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Rob Marris (Wolverhampton, South-West) (Lab): I point out to the hon. Gentleman that with a time limit on this debate—some of us have some sympathy with what he says—if we cannot hear the Government's position, we shall surely have to abstain.

Mr. Mitchell: The hon. Gentleman is absolutely right. It is outrageous that the Government have curtailed this debate to half an hour. The fault rests exclusively with the Government. I will give way to any Member who wishes to intervene on me apart from the Minister, who is responsible for the guillotine.

As things stand, a taped phone conversation between a suspect and a third party on a landline or a mobile phone, as part of a public network, is inadmissible. It can be used only for intelligence purposes. That contrasts significantly with intercept evidence that is obtained using other methods. Telephone conversations on an internal network can be used, and so can material where one of the people on the line is an undercover officer. There is no prohibition on the use in a criminal court of interceptions that have occurred within an internal network. Equally, if a listening device is placed in a person's house and a conversation is tape recorded or transmitted by a wireless device somewhere else and recorded at that location, that intercepted conversation provides admissible evidence in a court of law. Individuals can be wired up with recording devices attached to their body. Again, the conversations that they have with other people are admissible.

Taps from conventional bugs not attached to phones can also be used in court. A decision in 2004 by the courts held that a recording of what a person said on a telephone picked up by a surveillance device placed in his car, which did not record any speech by the other party, was not an interception of a communication in the course of its transmission. The recording was made at the same time as being transmitted, but the transmission was not recorded. There was just the voice from the sound waves in the car. Accordingly, evidence from the tap could be used in court. The case clearly highlights the absurdity of the current law.

These examples, and there are many others—the case of Ian Huntley comes to mind—show what a mess the law is on the admissibility of intercept evidence. In any event, the exceptional categories in section 18 of RIPA show that intercept evidence can be introduced in a criminal trial by the prosecution in cases involving what is currently defined as a relevant offence, which includes not only offences under RIPA—for example, making an unauthorised disclosure where an intercept warrant has been issued or renewed under the Official Secrets Act 1911—but cases that are before the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission.

I turn briefly to the proper procedures and safeguards for non-disclosure that are already in place—

Paul Farrelly (Newcastle-under-Lyme) (Lab): As the hon. Gentleman knows, I have some sympathy with his argument because I served on the Committee that considered the admissibility of wiretap evidence. Will he explain why in Committee he advanced a narrow and tightly drawn amendment, whereas he is now
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introducing a coach-and-horse amendment without any of the safeguards that he and other Opposition Members proposed in Committee?

Mr. Mitchell: The hon. Gentleman makes a fair point. In Committee, I was seeking to take a narrow view and test the opinion of the Committee. Since then I have talked to right hon. and hon. Members on both sides of the House and to lawyers outside the House. I have decided that a more permissive amendment would be appropriate. That is why I am speaking to the amendment.

7 pm

I was explaining that proper procedures and safeguards for non-disclosure are already in place. The House will know that, as a general rule, the prosecution has to disclose all material that it possesses—for and against its case. However, under the Criminal Procedure and Investigations Act 1996, applications can be made to the court when there is a dispute about whether the prosecution should disclose certain material in the public interest. When the prosecution prepares its list of materials to hand over to the defence, it can indicate which material it considers it need not disclose because of public interest immunity. It must also consider the relevance of the material. Where vast quantities of intercept are not relevant to any issue relating to the case, the disclosure rules do not require that this material be disclosed, irrespective of any question of public interest immunity.

To protect against any compromise in national security or to protect sources' lives, the prosecution's duty to disclose evidence is limited, so it need not disclose material where the public interest so dictates. In some cases, the prosecution will take the view that the material should be withheld—for example, where it is so sensitive that it is subject to public interest immunity. The prosecution must have genuine arguments for not disclosing material on public interest immunity grounds, which provide added protection for the defendant.

Public interest immunity also helps the UK to co-operate with other countries, because it allows the police and other prosecuting bodies to keep out of court sensitive material that other countries do not want published. So contrary to the Government's claim, the use of intercept material would not have a negative effect on the relationship between British and foreign security agencies.

Mr. Heath: The intervention from the hon. Member for Newcastle-under-Lyme (Paul Farrelly), who asked why the hon. Gentleman decided to extend the new clause to cover a wider range of offences, was a relevant one. But surely the answer is that there is no logic in restricting such a provision to terrorist offences, as the hon. Gentleman did in Committee—indeed, originally I shared his view—if one has the twin locks of the warrant concerning the acquisition of such information, and immunity from disclosure on public interest grounds.

Mr. Mitchell: The hon. Gentleman makes a very fair point.
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The withholding of sensitive information is an uncontroversial and unexceptional daily occurrence in the criminal courts. There is a clear public interest in preserving the anonymity of informers; of the identity of a person who has allowed his premises to be used for surveillance, and of anything that would reveal his identity or the location of his premises; of other police observation techniques; and of police and intelligence service reports, manuals and methods. The police order manual, for example, is protected from disclosure. Techniques relating to intercept systems, procedures, technology and methodology fall into the same category.

Mr. Chris Smith (Islington, South and Finsbury) (Lab): As a member of Lord Newton's Privy Councillor review committee, I should tell the hon. Gentleman that, with great respect, I believe that he has not got this new clause completely right and I shall not support it in the Division Lobby. However, many Labour Members are concerned about this issue and hope that the Home Secretary will give it very careful consideration in the coming months. Anything that gives us an alternative to the draconian method of locking people up without proper trial and charge—be it in Belmarsh or in their own home—is devoutly to be desired.

Mr. Mitchell: I am grateful to the right hon. Gentleman for his intervention in support of my case. I understand why he feels unable to join us in the Lobby tonight, but that is a pity, because he would have brought with him a very large number of his Labour colleagues who agree with the case that I am putting.

To summarise my case, almost every other country, including the US, allows the use of intercept evidence in court. Such evidence is deployed in those countries with significant success in cases involving organised crime and terrorism. Independent reports by Lords Lloyd and Newton, and 1999's consultation paper on the intercept of communications, recommended the use of intercept material as evidence. The use of such evidence is consistent with the principles of the European convention on human rights, and the law already permits its use.

Caroline Flint: There have been five Home Office reviews of this issue, some of which were overseen by the Leader of the Opposition when he was Home Secretary, and if we felt that there was an easy answer to it, we would want to pursue it. All of us want measures that enable us to convict criminals. We have offered the Leader of the Opposition and the leader of the Liberal Democrats, under Privy Council rules, the opportunity to meet the Prime Minister to discuss these issues. The fact is that we already use intercept evidence to convict criminals, and without prejudicing the close relationship between our intelligence services and the police. Indeed, no other country has such a close relationship, and not all countries make use of the European convention on human rights—

It being two and a half hours after the commencement of proceedings, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [3 February].

Question put, That the clause be read a Second time:—
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The House divided: Ayes 175, Noes 288.

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