#10513 - Illegal And Covert Evidence - Criminal Procedure and Evidence

Passed post-Malone v UK in which ECtHR criticised the lack of safeguards in area of communications intercepts in UK.

s.1 RIPA - offence

• Offence of intercepting communication in transmission by postal service or public telecommunications systems. (Subj to certain exceptions)

• No offence committed if the SoS gives a warrant – conditions in s5, must be necessary and proportionate.

• Applies to public telecommunications – telephones/mobiles

“Interception”

• S.2(2) RIPA definition – if in course of transmission by telecommunication system a person

  • modifies/interferes/monitors transmissions made by the system so as to make some or all of the contents available while being transmitted to persons other than the sender and intended recipient.

• Hardy v Hardy – must be made available while its being transmitted – so not just recording it.

• E: police placed device in X’s car, picking up what X said to those in car as well as on calls through mobile phone. Was not within s17 because ‘interception’ implies interfering with some signal – and recording someone’s voice is not an interception just bc what he says is also transmitted by phone.

s.17 RIPA – cannot use evidence relating to gathering of evidence from intercepted communications

• Forbids disclosure of intercept evidence even when lawfully obtained

• Anything that discloses circumstances from which the origin of the evidence can be inferred, the contents of intercepted communications, or any related communications data

  • 5 categories of info in s.17(2) – includes conduct by certain persons that would be an offence under s.1(1) or (2) of RIPA/issue of interception warrant/making of app for interception warrant/imposition of requirement to give assistance with giving effect to intercept warrant.

  • Person who conducted the interception must be within s.17(3) – persons to whom warrant can be addressed, person holding office under the Crown, police officers, postal workers, persons employed in telecommunications businesses.

    • So if private person w/ no such employment = can be admitted.

Rationale: protects the gathering of such evidence and prevents D getting opportunity to know of SoS’s sources of knowledge or the way in which confidential surveillance operates.

Cases on s17:

A-Gs Reference No 5 of 2002:

• Court cannot even investigate whether the information was obtained by private, rather than public, telecommunications interception.

Morgans v DPP: cannot introduce the evidence even when the sources are not alluded to.

Note s17 criticisms – thought to exclude valuable prosecution evidence. July 2003 review by Home Sec said the risks remained too great in removing the prohibition. Bill defeated in 2005 to allow exceptions.

Part II RIPA 2000 –

s.26 - applies to directed surveillance (covert but not intrusive), intrusive surveillance (on residential property or in private vehicle w/ surveillance device) and conduct/use of covert human intelligence sources.

Ss28 and 29 – authorisation for intrusive surveillance. The surveillance must be necessary and proportionate.

Plunkett:

• Men dressed as police robbed family, threatened husband with supposed ‘HIV syringe’ until he opened a safe. Family didn’t complain for 4 months due to threats from the assailants.

  • Ds were arrested when family complained and put in a police van to be taken to station. Once they arrived, their conversations were recorded, during which both Ds made compromising admissions.

• Crown used the surveillance evidence at trial.

  • Ds argued the evidence was intrusive surveillance because it was carried out in relation to matters taking place in a private vehicle so needed authorisation under ss26 and 28 of RIPA. That the first recording was taken before they saw their solicitor so they did not have adequate time to prepare a defence (art 6), the surveillance was not necessary nor proportionate and that the evidence should be excluded under s78 PACE

• Held:

  • Police vehicle was owned by the state so was not private vehicle and not being used for private purposes. There was no denial of adequate time and facilities to prepare their defence and the decision did not infringe ECHR.

  • There was also no unfairness to invoke s78 – nothing to suggest their conversations were anything but true and they had full opportunity to explain the conversations in the van. Trial judge entitled to exercise s78 discretion as he did.

Mason: prison cells constituted residential premises that were within ambit of intrusive surveillance.

Grant: CA v disapproving of police eavesdropping on conversations between prisoners and their lawyers = “seriously undermines the rule of law and justifies a stay on the grounds of abuse of process”.

