back to article The UK's Investigatory Powers Act allows the State to tell lies in court

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 …

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  1. Anonymous Coward
    Anonymous Coward

    Surely this is where an independent judiciary ...

    refuses to hear cases where justice is frustrated ?

    I believe there are precedents ....

    1. Adam 52 Silver badge

      Re: Surely this is where an indyependent judiciary ...

      Not many. Matrix Churchill went ahead, and would have convicted if Alan Clarke hadn't bottled it.

      We don't really have an independent judiciary in the UK.

      1. Anonymous Coward
        Anonymous Coward

        Re: Surely this is where an indyependent judiciary ...

        Ironically a f'ņ big Supergun might actually have some uses *in* Iraq right about now ;)

      2. Anonymous Coward
        Anonymous Coward

        Re: Surely this is where an indyependent judiciary ...

        Actually, the very possibility of an independent judiciary is more wishful thinking than anything law or constitutional documents can guarantee.

        A judge may sit on the bench knowing that, according to law and the constitution, it is his duty to execute the law without fear or favour. But in reality, he is a human being like any other with ambitions, material desires, and fears. He may aspire to promotion, or the honours that only the Prime Minister can confer. How could we ever rule out that quintessentially "Yes, Minister" scene - the club where a judge just happens to run into Sir Humphrey after dinner, accepts his offer of a drink, and is told that, "The PM would really like it if..." Followed, after a short reflective pause, by, "On another subject entirely, we are looking for someone suitable..."

        Of course, there will always be people who are absolutely honest - or, if you prefer, whose pride compels them to act rightly at all times. Those are the only people who can be trusted to act independently. But how can we know who they are in advance? It has been perceptively said that most people can cope with adversity; but if you want a test of character, give a person power.

        1. Anonymous Coward
          Anonymous Coward

          Re: Surely this is where an indyependent judiciary ...

          "Of course, there will always be people who are absolutely honest - or, if you prefer, whose pride compels them to act rightly at all times. Those are the only people who can be trusted to act independently. "

          But if they are fed a pile of half-truths by the prosecution, how can they be expected to come to a fair decision?

    2. streaky

      Re: Surely this is where an independent judiciary ...

      There are many many many precedents. It's also a fundamental part of UK constitutional law and sits right alongside the principle of equality of arms (none of this comes from EU doctrine, incidentally).

      Also yeah, courts would refuse to hear such cases where there wasn't other evidence, all this stuff is court-inadmissible; hell even fully warranted target-specific wiretaps of phone conversations are inadmissible in UK courts. IPA isn't for court cases.

    3. macjules

      Re: Surely this is where an independent judiciary ...

      Shh. Stop talking about an independent judiciary: you might wake up The Daily Mail.

    4. Alan Brown Silver badge

      Re: Surely this is where an independent judiciary ...

      In a jury trial, this is where the defence lawyers bring up exactly these points. The state can't D-notice telling the juries about the existence of legislation which enables the "authorities" to tell lies and the moment that's done, the seeds of doubt are sown, especially if parallel construction is explained - and the prosecution can't prevent a defence lawyer explaining how it's done.

      Unlike some other countries, UK juries tend not to be stupid and they don't trust untrustworthy organisations just because they happen to be "the law"

      The urban legend that the Metropolitan Police flying squad was so distrusted that in the 1970s they wouldn't be able to secure a conviction for a set of bank robbers caught red-handed in the act isn't far from the truth.

      The other urban legend that the Greater Manchester Serious Crime squad was disbanded because it was found to be responsible for performing most of the serious crimes in Great Manchester also isn't far from the truth.

      The result is that after a few such cases the "authorities" will attempt to move such cases to the "secret courts" - where the judges tend to be more sympathetic, but the state also has to prove its case to a much higher degree.

  2. This post has been deleted by its author

    1. Spacedinvader
      Big Brother

      No because you can't argue your side and say they're talking bollocks

      1. rh587

        No because you can't argue your side and say they're talking bollocks

        I think the suggestion was perhaps that there will now always be a reasonable doubt by default regardless of the evidence actually presented because there is a possibility that the defendant may be prevented from actually defending themselves, or that the prosecution case has not been properly cross-examined.

