Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

4 Using intercept as evidence

106. In his recent statement to the House of Commons outlining the Government's approach to future counter-terrorism legislation, the former Home Secretary the Rt Hon John Reid MP announced that the Government will "commission a review of intercept as evidence on Privy Counsellor terms."[65] He said that the Government's position on intercept as evidence has consistently been that it would only change the law to permit intercept to be used as evidence if the necessary safeguards can be put in place to protect sensitive techniques and to ensure that the potential benefits outweigh the risks. Although he had not personally been persuaded that this was the case, he thought that the right approach was to address this carefully and fully before making a decision on whether to use intercept as evidence. He said that this was what the Government had been doing, but it was now necessary to reach a conclusion on the question. Hence the proposed review by Privy Counsellors.

107. We welcome in principle the Government's announcement of a review of this important issue. There has been growing frustration at the lack of progress on this issue in the face of steadily mounting evidence that the prohibition on the use of intercept as evidence is widely considered to be one of the principal obstacles to bringing more successful prosecutions of people suspected of involvement with terrorism. Internal Government reviews of the issue have been proceeding for years, but very little of the detail of those reviews has been made public other than their conclusions that there should be no change in the current position. In its response to our report on Prosecution and Pre-Charge Detention in September 2006, the Government said it was looking at a "Public Interest Immunity Plus" model and that this work was due to report to ministers in due course. In April this year we asked the minister at the Home Office, Tony McNulty M.P., whether that report had yet been received and if not when it was expected.[66] He said that it was going through an iterative process and had not yet been received in a definitive form that would enable the Government to make a statement to Parliament, but he hoped that it would be as soon as possible.

108. We expect the newly announced review by Privy Counsellors to take place as expeditiously as possible and look forward to the Government announcing the proposed structure and timescale of the review at the earliest opportunity. We particularly welcome the fact that the review will be conducted on a cross-party basis. We also expect the composition of the panel of Privy Counsellors to reflect the importance of public confidence in its independence from Government. We understand that the nature of the subject matter of the review is such that it may be necessary for the Privy Counsellors to consider highly sensitive information which cannot be publicly disclosed. However, whilst recognising this reality, we recommend that the proposed review result in a published report containing the detailed reasoning of the Privy Counsellors conducting the review. In the meantime, we recommend that the Government publish its most recent report of its consideration of a "Public Interest Immunity Plus" model in order to inform public and parliamentary debate.

109. In this part of our Report, we report further on our consideration of the use of intercept as evidence. We expect that the evidence given in the course of our inquiry, and the conclusions and recommendations made in this part of our Report, will be taken into account in the forthcoming review.

Recent developments concerning the use of intercept as evidence

110. In our report on Prosecution and Pre-Charge Detention in July 2006 we concluded that the current statutory ban on the admissibility of intercept evidence[67] should now be removed and attention turned to ways of relaxing the ban.[68]

111. In September 2006, the then Attorney General, Lord Goldsmith stated in an interview with the Guardian newspaper that he was "personally convinced that we have to find a way of avoiding the difficulties. I do believe there are ways we can do that. Otherwise we're depriving ourselves of a key tool to prosecute serious and organised crime and terrorism."[69] The Director of Public Prosecutions supported the Attorney General's call for the removal of the ban the following day.[70] On 21 November 2006, in a radio broadcast, the DPP declared himself "completely satisfied" that providing for the admissibility of intercept would make it more likely that terrorist suspects could be prosecuted.[71]

112. On 23 November 2006, Lord Lloyd, the author of the 1996 Report on terrorism calling for the admissibility of intercept, introduced a short Private Member's Bill in the House of Lords, the Interception of Communications (Admissibility of Evidence) Bill. The Bill would relax the absolute prohibition on the admissibility of intercept evidence by permitting the introduction of such evidence, on application by the prosecution, in proceedings in respect of serious crime or terrorism offences.[72] Under the Bill, when deciding whether to admit such evidence, the court would be required to take account of all relevant considerations, including any application by the Secretary of State to withhold the evidence, or part of it, on the ground that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest, and any submission that the evidence was obtained unlawfully.[73]

113. On 25 April 2007 the House of Lords amended the Serious Crime Bill to provide for the admissibility of intercept evidence in cases involving serious crime.[74] The Government has indicated that it intends to recommend that the amendment be reversed in the Commons.

