Serious Organised Crime and Police Bill

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Mr. David Heath (Somerton and Frome) (LD): Good morning, Mr. O'Brien. The hon. Member for Sutton Coldfield (Mr. Mitchell) originally tabled four separate new clauses dealing with intercept communications, three of which attracted the signatures of my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) and myself. The version that did not do so is the one that the hon. Gentleman has not withdrawn. Whether or not that shows an aversion to our support, I do not know, but I regret it, because we share a view about the admission of intercept evidence. New clause 2 is our least favoured option because it does not deal with offences under the Terrorism Act 2000, which seems a perverse exclusion, given the circumstances in which we live.

The hon. Gentleman has explained that he does not believe that the new clause is drafted sufficiently widely. I shall not dwell on that other than to say that the principal reason for extending the admissibility of evidence is, in my view, the danger of terrorist activity. I take seriously the Privy Council report to which he referred—the Anti-terrorism, Crime and Security Act 2001 review. Lord Newton's committee proposed a package to strengthen our legal system and our powers
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of interdiction against the threat of terrorism and it makes sense to consider all aspects of that package rather than one or two in isolation.

As the hon. Gentleman said towards the end of his remarks, the Government face a huge dilemma in dealing with the Law Lords' decision in the Belmarsh case. I do not need to reiterate our position on that question: we believe that people should not be incarcerated indefinitely without being brought before a court, and that it is right to expedite in any way possible the bringing of people before a court to face charges. A clear difficulty at present is the inadmissibility of the evidence in the possession of the security services that is derived from intercept communication. Always when dealing with such issues we are creating a balance between the security of state and citizens and the interests of the individual. I have given the matter careful thought and the balance is clear to me: we should allow the material in question, provided that it has been properly gained, to be admitted in court.

Having come to that view—that in terrorism offences it is in the interests of justice and of the security of the nation to allow material derived from intercept to be admissible in court. Once one has crossed that rubicon, there is no logical reason why the admissibility should not be extended to other offences. The lock is not on the admissibility in court; it should surely be on the way in which the evidence is derived, with reference to restrictions on the derivation of intercept material in the Regulation of Investigatory Powers Act 2000. Material derived properly under RIPA should be admissible in court in respect of offences on which it provides evidence that would be of value to the court.

We must ask why the Government are being so tardy about dealing with the issue. I appreciate that these are difficult matters, but I suspect that the tardiness is not a result of an attempt to derive a careful balance between the interests of the state and the individual. We have already seen the Government's response to that question in the case of incarceration without trial in Belmarsh. There must therefore be reservations on the part of the security services about the use of material that they have obtained from GCHQ or elsewhere. That is an argument that Ministers need to have with the security services and they need to win it. It seems remarkable that the British system is so out of kilter with that of other countries.

The Liberal Democrats support the admissibility of intercept evidence. The Government have taken long enough to come to a decision and the Bill is an entirely appropriate vehicle for making the changes that most of us anticipate and many of us want. It is an essential part of deriving the balance, so that we can revisit some of the other provisions of the Anti-Terrorism, Crime and Security Act and come to sensible conclusions about how to protect our citizens and at the same time provide for a proper court procedure and for justice to be done.

Mr. Jonathan Djanogly (Huntingdon) (Con): I congratulate my hon. Friend the Member for Sutton Coldfield on his lucid and persuasive speech. It seems
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as though our policy on allowing evidential use of intercept material is inconsistent, irrational and impractical. Why has the Home Office still not completed its review of the topic, which would have allowed suitable measures similar to the Conservative amendment to be included in the Bill? The ''One Step Ahead'' White Paper of March 2004 expected the review to be complete by June 2004, and it was referred to by the then Home Secretary as part of his series of anti-terrorism legislation in November 2004. The Home Office itself said, in its summary of responses to the same White Paper, that most respondents were supportive of the measure.

Even Liberty does not support the present total ban on use of intercept material. It said in August 2004 that

    ''there are no fundamental civil liberties or human rights objections to the use of intercept material, properly authorised by judicial warrant, in criminal proceedings.''

The organisation cannot see the reason for the present distinction between intercept material that is banned and evidence from bugging, surveillance and eavesdropping that can be admitted, even if not authorised. Foreign intercepts can be used if obtained, Liberty says. Only the UK and Ireland maintain a total ban on intercept materials.

New clause 12 might not be the perfect answer, but I certainly support my hon. Friend in saying that we are being left behind other countries on a vital issue of national security. In November 2004 my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) accused the Government of being ''all talk'' on intercepts, and said that, despite the Home Secretary setting out that weekend a series of anti-terrorism measures including juryless trials and the use of wire-tap evidence in criminal trials, there was no legislation in the speech to provide for them. He described them as

    ''a Government who say that protection from terrorism is a priority, but not yet . . . There can be no better example of the Government's pre-occupation with talk, spin and newspaper headlines.''—[Official Report, 23 November 2004; Vol. 428, c. 19-20.]

I hope that today we will hear some positive news from the Minister. It is time for action.

Vera Baird (Redcar) (Lab): I apologise for being slightly late in arriving this morning, Mr. O'Brien.

