CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 août 2011

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De Gaetano, judges, and Lawrence Early, Section Registrar, Having regard to the above applications lodged on 7 November 2006 and and 15 May 2006, Having regard to the observations submitted by the respondent Government, the observations in reply submitted by the applicants and the third party observations of the Equality and Human Rights Commission, Having deliberated, decides as follows: THE FACTS 1.     The applicants, Mr Russell Knaggs (“the first applicant”) and Mr   Ramzy Khachik (“the second applicant”), are British nationals who were born in 1973 and 1957 respectively and are currently being detained in HMP Lowdham Grange, Nottingham. They were represented before the Court by Mr P. Hughman, a solicitor practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton, of the Foreign and Commonwealth Office. A.     The circumstances of the case 1. The applications for surveillance 2 .     On 8 November 2001 an officer in the National Crime Squad applied to conduct directed surveillance (i.e. observation of an individual in public) of the first applicant, Mr Knaggs, and his criminal associates. The application was part of an ongoing investigation into the criminal activities of the first applicant. The application was authorised and directed surveillance commenced, with monthly reviews. 3 .     In a review of the directed surveillance of 17 January 2002, it was noted that surveillance was progressing highly successfully and beneficially in expanding the intelligence base and developing knowledge of Mr   Knaggs’ operation. 4 .     On 8 February 2002 an officer in the National Crime Squad ordered a   feasibility study into the possibility of placing a probe (i.e. a listening device) in a Mitsubishi Shogun vehicle which Mr Knaggs allegedly owned. The purported purpose of the probe was to record conversations of face-to-face meetings in the vehicle. 5 .     On 11 February 2002 a National Crime Squad officer applied for authorisation for intrusive surveillance (i.e. observation of an individual in private or by means of a surveillance device) under the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 (“RIPA”) (see paragraphs 114-115 below), in order to place the probe in the vehicle. The application included details of what was being sought and how the proposed action was proportionate to what it sought to achieve. It stated: “Observations have corroborated Knaggs carrying criminal associates as passengers, and it is believed that he discusses his drugs business with them whilst travelling in the Shogun.” 6 .     The application was authorised by the Director General on 15   February 2002. The probe was installed on or around 25 February 2002. 7 .     Between 25 February 2002 and 5 April 2002, the probe was operated and the conversations in the car recorded. On 12 March 2002, a review of the intrusive surveillance was conducted. The review document noted that around 150 mobile telephone calls had been made or received while Mr   Knaggs was in the vehicle and that 17 meetings had taken place. 2. The applicants’ arrests and pre-trial proceedings 8 .     On 5 April 2002 the applicants were arrested and subsequently charged with conspiracy to supply a Class A drug. Legal proceedings were commenced in the Crown Court. Mr Knaggs did not lodge any defence statement setting out the nature and scope of his defence. 9 .     In the course of disclosure, the prosecution provided CD copies of the probe tapes to the applicants. As Mr Knaggs had regularly used his mobile telephone while in his car, the probe tapes contained for the most part one-sided mobile telephone conversations. Mr Knaggs sought the advice of a technical expert. 10 .     In a preliminary report dated 30 September 2002 instructed by Mr   Knaggs, Mr D. Campbell, a technical and telecommunications consultant, commented on the probe material. He explained that he had had time to examine only eight of the approximately 280 audio CDs produced in the case. He noted at the outset that he was strongly of the view that the placing of the probe in the vehicle was done knowingly to defeat the prohibition contained in the Regulation of Investigatory Powers Act (“RIPA” – see paragraphs 121-123 below) on the use of telecommunications information in evidence. He further noted that the recordings appeared to contain extraneous signals which suggested that an interception of communications had taken place, although he accepted that an innocuous explanation for the extraneous signals might exist. He   continued: “If there is to be a dispute, the Court will in my view have no alternative but to enquire into details of the technical systems use[d] to monitor conversations in the vehicle to relay the information to the listening office, and the methods of recordings and operations in use at the listening centre.” 11 .     The report explained that, according to the police, the probe had relayed the sounds it captured immediately to a secure listening office, where teams of two officers had supervised the creation of two simultaneous copy Digital Audio Tapes (“DAT tapes”) recording the signal from the probe. The decision to supply the defence with CD copies of the DAT tapes posed problems for forensic analysis, as the authentic time coding embedded in the original recordings was lost. Further, the use of a recording method which created “markers” to show when one audio recording stopped and another started had sometimes been used, which also prevented checking the audio material against transcripts and billing records. 12 .     