        1. Anonymous Coward
          Anonymous Coward

          Reasonable Doubt

          I think it is a lot worse - stories can be construed which do not leave a margin for 'reasonable doubt'. The jury must make its decision based upon available evidence. The only evidence available has the alleged perpetrator bang to rights and so the only option is to convict.

          The claim would seem to be "we know this person is guilty, we just can't tell you how, so we are going to subvert the normal process of justice to ensure conviction"

          1. wolfetone Silver badge

            Re: Reasonable Doubt

            If you image that you've been accused of hacking a bank. Prosecution brings all this "evidence" to the table, most of which is wrong and has either been made up or doctored.

            Your defence lawyer stands up, does his thing and references the act in which you're being brought to court over and highlights the fact that it allows the prosecution to doctor evidence to suit and that the evidence doesn't actually have to be real in order to convict. Defence lawyer could then put it to the jury that because such a loop hole exists, the prosecution either needs to show that the evidence is real or undoctored, otherwise what is to say that the evidence is actually real.

            So in one way it puts more pressure on the prosecution to make sure that any fabricated evidence is water tight, but it may be enough for the defence lawyer to highlight that aspect of the law, and leave it to the jurors own prejudice.

            We won't know though until someone actually gets tried over this and whether it goes to appeal. That'll be the case used as a precedent.

            1. John G Imrie

              Re: Reasonable Doubt

              Your defence lawyer stands up, does his thing and references the act

              At which point he is arrested under this act and the trial restarted with a new Jury.

              1. wolfetone Silver badge

                Re: Reasonable Doubt

                "At which point he is arrested under this act and the trial restarted with a new Jury."

                Well that section doesn't say you can't mention that section in public. He doesn't have to say which specific bits of evidence have been tampered, he just needs to highlight that it could allow evidence to be created.

                "1. The lawyer needs to be brave enough to do it.

                2. He needs to provide at least some ground for the doubt that the evidence is doctored.

                Otherwise it will fall on deaf ears."

                1 - It's the duty of the lawyer to uphold the law. It's akin to a doctor making the oath to "do no harm"

                2 - That's easy enough. Prosecution says X was Googling "how to make an atomic bomb" on Tuesday 25th November 2016. Defence says well X was Googling "how to make an atomic bomb by U2" on that day.

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Reasonable Doubt

                  'It's the duty of the lawyer to uphold the law. It's akin to a doctor making the oath to "do no harm"'

                  Taking an oath and doing no harm are not the same thing. Indeed, between them there is a great gulf fixed.

                  http://www.ourcivilisation.com/medicine/usamed/deaths.htm

                  Oddly enough, I was unable quickly to find any corresponding figures for the UK. Not that ours is a secretive country or anything like that - perish the thought.

                  1. wolfetone Silver badge

                    Re: Reasonable Doubt

                    "Taking an oath and doing no harm are not the same thing. Indeed, between them there is a great gulf fixed."

                    Well I don't know specifcally, but I do know that a solicitor/lawyer has to uphold the law. If they don't then they're struck off.

                    Well, those silly enough to get caught are.

                2. Kiwi

                  Re: Reasonable Doubt

                  1 - It's the duty of the lawyer to uphold the law. It's akin to a doctor making the oath to "do no harm"

                  Aye, it may be their duty. But, especially if you're one of the poorer people in society, finding one who will research and present everything can be a very different matter.

                  1. wolfetone Silver badge

                    Re: Reasonable Doubt

                    Just need to add something to this.

                    My fiancee is a lawyer, and I started to speak to her about this and she immediately said "That's not my area of law" - which is fair enough. I showed her the section in the article anyway, and she said it wouldn't stand up in court due to another legal precedent (I can't recall the name of the case). But I outlined the grander scope of the act and how it prevents a fair trial from occuring and that the state wouldn't actually have to state the source of the evidence and she hit me with this humdinger - "What? That can't be right. That can't be the law. Why hasn't it been on the news?"

                    Welcome to 2016 everyone, where even the solicitors are hoodwinked.

              2. rh587

                Re: Reasonable Doubt

                Your defence lawyer stands up, does his thing and references the act

                At which point he is arrested under this act and the trial restarted with a new Jury.