Our inquiry

114. In light of the mounting evidence that the prohibition on the use of intercept as evidence is a serious obstacle to bringing prosecutions for terrorism offences, we announced that we would be conducting a short inquiry into possible ways of relaxing the current statutory prohibition on the admissibility of intercept evidence.[75] We called for evidence, not on whether the ban on the admissibility of intercept evidence should be relaxed, but on how to do so. In particular we welcomed views on the following questions:

What are the main practical considerations to be taken into account when devising a legal regime for the admissibility of intercept?
What safeguards should apply?
Would the ordinary disclosure rules need modification, and if so how?
What would be the role played by the law of public interest immunity?
What is the relevance of recent technological developments?
Do private providers of telecommunications services have any particular views about how the prohibition should be relaxed?

We also welcomed detailed views on potential means of addressing the problem, including by reference to the approach of other countries, especially other common law jurisdictions.

115. We received written evidence from the Independent Police Complaints Commission, JUSTICE, Liberty, the London Innocence Project and the Northern Ireland Human Rights Commission.[76] JUSTICE appended to its submission a copy of its Report, Intercept Evidence: Lifting the ban, which we have found a very useful resource.[77] We also took oral evidence on the subject from the Director of Public Prosecutions, Sir Ken Macdonald QC; the Rt Hon Lord Lloyd of Berwick; John Murphy, Deputy Chief Constable of Merseyside Police and ACPO's lead on intercept; the Rt Hon Sir Swinton Thomas who was Interceptions Commissioner from 2000 to 2006; Tony McNulty MP, Minister of State at the Home Office; and the Attorney General Lord Goldsmith. We have also discussed the subject at various informal meetings, for example with Lord Carlile, the statutory reviewer of terrorism legislation, and the police at Paddington Green Police Station, and corresponded with others, such as the Metropolitan Police Commissioner. We are grateful to all those who have assisted us with this inquiry.

The human rights issues

116. The difficulty of obtaining sufficient admissible evidence to prosecute terrorist offences in the criminal courts has frequently been relied on in the past by the Government to justify exceptional counter-terrorism measures, including detention of foreign nationals without trial under Part IV ATCSA 2001, control orders and, most recently, pre-charge detention of up to 28 days. In each case, the Government has repeated its preference for criminal prosecution, but has cited evidential difficulties as one of the main justifications for its exceptional measures. The Government's failure, so far, to bring forward proposals for relaxing the ban on the admissibility of intercept therefore has important human rights implications, because it contributes to the need for exceptional measures which themselves risk being incompatible with the UK's human rights obligations. Permitting the use of intercept as evidence may be necessary in order to guarantee a fair trial for those accused of involvement in terrorism who are currently subjected to other forms of control which are not accompanied by the criminal due process guarantees which go with a fair criminal trial.

117. Using intercept as evidence in criminal trials raises two other human rights issues. First, there is the question of whether the use of intercept as evidence is compatible with the accused's right to a fair trial. We agree with Liberty and JUSTICE that there is no inherent human rights objection to the use of intercept as evidence in a criminal trial. However, whether the right to a fair trial is protected in practice will depend on how the law strikes the balance between protecting the public interest in not disclosing sensitive information and the right of the accused to the disclosure of material which might assist his or her defence. We consider this question in detail below.

118. Second, the interception of communications is clearly an interference with the right to respect for private life and correspondence which are protected by Article 8 ECHR, and the use of such intercepted material as evidence in a subsequent criminal trial would also amount to such an interference. To be justifiable, the legal framework governing such interferences must contain sufficient safeguards against arbitrariness and abuse. At present the legal framework does not contain any requirement that there be prior judicial authorisation of interception of communications. We consider below whether such a requirement should be introduced if the product of such interception is to be used as evidence in criminal trials.