Mr Campbell noted three major extraneous signals in the eight CDs he had examined. One was where the audio signal to the probe had been lost but it was possible to hear a sound which resembled the dialling of a phone. The report continued: “The enigma thus created is how the recording machinery ... is able to capture signals from the phone other than via the listening device. The best-fitting explanation on the data so far examined is that during the quiet periods (when the connection to the listening device had been lost), the DAT machine records (at a lower level) signals from a separate interception system which is inadvertently feeding into the recording system for the Shogun.” 13 .     Another extraneous signal was observed where the signal had been lost but words apparently spoken by Mr Knaggs were picked up. Mr   Campbell suggested two possible explanations: first, that the police officers had dishonestly tampered with the evidence of the sound recordings but left traces of their conduct; second, that the conversations were not only being monitored by the probe but were at the same time being intercepted under a RIPA warrant, resulting in “spillage of signals” due to proximate equipment. He considered the second possibility to have “much more profound implications”. 14 .     Mr Campbell’s report then went on to consider a possible explanation for the events which had been observed. He advanced the view that given the nature of the investigation and the views of the police regarding Mr Knaggs, an interception of his communications would have been warranted. He continued: “I speculate that this was done, and that officers heard a pattern of calls develop not unlike those in evidence. From this monitoring, they would realise that calls of the type they regarded as suspicious were often made by Knaggs when sitting in his vehicles ... From the police perspective in this situation, the core problem was that (as alleged in the case) Knaggs was a shrewd operator who did not put himself in possession of drugs or incriminating materials. Yet they knew that calls took place of a type they regarded as highly incriminating. Their problem was that in order to prosecute Knaggs, they would need evidence to take into court, and the RIPA interceptions could not be used ...” 15 .     In the section of his report named “Context and conclusion”, Mr   Campbell noted: “If my observations and reasoning in due course prove correct, then Russell Knaggs is correct in claiming that the sole purpose of planting the listening device was to enable the police to evade the restrictions placed in RIPA and get interception evidence into Court. That goes to the heart of the issue of admissibility. The possible inadvertent co-presence of evidence of RIPA interception material in the case is a remarkable echo of the first case in this field, Malone [ v. the United Kingdom , 2 August 1984, Series A no. 82] ... I wonder if history is now repeating itself in digital form.” 16 .     In his second report dated 3 October 2002, Mr Campbell again set out his hypothesis that at the same time as signals from the probe were being recorded, signals direct from Mr Knaggs’ mobile phone were being intercepted by the police under an interception warrant. He continued: “If this is correct it follows that the covert recording device was not necessary for the police to gain intelligence on his activities, as better quality intelligence was being obtained from the intercept or intercepts on Knaggs’ phone(s) ...” 17 .     The report considered the application for authorisation to carry out intrusive surveillance, which it considered was: “... misleading at best, insofar as it did not state that the true purpose of the application was to obtain evidence known to be available from intercepted phone calls, but inadmissible because of RIPA ...” 18 .     It also noted the first applicant’s instructions that, at the time the application for intrusive surveillance was made, he had never even used the Shogun and that the statement that he used it to meet with criminal associates (see paragraph 5 above) was false. 19 .     Reference was made to the presence of voices which were not recorded on the written transcripts of the DAT tapes but which could be heard on the tapes by the introduction of amplification. These incidents occurred during periods in which the transcripts indicated that the signal to the probe had been lost. He considered that the voice “crosstalk” appeared to be coming from another system which was directly intercepting all the communications from Mr Knaggs’ phone. 20 .     The applicants subsequently sought confirmation from the prosecution of whether or not there had been an intercept of Mr Knaggs’ telephone communications and, if so, the dates on which the intercept had been in place. Defence counsel explained that the reason for the request was that, if there was an intercept, they would have grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers requesting the probe. The prosecution were unable to provide the confirmation sought by the applicants because section 17 of RIPA appeared to preclude the asking of any question and the disclosure of any information relating to whether or not there had been an intercept. Section 18 allowed limited disclosure of the content of an intercept in certain circumstances and where such disclosure could be made without breaching the section 17 prohibition.   Section 18(7)(b) clarified that nothing in section 17 prohibited disclosure of information to a relevant judge in a case where the judge has ordered disclosure to be made to him alone. 3. The sections 17 and 18 ruling 21 .     In October 2002, the applicants applied for a ruling from the Crown Court as to the operation of sections 17 and 18 RIPA in respect of their request for confirmation as to the existence and duration of any intercept of communications. Submissions were made to the court by counsel for Mr   Knaggs and by counsel for Mr Khachik. 