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Lord Molyneaux of Killead: I ask the Minister's indulgence. When he refers to disclosure, does he include the existing situation as proposed; that there would be disclosure to the defence as well as to the judge?

Lord Dubs: I believe that the answer to that question is yes. However, much of the detail will be covered by the codes which we shall be debating at a later date. Therefore, I urge the noble Lord to keep some of his powder dry for that occasion. To repeat the answer to the question, my understanding is yes.

The noble Lord, Lord Alderdice, referred to the good name of the RUC. That is vitally important because we all know of too many occasions when a terrorist who has been arrested and interviewed claims that he was

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intimidated, harassed and not treated fairly and properly by the RUC. As the noble Lord said, such allegations are difficult to disprove. However, we would be in a better position to enable the RUC to retain its good name and to disprove such allegations made against it.

I urge the Committee to resist the amendments.

Lord Cope of Berkeley: At this stage, I shall not pursue the amendment. I entirely agree that the "hearts and minds" aspect of the struggle is of the greatest importance, as, obviously, are security measures. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

Clause 5 agreed to.

Clause 6 agreed to.

Lord Cope of Berkeley moved Amendment No. 6:

After Clause 6, insert the following new clause--

Exclusion of evidence

(" . In subsection (4) of section 9 of the Interception of Communications Act 1985, after paragraph (b) there shall be inserted--
"(bb) an offence under the Northern Ireland (Emergency Provisions) Act 1996 including a scheduled offence within the meaning of section 1 of that Act;"").

The noble Lord said: This new clause is about telephone tapping. We have not had much success with the Minister so far this evening, but I hope that we shall have a little more success with this particular amendment judging by what was said in another place on a similar amendment.

The clause seeks to make evidence obtained by telephone intercepts admissible as evidence in court in a terrorist case. It seems to me now that a rather odd situation exists that evidence obtained from a bug hidden in a room or elsewhere can be used in court, but not evidence obtained from telephone tapping. Curiously, this restriction seems to be almost exclusive to the British jurisdiction. Other jurisdictions in the world rely on it heavily, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out in his report. He recommended a clause on these lines. He could find no other jurisdiction in which there was such an exclusion.

We hear a lot about confidence-building in the course of these debates, by which is normally meant building up the confidence of the terrorist at the expense of the confidence of the law-abiding. I urge Members of the Committee to think what it does to the confidence and morale of an RUC officer to know from a telephone tap that a crime has been committed and who has committed it, but to be unable to tell the court of the evidence, which every other policeman in the world could do. One should also imagine an RUC policeman, perhaps visiting the other side of the Atlantic, as the noble Lord, Lord Alderdice, said earlier, or hearing, on the radio, British justice being criticised by an Irish American politician when the officer knows who committed an atrocity, but could not tell the court. He would also know that in the United States the FBI frequently relies on such evidence and sometimes,

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according to the noble and learned Lord, achieves guilty pleas in cases where convictions would otherwise have been unobtainable, because of the firmness of that particular type of evidence.

Of course, prosecutors will not always want to use the information obtained in this way because they wish to protect intelligence methods. But that is their choice in the course of pursuing a case in court. It is the kind of choice which they frequently have to make. So I do not believe that there is any specific danger from that.

Three months ago we were told by the Minister in another place that the Government were considering this matter: indeed, the Home Secretary said so in October. I hope that by now the Government have considered it further and will be able to tell us this evening that they are prepared to adopt this new clause or at least the thoughts that lie behind it. I beg to move.

Lord Molyneaux of Killead: I join with the noble Lord, Lord Cope, in expressing the hope that the Government will look favourably on this new clause in the light of the earlier announcement that there will be unified emergency legislation and acceptance that there will be a continuing need for emergency legislation throughout the whole of the United Kingdom. I gather that some thoughts were being directed to that end in the other place this afternoon.

The new clause would provide for the admissibility of wire tap evidence, and that proposal is based solidly on the conclusion of the inquiry of the noble and learned Lord, Lord Lloyd, that wire tap evidence is admissible in every country he had visited. He concluded with a one-liner, which I believe the noble Lord, Lord Cope, had in mind, when he said,

    "The United Kingdom stands alone in excluding such material".

I confess that I am somewhat confused by present attitudes, which are greatly at variance with what is happening here in the capital city, London. Very recently a learned judge in a London trial commended the police on their expertise in tapping telephones. He said, as regards the accused, that such valuable evidence could not have been obtained so accurately in any other way. Mainly as a result of that wire-tap evidence, all the accused were convicted.

The very fact that interception is accepted in so many cases makes the present situation unsustainable. I share the optimism of the noble Lord, Lord Cope, that the Government will see the wisdom of the new clause, especially as there appeared to be some flexibility in the Government's thinking before the Bill left another place.

