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Baroness Blatch: My Lords, I do insist, with the leave of the House, on asking the noble Lord this question: will the noble Lord not agree that Section 91(2) provides that,
- "Where subsection (3) applies, an authorising officer may authorise"?
Lord McIntosh of Haringey: My Lords, of course I agree that there is discretion available to the commissioner. That is not the point that I was making. What the Minister was saying was that the commissioner is going to be able to exercise his discretion on the basis of which of the various options open to the police would constitute the best use of
limited financial resources: that was the protection which she offered for the definition of serious crime. We are getting out of order.
Baroness Blatch: My Lords, if I may with the leave of the House, I have to put it on record that that is not in fact what I said. I did say in response to the noble Lord, Lord Thomas, that a downward pressure on the police--not to be trivial, not that it would be a discretion exercised by the commissioner--would be the need to use their resources wisely and effectively, so they would not play around doing unnecessary things; they would actually be pursuing the more serious crime. That was the downward pressure I was concerned about with regard to resources, not that the decisions of the judge or the commissioner would be made on those grounds.
Lord McIntosh of Haringey: My Lords, therefore if they had more resources they would do more bugging, would they? That is the only conclusion one can draw from what the Minister has said. It really is. The Minister confirmed that the commissioner can quash an authorisation if it is inappropriate, and she is now saying that one of the considerations that can be taken into account in deciding whether or not an authorisation is inappropriate is the proper use of resources. Hansard will bear one of us out. I am convinced it will be me. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Lord McIntosh of Haringey moved Amendment No. 38:
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 124. The amendment is concerned with the issue of the destruction of evidence and we refer to Section 64 of the Police and Criminal Evidence Act 1984. I return to this matter, which I raised at Committee, only because, even under the more liberal rules of debate which apply at Committee, the noble and learned Lord the Lord Advocate, in responding to my amendment, failed to address the most significant point about Section 64 of the Police and Criminal Evidence Act.
That most significant point is that he claimed--in my view wrongly--that the amendment would do harm to the structure of the Bill because there is no need for a particular offence to have been committed before an authorisation can be sought. Therefore, we could not apply the Section 64 procedure. I have looked again at Section 64 of the Police and Criminal Evidence Act. My understanding may be defective, although it has not been suggested to me that it is. The point about Section 64 is that it refers to destruction after a case has resulted in acquittal. Under those circumstances, surely it is proper that destruction should apply to the material obtained by intrusive surveillance on the same basis.
This is a very small amendment because Section 64 of the 1984 Act is very limited, but I want the record to be put straight. I beg to move.
Baroness Blatch: My Lords, the amendments deal with a very important issue, which is how the material obtained by intrusive surveillance should be treated.
It is obviously important that material obtained by such intrusive techniques should be treated with all due care and that there are proper safeguards to ensure that there are procedures in place governing the handling and eventual destruction of such material. However, I do not believe that either of these amendments is appropriate. Their combined effect would be to require the product of police and Customs intrusive surveillance operations to be treated in the same fashion as the product of interceptions authorised under the Interception of Communications Act 1985 (IOCA). IOCA imposes strict rules on keeping the number of people who can see such material to a minimum, on the disclosure of such material and on its destruction.
Superficially, such a regime may seem attractive for material obtained as a result of operations authorised under this Bill. However, there is a key difference. Section 9 of IOCA imposes an absolute bar on intercept product being adduced as evidence in criminal proceedings and, indeed, on any questions being asked about interception in such proceedings. It is therefore possible to destroy intercept product once the information has been assimilated into the general information picture or once an investigation has been completed.
By contrast, the product of police and Customs intrusive surveillance operations can, subject to the views of the court, be used as evidence. There have been a number of cases over the years in which the courts have been happy to admit such material as evidence and that will not change once this Act puts these operations on a proper statutory footing. This means that information obtained needs to be retained for much longer. Particularly where information has been obtained by intrusive surveillance as part of a long-term intelligence gathering operation, a prosecution may result long after the original intrusive surveillance operation. It is important that the material is still available at that stage, both so that the prosecution can use it as part of its case and also so that the prosecution can fulfil its disclosure obligations. Similarly, at that stage the material will be used for the purposes of prosecution rather than for the purposes of prevention and detection of serious crime. So the regime proposed in the new clause, which limits the disclosure and copying of the material to the minimum required for the prevention and detection of serious crime is inappropriate.
The absence of statutory rules governing the handling and destruction of this material does not mean that these issues will be treated in cavalier fashion. Given that chief officers will be involved in the authorisation of these intrusive surveillance operations, they will clearly have a personal interest in ensuring the proper handling of the results. I have no doubt that the chief commissioner will consider that the handling of the
Finally, it should not be forgotten that there is another good reason to ensure that the intrusive surveillance product is securely handled and seen only by the minimum number of people necessary. The more people who handle such material the greater the risk of the information getting back to the subject of the intrusive surveillance.
Although I am sympathetic to the intentions underlying the amendments, for the reasons that I have given I cannot support them. As I have demonstrated, the product of intrusive surveillance operations will be carefully handled. Therefore I hope that the noble Lord will not press the amendment.
Lord McIntosh of Haringey: My Lords, I understand the need for long term operations. The Minister has not answered the point as regards how limited Amendment No. 38 is. It refers only to information which is available after a case has resulted in acquittal.
I appreciate what the Minister said about Amendment No. 124. There have to be strict rules regarding the restriction of availability of this material, not only to avoid it getting back to the subject of the intrusive surveillance, but, as the noble Baroness said, more generally, in the interests of justice.
The Minister gave a complicated answer and I should like to consider it. In the meantime, I beg leave to withdraw Amendment No. 38.
Amendment, by leave, withdrawn.
Lord Rodgers of Quarry Bank moved Amendment No. 39:
The noble Lord said: My Lords, this is a consequential amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 41:
The noble Lord said: My Lords, I move this amendment which stands in the name of my noble friends Lord McIntosh of Haringey and Lady Hilton of Eggardon.
This important amendment seeks clarification that nothing in the Bill in its final form whatever that may be in due time, will have any limiting effect on the common law or, perhaps more likely now, on the
Page 34, line 29, at end insert--
("( ) Any information or property obtained or retained in whatsoever form under the powers conferred by this section shall be treated for destruction purposes as if it were evidence obtained under the Interception of Communications Act 1985.").
Page 34, line 30, leave out subsection (6).
Page 35, line 11, at end insert--
("( ) Nothing in this Act shall prejudice any power of a court to exclude evidence (whether by common law or otherwise) at its discretion.").
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