22 .     The transcript of the proceedings before the court on 23   October   2002 records, inter alia , the following: “Mr Ryder [counsel for Mr Knaggs]: ... whilst, perhaps regrettably, the Act [RIPA] does not provide for judicial involvement as of necessity, it does make involvement possible at your Honour’s discretion, subject to your Honour being satisfied there are exceptional circumstances. ... The exceptional circumstances ... would be that there is material in the hands of the Defence which does suggest, and strongly suggests, that intelligence of some sort existed – and I will put it in neutral terms, for obvious reasons – which, if it existed, is potentially highly relevant to matters both on the voir dire and on the trial of the sort that I have set out in the course of my skeleton argument.” 23 .     The transcript also notes the following discussion: “Mr Ryder: ... If your Honour is empowered actually to order the disclosure of material to you, certainly implicit in that is power to make enquiries to determine whether or not that is necessary. Judge Lawler: But you originally, in your skeleton, were not seeking anything to do with the material. Mr Ryder: No. Judge Lawler: Just the fact of whether or not there was an intercept. Mr Ryder: That is right. That is really what I am interested in.” 24 .     Subsequently, the following exchange took place: “Judge Lawler: ... as I understand it, you are inviting me to effectively convene the Crown on what would be a [public interest immunity] hearing. Mr Ryder: Yes. Judge Lawler: And ask them to disclose anything that there is – if there is anything – about an intercept. Mr Ryder: To your Honour. ... ... If there is something and it is revealed to your Honour, we are then in this position: we will conduct the voir dire along the line that I have indicated in previous skeleton arguments and in the current one. We will not know what your Honour knows, but your Honour will have in mind what your Honour has learned, in determining whether or not the answers given by a given officer, for example, are honest or not, whether or not there was intelligence which informed what they were doing which rendered the necessity for the intrusive surveillance less urgent than they said, things of that sort ...” 25 .     Counsel for Mr Khachik asked the court, if the prosecution were asked to confirm whether there was an intercept, to bear in mind whether the authorities had complied with the relevant safeguards in the legislation. 26 .     Later, counsel for the prosecution made the following statement: “The first thing I should say is that, in carrying out my duties, I have had regard to everything I know, the points the Defence wish to make and to the Defence cases as they have been set out in interview and sometimes in argument. If I may, for example, use the matter put forward by Mr Smith, on behalf of Mr Khachik, I am well aware of the nature of the Prosecution case and the importance of seeking out any material that may further a suggestion that Mr Khachik was not in fact the person at the other end of the telephone, or that he was having an innocent conversation. I have obviously borne that in mind ... throughout when considering any matter of disclosure. ... ... [I]f there were no intercept in this case, it seems very difficult to see how an admission could be drafted that did not reveal that fact that could be relevant to these proceedings.” 27 .     No mention was made in the oral submissions of counsel for either applicant, or by counsel for any of the other defendants in the case, of any concerns regarding, or potential challenge to, the integrity, authenticity or reliability of the probe material. 28 .     Handing down his ruling later that day, with reasons to follow, Judge   Lawler said: “I am obviously conscious of my duty to ensure that these proceedings are conducted fairly. I have noted on more than one occasion the concerns expressed by the defence in relation to disclosure and I have taken time to consider the submissions this morning against the background of the relevant statutes, authorities and skeletons which I considered before today. I am happy to confess that I find this a very difficult area. In the end result I have decided not to exercise my power under section 18(7)(b).” 29 .     On 25 October 2002, Judge Lawler gave full reasons for his decision. He noted at the outset: “The evidence upon which the Crown relies comes from several different sources. There is evidence from observations by Police Officers, and overheard conversations. There is evidence from a co-defendant, [W.], who has pleaded guilty and awaits sentence. He has implicated a number of Defendants in a material way. There is evidence of the recovery of drugs and associated drugs apparatus as well as money. In addition, the Crown have material upon which they can draw from the interviews of some of the Defendants ... A fairly large portion of the evidence, however, relied upon by the Crown, is the result of a probe which was attached to Mr Knaggs’ vehicle, and from which many hours of meetings and telephone conversations with alleged co-conspirators and others were taped and later transcribed. That evidence is potentially very incriminating, and the subject of a hotly contested voir dire as to its admissibility.” 30 .     Summarising the defence objections to the evidence, the judge noted: “The Defence wish, among other things, to test the lawfulness of the applications made, and the authorities given. There may also be an issue of bad faith on the part of the National Crime Squad ...” 