8. DISCLOSURE TO ENSURE FAIRNESS
IN CRIMINAL PROCEEDINGS
8.1. Section 15(3) of RIPA contains the general rule that intercepted
material must be destroyed as soon as its retention is no longer
necessary for a purpose authorised under RIPA. Section 15(4)
specifies the authorised purposes for which retention is necessary.
8.2. This part of the code applies to the handling of intercepted
material in the context of criminal proceedings where the material has
been retained for one of the purposes authorised in section 15(4) of
RIPA. For those who would ordinarily have had responsibility under
the Criminal Procedure and Investigations Act 1996 to provide
disclosure in criminal proceedings, this includes those rare situations
where destruction of intercepted material has not taken place in
accordance with section 15(3) and where that material is still in
existence after the commencement of a criminal prosecution. In these
circumstances, retention will have been considered necessary to
ensure that a person conducting a criminal prosecution has the
information he or she needs to discharge his or her duty of ensuring
its fairness (section 15(4)(d)).
Exclusion of matters from legal proceedings
8.3. The general rule is that neither the possibility of interception,
nor intercepted material itself, plays any part in legal proceedings.
This rule is set out in section 17 of RIPA, which excludes evidence,
questioning, assertion or disclosure in legal proceedings likely to
reveal the existence (or the absence) of a warrant issued under this Act
(or the Interception of Communications Act 1985). This rule means
that the intercepted material cannot be used either by the prosecution
or the defence. This preserves “equality of arms” which is a
requirement under Article 6 of the ECHR.
8.4. Section 18 contains a number of tightly-drawn exceptions to this
rule. This part of the code deals only with the exception in
subsections (7) to (11).
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