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"In section 17 of the Sex Discrimination Act 1975 (police), in subsection (7)—"
Page 151, leave out lines 6 to 11.
Page 151, leave out lines 26 to 32 and insert—
"In Article 85 (other police bodies), for paragraph (6) substitute—"
Page 152, leave out lines 25 to 32 and insert—
"47 In section 3(3) of the Prosecution of Offences Act 1985 (functions of Director of Public Prosecutions), in the definition of "police force", omit ", the National Crime Squad"."
Page 155, leave out lines 1 to 5.
Page 155, leave out lines 17 to 21.
Page 160, line 34, leave out from beginning to end of line 1 on page 161 and insert—
"In Article 72B (other police bodies), for paragraph (6) substitute—"
Page 162, leave out lines 16 to 22 and insert—
"In Article 94A (other police bodies), for paragraph (6) substitute—"

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Lord Lloyd of Berwick moved Amendment No. 62A:

Sections 17 (exclusion of matters from legal proceedings) and 18 (exceptions to section 17) of the Regulation of Investigatory Powers Act 2000 (c. 23) are repealed."

The noble and learned Lord said: I have pursued the subject for 10 years or more, and this is clearly my last chance on it in this Parliament. Ten years ago, I discovered to my surprise—it is now well known—that we are the only country in the world apart from Ireland that does not admit intercept material in criminal proceedings. That is still the case today. That simple fact seems to require a good explanation.

Of course, there are no doubt differences between different legal systems, but those differences are very small—certainly in the common-law jurisdictions—compared to what they have in common. In any event, those differences do not begin to explain why they all,
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with one accord, admit such intercept material in criminal proceedings and we alone do not. The only explanation that I can think of is that we have consistently exaggerated the risks of doing so and have consistently underestimated the benefits.

I tried to summarise the arguments on this point during my Second Reading speech and none of those need repeating. But I would like to refer to the Minister's reply on that occasion. She said that intercept material had, indeed, been of great utility and she gave us an example—the fact that during 2003 some 26 tonnes of illicit drugs had been seized. She was obviously right about that, but she said that near the end of a long day and she missed the whole point. No one has ever doubted that intercept material is of huge value as an intelligence tool for identifying criminals and stopping them, if we can, in their tracks.

However, the question is whether that intercept material could also be used for convicting criminals. Unless it could be shown that those two objectives were in some way inconsistent with each other, the arguments in favour of admitting the evidence seem to be very strong.

This subject was considered by a high-powered Home Office committee last summer and was summarised in a Written Statement just before the proceedings on the Terrorism Bill. I asked to see a copy of that report and I am grateful to the Home Secretary for letting me see one this morning. My reading of it is that the benefits of admitting this evidence are not in serious doubt. The doubt relates to the risks and, in particular, the risk of compromising sophisticated techniques.

Some of the agencies are strongly in favour of this evidence being admitted; some, who are more directly connected with the sophisticated techniques, are against it. I believe that the risks can be controlled by the use of a public interest immunity certificate and if the judge came to the view at the hearing that took place in the ordinary way that the evidence should be admitted, and if it would be seriously embarrassing to the Government, the prosecution could always be dropped, as is the case at the moment.

Why have the Government come to the provisional view—or, rather, the final view, for the moment—that such evidence should not be admitted? It was not as a result of the report. The report came to no view one way or the other. It simply left it to Ministers. Why? I have nothing to go on except for the Home Office letter of 22 May, which refers to two matters. The first relates to maintaining the vital co-operation between intelligence and law enforcement agencies and the communications service providers. It is all a little jargon-like as it is between the people who are using the intelligence and the people who are doing the work—British Telecom, or whoever. Everyone agrees that that co-operation is vital. Without the co-operation of the service providers, the interception would not be possible.
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Lastly, there is the difficult sentence, which states:

I read that sentence several times and I still do not understand it. I do not expect the Minister to explain it, but, perhaps at some time, can she explain to me exactly what that sentence means? It seems to say that there is no way of testing now how successful we would be if we adopted the amendment. If that is what it is saying, my advice to the Government would be to try the amendment and see. If other countries are anything to go by, she will find that the amendment is a great deal more successful than she imagines. I beg to move.

