Schofield, R (On the Application Of) v Secretary Of State For The Home Department [2021] EWHC 902 (Admin)

“(1) The issuing authority must ensure, in relation to every targeted interception warrant … issued by that authority, that arrangements are in force for securing that the requirements of subsections (2) and (5) are met in relation to the material obtained under the warrant. This is subject to subsection (9). (2) The requirements of this subsection are met in relation to the material obtained under a warrant if each of the following is limited to the minimum that is necessary for the authorised purposes (see subsection (3))— (a) the number of persons to whom any of the material is disclosed or otherwise made available; (b) the extent to which any of the material is disclosed or otherwise made available; (c) the extent to which any of the material is copied; (d) the number of copies that are made. (3) For the purposes of this section something is necessary for the authorised purposes if, and only if— (a) it is, or is likely to become, necessary on any of the grounds falling within section 20on which a warrant under Chapter 1 of this Part may be necessary, (b) it is necessary for facilitating the carrying out of any functions under this Act of the Secretary of State, the Scottish Ministers or the person to whom the warrant is or was addressed, (c) it is necessary for facilitating the carrying out of any functions of the Judicial Commissioners or the Investigatory Powers Tribunal under or in relation to this Act, (d) it is necessary to ensure that a person (‘P’) who is conducting a criminal prosecution has the information P needs to determine what is required of P by P’s duty to secure the fairness of the prosecution, …” (a) the number of persons to whom any of the material is disclosed or otherwise made available; (b) the extent to which any of the material is disclosed or otherwise made available; (c) the extent to which any of the material is copied; (d) the number of copies that are made. (a) it is, or is likely to become, necessary on any of the grounds falling within section 20on which a warrant under Chapter 1 of this Part may be necessary, (b) it is necessary for facilitating the carrying out of any functions under this Act of the Secretary of State, the Scottish Ministers or the person to whom the warrant is or was addressed, (c) it is necessary for facilitating the carrying out of any functions of the Judicial Commissioners or the Investigatory Powers Tribunal under or in relation to this Act, (d) it is necessary to ensure that a person (‘P’) who is conducting a criminal prosecution has the information P needs to determine what is required of P by P’s duty to secure the fairness of the prosecution, …”

“(1) Section 56(1)does not apply in relation to any proceedings for a relevant offence. (2) ‘Relevant offence’means— (a) an offence under any provision of this Act; (b) an offence under section 1 of the Interception of Communications Act 1985; (c) an offence under any provision of the Regulation of Investigatory Powers Act 2000; (d) an offence under section 47 or 48 of the Wireless Telegraphy Act 2006; (e) an offence under section 83 or 84 of the Postal Services Act 2000; (f) an offence under section 4of the Official Secrets Act 1989relating to any such information, document or article as is mentioned in subsection (3)(a) or (c) of that section; (g) an offence under section 1 or 2of the Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which— (i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or (ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur; (h) an offence of perjury committed in the course of any relevant proceedings; (i) an offence of attempting or conspiring to commit an offence falling within any of paragraphs (a) to (h); (j) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence falling within any of those paragraphs; (k) an offence of aiding, abetting, counselling or procuring the commission of an offence falling within any of those paragraphs; (l) contempt of court committed in the course of, or in relation to, any relevant proceedings.” (a) an offence under any provision of this Act; (b) an offence under section 1 of the Interception of Communications Act 1985; (c) an offence under any provision of the Regulation of Investigatory Powers Act 2000; (d) an offence under section 47 or 48 of the Wireless Telegraphy Act 2006; (e) an offence under section 83 or 84 of the Postal Services Act 2000; (f) an offence under section 4of the Official Secrets Act 1989relating to any such information, document or article as is mentioned in subsection (3)(a) or (c) of that section; (g) an offence under section 1 or 2of the Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which— (i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or (ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur; (h) an offence of perjury committed in the course of any relevant proceedings; (i) an offence of attempting or conspiring to commit an offence falling within any of paragraphs (a) to (h); (j) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence falling within any of those paragraphs; (k) an offence of aiding, abetting, counselling or procuring the commission of an offence falling within any of those paragraphs; (l) contempt of court committed in the course of, or in relation to, any relevant proceedings.”

“1. Everyone’s right to life shall be protected by law. … 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

“1. In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. … 3. Everyone charged with a criminal offence has the following minimum rights: … (b) to have adequate time and facilities for the preparation of his defence; …”

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. 2. If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

“(6) A declaration under this section (‘a declaration of incompatibility’)— (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.” (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.”

