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Session 2004 - 05
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Standing Committee Debates
Serious Organised Crime and Police Bill

Serious Organised Crime and Police Bill

Standing Committee D

Tuesday 18 January 2005

The Committee consisted of the following Members:

Chairman: Chairmen: Dame Marion Roe, †Mr. Bill O'Brien

†Baird, Vera (Redcar) (Lab)

†Blears, Ms Hazel (Minister for Crime Reduction, Policing and Community Safety)

†Brown, Mr. Russell (Dumfries) (Lab)

†Cairns, David (Greenock and Inverclyde) (Lab)

†Campbell, Mr. Alan (Tynemouth) (Lab)

†Clappison, Mr. James (Hertsmere) (Con)

†Clifton-Brown, Mr. Geoffrey (Cotswold) (Con)

†Djanogly, Mr. Jonathan (Huntingdon) (Con)

†Farrelly, Paul (Newcastle-under-Lyme) (Lab)

†Flint, Caroline (Parliamentary Under-Secretary of State for the Home Department)

†Grieve, Mr. Dominic (Beaconsfield) (Con)

†Griffiths, Jane (Reading, East) (Lab)

†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

†Heath, Mr. David (Somerton and Frome) (LD)

†Heppell, Mr. John (Lord Commissioner of Her Majesty's Treasury)

†Mann, John (Bassetlaw) (Lab)

McWalter, Mr. Tony (Hemel Hempstead) (Lab/Co-op)

†Mitchell, Mr. Andrew (Sutton Coldfield) (Con)

†Taylor, Ms Dari (Stockton, South) (Lab)

†Ward, Claire (Watford) (Lab)

Alan Sandall, Committee Clerk

attended the Committee


[Mr. Bill O'Brien in the Chair]

Serious Organised Crime and Police Bill

9.10 am

The Chairman: Order. Before we begin, I ask everybody in the Room to make sure that mobile phones are switched off, so that there are no interruptions.

New Clause 12

Interception of communications (No. 4)

    'In section 18(12) of the Regulation of Investigatory Powers Act 2000 (c. 23) (certain offences excepted from exclusion of matters from legal proceedings) after paragraph (j) insert—

    ''(k) any offence contained in an indictment in criminal proceedings instituted by the Serious Organised Crime Agency pursuant to section 5(2)(a) of the Serious Organised Crime and Police Act 2005.''.'.—[Mr. Mitchell]

Brought up, and read the First time.

Mr. Andrew Mitchell (Sutton Coldfield) (Con): I beg to move, That the clause be read a Second time.

I hope that we can make as much progress in our four sittings this week as we did last week. On reflection, the new clause is slightly more tightly drafted than I might have wished. However, I hope that it will allow us to have a general debate on the admissibility in courts of intercept evidence.

On Thursday, I was able to ask the Leader of the House a question about the Government's attitude towards the use of intercept evidence, and I asked him to recall the review of both Houses, published on 18 December 2003, that was carried out by a very senior committee of Privy Councillors into the Anti-Terrorism, Crime and Security Act 2001. That committee argued unanimously that intercept evidence should be permissible in British courts. In their response, the Government promised that they would comment early in 2004. There was then a White Paper, ''One Step Ahead'', on the Bill in which, as both the Ministers who are here will recall, the Government made it clear that they hoped to comment by June 2004. Last autumn, the then Home Secretary made it clear that he hoped to give a view on intercepts before the end of the year.

Now, here we are in 2005, and we still have no response from the Government on this important concept. I live in hope that the Minister will give us the definitive Government view today. I hope that she will tell us whether she accepts my amendment or whether the Government will provide their own new clauses on Report, allowing intercept evidence to be admissible in the British court system.

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The 2001 Act was reviewed by a committee upon which sat, among others, the right hon. Member for Islington, South and Finsbury (Mr. Smith), my right hon. Friend the Member for North-West Cambridgeshire (Sir Brian Mawhinney) and the right hon. Member for Berwick-upon-Tweed (Mr. Beith). That is, by any judgment, a cast of enormous distinction. The committee concluded that the blanket ban on the use of intercepted communications as evidence in court should be lifted to make it possible to prosecute more terrorists and other serious criminals and that the Government should examine the scope for more intensive use of surveillance to prevent and disrupt terrorism. That is stated near the beginning of that important report.

Even more compelling, further in to the guts of the report, based on serious evidence taken by our distinguished colleagues in Britain and elsewhere, the committee says in paragraphs 208 and 209 on page 57:

    ''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 in his 1996 Report, to which we have seen no convincing response, and by Lord Carlile—''

a distinguished and senior colleague once in this House—

    ''when giving evidence to the Home Affairs Select Committee on his review of the operation of part 4''

of the Act that I have mentioned

    ''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.''

I shall return to that point later.

    ''More recently, the Home Secretary has said that the issue is under review, and we understand that the review is likely to continue into the New Year.''

For the sake of clarification, I should assure the Minister that ''new year'' meant more than a year ago.