31 .     He continued: “In his second skeleton of the 14 th October ... Mr Ryder suggested that material existed which suggested that an interception had taken place. Understandably, we do not know what that material is. We do not know whether it emanates from his expert, or his instructions from his lay client, or a mixture of both. If this is the case, he says the fact of – though not the content of – such intercepts is directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance. He went on to say that assertions and implications in the application for authorisation to conduct intrusive surveillance, that it was not feasible to gather evidence by conventional methods of surveillance, are untenable if such conventional surveillance was informed by information as to Mr Knaggs’ movements and activities gathered by way of telephone interception. It is this matter which has loomed large, and given rise to some difficult questions concerning the construction, interpretation and operation of Sections 17 and 18 of the 2000 Act.” 32 .     Considering the effect of section 17 RIPA, the judge noted that: “It can thus be seen that subject to Section 18 there is no ambiguity about Section   17. Its terms and intention are crystal clear. There is a strict prohibition, a complete blanket comes down on anything at all which would reveal whether there was, or was not, an intercept, or even the possibility that there was, or might have been an intercept, or, indeed, application for an intercept. On its face that would completely rule out any disclosure of the kind originally asked for by the Defence in their skeleton. That was why the Crown ... had concerns about the very legality of what the Defence, through their expert, was doing. Concerns shared by the Court ... The effect of the Rule ... is that interceptive material cannot be used either by the Prosecution or the Defence, thus preserving the equality of arms principle enshrined in Article 6 of the ... Convention ...” 33 .     He continued: “[Mr Ryder] said that the exceptional circumstances was that there is material in the hands of the defence which, as I have said, the Court does not know the nature of, which strongly suggests that, to put it bluntly, though he was more circumspect, an intercept had been in place, and the relevance that had to the voir dire, as I have indicated already, and as he set out in his first skeleton, was obvious.” 34 .     As to the conduct of the prosecution in ensuring fairness in the proceedings, the judge noted: “... Mr Garside [counsel for the prosecution] indicated that he had had regard to all he was aware of from the Defence point of view, which had arisen in interview, or in argument. In particular he highlighted and answered Mr Smith’s point [on behalf of Mr Khachik] about the one-sided conversations ... He indicated that were he in possession of information, from whatever source, to exclude, exculpate or explain Mr   Khachik’s part in one-sided conversations he would, consistent with his duty, have made an admission, and not have advanced a case to the Jury which he had any reason to think was false.” 35 .     Judge Lawler reviewed the provisions of RIPA and the power of the judge under section 18 to review any evidence. He found: “... it seems to me that the whole tenor of these provisions is directed to the material arising out of an interception. It has been made clear in this case that the Defence have absolutely no interest in any such material, even if there is any. Their interest is as to whether there was or was not an intercept.”   36 .     As to the correct interpretation of section 18(7), he said: “I am of the view that any information [in section 18(7)] relates to the material arising out of the intercept. I suppose it may reasonably be argued that any information surfacing as a result of something said or done in turn arising out of the intercept material, which was also in [the] possession of the authorities, might be included, but it goes no further than that. The important point, however, is that none of this has any relevance because, as I have said, it is not what the Defence are after to help their testing of the evidence or arguments on the voir dire. I am satisfied, therefore, that any information in sub-section 7 cannot be widened and interpreted to mean whether, for example, there was or was not an intercept, or any application for one. It cannot do so because release of that information is strictly prohibited.” 37 .     Summarising counsel for Mr Knaggs’ suggested approach (see   paragraph 24 above), the judge continued: “I find a number of difficulties with these points. First, it cannot be gainsaid but that as Mr Ryder has conceded on more than one occasion the Defence are not remotely interested in any material emanating from the intercept, but with whether there was one. That is the whole thrust of his argument.” 38 .     He concluded: “However, even if I am wrong about the various matters I have just rehearsed, I am of the opinion that whilst the point has some importance on the voir dire, it is not so important as to amount to exceptional circumstances whereby disclosure is essential and required in the interests of justice. It is but one aspect of the voir dire. In addition, there is nothing particularly exceptional about this situation. It is likely to occur quite frequently where the authorities believe that they are one the path of serious crime and where authority has been granted for intrusive surveillance, but there may well be an intercept lurking in the background.” 4. The voir dire a. The voir dire proceedings 39 .     