The value of intercept in prosecutions for terrorism

119. There appears to be a wide range of views about the value of intercept evidence in enabling terrorists to be prosecuted. Sir Swinton Thomas, until 2006 the Interception of Communications Commissioner, thinks that it will make little if any difference, and in the long run will reduce prosecutions because it will hamper investigations as terrorists, now aware of previously secret techniques, successfully avoid having their communications intercepted.[78] He also told us that the experience from other jurisdictions is that intercept has been of little value in facilitating prosecutions for terrorist offences.[79] Lord Carlile thinks that it might make a difference in a handful of cases but that this will only be marginal at best.[80] Baroness Scotland, responding on behalf of the Government at the Second Reading of Lord Lloyd's Private Member's Bill, told the House of Lords "The evidential use of intercept would not even add significantly to the number of convictions that can be secured."[81]

120. We looked to the heads of the prosecution authorities for their view on this important question, assuming them to be in the best position to know the answer in fact. We asked the DPP how significant a difference it would make if the intercept ban was relaxed in terms of bringing more criminal prosecutions against suspect terrorists. His answer was unequivocal:

"We have spoken, as I think you probably know, a great deal to colleagues abroad, in the United States, Canada and Australia particularly, who have systems closest to ours. The message we have had from all of them is that it would make an enormous difference. Colleagues in the Department of Justice in the United States have told us that the majority of their major prosecutions now against terrorist figures and organised crime figures are based upon intercept evidence. I think it is well known that for the first time each of the five New York crime godfathers are in prison, each of them as a result of the use of intercept evidence. In Australia, I was told by the head of the New South Wales Crime Commission that prosecutors who did not rely on intercept evidence were not being "serious" in this area of work. When I was in the United States I spoke with the National Security Agency, the Drug Enforcement Administration, the counter-terrorism section of the Justice Department, the organised crime section of the Justice Department. In Australia I spoke to the Australian Security Intelligence Organisation, all of the crime commissions, the Commonwealth DPP, the New South Wales DPP, the Australian Federal Police. Everybody without exception told us that this material is of enormous use. It is cheap, it is effective; it drives up the number of guilty pleas and it leads to successful prosecutions. We are convinced, and have been for a number of years, that this material will be of enormous benefit to us in bringing prosecutions against serious criminals, including terrorists."[82]

121. We put to him specifically what the Minister, Baroness Scotland, had told the House of Lords a few days earlier, that the evidential use of intercept would not even add significantly to the number of convictions that can be secured. The DPP said:

"I disagree profoundly with that. Some investigations were undertaken, as you probably know, when this was being looked at some years ago to look at old cases and to try to determine whether intelligence intercept that had been used in those cases had driven up the number of successful prosecutions and convictions. It found that the difference would have been marginal. The problem with that approach is that you are not comparing like with like. If you look at material which is acquired for intelligence purposes, it is acquired on a different basis, with a different motive and with a different expected outcome than material which is targeted and acquired for evidential purposes. The whole point about intercept obtained for evidential purposes is that you target people who you think may be involved in crime and you look to intercept them talking about crimes which they are committing with prosecutions in mind. I cannot believe that all of our colleagues in jurisdictions so similar to ours abroad have formed such a strong view about the value of this material that somehow there is something different about our jurisdiction which would mean a different situation would apply here. That makes no sense to me. Prosecutors, certainly in the Crown Prosecution Service, are strongly of the view that this material would be of assistance."[83]

"We had a major case of people trafficking which you may recall two or three months ago. This was people trafficking across Eastern Europe by organised gangs. A large number of these defendants pleaded guilty because we were able to play to them and their legal advisers intercept material which had been acquired abroad which, as you know, is admissible in this jurisdiction. I myself had many experiences at the Bar, when I was representing serious criminals, of them being convicted through their own mouths by the use of bugs and such like, including a case in which an IRA terrorist had a bug placed in the lorry in which he was transporting a bomb across London. There is no more powerful evidence for prosecutors than defendants convicting themselves out of their own mouths."[84]

122. On 16 March 2007, Lord Lloyd, moving the Second Reading of his Private Members Bill, the Interception of Communications (Admissibility of Evidence) Bill, relied heavily on the evidence given to the Committee by the DPP and described the case made by him for a change in the law as "overwhelming".[85] The Government's position, however, was unaffected by the evidence of the DPP: Baroness Scotland, responding to the debate for the Government, made exactly the same case as she had made the previous week when opposing Lord Lloyd's proposed amendment to the Serious Crime Bill.[86] To our surprise, she made no reference to the fact that the DPP "profoundly disagreed" with her statement in the earlier debate that the evidential use of intercept would not even add significantly to the number of convictions that can be secured. Indeed, she ignored it, repeating her argument in the earlier debate:

"It is sometimes argued that if only we could produce intercept evidence against terrorists we would be able to lock more of them up and avoid measures such as control orders. That is simply untrue. The last review concluded that there would be, I emphasise, very limited utility against terrorists."[87]

123. We also asked the then Attorney General, Lord Goldsmith, for his view about how significant a difference relaxing the ban on using intercept would make in terms of bringing more prosecutions against suspected terrorists. He believed that, provided the genuine problems which exist can be overcome, "it would be very beneficial for prosecutors to be able to use intercepted materials".[88] Indeed, he believed "it is capable of being one of the key tools in bringing some of the most dangerous and serious criminals to justice."