“4. By this claim, the Claimant seeks a further exception to that prohibition [the statutory bar]. Intercept material which remains in existence at the time of a prosecution for a lethal criminal offence by a state agent should be admissible, if that will not cause unjustifiable harm to the public interest. She seeks a declaration of incompatibility, that the prohibition is incompatible with the positive and procedural duties within article 2 ECHR. A summary of the reasons why a declaration would be appropriate is as follows: a. Article 2 requires the state to bring about an effective investigation into a death caused by lethal force used by state agents. In such cases, it is of great importance that the proceedings are capable of leading to the conviction and punishment of state agents who committed criminal offences leading to the death. The authorities must take all reasonable steps to secure and adduce the relevant evidence. b. The ban on the admission of intercept is contrary to those requirements. It means that, where a prosecution would depend on intercept evidence, the proceedings will not be capable of ensuring criminal penalties are applied. c. There will be a number of cases in which intercept material can be adduced without causing harm to an important public interest, or where measures can be imposed to prevent harm. That will regularly be the case in respect of killings by the police, in part because the police will often have themselves been involved in, or been aware of, the interception. The Defendant appears to accept this. Yet even in those cases, the ban prevents the intercept being relied upon at trial. It prevents reasonable steps being taken to adduce the relevant evidence, which is incompatible with article 2. 5. The Government has given anxious consideration to this issue. The most recent report, in 2014, concluded that admitting intercept as evidence would either cost a great deal or would undermine the operations of the intercepting agencies, which are matters of the utmost importance. But that conclusion was centrally based on the misunderstanding that, if intercept were admissible, article 6 ECHR would require the agencies to retain all potentially relevant intercept product, to listen to, transcribe, translate, catalogue and disclose it to the defence. That understanding of the law was incorrect: article 6 would not require the agencies to significantly alter their existing operational methods.”

“Tactical interception provides real-time intelligence on plans and actions of individual terrorists, criminals and other targets, which allows the agencies to disrupt their plans and frustrate their actions. …”

“1. Interception of communications is one of the most important techniques used in the investigation of terrorism and serious and organised crime. But interception is an intrusive power and is therefore only used by a small number of UK security and law enforcement agencies for a specified range of purposes. While interception supports criminal investigations by providing vital intelligence, the law currently prohibits the use of intercept material as evidence in criminal proceedings. 2. Evidence from overseas jurisdictions, particularly the USA and Australia, suggests that intercept material can be valuable evidence at trial. The Coalition agreement therefore set out an intention to find a practical way to allow the use of intercept evidence in court. A review of this issue (the eighth review since 1993) was commissioned and conducted by the Home Office, drawing on expertise from across the eight intercepting agencies and specialist legal advice. It was overseen and endorsed by a cross-party group of Privy Counsellors. This report summarises the work of the review and the Government’s conclusions. 3. Under British law defendants must receive a fair trial under conditions that do not place them at a disadvantage compared to the prosecution. In practice this means the defence should have access to all material on which the prosecution relies, as well as any material which is capable of undermining the prosecution case or assisting the defence. The prohibition on using intercept as evidence is consistent with the right to a fair trial because neither the defence nor the prosecution can rely on intercept material. 4. For the use of intercept material as evidence to be consistent with a fair trial, all relevant material collected by an intercepting agency in the course of a given investigation would need to be retained to an evidential standard and made available to the defence. 5. All previous reviews of intercept as evidence have also recognised that an intercept as evidence regime must not significantly impede the operational activity of the intercepting agencies. The 2008 Privy Council review of intercept as evidence proposed nine ‘operational requirements’ which would need to be met by an intercept as evidence model. The present review recognised the continued validity of these operational requirements. They include the requirements that the intercepting agencies should select whether and for how long to retain intercept material in a given case and that the agencies should not be required to alter their operational monitoring or transcription arrangements. 6. The review concluded that the legal requirements for an intercept as evidence regime regarding the review, retention and disclosure of intercepted material cannot, as a matter of principle, be reconciled with the operational requirements set out in 2008, notably that the intercepting agencies should be able to determine how intercept material is transcribed and selected for retention. This assessment was confirmed by consideration of the specific models which have been previously proposed for an intercept as evidence regime, including models developed for the purpose of this review. The models are summarised in this report. 7. The review did identify a legally compliant model for intercept as evidence. This model would not be consistent with the agency operational requirements identified in 2008. The review considered the costs and benefits of this model. The cost would be between £4.25bn and £9.25bn over 20 years depending on assumptions about developing communications technology and usage, and technology costs. On some assumptions the model could lead to an increase in convictions; but on others the model could lead to fewer convictions than at present, due mainly to the compromise of sensitive techniques and the inability to prosecute cases where these techniques had been used. 8. Deriving highest benefit from an intercept as evidence model would be possible only if additional funding were made available to cover the additional costs. Under a flat funding scenario there would be no benefit from a legally compliant intercept as evidence regime because agency resources would have to be diverted away from operational work to staff and fund the intercept as evidence process. 9. The Government has concluded that although it is feasible to design a legally compliant intercept as evidence regime it would not be consistent with previous operational requirements, would incur significant costs and risks, and that the benefits would be uncertain. The Government therefore intends to make no change to the current arrangements which permit intercept material from this country to be used for intelligence purposes only. 10. The Government will keep under review any changes that might affect the conclusions of this review, including changes to the legal requirements that would reduce the burden of examination, retention and review on the intercepting agencies, and the development of new technologies that could reduce the need for manual translation and transcription of intercept material.”