The applicants subsequently applied for the proceedings to be stayed as an abuse of process or for the probe evidence to be excluded on the grounds of unfairness under section 78 of the Police and Criminal Evidence Act 1984 (“PACE” – see paragraph 120 below). Judge Lawler summarised the thrust of the defence submissions as follows: “... They say that the dishonest intention of the National Crime Squad from the start was to get inside Knaggs’ vehicle and record what he said on his mobile phone. They well knew that he used it extensively ... The reality was that their sole purpose was to hear those conversations. The Police knew that the rules forbade intrusive surveillance of this type (if that was the object). Equally, they knew that any material arising out of an interception by virtue of a warrant under Sec.5 [RIPA] (the only other way of hearing calls) could not be used in evidence. In order to get round that prohibition, and to enable the evidence to be used, they quite deliberately and deceitfully, and in bad faith, contrived to construct an application in such a way as to pull the wool over the eyes of their senior officers ... so as to gain lawful authorisation and, for that matter, renewal of that authorisation. They did this – say the Defence – by a mixture of false, misleading and disingenuous statements and exaggeration of the position both on the original application and the review document ...” 40 .     According to the defence, the whole process illustrated bad faith and thus the initial authorisation for the probe as well as the continuing authorisation following the review were unlawfully obtained. They pointed to a secret instruction given to police officers not to record their observations of the movements of Mr Knaggs. They contended that the integrity of the whole investigative process had been compromised by police misconduct and that no fair trial could take place if the police were found to have behaved in the way they alleged. Accordingly, they argued the indictment should be stayed. Alternatively, the probe evidence should be excluded because of the gross bad faith and dishonesty of the police in obtaining it and because its admission would have, in the circumstances, such an adverse effect of the fairness of the proceedings that the court ought not to admit it. 41 .     The court began hearing evidence on the voir dire on 25   October   2002. Further disclosure of material which the defence said went generally to the accuracy of the material contained in the applications for authorisation of the probe and to the credibility of the police officers involved in the probe application was ordered by Judge Lawler on 28   October 2002. 42 .     By letter dated 29 October 2002 Mr Campbell informed Mr Knaggs’ counsel that having conducted further analysis, he believed that the itemised telephone billing records produced by the prosecution were inadmissible or unreliable and unfair. A comparison of the police communications data and commercial communications data showed that 75 per cent of the records were different in at least one data element. In his view this showed that the two sets of records originated from different sources. 43 .     Evidence was heard on the voir dire from police officers involved in the surveillance operation and the Director General of the National Crime   Squad, who had authorised the use of intrusive surveillance. On   cross-examination by counsel for Mr Knaggs, the police officer who made the application denied lying when he asserted that meetings with criminal associates were taking place in the vehicle. He agreed that the police were aware that Mr Knaggs used his mobile phone regularly, but not necessarily that he used it extensively before the probe was fitted. He   rejected the suggestion that directed surveillance could have been highly successful in respect of Mr Knaggs, emphasising that directed surveillance did not provide the police with evidence against Mr Knaggs sufficient to secure a conviction. He was unable to explain why a decision was taken not to record Mr Knaggs’ movements. 44 .     The senior investigating officer explained that he had been concerned about the number of one-sided conversations recorded during the deployment of the probe. However, recording one-sided calls had not been the sole purpose of the probe and in any event, the police were obtaining evidence and could therefore legitimately continue to use the probe notwithstanding the fact that the majority of the product was one-sided conversations. 45 .     The Director General emphasised that his authorisation of intrusive surveillance was not a rubber-stamping exercise. He dealt with the matter personally and exercised independent judgment. While he could not check every detail of the process and had to take certain matters on trust, he was assisted by members of staff who carried out checks and provided legal advice when required. He required a presentation by the requesting officer in an application of a particularly sensitive nature and also conducted random checks. He explained that the recording of one-sided calls occurred in many cases. If it were the only material being obtained from intrusive surveillance there would be cause for concern, but that was not the case in respect of the probe in Mr Knaggs’ car. He was satisfied that the relevant criteria had been met when he authorised the initial probe and the renewal. He had no cause to question the good faith of the officers making the application. 46 .     It was put to the officer who prepared the review document that, contrary to what he had indicated (see paragraph 7 above), 533 telephone calls and either 24 or 30 meetings had taken place in the vehicle between 25   February and 12 March. The officer explained that his figures were based on transcripts available at the time. Following an adjournment to allow him to investigate, he said that on his calculations there were 281 calls and about 30 meetings between the relevant dates. The figures in the review had been based on the period from 2 to 12 March, for an operational reason that he was unable to disclose. He denied that he had made up the explanation to cover up the inaccurate figures. 