London, England, November 14, 2018 – Evidence from telephone conversations in which British property tycoon, Peter Virdee, said that St. Kitts and Nevis’ Prime Minister Dr. the Hon. Timothy Harris is named in a bribery scandal is among two case studies mentioned following recent legislation now in force in the United Kingdom.
That’s according to top British criminal and regulatory litigator, David Corker, Partner in Corker Binning in an opinion entitled: “Eavesdropping Ban Encourages A Culture Of International Law Enforcement Arbitrage.”
In the Peter Virdee case cited, Virdee and Trutschler went to court to keep the transcripts of their German-taped telephone conversations from being entered into evidence at an upcoming trial.
The transcript in the High Court ruling in London records Mr. Virdee informing Mr. Dieter Trutschler that Prime Minister Dr. Harris called on Saturday 12th March, 2016 to inform him that he was in London on his way to Dubai and asked him to take him and his delegation to dinner and also for a watch, a pair of shoes and money to finance the 2020 election campaign. The conversations were recorded by German police and given to British authorities.
In a May 11th ruling, two London High Court judges dismissed the applications of Virdee and Trutschler stating that “without going into particulars, and putting the matter at its very lowest, we have no doubt that a judge considering the passages we have quoted would regard them as capable of giving rise to a reasonable inference that the claimants were willing in principle to make and to pay bribes, but felt that the Caribbean politicians (Asot Michael of Antigua and Timothy Harris) were asking for too much.”
Corker opined in the topic: Admissibility of evidence obtained by less than acceptable standards is often debated in courts. In light of s56 of the Investigatory Powers Act 2016 (IPA), which came into force on 27 June 2018.”
Criminal justice systems need rules about what can be adduced as evidence. With relevance forming the cornerstone of admissibility, UK rules are promulgated by the common law and increasingly by statute. S56 of the Investigatory Powers Act 2016 (IPA) is a prime example. For information obtained by State interception of telephone calls, it determines that neither the prosecution nor defence can ever adduce intercept material obtained by a UK State agency. By proscribing mention of its existence, the material does not exist.
Since this exclusionary rule appeared in the Interception of Communications Act 1985, public surveillance has mushroomed: everyone appreciates it is ubiquitous. Yet, the argument runs that if this blanket ban were relaxed, it would disclose how law enforcement detects serious crime, encouraging criminals to develop covert communication methods.
Two recent judgments provide some enlightenment.
The admissibility in criminal proceedings of material obtained from intercepted calls was examined in Virdee v NCA  EWHC 1119, decided by the Admin Court, and R v Knaggs  EWCA 1863 by the Court of Appeal. In both cases, material obtained by a foreign law enforcement agency was passed to the NCA. The ban does not apply to such material.
In Virdee, the German police provided the NCA with recordings that commenced a bribery investigation. It contended that they revealed compelling evidence of plans to bribe Caribbean politicians. In his judgment Holroyde L.J. quoted extensively from the transcripts. Had the ban applied, no investigation would have occurred. The NCA was only able to investigate because the German police had gathered them in connection with another investigation.
In Knaggs, the telephone recordings were obtained by Dutch police. Unlike Virdee, the NCA discussed using surveillance with their Dutch counterpart beforehand. The recordings provided evidence of a conspiracy to import Class A drugs into England. The CPS wished to adduce them at trial.