5 Reasons why we need intercept evidence in court

Posted by Silkie Carlo on 25 February 2016

The Draft Investigatory Powers Bill – the Government’s new surveillance law – is currently going through Parliament – and has just received huge criticism from every committee to scrutinise it. The Bill is a once-in-a-generation chance to shape our spying laws for the better. But as it stands, it risks both our freedom and our safety.

Liberty is calling for the inclusion of strong safeguards in the final Bill. Our 8 Point Plan lays out clear, practical ways we can ensure that surveillance conducted in all of our names is done so in a necessary, proportionate and accountable way.

Here, we explain why the law must change to allow the use of intercept evidence in court.

What is intercept evidence?

‘Intercept’ refers to the covert capture of private communications – including via telecommunications, the internet and post. This essentially means authorities can listen in to our phone calls and read our text messages and emails. Therefore intercept evidence would be the recordings or transcripts of these communications. 

What is it used for?

The use of intercept evidence in criminal courts in the UK courts is banned. Which means interception is used only for intelligence and investigative purposes – but not for bringing perpetrators to justice.

Liberty is campaigning for this ban to be lifted and for intercept evidence to be used in court.

Here are 5 reasons why….

1. Using the available evidence is essential to ensure a fair trial

Article 6 of the Human Rights Act guarantees everyone the right to a fair trial.  All evidence should therefore be made available – both to be used by the prosecution and challenged by the defence. Currently, the prosecution will have the advantage of being aware of the intercept evidence but not using it – putting the defence at a disadvantage. This is not fair.

2. We would be able to prosecute criminals

Despite strong evidence (from the Government’s own review no less) that intercept evidence can significantly influence the outcome of a trial, at the moment it simply goes unused – even if it could lead to charges and secure convictions. As Lord Lloyd of Berwick has said: “We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted.” Why, after spending valuable public funds on spying on those implicated in organised crime and terrorism, would we then not prosecute them and prevent further crime?

3. The UK is the only common-law country in the world to ban the use of intercept evidence

David Davis MP, former shadow Home Secretary, has pointed out that this not only makes it more difficult to bring terrorist and criminal cases to trial but in turn degrades “our safety and our system of justice.” Both U.S. and Canadian authorities have reported the value of intercept evidence – claiming it is critical in securing the conviction of serious criminals. Why is the UK Government insistent on keeping our justice system so far behind that of other leading democracies? Dame Stella Rimington, the former Director of M15, has called the ban “ridiculous”.

4. There are better ways to protect truly sensitive material -  a ban is unnecessary

In some cases, it will not be in the public interest to use certain evidence in court. Under existing laws, such as through applying for Public Interest Immunity, this evidence can be protected from disclosure, provided it doesn’t render the trial unfair. Intercept evidence should not be any different. Lifting the ban would allow the evidence to be either used or withheld based on the public interest – rather than just being totally discarded. The authorities claim the ban protects the secrecy of their methods. These claims are now completely unfounded.

5. Intercept evidence isn’t that unique - it should be treated like all other evidence

The challenges of utilising intercept evidence effectively in criminal trials aren’t dissimilar to those related to evidence that isn’t banned, such as from a bug or a concealed microphone. A huge amount of communication material is routinely used as evidence in court – the absence of intercept evidence is seriously outdated.

 Can we afford this?

The claim that collecting intercept evidence would be too expensive is a weak one. The evidence needed would only be an infinitesimal fraction of the huge amounts of data collected via the Government’s mass interception programmes. In fact, this would encourage a (much needed) more targeted approach. When the security services have invested enough resources to intercept 50 billion communications per day, they surely have the time and money to ensure this data is used to actually secure convictions.

As Lord Goldsmith QC, the former Attorney-General, says, by maintaining the ban “we're depriving ourselves of a key tool to prosecute serious and organised crime and terrorism.” If the Government claim that the Draft Investigatory Powers Bill is meant to keep us safer, the ban on intercept evidence must end.

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Silkie Carlo

Silkie Carlo

Liberty
Senior Advocacy Officer