124. The police, in their evidence to our inquiry, were of a similar view. The Commissioner, for example, told us that the Metropolitan Police Service supports, in principle, the use and legal admissibility of intercept material, arguing that it is "vital", in the widest interests of public safety and security for best possible evidence to be available to place before the courts.[89] ACPO similarly believe that it may assist the police greatly in the prosecution of terrorists.[90]

125. We have found particularly compelling the evidence from the DPP and the former Attorney General about the value of intercept evidence in prosecuting terrorism offences. In our view those who are responsible for the prosecuting authorities are in a unique position to make a judgment about how valuable intercept evidence would be in enabling prosecutions of terrorist suspects which cannot currently be brought because of lack of admissible evidence. It would require exceptionally good reasons and clear evidence to disagree with their judgment on a question so central to their experience and expertise. We recommend that the Government addresses in its response to us the arguments in favour of the use of intercept provided by the former Attorney General, the DPP and the Commissioner.

126. We have considered carefully the arguments made by those who claim that intercept would not make much difference to the ability to bring prosecutions for terrorism related offences but we are not persuaded that they contain such exceptional reasons or clear evidence. We are satisfied that the evidence of the DPP and the former Attorney General puts the matter beyond doubt: that the ability to use intercept as evidence would be of enormous benefit in bringing prosecutions against terrorists in circumstances where prosecutions cannot currently be brought, and that the current prohibition is the single biggest obstacle to bringing more prosecutions for terrorism. We recommend that this be taken as the premise of the forthcoming review by the Privy Council. The difficult question is not whether the current ban on the evidential use of intercept should be relaxed, but how to overcome the practical obstacles to such a relaxation.

The practical obstacles to using intercept as evidence

127. The evidence we have received in the course of our inquiry has identified four broad types of practical considerations which need to be taken into account when devising a legal regime for the admissibility of intercept evidence:

— (1) how to protect sensitive information about secret intercept methods, techniques and capability at the same time as achieving a fair trial ("protecting sensitive information and fair trial");

— (2) how to avoid overburdening the police and the security agencies, by the need to transcribe and retain huge quantities of intercept in readiness for possible disclosure, and the prosecution and the court in the face of likely applications for disclosure from the defence in the course of a criminal trial ("avoiding onerous disclosure requirements");

— (3) how to keep up with rapid technological developments in communications ("keeping up with changes in technology"); and

— (4) how to secure the co-operation of the telecommunications companies which are strongly opposed to intercept being used as evidence ("overcoming objections of telecoms providers").

128. As we will explain below, having received considerable written and oral evidence concerning all of these practical objections to relaxing the ban, we consider that it is mainly the first and the second, the very practical problems of protecting sensitive information whilst ensuring a fair trial, and of the potentially onerous obligations imposed by the law on disclosure, that present genuinely difficult issues which will require the careful attention of the Privy Council when it conducts its review.

(1) PROTECTING SENSITIVE INFORMATION AND FAIR TRIAL

129. One of the principal practical objections most frequently made against relaxing the ban on using intercept as evidence is that it would inevitably lead to secret methods, techniques and capabilities of interception being revealed to terrorists, with the result that valuable intelligence material would be lost in the future because terrorists would find ways of avoiding their communications being intercepted.

130. The case has been most powerfully put by Sir Swinton Thomas, both in his last annual report as Interception of Communications Commissioner, in which he said that all the current advantages of intercept evidence would be "lost if all interception techniques are laid bare",[91] and in oral evidence to us, arguing that allowing intercept to be used as evidence will do "huge damage" to the capabilities of the intelligence agencies.[92] The police expressed similar concerns, although they appeared more optimistic that these concerns could be overcome. ACPO was "greatly concerned about exposure of our methodologies, our capacity to intercept, which is significantly greater than some other jurisdictions"[93] and the Commissioner of the Metropolitan Police was also concerned about safeguarding methodology.[94] He said "careful thought and safeguarding measures would need to be put in place in relation to issues of security of methodology, the security and safety of those engaged with interception."

