GS & Ors, R. v [2005] EWCA Crim 887

Case No 200500203 D5, 200500235 D5, 200500238 D5, 200500239 D5, 200500241 D5, 200500243 D5, 200500244 D5, 200500245 D5 & 200500246 D5[2005] EWCA Crim 887
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH
HIS HONOUR JUDGE JARVIS No: T20047028
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 22 April 2005
Before
LORD JUSTICE AULDMR JUSTICE BEATSONMR JUSTICE WAKERLEY
Between
REGINACrown1) G SDefendant2) TDefendant3) D SDefendant4) B RDefendant5) G CDefendant6) P CDefendant7) WDefendant8) TDefendant9) O RDefendant
INTERLOCUTORY APPLICATION UNDER 5.35 CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr David Gibson-Lee for 1 st AppellantMr Richard Bendall for 2 nd– 9 th AppellantsMr Robert Davies& Mr Martin Lanchester for Prosecution
Judgment
[1]When the Court heard these appeals of GS and his eight co-appellants on 21st January 2005 they were facing trial in the Crown Court at Bournemouth on charges of conspiracy to supply Class A and Class B/C drugs. The prosecution sought to adduce evidence of covertly recorded conversations of the appellants obtained pursuant to the provisions for intrusive surveillance in Part II of the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”).[2]In a preparatory hearing held by His Honour Judge Jarvis on 12th January 2005 under section 30 of the Criminal Procedure and Investigation Act 1996 (“the 1996 Act”), he held, on a defence application to stay the proceedings for abuse of process and/or, in the absence of disclosure of certain material, to exclude the covertly recorded evidence as unfair under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”): i) that, having regard to the evidence put before the court of the Surveillance Commissioners’ approvals of authorisations for obtaining such evidence, given pursuant to Part II of the 2000 Act, the recorded evidence should be admitted, subject to the prosecution reviewing matters with a view to possible further disclosure; and ii) that, for the purpose of a defence application to exclude such evidence under section 78 of PACE, the defence was not entitled to see the authorisations or any of the other underlying material placed before the Surveillance Commissioners for the purpose of obtaining their approvals.[3]The appellants, with the leave of the Judge, under section 35(1) of the 1996 Act, appealed against those rulings. This Court, having dismissed their appeals, now gives its reasons for doing so.

The scheme of the legislation

[4]The scheme of the legislation has its starting point in Part III of the Police Act 1997, which provided, in addition to existing common law and statutory powers of the police, a scheme of authorisation to them and other law enforcement agencies, to effect covert entry upon and interference with property or with wireless telegraphy. It empowers “authorising officers”, namely Chief Constables and others holding appointments of similar standing, to authorise such covert surveillance subject, in the more intrusive forms, to approval in advance by independent Commissioners appointed under the Act, whose decisions, by section 91(10) of the Act “shall not be subject to appeal or liable to be questioned in any court”. In various respects its provisions have been supplemented or overtaken by the provisions of Part II of the 2000 Act, to which the ouster provision of section 91(10) also applies.[5]The intention of the 2000 Act was to provide a comprehensive regulatory structure covering interception of communications, surveillance and associated activities. It replaced the statutory regime in the Interception of Communications Act 1985, but not those in Part III of the 1997 Act or the Intelligence Services Act 1994, although it amends both of those Acts. Its purpose is, so far as possible, to achieve a degree of uniformity in relation to the authorisation as well as the availability of protections in respect of the interception of confidential communications, in particular the interception of telephone communications, whether by public or private systems and various other forms of covert surveillance which involve interference with private life under Article 8 ECHR.[6]Thus, the 2000 Act distinguishes between “directed” and “intrusive” surveillance, and, as will be seen, provides greater protection to the suspect in the case of the latter. Directed surveillance, for which section 26(2) provides, is covert investigation undertaken in relation to an investigation or a specific operation likely to result in the obtaining of private information about a person. Intrusive surveillance, for which section 26(3) provides, is covert surveillance in relation to anything taking place on residential premises or in any private vehicle, and involves the presence of an individual on the premises or in the vehicle or carried out by means of a surveillance device. By section 27(1), all surveillance for which Part II provides is “lawful for all purposes” provided it is authorised under the Act and undertaken in accordance with that authorisation. Section 27 (1) reads:
“Conduct to which this Part applies shall be lawful for all purposes if – (a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and (b) his conduct is in accordance with that authorisation.”