47 .     Judge Lawler summarised counsel for Mr Knaggs’ closing submissions to the court as follows: “Mr Ryder QC was characteristically trenchant in his criticism of the evidence of the National Crime Squad. He conceded that there can be no question of error or mistake. He nailed his colours firmly to the mast, of dishonesty and deceit. The National Crime Squad well understood the legal requirements and had cynically manipulated the applications to deceive the Director General, and so achieve their sole objective, which was to record what Knaggs said on his mobile, and thus get round the problems they knew a warrant under Sec.5 would create for them. He submitted that, even if the Prosecution evidence was accepted, the Crown had not come close to establishing that the probe was necessary and the exercise essential.” 48 .     Counsel for Mr Khachik’s submissions were summarised as follows: “Mr Smith submitted that the key question was whether the application [for the probe] was necessary ... The Crown and the Court had been very seriously misled by the National Crime Squad, who had abused the system. The only thing which changed in the lead-up to 12 th of February was Knaggs’ acquisition of a new car.” b. The judge’s ruling 49 .     On 15 November 2002 Judge Lawler refused the defence applications. He noted: “In coming to my findings on the facts, I have also taken into account the following matters: 1. it is for the Crown to satisfy me, so that I am sure, that the criteria under [RIPA] were met at both the initial stage and for review purposes. 2. since allegations of bad faith are raised by the Defence, the Crown must, on all the material, completely rule out any question of dishonesty or bad faith. 3. all the evidence called on the voir dire and, in particular, the assessment of the honesty and reliability of those officers whose credibility is so seriously questioned. 4. the discrepancies and inconsistencies in the evidence, where they occur. 5. the skeletons and strong arguments forwarded by the Defence. 6. the oft repeated concerns of the Defence at the lack of disclosure as a result of the Public Interest Immunity Hearings and the constraints, out of necessity, which that has imposed on their questioning and probing of the witnesses, as well as their concerns often expressed of the lack of candour in relation to disclosure. ... 7. the great care I must exercise in my mind about that which I know and which the Defence do not in connection with the decision-making process. ... 8. applications of this kind are a substantial interference with privacy, and should only succeed where there are – and I am summarising the effect of the legislation – compelling reasons for doing so. ...” 50 .     He considered that the only way to deal with the defence handicap on the sensitive material which had not been disclosed to the defence was to say that the defence were “entitled to have it both ways”, namely that they could expect the court to act on anything it knew that helped them but not to act on anything that helped the prosecution. 51 .     He addressed first the question whether the intrusive surveillance of Mr Knaggs was necessary and, in particular, whether the information sought could reasonably be obtained by other means. He referred to the police’s belief that Mr Knaggs was familiar with police surveillance techniques, citing several examples which appeared to provide some support for this belief. He also noted that the police believed that they were dealing with a major criminal, and had to plan and proceed accordingly. He therefore accepted what was said in the probe application form in this regard, which was borne out by the comments made by Mr Knaggs in the recordings. He   considered this to be the: “first and important point on the road to necessity, as well as proportionality.” 52 .     Next, Judge Lawler considered the defence arguments concerning the effectiveness of directed surveillance. He noted: “... Directed surveillance was feasible and useful when employed to observe other members of the conspiracy, but, for reasons I have already given, difficult and often impossible in the case of Knaggs. Its effectiveness was limited with regard to him, for example, because he did not handle drugs. The prospect of catching him with drugs was effectively nil.” 53 .     He continued: “The Police needed to collect hard evidence to convict him. As they candidly said in their application, it was necessary for them to collect such evidence, as opposed to information. The two things are quite different.” 54 .     He further noted that directed and intrusive surveillance were tools of investigation, both of which were more effective when carried out in tandem with the other. He observed: “... Directed surveillance may have been working within its own terms, but it is difficult to see how the substantial drugs seizures could have been made if the Police had not known what was going to happen. To know what was going to happen, they had to listen to conversations in the car. In this connection, one should bear in mind that, not only were they under an obligation to detect serious crime, but also to prevent it. They needed a means of predicting or tracing the travels of conspirators, and hence the shipment of drugs.” 55 .     