2.8 Since the Prime Minister’s statement a lot of work has been done, led by
the Home Office, to see whether and how these issues and other conditions –
intended to protect sensitive techniques, safeguard resources, and ensure that
intercept can still be used effectively for intelligence – can be met. During 2008 I
attended a number of meetings at the Home Office where I was fully briefed on the
development of models under which material might be made available for use in
criminal cases in England and Wales, strictly subject to all the Chilcot conditions
being met. Operational live testing of these models took place in March and April
2009 followed by court role plays during May 2009. I saw much of the role play.
In my Annual Report for 2008 (submitted in July 2009) I said that I felt that these
tests highlighted real legal and operational difficulties inherent in using intercept
as evidence within the UK and that I could not see a way to overcome these.
2.9 On 10 December 2009 the Home Secretary published a Report of the Privy
Council’s findings and conclusions. They recognised the potential gains from a
workable scheme for intercept as evidence and that, while requiring significant
additional funding, the model developed would be broadly consistent with the
operational requirements identified. However, the Home Secretary also conceded
that the model would not be legally viable, in terms of ensuring continued fairness
at trial. The result would not only be potential miscarriages of justice and more
expensive and complex trials, but also more of the guilty walking free.
2.10 Both the Advisory Group of Privy Counsellors and the government believe
that the potential gains from intercept as evidence justify further work in order to
establish whether the problems identified are capable of being resolved. The issues
involved are complex and difficult. I hope to be able to report on the progress
made on the planned further work in my 2010 Annual Report.
ECHR decision: Liberty v. UK
2.11 In paragraph 2.13 of my Annual Report for 2008 I highlighted the fact
that in July 2008 the European Court of Human Rights handed down judgment
in Liberty v. UK. The complaint was about interception of communications,
allegedly contrary to Article 8 of the Convention. The challenge related to the
way in which external interception was conducted under the previous legislation,
the Interception of Communications Act 1985 (IOCA). IOCA was replaced by
the Regulation of Investigatory Powers Act 2000 (RIPA) which was introduced to
take proper account of human rights and which contains additional foreseeability
requirements. The Home Office confirmed that they were considering whether
any additional measures were required in light of the Strasbourg judgment,
i.e., whether RIPA and the existing interception Code of Practice rectify legal
deficiencies identified by the European Court of Human Rights.
2.12 Whilst the Home Office believes that the issues raised in the Liberty case
have, to a large extent, already been addressed by the implementation of RIPA
and the Code, it has decided to make some changes. Following receipt of legal
advice it intends making a small number of amendments to the Code: chapter 5
(covering RIPA section 8(4) interception warrants) and chapter 6 (safeguards).
These deal with how, post-interception, material gathered under warrant comes
to be examined, including giving a better indication of the filtering of extraneous
material via automated systems. The proposed revised draft Code of Practice was
issued by the Home Office for consultation on 12 March 2010 with a deadline for
responses of 7 June 2010.
Hong Kong Independent Commission Against Corruption
2.13 In September 2009 I met the Hong Kong Commissioner and his team of
officials who were visiting the UK to examine various issues relating to the
interception of communications. The meeting focussed on how the United Kingdom
legislation works in practice, the methods of oversight and accountability, and
compliance with the Human Rights Act. Whilst there were minor differences in
the approach to interception and the gathering of intelligence between the UK
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