21 Sep 2006

Liberty welcomes Attorney General Goldsmith’s call to allow intercept evidence in criminal court, stressing that better investigatory powers for police are the rational alternative to the Government’s proposals for 90 day pre-charge detention.

Director of Liberty, Shami Chakrabarti said: 
  
“Our reluctance to use phone tap evidence in terror cases like most other countries is frankly mind-boggling. Surely the Government and police recognise that this is a far more effective tool than bringing back internment by holding suspects for 90 days without charge.” 
 
Contact: Jen Corlew on 0207 378 3656 or 0797 3 831 128 
 
NOTES TO EDITORS 
 
The use of intercept evidence in the courts: 
 
1. The Government has previously argued that it may not be possible to prosecute those suspected of involvement in international terrorism because the evidence on which the suspicion is based would be inadmissible in court. Some evidence should never be used in legal proceedings, i.e. evidence obtained by torture. There are, however, no fundamental human rights objections to the use of intercept material, properly authorized by judicial warrant, in criminal proceedings. Nevertheless, intercept evidence is currently inadmissible in English law. 
 
2. The interception of communications is permitted under the terms of the Regulation of Investigatory Powers Act 2000 (RIPA) in a restricted range of circumstances. In particular, the Secretary of State may issue a warrant authorising or requiring interception if this is necessary, inter alia: (a) in the interests of national security; or (b) for the purpose of preventing or detecting serious crime, provided that the interference is proportionate. Despite the fact that RIPA permits interception, Section 17 prohibits evidence, questions, assertions or disclosures for the purposes of or in connection with any legal proceedings that might suggest that unlawful interception of post or telecommunications has occurred or that an interception warrant has been issued. This reflects the Government’s view that “allowing the use of intercepted communications as evidence would reveal the authorities’ capabilities, prompting criminals to take more evasive action”. 
 
3. Liberty wholeheartedly supports this proposal. We have on many occasions urged the Government to remove the bar on intercept evidence in open criminal proceedings in order to facilitate criminal prosecutions in terrorism cases. We do not intend to repeat these arguments in detail but, in outline, they include:
 
(a) “the refusal to allow intercept product to be used as evidence for prosecution can hardly favour crime control in its pure sense of maximising convictions.” Removal of the bar on intercept evidence would overcome one of the primary obstacles to bringing proper criminal proceedings against terrorist suspects. Much of the evidence gathered must be by way of intercept and would certainly be sufficient to meet the relevant charging standard. Continuing inadmissibility means that charges cannot be bought as easily.
 
(b) The imperative behind the historic bar is the protection of security services sources and methods rather than any obvious concerns for the fairness of the trial process.
 
(c) As far as Liberty is aware, this bar is an anomaly. The UK is the only country in the world, with the exception of Ireland, to maintain a ban on the use of such evidence.
 
(d) The Government’s position is inconsistent. Foreign intercepts can be used if obtained in accordance with foreign laws. Bugged (as opposed to intercepted) communications or the products of surveillance or eavesdropping may also be admissible even if they were not authorised and if they interfere with privacy rights.
 
(e) If there are concerns over protecting a state’s sources then clearly established rules of Public Interest Immunity allow disclosure to be withheld from the defence and the public. This is particularly applicable when there are state interests that require protection of when informers and undercover sources have been used. 
 
4. In 2003 a Parliamentary Committee (the Newton Committee) concluded that lifting the blanket ban on the use of intercepted communications in court would be “one way of making it possible to prosecute in more cases”. It proposed the removal of the bar as an alternative “more acceptable and sustainable” approach to the threat from terrorism than executive powers to restrict liberty, evading the criminal justice process. 
 
Necessary safeguards
 
5. The existing rules of criminal evidence would apply to ensure that evidence is not admitted in such a way as to prejudice a case unfairly. In particular, Section 78 of the Police and Criminal Evidence Act (“PACE”) gives the court the discretion to exclude evidence if “having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission…would have such an adverse effect on the fairness of proceedings that the court ought not to admit it”. There is a further common law power to exclude though this is rarely used. 
 
6. Most other countries allow the use of intercept evidence in criminal proceedings, including most other Council of Europe members. Liberty would urge the Joint Committee on Human Rights to survey the laws relating to the use of intercept evidence in these other jurisdictions to identify the legal safeguards that are in place in those countries to ensure that the use of such evidence does not infringe fair trial safeguards and unnecessarily compromise the effectiveness of the Government’s covert surveillance capabilities. 
 
Update on the current political debate
 
7. Recently there have been a number of positive developments regarding lifting the ban on intercept evidence, revealing a growing political consensus that the current law is unsatisfactory. In his 2006 report on the operation of the Prevention of Terrorism Act 2005, Lord Carlile reiterated his view that “there might possibly be a few cases in which it would be appropriate and useful to deploy in a criminal prosecution, material derived from public system telephone interceptions and convertible into criminal evidence”. When he presented the Report to Parliament, the Home Secretary stated that the Government are working “to find, if possible, a legal model that would provide the necessary safeguards to allow intercept material to be used as evidence” and has promised a report on this matter later this year. Sir Menzies Campbell has asked the Government to “introduce the effective and practical measure of permitting the use of telephone intercept evidence in our courts, so that we may bring suspected terrorists to trial”. 
 
8. Liberty welcomes these developments but is disappointed that, nearly 10 years after lifting the bar on intercept evidence was first proposed by Lord Lloyd, no legislative proposals to achieve this have yet been introduced. Given that criminal prosecution would be the best way of tackling the threat from international terrorism, from the perspective of fairness and effectiveness, this delay is entirely inconsistent with the Government’s duty to take reasonable and proportionate steps to protect the public from acts of terrorism and its stated commitment to pursuing prosecutions wherever possible.