[7]Section 32(1)-(4) of the 2000 Act empowers the Home Secretary and “Senior Authorising Officers”, namely chief constables and the like, to grant authorisations for the carrying out of intrusive surveillance. They may only do so if they believe that it is necessary in various interests, including “the purpose of preventing or detecting serious crime”, and that it is proportionate to what is sought to be achieved by carrying it out. In determining the necessity for exercise of the power the decision maker is required to consider whether the information sought could reasonably be obtained by other means.[8]However, by sections 35 and 36 of the 2000 Act, such authorisation and its taking effect are subject to notification, providing information to, and “scrutiny” and written approval by, an independent Surveillance Commissioner appointed under the Act, who is required to be a person of considerable experience and standing, who holds, or who has held, high judicial office. Such approval is to be given in advance save where the authorising officer believes the case is one of urgency. By section 37, a Surveillance Commissioner may quash an authorisation approved by him and/or order destruction of information obtained by virtue of it if he is satisfied that when or since he granted approval the requirements for its grant under section 32 were no longer satisfied. By section 40 of the Act all police and members other enforcement agencies have a statutory duty to comply with any request of a Surveillance Commissioner for documents or information required by him to enable him to carry out his functions.[9]By section 38 of the 2000 Act, there is a provision for a Senior Authorising Officer to appeal to a Chief Surveillance Commissioner against a Surveillance Commissioner’s refusal to approve, or quashing of, an authorisation. Although, as the provision makes plain, this is not an appellate machinery available to a suspect to challenge the making and/or approval of an authorisation, it does provide yet another higher level of protection to him in the event of the Chief Surveillance Commissioner allowing the Senior Authorising Officer’s appeal.[10]Finally, by section 65(4) and (5) of the 2000 Act there have been introduced for the 1997 Act and 2000 Act a new complaints Tribunal, the President of which must be a person who holds or who has held high judicial office, for those aggrieved by decisions made under their respective procedures, including that in relation to conduct to which Part II of the 2000 Act applies. It provides in sub-section (4):
“The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any [such] conduct … which he believes: (a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunication service or telecommunication system; (b) and to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services”
The Act also gives the Tribunal extensive powers of investigation and remedy including the quashing or cancelling of any warrant or authorisation, the destruction of any records, compensation and any other such order it thinks fit.[11]Thus, as Judge Jarvis noted in his judgment in this case, the law has erected a number of significant thresholds to be surmounted by authorities before they may employ the 2000 Act as a means of intrusion on an individual’s private life, namely: satisfaction of a Senior Authorising Officer and written approval, normally in advance, of an independent Surveillance Commissioner and sometimes, in the event of an appeal under section 38, the Chief Surveillance Commissioner; and if complaint is made by a suspect or other aggrieved person, the scrutiny of the Tribunal under sections 65 to 70, that: 1) the authorisation is necessary (in this case for preventing or detecting serious crime); 2) there is no reasonable alternative means of obtaining the information sought; and 3) the nature and extent of the surveillance is proportionate to what is sought to achieve by its use. It is against the backcloth of those thresholds or stringent conditions, coupled with Codes of Practice issued by the Home Secretary pursuant to section 71 of the Act, that the intent of section 91(10) of the 1997 Act in ousting any right of appeal or questioning “in any court” in relation to such approvals should be considered.[12]Before turning to the facts of the case, it should be noted that none of these provisions purport to deal with admissibility of evidence lawfully obtained under them, as observed by Potter LJ, giving the judgment of the Court in R v SL & Ors [2001] EWCA Crim 1829, at para 68, and Rose LJ, giving the judgment of the Court in R v Hardy & Hardy [2002] EWCA Crim 3012, at paras 18 and 19. They are relevant only to the lawfulness of the evidence obtained. Whether or not lawfully obtained, it still remains a matter for the court to decide under section 78 of PACE, whether it would be fair to admit it into evidence. As the editors of the current edition of Archbold put it, at paragraph 15-256, citing Lord Nolan in R v Khan (Sultan) [1997] AC 558, at 582, “It is the effect of the behaviour of the police on the fairness of the proceedings that is important, rather than the illegality of their conduct”.