It is believed that about 1,500 phones a year are tapped under Home Secretary's warrants, but, as has been made clear this morning, evidence thus derived can only be used for intelligence, although it is broadly believed that was used in the Belmarsh detention process. Evidence gained in that way is specifically not admissible in court, however—indeed, nobody can even ask in court whether a phone has been tapped. That applies if a phone has been tapped in a public telecommunications system, which means if I am on my landline and my phone is tapped, perhaps in the receiver, the evidence is not admissible; similarly, if the tap is somewhere on the line to the exchange—I understand I am using slightly old-fashioned language—that is not admissible. However, if the tap is between a base station in my house and the cordless
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phone in my hand, that the evidence is admissible, as that region is not part of a public telecommunications system but part of a private one owned by myself. If my phone is tapped on a private network, the evidence is admissible, as the tap is in a private telecommunications system—as in the case of the Assistant Chief Constable of Liverpool, Alison Halford, whose phone was tapped internally in a network owned by the police. Similarly, if prison phones are tapped, which they are all the time, that the evidence would be admissible because the telecommunications system is private.

The need for operational secrecy therefore seems odd, because it is quite plain that if, for technical reasons, the material becomes admissible, the fact that the tap is being done is often disclosed and the material used. As the hon. Member for Sutton Coldfield said, if one bugs someone's house rather than their phone, what is said on the phone will be admissible because a public telecommunications system is not involved—I am sure that it is technically possible using a sufficiently strong microphone to hear both ends of a conservation Phone taps are widely used in most of Europe, the US, Japan and Australia.

9.45 am

Let me tell the Committee about a case I was involved with just before I became an MP. It concerned an Anglo-Dutch drugs conspiracy, the arrangements for which were made by a Mr. Big in the UK and a Mr. Big in Holland. It seemed quite plain that the phones were being tapped at both ends, but no one could ask whether they were being tapped at the British end and none of the material produced here—if there was any—could be used. However, all the material tapped at the Dutch end was used, even though the calls were often initiated somewhere on the south coast of England. Although we do not use our own phone taps, we can use Dutch phone taps covering phone calls initiated in the UK. I do not understand the technology, but when the Dutch Mr. Big came to the UK, phone conversations held entirely in the UK between both Mr. Bigs were intercepted by the Dutch, and they were used even though the calls were made in the UK. That shows how illogical the position is. I doubt that the UK Mr. Big would have been convicted if not for those phone taps, which seems a shame.

It seems clear that the police have moved from rooted opposition, as has the Crown Prosecution Service. David Calvert-Smith, the former Director of Public Prosecutions, described the ban as

    ''a damaging restriction . . . weakening Britain's fight against organised crime, drug trafficking and terrorism'',

and he said that the admission of phone taps would assist enormously. Major criminals obviously take a great deal of care not to use land lines, or even mobile phones registered to them, regularly, but that does not mean that phone tapping them is impossible. I understand that the National Criminal Intelligence Service and MI6 are against it, but it is said that MI5 has long been reconciled to it, although it notes that

    ''We do not want to alert serious criminals to the ways that we catch them.''

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Customs is said to be guardedly open minded.

Meanwhile, as Opposition Members mentioned, moves are being made from the other vantage point. Liberty, always with one eye on civil liberties, regard it as acceptable for the fruits of phone tapping to be admissible. However, it says that the disclosure of material that would be necessary at trial might be an issue, and one can see the problem. Everything that undermines the prosecution or assists the defence has to be disclosed. If a phone has been bugged for two years and the Crown wants to use only 10 minutes, the prosecution is likely to have to disclose the rest of the recordings—even if they have not listened to the rest of them—because it could undermine the prosecution. That could be expensive and time consuming. It gives scope for cross-examination and risks undermining the Crown's case, but that is what trials are for and I cannot believe that it is impossible to solve that major problem.

The reports that I have read say that the Secret Intelligence Service and the electronic eavesdropping agency GCHQ claim that criminals and terrorists will be tipped off about their techniques if they are made public. However, Sir David Calvert-Smith said that the vehement arguments used by diehards are implausible. Criminals know already that their telephones are likely to be tapped. He said:

    ''It has been common knowledge for years.''

Experience shows how valuable tapping is as an intelligence tool. The argument is that it disrupts drug traffickers and serious Revenue fraudsters, and the benefits of allowing the fruits of phone tapping to be used in court must outweigh the disadvantages of exposure in court of details of law enforcement intelligence techniques.

A strong advocate of the admissibility of phone tap evidence is the new director of SOCA, Sir Stephen Lander, who, after 25 years in the secret services, says that he is an enthusiast for the move, although there would have to be robust arrangements to protect sources and techniques. He has said,

    ''Here's something that happens in almost every jurisdiction but not here, but the protection of techniques argument is a valid one''.

He describes the question as ''complicated'' but says that he has a lot of sympathy with the straightforward approach of asking, ''If everyone else can do this, why can't we?''

That is a good question, which is given added urgency now that it is believed that material of the kind in question has been used in the Belmarsh cases. If it were made admissible in criminal courts, it might at least partially solve the dilemma affecting the Belmarsh internees, by enabling them to be prosecuted using the material that has already been gathered. I should be grateful for an update on the position and on the Government's thinking.

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