Wiretaps: The Forbidden Fruit

Foreign observers of the ongoing trial of five defendants at Southwark Crown Court as part of Operation Tabernula (the UK's largest ever insider dealing investigation) may be surprised to note a significant type of evidence that neither the prosecution nor the defence will be introducing: telephone calls intercepted, in the UK, by the use of wiretaps.

Onlookers expecting to witness wiretap evidence being presented to the jury, as seen to devastating effect in the Galleon1 insider trading trial of Raj Rajaratnam in the US in 2011, will be left disappointed. The UK remains the, "only country in the common law world that prohibits completely the use of intercepted communications as evidence in criminal proceedings."2

This post examines the UK's current legal framework governing the inadmissibility of intercept evidence (its rationale, inconsistencies and consequences) and the potential detrimental impact of the inadmissibility of intercept evidence on the fairness of criminal prosecutions.

Current framework

The interception of communications in the UK is governed by the Regulation of Investigatory Powers Act 2000 (RIPA).

Under RIPA, the term 'intercepted communications' refers to the covert interception of private communications (including landline and mobile telephone calls, email and ordinary post) by law enforcement and intelligence agencies. The use of information gleaned from such intercepted communications as evidence in civil or criminal proceedings is known as 'intercept evidence.'3

Despite the fact that RIPA permits the interception of communications, section 17 prohibits the use in UK courts of intercept evidence which has been collected under a warrant in the UK.4

Intercept evidence is used only as a source of intelligence in the UK; not of evidence.

Rationale

The legislative bar to intercept evidence being adduced in criminal proceedings has a long legal and political heritage which can be distilled into two basic concerns: secrecy and security and an administrative burden.

Secrecy and security

The first argument goes that if intercept evidence were admissible, the intelligence agencies' methods and sources of interception would be revealed and suspects would develop new methods to avoid interception, thereby jeopardising the ability of the state to detect and investigate future criminal activity.

Administrative burden

The second argument is that the making admissible of intercept evidence would place an intolerable burden on...