SimCybercrime Investigations: evidential considerations

on McKay, Solicitor Advocate

Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorisation or notice, or by virtue of which information may be obtained in any manner, shall be construed(a) as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act;(b) as otherwise requiring—

(i) the issue, grant or giving of such a warrant, authorisation or notice, or

(ii) the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice,before any such conduct of that description is engaged in; or(c) as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.

Section 80, RIPA

As Sir John Thomas said, at paragraph [51] of the judgment in Plunkett, covertly recorded evidence is in principle admissible but can be excluded under that section. The focus of the enquiry, whether the evidence has in fact been obtained within or without the provisions of the enabling statute, must be the effect on the fairness of the proceedings… [in] the present case, while the surveillance was carried out in good faith, it was conducted in circumstances in which the investigating officers negligently failed to have proper regard to the limits of their authorisation…[after] considering all these points, we have re-directed our minds to this central issue of fairness and have asked ourselves whether the trial Judge's decision to admit this evidence, obtained outside the authorisation granted, rendered this trial unfair. We have no hesitation in saying that it did not.

R v Khan, Mahmood & Kajla v R[2013] EWCA Crim 2230

Section 2(7) RIPA 2000“…[the] times while a communication is being

transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

In our view these words in their natural meaning are entirely apt to cover a situation…where a message having been initially received by the intended recipient is stored in the communications system where the intended recipient may thereafter have access to it by playing back the message.

Coulson and Kuttner v R[2013] EWCA Crim 1026