Regulation of Investigatory Powers Bill

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Jane Kennedy: I have only a few words to say on this, but I hope they will reassure the hon. Member for Hallam.

Clause 14 updates the Interception of Communications Act 1985. It brings the provisions of that Act forward into the modern age in order to deal with the electronic communications we have today. I can reassure the hon. Gentleman on the disposal of intercepted products by saying that all the intercepting agencies take the issue very seriously. They have strict operating procedures and they destroy material not covered by the warrant. The safeguards are subject to close scrutiny by the interception of communications commissioner, Lord Nolan. We take seriously the misuse of any such material.

As to whether the safeguards are stringent enough, the number of people to whom any material is made available and the disclosure and copying of such material is strictly limited to the minimum necessary for the authorised purposes as set out in the clause. As to a right of redress, anyone who believes that their communications have been unlawfully intercepted may apply to the tribunal established under the Bill for redress. I hope that reassures him though my comments have been brief.

This clause is detailed. It restricts the use of intercepted material to the absolute minimum necessary for the authorised purposes. As I said in my opening comments, the clause imports the safeguards set out in section 6 of the Interception of Communications Act 1985 and updates them. That is a necessary part of building into the Bill precisely the safeguards that concern the hon. Gentleman. I hope that he will support the clause.

Question accordingly agreed to.

Clause 14 ordered to stand part of the Bill.

Clause 15 ordered to stand part of the Bill.

Clause 16

Exclusion of matters from legal proceedings

Question proposed. That the clause 16 stand part of the Bill.

Mr. Heald: First, I thank Justice for providing me with a briefing on clauses 16 and 17. There is a certain amount of inter-relationship between the two clauses, which means that in discussing clause 16 it is necessary to mention clause 17, although clearly clause 16 is the main focus of my remarks.

It has been traditional to prohibit the use of evidence that comes from interceptions, and clauses 16 and 17 continue that tradition. However, that tradition began a long time ago. Certainly it was the regime when the Interception of Communications Act was passed in 1985. Since then a lot of water has flowed under the bridge in terms of the way in which the courts deal with sensitive evidence. Under parts II and III of the Police Act 1997, the evidence obtained from, for example, surveillance activities is admissible, but subject to a particular regime under the Criminal Procedure and Investigations Act 1996.

5.30 pm

As I understand it, a police disclosure officer, or any official dealing with a case involving a defendant, gives general information about the sensitive material that has been obtained-details about informants, surveillance, undercover operations-which is listed and sent to the Crown Prosecution Service. The CPS has a duty to disclose to the defence material that it considers might undermine the prosecution case. However, in respect of sensitive material that it would not be in the public interest to disclose, it must seek a court ruling on whether the material should be disclosed. The CPS must also disclose to the defence the schedule of non-sensitive material, but sensitive material would not be disclosed. There is then a procedure whereby, if the prosecutor decides that the material is within the criteria for disclosure, but believes that a court needs to make a ruling on public interest grounds, that is determined in one of three ways using the procedures in various cases that have been decided.

One method is an inter partes hearing, where both the defendant and the prosecutor are represented and there is a full hearing in front of a judge. Another procedure is an ex parte application, where the defence is notified. Then there is what could be described as an ex parte ex parte application, where there is no notice to the defence and the whole matter is dealt with secretly. There are three levels because the information can be very sensitive, so it has always been thought right to deal with it secretly and securely. That regime is now generally accepted, although some difficulties arise about the quantity of disclosure being required at present.

If all this sensitive information is already being dealt with by the courts, using the public interest immunity procedure that I have outlined, why should evidence obtained by interception be treated differently? Information obtained by surveillance can be just as sensitive as that obtained by interception, and the requirement to keep it secret can be the same. Modern surveillance techniques are very sophisticated. The question being asked widely by lawyers is why the Government do not take the opportunity to have one coherent system, so that our courts do not run in two different directions over much the same category of evidence. After all, it is sensitive material, whether it is obtained by interception or surveillance.

Justice argues that having two separate regimes is a problem, and I should be interested to hear the Minister's views on that. An element of unfairness creeps into clauses 16 and 17 in relation to article 6 of the European convention on human rights, which guarantees a defendant a fair trial. The principle established in cases is equality of arms-the defendant should not be put in a worse position than the prosecutor in terms of evidence, cross-examination and running his case. Clause 17(5) states:

    Nothing in section 16(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to-

    (a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or

    (b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.

That contemplates a problem of procedural and substantive fairness. The prosecutor could be armed with material that is helpful in framing cross-examination-it cannot be adduced in evidence because of clause 16, but he can ask questions of the defendant while fully armed with such knowledge. The defendant and his legal team will not have that advantage, which poses a problem in terms of the equality of arms principle. Does the Minister also recognise that difficulty?

Justice states:

    Even though the material may not be used by the prosecution as admissible evidence, it nevertheless may assist the prosecution as to how it conducts its case, including the asking of questions based on knowledge of the material. Second, it is a blanket provision whereby there are no circumstances when the merits of disclosing to the defence may be considered.

I would be interested to hear what happens if the judge becomes aware of such material, as it is not explained how that would occur. Justice states:

    Although clause 16 sets up a complete prohibition on making disclosures in legal proceedings, the prosecution will have to communicate in some way to the judge that it has this material and that it might be relevant to the proceedings. One question is how is this to be done?

Will not the judge be put in an impossible position in terms of providing a just hearing, even within the principles of natural justice, never mind article 6 of the ECHR? If he becomes aware of information that the prosecution could use for cross-examination purposes-not in terms of making allegations, but as useful background information-what can he do about it? The answer is nothing. All he can do is insist that the prosecution makes an admission of fact. However, that may not be the issue. Often, the kind of information available enables the targeting of questions, which is a huge advantage in cross-examination.

Furthermore, Justice argues that the procedure for disclosing intercepted material to the judge and ordering an admission fall far short of the PII procedures that I mentioned. There is no provision for disclosure to the defence in any circumstances, even when justice requires it. The threshold for making admissions involves not fairness, but exceptional circumstances. There is no opportunity for the defence to make representations, even in a general sense, about that category of evidence. An admission, even if it was considered to be essential, may not be made if making it would breach the provisions of clause 16(1). It is hard to see how a fair trial could follow in that situation.

In the briefing, Justice states that

    lawfully intercepted material should be prima facie admissible as evidence in criminal proceedings, subject to the usual disclosure of evidence rules under the Criminal Procedure and Investigations Act 1996 and judicial discretion under section 78 of PACE.''

Before the more recent provisions came into force-in the old days-the traditional argument involved saying, ``This matter is so secret that any knowledge of any kind about intercepted communication or about any of the procedures would be terribly dangerous to reveal.'' The Minister will probably say that today. If some surveillance equipment, much of which is highly sophisticated and can be used for exactly the same purposes, may be subject to the procedure-courts deal with those matters every day of the week-why cannot the procedure apply in this context? I ask that in a spirit of genuine inquiry and because Justice made a strong case about that in its briefing.

We thought about tabling a relevant amendment, but I want to hear the Minister's response. Her reply may satisfy us totally, but if it does not, she may hear more about this matter on Report.

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