Once the devices had been disposed of, the concern for those using the devices was then whether the material obtained would be admissible in criminal proceedings. Historically, the position in England and Wales was that intercept material (usually evidence from phone tapping) was not admissible as evidence, although it could be lawfully obtained for intelligence purposes. Stored data however (for example, a phone download of stored data) is permissible. The issue of admissibility came before the Court of Appeal in the case of R v A, B, D and C [2021] EWCA Crim 128 earlier this year. The relevant legislation is section 56 of the Investigatory Powers Act 2016, which states, in broad terms, that material is not admissible if it can be inferred or suggested that it originated from ‘interception-related conduct’.
However, section 56, under Schedule 3(2)(1)(a), ‘does not prohibit disclosure of the content of any communication, or any secondary data obtained from a communication, if the interception of that communication was lawful by virtue of: (a) sections 6(1)(c) and 44 to 52.’
Section 6(1)(c)(i) provides that there is lawful authority to carry out an interception if, ‘in the case of communication stored in or by a telecommunication system’, the interception is carried out in accordance with a targeted equipment interference warrant under Part 5 or a bulk equipment interference warrant under Chapter 3 of Part 6.
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