Abstract
In the UK, it is currently the law that the contents of intercepted telephone calls, or letters intercepted by transmission in the post, are generally inadmissible as evidence in civil or criminal proceedings; and this so, whether the interception was carried out legally or illegally. This is, of course, in sharp contrast to position everywhere else in the world, including the rest of the common law world, where (broadly speaking) the rule is that the intercepts are admissible, provided they were obtained legally. It is also counterintuitive to the point where even intelligent people with legal training sometimes find it hard to grasp. (When setting examination papers in evidence for law students, I regularly include, as a trap to the unwary, a problem where a piece of damning evidence against the defendant is an intercepted phone-call: and although the class has heard the rule explained in lectures, at least a third invariably tells me, wrongly, that the intercept is admissible, provided it was lawfully obtained.)
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Notes
- 1.
See also Forster, this volume.
- 2.
A. Blick, T. Choudhury and S. Weir, The rules of the game – terrorism, community and human rights, a report by Democratic Audit for the Joseph Rowntree Trust (2006).
- 3.
Malone v UK (1984) 7 EHRR 14.
- 4.
Editorial, 6 March 1985.
- 5.
“The main general rule governing the entire subject is that all evidence that is sufficiently relevant to an issue before the court is admissible and all that is irrelevant, or insufficiently relevant, should be excluded.” Rupert Cross, Evidence, 3rd ed 1967, 13; cf (ed Colin Tapper) Cross and Tapper on Evidence, 11th ed 2007, 69.
- 6.
The trial of Mary Queen of Scots is printed in 1 Howell’s State Trials, 1161.
- 7.
The Times, 5 July 1923. This example together with a number of others were given in §149 of the Report of the Birkett Committee, see footnote 10.
- 8.
[1964] AC 814.
- 9.
[1998] 2 CrAppR 16; noted [1999] Cambridge Law Journal 43. The decision was approved by the House of Lords in R v P [2002] 1 AC 146.
- 10.
Report of the Committee of Privy Councillors appointed to inquire into the interception of communications, Cmnd. 283 (1957).
- 11.
See footnote14.
- 12.
Birkett Report, §31.
- 13.
Life of John, Lord Campbell, edited by M.S. Hardcastle (London, John Murray, 1881), vol. 2, 187–188.
- 14.
Report from the Secret Committee of the House of Lords relative to the Post Office. 1844. 601 (7 August 1844). Report from the Secret Committee on the Post Office. 1844. 582 (5 August 1844). The Committees were “secret” in the sense that they took evidence in private, which was not published with the Report; but the Report from the Commons Committee was published with a long Appendix with documents relating to the history of the Post Office and the interception of letters.
- 15.
Lord Campbell gleefully recorded (footnote 13) that the debates about the Mazzini affair revealed that “Of all the Secretaries of State, Mr Fox, during his short tenure of office, appeared to have carried the practice to the greatest extremes.” Charles James Fox (1749–1806) was a political figure who was generally thought of as a friend of public liberties.
- 16.
Life and Letters of Sir James Graham 1792–1861, ed. C.S. Parker, (John Murray, London, 1907), 447.
- 17.
Birkett Report, §40.
- 18.
Birkett Report, §64.
- 19.
Birkett Report §67.
- 20.
An account of Marrinan’s later unsuccessful attempts to sue various people over these allegations appear in the Law Reports as Marrinan v Vibart and Another [1963] 1 QB 234 and 528.
- 21.
Birkett Report §152.
- 22.
Birkett Report §119.
- 23.
Birkett Report §101.
- 24.
It is possible to see in this a parallel with the bizarre arguments that were put forward by the government to resist public pressure for the introduction of tape-recording of interviews with suspects: one of which was that, as soon as the tape-recorder was switched on, every suspect would say “Aagh! Stop torturing me and I will tell you anything!” On this, see generally John Baldwin, “The police and tape recorders,” [1985] Criminal Law Review 695.
- 25.
For an account, see K.D. Ewing and C.A. Gearty, Freedom under Thatcher (Oxford, Clarendon Press, 1990) Chap. 3.
- 26.
1917–2007; Law Lord from 1980 to 1992.
- 27.
