Mr. Heald: The Minister's last remark is very useful. I am glad that she said that.
Clause 17(5) says that there should be no disclosure except that set out in (a) and then
(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.
How does the judge obtain the information to know that he should make an order for disclosure? In other words, how is the order triggered? Does the Crown
Prosecution Service give him the documents? If so, when and how does it do it?
Mr. Ruffley: Why does it do it?
Mr. Heald: Yes, why does it do it?
Jane Kennedy: The prosecuting counsel must satisfy himself or herself that nothing in the intercept material could assist the defence or undermine the prosecution. I hate quoting case law, particularly as hon. Members will know more about it than I do, but this is known as the Preston duty, which was confirmed in the House of Lords case.
I appreciate that my responses will not provide the detailed discussion of these issues that the hon. Member for Bury St. Edmunds sought. We have considered this subject many times in recent years, particularly in the past two years, and our considerations have included a number of specific studies, including, most recently, research into the experience of seven other countries operating an evidential regime.
No direct comparison with other countries is possible. In countries that allow intercept material to be used in evidence, the interception warrant is generally ordered by an investigating judge. Our criminal investigations are supervised not by judges but by the law enforcement agency. The difficulty with the proposal that we should move to the other regime lies in devising a system that ensures equality of arms between prosecution and defence that is both practicable and affordable. That is why we have said that we do not intend to go down the route of judicial warranting.
Clause 16 places a prohibition on the use of intercept material in connection with court proceedings and is straightforward. Clause 17 deals with the exemptions to that.
Mr. Heald: This is clearly a complex and legalistic area. Would the Minister be prepared to write to me and other members of the Committee to deal in a more legal way with the Justice points that I raised? Would she consider that useful?
Jane Kennedy: I am more than happy to do that and will make sure that hon. Members receive a copy. As far as I can, I shall answer the points that hon. Members have raised on the documents supplied by Justice.
Finally, how would a judge know that he could make an order? It would be up to the prosecuting counsel to say to the judge ``I invite you to make an order under this section''. The information would be provided to the judge in that way, thus clearly placing the onus on the prosecuting counsel.
This has been an interesting discussion, and one that I have found stimulating and testing. I shall answer the points raised in a letter to members of the Committee after giving further consideration to the comments that they have made.
Mr. Ruffley: I do not want to detain the Committee any longer than is necessary, and I welcome the Parliamentary Secretary's comments. It will be helpful to receive a written response to the series of questions put by my hon. Friend the Member for North-East
Hertfordshire and me relating to the points raised by Justice.
However, I would like her to underline one particular issue when she is going through the questions in Hansard. It is the use of the term ``exceptional circumstances'' in clause 17. The term does not appear to have any obvious provenance, and ``fairness'' would have been an obvious word to draw from case law. I am perplexed as to where ``exceptional circumstances'' has come from. I am always wary when we, as humble jobbing legislators on the Opposition Back Benches in Standing Committees, encounter terms such as this. Its use could have serious consequences for the prosecution of what will often be very sensitive cases.
Is it the Government's intention to incorporate the term into the Bill and leave it to the judges cheerfully to interpret what they think it means? Alternatively, is there a precedent in case law that defines its use? The Government do not appear to have borrowed from case law; if they had, they would not have used that term. The Parliamentary Secretary has offered to write to my hon. Friend on that point. It will be useful to have all our questions answered, but I am especially interested in the answer to that one. A lot could turn on that response, as it is clear that orders under clause 17 cannot be made unless a judge is satisfied that exceptional circumstances apply. We need, therefore, to know what those circumstances might be. I am unhappy about the term being interpreted ab initio once the provision passes into law, should the Bill receive Royal Assent.
Jane Kennedy: I was going to address this question during our debate on clause 17, but if I do so now it will not be necessary later.
Ministers offer examples with some trepidation, because they can give the Committee the opportunity to trot off down other avenues. I therefore offer this example advisedly. A defendant might be on trial with a group of others, charged with conspiracy to commit armed robbery. The evidence could suggest that they were all together at the time of the robbery, yet intercept evidence might show that this defendant was elsewhere at the time. In such a case, an admission could be made that the prosecution accepted that that defendant had not been present, but without having to say how it knew that.
I hope that that example will help to answer the question asked by the hon. Member for Bury St. Edmunds, and if it is possible to provide other working examples in my letter to the Committee, I shall try to do so.
Question put and agreed to.
Clause 16 ordered to stand part of the Bill.