                I think this is where the lawyer asks the witness/defendant a question which does not necessarily adduce or imply interception activities, but which requires them to give an awkward answer - such as "I cannot answer that without committing an offence".

                If the judge were a sensible type who was as cynical of this legislation as the rest of us (and they do exist - see the judge in the ABC trial who threw the whole case out because the security services were playing silly buggers), they might then require that the question be answered honestly and without perjury. The witness would then be faced with a quandry - commit perjury and be in contempt of court (by refusing to comply with the court's demand), or commit an offence under the IPA.

                I would suggest that many courts would be unwilling to convict someone of an offence under the IPA when they were compelled to make that disclosure by order of the court in the first instance.

                It would require a carefully worded approach and a sufficiently inclined judge to make it a court matter, but a smart barrister should be able to come up with something.

                If you had a sympathetic MP they could also use parliamentary privilege to ask about the case in Parliament, and the lawyer might be able to then ask a witness about that public domain statement. I'm sure there are clever ways to "launder" the question - if the NSA can launder intelligence, barristers can launder questions!

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Reasonable Doubt

                  When such a situation arises, the judge will halt the trial, send out the jury, and give advice (e.g. a bollocking) to the defense counsel. Upon resumption of the trial, the jury will be instructed that for legal reasons it should disregard the last question and any implications it might have raised, and the defense counsel will apologise for his inexperience by asking such a question and move onto another topic.

              3. Anonymous Coward
                Anonymous Coward

                Re: Reasonable Doubt

                Wouldn't it be a lot simpler if they just took you directly to a cellar and shot you in the back of the head? Think of all the time and money that would be saved. And - if anyone thinks that matters - it would be a lot more honestst.

              4. Doctor Syntax Silver badge

                Re: Reasonable Doubt

                "At which point he is arrested under this act"

                Actually the prosecution would object, the jury would be ushered out of court and there'd be a legal argument culminating in the question not being allowed. Then the jury would be brought back in. A persistent defence barrister might well be able to try to put the question a number of times until such time as the jury worked out that there was something fishy going on.

                A repeated blocking of defence questions might well be the basis for appeal, maybe as far as the ECHR (no, this is not affected by Brexit).

                Another tack might be to get a copy of the relevant bit of the Act introduced as evidence.

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Reasonable Doubt

                  "Another tack might be to get a copy of the relevant bit of the Act introduced as evidence."

                  I like that idea. Also how about "Could the counsel for the prosecution please provide the defence, under oath, with confirmation that no witnesses will give any testimony that the prosecution does not know to be true". Then if anything is untrue, prosecutor has committed perjury.....

            2. Voland's right hand Silver badge

              Re: Reasonable Doubt

              Your defence lawyer stands up, does his thing and references the act in which you're being brought to court over and highlights the fact that it allows the prosecution to doctor evidence

              1. The lawyer needs to be brave enough to do it.

              2. He needs to provide at least some ground for the doubt that the evidence is doctored.

              Otherwise it will fall on deaf ears.

              As I said earlier - presently the sole safeguard here is the HRA and ECHR Article 6 "Right to Fair Trial". You can immediately refer any case with the smallest suspicion that the evidence is doctored up and get UK deep-sixed on that (off-topic, funny, how the numbers coincide). The chance of UK winning any case on this is nil - all other 46 signatories have in one form or the other "Fruit of the Poison Tree" doctrine on their statutes, the idea that it does not constitute a key part of "fair trial" will be considered preposterous.

              That, unfortunately will not last as May withdraws from the ECHR EXACTLY BECAUSE OF THIS SAFEGUARD.

              1. Anonymous Coward
                Anonymous Coward

                Re: Reasonable Doubt

                its going to be very hard for May to withdraw us from the ECHR like many have said before and they been trying to do it for 10 years but have failed so far, withdrawing is much harder then you think

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Reasonable Doubt

                  So true ... they have been making up laws to protect a few who have committed demonic and inhuman crimes over the last few years. Allowing the arm of the law to lie is not justice.

                  1. Kiwi
                    Black Helicopters

                    Re: Reasonable Doubt

                    So true ... they have been making up laws to protect a few who have committed demonic and inhuman crimes over the last few years. Allowing the arm of the law to lie is not justice.