10.30 p.m.

Lord Mayhew of Twysden: I hope that the Government will accede to this amendment on this occasion. The power of intimidation is very well known--or at least, it should be--and that is why in so many cases of a terrorist character it is impossible to obtain witnesses who are prepared to go into court and say what they know so that the adducible evidence depends exclusively on, and is limited exclusively to, that of police officers and forensic experts. That is not

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to disparage them, but in many cases they simply are not in a position to say what actually happened whereas other witnesses are but are too frightened to do so. A civilian witness who gave truthful evidence for the prosecution in such a case would fear, reasonably, that in a very short space of time he would be dead.

It is worth making the point that telephone communications are intercepted only in accordance with a strict statutory code. The operation of the statute is supervised by an independent commissioner, one normally holding high judicial office. He reports annually to Parliament and the utmost care is taken, as I know, to observe the statutory rules. Any breaches that come to light are reported at once to the commissioner and by the commissioner ultimately in a report to Parliament.

It may very often be the case that evidence of a telephone conversation would be of critical importance to a prosecution and to the decision whether or not to prosecute. The Director of Public Prosecutions has to apply the ordinary test of whether there is a reasonable prospect of a conviction. Is it more likely than not that a conviction will follow? If it were possible to give evidence of what has been heard under lawful conditions in a telephone conversation, in many cases the director would find it his duty to direct a prosecution. In many cases, because that evidence is not admissible in court, he will have to direct that no prosecution shall ensue. That cannot be in the interests of justice.

I am glad that I was instrumental in the appointment of the noble and learned Lord, Lord Lloyd of Berwick, to his inquiry. His report has been widely acclaimed and notwithstanding that he was invited to report on the assumption that the ceasefires would continue, he nevertheless advised, quite uncompromisingly, that such intercepts should be admissible in evidence.

Let us suppose that the hideous events of three days ago at Poyntzpass had been preceded or followed by a telephone conversation of a significant character, properly known to the police--by which I mean, in accordance with the statutory code--and that the contents of that telephone conversation signified complicity on the part of one or all who took part in it, whose interests are served by keeping that conversation inadmissible and therefore keeping, as it may well be, a guilty person out of court and probably out of prison? Whose interests would be served, save those of the terrorists? I support the amendment.

Lord Alderdice: I believe that the arguments on this amendment are much more finely balanced than on some others and need to be sifted most carefully. Undoubtedly this is the only country where the position is as it is now, but I am sufficiently loyal to my country to maintain that there can be situations in which we may well be right and others wrong. While the position of other countries merits consideration it is not of itself a sufficient argument for changing our practice. When the question of wire-tapping and its use in other countries has been raised views have been divided. Those who are likely to be susceptible to the practice or who are breaking the law by doing it are unhappy about it but

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there has been a profound concern within the community as a whole. I think of the debate in Germany on this subject relatively recently. In this country the notion of telephone bugging or wire-tapping has not had an altogether happy reportage, not just in cases where the police may be using it under supervision but where all kinds of others are using it for other reasons.

It is somewhat dangerous at times to deal with hypothetical situations like that described by the noble and learned Lord, Lord Mayhew of Twysden. He asked whether, if prior to or just after the recent atrocity, there had been helpful material from a telephone tapping it would have been good to use it. If one follows his argument it is difficult to refute, except for one matter: it is entirely hypothetical. As far as we know, there is not material available from a telephone tapping that would convict in those circumstances. It is always dangerous to move from the particular that is hypothetical to the general that is not hypothetical.

Having said that, I am not aware that the Lloyd Report concluded that there was widespread scope for its use. I believe it concluded that there were limited contexts in which it would be a possibility. But if there was reason to believe that there would be real advantages to the police authorities in blocking the operations of terrorists or, if not blocking, at least bringing to justice those involved, that would merit serious consideration. But this is a serious development which merits full consideration.

I am not sure whether at this time of night, when even noble Lords have difficulty finding the time to debate all these amendments in their fullness, we can take a decision, although, if the Minister has given it full consideration and can respond positively, that may be an entirely different matter. However, if we are to move to a more thought-through, consolidated piece of legislation to deal with the terrorist threat which will unfortunately continue, even if we have peace in Northern Ireland, in the whole of the United Kingdom in respect of other terrorists, as well as those who remain in Ireland, then proper and due consideration of this matter should take place.

It is my view and, I believe, that of a number of my noble friends that this is a finely balanced argument that may come down on one side or the other. It is persuasive that in these days of telecommunication this facility should be available to the security services, but there is also the argument that at a time when people are becoming more and more concerned about the power of the state their due concerns merit consideration. It is a finely balanced argument, and I and my noble friends are not unwilling to explore the arguments to the point of being persuaded if they are powerful enough.

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