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Mr. A. J. Beith (Berwick-upon-Tweed) (LD): I was a member of the Newton committee. Will the hon. Gentleman bear in mind the fact that the primary use of intercept material is the acquisition of intelligence, not prosecution? As long as that point is recognised and people realise that the number of occasions on which intercept evidence can be used for prosecution may be few and limited, I accept his case that the law should allow its use.
Mr. Mitchell: Yes; I accept the right hon. Gentleman's point about how such evidence is gathered.
Turning to how intercept evidence is used in other countries throughout the world, hon. Members will appreciate that it is routinely deployed by prosecuting authorities in the United States and European countries with the exception, as I have already mentioned, of ourselves and southern Ireland.
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As I said in Committee, Lord Lloyd of Berwick explained foreign countries' position on the use of intercept evidence in his inquiry into anti-terrorism legislation, which was published in 1996:
"The first and most obvious argument is that evidence of intercepted material is admissible to prove guilt in each of the countries which I have visited, and in every other country of which I have knowledge. The United Kingdom stands alone in excluding such material. Thus in the United States the use of intercept material in evidence is regarded as essential. In many instances, including high-profile cases involving the New York Mafia, convictions otherwise unobtainable have been secured by the use of intercept material. I put to officers of the FBI the suggestion that they were having second thoughts about the use of intercept material. I could find no support for this suggestion."
The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint): The hon. Gentleman is quoting Lord Lloyd's report from 1996. The then Home Secretary, who is currently Leader of the Opposition, decided that Lord Lloyd's recommendation on intercept evidence should not be taken forward without a wider review. What has changed since then?
Mr. Mitchell: At least my right hon. and learned Friend the Leader of the Opposition responded, which is more than the Government have done. The Government took more than a year to respond to the publication of three separate reports.
I shall continue with the quotation from Lord Lloyd:
"In France I was told that intercept material has proved very valuable in terrorist cases. Thus, some 80 per cent. of the evidence against those suspected of involvement in the 1995 bombings is derived from intercept. Similarly, in Australia interception is regarded as an 'extremely valuable aid to criminal prosecution' . . . 664 prosecutions for offences ranging from murder to serious fraud were based on intercepted material, nearly 500 of those prosecutions being for drug offences. Convictions were obtained in 87 per cent. of the cases. Often, when presented with the evidence of an intercept, the defendant pleads guilty."
That is Lord Lloyd's considered opinion.
In Canada, the use of lawful interception evidence in court has been highly successful, with a conviction rate of more than 90 per cent. In 2001, lawful interception access helped to arrest approximately 100 organised criminals and solved 13 murder cases involving those individuals. In 2000, lawful interception access resulted in the seizure of more than $100 million in drugs and the conviction of several criminals for importing or producing drugs.
6.45 pm
In America, Congress passed the Omnibus Crime Control and Safe Streets Act in 1968. Title 3 of that Act contained the first comprehensive federal legislative framework governing electronic surveillance for use in criminal investigations. Between 1987 and 1997, electronic surveillance conducted pursuant to title 3 assisted in the conviction of more than 21,000 criminals. In evidence to the Federal Communications Committee in Washington in 1999, Louis Freeh, director general of the FBI from 1993 to 2001, said:
"As demonstrated by the lives saved and the important investigations and prosecutions successfully completed, the use of electronic surveillance has served the public extremely well . . .
- Indeed, law enforcement agencies at all levels of government have uniformly found electronic surveillance to be one of the most important—if not the most important—sophisticated investigative tools available to them in the prevention, investigation and prosecution of many types of serious crimes. This tool has been critical in fighting terrorism, organised crime, kidnapping, drug trafficking, public corruption, fraud, and violent crime, and in saving numerous innocent lives. In many of those cases, the criminal activity under investigation could never have been detected, prevented, investigated, or successfully prosecuted without the use of evidence derived from court-authorised electronic surveillance."
In Britain, a chorus of heavyweight, authoritative and expert opinion—most recently, Metropolitan Police Commissioner Sir Ian Blair—favours lifting that ban. As I have said, Lord Lloyd recommended lifting the ban on the use of intercept evidence in his review of anti-terrorist legislation in 1996. The recommendation was made again in the debate on the Regulation of Investigatory Powers Act 2000, section 17 of which maintains the ban on the use of intercept evidence in court that was previously contained in the Interception of Communications Act 1985.
As my right hon. Friend the Member for North-West Cambridgeshire (Sir Brian Mawhinney) has said, most recently the Newton committee, which was composed of senior Privy Councillors led by Lord Newton, published a report into the Anti-terrorism, Crime and Security Act 2001 on 18 December 2003. That report recommended that the blanket ban on the use of intercepted communications in court should be relaxed. Lord Newton and his highly experienced colleagues concluded:
"In our view, one way of making it possible to prosecute in more cases would be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court. This was also the view reached by Lord Lloyd . . . to which we have seen no convincing response and by Lord Carlile when giving evidence to the Home Affairs Select Committee on his review of the Operation of Part 4 (of the Anti-terrorism, Crime and Security Act 2001)."
The Government did not accept the case for removing the ban on the use of intercepted communications as evidence when the Regulation of Investigatory Powers Act 2000 replaced the Interception of Communications Act 1985. The reasons given were, essentially, that allowing the use of intercepted communications as evidence would reveal the authorities' capabilities, prompting criminals to take more effective evasive action.