The facts of the case giving rise to this appeal

[13]A significant part of the prosecution case against these nine appellants consisted of covert recordings made by the police at the home of the first three of them, GS, CT and DS, of conversations about drug trafficking with various of the other six appellants over a period of five months. At the preparatory hearing the prosecution sought to establish the lawfulness of that intrusive surveillance by producing the Surveillance Commissioners’ written approvals and renewals of the relevant authorisations.[14]Defence counsel asked the Judge to rule that the prosecution should disclose the material placed before the Surveillance Commissioners when seeking approval and renewals of the authorisations. They accepted that such material, if disclosed, might need to be edited for public interest immunity purposes, but submitted that, without it, they could not properly formulate any argument that might entitle them to exclusion of the recordings under section 78 of PACE.[15]More precisely, defence counsel sought, seemingly as part of what they regarded as prosecution primary disclosure, disclosure of all documentation underlying those approvals, in particular, details and copies of the applications for authorisation, the authorisations themselves and the material put before the Surveillance Commissioners when seeking and obtaining their approvals. Their object was to examine whether the procedures in the 2000 Act had been followed and the relevant statutory criteria satisfied as a step on the way to making a section 78 application for exclusion of the recorded conversations. In the alternative, they asked the Judge to look at the documentation as undisclosed material of which they had requested disclosure under section 8 of the 1996 Act, with a view to him forming a view as to abuse of process or as to whether its non-disclosure to the defence would render the admission of the surveillance evidence unfair under section 78 of PACE.[16]In seeking that material, defence counsel, save we believe in the case of the appellant, GS (see paragraph 24 below), did not point to any particular aspects of the authorisation procedure giving them cause for concern. It was essentially a “fishing expedition” to enable them to discover whether they might have a case for seeking exclusion of the recorded conversations as unfair, by reason of unlawfulness of the authorisation procedures adopted or as to compliance with them, or otherwise under section 78 of PACE.[17]The prosecution’s stance was: 1) to rely upon the ouster provision in section 91(10) of the 1997 Act; 2) to assert that it was no part of the prosecution’s duty to put before the Judge with a view to its possible disclosure material that it had formed the view it had no duty to disclose and that, in any event, was protected by public interest immunity that could be prejudicial to the defence for the Judge to read; and 3) to maintain that production of the information sought as to compliance with the authorisation and approval procedures in the 2000 Act would turn into an inquiry into the nature and veracity of intelligence on which those authorisations and approvals had been obtained, information ordinarily non-disclosable on public interest immunity grounds. The prosecution conceded, however, that such issues aside, it was still open to the defence to argue that lawfully obtained evidence should be excluded as unfair under section 78 on other grounds, if there were any.[18]The Judge refused the defence applications, holding that it was for the Surveillance Commissioners, acting under their statutory powers, to form a view as to the propriety of the information and procedures giving rise to the authorisations. He said that he was satisfied by the approvals produced to him, that they had done that. And, as to disclosure of that underlying information or any other material relating to it, he said that it was for the prosecution to determine whether it had any duty of disclosure.[19]More particularly, he held: i) that the 2000 Act, in particular sections 32 and 36, was intended to, and does, provide a rigorous and high level machinery for securing that intrusive means of this sort are legally permissible in the interests of national security and for the offences alleged, namely “serious crime”, where the evidence could not reasonably be obtained by other means, and where the intrusive surveillance for which authorisation is sought is proportionate. ii) that section 91(10) of the 1997 Act, in its application to the 2000 Act, renders Surveillance Commissioners’ approvals of Chief Constables’ authorisations under Act conclusive as to the lawfulness of the intrusive means of obtaining the evidence, in that it provides that their decisions “shall not be subject to appeal or liable to be questioned in any court”. iii) that the effect of those provisions is to substitute the machinery of the 2000 Act, culminating in Surveillance Commissioners’ approvals of Chief Constables’ authorisations, for the responsibility of the Court for determining whether such evidence was lawfully obtained. iv) that, quite separately, the prosecution must consider in relation to the intrusively obtained evidence whether it has any un-used disclosable material and, if so and subject to any public interest immunity interest, disclose it to the defence; and v) that he was satisfied from the Surveillance Commissioners’ approvals put before him that the intrusively obtained evidence had been obtained in accordance with the requirements of the 2000 Act, and that, therefore, there had been no abuse of process or, on that account, any prejudice to the fairness of the trial.

