CHAPTER 9: LAW ENFORCEMENT
obtain the pre-emptive seizure of intangible property such as IP addresses and
domain names; and a clear enumeration of powers relating to non-notification of
subjects and the possible future use by law enforcement of CNE.
9.13.
Some users not currently entitled to it (DWP, and teams within certain local
authorities) would like to see the extension of their powers to cover traffic data where
that would enable them more effectively to tackle the crimes for which they have
investigative responsibility. This was not, however, the position of the LGA when we
spoke to its representatives.
Authorisation and review
9.14.
There is unanimous support for the SPoC arrangements and (among local authorities)
for the centralisation of those arrangements into NAFN, which some thought could be
further extended. There was markedly less enthusiasm for the recently-introduced
requirement of authorisation by magistrate for communications data requests, which
has also been criticised by IOCCO and the OSC.
9.15.
IOCCO is widely praised for its increasingly effective monitoring and for its
constructive approach. I received no comments from law enforcement about the
systems for parliamentary control or judicial oversight.
Utility of intercept and communications data
No intercept as evidence
9.16.
The product of UK lawful intercept is only available as an intelligence tool: with limited
exceptions, it is not admissible as evidence. Though foreign interlocutors often find it
hard to credit, this limitation has survived repeated scrutiny. Part of the reason for
this is the extensive disclosure requirement in criminal proceedings: were it sought to
rely on the product of intercept conducted over a period of several months, the
defence could legitimately request a transcript of the entire intercept product with a
view to searching it for exculpatory material. As the latest review put it, unless budgets
were increased:
“the increased resource burden would mean either that a very large amount of
other agency activity was dropped to fund intercept as evidence or that
interception would be available for many fewer investigations – or both.”7
9.17.
7
That extensive review, overseen by a cross-party group of Privy Counsellors under
Sir John Chilcott, led to the Government confirming that there should be no change
(at least for now) to the current position. The Security Minister stated that “[t]he costs
of translation, transcription and retention in order to disclose material to the defence
would be substantial, diverting considerable resources away from investigative work”,
that “the benefits – measured in additional convictions – would be highly uncertain”
and that “the costs and risks of introducing intercept as evidence are disproportionate
Intercept as Evidence Cm 8989, (December 2014).
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