“The CPIA aims to ensure that criminal investigations are conducted in a fair, objective and thorough manner, and requires prosecutors to disclose to the defence material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.”

“If material which may be relevant to the investigation consists of information which is not recorded in any form, the officer in charge of an investigation must ensure that it is recorded in a durable or retrievable form …”

“requires investigators to record and retain material obtained in a criminal investigation which may be relevant to the investigation. This includes a responsibility to record and retain relevant material obtained or generated by them during the course of the investigation and the requirement for the disclosure officer to create schedules of relevant unused material retained during an investigation and submit them to the prosecutor.”

“Where material was retained in the course of an investigation because the investigator originally considered it potentially relevant, but it has in fact no bearing on the offence, the offender or the surrounding circumstances, it need not be retained further.” 57. Mr Straw relied on that passage but it is also important to note the following sentence: “However the investigator should err on the side of caution in coming to this conclusion and seek the advice of the prosecutor as appropriate, noting that in the early stages of a case all of the issues may not be apparent.”

“60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused. 61. However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.”

“Even though the police and the prosecutor were obliged by law to take into consideration both the facts for and against the suspect, a procedure whereby the investigating authority itself, even when co-operating with the prosecution, attempts to assess what may or may not be relevant to the case, cannot comply with the requirements of art.6(1). Moreover, it is not clear to what extent the prosecutor was, in fact, involved in the decision to destroy those recordings which were not included in the case file. In this case, the destruction of certain material obtained through telephone surveillance made it impossible for the defence to verify its assumptions as to its relevance and to prove their correctness before the trial courts.”

“… The fact that an item of information cannot be put in evidence by a party does not mean that it is worthless. Often, the train of inquiry which leads to the discovery of evidence which is admissible at a trial may include an item which is not admissible, and this may apply, although less frequently, to the defence as well as to the prosecution. … It is of help to the defendant to have the opportunity of considering all of the material evidence which the prosecution have gathered and from which the prosecution have made their own selection. In my opinion the test is materiality, not admissibility.”

“101. In Jasper, the applicant had alleged that his trial was unfair because, inter alia, the product of a telephone intercept had been withheld from the defence without being placed before the trial judge. In holding that there had been no violation of art.6(1) of the Convention, the Court found that it had not been established that any such material existed at the time of the trial. Moreover, since both the prosecution and the defence were prohibited from adducing any evidence which might tend to suggest that calls had been intercepted by the state authorities, the principle of equality of arms had been respected. Furthermore, on the facts of that case the Court noted that it would have been open to the applicant himself to testify, or to call evidence from other sources, as to the existence and contents of the telephone call in question. … 103. Although the relevant domestic law in Jasper was the Interception of Communications Act 1985, under RIPA it remains the case that both the prosecution and the defence are prohibited from adducing any evidence which might tend to suggest that calls had been intercepted by the state authorities. In fact, the only relevant amendment introduced by RIPA was the addition of an extra layer of protection namely, the possibility for the trial judge to review the intercept evidence in exceptional cases. 104. In light of the foregoing, the Court does not consider that the present case can be distinguished from that of Jasper. It therefore considers that the applicant’s complaint concerning the failure to disclose the intercept evidence is manifestly illfounded and, as such, must be rejected pursuant to art.35(3)(a) of the Convention.”

“The obligation to protect the right to life under Art.2 of the Convention, read in conjunction with the State’s general duty under Art.1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.”

“The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.”

“94. To sum up, the judicial system required by Art.2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the state officials or authorities involved in whatever capacity in the chain of events in issue. 95. That said, the requirements of Art.2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts; the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. 96. It should in no way be inferred from the foregoing that Art.2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. …”

“The court necessarily operates on the basis of relatively limited evidence, which is adduced by the parties in the context of particular litigation. Its focus is narrow and the argument is necessarily sectional. In contrast, Parliament has the means and opportunities to obtain wider information, from much wider sources. It has access to expert bodies, such as the Law Commission, which can advise it on reform of the law. It is able to act upon draft legislation, which is usually produced by the Government and often follows a public consultation exercise, in which many differing views can be advanced by members of the public. Both Government and Members of Parliament can be lobbied by anyone with an interest in the subject in hand. The political process allows legislators to acquire information to inform policy decision from the widest possible range of opinions.”

“In particular, that legitimises its interventions in areas of difficult or controversial social policies. That is not to say that the court should abdicate the function required by Parliament itself to protect the rights which are conferred by the HRA. The courts have their proper role to play in the careful scheme of the HRA … in appropriate cases that can include making a declaration of incompatibility under section 4 in respect of primary legislation where an incompatibility between domestic legislation and Convention rights has been established … Democratic legitimacy provides another basis for concluding that the court should be slow to occupy the margin of judgement more appropriately within the preserve of Parliament.”