The issues raised by the appeal

[20]The points of law upon which the Single Judge gave leave to appeal are: i) whether, in determining an application to exclude covertly recorded evidence the trial judge should proceed upon the basis that, if appropriate procedural steps have been followed under the 1997 and/or 2000 Act, the evidence should be admitted, subject only to the discharge by prosecution counsel of his duty to review material for the purpose of disclosure; ii) alternatively, whether the trial judge is required by section 78 of PACE to consider all the circumstances, including those in which the evidence was obtained, and, if so, whether the defence are entitled to disclosure of all material placed before the Surveillance Commissioners (subject to necessary editing) in order to enable them adequately to challenge where appropriate the fairness of admitting the evidence.[21]All the appellants argue that a judge should not abdicate to the Surveillance Commissioner or the prosecution the responsibility of deciding the admissibility of evidence, and that the defence should, subject to any public interest immunity claim by the prosecution, have access to the material placed before the Surveillance Commissioner, as well as to his approval of the authorisation, to enable them to make informed submissions on whether the statutory requirements for it had been complied with and/or as to the fairness of admitting the evidence under section 78 of PACE.[22]Mr Richard Bendall, on behalf of the 2nd – 9th appellants PC and GC, whose submissions before the Judge and before this Court were adopted by counsel for the other appellants advanced the following propositions: i) that the Judge wrongly decided that the provisions of the 1997 and 2000 Acts, in particular section 91(10) of the 1997 Act, had effect so as to relieve him of responsibility for examining whether he statutory procedures and requirements of those Acts had been followed and/or whether, as to the manner in which they had been followed, it was fair under section 78 to admit the evidence. ii) that the effect of section 91(10) was simply to prevent any legal cha1lenge to the authorities, for example, by a civil claim against a Chief Constable or Surveillance Commissioner, and that it has no effect upon what use can be made of the intrusively obtained material in a criminal trial. iii) that, as a corollary of (i), the defence should have full disclosure of the underlying material to enable their counsel to make informed decisions on both the legality of that material and as to the fairness of admitting it into evidence; iv) that the guidance applicable to the disclosure of ordinary un-used material, as set out by the House of Lords in R v H & C [2004] 2 A.C. 134, cannot be fairly applied in these circumstances where the information in question discloses the circumstances in which material that the prosecution do wish to use was obtained - they relied instead on the approach of the House in R v P [2002] 1 A.C. 146. v) that, whether or not that information is considered by the prosecution possibly to undermine its case or assist the defence, in fairness it still needs to be disclosed to enable the defence properly to argue their case; and vi) that this is not so much a question of disclosure; it is one of admissibility, for which the Surveillance Commissioners are not responsible.[23]In support of those propositions, Mr Bendall relied upon: 1) the first question posed by Lord Bingham of Cornhill at paragraph 36 of his speech in R v H & C, namely whether the court had considered in detail the material that the prosecution seek to withhold; 2) the following words of Lord Hobhouse of Woodborough in the earlier case of R v P, at 161B: “It should be noted that the … [the European Court of Justice in Schenk v Switzerland 13 EHRR 242, at paras. 38-40] again emphasised that the defendant is not entitled to have the unlawfully obtained evidence excluded simply because it has been so obtained. What he is entitled to is an opportunity to challenge its use and admission in evidence and a judicial assessment of the effect of its admission upon the fairness of the trial as provided by section 78.” and 3) the approach of this Court to similar concerns in R v SL [2001] EWCA Crim 1829, which concerned the less rigorous provisions of the 1997 Act, in which the prosecution disclosed a large volume of edited documents, consisting of the applications for authorisation, which set out the grounds for them, as well as the resultant authorisations, thus enabling cross-examination as to whether the relevant statutory criteria had been considered.[24]The first appellant, GS, put at the forefront of his appeal the ground that the Judge should himself have reviewed the material provided to the Surveillance Commissioners with a view to deciding whether, under section 78 of PACE, to admit the intrusively obtained evidence. His main complaint, as presented by Mr David Gibson-Lee, was that the Chief Constable had authorised and the Surveillance Commissioner had approved the authorisation in respect of GS at a time when they knew, or should have known, that he could not be present at the premises the subject of the intrusive surveillance, because he was in prison. If, for the purpose of the appeal, we assume that assertion to be correct, we cannot see upon what basis it could justify a section 78 application on behalf of GS, even if it were asserted on his behalf – which it was not – that the prosecution had attributed to GS the voice of another in the recorded conversations.