Regulation of Investigatory Powers Bill

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Mr. David Ruffley (Bury St. Edmunds): I shall tread carefully because I do not want to pre-empt our discussion of clause 17. I take my cue from my hon. Friend the Member for North-East Hertfordshire, and risk testing your patience, Mrs Michie.

My hon. Friend pointed out that the provisions of clause 17 are relevant to our discussion of the broad principles of clause 16. The broad principle of the clause is that the prohibition on the use of intercept material as evidence will remain, but that a prosecution may be ordered to disclose it to the trial judge, who may in turn direct the making of admisison of fact. However, neither clause makes provision for the disclosure of material to the defence. My hon. Friend pointed out that, on the face of it, that appears to be a stark breach of article 6 of the European convention on human rights and of the principle of equality of arms, which in this context broadly refers to the rights of the defendant to be able adequately to mount a defence in proeedings.

We should remind ourselves of the way in which that principle could operate in relation to the clauses. First, the prosecution but not the defence will have access to potentially relevant evidence. The material may not be used by the prosecution as admissible evidence as such in court, but it would clearly assist the prosecution to frame further questions in the court's proceedings. It may give the prosecution hints about what to look for, although the admissible evidence itself may not directly help the prosecution.

Secondly, the clauses appear to involve a blanket provision. That means that the disclosure to the defence cannot be ordered even when the circumstances are exceptional. I want to focus specifically on subsection (5)(b) and subsection (6) of clause 17. Subsection (5)(b) states that a disclosure may be made to a relevant judge

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

Subsection (6) goes on to state that the judge

    shall not order a disclosure under subsection (5)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice.

That contains two key concepts-exceptional circumstances and essential in the interests of justice. The problem is that neither case law nor the definitions in the Bill provide a clear understanding of what those concepts mean. In the absence of any such case law, the Minister should explain what ``exceptional circumstances'' could mean.

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The third reason why we should reflect on how article 6 may be breached by clauses 16 and 17 is the reference to disclosure to a relevant judge in clause 17(6). That says nothing about how the judge might make an order for disclosure to him or herself alone. Although clause 16 sets up a prohobition on making disclosures, the prosecution will have to communicate to the judge that it has material that might be relevant to the proceedings. How is that to be done?

Justice gives an example of a communication that might be made in an ex parte public interest immunity hearing. In such circumstances, the question would be whether there are sufficient safeguards for the defence, as is required by recent ECHR decisions in Rowe and Davis v. UK, Jasper v. UK and Fitt v. UK. The problem that is revealed by those cases is that the procedures for disclosing intercept material to the judge and the judge's ability to order an admission in such cases sharply diverge from the provisions of the clauses.

The differences are as follows. First, the clauses contain no provision for disclosure to the defence in any circumstances. Secondly, the threshold for making admissions is not a fairness test, which is what case law would suggest, but the funny things that I have referred to-``exceptional circumstances'' and ``essential'' admissions under clause 17(6). Thirdly, the clauses apparently give the defence no opportunity to make representations during proceedings as to what the exceptional circumstances might be. That causes Justice much concern and, having done some digging, I am equally perplexed. I am sure that the Minister will want to explain how the two divergent propositions can be squared.

When exceptional circumstances make a disclosure essential in the interests of justice and the judge considers that admission should be made, clause 17(8) places restrictions on the sort of admissions that can be made. An admission cannot be made if it suggests that an interception has taken place: that is what clause 16(1) states. If the admission points to the existence of an interception or suggests that an interception has been made, it looks as if we are stymied and that the exceptional circumstances cannot operate because clause 16(1) will be in force. Perhaps the Minister will explain how that will operate because there seems to be a flagrant contradiction.

Finally, will the Minister explain why the judicial discretion that is exercisable under section 78 of PACE does not appear to be permissible if clauses 16 and 17 come into play? That point was made powerfully by Justice, which concluded, having examined case law, that prima facie evidence in criminal proceedings should be admissible if it is intercepted material, subject to the disclosure of evidence rules under the Criminal Procedure and Investigations Act 1996 and section 78 of PACE. It also said that that is the position for other material obtained by intrusive surveillance methods under part III of the Police Act 1997 and part II of the Bill. It concluded that if the objections can be overcome for one form of intrusive surveillance, it should not be too much to ask the Minister what the continued justification is for interception material to be treated differently. I am not sure how or why the difference arises and it is puzzling.

