Disclosure Manual: Chapter 27 - Dealing with Intercept Product

The legislation regulating the interception of communications is contained in Part 2 of the Investigatory Powers Act 2016 (’IPA’). Guidance can be found in the Interception of Communications Code of Practice 2018 (‘IoC Code’). Prosecutors dealing with intercept material should be familiar with the IoC Code, in particular chapter 11.

The provisions contained in Part 1 Chapter 1 of the Regulation of Investigatory Powers Act 2000 (‘RIPA’) have been repealed (subject to certain limited savings and transitional provisions) by Schedule 10 Part 2 of IPA. Guidance on the application of the previous RIPA regime can be found in the Interception of Communications Code of Practice (January 2016).

This chapter is concerned with material lawfully obtained under warrants issued pursuant to sections 15 and 136 of IPA or section 5 of RIPA, which is to be reviewed for disclosure purposes by a prosecutor. (but note that interception may also be lawful without a warrant in specific circumstances under sections 44-52 of IPA).

Prosecutors are likely to primarily encounter material obtained under targeted interception warrants (section 15(2)), which authorise or require the person to whom they are addressed to intercept the communications described in the warrant and/or obtain secondary data. Such warrants may allow the interception of communications in the course of their transmission by means of a postal service or telecommunication system. They may be issued by the Secretary of State on application by certain limited persons, including the Director General of the NCA, the Metropolitan Police Commissioner and the Commissioners for HMRC. Such warrants may only be issued where the Secretary of State is satisfied that certain conditions are met, most pertinently: that the warrant is necessary for the purpose of preventing or detecting serious crime, and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. Similar provisions applied in respect of section 5 of RIPA. Section 15(4) provides for mutual assistance warrants, which authorise or require an intercepting authority to either make a request for assistance for mutual assistance in connection with the interception of communications or to provide assistance in response to such a request.

Prosecutors may also occasionally encounter material obtained under bulk interception warrants issued under section 136 of IPA, which have as their main purpose the interception of overseas-related communications and/or the obtaining of secondary data from such communications, and which may authorise the interception of communications, the obtaining of secondary data from the communications described in the warrant, and/or the selection for examination of the intercepted content or secondary data. Applications for such warrants may only be made by the Director General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters (GCHQ), but in certain circumstances this information may be shared with the police (see paragraph 9.16 of the IoC Code). Section 15(3) of IPA provides for targeted examination warrants, which authorise the person to whom they are addressed to select for examination content obtained under a bulk interception warrant.

Intercept material obtained under section 15 of IPA should be handled in accordance with sections 53 to 59 of IPA and the IoC Code. Similar provisions apply to section 150 of IPA, as noted below.

Section 53 of IPA sets out the obligations placed on the intercepting agencies in relation to the sharing, copying, storage and destruction of the product (section 150 contains similar provisions in respect of bulk interception warrants, and similar provisions were contained in section 15 of RIPA). This includes an obligation to destroy such material where its retention is no longer necessary. The grounds on which retention may be necessary include where it is necessary to ensure that prosecutors have the information, they need to determine what is required of them by their duty to secure the fairness of the prosecution.

Further guidance on this exception is provided by paragraph 11.7 of the IoC Code:

“The exception does not mean that material obtained under a warrant should be retained against a remote possibility that it might be relevant to future proceedings. The normal expectation is still for the material obtained under a warrant to be destroyed in accordance with the general safeguards provided by section 53. The exceptions only come into play if such content and secondary data has, in fact, been retained for an authorised purpose. Because Part 2 warrants cannot be considered necessary for any of the statutory grounds if it is considered necessary only for the purpose of gathering evidence for the use in any legal proceedings (although it may be used to help gather other information which can be used in evidence), content and secondary data intercepted for this purpose may not have survived to the prosecution stage, as it will have been destroyed in accordance with the section 53(5) safeguard. There is, in these circumstances, no need to consider disclosure to a prosecutor if, in fact, no intercepted content or secondary data remains in existence.”

It is, however, important that material is retained if it has the capacity to undermine a potential future prosecution or assist the defence. Each intercepting agency will interpret the obligations under section 53 in a different way, depending on their own statutory functions, and will have their own internal handling arrangements. Prosecutors should comply with the agreed handling arrangements of the relevant agency.

Section 56 of IPA imposes a broad exclusion on the use of intercept material in legal proceedings. Subsection 1 provides that:

“No evidence may be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings […] which (in any manner)—

1. discloses, in circumstances from which its origin in interception-related conduct may be inferred—
   1. any content of an intercepted communication, or
   2. any secondary data obtained from a communication, or
2. tends to suggest that any interception-related conduct has or may have occurred or may be going to occur.”