It is worth looking a little further into what the report said, because it is extremely relevant to our discussions this morning. It stated:

    ''The Regulation of Investigatory Powers Act 2000 forbids the use of domestic intercepts in UK court proceedings. There is, however, no such bar on the use of foreign intercepts obtained in accordance with foreign laws. Nor is there a bar on the admission of bugged (as opposed to intercepted) communications or the products of surveillance or eavesdropping, 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 . . . Other than the Republic of Ireland, we have not been able to identify any comparable country with such an extensive ban. In international operations (such as against al Qaeda) the USA has published details of its intercept capacity of landlines, mobile phones, satellite phones, diplomatic correspondence and satellite intercept of foreign communications . . . 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''.

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Further on, the Committee states:

    ''Relaxing the ban would not place an obligation on the prosecution to use intercepted evidence. We can also see the case for modifying the normal rules governing the disclosure of evidence so that, for example, the prosecution would not be obliged to disclose intercept evidence, or even its existence, unless they chose to rely on it.''

Finally, in paragraph 214, the Committee states:

    ''Consideration could also be given to having different classes of warrants authorising the interception of communications, some allowing evidential use of the product and others not. This is the approach taken by some other countries (where interception by the police and investigating judges in particular can be used evidentially).''

My contention this morning is that that authoritative report, at the very least, deserves a proper, formal and timely response from Home Office Ministers, which it has yet to receive.

We move on to the White Paper on the Bill. I wish to draw the attention of the Committee to paragraph 6.2.2, which reads as follows:

    ''The Home Office led review is expected to conclude by June 2004.''

The review referred to is the review into the use of intercept material. It goes on:

    ''If Government were satisfied that adequate safeguards can be designed to prevent the disclosure of sensitive capabilities, and that the review had concluded that the benefits of this move would clearly outweigh the costs, then it would bring forward legislation to allow the evidential use of intercept material.''

Our purpose this morning is to try to facilitate the Government in doing just that.

I turn directly to the new clause. Its purpose is to enable intercept evidence to be used in criminal proceedings brought by SOCA. The simplest way to achieve that objective is to amend the definition of the relevant offence under section 18(12) of the Regulation of Investigatory Powers Act. The Act establishes a structure for authorisation by warrant of obtaining intercept evidence. A general exclusion on the use of such evidence in criminal proceedings is set out in section 17, although that is subject to a number of limited exceptions in section 18 to do with the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission among others.

Although this is not the time to seek to establish a new system for the handling of intercept evidence in criminal proceedings generally, which I do not think can be entirely ignored, there is much to commend a system where the intercept material is scrutinised by an independent High Court judge who is not the trial judge. For the purposes of laying a foundation for the use of intercept evidence by SOCA, it is plainly more sensible to propose an amendment that is consistent with the exceptions for using intercept evidence that presently exist.

Simplicity is a great virtue, and the proposed amendment will provide a remedy to what many of us would argue was a glaring omission from the Bill. That the Government are not proposing that intercept evidence can be used in SOCA cases is severely limiting. Either serious organised crime is being taken seriously, on a par with official secrets, special immigration and terrorism cases, or it is not. For our fellow citizens, it is every bit as devastating as those
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cases. Since the Government persistently tell us that there is a clear link between serious organised crime and terrorism, it seems extraordinary that the use of intercept evidence in SOCA cases has not yet been proposed. The Opposition do not believe that this is the opportunity to propose a wholesale repeal of the Regulation of Investigatory Powers Act 2000, and in this instance we want to ensure that SOCA has the powers that it needs. As I said earlier, we urge the Government to produce the Home Office-led review which, as I have explained at some length, is still lacking.

There are a number of central issues under this new clause. First, the Government cannot constantly make the link between terrorism and organised crime and not give the agency that will deal with serious organised crime the powers currently given to those dealing with terrorism cases. Secondly, numerous reports over an extensive time scale have lead to the Government's being under pressure to allow telephone intercept evidence to be used in criminal proceedings. Thirdly, Britain is one of the only countries not to allow the use of telephone intercept evidence. Although I am not a lawyer, I am advised that we are the laughing stock of the international legal community in this respect.

The Government consistently point to a link between terrorism and serious organised crime. The Prime Minister did so when speaking about identity cards. The Home Secretary, on Second Reading of this very Bill, said:

    ''All nations are considering the interrelationship between organised crime and terrorism''—[Official Report, 7 December 2004; Vol. 428 , c.1044.]

We submit, therefore, that the concessions on the blanket ban on the use of telephone intercept evidence extended to a number of situations in the context of terrorism should be extended to the world of serious organised crime. If the Government propose to set up an organisation to deal effectively with organised crime, it must have the same jurisdiction and armoury as other bodies dealing with similar levels of crime.