A further point arising from case law that has been thrown up by clause 16 and the exceptions in the subsequent clause was raised by the Criminal Bar Association in the context of international co-operation. The association said that, in the context of crime with an international dimension, foreign agencies often supply our law enforcement agencies with their own intercept material. When such material has been gathered according to the law of a foreign state, it is admissible in the United Kingdom. If a foreign agency believes that intercept material may be useful to a drugs bust in Dover by Customs and Excise, that material would be admissible in a United Kingdom court under Aujila and others 1998 2 Cr. App. R 16. I was surprised to read that the Criminal Bar Association believes that policy considerations in that case applied by the prosecuting authorities in the United Kingdom-Customs and Excise-prevented the use of such material as evidence in courts here. That resulted in the worst of both worlds, because the material, with the consent of the foreign donor intelligence agency, was disclosed to the defence in full but was not used in evidence. The association's observation from the case is that the capability to intercept was revealed, without use being made of the material in question.

Given that, I wondered why the Minister included these clauses in the Bill, because the case law and the statutes to which I referred, particularly section 78 of PACE, seem to contain a raft of contradictions. It would be hugely useful to have some elucidation as to why the clauses provide for one regime, while the case law and the statutes to which we have referred and to which Justice has drawn attention outside this place are so different. Therefore, I look forward to an interesting, technical trot round the block by the Minister. I shall not be as florid in my praise of her as my right hon. Friend the Member for Penrith and The Border, because I shall not refer to her as a girl. I see her as a competent, clever and legally skilled Minister, and in that spirit I look forward to a heavyweight and detailed anlaysis in response to my questions.

The Chairman: Order. The debate has ranged over clauses 16 and 17, which was reasonable, given the close connection between them. Therefore, if other hon. Members wish to make remarks on clause 17, separately from Government amendment No. 54, they may do so in this debate. Otherwise, I call the Minister.

Jane Kennedy: I fear that the hon. Member for Bury St. Edmunds (Mr. Ruffley) will be sadly disappointed by my response. I defer to hon. Member's knowledge of the law and of the technical detail in the Bill.

To use a phrase that Opposition Members seek to lasso as their own, I want to bring some common sense to our discussions. Instead of speaking of these issues in legal terms, quoting case law, perhaps it would help if I first answered the reasonable question that I was asked. If we deal with intrusive surveillance in one way, why can we not deal with the interceptions of electronic communications in a similar way?

Surveillance would normally revolve around one or two types of equipment that could be protected by application to the court. No third parties are involved in such surveillance. However, with interception we are dealing with a different set of circumstances. First, many types of technology are involved, not all of which can be intercepted. If we allowed such intercepted material to be used in court as evidence, that would expose the methods of communication that can be intercepted and those that cannot, so criminals would gravitate towards the service that cannot be intercepted.

Secondly, a third party is involved in obtaining the intercepted material-the communication service provider staff. Use of the evidence in court would almost certainly require such staff to appear in court for cross-examination, with the associated possibility of threats to them. Telecommunications operators have made it clear to the Government that they would strongly resist such a move.

As you said, Mrs Michie, the two clauses are closely connected. Clause 16 excludes evidence subject to the exemptions set out in detail in clause 17, so it excludes evidence, questioning or assertion in legal proceedings likely to reveal the existence or absence of a warrant. A similar provision is contained in section 9 of the Interception of Communications Act 1985, which the Bill repeals. Therefore, as the hon. Member for North-East Hertfordshire rightly said, this procedure has been followed for a long time.

The hon. Gentleman referred to the principle of equality of arms. Equality of arms is guaranteed by article 6 of the European convention on human rights and is preserved by the existing process. As neither the prosecution nor the defence can make use of the intercepted material, its disclosure to the prosecution or to a judge ensures that there is no disadvantage to the defendant. This is where we get into difficulties in dealing with two clauses, because disclosure to the judge is laid down in clause 17(5)(b). If the intercepted material clearly shows the defendant's innocence, the case would have to be withdrawn and it would be the prosecuting officer's responsibility to withdraw it.

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