Disclosure to a prosecutor
8.5. Section 18(7)(a) provides that intercepted material obtained by
means of a warrant and which continues to be available may, for a
strictly limited purpose, be disclosed to a person conducting a
criminal prosecution.
8.6. This may only be done for the purpose of enabling the
prosecutor to determine what is required of him or her by his or her
duty to secure the fairness of the prosecution. The prosecutor may not
use intercepted material to which he or she is given access under
section 18(7)(a) to mount a cross-examination, or to do anything
other than ensure the fairness of the proceedings.
8.7. The exception 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. The exceptions only come into play if such
material has, in fact, been retained for an authorised purpose. Because
the authorised purpose given in section 5(3)(b) (“for the purpose of
preventing or detecting serious crime”) does not extend to gathering
evidence for the purpose of a prosecution, material intercepted for
this purpose may not have survived to the prosecution stage, as it will
have been destroyed in accordance with the section 15(3) safeguards.
There is, in these circumstances, no need to consider disclosure to a
prosecutor if, in fact, no intercepted material remains in existence.
8.8. 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.
8.9. If intercepted material does continue to be available at the
prosecution stage, once this information has come to the attention of
its holder, the prosecutor should be informed that a warrant has been
issued under section 5 and that material of possible relevance to the
case has been intercepted.
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