GS & Ors, R. v

An approved authorisation for intrusive surveillance under Regulation of Investigatory Powers Act 2000, read with the ouster in section 91(10) of the Police Act 1997, is conclusive of the surveillance's lawfulness. A criminal court must not reopen the authorisation process by examining the underlying material.

Admissibility remains a separate question under section 78 of Police and Criminal Evidence Act 1984. Illegality alone will rarely make admission unfair, and section 78 cannot be used to challenge lawfulness indirectly. Disclosure remains governed by the ordinary statutory test. A defendant is not entitled to broad disclosure in the hope of finding a basis for exclusion; judicial inspection is exceptional and confined to genuine borderline cases.

Nine defendants facing trial at Bournemouth Crown Court for conspiracy to supply Class A and Class B/C drugs challenged the proposed use of covert recordings obtained through intrusive surveillance at three defendants' homes.

At a preparatory hearing, Judge Jarvis held that the Surveillance Commissioners' signed approvals established the lawfulness of the surveillance. He declined to order disclosure of the applications, authorisations and underlying material, and declined to inspect it himself. The defendants appealed under section 35(1) of the Criminal Procedure and Investigations Act 1996.

The central issue was whether a trial judge deciding admissibility under section 78 of Police and Criminal Evidence Act 1984 could look behind approved intrusive-surveillance authorisations, and whether the defence was entitled to the material underlying them.

1. The appeals were dismissed. The court held that the statutory scheme in Part II of the Regulation of Investigatory Powers Act 2000 provides rigorous, independent scrutiny of intrusive-surveillance authorisations. Section 91(10) of the Police Act 1997, as applied to that scheme, prevents a criminal court from questioning an approved authorisation's lawfulness.

2. Section 27(1) of the 2000 Act, which makes authorised conduct lawful for all purposes, confirms that the ouster applies in criminal proceedings as well as civil proceedings. The criminal court must not inspect the underlying material to decide whether the statutory criteria for the authorisation were met. The court approved the approach taken in R v C-D (22 December 2004).

3. Lawfulness and admissibility remain distinct. Following the reasoning in R v SL & Ors [2001] EWCA Crim 1829 and R v Hardy & Hardy [2002] EWCA Crim 3012, the statutory regimes regulate lawfulness rather than admissibility. Section 78 of Police and Criminal Evidence Act 1984 remains available where trial fairness genuinely arises, but unlawfully obtained evidence is not for that reason alone unfair to admit. Any residual section 78 role is narrow and cannot be founded on an inquiry into the lawfulness of an approved authorisation.

4. The disclosure issue was governed by R v H & C [2004] 2 A.C. 134. Prosecuting counsel must apply the ordinary test for unused material. General allegations and a request for disclosure in the hope that something useful may emerge do not require disclosure or judicial inspection. This was neither a borderline nor an exceptional case, since the defendants identified no clear and cogent basis for a section 78 application.

5. The signed approval forms were sufficient proof that the surveillance had been lawfully authorised. Evidence from the authorising chief officer would also have sufficed if challenged. The judge correctly refused disclosure of, and declined himself to inspect, the underlying material.

• Court of Appeal (Criminal Division) — dismissed the defendants' interlocutory appeals: [2005] EWCA Crim 887.
• Crown Court at Bournemouth — at a preparatory hearing, Judge Jarvis held that the Surveillance Commissioners' approvals established lawful intrusive surveillance and refused disclosure of the underlying authorisation material.