As to the issues raised by the defence concerning the absence of observation material, Judge Lawler considered that there was no doubt that the attitude and behaviour of the senior investigating officer in instructing that no record be kept was open to severe censure and was a clear breach of the applicable code of practice (see paragraph 113 below). However, he was satisfied that there was no conspiracy or dishonesty among police officers on the question. 56 .     Regarding the intention of the police when making the application for the probe, Judge Lawler accepted that the police were aware that Mr   Knaggs used his mobile phone a great deal. However, he considered that there was a reasonable expectation by the police that Mr Knaggs would hold meetings with fellow criminals in his car and there was a legitimate wish to obtain evidence of what was said during those meetings. In that sense, he considered the overhearing of one-sided calls to be incidental or subordinate to the purpose for which the authorisation was sought. The fact that in the event very useful telephone evidence was obtained did not affect the validity of the decision to apply for authorisation, to grant it, or to permit it to continue. The key factor was the purpose of the probe and not the result. In this regard he emphasised that the probe could not be “de-authorised” retrospectively simply because something unexpected happened. He was therefore satisfied that the police intention was to monitor meetings and not to use the probe to circumvent the prohibition on using interception material in evidence. 57 .     Similarly, while certain aspects of the review documents were completed carelessly, the judge was satisfied that the police officers were telling the truth on the voir dire and that there was no dishonesty. He continued: “...This was an ongoing operation, and a very serious one at that. The fact is that, whilst there were a large number of calls, the meetings had continued, and, thus, justification for the authority still stood.” 58 .     Applying the RIPA criteria, the judge had no doubt that the criteria relevant to the authorisation of intrusive surveillance, set out in section 32 RIPA (see paragraph 114 below), were fully satisfied. Accordingly, the authorisations were perfectly valid. 59 .     In setting out his conclusions on the abuse of process and section 78 PACE applications, the judge summarised the matters which in his view affected the question of the fairness of admitting the evidence: “1. There is a clear, and substantially unchallenged, record of what was said in Knaggs’ car. Very often tapes can be difficult to understand, and unfairness can result from conflicting interpretations of material which is unclear. That is singularly not the case here. 2. There is no element of entrapment. What Knaggs said is said quite voluntarily and quite uninfluenced by any Police Officer. 3. He made no comment to the Police when these matters were put to him, which, of course, he was perfectly entitled to do. However, he and the other Defendants who may be tied into the other ends of telephone conversations by mobile phone evidence and observations are particularly able to say what was being discussed. 4. Each Defendant alleged to be involved in a conversation can, if he wishes, deny that he was on the other end of that conversation, or assert what was being said was being taken out of context, or otherwise put innocent explanation, or some explanation, upon them. 5. All the tapes – not just those relied upon by the Prosecution – have been disclosed. Any Defendant can, therefore, put before the jury any passages upon which he relies, in order, for example, to show what the Prosecution allege has been taken out of context, or otherwise explain them. 6. Whilst the Prosecution case – which is, of course, charged as a conspiracy – places a good deal of reliance upon this material, it is not the sole evidence in the case. It should be noted, however, that the taped evidence is strong evidence in its own right ... 7. The admitted breaches of the codes of practice and admitted conduct of the Police Officers which had been the subject of censure – apart from the issue of bad faith – should be put in its proper context, and the question asked: taking both matters at their highest, what effect did they have, or would they have, on the fairness of a trial?”   60.     He concluded: “None of the criticisms made, it seems to me, go anywhere near an attack on the reliability or probative value or cogency of the evidence in question. Nor is there any suggestion of the manipulation of the tape recording exercise, as sometimes does arise.” 5. Further expert evidence 61 .     In a note for counsel for Mr Knaggs dated 16 November 2002 Mr   Campbell explained the results of further analysis of the billing information, highlighting inconsistencies in the information obtained from the prosecution compared to information obtained from the service provider. One inconsistency raised was the presence in the prosecution list of calls of “zero-length” calls, where no connection was made. Evidence from the provider indicated that such calls were not included in the billing records they issued and their presence in the prosecution data therefore raised questions as to the source. 62 .     By letter to counsel dated 24 November 2002 Mr Campbell drew attention to new evidence received as to police procedures on obtaining telephone record data which had shed some light on the inconsistencies observed. In particular, the method available to the police for automatically obtaining phone records generated call data in a different format to the formal inquiry system in which the provider issued data. The automated system for certain mobile phone operators did include zero-length calls in the output. The different methods of generating the data also helped explain inconsistencies regarding the duration of calls: the precise duration given in the automated records was rounded up in the billing records produced by the formal inquiry method. 