By virtue of section 56(4) this also applies to intercept material obtained under Part 1 Chapter 1 of RIPA, and by virtue of section 156 this also applies to material obtained under bulk interception warrants.

Section 56 is subject to certain exceptions contained in Schedule 3 of IPA (again, these exceptions apply equally to material obtained under Part 1 Chapter 1 of RIPA and under bulk interception warrants). Paragraph 21 of that schedule provides that intercept material may be provided to a prosecutor for the purpose of enabling them to determine what is required of them by their duty to secure the fairness of the prosecution. However, this does not extend to the disclosure of material to a defendant, and CPIA sections 3(7) and section 7A(9) provide that material must not be disclosed to the defence to the extent that its disclosure is prohibited by section 56 of IPA. The exception also does not allow the material to be used for reasons other than to determine what is required of the prosecutor to secure the fairness of the proceedings, for example, it may not be used in cross-examination.

Under sections 57 and 58 of IPA, prosecutors must not make unauthorised disclosure of matters related to warrants issued under Part 2 of IPA (or under Part 1 Chapter 1 of RIPA). Under section 59 of IPA, it is a criminal offence to make such an unauthorised disclosure.

As a result of the requirements of section 53 of IPA, the raw product may or may not still exist at the prosecution stage. The IoC Code clearly envisages that much of the product will have been destroyed before revelation to the prosecutor becomes an issue. Material, be it raw product, copies, etc will therefore only be available if a conscious decision has been made to retain it for an authorised purpose, i.e. the same purpose for which the warrant was issued (National security/ prevention or detection of crime) or, in exceptional circumstances, where retention was deemed necessary for prosecutorial review of available material. However, it is stressed that this will depend on the handling arrangements of the interception agency and the prosecutor should still identify what material the relevant agency holds.

Material (product, copies, documents and/ information) resulting from an interception warrant which exists and which could affect the fairness of the trial will be brought to the attention of the prosecutor in accordance with internal referral criteria for the prosecution agency and/or Division. This process is known as a 'Preston briefing'.

The prosecutor should ascertain from the police (or other investigator and/or relevant third party, where applicable) whether 'Preston' material exists, though care should be exercised when asking this question since any response tending to indicate such material exists may itself offend against s56(1)(b). This process is assisted by the relevant organisation and or listening personnel being provided with:

• a summary of how the prosecution puts its case;
• the proposed charges or an indictment; and, where applicable
• a defence statement;
• a sequence of events (where available)
• communications/ telephone attribution evidence (where available)

A note of all discussions should be kept and should be retained in accordance with applicable guidance.

The prosecutor should make a note on the highly sensitive disclosure review sheet (DRS) that a conference has been held (describing the conference as one involving a sensitive intelligence briefing), detailing who attended the conference and confirming that a note of the discussions is retained by the NCA (or other agency).

Where all material has been destroyed but an officer of the interception agency informs the prosecutor that they recall that material existed which could have an impact on the fairness of the proceedings, the recollection should be treated as if it were a document, and reviewed for the purposes of fairness.

Where intercept material may affect the fairness of the proceedings, further guidance is provided by the IoC Code:

“11.10 Having had access to the content or secondary data, the prosecutor may conclude that the content 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

"11.11 Paragraph 21(1)(b) of Schedule 3 recognises that there may be cases where the prosecutor, having seen intercepted content or secondary data under paragraph 21(1)(a), will need to consult the trial judge. Accordingly, it provides for the judge to be given access to material obtained under a warrant, where there are exceptional circumstances making that disclosure essential in the interests of justice.

"11.12 This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to the judge alone, under this subparagraph. This is an exceptional procedure; normally, the prosecutor’s functions under paragraph 21(1)(a) will not fall to be reviewed by the judge. To comply with section 53(1), 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.

"11.13 The judge may, having considered the intercepted content or secondary data 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 53(1), it must not reveal the fact of interception. This is likely to be a very rare step. The Act only allows it where the judge considers it essential in the interests of justice.

"11.14 Nothing in these provisions allows intercepted content or secondary data, or the fact of interception, to be disclosed to the defence.”

An admission can be made to ensure the fairness of the proceedings without the need to refer to the judge; where there are no exceptional circumstances making disclosure to the judge essential in the interests of justice. The admission must not contravene section 56 of IPA. Liaison with the intercepting agency should take place throughout. The agency can also assist with the drafting of any admission so as to ensure it does not offend against section 56.