8.10. Having had access to the material, the prosecutor may conclude
that the material affects the fairness of the proceedings. In these
circumstances, he or she will decide how the prosecution, if it
proceeds, should be presented.
Disclosure to a judge
8.11. Section 18(7)(b) recognises that there may be cases where the
prosecutor, having seen intercepted material under subsection (7)(a),
will need to consult the trial judge. Accordingly, it provides for the
judge to be given access to intercepted material, where there are
exceptional circumstances making that disclosure essential in the
interests of justice.
8.12. This access will be achieved by the prosecutor inviting the judge
to make an order for disclosure to him or her alone, under this
subsection. This is an exceptional procedure; normally, the
prosecutor’s functions under subsection (7)(a) will not fall to be
reviewed by the judge. To comply with section 17(l), any consideration
given to, or exercise of, this power must be carried out without notice
to the defence. The purpose of this power is to ensure that the trial is
conducted fairly.
8.13. The judge may, having considered the intercepted material
disclosed to him or her, direct the prosecution to make an admission
of fact. The admission will be abstracted from the interception; but,
in accordance with the requirements of section 17(l), it must not
reveal the fact of interception. This is likely to be a very unusual step.
RIPA only allows it where the judge considers it essential in the
interests of justice.
8.14. Nothing in these provisions allows intercepted material, or the
fact of interception, to be disclosed to the defence.
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