6. The first applicant’s guilty plea 63 .     On 27 November 2002, following legal advice that as a result of the sections 17-18 ruling he could not challenge the prosecution’s evidence by calling his expert evidence, Mr Knaggs pleaded guilty to the charge of conspiracy to supply a Class A drug. 64 .     On 2 December 2002, Mr Knaggs appeared before the judge. In relation to his plea, he said: “As you know, on Wednesday of last week, I entered a plea of guilty of conspiracy to supply Class ‘A’ drugs. I was well aware of the consequences and I was well aware that, in pleading guilty to such a charge, I am going to receive a quite substantial custodial sentence. I did plead guilty after consulting with my family, and I did it off my own back; I wasn’t pressured by my legal team in any way, but I was very carefully advised.” 65 .     However, he expressed concern at the circumstances in which he was pleading guilty: “My issues, your Honour, with that plea of guilty was that I felt that I was put in a no-win situation in relation to that plea of guilty. I feel that you know, with all due respect your honour, I feel that my chances of a fair trial were rendered absolutely impossible, and if I may say, I would like to briefly go into the reasons why I believe that. The first thing is, we, the defence, – I should say I, [the] defence – had strong forensic evidence to show that an interception of telephone communications took place ...” 66 .     Judge Lawler prevented him from going further, saying:   “I am going to stop you there, because this is a matter, as you know, upon which I have ruled ... It is not open to you to ventilate this matter in open court. And so, if you have been advised to keep counsel about these matters, I advise you to do so. I am not prepared to hear any representations in relation to that matter.” 67 .     Mr Knaggs also said: “... I would also like to say, your Honour, that I’m not trying to stand here and portray myself as being some sort of an angel; I have pleaded guilty, and I was involved in crime, but I certainly wasn’t involved to the extent that the Prosecution are trying to say that was. And, like I say, your Honour, I was never able to prove that. And for my involvement in that crime, I am truly sorry. And if I could turn back the clock, I can guarantee that I would not be here today.” 68.     On 5 March 2003 Mr Knaggs was sentenced to 16 years’ imprisonment. Confiscation proceedings were subsequently commenced against him. 69 . In December 2003 Mr Knaggs made a formal application to vacate his guilty plea, which he abandoned after a two day hearing. He renewed his application formally on 15 December 2003, at which stage it was refused by the judge . 7. The second applicant’s conviction 70 .     On 29 January 2003 Mr Khachik was convicted by a jury of conspiracy to supply a Class A controlled drug. The information obtained from the probe in Mr Knaggs’ car provided significant evidence against Mr   Khachik. At trial, he did not seek to dispute the authenticity or reliability of the probe material. Instead, he sought to give an innocent explanation for the recordings in which he was implicated. 71 .     On 5 March 2003 Mr Khachik was sentenced to 19 years’ imprisonment. Confiscation proceedings were subsequently commenced against him. 72 .     Mr Khachik sought leave to appeal. On 1 July 2003 his application for leave to appeal was refused by the single judge. 8. Later expert reports 73 .     In February 2003 Mr Campbell produced a further technical report to assist an intended appeal by Mr Knaggs. The report began with a summary of the position set out in previous reports, again advancing the hypothesis that the probe had been placed in the vehicle intentionally to collect evidence of calls being made by Mr Knaggs on his mobile phone. The report noted: “5. The circumstances of that application and the many misleading statements made by the NCS in obtaining and then continuing permission for intrusive surveillance, were explored extensively in a voir dire , and are set out in detail in the judgment ...” 74 .     It continued: “8. From the beginning, my view was that the placing of the probe in the Shogun was done intentionally to intercept telephone calls made by Knaggs – knowing when making the application that Knaggs conducted many mobile phone conversations from his (previous) vehicle, and that some of his conversations could be highly incriminating . [original italics] ... 13. The Courts are prohibited under s17 RIPA from allowing evidence to be sought or taken concerning the interception of communications. It is not therefore possible to examine how information obtained from the interception of communications might have influenced the making of an application for intrusive surveillance.” 75 .     Referring again to the extraneous signals found on the DAT tapes, Mr Campbell concluded that the police recording equipment was inadvertently recording unintended information. Two possibilities were proposed: “(1) The recorders were picking up a separate signal from a direct intercept on Knaggs’ phone which became (barely) audible when the direct line to the probe was lost. This is a well-known electrical phenomenon called crosstalk; (2) The telephone device used to connect to the probe was inadvertently picking up conversations within the secure listening room. If so, in simple terms the police were inadvertently recording their own conversations.” 76 .     In March 2004 a report was prepared on behalf of Mr Knaggs by Mr   B. Clues, a chartered