Lord Renton: So far, in this Committee, we have been asked to accept a large number of matters—many of which are controversial. The noble and learned Lord, Lord Lloyd of Berwick, has, with all of his expertise, moved an amendment and several suggestions which should not be ignored. I understand that the Government, having declared that there should be a general election soon, have asked us to swallow a great deal that we would not normally accept, but here we must persuade the Government to accept the noble and learned Lord's proposal.

Lord Thomas of Gresford: The amendment is grouped with Amendment No. 91, in my name and that of my noble friend Lord Dholakia. My amendment is not quite as all-encompassing as that moved by the noble and learned Lord, Lord Lloyd, but I seek that in,

to permit the use of intercepted communications which are,

That would also apply in cases of,

and any case involving the,

In my experience, it is in those areas that surveillance evidence is obtained.

It is very much in the public interest that people who are guilty of serious crime should be convicted. It is entirely illogical not to use evidence which is primary evidence to that end. For example, telephone intercept evidence cannot be used unless it has been obtained in a foreign jurisdiction. On the other hand, if a person making a telephone call tapes it himself, then that tape recording can be used in evidence in a criminal trial. If a bug is planted in his house, anything that is said is admissible in a criminal trial, including his end of a telephone conversation. So why are the Government reluctant to introduce intercept evidence in the ordinary criminal trial?
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One understands the sensitivity of the security or other services about disclosure of how such information may be obtained. It is necessary not to expose the identity of an informant or to disclose the technology by which that evidence has come into the hands of the prosecuting authorities. But at the moment there are three important safeguards.

First, the identity of a party to a conversation can, with modern technology, be established to the requisite level of proof by acoustic analysis and voice prints, so it is not necessary to have an informant state who was speaking in a particular conversation. Secondly, the means of obtaining that evidence need not be disclosed if it is contrary to the public interest or national security. Frequently, in drugs trials evidence obtained by surveillance from observation posts is put before the court, but the location of the observation post and the particular way in which the evidence was obtained is not disclosed.

However, the third safeguard is that the prosecution need not use that evidence at all if it is in danger of disclosing the means by which it was obtained. If that is the case, then the prosecution is in no worse a position than when no such telephone intercept evidence can be used in any circumstances—which is the current situation.

6 p.m.

The position in America is very interesting. There, surveillance evidence and telephone intercepts have been used for years. Prosecutions based on national security surveillance go forward without difficulty. The security services in the United States are able, under special legislation, to make available to the court ex parte and in camera the justification for the surveillance so that the defendant obtains neither the justification nor a disclosure of the sources and technologies from which that evidence has been obtained.

As recently as 2004, after 9/11 in the case of The United States v Hammoud, the prosecution was upheld for providing to Hezbollah, a foreign terrorist organisation, material support which had been obtained through electronic surveillance by the United States and Canadian authorities. It was found in this very recent case not to be necessary to produce classified information to permit cross-examination of the government expert under the Classified Information Procedures Act—that is, Chapter 18 of the United States Code.

I shall not weary the Committee with all the details but, when one looks at that code and at the procedures employed, it is interesting to note that one procedure that can be adopted is that, on application by the Attorney-General in the United States, the court may order the substitution for such classified information of a statement admitting relevant facts that the classified information would prove or, alternatively, the substitution for such classified information of a summary of that classified information without revealing sources or techniques or anything of that nature. The court will grant the motion if it finds that the statement
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or the summary will provide the defendant with substantially the same ability to make his defence as would the disclosure of the classified information itself.

Those hearings are held in camera—that is, with the public and press excluded—and may be ex parte—that is, without the defendant being represented. The United States government prosecution may submit to the court an affidavit of the Attorney-General certifying that disclosure of the classified information would cause identifiable damage to the national security of the United States, explaining the basis of that opinion, and the court will examine that affidavit in camera and ex parte.

So, the United States, where terrorism has struck deeply and where there is a great fear of the kind of things that may be motivating the security services in this country, has techniques with which the court can permit evidence obtained through telephone intercepts and so on to go before the court. As I said earlier, it is in the public interest that people who are guilty of an offence should be found guilty, and it is not in the public interest that, through some illogical rule, guilty people should get away with it. For those reasons, I support the amendment moved by the noble and learned Lord, Lord Lloyd.

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