Secondly, I turn to reports stating that the ban on the use of telephone intercept evidence should be lifted. In my opening remarks, I mentioned the 1996 report by Lord Lloyd, which recommended lifting the ban on the use of intercept evidence in his review of terrorist legislation. On 28 September 1999, a consultation paper entitled ''Interception of Communications in the UK'' was published. That recommended a lift of the ban on the use of telephone intercepts. I have already mentioned the recommendations made in the debate on the Regulation of Investigatory Powers Act 2000 and, more recently, in the Newton Committee report from which I have quoted extensively. The Government must respond to these calls.

In an international context, one of the great difficulties Britain faces in combating serious organised crime is obtaining the necessary evidence for convictions. It is that particular issue in the Lloyd report which I wish to draw to the attention of the Committee. In considering the arguments for and against the admissibility of telephone intercept
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evidence, he made several points, and I can do not better than to quote from one paragraph of his report. Lord Lloyd said:

    ''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. 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 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.''

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 well over 21,000 criminals. Louis J. Freeh, director of the Federal Bureau of Investigation 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 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.''

Louis Freeh said that under oath when giving the evidence to the Federal Communications Committee in Washington in 1999.

If telephone intercepts can be used so successfully in America, we need to hear why the Government feel that conditions in Britain are so different that they would be of no help to us. Indeed, not allowing intercepted telephone communications to be admitted in evidence is completely illogical, particularly as other intercepted conversations are admissible. For example, if a listening device is placed in a person's house and a conversation is taped recorded or transmitted by a wireless device and recorded somewhere else, that intercepted conversation is admissible in evidence. Individuals can be wired up with recording devices attached to their bodies, and their conversations with others are admissible.

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Frankly, UK law on the subject is a mess. UK intercepts can be used in foreign courts, and presumably vice versa. However, the Government did not accept the case for removing the ban on the use of intercepted communications when the Regulation of Investigatory Powers Act 2000 was discussed because they felt that allowing the use of intercepted communications as evidence would expose the authorities' capabilities and allow criminals to take more effective evasive action. That strikes me as a ludicrous argument. It suggests that serious criminals in Britain, whether or not they are members of the United Kingdom Independence party, do not talk to their opposite numbers internationally, particularly in America. If the Government believe that, they must think that British criminals are an extremely insular bunch.

As I explained earlier, in operations such as that against al Qaeda, the USA has published details of its intercept capacity, by category and in considerable detail. We should of course bend over backwards to meet the concerns of the intelligence and security services. The Opposition understand that a balance needs to be struck between the public interest in prosecuting cases and the public interest in maintaining the effectiveness of our intelligence-gathering procedures and capabilities. However, we believe that if telephone intercepts cannot be used evidentially, that balance has not been struck.

Of great importance to our case is the fact that relaxing the ban would not place an obligation on the prosecution to use intercepted evidence. The amendment would simply allow SOCA to submit intercept evidence in court; SOCA would stand on a par with the other agencies that deal with serious crime and terrorism. In other words, it would be SOCA's and the prosecuting authorities' call. They would not have to use it.

9.30 am

I admit that there are questions of court procedure. If Parliament were to agree in principle that intercept evidence could be used, I fully understand that secondary legislation might be needed and that the Government would have to make decisions about how that should be handled and about court procedure, and so forth. Above all, however, the new clause is declaratory and would give the Government a chance to respond, at long last, to my points and to the reports.

In summary, first, we live in a new era after 9/11—that is common to us all. That has imposed great pressures on our judicial system. No doubt, the Government are considering the Law Lords' decision on those who are detained at Belmarsh. I fully understand the Government's argument that, given the new circumstances, some people in our society are so dangerous that they must be locked up. However, if we can bring such people within the judicial system, we certainly should. It may be that allowing the use of intercept evidence will indeed bring some of those people inside the judicial system, which is very much to
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be desired. Clearly it is undesirable to lock them up and throw away the key. We fear that as yet the Government have failed to strike the right balance.

Secondly, I am concerned that the British obsession with secrecy is getting in the way of making the right decisions on intercept evidence. As I said earlier, the argument that British criminals are so insular that they do not know the capabilities of virtually every other country in the world that uses intercept evidence does not stand up to serious scrutiny. Will the Minister confirm what is widely believed, namely, that the opposition of the three principal intelligence-gathering agencies and the police to the use of intercepts no longer holds and that at least one of those bodies, if not two, no longer objects to the use of intercept evidence in the British courts?

Thirdly, the inconsistencies in our present approach are legion. I understand that both legally and illegally obtained overseas intercept can be used in UK courts and that overseas courts can use legally obtained British intercept material—and, presumably, illegal material as well.

Finally, the proposed new clause would not introduce compulsion. It is an enabling measure that would enable SOCA or the prosecuting authority—perhaps following the Australian model of involving a judge, perhaps even a separate judge to the one trying the case—to use such intercept evidence where appropriate. No one would have to use such evidence, but it would be available to the prosecuting authorities.

I hope that the Government will consider my arguments seriously. If they do not like the new clause but decide that it offers the right way to proceed in principle, we shall table amendments on Report to make such powers available to the British court system.

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Prepared 18 January 2005