of defendants accused of a number
of drug-related offences. A preparatory hearing was held pursuant to
s. 29 of the Criminal Procedure and Investigations Act 1996 to deter-
mine the admissibility of telephone conversations recorded as a result of
a surveillance device installed in the appellant’s car. The judge ruled the
evidence was admissible.
On appeal, the appellant submitted that the calls amounted to inter-
ceptions under Part I of the Regulation of Investigatory Powers Act 2000
(RIPA) and if so, the interception should have been authorised under
s. 5 of that Act by warrant. If not so authorised, the interception was an
offence under s. 1(1). Either way, the consequence of s. 17 of RIPA was
to make the material derived from the device inadmissible. Alterna-
tively, if the material derived was not inadmissible on s. 17 grounds, it
ought to be ruled inadmissible under s. 78 of the Police and Criminal
Evidence Act 1984. Consequentially, as the police knew the appellant’s
telephone conversations were being recorded in breach of RIPA, this
amounted to bad faith.
The Journal of Criminal Law
106
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