The Regulation of Investigatory Powers Act 2000 forbids the use of domestic intercepts in UK court proceedings, but no such bar exists to the use of foreign intercepts obtained in accordance with foreign laws. Bugged, as opposed to intercepted, communications or the products of surveillance or eavesdropping are also not barred, even if they were not authorised and were an interference with privacy. There is no bar on foreign courts using British intercept evidence, if the intelligence and security services are prepared to provide it.
Mr. Hogg:
My hon. Friend has made the point that one of the Government's positions is a fear that the use of intercept evidence will persuade prospective terrorists not to use particular methods of communication. However, mast evidence—where a mobile telephone was receiving—is used in many criminal cases, but that
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has not persuaded criminals to desist from using mobile phones. Offenders go on using mobile phones, although mast evidence has proved critical in many cases.
Mr. Mitchell: My right hon. and learned Friend is right, and I shall come to the confusion about general intercepts of mobile phones in a moment.
I want briefly to discuss the compatibility between the use of intercept evidence and the European convention on human rights, which I mentioned earlier. Intercept evidence does not infringe the ECHR, whereas house arrest does. The ECHR is clear: intercepted communications do not infringe human rights and liberties provided that they are used proportionately. In other words, intercepted communications must serve a pressing need and be utilised in accordance with the law and in pursuit of one of the legitimate objectives spelled out in article 8(2). Article 8(2) refers to acting
"in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In respect of article 6, the Khan v. United Kingdom case clarified the legitimacy of using intercept-type surveillance evidence. In respect of article 8, the case which was listed in the court report of The Times on 27 May 2004 verified the fact that the use of intercept communications complies with UK law and is compatible with the article.
There has been overwhelming support for a change in the prohibition on using intercept evidence from all quarters of society. Commentating on the Home Secretary's statement in response to the House of Lords's decision on the Belmarsh detainees, the director of Liberty, Shami Chakrabarti, said as follows:
"The Home Secretary is right to show respect for the House of Lords damning ruling. However, temporary restrictions upon a suspect's liberty are only legitimate as long as a criminal charge and trial are in prospect. We urge the removal of the legal bar on intercepted material being used in trials. Adherence to the rule of law should not be a game of cat and mouse. The Government should not swap one human rights 'opt out' for another."
Why are the Government so set against the use of intercept evidence in court? That is the next question that we must consider. The Government's argument for non-disclosure of this evidence has been based on the following rationale: first and foremost, technology is changing so fast that any regime put in place would soon be outdated; secondly, the fear that allowing intercept evidence heard in court could compromise national security, damage relationships with foreign powers or the intelligence services, or threaten the lives of sources; thirdly, they are also of the opinion that there is a widespread misconception that the making of intercept evidence admissible would increase the chances of convicting detainees; fourthly, the final argument is that once intercept evidence has been disclosed there may be a requirement to disclose the whole of the tapped conversation. That could be a passage of 10 minutes but one that had been tapped for a number of years.
These arguments have not persuaded many. Justice, the all-party law reform group, has also addressed the arguments advanced by the Government. It states:
"If the intelligence services of the United States, France, Israel, Canada and Australia can survive the use of such evidence in their courts, then British spies are surely equal to the challenge."
The Director of Public Prosecutions, Ken Macdonald, has made it clear that he backed the idea, and anti-terrorist sources stated that MI5 and MI6 have no objection in principle to such a move, but that the time and resources required to allow the product of telephone taps to be used as evidence in court would far outweigh the potential disadvantages.
What is the problem? The Government did not accept the case for removing the ban on the use of intercepted communications as evidence when the Regulation of Investigatory Powers Act 2000 was before the House, which replaced the Interception of Communications Act 1985. That was because they felt that allowing the use of intercepted communications as evidence would expose the authorities' capabilities, allowing criminals to take more effective evasive action. That, with the greatest respect, is complete nonsense. To begin with, it is not the impression that one gains from reading Lord Lloyd's recommendations on the matter. It also assumes that British serious criminals are a peculiarly insular lot whose information gathering does not penetrate far overseas.
In international operations, such as those against al-Qaeda, the US has published details of its intercept capacity in respect of landlines, mobile phones, satellite phones, diplomatic correspondence and satellite intercept of foreign communications. While the concerns of the intelligence and security services are understandable, it is clear that a balance needs to be struck between the public interest in prosecuting cases and the public interest in maintaining the effectiveness of intelligence-gathering procedures and capabilities. By excluding the use of potentially critical intercept evidence in the courts, this balance has not been struck.
Lord Newton's report put it very well:
"We understand the concerns of the intelligence and security services, which include not only the protection of sources and methods but also the need to ensure that interception for intelligence purposes is not impeded by the imposition of complex procedures to meet evidential requirements. We recognise that a balance has to be struck between the public interest in prosecuting particular cases and the public interest in maintaining the effectiveness of intelligence gathering techniques and capabilities. We consider, however, that the balance has not been struck in the right place if intercepted communications can never be used evidentially."
I remind the House that, under the new clause, relaxing the ban would not place an obligation on the prosecution to use intercept evidence. It would simply allow the submission of intercept evidence in court and stand on a par with what is available to other agencies dealing with serious crime and terrorism. What is more, there are already eclectic and disparate cases in which intercept evidence is used in criminal courts, albeit as an exception to the general rule, and there has not been any damage to police or intelligence service operational capabilities and methodology. I submit that these experiences puncture the Government's objections to the use of intercept evidence and render the present state of the law in this area quite ludicrous.
I turn to some examples of why the present law on the non-disclosure of intercepts is ridiculous—
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