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United Kingdom Government Privacy The Internet

Does The 'Snoopers Charter' Also Enshrine Lying In Court? (theregister.co.uk) 123

The U.K.'s newly-based Investigatory Powers Act (the Snoopers' Charter) "allows the State to tell lies in court," according to The Register, saying it enshrines into law "the practice where prosecutors lie about the origins of evidence to judges and juries." Jigsy shares their report: The operation of the oversight and accountability mechanisms...are all kept firmly out of sight -- and, so its authors hope, out of mind -- of the public. It is up to the State to volunteer the truth to its victims if the State thinks it has abused its secret powers. "Marking your own homework" is a phrase which does not fully capture this...

Section 56(1)(b) creates a legally guaranteed ability -- nay, duty -- to lie about even the potential for State hacking to take place, and to tell juries a wholly fictitious story about the true origins of hacked material used against defendants in order to secure criminal convictions. This is incredibly dangerous. Even if you know that the story being told in court is false, you and your legal representatives are now banned from being able to question those falsehoods and cast doubt upon the prosecution story. Potentially, you could be legally bound to go along with lies told in court about your communications -- lies told by people whose sole task is to weave a story that will get you sent to prison or fined thousands of pounds.

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Does The 'Snoopers Charter' Also Enshrine Lying In Court?

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  • by Anonymous Coward on Sunday December 11, 2016 @09:42AM (#53462881)

    Courts are suppose to get to the TRUTH of the matter and decide what to do based on TRUTH. What's the point of having a court where the government is allowed to lie, expected to lie, and the people being lied about are required to act like the law is the truth?

    • by amiga3D ( 567632 ) on Sunday December 11, 2016 @10:02AM (#53462977)

      Supposedly (playing devil's advocate) they are telling the truth about the evidence. They are not allowed to lie about what the evidence is, only how it was obtained. Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue. There has been more than one trial in the US where officers found a murder weapon or other evidence to convict a person of murder and then the conviction is overturned, not because the evidence was wrong but the officers didn't have the right paperwork. The reasoning behind this was the protection of the 4th Amendment was more important than a few murder convictions. They've been chafing against this limitation in the law for decades. Here in the US under the UnPatriotic Act we now have secret warrants. Supposedly they have a warrant but no one can see it. Imagine that in a free society. May God damn everyone who voted for the UnPatriotic Act. The foundations of the Republic are more important than thousands of deaths. Tearing down freedom will result in Millions of deaths.

      • by deadwill69 ( 1683700 ) on Sunday December 11, 2016 @10:32AM (#53463097)

        If you can't be bothered to follow the few evidentiary rules we have, present a truthful case, with being truthful about how you got said evidence for the case, then how can I be bothered to believe that the evidence itself is true? Take your word for it?

        I do mostly agree with your take on this. Just responding to the question.

        • Here is the problem, it is VERY simple.

          Say they used remote snooping to collect the evidence, and they therefore his that.
          They may claim they physically accessed the computer during a later legal raid (made legal by that evidence) and collected this evidence, however
          perhaps when they did that they found nothing - but they are now entited to pretend they did.

          Now, here is the problem. What if their remote collection ended up on the wrong network/computer (perhaps via wifi the neighbours, who were the real cul

      • by SirAstral ( 1349985 ) on Sunday December 11, 2016 @10:56AM (#53463191)

        " Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue."

        Unfortunately far to many people believe in this line of garbage.

        In a basic logic test any information withheld, even if by omission makes evidence untrue. The act of obtaining something illegally creates vice and calls into question the motivations surrounding the evidence collection process.

        The very act of suppressing any part of the evidence, the process in which the evidence was gathered and people responsible for gathering that evidence makes the evidence corrupt. It will not possible to find out if someone that hates you was part of the process. It will not be possible to discover if any corruption is also holding back exculpatory evidence in the process. It will not be possible to examine for just plain honest mistakes, bugs, miscalculations, or just plain laziness in the evidence gathering or reporting process.

        The "Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue." crowd has put a lot of innocent people in jail. I know you said you were just playing devils advocate but you brought up a serious issue that plagues that human mind and the Justice system very extensively!

        • by Kjella ( 173770 )

          In a basic logic test any information withheld, even if by omission makes evidence untrue. The act of obtaining something illegally creates vice and calls into question the motivations surrounding the evidence collection process.

