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IP Act "Enshrines Parallel Construction in English Law"

IP Act "Enshrines Parallel Construction in English Law"

The provisions and requirements of the new Investigatory Powers Act impact heavily on the tech and IT sectors, and so it is unsurprising that the tech press have covered the subject in considerably more detail - and with considerably more gusto - than has the mainstream media. One such report, published by tech-news website The Register, concerns itself with section 56 of the Act as passed, and voices deep concerns over the section's impact on the fairness of trials.

The exact wording of section 56(1) is as follows:

56. Exclusion of matters from legal proceedings etc.

  1. No evidence may be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings or Inquiries Act proceedings which (in any manner)—
    1. discloses, in circumstances from which its origin in interception-related conduct may be inferred—
      1. any content of an intercepted communication, or
      2. any secondary data obtained from a communication, or
    2. tends to suggest that any interception-related conduct has or may have occurred or may be going to occur.

The Register alleges that the above amounts to enshrining in English law the concept of parallel construction - a practice whereby prosecutors build a parallel - or separate - evidentiary basis for a criminal prosecution, and present this false parallel case in court in order to conceal how the investigation actually began.

The Register goes on to argue that in cases where section 56 is invoked, even if a defendant and their legal team are aware that a story being told in court is false they may now be banned from being able to question those falsehoods and cast doubt upon the prosecution story. The Register sums this up by saying the Act allows the State to tell lies in court.

If The Register's reading of the Act is accurate then the implications of section 56 will cast a deep shadow of doubt across the outcome of many cases.