Schofield, R (On the Application Of) v Secretary Of State For The Home Department

A statutory prohibition on using intercept material as evidence in criminal proceedings was not incompatible with Articles 2 or 6 of the ECHR. Article 2 requires an effective investigation capable of establishing responsibility and, where justified, securing criminal penalties, but it does not prescribe particular rules of evidence or require the admission of intercept material. Article 6 does not permit the consequences of removing the statutory bar to be assessed on the assumption that existing retention and disclosure practices would remain unchanged. If intercept evidence became admissible for the prosecution, fairness would require consideration of wider unused material, creating a different equality-of-arms framework. Whether to alter the longstanding statutory scheme, after detailed policy reviews, was principally a matter for Parliament. No declaration of incompatibility was made.

The claimant sought judicial review of the statutory bar on the admissibility of intercept evidence in criminal proceedings. The bar was contained in section 56 of, and Schedule 3 to, the Investigatory Powers Act 2016. The claim arose from the discontinuance of criminal proceedings following the fatal shooting of the claimant’s son by a police officer and the inability to deploy sensitive material. The claimant argued that the bar was incompatible with the procedural obligation under Article 2 of the ECHR and that the Government’s 2014 review had misunderstood Article 6. The central questions were whether the legislation itself was incompatible with Convention rights and whether the court should make a declaration under section 4 of the Human Rights Act 1998.

1. Claim dismissed. The court held that section 4 of the Human Rights Act 1998 required examination of whether the primary legislation enacted by Parliament was compatible with Convention rights. It did not require an investigation into errors allegedly made during the governmental process leading to enactment. The criticism of the 2014 review therefore could not itself justify a declaration of incompatibility.
2. Article 2 imposes a procedural obligation to conduct an effective official investigation into deaths resulting from state force. The investigation must be capable of determining whether the force was justified and identifying and punishing those responsible where that is justified by the findings. It is an obligation of means, not of result. The Strasbourg authorities did not establish that Article 2 requires the removal or modification of a statutory rule excluding intercept evidence. Rules of evidence remain primarily for national legal systems and fall within the State’s margin of appreciation.
3. The court rejected the Article 6 argument. The compatibility of the present bar cannot be assessed on the assumption that Article 6 obligations would remain unchanged if the prosecution were allowed to rely on intercept evidence. The existing equality of arms is supported by the fact that neither side may adduce such evidence. Removing the bar would create a new situation in which the prosecution could rely on selected intercept material, requiring substantially greater retention and disclosure of potentially exculpatory material to preserve fairness. The relevant test is materiality, rather than admissibility.
4. The court considered that the longstanding statutory scheme had been maintained after numerous detailed reviews addressing operational effectiveness, disclosure, national security, cost and the risk of compromising intelligence capabilities. Applying the caution against domestic courts forging ahead beyond Strasbourg authority, and the institutional and democratic reasons for respecting Parliament’s legislative choice, the court found no incompatibility with the Convention rights. The claim was dismissed.