          No, a basic logic test says that the presence or absence of evidence and how or why it was gathered doesn't change the truth. It could certainly call into question the validity of the evidence, but often it's just the foot in the door or it is no more questionable than say the motives of a witness. If somebody finds a kidnapping victim chained in my basement, it doesn't matter if it is a reasonable or unreasonable search, warrant or no warrant, police or a burglar or an electrician I legally permitted entry

          • How do we know the spies are truthfully spying on us, and reporting all relevant information in a timely manner, even if it is against their interests?
        • The "Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue." crowd has put a lot of innocent people in jail.

          How it's obtained and what it is are two independent things and you're conflating them.

          As are whether it's true and whether it is (or should be) admissible.

      • They are not allowed to lie about what the evidence is, only how it was obtained. Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue.

        Right. It only means that someone's basic rights have been violated, and that's why the rules of evidence typically demand that any evidence gathered illegally by law enforcement be thrown out, so as to discourage breaking of the law by those who are meant to enforce it. Basic logic demands that any evidence for which a proper chain cannot be demonstrated be assumed to have been gathered illegally and discarded on the same basis.

        Here in the US under the UnPatriotic Act we now have secret warrants. Supposedly they have a warrant but no one can see it. Imagine that in a free society.

        I'm still trying to imagine a free society. My imagination won't permit it with

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue.

        Without knowing the chain of evidence, it's difficult to impossible to prove whether the evidence is true or not. The planting of evidence happens more often than it should (i.e., never).

        It sounds almost like this law is designed to discredit political opponents. State actors keep a trove of electronic child pornography material and bring cases against anyone those in power do not like. The child pornography itself is real, but since it's now illegal to question where it came from, the defense cannot dis

      • Just because evidence was obtained by illegal means such as a search without a warrant doesn't mean that the evidence is untrue. There has been more than one trial in the US where officers found a murder weapon or other evidence to convict a person of murder and then the conviction is overturned, not because the evidence was wrong but the officers didn't have the right paperwork.

        The idea that illegally obtained evidence should not be valid is a dishonour of justice. Breaking the law to obtain it is not ri

      • by AHuxley ( 892839 )
        The UK mil could not trust its own police, court workers, the media or university experts.
        The UK gov wanted to keep the GCHQ's decryption ability away from academics, the media, police/courts who sold information to interesting people.
        Few details about the ability to track Irish groups of interest down to one person, breaking up any value in a cell structure was going to be make it to court.
        The use of teams of cars, trucks, vans, helicopters, satellite, total access to every part of Irelands telco syste
    • by raymorris ( 2726007 ) on Sunday December 11, 2016 @11:27AM (#53463307) Journal

      The law actually says they're not allowed to talk about anything they found by spying, or any spying methods. Nowhere does it give them permission to lie about any of it. Obviously some people will lie, but this law doesn't actually permit them to do so.

      The first part of the law, saying they can't use the content of any conversation they've snooped on in court, has good and bad consequences, but I think that part is good overall because spying, which by it's nature must be sneaky, should be kept seperate from law enforcement, which should be as transparent as practicable. This is one way the US screwed up after 9-11, IMHO.

      Prior to 9-11 in the US, the FBI and other law enforcement handled criminal matters, and were required by law to get search warrants, etc. The CIA and other spies were allowed to do things that police weren't allowed to do, BUT they weren't allowed to use that information in a criminal case or give the information to the FBI. So the intelligence agencies could spy on North Korean agents, and the FBI would investigate drug dealers, each working under rules appropriate* for their job. After 9-11, at was determined that it would be more effective if the CIA/NSA and FBI and other agencies cooperated more, sharing information. Maybe it's more effective in some ways, but it has meant that the NSA has become involved in simple criminal investigations of citizens. That's bad. The spy stuff should be reserved for national security stuff, IMHO.

      * Obviously there can be, and has been, much debate about what's appropriate, but clearly what's appropriate for national security intelligence operations may be different than what's appropriate for domestic criminal investigations.

      • "The law actually says they're not allowed to talk about anything they found by spying, or any spying methods. Nowhere does it give them permission to lie about any of it."

        If you are allowed to submit "unverifiable" or what I call inscrutable evidence then it is every bit a legal permission to lie. If the process or method that created it was untrue or contained lies in its motivations then yes... it is in fact "carte blanche" permission to lie to the court.

        If you cannot figure out how fast or often people

        • > If you are allowed to submit "unverifiable" or what I call inscrutable evidence

          This law says they are NOT allowed to submit the evidence found by spying. That's an important step, though not sufficient by itself.

