House of Commons - The Home Office's Response to Terrorist Attacks

The Home Office's Response to Terrorist Attacks - Home Affairs Committee Contents

3 Legal Tools

The admission of intercept evidence

30. In September 2009, the second trial in the aftermath of the "liquid bomb plots" and Operation Overt was concluded.[55] The first trial closed without a conviction despite evidence that Lord West believed to be "overwhelming, including their martyrdom videos and everything else";[56] for the second trial the prosecution introduced evidence obtained from the defendants' e-mail addresses, despite the legal ban on the admission of intercept material as "evidence" in British courts.

31. The admission of intercept material in court is currently under consideration; on 30 January 2008 a Privy Council Review of Intercept as Evidence[57] was presented to the Prime Minister and Home Secretary. This Review, headed by Sir John Chilcot, accepted "the principle that intercept as evidence should be introduced" provided that the use of intercept material met certain operational requirements and did not sacrifice "essential security requirements". In February 2008, the Prime Minister accepted the findings of this Report and established a pilot project and an Advisory Group to report on the success of the implementation programme.[58]

32. In December 2009, the Advisory Group (which was also headed by Sir John Chilcot) reported on the progress of the implementation programme.[59] The report concluded that; "The unanimous legal advice, including from independent Counsel, is that testing has shown that the model developed in this work programme would not be legally viable" and therefore:

Because the testing phase confirms that the model does not meet the necessary fair trial (Article 6 ECHR and domestic law) requirements, trial judges would be likely to exclude intercept evidence or halt the proceedings in the majority of cases— particularly in the sorts of complex trials regarding terrorism or other serious criminal offences.

In effect, because the operational requirements proposed in January 2008 demand that "sensitive intercept material, techniques and capabilities must be protected to avoid terrorists and other serious criminals evading detection and frustrating the investigation of their activities", the model piloted was in violation of Article 6 of the European Convention of Human Rights, which demands the full disclosure of evidence. In the light of the Advisory Group's Report the Home Secretary concluded that "the model does not represent a viable basis for implementation" and further study was needed to see if the problems identified by the Advisory Group were insurmountable.[60]

33. Britain is almost alone in completely prohibiting the admission of intercept material in court.[61] According to Sir Ken Macdonald QC, Australia, Canada and the USA regard intercept material as "an absolutely critical forensic tool in criminal trials … quite invaluable",[62] while European countries such as France and the Netherlands also allow the admission of intercept in controlled circumstances; the Dutch in particular "find it hard to conceive of fighting serious organized crime without using intercept material as evidence".[63] It has been suggested to us that the experience of enforcement agencies and the police in using intercept material to combat terrorism in Northern Ireland could explain the reticence of the United Kingdom in adopting the use of intercept material in court.[64] It is therefore revealing to examine how Eire regulates and allows the use of intercept. According to the Chilcot Review:

The Commissioner of An Garda Síochána, the national police force [and security services] may apply to undertake lawful interception under the relevant Act either in connection with an investigation of a serious criminal offence or in the interests of the security of the State … Section 12 of the 1993 Interception of Postal Packets and Telecommunications Messages (Regulation) Act states that the Minister shall ensure that such arrangements as he considers necessary exist to limit to the minimum necessary the disclosure of the fact that an authorisation has been given and the contents of any communication which has been intercepted. This restriction on disclosure coincides with the practice of An Garda Síochána not to use intercept product as evidence in prosecutions. So, although not prohibited by statute, in practice intercept as evidence is not used in Ireland.[65]

While the threshold before intercept material could be introduced in court is set quite high, its use is permitted by statute; in extreme circumstances Irish security services could admit intercept material as evidence, regardless of their current practice.

34. During this inquiry we have taken evidence from the current Director of Public Prosecutions (DPP), Mr Keir Starmer QC, and the former DPP, Sir Ken Macdonald QC. Both told us that allowing the admission of intercept evidence in court would be of benefit to the prosecution.[66] Sir Ken Macdonald went further and suggested that the admission of intercept evidence should be a key part of a new legal "toolbox" which would also include plea bargaining in serious criminal trials and questioning after charge. These measures would reduce the rate of contested trials and help tackle global networks by encouraging minor players in the conspiracy to cooperate with enforcement agencies.[67]

35. While conceding that intercept evidence would not, on its own, be a panacea, Sir Ken Macdonald was convinced that:

If we had intercept available as an evidential tool and if we were directing intercept capability towards the gathering of evidence, I am absolutely confident that our experience would mirror the experience of other jurisdictions where it is used frequently to great effect and results in the saving of considerable expense …[68]