[25]The prosecution’s response to these submissions was the same as that of the Judge to the defence applications, namely: i) that the lawfulness of the means employed to obtain the evidence in question was conclusively established by documentary approval of the Surveillance Commissioners of the Chief Constable’s authorisations; and ii) that, in the circumstances and bearing in mind the guidance of the House of Lords in R v H & C as to disclosure of un-used material, no further disclosure was required, given the prosecution’s assurance that it had complied with its obligation of disclosure under the 1996 Act and the Attorney-General’s Guidelines of 29th November 2000.[26]Mr Robert Davies, on behalf of the prosecution, drew attention to a similar decision and reasoning of His Honour Judge Loraine-Smith in a recent trial in the Crown Court at Southwark, R v C-D (22nd December 2004). He relied, in particular, on what he described as “the unique nature” of the rigorous scrutiny provided by both Acts at each stage of any proposed or current investigation involving the use of covert “bugging” techniques within a suspect’s home. He submitted that the combination of such scrutiny and safeguards, coupled with the ouster provision in section 91(10) of the 1997 Act make plain the intention of Parliament that the courts should not re-visit the legality of the authorisation through an examination of its process.

Conclusion

[27]The statutory backcloth, now of both the 1997 and 2000 Acts, is one of provision for independent verification at very high “judicial” level that intrusive surveillance authorisations have at all times been lawful, in particular in their compliance with the requirements as to necessity and proportionality in section 36 of the 2000 Act. In addition, as we have noted, there is now a high level Tribunal to inquire into complaints by those subjected to intrusive surveillance who take issue with a Surveillance Commissioner’s approval, the jurisdiction of which covers both the legality of the authorisation and whether the surveillance was conducted in accordance with the authorisation. It is plain that section 91(10) of the 1997 Act, in the context of the 2000 Act, is designed to prevent re-litigation in the course of a criminal trial of the entire protective regime of high level authorisation and approval of it.[28]Whilst there is jurisprudential support for the proposition that the Acts are concerned with lawfulness, not admissibility, of information obtained by surveillance covered by their provisions, it is plain from the 2000 Act, section 27 in particular, that the protection given by section 91(10) goes beyond protecting Chief Officers and Surveillance Commissioners from civil proceedings for claimed illegality of authorisations in the event of approved authorisations not complying with the statutory criteria. Section 27, to which His Honour Judge Loraine-Smith drew attention in his ruling against disclosure of underlying material in R v C-D, is important in its provision that the conduct covered by the authorisations is “lawful for all purposes”. It follows that the words of section 91(10), as applied to Surveillance Commissioners under the 2000 Act, that their decisions “shall not be subject to appeal or liable to be questioned in any court” [the Court’s emphases] make the ouster equally applicable to criminal proceedings in respect of which the surveillance authorised is brought into question as it is to immunity from civil proceedings. That certainly seems to have been the approach of Potter LJ and Rose V-P in R v SL & Ors and R v Hardy & Hardy respectively.[29]In R v SL, which concerned the 1997 Act regime, a good deal of information was disclosed and put before the Court as to the content of the authorisations, including specific consideration given to the Act’s criteria, with no doubt, as Potter LJ said, at paragraph 87, the remarks of Lord Hobhouse in R v P “in mind”. However, it should be noted that R v P related to an overseas intercept and to an earlier Act (the Interception of Communications Act 1985). It does not follow that such a course is appropriate under the more rigorous regime provided by the 2000 Act, having regard to the fact as Potter LJ pointed out in R v SL, at paragraphs 104 and 105, that, even though the evidence may have been obtained unlawfully, that does not in itself render its admission unfair under section 78 of PACE:
“104 It has been vigorously argued in the course of this appeal that, because under English law the admissibility of evidence in a criminal trial does not depend upon whether or not it has been obtained by lawful means, and because in an intrusive surveillance case, a defendant will rarely be able to mount an argument of procedural unfairness based simply upon a breach of Article 8, the effect of the decision in R –v- P is, in most trials, both to render Article 8 of no practical significance and s.78 of no practical utility, in respect of the potential exclusion of probe evidence illegally obtained in breach of a defendant’s right to privacy provided for in Article 8. That may well be the position in most cases. That is not a surprising conclusion because, as Lord Hobhouse explained, Article 8 is not concerned with questions as to the admissibility of evidence. In a case where there has been a flagrant non-use or misuse of the authorisation procedures laid down there may well be grounds for a stay on grounds of abuse of process and, in any event, a demonstration of such executive lawlessness will also require to be taken into consideration on the issue of fairness. Lord Hobhouse made clear that, when exercising his discretion under section 78, the judge must have regard to all the circumstances in which the evidence was obtained. However, since, as again Lord Hobhouse pointed out, s. 78 is concerned with the fairness of the trial process, the fact that evidence has been obtained unlawfully is unlikely in itself to weigh very heavily in the scales. It is however impossible to foresee all situations and s.78 is available as a ‘safety net’ in cases engaging Article 8, as is plainly envisaged in both the Strasbourg and English jurisprudence. In cases such as the present, however, the defendant is unlikely to be disadvantaged in dealing with the intercept material. 105. Finally, it has been urged upon us that, unless there is exclusion of such evidence under s. 78, the criminal courts are unable to grant an effective remedy to a defendant in respect of the breach of privacy involved. If, by reference to ‘an effective remedy’ is meant a remedy which excludes the cogent evidence of criminality which tape recorded conversation of a defendant may provide, that is correct. It is the essential function of a criminal court in this country to provide a fair trial on the basis of the evidence available (Article 6 considerations) rather than to provide remedies for breaches of Article 8. In English law, the effective remedy intended to be available is that provided under the 1997 Act as subsequently amended. Like the judge we would hold that, even if the arguments as to ‘form not substance’ and ‘proportionality’ demonstrated a breach of Article 8 in respect of the appellant’s rights to privacy (which in our view they do not), a fair trial is nonetheless possible.”
See alsoR v Hardy & Hardy, a case of directed surveillance, not involving a Surveillance Commissioner, per Rose V-P at paras. 18 and 19.[30]Potter LJ, by his earlier references in paragraphs 5 and 6 of his judgment in R v SL, to section 91(10) of the 1997 Act and its application to the 2000 Act regime, showed that he was aware of its impact as to the lawfulness of obtaining such intrusive evidence. However, as is plain from his discussion in paragraphs 104 and 105 of his judgment (paragraph 29 above), he left open some necessarily ill-defined role for section 78 on the issue of admissibility. He suggested that the matter might be different where there has been a flagrant non-use or mis-use of the authorisation procedures. However, the scope for recourse to section 78 even in such circumstances is likely to be rare and the boundary between legality and admissibility ill-defined, for it is that sort of behaviour that the Surveillance Commissioners are there to prevent.[31]A possible example of such recourse to section 78 in the case of 1997 Act surveillance evidence is R v Templar [2003] EWCA Crim 3186, in which the prosecution, on an application based on defence allegations of manipulation of the recorded material, declined to disclose the underlying material on the ground of public interest immunity. The trial judge and the Court of Appeal of Appeal looked at the material, and held that the prosecution was right to withhold disclosure. Latham LJ, giving the judgment of the Court, adopting prosecuting counsel’s concession that section 91(10) did not preclude such an inquiry, said, at paragraph 14:
“It seems to us that this sub-section does not preclude, in itself, …an inquiry into the question of whether or not the relevant decision of the Commissioner has been obtained by deception or by some other reprehensible conduct amounting to an abuse of process, which could found an argument under s. 78 of the Police and Criminal Evidence Act to the effect that evidence so obtained should be excluded. ”