                    It's amazing how tolerant the NZ people are over this stuff. Cops or other PTB commit crimes? That's OK, government will rush through a law change "under urgency" to make it all nice and legal.

                    Prisoners held for longer than their sentences, and seeking compensation? That's ok, under urgency those laws are altered - now if the prison's dept screw up and keep someone inside for a few months longer than their sentence, well that's just tough.

                    People found to be innocent after many years in prison? No worries, another law change to make sure they can't be compensated.

                    Some stuff going to trial will show some very bad behaviour on the part of the government? No worries, a quick change of law will prevent that..

                    And people wonder why shonky cut and ran so suddenly last week. Many think he was about to experience "your sins will find you out". Course, he no doubt spent some time making sure whatever crimes he committed no longer are.

            3. Dan 55 Silver badge
              Flame

              Re: Reasonable Doubt

              Accused of hacking a bank? Possibly a bit of extra evidence just to help the case along. But anyone the establishment sees as a threat will be accused of kiddy fiddling and we all know it. *

              I hope nobody's pinning their hopes on prosecution witnesses stumbling at the "do you swear you're telling the truth, the whole truth, and nothing but the truth" bit.

              * Unless it's themselves in which case the inquiry collapses into a farce. Allegedly.

              1. Anonymous Coward
                Anonymous Coward

                Re: the inquiry collapses into a farce.

                I'll tell you what's a farce.

                A farce is organising a police inquiry into the private activities of a man who had round the clock Special Branch surveillance while he was a prime minister (as all prime ministers do), and who also continued to have 24x7 surveillance *afterwards* as well (which only applies to a few ex-PMs).

                I personally don't know whether Heath got up to anything dodgy or not, but I do know that the security services already know what Heath got up to.

                Wtf?

                1. tiggity Silver badge

                  Re: the inquiry collapses into a farce.

                  Given that we know the security services wanted rid of Wilson / Labour government (I still have my copy of Spycatcher describing that), then if anything dubious had been done by Heath in the 70's it would not have been in security services interest for it to be revealed at the time. It would have been even less in their interest for any dubious behavior to be revealed afterwards as would implicate security services in concealing crime to subvert UK democracy.

                  Caveat I have no idea if Heath rumours are fantasy or have any basis in reality and I'm making no inference, just pointing out why, IF anything untoward had happened why we would not hear about it.

            4. Arthur Daily

              Re: Reasonable Doubt

              Kim Dot Com appears to have this problem in NZ.

              A poisoned Forrest of illegally obtained evidence if being accepted. Add to that fabricated charges that do not exist in NZ. Like in Rainbow Warrior, maybe deals struck on a wink and nod

        2. Danny 2

          The principle of jury nullification basically means a jury decides what is legal, not a judge. A jury can refuse to convict even when told they have to - although nobody will tell a jury this.

          1. Adam 52 Silver badge

            Don't believe it. Juries, in general, do what they're told. And Judges have become more militant in convicting jurors for contempt. You are much more likely to get a judge that believes in fair trials than a jury

            Clive Ponting was 30 years ago and a rare example.

            That's assuming you even get a jury, of course, with the gradual removal of jury trials.

            1. Danny 2

              @Adam This is from US law but it still stems from the Magna Carta -

              Jury Myths and Misconceptions: Can Jurors Be Punished for Jury Nullification Verdicts?

              Each and every one of you has the mettle and moral fiber necessary to claim this power as your own and to wield it for your highest purpose when serving on a jury: upholding justice, including upholding it above law when the two are in conflict. Do not be deterred by people invoking the chimera of punishment for acting in good conscience and doing what is right.

              1. Fred Flintstone Gold badge

                Each and every one of you has the mettle and moral fiber necessary to claim this power as your own and to wield it for your highest purpose when serving on a jury: upholding justice, including upholding it above law when the two are in conflict. Do not be deterred by people invoking the chimera of punishment for acting in good conscience and doing what is right.

                Excellent reference - thanks for that.

            2. Chloe Cresswell Silver badge

              Fair trials

              I wish I could explain my view on this, but it's from experiance, but yes.

              I'd take the Judge over jury on believing in fair trial.