The main benefit that would accrue from the admission of intercept material would be that: "It increases the guilty plea rate. It has the potential to make trials swifter because the evidence is so compelling".[69] Sir Ken also disputed the argument put forward by the Chilcot Review that the evidence available suggests that there would only be a modest increase in successful prosecutions, as a result of the use of intercept as evidence;[70] he told us that this conclusion was based merely upon studying cases currently prosecuted without intercept evidence and ignored the potential benefits that intercept material could yield:

If you have intercept as an evidentiary tool, you start to use it, and you start to target people with that tool. Inevitably, it seems to me, the use of intercept evidence increases … I am quite confident [that] if we had it as a tool in our jurisdiction it would be used more and more frequently.[71]

36. Given the obvious benefits that intercept material would bring to state prosecutors we were puzzled as to why legal reforms allowing the admission of intercept material had not been introduced. We have heard of two potential barriers to the introduction of intercept material, the first is cost and the second can be characterised as a "cultural response" or institutional inertia.

37. As well as ruling out the admission of intercept evidence because specified operational requirements could not be met, the Advisory Group raised concerns about the increased costs to be borne by enforcement agencies through the admission of intercept evidence. These costs include initial set-up costs (e.g. enhancing interception systems to the appropriate evidential standard), increased ongoing running costs (e.g. additional staff required to monitor, review and transcribe intercept); and the costs of operating the systems certification and judicial oversight regimes and gathering of supporting evidence to facilitate the use of intercept in court.[72]

38. However, Sir Ken Macdonald told us that: "One of the primary effects of intercept evidence in prior jurisdictions is to drive an increase in the guilty plea rate so that we have less contested trials. Contested trials in serious cases consume an enormous amount of public resource. The costs … would more or less balance themselves out".[73] This would be especially true if the wider use of intercept evidence made it unnecessary to use more expensive counter-terrorism tactics such as control orders and long-term surveillance. We also do not see where many of the additional costs cited by Chilcot would come from, given that large amounts of intercept material are already gathered under the Regulation of Investigatory Powers Act.[74] We do not consider that the admission of intercept material would necessitate a fundamental shift in agency activity as "information which is currently collected as intelligence could … be used for evidential purposes".[75] We dispute the claim that the admission of intercept material would lead to vastly increased costs for enforcement agencies and fear that this argument is being put forward to divert attention from the main issues. We would like to see an estimate of what the additional costs have been calculated to be.

39. During Sir Ken Macdonald's tenure as DPP, there were at least three separate reviews on the use of intercept material, and "they always started with a firm indication from the Prime Minister or the Government that they wanted to do this".[76] However, despite the evident political desire to allow the admission of intercept material, "problems were always thrown up" and it was not clear that "all parties [came] to the discussions and the negotiations willing them to succeed".[77] Sir Ken went further in suggesting which parties had not approached the discussions constructively:

There is serious concern within the [security] agencies in particular that the use of intercept as an evidential tool would result in significant bureaucratic burdens upon them … There is a feeling that this is a reform that would be burdensome and might impact on the relationship between the agencies and law enforcement in a way which is unattractive.[78]

40. These concerns may be plausible and deeply-felt, but we fear that this is a case of the tail wagging the dog. Other states have adopted the use of intercept evidence without compromising the work of their security agencies so it is clear that a way can be found without impacting on security services too adversely. We suspect that that the apparent unwillingness of security agencies to approach this matter in a constructive manner is attributable as much to institutional inertia and a deeply felt cultural reflex as to insurmountable technical barriers. The clear desire of Prime Ministers and the Government to allow the admission of intercept material should not be frustrated by such responses.

41. Regardless of the success, or otherwise, of pilot schemes, we have been told by both the former and current DPPs that intercept material would be of great benefit in their work.[79] It seems bizarre therefore that a method cannot be found which would allow the admission of intercept evidence, if only in extremis, along the lines of the Irish system. According to Keir Starmer, there are no insurmountable legal barriers preventing such an action:

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 … you can devise a legal model that would permit evidenced obtained by an intercept to be used.[80]

42. While we accept that in many cases the need to maintain national security outweighs the benefit of admitting intercepted material in court, this will not be the case in every situation and there are no good reasons for completely disallowing even the possibility of admitting intercept evidence in court. We are extremely worried that this prohibition is not purely driven by a rational analysis of the costs and benefits.[81] When we last looked at this issue in December 2007 we commented that:

We consider it ridiculous that our prosecutors are denied the use of a type of evidence that has been proved helpful in many other jurisdictions … We can learn from other similar countries, such as the USA and Australia, how to protect our intelligence sources …It would not be compulsory to use intercept evidence if it were felt that the damage from doing so outweighed the benefit …[82]

We see no reason to revise our earlier conclusions and strongly recommend that the Government immediately introduce legislation allowing the admission of intercept evidence in court.

