Examination of Witness (Questions 40 -
59)
TUESDAY 2 MARCH 1999
MR DAVID
BICKFORD, CB
40. So where has the difference come, then?
It is what one is suspected of doing?
(Mr Bickford) If you look at the definition of "subversion"
in the Security Service Act, if you fell within that definition
then you would be someone who might be investigated, but you would
definitely have to fall within that definition.
41. This is what I am exactly trying to establish.
It is not merely the membership of an organisation, but that may
lead to an interest?
(Mr Bickford) That may lead to an interest.
42. But it has got to then be—
(Mr Bickford) Yes.
Mr Winnick
43. There was a television programme a few years
back made with the active assistance of a former MI5 officer.
That did not give the impression of that impartiality which all
of us would like to see, where genuinely subversive elements would
in fact be targeted, namely those who want to undermine and destroy
our democratic system. That programme caused quite a number of
alarm bells to ring, certainly amongst people like myself. Perhaps
you remember the programme.
(Mr Bickford) Yes, I do.
Mr Winnick: Do you think there was any substance
to that lady's allegations?
Chairman
44. Who are we speaking about? Cathy Massiter?
(Mr Bickford) Yes.
Mr Winnick
45. No-one has questioned her integrity as far
as I know and she made some pretty sharp criticisms of the way
in which CND was being targeted, tittle-tattle about private lives
of leading CND people, Bruce Kent and others, which did not seem
to me to be really the task of MI5.
(Mr Bickford) Of course not. I agree. I must say that
I did not really see the substance in Kathy Massiter's allegations
actually being evident within the Security Service at the time.
Chairman
46. We are talking about slightly different
periods here, are we not? She was gone by the time you arrived
by several years.
(Mr Bickford) Yes, but I obviously had access to the
information. I came in 1987, so allegations before that are something
that I would not like to deal with here because I might mislead
you. What I am giving to you is my understanding when I joined.
Mr Winnick: That is a very fair response.
Mr Howarth
47. Can we move on to the whole question of
the need for secrecy? In your paper in December you said that
a re-assessment of what really needs to be protected is essential.
You do accept that there are certain areas where secrecy has to
continue to apply, for example in defence, foreign policy, intelligence,
law enforcement and commercial confidence. It is axiomatic that
the Security Service does have a greater requirement for secrecy
than other Government Departments. Can you give us an indication
of where you think the line ought to be drawn in the new circumstances?
(Mr Bickford) I think that the threats that one sees
at the moment really come from organised crime and that includes
terrorism and what the Americans like to call super terrorism,
terrorism using weapons of mass destruction. I tend to globalise
all this as organised crime for the sake of simplicity.
48. Are you including international terrorism
in that?
(Mr Bickford) Yes, I am.
49. Why?
(Mr Bickford) Because terrorism can be dealt with
on a number of levels. One of the levels at which it is dealt
with probably more often than most is by way of prosecution and
evidentiary proceedings through the courts. You can disrupt terrorists
but they come back. You can obviously use military action against
terrorists, but that does not necessarily dissuade them from continuing
terrorist activity, so at the end of the day your safety net is
to prosecute terrorists and hopefully take them out of activity
for a number of years while they are sent to jail. The evidentiary
proceedings for the Security and Intelligence Services are in
my view going to become more and more pressing. They have been
in relation to terrorism as we have seen over the last eight years
and the number of major terrorist trials at which the intelligence
agencies have given evidence. Therefore, secrecy in that respect
is going to be reduced because at trial evidence of intelligence
operations is going to be given. You may even use an informant.
Certainly in relation to organised crime, non-terrorist organised
crime, the use of informants is standard, in the United States
for instance. In the United Kingdom we will reach that position
as well. Informants are an essential element in building a case
against the senior elements of organised crime. Eavesdropping
evidence is becoming more common at trial and telephone intercept
is at present barred from being given as evidence but it is going
to become essential that telephone intercept is given as evidence
in the future, so another layer of secrecy goes. The other problems
for secrecy really lie in relation to the Internet and the explosion
of information exchange. If you go on to the Internet now you
can come across all sorts of people who belonged to the intelligence
agencies at one stage or another, particularly America, particularly
Russia, and you can gather information from them about the activities
of a state or a particular business and you can gather quite a
lot of information that you could not gather before. It was not
accessible.
50. Surely the information available on the
Internet is only what people choose to put there?
(Mr Bickford) Yes, of course.
51. Our enemies are unlikely to be providing
us with extensive secret information on the Internet.
(Mr Bickford) I think what I am saying is that you
can access the individuals much more easily to gather your intelligence.