131. The DPP agreed that it was "absolutely imperative" that we have a system that protects our agencies' capabilities and methodologies.[95] However, both he and Lord Lloyd believed that the law on public interest immunity, as recently interpreted and applied by Lord Bingham in a case in the House of Lords,[96] already achieves this protection for capabilities, methodologies and techniques, at the same time as guaranteeing the defendant's right to a fair trial.

132. The DPP in his oral evidence to us explained succinctly exactly how the law on public interest immunity operates to strike this balance.[97] He described public interest immunity as "a very powerful tool to both protect the national interest and secure the right of a defendant to a fair trial." The prosecution is under a statutory obligation to disclose to the accused any material "which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."[98] In practice this means that in advance of a criminal trial the prosecution discloses its case to the defence and it also discloses any material which it possesses which, in the prosecution's view, undermines its case or assists the defence. If the prosecution has material that is prima facie disclosable within those tests for disclosure, but which it does not wish to disclose because its disclosure would reveal sensitive information about, for example, secret methods or techniques of interception, the prosecution would have to apply to the trial judge for an order that the material need not be disclosed because its disclosure would be contrary to the public interest. An application by the prosecution for a public interest immunity order can be made to the judge without the accused or his lawyers being present, but where this is done it may be appropriate to appoint a special advocate to ensure that the contentions of the prosecution are tested and the interests of the defendant protected.[99] We asked whether there was any risk that providing for the admissibility of intercept might lead to trials which could proceed under the current law having to be abandoned if a claim for public interest immunity were refused. The DPP replied that this was unlikely to arise in practice because it was "difficult to imagine material that would emanate from an intercept that would come into that category."[100]

133. The DPP concluded quite unequivocally: "I do not have any doubt at all that we can protect the national interest and use this material and secure fair trials for defendants." Moreover, as the DPP also pointed out in his evidence to us, if the prosecution's application to withhold material on public interest grounds is not successful, it remains open to the prosecution to discontinue the case rather than proceed with the prosecution, so there is no risk of the Crown being forced to disclose material which in its view it would be contrary to the public interest to disclose.

134. Both Liberty and JUSTICE, in their written evidence to our inquiry,[101] adopt a broadly similar position to the DPP, that existing principles of public interest immunity are sufficient to protect both sensitive information from being disclosed contrary to the public interest, and the right of the accused to a fair trial, because of the role of the judge in supervising non-disclosure on public interest grounds and the possibility of a special advocate being appointed to protect the interests of the accused at a hearing for a public interest immunity order at which the accused and his lawyer are not present.

135. Some of the evidence we received, however, raised concerns about whether the current law on public interest immunity contains sufficient safeguards for the accused to ensure that allowing intercept to be used as evidence will not undermine the right to a fair trial. The Northern Ireland Human Rights Commission ("NIHRC"), for example, is concerned that it is the prosecution, rather than an independent court, which decides in the first place whether material in its possession may assist the accused's case.[102] The NIHRC is concerned that this discretion in the prosecuting authorities means that the law on public interest immunity could be used to cover up malpractice and wrongdoing by the police and intelligence services, for example in relation to how evidence has been gathered. The Commission is in favour of allowing intercept material to be used as evidence at criminal trials, but advocates a formal procedure whereby a judge other than the trial judge deals with questions of admissibility of evidence, and in particular with the question of whether particular material might assist the defence, in which the interests of the defendant are properly represented by a special advocate.

136. The London Innocence Project ("the LIP"), a non-profit legal resource clinic and criminal justice centre which aims to ensure that the rule of law is maintained on the basis of equality before the law and procedural fairness, also has concerns that allowing intercept to be used as evidence will substantially increase resort to public interest immunity claims by the prosecution. In its view this is problematic because existing public interest immunity procedures do not contain sufficient safeguards to protect the defendant's right to a fair trial. Like the NIHRC, it is particularly concerned by the fact that it is the prosecution, not the court, which decides what evidence might assist the case of the accused and is therefore prima facie disclosable. The LIP argues that, if intercept is to be used as evidence in criminal trials, there needs to be fuller judicial supervision of the disclosure process, if necessary by specially trained members of the judiciary who are recruited specifically to perform that task. In the LIP's view, the prosecution should be required to hand over all their unused evidence to the security cleared special advocate who would assess its value to the defence.

