Serious Organised Crime and Police Bill

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Mr. Dominic Grieve (Beaconsfield) (Con): I listened with interest to the hon. and learned Member for Redcar (Vera Baird) and to my hon. Friends. I agree with the sentiments that they have expressed. It seems to me that the key issue is not the admission of the evidence of the contents of the intercept on which the
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prosecution might rely to secure the conviction—indeed, if that were the only issue the continuing reluctance to make use of intercept evidence would seem positively crazy and perverse. The problem, which was touched on lightly by the hon. and learned Lady, is the status of intercepted material as unused material in any prosecution. It would not be good enough for the prosecution to say, ''Here is the evidence of the intercept of a telephone conversation of 24 June between the two Mr. Bigs,'' if they also had records of intercepts of all the other conversations that Mr. Big had had in the previous 12 months, because there would be a duty to disclose that to the defence, too, as unused material. I assume that that is the reason why the Security Service has always shown itself so reluctant in the past to depart from the existing slightly bizarre state of affairs, in which the existence or otherwise of intercept material is simply rubbed out of the picture, so that no one can mention it in court, the prosecution can not rely on it, and, for that matter, the defence can have no access to it, even though a defendant might say, ''I suspect that my telephone was intercepted on a day six months ago and that evidence, if I have it, would show that I am not guilty.'' Admissibility cuts both ways. I suspect that the real problem for the Security Service is the way in which the evidence in question might lead to other intercepted material, besides that on which it wants to rely, being revealed.

I hope that the Minister will feel able not only to deal with the specific point, but to engage in some creative debate about some of the surrounding problems. If the issue that I have identified is the nub of the matter that is preventing the Security Service from allowing intercepted material to be adduced in evidence, we must think creatively about whether we can find ways to get round that problem. As the Minister is aware, there are ways in which unused material may currently be subject to public interest immunity prevention from disclosure. The judge must make the decision whether the material is so sensitive that it should not be disclosed to the defence. It therefore does not seem to me to be beyond the bounds of the possible to devise suitable rules for such an approach. However, the Committee must understand, as we embark on a very important debate, that if one decides to allow the admission of material on which one wishes to rely to secure a conviction, it is inevitable that other material relating to the defendant that might either be prejudicial to the operation of the intelligence services, or help the defendant to secure an acquittal, will have to be scrutinised in some way at a judicial level in the courtroom process. That will cause difficulties.

That is not a reason, however, not to try to find a way through the problem. It is clear—starkly clear, in the Belmarsh context—that if we are at the stage of detaining people without trial even though adducible evidence on which they might be convicted is available, we are doing both ourselves as a state that supports the rule of law, and those whom we detain, a singular disservice. The matter is becoming increasingly urgent. Prior to detention without trial at Belmarsh, it could have been described as of abstract academic interest
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only, but that is no longer the case. That is why it is so important that the Minister makes a full response today.

Mr. Tony McWalter (Hemel Hempstead) (Lab/Co-op): There is perhaps a new opportunity to deal with such matters rather differently from how they have been dealt with of late. I am a member of the Select Committee on Science and Technology, which in 2003 issued a report entitled ''The Scientific Response to Terrorism''. The Home Office opposed, root and branch, almost every suggestion that our Committee made. We wanted American-style openness about the way in which such matters are dealt with, but the Home Office wanted clam-like silence.

One result of the criticisms that we made in the report was that the Home Office finally appointed a chief scientific officer, to get credible information about the technical capacity to deal with some of the issues that we raised. We have an opportunity to discard the tradition of regarding silence and the cloak as the most effective way of dealing with such problems, and to accept the fact that criminals who devote their lives to such matters generally know a great deal about de-encryption techniques for messages and the like. Hiding things might have been wonderful in the days of the enigma code, but it is no longer effective. We need to deal with such matters in a new and different way.