            3. Anonymous Coward
              Anonymous Coward

              That's assuming you even get a jury, of course, with the gradual removal of jury trials.

              Yeah, thanks for that Chris Grayling.

              More British "justice".

              Still how hard can it be to get the trains to run on time in a fascist dictatorship?

              1. Anonymous Coward
                Anonymous Coward

                Re: That's assuming you even get a jury, of course, with the gradual removal of jury trials.

                "Still how hard can it be to get the trains to run on time in a fascist dictatorship?"

                Very, if Southern are involved. Even Mussolini would struggle with them, and he famously managed to get the one train to run on time.

          2. Anonymous Coward
            Anonymous Coward

            A jury can refuse to convict

            see: https://en.wikipedia.org/wiki/John_Lilburne

          3. Ilmarinen
            Unhappy

            jury nullification

            Jury nullification, as in the Clive Pontin trial, only works when the jury is aware of the evidence.

            If the Crown is "making stuff up" and there is no possibility of evidence to the contrary the defendant is doomed.

            And, if there is no chance of being caught out in making stuff up, why should they not do so, especially if the aim is to get a "bad-un" locked up?

            1. Danny 2

              Re: jury nullification

              I read that when Russia ended serfdom then the peasants refused to convict anyone accused by the corrupt courts, but would then lynch the released prisoners they knew were bad. I'm not suggesting that.

              If nothing else then if you want excused from jury duty then just wear a T Shirt saying 'jury nullification' on the first day. Mind you, a year ago I was thrown out a trial for 'wearing my jacket disrespectfully', and I was the accused.

              1. Suricou Raven

                Re: jury nullification

                Jury nullification has a very dubious history, which is why many judges and state authorities go to some lengths to make sure the juries do not believe they have that option.

                Yes, it has been used to allow some people to escape malicious prosecution or unfair trials.

                But a lot of white men also got away with crimes against blacks because the jury of their peers refused to convict.

      2. macjules
        FAIL

        And speaking of a load of bollocks, MPs are exempted from the bill, http://www.techeye.net/news/uk-politicians-exempt-themselves-from-ripa

        What did one expect?

        1. anonymous boring coward Silver badge

          " MPs are exempted from the bill"

          Some pigs really are more equal than others.

    2. Voland's right hand Silver badge

      Not really.

      The doctrine of a "fruit of a poison tree" exists in one form or another in EVERY developed country in the world. Bar one. Britain.

      So while I can sympathize with the article author, his line of reasoning is a bit off. There is no constitutional or legal issue with obtaining evidence through illegal means and/or failing to disclose the means by which the evidence has been obtained in the UK. UK law allows for this.

      The ONLY partial safeguard on this has been the Human Rights act and the Human Rights convention and the various clauses about rights to privacy and fair trial in it. Not for long though - Teresa May will find a way to tear it and join Lukashenko (she should stop shaving her mustache and trim it to the correct shape - it suits her).

      1. Anonymous Coward
        Anonymous Coward

        its unlikely she will find a way to tear up the Human Rights act anytime soon, you should read this and it tells you how hard it will be

        http://jackofkent.com/2015/05/the-seven-hurdles-for-repeal-of-the-human-rights-act/

        this is why they have failed so far and will fail in the future

        and many of her own MPs are for the Human Rights act and the Human Rights convention

        1. Brewster's Angle Grinder Silver badge

          "...its unlikely she will find a way to tear up the Human Rights act anytime soon, you should read this and it tells you how hard it will be..."

          These hurdles are exactly the hurdles Brexit has to jump. So the Human Rights Acts could tag along like a legislative remora. Whether it would be swept aside or last the distance to get royal ascent from William V is another matter.

          1. Anonymous Coward
            Anonymous Coward

            maybe but looking at a lot of things it seems Brexit may not happen too (its a mess as it is and Gov has not plan) but that a whole other story so let wait and see...

            1. Alan Brown Silver badge

              "It seems Brexit may not happen"

              Seems??

              Given who Comrade Theresa has put in charge of making it happen, it's pretty much a certainty. This has been setup to fail from the outset.

              From a political point of view she must be seen to say that brexit is certain and happening until the moment she declares "we tried our hardest and it's just not possible". Exit the political careers of the 3 clowns and she comes up smelling of roses.

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