Exceptions to section 16
Jane Kennedy: I beg to move amendment No. 54, in page 19, line 3, at end insert-
`( ) Where any disclosure is proposed to be or has been made on the grounds that it is authorised by subsection (3), section 16(1) shall not prohibit the doing of anything in, or for the purposes of, so much of any legal proceedings as relates to the question whether that disclosure is or was so authorised.'.
The amendment relates to subsection (3), and is designed to ensure that when intercept evidence is used in legal proceedings-perhaps because one party consented to the interception-it can be fully challenged.
We tabled the amendment, which we expect to be welcomed, to ensure that when intercept evidence is used in legal proceedings, the decision to use it can be fully challenged by all parties.
The amendment will apply to subsection (3), which relates to the disclosure of intercept material if it is obtained lawfully without an interception warrant. That could occur, for example, when both bodies consented to the interception or when the interception was undertaken as lawful business practice.
Many people have criticised the Interception of Communications Act 1985 because it was not sufficiently clear about the type of interception that can and cannot be introduced as evidence. I hope that clauses 16 and 17 will clarify the situation. We believe that the amendment will improve the situation even further. When evidence is used, it will be fully examined. That meets an observation that was made in a recent judgment in the House of Lords-Morgans on 17 February-which found that it would be absurd to allow unwarranted interceptions to be used in evidence and to make it impossible to challenge its legality.
We tabled the amendment to ensure equality of arms during legal proceedings when evidence of lawful but unwarranted interception was introduced. I hope that Committee members will welcome it.
Mr. Heald: Although I welcome the amendment for the reasons that the Parliamentary Secretary outlined, it drives a coach and horses through the argument that she advanced during our previous debate. If evidence of interception involving third parties can be presented and examined in court, despite the difficulties that the Parliamentary Secretary previously outlined, why cannot the regime that applies to surveillance evidence apply to intercept evidence?
Jane Kennedy: The amendment deals with the specific circumstances that I outlined. I have already explained why it is important for intercept evidence to be protected in the prescribed manner. I gave an example in which parties consented to an interception, which showed how the provisions will apply. The matter should be fully questioned in the legal system. The amendment will improve the Bill. It is in accordance with the decision that the House of Lords reached in February and it emphasises the importance of the equality of arms principle that we discussed in relation to clauses 16 and 17.
Amendment agreed to.
Clause 17, as amended, ordered to stand part of the Bill.
Offence for unauthorised disclosures
Question proposed, That the clause stand part of the Bill.
Mr. Allan: I want to discuss the position of whistleblowers in relation to the clause. Liberty and other groups have discussed the offences that are appropriate for unauthorised disclosures. It is an important subject, to which we may later return. We have not tabled amendments because we want the Government's intentions to be explained to us. I hope that they will respond to the situation that I am about to describe.
The clause develops a principle that the Labour party, when it was in opposition, back in the dark days of 1988, felt was important when it considered the Official Secrets Act 1989. I hope that we have, as a matter of principle, a commonality of interest. On other occasions during the Labour party's period in opposition, it was keen to protect the rights of whistleblowers across a range of services and areas. An individual might be involved in an interception, and might understand that a further fraud or other offence is taking place-we have discussed the possibility of accessing credit card details through the interception of e-mails. There have been investigations in organisations such as the National Crime Squad and the flying squad in London, which, sadly, have revealed cases of corruption. The individual concerned might have followed the normal procedures, such as referring to a senior officer, which might not have produced a result. At that stage, the individual might feel impelled to disclose the abuse of the interception to another party. In such circumstances, do the Government still intend the individual to be prosecuted?
The clause imposes a strict liability, for which there seems to be no defence. A statutory defence exists for talking to one's legal advisers, but none exists where disclosure took place in the interests of preventing further criminal activity. There are other public interest reasons for disclosure-for example, political exercises, where interceptions were for what were deemed to be inappropriate reasons. Such a public interest defence, which should be tested in court, is not in the clause. The Government should indicate their thinking in relation to the current wording of the clause, so we will know whether to return to the matter at a later stage. How could an individual defend himself if he felt that there was no alternative to disclosure?
We understand why there must be general provisions in clause 18. Clearly, if there were threats to secret service agents, for example, one would not want to give a green light to an individual to disclose. There could be a serious threat to the life and liberty of the discloser, even in criminal investigations, because other criminal elements might want to take action. However, we do not understand why the Government have not included statutory defences. Will it be possible to apply a test where there was no alternative to disclosure, and where those involved in interception, perhaps senior officers, have carried out further criminal activity?