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Chapter 27: Dealing with Intercept Product

Legal background

27.1. The main piece of legislation regulating the interception of communications is the Regulation of Investigatory Powers Act 2000 (RIPA). Guidance on the application of the RIPA regime can be found in the Interception of Communications Code of Practice (the ICC Code).

27.2. By virtue of section 2(2) of RIPA, 'a person intercepts a communication in the course of its transmission by means of a telecommunications system if he

(a). so modifies or interferes with the system, or its operation,

(b). so monitors transmissions made by means of the system, or

(c). so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.'

27.3. This guidance applies only to cases where interception has been conducted under a warrant issued pursuant to section 5 of RIPA. It does not apply to intercept product where the interception was lawful by virtue of some other provision of the CPIA 1996 e.g. where one or both parties to the communication consented to the interception (s3).

27.4. Section 5(3) allows an interception warrant to be issued where it is necessary

(a). in the interests of national security;

(b). for the purpose of preventing or detecting serious crime;

(c). for the purpose of safeguarding the economic well being of the United Kingdom; or

(d). for the purpose of...any international mutual legal assistance agreement.

27.5. The statutory purposes usually encountered by prosecutors are those at a) and b). However, because the prevention or detection of crime does not extend to the gathering of evidence for use in legal proceedings (RIPA s81 (5)), material obtained for the statutory purpose may not have survived to the prosecution stage having been destroyed pursuant to section 15 (see 27.10 below). If no intercept material remains in existence, it cannot be revealed to the prosecutor (the ICC Code paragraph 7.7).

27.6. Intercept product, which does still exist at the prosecution stage, is not unused material as such in that the CPIA 1996 specifically excludes intercept product from its ambit (see sections 3(7), 7(6), 8(6), 9(9) and 23(6)). Such material as does exist at the prosecution stage should be handled in accordance with this manual.

Intercept product the prosecutor is likely to encounter

27.7. Usually, interception comprises the monitoring of communications in the course of their transmission (this includes post as well as telephony). These communications may be recorded in their original format (e.g. voice or e-mail data) or notes may be made regarding the communications by staff monitoring them ('monitors' notes'). These notes will contain varying levels of detail and the original recordings may or may not have been destroyed by the time the prosecutor becomes involved (see below). The ICC Code refers to 'intercepted material and all copies, extracts and summaries of it'. This defines the material relating to interception that is governed by RIPA and the ICC Code and the 'handling arrangements' (see below). This is referred to in this guidance as intercept product.

27.8. The brofinition of 'copy' means that there is a risk that investigators who record the outcome of an interception will create documents which amount to intercept product if they refer to the facts or fruits of a warranted interception. Examples might include an officer in charge of investigation's policy book, RIPA surveillance authorisations and applications to CSPs for telecommunications data. Investigators should wherever possible avoid reference to interception as being the source of intelligence in such documents.

27.9. Intercept product should only have been retained for as long as its retention was necessary for one of the statutory purposes in section 5(3) above. How long this will be will be determined by the handling arrangements of each intercepting agency. Section 15 and Part 6 of ICC Code set out the obligations placed on the intercepting agencies in relation to the handling, destruction and copying of product (see below).

27.10. Section 15(3) of RIPA requires that product must be destroyed once it is no longer necessary to retain it, for one of the authorised purposes set out in section 5(3). In addition, by virtue of section 15(4)(d), product may be retained where its retention is necessary to ensure that the prosecutor has all the information needed to fulfil his or her obligation to secure the fairness of a prosecution. This does not mean that material with any potential to be exculpatory must be retained in case there should be a prosecution at some unknown point in the future. Paragraph 7.7 of the ICC Code makes it clear that this provision 'does not mean that intercepted material should be retained against a remote possibility that it might be relevant to future proceedings. The normal expectation is, still, for the intercepted material to be destroyed in accordance with the general safeguards provided by section 15.'

27.11. Nevertheless, it is important that monitors and those supervising them remain vigilant to ensure that any material that may have the capacity to undermine the case for any subsequent prosecution, or assist the defence in such a prosecution, is retained.

27.12. Material should be regarded as 'exculpatory' if it tends to suggest that the person the subject of the interception is not engaged in the activities of which he was suspected or if it provides an innocent explanation for such activities.