          The issue that arises then is if the spies find out about some criminal activity, and tell law enforcement about it, law enforecement might search the house to get admissible evidence. However, if the search is challenged, if the police are asked "why did you search?" - well that's a problem

          • Re: (Score:2, Insightful)

            by Anonymous Coward
            One possible way to handle those very rare instances might be for the intelligence agent to tell the police only "Joe Blow is doing something very bad. You should check him out thoroughly, immediately."

            You've pretty much described "parallel construction".
            • It is similar to parallel construction, but somewhat different (at least for one definition of parallel construction).

              One definition of "parallel construction" would be:
              The intelligence agency provides some specific information to the police.
              The police make up some BS story about how they got that information.
              The police use that information as probable cause for a search.

              There's no ideal solution, of the spies find an ongoing serious crime, but this is an improvement:
              The intelligence agency gives no specifi

        • 'If you are allowed to submit "unverifiable" or what I call inscrutable evidence then it is every bit a legal permission to lie'

          I'm no legal expert, but does this not depend on the rules of corroboration in the relevant jurisdiction? For example, I think in Scotland it wouldn't be enough for a witness to say they heard the accused say something, whether a lie or not. The evidence has to be corroborated in some way before it will be accepted. (I'm not sure if a second lying spy would count as corroboratio
      • Wrong.

        They are not allowed to lie about the content, but they ARE allowed to lie about the source, that is the problem.

        So, they can happily claim that something they thought they found by remote network access on Xs computer (but was actually on Ys computer
        because remote network access is shaky.. perhaps Y was surfing Xs wifi at the time..) will claim to have been physically found on Xs computer.
        Therefore, instead of being able to defend the actual facts by checking the collection method, X is left with no

        • > They are not allowed to lie about the content, but they ARE allowed to lie about the source

          Here's the actual text of the law. Where exactly do you see that? I see that by the plain words of the law they "may not disclose ... any content of an intercepted communication", I don't see any authorization to disclose the content and lie about the source.

          (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 pr

          • I see that by the plain words of the law they "may not disclose ... any content of an intercepted communication", I don't see any authorization to disclose the content and lie about the source.

            You stopped too soon. Read the rest of the text. The key phrases are "discloses, in circumstances from which its origin in interception-related conduct may be inferred ... or tends to suggest that any interception-related conduct has or may have occurred or may be going to occur". As long as they disguise the origin enough to protect their secret spying program they can use the intercepted content however they want. The point of this clause isn't to protect the public from misuse of the intercepted communic

            • > The point of this clause isn't to protect the public from misuse of the intercepted communications, it's to keep the interception program itself out of the public eye.

              Agreed, absolutely. And one way to keep it out of the public eye is to not have it involved in public trials, aka criminal cases. If they can't legally reveal the source of the information amd they can't *legally* lie about the source, than they can't really use the information for criminal prosecution without breaking the law. Hope

              • If they can't legally reveal the source of the information amd they can't *legally* lie about the source, than they can't really use the information for criminal prosecution without breaking the law.

                They'll still use it, after coming up with an alternate explanation for how the information was obtained. They won't even have to lie, exactly—once they use the secret interception to identify their target, they'll go back and perform a public and apparently above-board investigation based on those results (perhaps laundered via an "anonymous tip" from a "concerned citizen"); the results from that investigation are the ones they supply to the court. Of course, the public investigation never would have

    • by gweihir ( 88907 )

      In fascism (and its precursors), "TRUTH" is whatever those in power want it to be. The "snoopers-charter" is just one step in a logical progression that leads to an inevitable catastrophe at the end. Those that want to control and dominate others have no restraint and no ethics.

      • In fascism (and its precursors), "TRUTH" is whatever those in power want it to be.

        But now we're in a post-truth world. Take that, fascism!

    • Comment removed based on user account deletion
  • by Anonymous Coward

    Vaguely reminiscent of The Trial...

  • Solution (Score:4, Informative)

    by BarbaraHudson ( 3785311 ) <barbara.jane.hudsonNO@SPAMicloud.com> on Sunday December 11, 2016 @10:03AM (#53462987) Journal

    So fire your lawyer and state the truth yourself if they're too chicken-shit to oppose a bad law. Insist on a jury trial. Jurors are getting pretty good at the whole jury nullification thing. BTW, it is NOT illegal to tell the jury they can nullify the law - just that judges don't like it and will punish you for it - and their doing so will make the jury distrust the whole legal system.

    Also, appeals courts have set aside convictions based on things like handing out flyers outside of courthouses to let jurors know their right to nullify a law, as well as convictions where no jury is present.