137. We are broadly satisfied that the law of public interest immunity already provides a procedure for preventing the disclosure of sensitive information contrary to the public interest. We can see no reason why this well established procedure should not be capable in principle of protecting the public interest in non-disclosure of sensitive information about intercept, just as it already protects the public interest in not disclosing sensitive information about the methodologies and techniques of other forms of covert surveillance such as bugging or the use of informants.

138. We do, however, have some concerns about the extent to which the present law protects the right of the accused to a fair trial. We see the force of the criticism that a system of public interest immunity which depends on the prosecutor identifying the material in its possession which is potentially exculpatory and putting this before the judge to determine whether it needs to be disclosed does not contain sufficient independent safeguards for the accused's right to see the material against him or her, which is an important aspect of the right to a fair trial.

139. We can also see the attraction of separate disclosure judges, specially trained and experienced in the relevant law of disclosure and public interest immunity, deciding questions of what material should be considered exculpatory for the accused, as well as what should be immune from disclosure on public interest grounds, assisted by special advocates whose role is to protect the interests of the accused.

140. We recommend that the Privy Counsellors who review the use of intercept as evidence give serious consideration to whether the current public interest immunity procedure contains sufficient independent safeguards for the accused in light of the prosecution's power to decide whether material in its possession is likely to assist the case of the accused.

(2) AVOIDING ONEROUS DISCLOSURE REQUIREMENTS

141. The second set of practical concerns about using intercept as evidence in criminal trials relates to the potentially adverse impact of disclosure requirements on the intelligence agencies in particular, but also on the police, prosecutors and courts.

142. The concern here is that the obligation on the prosecution to disclose material to the defence before trial will impose an enormous administrative burden on the intelligence and law enforcement agencies, who will have to transcribe, classify and retain enormous volumes of material in readiness for its possible use at trial. In the words of the DPP, "we have to discover a model which does not place undue administrative and bureaucratic burdens upon intelligence agencies. I think that is a bigger concern for some. That is to say, we have to have a disclosure regime that does not require them to put an unreasonable amount of resource into retaining and classifying material that might be relevant in some future trial."[103]

143. The police expressed a similar concern about the impact on their capacity to respond to intercept material revealing a threat to public safety if they are having to spend a lot more time marshalling such material for possible use in evidence.[104] The Commissioner of the Metropolitan Police similarly told us of the need to build capacity and capability across the relevant agencies to handle such material, which would clearly have funding implications.[105]

144. We accept that this concern about disclosure requirements is both a genuine concern and a difficult one. There have been some famous examples of judges ordering extremely onerous disclosure by the prosecution. Sir Swinton Thomas in his last Report as Interception of Communications Commissioner gives an example of a court ordering that 16,000 hours of eavesdropping material had to be transcribed at the request of the defence, at a cost of £1.9m. At the same time, the prosecution's disclosure obligations are a by-product of the accused's right to a fair trial. It is a fundamental right of the defence to have disclosed not only the material which is relied upon against him but also any material in the possession of the prosecution which tends to show that the accused is innocent.

145. Although we recognise that this is a genuine difficulty, we do not consider it to be an insurmountable problem when devising a legal regime for using intercept as evidence. We accept that it is likely that allowing intercept to be used as evidence will place an additional demand on the resources of the intelligence agencies, police and prosecutors, but we note the DPP's view that the experience abroad is that using intercept as evidence is in fact remarkably cost-effective, because it leads to various savings, for example on physical surveillance, which is much more resource intensive, and on the cost of lengthy and expensive trials where defendants plead guilty when confronted with the product of the intercept.

146. Nor do we agree with the view that it will be difficult to keep the disclosure obligation on the prosecution under control. It is already the case that the law on disclosure does not permit far reaching "fishing expeditions" by the defence. As Lord Bingham recently said in the House of Lords:[106]

"The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands."

