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Lord Bach: The prosecutor does not bring it before the jury; he drops the case. It is considered neither wise nor sensible for the evidence of intercept to be more widely known than necessary, for obvious reasons which have been discussed during the course of this Committee. The prosecutor drops the case.

Lord Lloyd of Berwick: I entirely support what the Minister says. It has happened, I am afraid, quite frequently that cases have been stopped simply because the prosecution decides that it cannot fairly go on without disclosing the intercept, which it cannot do.

Lord Lucas: That reinforces the number of convictions that have not been obtained because of this strange quirk of the 1985 Act.

Lord Cope of Berkeley: But even if Clause 16 were dropped completely and even if it vanished from this Bill, it would still be open to the prosecution, the police, the Customs or whichever other element of authority was involved, not to proceed because they did not want to disclose certain evidence and the way it was obtained; they wanted to preserve their methods. That is done in cases where the evidence is perfectly admissible, but it is decided not to advance it for perfectly proper reasons, which I entirely support. Taking Clause 16 out of the Bill will not mean that the authorities automatically have to go on with the case in spite of other public interest considerations which they need to protect. I believe that they could even then drop the case.

Clause 16 agreed to.

Clause 17 [Exceptions to section 16]:

Lord McNally moved Amendment No. 68:

("( ) any proceedings for a criminal offence subject to the provisions of the Criminal Procedure and Investigations Act 1996;").

The noble Lord said: It is becoming almost customary in this Committee to start speeches by either declaring that one is a lawyer or saying that one is not. I am not a lawyer. I do not know whether that is a badge of honour or a stain on my escutcheon; but it is a fact. I note also with some trepidation that the

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noble Lord, Lord Mackay of Ardbrecknish, has joined us. It may be recalled that in the last Committee he arrived at this time, feisty and full of vim.

I am not a lawyer, but I listened carefully to the last debate. We have made the point on a number of occasions that this Bill has been relatively friendless. I noticed that both the noble and learned Lords, Lord Lloyd and Lord Nolan, felt that the Bill had many merits. When such sources find merit, we are bound to take notice. So we move on with the still declared attempt of trying to improve this Bill.

I shall be brief. The two amendments take the point that Clause 17 lists the exceptions to Clause 16. They are merely probing amendments to understand why the Government set out those exceptions. In the briefing that we received from Justice, it was interesting to note that it believes that,

    "lawfully intercepted material should be prima facie admissible as evidence in criminal proceedings, subject to the usual disclosure of evidence rules under the Criminal Procedure and Investigation Act 1996 and judicial discretion under Section 78 of PACE".

That is an interesting opinion from an interesting source.

I have one further point to make which partly overlaps from the other debate. We discussed earlier the possibility of making this legislation "future proof", as much as we can. I understand that digital signature technology will allow the authorship or provenance of an electronic communication to be verified with a degree of assurance comparable to a hand-written signature. So it is possible that intercepts of digital information of this kind may carry a weight which was not the case under older technologies.

Clauses 16 and 17 are opposite sides of the same penny. It was clear from the previous debate that this is something we shall have to consider most carefully. It is yet another reason why this Committee stage is so important. In some ways, the Government have been pressed to go further than they were inclined to do in toughening up the measure to go after the evil-doers. My amendments would clarify and justify the exceptions made under Clause 16. I beg to move.

Lord Bach: I am grateful to the noble Lord, Lord McNally, for pointing out that we have received support from two noble and learned Lords for the Bill. However, the noble Lord is too shy. He is a supporter of the Bill; indeed, he made that very clear in his Second Reading speech. I should hate him to forget that in the excitement of the media publicity that we have seen over the past few days. I could even read out the paragraph of his speech that ended with the words:

    "That is our basic welcome for the Bill".--[Official Report, 25/5/00; col. 890.]

The noble Lord was quite right.

I shall deal, first, with the two Liberal Democrat amendments, if I may so call them. Amendment No. 68 would effectively wreck Clauses 16 and 17 and enable intercept material to be adduced in evidence in almost all criminal prosecutions. So the debate on that is the one that we had on Clause 16 stand part a short

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while ago. Amendment No. 70 would remove the provisions allowing a judge in certain circumstances to be told about the material gathered by interception.

However, there are also two government amendments in this group; namely, Amendments Nos. 69 and 227. These deal with some of the exceptions to the prohibition in Clause 16 and enable the intercept material to be considered by the court in cases before the Proscribed Organisations Appeal Commission, the Special Immigration Appeals Commission and in any proceedings arising out of proceedings before those commissions. In order to ensure in these special circumstances that the commission is able in each case to consider any intercept material that may be relevant, the rules governing the procedure have been devised in such a way as to ensure that sensitive material is protected.

Paragraphs (a) and (b) of government Amendment No. 69 reflect that aim and ensure that intercept material is not disclosed to the appellant himself, or to anyone who represents him. However, there is provision for a special advocate to represent the interests of the appellant in any parts of a hearing from which he is excluded. The procedure for the Special Immigration Appeals Commission is set out in the Special Immigration Appeals Commission (Procedure) Rules of 1998. The Proscribed Organisations Appeal Commission is provided for under the Terrorism Bill, which is currently before Parliament. The government amendments deal with that issue.

Amendment No. 70, in the name of the noble Lord, Lord McNally, covers two areas. I shall deal first with the proposed deletion of subsection (5) of Clause 17. This subsection states that if a person has been convicted of an interception related offence, the interception which led to the conviction falls outside the statutory prohibition on disclosure. If a person had committed an unlawful interception, had been tried and convicted, Clause 17(5) makes it possible for the conviction to be disclosed subsequently as a previous conviction--subject, of course, to the normal rules on previous convictions being disclosed--and for a person to bring civil proceedings in the ordinary courts based on the interception.

The second part of Amendment No. 70 would delete the provisions relating to disclosure of intercept product to a judge. The Interception of Communications Act was silent on the point and this has led to the law being interpreted in a variety of ways. The case of Preston introduced the duty upon the prosecutor to satisfy himself that there is nothing in any surviving intercept material which would either assist the defence case or undermine the prosecution case. That duty remains under this Bill, and these provisions are not designed to make the judge have to review the prosecutor's decision.

However, there are exceptional circumstances in which the judge will need to know the fact that interception took place in order to make sure that the trial proceeds fairly. For example, the evidence before the court might lead the defence and the jury to take a particular view of a certain fact. That view might, in

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the light of intercepted material, be misleading and wrong. These provisions allow the judge to see intercept material to the extent necessary to guard against that kind of mistake.

Where something arises from the intercept material that the judge believes essential in the interests of justice to introduce into the proceedings, subsection (8) allows him to order that an admission is made. This does not undermine the prohibition on disclosing intercept material. The admission is limited by subsection (9) which makes this quite clear. Such an admission would not show the existence of intercept material; the information could have come from another source of intelligence, such as an informant. However, it might be essential in the interests of justice. We argue that the subsections which Amendment No. 70 seeks to delete constitute an additional safeguard to a defendant in a case such as I have mentioned. I therefore ask the noble Lord to consider withdrawing the amendment.

Lord McNally: On the broader general point that the Minister made, it is the intention of these Benches to give broad support to the Bill, as we have proved in the Lobbies. However, as we have progressed through the Bill, we have noticed some key points that need careful study. I fully accept the constructive way in which the Minister is progressing through the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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