[32]However, as Judge Loraine-Smith asked in R v C-D, who is to conduct that inquiry? We agree with him that Section 27 of the 2000 Act and section 91(10) of the 1997 Act as applied to the 2000 Act clearly preclude an inquiry by a criminal court into the lawfulness of an approved authorisation. Lawfulness or otherwise in that respect may, but does not necessarily have an effect on any decision as to admissibility under section 78 that the Court may be called upon to make. It is no part of a Surveillance Commissioner’s or of a section 65 Tribunal’s function to determine admissibility. So much is implicitly acknowledged in section 37(7) of the 2000 Act, in its prohibition of an order for destruction of records, following a quashing of an authorisation, pending criminal or civil proceedings. Equally, it is not open to the criminal court to embark upon an examination of material underlying an approved authorisation, to determine whether the correct statutory criteria have been correctly taken into account and so on, all of which go to the issue of lawfulness. If there are other aspects – which the courts have, so far, found somewhat elusive to identify - upon which section 78 considerations of fairness may be called into play, they are not to be found by looking behind the decisions of the Chief Officers and Surveillance Commissioners to test their lawfulness.[33]The answer, it seems to us, is that identified by Judge Loraine-Smith, by reference to the reasoning of the House of Lords in R v H & C, especially that of Lord Bingham of Cornhill, namely the responsibility of prosecuting counsel to ensure proper disclosure. Lord Bingham said this at paragraph 35: “If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in true borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands. If the material contains information which the prosecution would prefer that the defendant did not have, on forensic as opposed to public interest grounds, that will suggest that the material is disclosable. If the disclosure test is faithfully applied, the occasions on which a judge will obliged to recuse himself because he has been privately shown material damning to the defendant will, as the Court of Appeal envisaged … be very exceptional indeed.” [the Court’s emphasis] As Judge Loraine-Smith observed, the more relaxed approach in R v Templar in which the trial judge and the Court of Appeal looked at the underlying material, was, of course, before those observations of Lord Bingham, in which he clearly had in mind the disclosure provisions of the 1996 Act.In addition, in R v Templar, the trial judge and the Court proceeded on the Crown concession, without argument to the contrary, that they should look at the underlying material. Although Mr Bendall emphasised that, in considering section 78, a court is concerned with admissibility, in respect of which both parties should have access to the material in question, rather than with disclosability, the latter is often directed to the same end, namely of making available to the defence material that may, whether by use as evidence or of identification of other evidence or as material for cross-examination, undermine the prosecution case or assist the defence.[34]As we have said, in the present case, the various appellants made no allegations nor expressed any clear and cogent reasons to support section 78 applications in respect of the covertly recorded conversations, merely suggestions that if they had access to the documentation underlying the Surveillance Commissioners’ approvals of the authorisations for obtaining them, they might find something to support their applications. This was clearly not a “border-line” or an “exceptional” case for disclosure of material of the sort envisaged by Lord Bingham in R v H & C. On the contrary, it was a case in which, as Mr Davies has informed the Court, one in which the public interest immunity material, if disclosed to the Judge could have potentially damaged the standing of the defendants in the eyes of the Judge.[35]The normal starting and stopping point for the prosecution when seeking to rely upon the provisions of sections 32-40 of the 2000 Act in relation to intrusive surveillance is to produce to the trial judge the Surveillance Commissioner’s signed approval forms. An alternative would be for the Chief Officer, who had authorised and obtained approval of the surveillance pursuant to Part II of the 2000 Act, to give evidence to that effect, producing the approval forms if his evidence was challenged. Such evidence should be adequate for the purpose of the Act and, given the specific criteria set out in section 36 of it, including those as to necessity and proportionality, sufficient also for the purposes of Article 6, ECHR (and for that matter, Article 8, with which the criminal courts are not concerned). Once it has been produced, defence counsel are not entitled to reopen the lawfulness of the authorisation as a means of, or as a route to, ventilating its admissibility under section 78 of PACE or otherwise.[36]Accordingly, in our view, the Judge correctly relied upon the approval forms signed by the Surveillance Commissioners placed before him by the prosecution as a means of satisfying himself that the intrusive surveillance in this case had been lawfully authorised. He was not required to accede to the defence requests for disclosure or access to the material underlying those approvals or, in the circumstances, to examine it himself. In particular, it was not – particularly in the absence of any clear cause for concern identified by the defence - a border-line or exceptional case of the sort envisaged by Lord Bingham in R v H & C so as require him to oversee, by viewing the underlying material for himself, the adequacy of the prosecutor’s discharge of his responsibility for disclosure. _______________