Cf. Warren v AG for Jersey: criticised Grant and said that the misconduct did not result in the proceedings, and weighing the misconduct w/ the seriousness of the crime would suggest that the trial judge was entitled to refuse a stay.

Allan v UK:

• Anonymous informant told police that D had been involved in murder, following which he was arrested. When in prison, recordings made of Ds conversations w/ friend in visiting area and w/ co-accused in their shared cell. H was placed in his cell for the purposes of eliciting information from D – the police told H to ‘push him for what you can’. H then told police that D admitted presence at murder scene, for which there was no recording. D was convicted.

• Complained of use of audio and video surveillance in cell, prison visiting area and using H. relied on Arts 6 (fair trial), 8 (private live) and 13 (right to effective remedy.

  • ECtHR found violations of Art 8 in using covert recording devises + Art 13 because no remedy for this.

  • As for Art 6, ECtHR noted that D had availed himself of right to silence, and that H was then put in his cell to elicit information. The admissions made by D to H were induced by Hs questioning who had been coached by the police. It was the functional equivalent of an interrogation, without any of the safeguards of a police interview (like right to legal advice, caution).

    • The information gained by H can be regarded as having been obtained in violation of Ds right to silence and privilege against self-incrimination. Court therefore found violation of Art 6.

Alongside s78 powers, the court has powers to stay proceedings on the grounds of abuse of process.

Abuse of process: circumstances in which prosecution has come to be brought amounts to matters ‘deeply offensive to ordinary notions of fairness’.

2 types of case:

1. Where the court concludes that it will be impossible to give a fair trial so the proceedings are stayed without further action

   1. No question of balancing competing interests arise.

2. Where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.

   1. Court here concerned with protecting the integrity of the justice system – stay granted where the case offends the courts sense of justice and propriety or will undermine public confidence in the justice system.

When is it impossible to give a fair trial?

• Not likely to accept excessive pre-trial publicity – West

When does it offend the court’s sense of justice and propriety?

• Concerns gross breaches of the law committed by the police and/or prosecution.

  • Three types of cases from lecture handouts

    • Abductions cases, where the police/state act as agent provocateurs, unlawful evidence gathering (eg. Grant).

• Abduction cases – E v Horseferry Road JJ ex p Bennett: brought into UK in a manner in breach of extradition law – effectively kidnapped by authorities. Stayed.

• Maxwell: large number of police officers involved in investigation and prosecution of Smales robbery + murder. Engaged in activity to ensure cooperation of the appellant, gave financial benefits and permission to take drugs in police company. They also colluded to his perjury at trial.

  • SC said that the question of whether to stay on this basis was a question of weighing a number of relevant factors in the balance.

  • The fact that the evidence would not be available but for the misconduct is relevant but not determinative.

  • Lord Brown: “to describe police misconduct on this scale merely as shocking and disgraceful is to understate the gravity of its impact upon the integrity of the prosecution process”. (dissent)

• Warren et al v AG for Jersey: unauthorised listening device produced evidence which was held to be correctly admitted. The police ignored the laws in countries through which they passed and deceived foreign authorities and there would have been no trial but for the misconduct but the charges were serious.

  • Majority upheld the decision to admit the evidence (this time Lord Brown went with the maj).

  • Lord Brown on distinction w/ Maxwell: in Maxwell, it was the misconduct which induced the confessions and induced him to act to his detriment. Here, the misconduct had no effect on the appellant’s conduct – it is only ‘but for’ in the sense that, but for the unlawfully obtained evidence there would have been no prosecution.

  • Rogers has dismissed this distinction.

Entrapment:

• Abuse of process arguments might come into play here – where state agents lure persons to commit offences or instigate crimes.

• Abuse of process here stays all relevant proceedings against D.

• ECHR: Texeira de Castro v Portugal – Distinction between covert investigations and instigation of offences. Evidence obtained by officers instigating crime should not have been admitted...