If you look at the United Kingdom there are a number of private
intelligence firms at the moment that are expanding to gather
intelligence to assist British business or to protect British
businessmen when they are abroad. Those private firms have to
gather their information from sources abroad and those sources
have to be sources that have good access, and so that information
exchange is increasing. I think it will increase in relation to
the United Kingdom and, as organised crime is soon to become as
it were more out of control, because it is admitted to be out
of control at the moment by the United States authorities and
by the British authorities, the British public is going to demand
more and more information about the depredations of organised
crime so as to satisfy themselves that the necessary measures
are being taken. I see these two attacks on secrecy as gradually
diminishing the extent of secrecy as it stands at the moment.
52. You referred to the agents as playing a
vital role and that is something that we have also heard from
our visit. The protection of the identity of those individuals
must be absolutely crucial, must it not?
(Mr Bickford) Yes.
53. So that has got to be a whole area of secrecy.
How do we reconcile this increasing requirement to produce evidence
before the courts in a way that the courts will accept it and
yet at the same time protect agents who are putting their lives
at risk for their country?
(Mr Bickford) That is an extremely important question.
That is one of the roles of the legal advisers. The legal advisers
operate very closely with the operational officers in these operations
and one of their roles is to determine what evidence is going
to be required at trial not only by the prosecution but also by
the defence because under our system quite rightly the defence
must have access to any information that may assist it. If you
have an agent involved, the operation has to be conducted with
a view to protecting the agent's identity. That means that when
a matter comes to trial the agent's participation in any part
of that operation has absolutely no relevance to the trial at
all.
54. How can that be?
(Mr Bickford) That would be going into operational
detail. I am prohibited from doing that at the moment.
55. But are you satisfied that the agent's identity
can be protected under the present system?
(Mr Bickford) Yes indeed. What happens at the end
of the day is this, that all the information that the intelligence
agencies have gathered, all the files, all the telephone intercepts,
all the eavesdropping, actually go to the trial judge. The intelligence
agencies and the prosecution are in conversation with the judge
ex parte, that is, without the defence being present, explaining
what evidence they are actually going to put at the trial and
what evidence they want to keep secret. They are also explaining
the reasons for keeping the evidence secret, that there is nothing
relevant in that secret evidence to the defence. The trial judge
goes through that evidence and he then determines whether or not
the intelligence agencies have got it right or whether he agrees
with them. The trial then proceeds with the evidence that can
be passed on tot he defence, keeping the secret, non-relevant
evidence away from the trial.
56. That is a huge responsibility resting on
the shoulders of the trial judge, is it not?
(Mr Bickford) Yes indeed. This is a provision that
in fact we have borrowed from the Americans. The Americans have
the Classified Information Procedures Act which deals with this
particular issue, because they also recognise that there is a
problem. They introduced these provisions. We poached them and
in fact we extended them because the American provisions only
relate to national security and we have now extended them across
the board. The responsibility has to rest somewhere. In France,
for instance, the examining judge in terrorism cases has that
responsibility, but in fact it is a better system because, whereas
in the UK the intelligence agencies are going to the judge just
before trial, in other words they have been through the whole
operation and the lawyers and the intelligence operative officers
believe they have got the balance right, in France the intelligence
agencies and their lawyers are in constant discussion with the
examining judge as the operation progresses and the examining
judge determines on the spot whether something is relevant or
not and what can go into evidence to the ultimate trial. More
importantly, the examining judge determines the balance of rights
at that stage as well, which again is something that can only
be determined after a United Kingdom agency operation has been
completed.
57. There is a tremendous amount I would like
to ask you, Mr Bickford, but we must press on. Can you say to
what extent the position vis-a-vis the Security Service and the
Secret Intelligence Service differs? Do you think that one can
be more open than the other, the Security Service having responsibility
for matters within the United Kingdom, and the SIS with espionage
overseas? Do you think that one can be more open than the other?
(Mr Bickford) I think that is probably right because
the Secret Intelligence Service obviously has the foreign role
and that must relate to sensitive information in terms of foreign
relations, so obviously they cannot be as open as the Security
Service.
58. You have seen the extent to which the Security
Service is now open. We have got this wonderful glossy brochure
here. There is a lot of information but not figures attached to
it.
(Mr Bickford) It has improved over the years.
59. This obviously is a sea change from the
Cold War years. Do you think that they are taking a risk, given
that Russia could still revert to totalitarianism, or do you think
that the Security Service could be even more open than they are
in this?
(Mr Bickford) I think that they can be even more open
than they are in that. I go back to the problems of organised
crime and the increasing demand that we are going to see from
the public about the protections that are being given. The public
see the problems at the level of street crime and narcotics trafficking,
in children with drugs and so on, but above all that of course
you have the organisations that drive the narcotics into this
country, that launder the money. In relation to that, for instance,
the UN has calculated that there is about $500 billion worth of
narcotics trafficking going on worldwide at the moment. I think
there is going to be a general push towards the intelligence agencies
becoming more open about that sort of work. What are they doing
about it? How do they get involved in defeating organised crime?
What are the problems of organised crime? What are the problems
of terrorism and super terrorism and what are they doing to defeat
that? I see that there will be a demand for more openness in that
respect in the future.
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