12 March 1985. Mr Jenkins later publicly withdrew this comment following Lord Bridge’s dissent in the Spycatcher case, in which his judgement, unlike that of his brother judges, was uncomfortable to the executive.
- 28.
The Royal Commission on Criminal Procedure, Report, Cmnd 8092 (1981), §3.53–3.60.
- 29.
(1765) 19 St. Tr. 1029.
- 30.
[1980] QB 49.
- 31.
Malone v UK (1984) 7 EHRR 14.
- 32.
Ewing and Gearty, footnote 25, p.59.
- 33.
The duties of the Tribunal were extended to cover other forms of covert surveillance by the RIPA 2000. For an account of the Tribunal and its present functions, see Victoria Williams, Surveillance and Intelligence Law Handbook, (Oxford, OUP, 2005).
- 34.
The interception of communications in the UK, Cmnd. 9438 (February 1985), §12(f).
- 35.
6 March 1985.
- 36.
Ewing and Gearty, footnote 25, 83.
- 37.
See Steyn LJ’s judgement in Effick (1992) 95 CrAppR 355 in the Court of Appeal: taking a position which in Morgans v DPP (see footnote 38) he later acknowledged to be wrong.
- 38.
The argument was finally laid to rest in Morgans v DPP [2001] 1 AC 315; noted by Munday, [2000] CLJ 267.
- 39.
[1995] 1 AC 309.
- 40.
(1997) 24 EHRR 523.
- 41.
R v Goodman and Mulcaire, Media Guardian, 26 January 2007.
- 42.
[1994] 2 AC 130.
- 43.
Quite properly, because s.6 of the IOCA required this to be done.
- 44.
Preston took his case to Strasbourg, arguing that the ban on the use of intercept evidence infringed his rights under Article 6 of the Convention; but his application was rejected by the Commission: Preston v UK, 2 July 1997.
- 45.
Criminal Procedure and Investigations Act 1996, s.3(7) and 8(7), forbidding the prosecution to disclose intercepted material to the defence as part of its general duty to disclose “unused material.”
- 46.
RIPA 2000, s.18(8), providing for the disclosure of intercept material to prosecuting lawyers to enable them to decide whether a prosecution should be halted.
- 47.
See, inter alia, David Ormerod and Simon McKay, “Telephone intercepts and their admissibility,” [2004] Criminal Law Review 15; Matthew Ryder, “RIPA reviewed,” Archbold News, Issue 4, 5 May 2008, 6.
- 48.
Khan [1997] AC 558.
- 49.
[2001] 1 AC 315.
- 50.
[2001] UKHL 54, [2003] 1 AC 347.
- 51.
R v E [2004] 1 WLR 3279; [2004] 2 CrAppR 29 (484).
- 52.
R v Hardy et al. [2002] EWCA Crim 3012, [2003] 1 CrAppR 30 (494).
- 53.
RIPA s.3(2); subsection (1) of this section also says that no warrant is required in the rather more unlikely event that both parties consent.
- 54.
RIPA s.4, and Regulations made by the Secretary of State under it.
- 55.
The shocking murder in 2002 of the two schoolgirls, Holly Wells and Jessica Chapman – which became a cause célèbre.
- 56.
See Intercept Evidence: Lifting the Ban, JUSTICE 2006, §5 and §103.
- 57.
Footnote 9.
- 58.
[2004] UKHL 40, [2005] 1 AC 264.
- 59.
Under section 78 of the Police and Criminal Evidence Act 1984, which provides: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
- 60.
Lord Mustill, in Preston. And compare Lord Lloyd in his Inquiry into Legislation against Terrorism (footnote 63): “In my six years as a Commissioner under the Act, I was never able to discern why the section is drafted so obliquely” (§7.7).
- 61.
David Ormerod, in [2005] Criminal Law Review 220, 223.
- 62.
In 2006, the arguments were set out and analysed with great lucidity in a report published by JUSTICE, and what follows here adopts much of what said in this report. See Intercept evidence: Lifting the ban. A JUSTICE report. October 2006. (Available online at the JUSTICE website.)
- 63.
Inquiry into Legislation against Terrorism, Cm 3420 (1996), §7.17.
- 64.