Control Orders

43. Control Orders are made pursuant to Section 2(1) of the Prevention of Terrorism Act 2005. We first commented on the efficacy of Control Orders in our Fourth Report of Session 2005-06.[83] In March 2009, the Law Lords heard the case of Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action. The unnamed men, known only as AF, AN and AE were challenging the legality of the control order regime under Article 6 of the European Convention on Human Rights. AF, AN and AE argued that their right to a fair hearing was compromised by "reason of the reliance by the judge making the order upon material received in closed hearing the nature of which was not disclosed to the appellant".[84] In effect it was argued that imposing a control order on an individual without disclosing the reason why was unlawful under Article 6 ECHR. On 10 June 2009, the Law Lords agreed with this argument.

44. We asked Lord West what effect this ruling would have on the Control Order regime. He told us that while the "control order regime remains viable and that the national security reasons for maintaining it have not changed",[85] since the judgement the Government has reviewed each of the fifteen control order cases and decided exactly how much evidence can be disclosed to the courts in order to maintain Control Orders on the defendants. The Control Order against AF was revoked rather than allowing further information to be disclosed to the courts.[86] Those individuals who will no longer be subject to a control order will be placed under surveillance in the same manner as the 2,000 or so people who are currently viewed by the Home Office as a risk.[87]

45. Lord West told us the reason behind control orders: "there are some categories of people where we cannot [take a suspect through the courts and if necessary deport them], for reasons of intelligence … who are a very real threat to the nation; and somehow one has to manage that at a sensible cost"[88] and "Control Orders are the best available disruptive tool for addressing the threat posed by suspected terrorists whom we can neither prosecute nor deport".[89] He did not believe that there was a better alternative for managing the risk posed by those whom the Government cannot prosecute for reasons of national security; and certainly the imposition of control orders was cheaper to the police and security services than full-time surveillance.[90] While conceding that they were a flawed tool and certainly not an instant panacea, he did not think there was currently a better option.[91]

46. Sir Ken Macdonald doubted the value of control orders. He pointed out to us that no other common law country possesses control orders and he called them a "mistake" and a system which has "brought our system of government into disrepute". He was clear that "the reality of the control order regime as it exists at the moment is that it does not work".[92] While conceding that this may be "a counsel of perfection", he suggested that it would be better to "develop investigative tools [including the admission of intercept evidence] to try to acquire evidence that can be deployed in a due process environment—a court of law in a trial".[93] Mr Keir Starmer concurred that "prosecution would be far better than preventative measures and that includes control orders," and that there should be "a presumption in favour of prosecution"[94] in these cases. He also expressed concern about "how many times a control order can be renewed".[95] However, he conceded that the Government was in a difficult position and he personally could not come up with a better solution.[96]

47. The legal validity of control orders is not a matter on which we will pass judgement; however, it is apparent that flaws in the legal underpinnings of control orders have developed. It is also clear that control orders are a sub-optimal solution; none of the witnesses we spoke to were actively in favour of control orders—Lord West very explicitly told us that he "would much rather not have to have them".[97] It appears to us that the arguments in favour of control orders are essentially practical; control orders remain viable only as long as they work and are the best method for preventing terrorist attacks.

48. In 2006 we supported the introduction of control orders. We believed at the time that they could be used to disrupt terrorist conspiracies and that there would be circumstances in which it would not be possible to charge individuals but where close monitoring of a suspect would be necessary.[98]However, control orders no longer provide an effective response to the continuing threat and it appears from recent legal cases that the legality of the control order regime is in serious doubt. It is our considered view that it is fundamentally wrong to deprive individuals of their liberty without revealing why. The security services should take recent court rulings as an opportunity to rely on other forms of monitoring and surveillance.

55 See: "Liquid Bomb Plot: What Happened" BBC News Online, 7 September 2009: http://news.bbc.co.uk/1/hi/uk/8242479.stm Back

56 Q 30 Back

57 Privy Council Review of Intercept as Evidence, January 2008, Cm 7324: thereafter Chilcot Review Back

58 Ministerial Statement: "The use of communications intercepts as evidence", 6 February 2008 Back

59 Intercept as Evidence: A Report, December 2009, Cm 7760, thereafter Chilcot Final Report Back

60 HC Deb, 10 December 2009, col 31WS Back

61 Legal foundations may play a role in Britain's unique status; Britain is the only Common Law country which is also bound by the European Convention on Human Rights. Back

62 Q 141 Back

63 Chilcot Preliminary Review, para 141 Back

64 Q 143 Back

65 Chilcot Preliminary Review, paras 134-135 Back

66 Q 168 and Q 144 Back