    • So fire your lawyer and state the truth yourself if they're too chicken-shit to oppose a bad law. Insist on a jury trial. Jurors are getting pretty good at the whole jury nullification thing. BTW, it is NOT illegal to tell the jury they can nullify the law - just that judges don't like it and will punish you for it - and their doing so will make the jury distrust the whole legal system.

      What country do you think this is?

    • by AmiMoJo ( 196126 )

      Sadly most juries in the UK are not sophisticated enough to care about stuff like this. There is a general tendency to believe and support the police, even when they break the law to get the person they think did it.

      Worse still, in the case of terrorism the jury might not even see the evidence. It can be shown to the judge in private, not even the accused can see it. The judge is supposed to question it and will then tell the jury something like "there is secret evidence, but I'm satisfied that it's reliabl

    • by AHuxley ( 892839 )
      Re "state the truth"
      The UK fixed all that in the past with the National Technical Assistance Centre, Government Technical Assistance Centre.
      The GCHQ/NSA would trapdoor backdoor crypto and the police would then get the result via court ready "Centre" staff in open or closed court.
      The staff would then be the experts in court and show normal court sanctioned police methods got access to a device, network and a password was logged at some stage.
      Any crypto then failed due to passwords been recorded as past
  • by zenlessyank ( 748553 ) on Sunday December 11, 2016 @10:23AM (#53463063)

    All hail the Lie. And you want me to pledge my allegiance to you. Ha HA HA ha Ha hA

  • by zedaroca ( 3630525 ) on Sunday December 11, 2016 @10:25AM (#53463075)

    Try to trace back when this Brexit thing started. It was some time after Snowden. When the EU started complaining about UK's abuses. They called it interference on national sovereignty. Then they started to push other reasons that would be more appealing to the public.

  • Just target a person and plant child porn on any of their devices (given the hacking capabilities of GCHQ, just about anybody can be targeted), then (legally) lie about this in court - and there you go, that's all you need to imprison pretty much anyone.

    That's one of the most dangerous laws there is.

  • by jader3rd ( 2222716 ) on Sunday December 11, 2016 @11:09AM (#53463241)

    The operation of the oversight and accountability mechanisms...are all kept firmly out of sight

    So there are still oversight and accountability mechanisms? Phew, I was worried there for a second that there wouldn't be. There must be nothing to see here, moving along.

  • Put yourself on a jury and the defense points out the law and argues that everything the prosecution says is false. Prosecution can't readily prove it. And if the prosecution supports its evidence with lies, it could be simpler to disprove them or cast doubt upon them than if they were true. I'd be inclined to acquit in any and all cases. Not sure about U. K. but America is "beyond reasonable doubt" and with foreknowledge that the prosecution can lie, I would never acquit. They could never prove to me be
    • with foreknowledge that the prosecution can lie, I would never acquit. They could never prove to me beyond reasonable doubt that the whole thing was made up. Am I missing something here?

      Yes. It would appear to be a basic knowledge of English.

  • So, what's the point of having a court system, if the truth no longer has meaning under this section of law? Why waste state and taxpayer money if the prosecution can basically manufacture evidence, then lie about where it came from? Just suspend the jury system, you're just wasting their time when one side is allowed, or even required, to lie in order to convict someone.

    Why even have a public system at all? Just have "offenders" picked up by police, secret or not, and then disappear to prison, or simply

    • by AHuxley ( 892839 )
      Re 'picked up by police, secret or not, and then disappear to prison, or simply disappear?"
      The SAS solution was tried in Ireland. It works very well but needs huge support teams and has to be fully hidden from any outside comment.
      The UK gov/mil cant work its way into the closed, isolated, inward looking faith based communities that it now has in so many of its cities the way it could in move around Ireland.
      Mil/undercover police teams would get noticed, confronted in the public street in no go areas. Su
  • Section 56(1)(b) creates a legally guaranteed ability -- nay, duty -- to lie about even the potential for State hacking to take place, and to tell juries a wholly fictitious story about the true origins of hacked material used against defendants in order to secure criminal convictions.

    Doesn't it also say they may not present such evidence in the first place? ("No evidence may be adduced...")

    So how/why would they then be able to/need to lie about where it came from?

  • I'm guessing the courts would rule this law unconstitutional as abusing the separation of government and judiciary, but until someone can figure out how to get that question to the Supreme court, who knows what abuses will take place.

    And if you raised the question of whether it is legal, haven't you already raised the issue itself contrary to the law? I can't imagine any judge accepting this nonsense.

  • Watch it England. This is how you stoke a revolution. Everyone knows it'll be abused. Then abused more and more often until the lid blows off. Now you have a mess. Sometimes people lose their head.

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