147. The then Attorney General, Lord Goldsmith, told us in oral evidence that, in order to deal with evidence which is exculpatory, there will need to be quite a detailed scheme in an Act which would set out what the obligations in relation to retention of material and in relation to disclosure of material were, in such a way that there could still be a fair trial, but the agencies would not be subjected to unconstrained fishing expeditions, requiring them to reveal material which might be prejudicial or hugely expensive to produce.[107] In our view it ought to be possible to devise such a practically workable mechanism to prevent defence claims for disclosure becoming unmanageable. The question is how to circumscribe the prosecution's disclosure obligation at the same time as upholding the right of the accused.

148. We agree with the DPP that there ought not to be an obligation on the prosecution to disclose to the defence all the material obtained in a police investigation, including all the intercept product, for the defence to trawl through in the hope that it might contain something useful. We agree that such an extensive disclosure obligation would make trials unworkable. The disclosure obligation on the prosecution is already much more restrictive than that. The prosecution must disclose the material on which it relies and any other material in its possession which, in its judgment, undermines the prosecution case or might assist the accused. This is a much narrower category of material. The DPP told us that somebody had to do the job of going through all the material to decide what is disclosable, and he thought it should be the prosecution, with the assistance of the judge when the prosecution wants to withhold otherwise disclosable material on grounds of public interest immunity.

149. As we mentioned above, we have some concern about the appropriateness of the prosecution, as opposed to an independent court, deciding whether material in the possession of the prosecution is likely to assist the defence, and we have recommended that the Privy Council review give serious consideration to whether specialist disclosure judges, separate from the trial judge, should perform the function of deciding what material in the possession of the prosecution should, subject to any claim for public interest immunity, be disclosed to the defence because it meets the test for disclosure. We recognise that this would be likely to impose a greater burden on the prosecution than the present system, but we stress that it does not involve the prosecution automatically disclosing all the material in its possession to the defence. Rather it transfers to an independent judge the task currently entrusted to the prosecution of deciding which material meets the test for disclosure.

150. We recommend that any Bill providing for the use of intercept of evidence should clearly define the obligations on the prosecution to retain and disclose material on which it does not intend to rely and should restrict those obligations to material which might reasonably be considered capable of undermining the prosecution case or of assisting the accused, subject to a court ordering that disclosure of such material would be against the public interest. We also recommend that consideration be given by the Privy Council review to requiring that a disclosure judge, rather than the prosecution, decide whether the test for disclosure to the accused is met.

(3) KEEPING UP WITH CHANGES IN TECHNOLOGY

151. The Government has frequently cited the pace of technological change in communications as a reason for not legislating now to relax the ban. Sir Swinton Thomas made the same point in his recent annual report and in his oral evidence to us.[108] He said that the switch to "Voice Over Internet" for example, was providing a very real challenge to interceptions technology, because at present there was no technical way of capturing it.

152. While we recognise the challenges that such technological development presents for our agencies' capacity to intercept communications, we do not see why they present any obstacle to devising a legal regime for the evidential use of intercept. As JUSTICE points out in its written evidence,[109] there is nothing in the current legal framework governing interception of communications that stipulates the particular method of interception, and so long as a given communication falls within the terms of Part I of RIPA, the evidential use of intercept material would make no difference to the ability of police and intelligence services to use new means of interception.

153. In our view, although we do not underestimate the significance of technological developments, we do not consider them to present any obstacle to devising a scheme providing for the evidential use of intercept. We do not consider it to be beyond the ability of the parliamentary draftsman to accommodate future changes in technology.

(4) OVERCOMING OBJECTIONS OF TELECOMS PROVIDERS

154. In his annual report for 2006, Sir Swinton Thomas says that the "Communications Service Providers" (i.e. telecommunications companies), whose co-operation he regards as vital, are strongly opposed to intercept being admissible in court.[110] During this year's debate on the renewal of control orders in the Commons, Mark Oaten MP, who was party to discussions with the then Home Secretary on this issue at the time of the passage of the Prevention of Terrorism Act 2005, suggested that this was the principal obstacle to the relaxation of the ban.[111] Sir Swinton told us in evidence that the Chairman of BT had been invited to meet the then Prime Minister to tell him why the service providers were completely opposed to the relaxation of the ban and that this "was considered to be a very important piece of material for the Prime Minister to have in the decision that was made."[112]

155. We were concerned to learn that this was a consideration which may have influenced the Government in its decision to maintain the statutory prohibition on the use of intercept as evidence. We asked Sir Swinton why the providers are so opposed to it being used as evidence. He gave two main reasons.[113] First, there is the commercial consideration that the phone companies do not want to be seen by their customers intercepting their communications and providing them to Government agencies. Second, a lot of the technicians who do the intercepting work for the telephone companies are "deeply alarmed at the prospect that they are going to have to go to court to give evidence about what they do." They are anxious about the consequences for them and their family.

