Tuesday, December 6, 2016

The Snoopers' Charter allows the state to lie in court


I've already written articles explaining that Theresa May's Snoopers' Charter (Investigative Powers Act) is the most draconian state surveillance legislation ever introduced in the developed world.

I've already pointed out that the Snoopers' Charter will create vast hackable data dumps containing the private Internet browsing information of millions of UK residents and British companies.

I've already pointed out that the Snoopers' Charter will allow all kinds on non-terrorism related organisations (from the Food Standards Agency to the Gambling Commission) to access to these massive data dumps of people's private information.

I've already pointed out the staggering levels of gullibility and searing hypocrisy of people who actively support Theresa May's draconian and invasive spy regime.

Now it turns out that the Snoopers' Charter has enshrined Parallel Construction into UK law, which means that agents of the state will be allowed to tell lies in court in order to secure convictions, and furthermore it bans anyone from questioning those lies.

The relevant part of the Investigatory Powers Act is Section 56. The section is written in the usual kind of impenetrable language used in government legislation. I'm going to spell out in simple English what section 56 legislates. If you want to cross-reference my layman's explanation with the actual wording of the act, click the green link above.

  • 56 (1) In British courtrooms and Inquiries it is now forbidden to make disclosures that would 
(a) reveal that evidence was obtained by electronic spying (snooping).
(b) suggest that electronic spying (snooping) has ever been going on, may have been going on, or may go on in the future.
  • 56 (2) Details all of the actions that are defined as electronic spying ("Interception-related content")
  • 56 (3) A list of people who people who are able to act as electronic spies (snoopers), which includes police chiefs, spy chiefs, the head of HMRC, the head of the defence staff, the heads of non-British agencies with whom the British government is sharing information, any person holding office under the crown, anyone working for the police, anyone working for HMRC, anyone working for a postal service, anyone working for a telecommunications provider, anyone working as a subcontractor for a postal service or telecommunications company.
  • 56 (4) Retroactive clauses to prevent the prosecution of people who were doing this kind of electronic spying unlawfully before the Snoopers' Charter became law in November 2016.
Section 56 of the Snoopers' Charter is really alarming stuff because it creates a legal obligation on prosecutors to lie in court about how their surveillance-related evidence was obtained, and it also prevents defence lawyers from presenting proof that evidence was obtained by spying, or even suggesting that the evidence might have been obtained by spying.

Some people have tried to suggest that this legislation weakens the prosecution position by creating doubts over whether they are telling the truth or not, but any defence lawyer who ever tried to even point out the section 56 legislation that obligates the prosecution to lie in court about the sources of their evidence would be in breech of section 56 (1) (b) for suggesting that spying could have been going on.

Aside from the Snoopers' Charter creating legal obligations for witnesses to lie in court, and gagging defence lawyers, section 56 is also deeply concerning because of the retroactive clauses.

The Edward Snowden leaks made it absolutely clear that the UK surveillance state was behaving in a criminal manner by ignoring the law and acting without any parliamentary oversight. Section 56 (4) absolves the secret services of their criminal activity by backdating the Snoopers' Charter to decades before it was actually brought into law.

Section 56 is an effort to make it impossible for anyone to ever question the conduct of British spy agencies again. And by "spy agencies" I mean anyone from the head of MI5 to employees of the Food Standards Agency.

As Gareth Corfield of The Register points out, the introduction of the Snoopers' Charter means that "Theresa May and the British government have utterly defeated advocates of privacy and security, completely ignoring those who correctly identify the zero-sum game between freedom and security in favour of those who feel the need to destroy liberty in order to 'save' it" and that "the UK is now a measurably less free country in terms of technological security, permitted speech and ability to resist abuses of power and position by agents of the State".

NOTE: This article was heavily influenced by Gareth Corfield's article on The Register. I have linked to it several times in the text of the article, but here's another link to it, just in case.


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