The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint): The contributions from the hon. Members for Sutton Coldfield, for Somerton and Frome (Mr. Heath) and for Huntingdon (Mr. Djanogly), my hon. and learned Friend the Member for Redcar, the hon. Member for Beaconsfield (Mr. Grieve) and my hon. Friend the Member for Hemel Hempstead (Mr. McWalter), illustrate how complicated the issue is. There is no evidence that other countries are more successful than the UK in their use of intercept to tackle terrorism. As my hon. Friend the Minister for Crime Reduction, Policing and Community Safety knows well, people from around the world come to the UK to talk with us about how we organise our defences against the threat of terrorism.

Although I do not accuse hon. Members of doing this, we should be careful when talking about how to tackle terrorism not to lay a negative challenge at the door of those who, through the gathering of intelligence, defend us from terrorism every day, just because we have particular rules about the use of intercept. It is also important to recognise that the use of intercept in the UK as an intelligence-only tool has led to some impressive results. In 2003, interception led to the seizure of 26 tonnes of illicit drugs and 10 tonnes of tobacco, the detection of £390 million of financial crime and 1,680 arrests. As the interception of communications commissioner, Sir Swinton Thomas, stated in his most recent annual oversight report:

    ''It is my view that in 2003, as before, interception played a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means.''

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We know that, under the current rules, interception helps to prevent terrorist atrocities through effective disruption and that it enables the placing of enforcement teams to catch criminals red-handed in possession of contraband. That is important, because those outside the Committee listening to some of the debate might think that intercept intelligence is not being used to tackle terrorism and serious organised crime in this country.

10 am

As hon. Members have outlined, there have been a number of Committees and individuals with sincerely held views, like all of those who have spoken so far in this Committee, about trying to do our utmost to tackle both terrorism and serious crime. They have had debates and produced reports—those mentioned by the hon. Member for Sutton Coldfield—and I am not for one minute undermining their concerns and efforts. It is true that the review that we have been undertaking has not, perhaps, concluded as fast as people might have wanted. It is also important to recognise, however, how complex and serious this area is as regards the Government's coming to a position in which they feel able to report.

Mr. Mitchell: I am listening very carefully to what the Minister is saying. The Government have not yet concluded their long-promised report. When will they?

Caroline Flint: The hon. Gentleman pre-empts my next point. We hope to make an announcement shortly. The new clause would pre-empt the conclusions of the review that we have undertaken into whether a change in the law on evidential use of intercept product would be likely to deliver bigger, better and quicker convictions of organised terrorists. As I said, we hope shortly to announce the outcome of the review, which has carefully examined both the advantages and likely risks involved in any regime change. The new clause crucially does not address the very formidable difficulties in using intercepts as evidence in a way that would protect the capabilities and current value of the technique as an effective intelligence tool.

The review has not provided compelling evidence to suggest that the use of intercepts as evidence would secure more convictions of terrorists or, for that matter, serious organised criminals, who we know often employ sophisticated measures to avoid incriminating themselves. We know, and it has been mentioned by a number of hon. Members this morning, that the top targets are particularly astute in distancing themselves from crime. Even when product is compelling, it may at times be best to avoid disclosing it, as that would reveal how the evidence was obtained. Disclosure without safeguards would have two damaging effects. It would mean that criminals and terrorists would learn how to avoid detection and, we believe, it could impair co-operation between our intelligence and law enforcement agencies. That is important, because we know that this uniquely close intelligence and law enforcement co-operation has been deployed very effectively in the UK. It has meant that we have been able to protect sensitive techniques
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from the vigorous defence probing that is one of the strengths of our adversarial judicial system. Overseas regimes do not have this necessarily close inter-agency co-operation, and therefore do not run the same risks of sensitive exposure. In the UK, we have a unique combination of an adversarial judicial system, alongside common law precedent and, of course, responsibilities under the European convention on human rights. It is not an easy task, therefore, to assume that we can import the framework in which another country uses this type of material. The review has looked extensively at the use of intercept overseas.

I want to clarify a couple of points about foreign intercepts. They have been used very rarely in UK courts.

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