Under UK law, the prosecution must provide full disclosure of its evidence to the defence.
Why not simply ask prosecuting solicitors or barristers how they obtained it?
If s.56 of the Investigatory Powers Act demands that lawyers must lie about how they got it – or, alternatively, I suppose they could say they are not at liberty to divulge that information – then the defence may disprove the case by showing that it was impossible for the state to know what it claims except by spying.
There would be no need to make any suggestion that spying had happened; all the defence has to do is show that the information could not have been obtained any other way.
With no legal ability to reveal how the information came into its hands, the Prosecution would have no way to prove that the evidence was factually accurate.
Am I mistaken?
It turns out that the Snoopers’ Charter has enshrined Parallel Construction into UK law, which means that agents of the state will be allowed to tell lies in court in order to secure convictions, and furthermore it bans anyone from questioning those lies.
The relevant part of the Investigatory Powers Act is Section 56. The section is written in the usual kind of impenetrable language used in government legislation. I’m going to spell out in simple English what section 56 legislates. If you want to cross-reference my layman’s explanation with the actual wording of the act, click the green link above.
- 56 (1) In British courtrooms and Inquiries it is now forbidden to make disclosures that would
(a) reveal that evidence was obtained by spying.
(b) suggest that spying has ever been going on, may have been going on, or may go on in the future.
- 56 (2) Details all of the actions that are defined as spying (“Interception-related content”)
- 56 (3) A list of people who people who are able to act as spies, which includes police chiefs, spy chiefs, the head of HMRC, the head of the defence staff, the heads of non-British agencies with whom the British government is sharing information, any person holding office under the crown, anyone working for the police, anyone working for HMRC, anyone working for a postal service, anyone working for a telecommunications provider, anyone working as a subcontractor for a postal service or telecommunications company.
- 56 (4) Retroactive clauses to prevent the prosecution of people who were doing this kind of spying unlawfully before the Snoopers’ Charter became law in November 2016.
Section 56 of the Snoopers’ Charter is really alarming stuff because it creates a legal obligation on prosecutors to lie in court about how their surveillance-related evidence was obtained, and it also prevents defence lawyers from presenting proof that evidence was obtained by spying, or even suggesting that the evidence might have been obtained by spying.
Some people have tried to suggest that this legislation weakens the prosecution position by creating doubts over whether they are telling the truth or not, but any defence lawyer who ever tried to even point out the section 56 legislation that obligates the prosecution to lie in court about the sources of their evidence would be in breech of section 56 (1) (b) for suggesting that spying could have been going on.
Aside from the Snoopers’ Charter creating legal obligations for witnesses to lie in court, and gagging defence lawyers, section 56 is also deeply concerning because of the retroactive clauses.
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