Julian Milford QC and Daniel Isenberg act in root-and-branch challenge to non-admissibility of intercept evidence


In R (Schofield) v Secretary of State for the Home Department [2021] EWHC 902 (Admin) the Divisional Court (Singh LJ and Julian Knowles J) dismissed a root-and-branch challenge to the compatibility of the UK’s statutory ban on the admissibility of ‘intercept evidence’ in the majority of legal proceedings.

The claim arose from the inquiry following the police shooting of Anthony Grainger, following which the CPS brought a prosecution of the Chief Constable of Greater Manchester Police.  The trial collapsed after the prosecution was required to produce certain sensitive material to the defence, which it could not do.  This judicial review claim proceeded on the hypothesis that the sensitive material at issue in the prosecution was evidence obtained through telephone interception.  The disclosure and adduction of such evidence is subject to a statutory bar going back to 1985, currently reflected in s. 56 of and Schedule 3 to the Investigatory Powers Act 2016.

The Claimant (the mother of Anthony Grainger) sought a declaration from the Court that the statutory bar, being blanket in nature, was incompatible with Article 2 of the European Convention on Human Rights, because it had impeded the prosecution of a state agent with potential (alleged) responsibility for her son’s death.  She contended that, as such, the statutory bar was breached the procedural obligations under Article 2.

The question of ‘intercept as evidence’ has been the subject of eight reviews since 1993, none of which found there to be a means of admitting intercept evidence that was consistent with both the UK’s legal obligations (including common law fairness and fair trial rights under Article 6) and nine ‘operational requirements’ which had been identified as necessary to for interception to function effectively as a law enforcement and intelligence-gathering tool.

The Claimant’s challenge had two core elements: first, that the previous reviews, in particular the most recent review of 2014, had relied upon an erroneous understanding of the requirements of Article 6, which undermined the report’s subsequent conclusions; and secondly, that the ban, itself was not consistent with Article 2.

The Court rejected both elements of the challenge.

On Article 6, the Divisional Court pointed out that the reason why the Strasbourg Court had upheld the statutory bar on Article 6 grounds was because it prevented both parties from relying on intercept material, thus respecting the equality of arms.  It is because the prosecution is not entitled to rely on that material that it is not required to retain all collected material as ‘unused material’.  Were the bar lifted, it could not be assumed that what Article 6 requires would remain the same, and it would likely distort the position in favour of the prosecution (based on current practice).

On Article 2 it was common ground that its procedural obligations go beyond the stage of initial investigation to any proceedings which are instituted as a result; as well as the fact that the obligation is one of ‘means, not result’.  The Claimant was not able to show the Court any Strasbourg authorities which held that Article 2 required the modification or removal of the statutory ban.  Rather, it was not the case that the UK “has been prepared to stand by and see possible violations of Article 2 by the state go unpunished”.  Although the bar was in place, it did not demonstrate to state agents that killings could occur with immunity; in fact, the numerous detailed and considered reviews into the issue showed the contrary.  As such, the UK’s position as reflected in primary legislation was not incompatible with Article 2.

Julian Milford QC and Daniel Isenberg acted for the Home Secretary.