For a detailed account of the rules relating to public interest immunity, see Archbold, Criminal Pleading, Evidence and Practice (2009) §12.33 onwards. For a simpler account, see Ian Dennis, The Law of Evidence, (2nd ed, Sweet and Maxwell, 2002) chapter 9.
- 65.
R v H [2004] UKHL 3; [2004] 2 AC 134.
- 66.
§65.
- 67.
In his written evidence to the Chilcot Committee, see footnote 94.
- 68.
JUSTICE, footnote 56, §80 onwards.
- 69.
Mr Andrew Mitchell, MP; Hansard, 7 February 2005, col. 1233.
- 70.
The JUSTICE report, footnote 56, contains a collection of material of this sort.
- 71.
The Association of Chief Police Officers.
- 72.
§§56 and 57.
- 73.
Although in practice, the likely outcome in this situation is that the contents of the intercept becomes known to prosecution counsel, who discontinues the proceedings. But where the evidence of innocence, though helpful to the defence, is not conclusive in the defendant’s favour, the result may be the discontinuance of a case in which, if all the relevant evidence were put before the court, the defendant would have been convicted. See Matthew Ryder, “RIPA reviewed,” Archbold News, Issue 4, 5 May 2008, 6.
- 74.
Written evidence to the Chilcot Committee (footnote 94).
- 75.
In which Lord Lloyd, when a judge in the Court of Appeal, delivered the judgement in which the convictions were finally quashed: R v McIlkenney and others (1991) 93 CrAppR 287.
- 76.
Inquiry into Legislation against Terrorism (October 1996: Cm 3420).
- 77.
In a speech at a conference organised by the city law firm, Clifford Chance, in June 2006: see The Independent, 6 June 2006.
- 78.
Ibid, footnote 76, §7.25.
- 79.
As a result of the decisions of the Strasbourg Court in Chalal v UK (1996) 23 EHRR 413, reaffirmed in Saadi v Italy, Grand Chamber, 28 February 2008 (Application No. 3720/06).
- 80.
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, [2005] 2 WLR 87.
- 81.
Ibid at §97.
- 82.
Secretary of State for the Home Department v MB [2007] UKHL 46; [2007] 3 WLR 681; Secretary of State for the Home Department v E [2007] UKHL 47, [2007] 3 WLR 720; Secretary of State for the Home Department v J [2007] UKHL 45, [2007] 3 WLR 642. For detailed analysis, see Forster, this volume.
- 83.
In English criminal procedure, the “charge” is the formal step, in a serious case, that turns a suspect into a defendant.
- 84.
s.306. (This Act is an easy document in which to bury things, because contains 339 sections and 38 Schedules!)
- 85.
Terrorism Act 2006.
- 86.
Part IV of the Anti-terrorism, Crime and Disorder Act 2001 – condemned by the House of Lords in the case mentioned at footnote 80.
- 87.
Hansard, HL, vol 629, col 146, 27 November 2001; quoted by JUSTICE, footnote 56, §29.
- 88.
Subsection 18 (da), added by the Prevention of Terrorism Act 2005.
- 89.
Footnote 56.
- 90.
Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning (HL Paper 157/HC 394, 16 July 2007), §116.
- 91.
§126.
- 92.
Chilcot Report, footnote 94, §11, in which it announces that this report is “the seventh report to Ministers on the issue of intercept as evidence in the last thirteen years, but it is the first to have been produced by people who are not currently within government.”
- 93.
The other members were Lord Archer of Sandwell (a barrister, and Labour politician), Alan Beith (a Liberal Democrat MP), and Lord Hurd of Westwell (who as Douglas Hurd MP had been both Home Secretary and Foreign Minister in Conservative governments in the 1980s and 1990s).
- 94.
Privy Council Review of Intercept as Evidence; Report to the Prime Minister and the Home Secretary, 30 January 2008. Cm 7324.
- 95.
Inquiry, footnote 76, §7.11.
- 96.
BBC News, 6 February 2008.
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Spencer, J.R. (2010). Telephone-Tap Evidence and Administrative Detention in the UK. In: Wade, M., Maljevic, A. (eds) A War on Terror?. Springer, New York, NY. https://doi.org/10.1007/978-0-387-89291-7_14
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