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Handling of intercept product

27.13. Section 15 of RIPA (explained further in Part 6 of the ICC Code) sets out specific provisions as to how intercept product must be handled in accordance with 'safeguards' approved by the Secretary of State. These safeguards, or 'handling arrangements', must meet standards set out in section 15. Each intercepting agency interprets the section 15 obligations in different ways according to their own statutory functions and each agency has its own internal set of handling arrangements. Prosecutors will need to be guided by each individual agency as to how that agency's intercept product should be handled. Where it is necessary for the prosecutor to have access to the intercept product, he or she will need to comply with the agreed handling arrangements of the agency holding the material.

27.14. Section 19 of RIPA places a duty on specified individuals, including every person holding office under the Crown, to keep secret matters relating to warranted interception. These matters are set out in section 19(3). These matters include the existence and content of a warrant. Failure to keep these matters secret gives rise to criminal liability (section 19(4)). In other words, it is a criminal offence to make any unauthorised disclosure of material relating to warranted interception.

27.15. In addition, failure to comply with the requirements of section 15 of RIPA, or with the internal handling arrangements of intercepting agencies in relation to the handling, copying and destruction of product, may also constitute a criminal offence under section 19.

Review of intercept material by the prosecutor

27.16. The ICC Code clearly envisages that much of the product will have been destroyed pursuant to section 15 before revelation to the prosecutor becomes an issue. However, paragraph 7.8 of the ICC Code states that 'section 18(7)(a) recognises the duty on prosecutors, acknowledged by common law, to review all available material to make sure that the prosecution is not proceeding unfairly. 'Available material' will only ever include intercepted material at this stage if the conscious decision has been made to retain it for an authorised purpose.'

27.17. The purpose of retaining the material will always have been either the same purpose for which the warrant was authorised in the first place (i.e. national security or the prevention or detection of crime) or because its retention was deemed necessary to enable the prosecutor to carry out his duty to review all of the available material. Material originally obtained for one authorised purpose may be retained and revealed to the prosecutor for a different authorised purpose. However, where the retention of material is no longer necessary for any of the statutory purposes, the material must be destroyed.

27.1. Where intercept product is inadvertently retained (i.e. where there is no statutory justification for its retention), the product should be destroyed as soon as its continued existence is discovered. If, however, there have been developments in the case which would now justify the retention of the product pursuant to section 15(4)(d), the product should be retained and brought to the attention of the prosecutor.

27.19. Any document or information resulting from warranted interception which could affect the fairness of the trial and which has therefore been retained for the authorised purpose under section 15(4)(d) will be brought to the attention of a prosecutor in accordance with the internal referral criteria for the prosecuting agency in question. In the CPS, this will be a lawyer of at least level E at a hearing colloquially referred to as a 'Preston briefing'. Such disclosure is permitted by section 18(7)(a).

27.20. Although there is no duty on investigators to brief prosecutors where there has been an interception and no product remains, as a matter of good practice the police should draw to the attention of the prosecutor the fact of the interception and provide an assurance that, to the best of their knowledge, the destroyed product contained nothing which would affect the fairness of the trial. This will involve providing the monitors with a briefing outlining of what appear to be the issues in the case and inviting the monitors to confirm (or otherwise) that there was nothing which they can recall in the destroyed product which is inconsistent with the way the prosecution case is being put or which might otherwise affect the fairness of the trial. Where possible, the monitors should be provided with a Case Summary and/or a copy of the prosecution advocate's opening note and any defence statements.

27.21. In the rare circumstances where material has been destroyed but an officer of the intercepting agency informs the prosecutor that he or she recalls material which could have a bearing on the fairness of the trial, the prosecutor should treat the recollection of the officer as if it were a document and review it for the purpose of fairness. In some cases, it may be appropriate for the officer to prepare a written account of his recollection to aid this process.

Disclosure of interception during a trial

27.22. Section 17 of RIPA prohibits the use of intercept product as evidence and stipulates that nothing can be adduced in evidence or disclosed which would tend to suggest that there had been a warranted interception. The section 17 prohibition could therefore catch any material that refers to or relates to a warranted interception.

27.23. The prosecutor generally must not reveal to the judge anything that might tend to suggest that a warranted interception has taken place. However, section 18(8) provides that a judge may order disclosure to himself 'where the exceptional circumstances of the case make the disclosure essential in the interests of justice.' Prosecuting counsel may therefore invite the judge to make such an order if he or she believes that there are exceptional circumstances justifying such a course of action.

27.24. The Attorney General has issued guidelines for prosecutors on the operation of sections 17 and 18 of RIPA and the 'exceptional circumstances' in which a prosecutor may invite a judge to order disclosure of intercept product to himself (the 'Section 18 Guidelines' at Annex I). Whilst parts of the Section 18 Guidelines are summarised below, prosecutors are encouraged to familiarise themselves with them in detail.

