Examination of Witness (Question Numbers
165-179)
MR KEIR
STARMER QC
10 NOVEMBER 2009
Q165 Chairman: Good morning. Thank you
very much for coming to give evidence. I know you are extraordinarily
busy and we are most grateful to you. It is exactly a year since
you were appointed DPP in 2008.
Mr Starmer: Yes.
Q166 Chairman: Are you enjoying the
job?
Mr Starmer: Yes, thank you.
Q167 Mr Winnick: I hope you say so
at the end of it.
Mr Starmer: I will let you know.
Q168 Chairman: Do you think you would
benefit as Director of Public Prosecutions from the admission
of intercept material as evidence?
Mr Starmer: Yes, I do. Evidence
obtained by interception would be of benefit to prosecution in
this country, particularly in respect of counter-terrorism and
organised crime. I base that answer on an analysis of the cases
where we have been able to use foreign intercept evidence. There
have recently been 11 such cases involving organised crime. In
eight of those cases, there were pleas of guilty based on foreign
intercept evidence. It is on an analysis of those cases. I am
not able to carry out an analysis of our prosecutions and answer
the question "Would they have been enhanced by evidence obtained
by intercept?" because obviously we do not routinely see
that material and there would be no point in us carrying out the
analysis. In so far as I have done it with foreign intercepts,
it is clear that there would be a benefit in terms of prosecution.
Q169 Chairman: You have conveyed
your views to the Attorney General and the Home Secretary, have
you? Ministers are aware of what you would like to see happen
as far as intercept evidence is concerned?
Mr Starmer: Yes. My view is that
I am, in principle, in favour. I do think it would be of benefit
for the reasons I have just outlined. In addition to that, I should
say that, as an organisation, CPS, we have been participating
in the workings of the Chilcot team, looking at the question of
whether the evidence obtained by intercept could be put into a
model that would be consistent with the nine operational principles,
but my `in principle' position has been made known.
Q170 Mr Streeter: We have been told
that interception is of most use as a tool for gathering information
rather than evidence. We have heard from your illustrious predecessor
a second ago that he did not agree with that. What is your view,
please?
Mr Starmer: It is of great benefit
in terms of intelligence gathering. I am aware in other jurisdictions
where evidence obtained by intercept can be used that it is of
benefit and has been used in a wide range of cases. That tends
to suggest that the same would be true here. As I have said, on
the analysis of foreign intercept—which is our best evidence,
in a sense, because it is intercept in this jurisdiction in our
court proceedings—there is clearly benefit. What I am not
able to do—and I really do not think I should do—is
to suggest that it is possible to give any analysis of our prosecutions,
that they would in fact have benefited or not, because that analysis
simply has not been done by me or anybody else.
Q171 Patrick Mercer: Can I ask you
to throw your mind back to Operation Overt, the intercepted plan
to bring down aircraft in the summer of 2006. The procuring of
emails from California was crucial in this. Can you clarify the
distinction in this particular case between information and evidence?
Mr Starmer: I have to be slightly
circumspect about this case because, as you know, I consider there
should be a retrial of the three remaining defendants. That, if
it goes ahead, is going to go ahead next year and so the case
is still live to that extent. In that case, some email traffic
between alleged conspirators was captured by internet service
providers overseas. Efforts were made to obtain it and, eventually,
through legal assistant it was obtained. There were a series of
court orders in January and February of 2009 that released those
emails from a US court of law in the district of California in
accordance with a request from the UK. Then it was deployed by
us in the second trial, the retrial, in that case. We considered
that it added to the strength of the prosecution. It was used
as evidence.
Q172 Patrick Mercer: Is the distinction
between information and evidence as rigid and absolute as the
Minister for Security Lord West suggested?
Mr Starmer: As a matter of law
I think it probably is because evidence can only be evidence if
it complies with the evidence of the rules of admissibility in
this jurisdiction. That is a real difference. That is not to say
that information which is currently collected as intelligence
could not be used for evidential purposes, but there is a clear
distinction in law between the two.
Q173 Mrs Dean: Obviously many other
countries, both in the EU and the Commonwealth, allow the use
of intercept evidence in court, albeit in tightly controlled circumstances.
Why do you think the UK does not allow prosecutors this option?
Mr Starmer: In a sense that is
a question of policy which is not for me to answer, but it is
important to appreciate—and I think most people do appreciate—that
the legal regimes in other jurisdictions are different. By that
I mean the legal regime by which intercepts are captured. I do
not think there is another jurisdiction that has the same set
up as we have here and it is important to appreciate that because
it does have practical consequences. In other words, I do not
think you can simply transpose one model from another country
with a different legal regime and assume that it will automatically
apply here. The work of the Chilcot Review was to look at a model
that might work here, given our regime.
Q174 Mrs Dean: Are you of the opinion
that that is possible? Do you think that we can introduce a regime
that can allow it?
Mr Starmer: As a matter of principle
I think that a legal regime could be devised, in which evidence
obtained by intercept could be admissible in evidence. The more
difficult question is the question that the Chilcot Review is
confronting, whether a model can be devised that is consistent
with the principles that they have set down for their review.
But I accept that in principle it can be done; you can devise
a legal model that would permit evidence obtained by an intercept
to be used.
Q175 David Davies: Mr Starmer, we
heard what the former DPP thought about Control Orders; what are
your personal views on control orders?
Mr Starmer: I do not think, for
the reasons that my predecessor just gave, that it is appropriate
for me to give my personal views about control orders. I recognise
the difficulties that the government face and faces in dealing
with the threat of terrorism. I accept that measures have to be
taken to protect the public. As DPP my involvement with control
orders is on the question of whether or not a prosecution could
be brought as an alternative to the control order in the first
place, and that is a review decision during the currency—
Q176 David Davies: As DPP you do
not think it is appropriate to comment on control orders, but
obviously they have been brought in because the Human Rights Act
prevents us from sending these people back even though they pose
a threat to our security. Why do you think it is not appropriate
to comment on control orders but that it is perfectly appropriate
to comment on what political parties may or may not think of the
Human Rights Act?
Mr Starmer: I have limited my
comments today and in the past to matters which touch on the prosecution
and I have not made any comment on the government or the opposition's
policy on anything. I simply make comments that the passing of
the Human Rights Act as law is useful to us as prosecutors, in
particular in protecting the rights of victims and witnesses.
Q177 David Davies: And people who
have posed a threat on our security?
Mr Starmer: I have not touched
on that in any public comment either, no.
Q178 David Davies: You do recognise
that the only reasons we have control orders is because the Human
Rights Act prevents us from sending people back who may pose a
threat to our security?
Mr Starmer: I am very aware of
the history.
Q179 David Davies: So you would accept
that it is perfectly reasonable for political parties to have
discussion as to whether or not the Human Rights Act is working?
Mr Starmer: Of course I do; I
think it is a perfectly legitimate and proper thing.
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