Parliament heard last year that the findings of the 2014 review remain valid. ‘It is not possible to find a practical way to allow the use of intercept evidence in court,’ home office minister Baroness Williams of Trafford said.
Of course, as the EncroChat convictions (and ongoing criminal trials) suggest, it is sometimes possible to admit intercepts as evidence in English courts. One loophole, cited by His Honour Peter Ross in a letter to The Times, is where evidence has been obtained lawfully overseas. He referred to a drugs case where, ‘as the evidence was properly obtained according to Dutch law and admissible in their courts, I ruled it could be adduced in the trial’. The Court of Appeal agreed, he noted, describing the UK’s position as ‘nonsensical’.
At least some of the EncroChat prosecutions face the difficulty that material was obtained in the UK. The lawfulness of its admission has already been challenged. However, in A, B, D & C v Regina [2021] the Court of Appeal found last year that such material could be admitted because it was not, under the terms of the Investigatory Powers Act 2016, ‘being transmitted’ when it was collected. This relied on the technicalities of the EncroChat app and that it stored messages in smartphones’ RAM before encryption and transmission.
However, a policy change may be in the air. Official enthusiasm about the EncroChat trove has eroded the decades-old policy of extreme secrecy about signals intelligence. (The secret of Bletchley Park (pictured above) was kept until the 1970s; current guidance on telecommunications interception remains ‘neither confirm nor deny’.)
One argument for change is that admitting intercept material as evidence will force more transparency on the process and thus build public confidence. Up to now, this argument has failed to persuade the powers that be. But earlier this month, a former legal director of MI5 and MI6 entered the debate.
In a letter to The Times, David Bickford wrote: ‘I have never seen a sustainable reason against the use of intercepts as evidence in cases of serious crime, including terrorism.’ The costs argument, he said, ‘fails in the face of the heavy economic damage that can be wreaked by serious criminals and terrorists’.
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