27.25. The Section 18 Guidelines prescribe a form of words a prosecutor should use in the event that he or she is asked directly whether an interception has taken place or protected information exists. The prescribed words should be used in answer to such an enquiry whether or not such material exists. The prescribed form of words is intended to avoid a breach of section 17 whilst providing assurance that the prosecutor is aware of his or her statutory obligations.

'I am not in a position to answer that, but I am aware of sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 and the Attorney General's Guidelines on the Disclosure of Information in Exceptional Circumstances under section 18.'

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What are 'exceptional circumstances'?

27.26. Section 18(8) states that the 'exceptional circumstances' must be circumstances of the case which make it 'essential in the interests of justice' for disclosure to be made to the judge. The Guidelines provide that this is the case where 'the prosecutor considers that he requires the assistance of the trial judge to ensure the fairness of the proceedings, or he is in doubt as to whether the result of taking the steps outlined in paragraph 6 [of the section 18 Guidelines] would ensure fairness.'

Paragraph 6 states:

'If in the view of the prosecutor to take no action would render the prosecution unfair, the prosecutor should, first consulting with the relevant intercepting agency, take such steps as are available to him or her to secure the fairness of the proceedings provided that these steps do not contravene section 18(10).'

27.27. Paragraph 5 gives the common example where the jury may draw an inference that the intercept shows to be a wrong inference and to leave this uncorrected would result in the defence being disadvantaged. Paragraph 6 suggests that this could be corrected by such steps as:

  • putting the prosecution case in such a way that the misleading inference is not drawn by the jury; or
  • not relying upon the evidence which makes the information relevant; or
  • discontinuing that part of the prosecution case in relation to which the protected information is relevant, amending a charge or count on the indictment or offering no evidence on such a charge or count; or
  • making an admission of fact (as long as to do so would not breach the section 17 prohibition).

27.28. Only when all possible action set out in paragraph 6 has been taken should the prosecutor ask the judge to direct disclosure to himself. The judge must therefore be satisfied that the circumstances are exceptional in that they cannot be dealt with in the usual way (i.e. as set out in paragraph 6). Paragraph 8 of the Section 18 Guidelines states that:

'Experience suggests that exceptional circumstances in the course of a trial justifying disclosure to a judge arise only in the following two situations:

(i).where the judge's assistance is necessary to ensure the fairness of the trial [and]

(ii). where the judge requires knowledge of the protected material for some other purpose.'

27.29. The Section 18 Guidelines give specific examples under each, including, under (i), where the judge can ensure the fairness of a trial by summing up in a particular way and, under (ii), for the purpose of a PII application.

27.30. Part 7 of the ICC Code explains how sections 15 and 18 interact. So, to the extent that relevant material is still in existence because it has been retained for one of the authorised purposes, it may then be kept for the purpose of disclosure to the prosecutor under section 18 in order for him to fulfil his duty to secure the fairness of the prosecution.

Making admissions where there are no exceptional circumstances

27.31. If an admission can be made to ensure the fairness of the trial without disclosing in it anything that would be prohibited by section 17, then this admission can be made without any need to disclose the fact of the interception to the judge. The Section 18 Guidelines do not provide specific advice on how to draft admissions nor do they cover the situation where the prosecutor, or a prosecution witness, is asked questions arising out of that admission.

27.32. This is a difficult area, which in practice, needs to be addressed on a case-by-case basis. However, prosecutors will find that the intercepting agencies have had some considerable experience and are willing and able to assist in the drafting of such admissions.

27.33. Answering subsidiary questions is still more difficult. The admission should be drafted so as to deal with any relevant subsidiary questions but, where this is not possible, questions and answers should be confined to writing where practicable, and advice and assistance should be sought from the intercepting agency in question or counsel.

Revelation of intercept product to the prosecutor who is asked to advise pre-charge

27.34. There is a duty on investigators to bring to the attention of prosecutors who are asked to advise pre-charge, extant intercept product where it is considered that such material might fall within section 15(4)(d) in the event that a prosecution ensues. This is likely to arise more frequently with greater CPS involvement in advising the police at the investigative stage of an operation when the interception may remain live. In these circumstances, it is likely that there will be extant product. If that product contains material that might later result in the abandonment of proceedings (because not even the measures available under section 18 can prevent unfairness), it is essential that the prosecutor is aware of such material before advising.

27.35. There is no duty on investigators to bring inculpatory material to the attention of the prosecutor in such circumstances, but nor is there a prohibition on so doing where knowledge of the interception and its product will inform operational decisions on which the police are seeking advice.

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