By Gareth Corfield and cross-posted from The Register
Blighty’s freshly passed Investigatory Powers Act, better known as the Snoopers’ Charter, is a dog’s dinner of a law. It gives virtually unrestricted powers not only to State spy organisations but also to the police and a host of other government agencies.
The operation of the oversight and accountability mechanisms in the IPA are all kept firmly out of sight – and, so its authors hope, out of mind – of the public. It is up to the State to volunteer the truth to its victims if the State thinks it has abused its secret powers. “Marking your own homework” is a phrase which does not fully capture this.
However, despite the establishment of a parallel system of secret justice, the IPA’s tentacles also enshrine parallel construction into law. That is, the practice where prosecutors lie about the origins of evidence to judges and juries – thereby depriving the defendant of a fair trial because he cannot review or question the truth of the evidence against him.
Section 56 of the act as passed sets out a number of matters that are now prohibited from being brought up in court. The exact wording of section 56(1) is as follows:
Exclusion of matters from legal proceedings etc.(1) 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 or Inquiries Act proceedings which (in any manner)—
(a) discloses, in circumstances from which its origin in interception-related conduct may be inferred—
(i) any content of an intercepted communication, or
(ii) any secondary data obtained from a communication, or
(b) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur.
This is subject to Schedule 3 (exceptions).
Schedule 3’s list of exemptions is broadly confined to national security court hearings, tribunals and other judicial occasions when the great unwashed, usually including the defendant and his legal representatives, are excluded from part or all of the hearing. Out of sight, out of mind…