156. The DPP, however, was clearly not persuaded by this as an objection to relaxing the ban. He understood the anxieties of the individuals concerned, but said that the experience abroad is that people involved in this sort of work are very rarely called to give evidence because there has to be a good reason for them to be called, and in most cases it is very difficult to imagine what that reason would be.[114] In any event he was quite clear that the few who might find themselves in the position of having to give evidence would be completely protected[115] by a variety of special measures, such as giving evidence without their name being given out, from behind a screen or by closed circuit television.

157. Lord Lloyd also referred to a letter from the service providers in which he said they had made clear that, provided their staff were protected, they had no objection in principle to intercept evidence being admitted.

158. Although we do not think that the agreement of the telephone companies should be a pre-condition to relaxing the ban on the use of intercept as evidence, we understand why, in practical terms, their co-operation is important. We were therefore pleased to learn that the service providers do not have an objection in principle to the use of intercept as evidence provided their staff will be protected. We were reassured on this score by the DPP's complete confidence that, in the rare event that it would be necessary for any such member of staff to give evidence, they would be protected by various witness protection measures in the same way that informants receive protection when they have to give evidence. We therefore conclude that this should no longer be regarded as constituting an obstacle to relaxation of the ban on intercept.

Judicial authorisation

159. Both Liberty[116] and JUSTICE[117] argue that the interception of private communications under RIPA should require prior judicial approval. Under the present legal framework interception warrants are authorised by the Home Secretary.[118]

160. We heard a range of views on this question from those who gave evidence to us. Sir Swinton Thomas was in favour of keeping the power to grant warrants with the Home Secretary, mainly on the ground that this enabled warrants to be obtained much more swiftly in practice which was often operationally necessary.[119] Lord Lloyd, by contrast, could not see why it was necessary for the Secretary of State to retain the power, and preferred to move in the direction of judicial warrants, which was the position in most other comparable countries. The DPP and the representative of ACPO could both see arguments on both sides and preferred not to express a view.

161. We would prefer warrants for the interception of communications to be judicially authorised where the product of the intercept is intended to be used as evidence. In our view this would provide an important independent safeguard against abuse or arbitrariness in the exercise of the power to intercept. The number of interception warrants being issued or modified certainly suggests that it must be difficult for the Home Secretary to give much scrutiny to each request to sign a warrant. In the 15 month period from 1 January 2005 to 31 March 2006, for example, the Home Secretary issued a total of 2,243 warrants, and modified 4,746.[120] The need to be able to issue a warrant swiftly can be accommodated by including an emergency procedure, such as authorisation by the Secretary of State followed by subsequent judicial authorisation. We recommend that RIPA be amended to provide for judicial rather than ministerial authorisation of interceptions, or subsequent judicial authorisation in urgent cases.

Conclusion

162. In summary, we recommend that the forthcoming counter-terrorism bill provide for the admissibility of intercept evidence in terrorism cases; that the law of public interest immunity, complete with the use of special advocates, be relied upon to protect the public interest in non-disclosure; that the Bill clearly define the prosecution's disclosure obligations; that consideration be given to providing for a disclosure judge, rather than the prosecution, to decide whether material held by the prosecution meets the test for disclosure; and that judicial authorisation replace ministerial authorisation other than in cases of genuine urgency.

65 Home Office Oral Statement on Counter Terrorism, 7 June 2007. Back

66 Oral evidence, 18 April 2007, Q 156. Back

67 Contained in s. 17 of the Regulation of Investigatory Powers Act 2000. Back

68 JCHR Report on Prosecution and Pre-charge Detention (2006) at para. 101. Back

69 The Guardian, 21 September 2006. Back

70 The Guardian, 22 September 2006. Back

71 BBC Radio 4, File on 4, 21 November 2006. Back

72 Clause 1. Back

73 Clause 2. Back

74 Clause 4(2) and Schedule 13 of the Bill. HL Deb 25 April 2007, cols 687-697. The amendment was proposed by Lord Lloyd and carried by 182 votes to 121. Back