Regulation of Investigatory Powers Act 2000: Intrusive Surveillance
| Author | Nick Taylor |
| Published date | 01 August 2006 |
| Date | 01 August 2006 |
| DOI | http://doi.org/10.1350/jcla.70.4.284 |
| Subject Matter | Court of Appeal |
criminal justice system and protecting the public from serious crime. The
court recognised that not all misdemeanours committed by police offi-
cers would lead to successful applications for stays but this case involved
‘a fundamental condition on which the administration of justice as a
whole rests’ (R vDerby Magistrates’ Court, ex p. B [1996] AC 487 at 507).
Similarly, in Brennan vUnited Kingdom(2002) 34 EHRR 18 the European
Court of Human Rights established that a breach of Article 6 (the right to
a fair trial) might follow from an infringement to the right to con-
fidential legal advice even though it might not be shown that the
accused could not have a fair trial.
It was recognised by the Court of Appeal that only in exceptional
circumstances will it overturn findings of fact by an experienced judge.
However, whilst it cannot be said that findings of abuse with regard to
the related cases of Sutherland and Sentence were enough of themselves
to persuade the court to reach a similar conclusion here (such would be
a radical development of the abuse doctrine), clearly the issues of
deliberate wrongdoing and casual overseeing practices across all three
cases weighed heavily in the reasoning of the court.
Nick Taylor
Regulation of Investigatory Powers Act 2000: Intrusive
Surveillance
R vGS [2005] EWCA Crim 887
The appellant, GS, was charged with eight other defendants, with
conspiracy to supply drugs. The prosecution had sought to adduce
evidence of covertly recorded conversations of GS obtained under an
intrusive surveillance authorisation pursuant to Part II of the Regulation
of Investigatory Powers Act 2000. At a preparatory hearing the prosecu-
tion sought to demonstrate the lawfulness of the authorisation by
producing the Surveillance Commissioners’ approvals and renewals.
The appellant, GS, sought access to the material put before the Commis-
sioners, arguing that without it he could not properly formulate any full
argument to have the evidence excluded under s. 78 of the Police and
Criminal Evidence Act 1984. The judge refused GS’s application to stay
the proceedings or to exclude the covert material under s. 78 and held
that the defence was not entitled to see the authorisations or any of the
other underlying material placed before the Surveillance Commission-
ers. GS appealed, submitting that the judge should not abdicate to the
Surveillance Commissioners or the prosecution the responsibility of
deciding the admissibility of evidence, and that the defence should have
access to the material placed before the Surveillance Commissioners to
enable the defence to make informed submissions on whether the
requirements of the 2000 Act had been complied with and as to the
fairness of admitting the evidence under s. 78 of PACE.
The Journal of Criminal Law
284
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