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There has been a very worrying aspect of this clause. What is a serious offence, and what particular circumstances do the courts consider to be sufficiently serious to be treated as such? I mentioned that at Second Reading, and I said:
“In other words, the court can regard any offence that it likes as serious. That is an Alice in Wonderland definition; it is effectively saying that words can mean whatever the courts want them to mean”.—[Official Report, 7/2/07; col. 759.]
That does great damage to the principle of legal certainty, making it impossible for a person to ascertain in advance what are the likely legal consequences of their actions. The amendments would remove this provision, meaning that an offence had to be listed in Schedule 1 to be treated as a serious offence.
The Minister of State, Home Office (Baroness Scotland of Asthal): As I have said on a couple of occasions, I understand the noble Lord’s anxiety. I should declare an interest, as one of Her Majesty’s deputy High Court judges. I exclude myself from any of the comments I make in relation to those judges who have the privilege of sitting. I am grateful to the noble Baroness for reminding me of the declaration, by virtue of her example.
It is important to remember the context when looking at the amendments. Those who commit serious crime are innovative and enormously adaptable. They do not commit crime for crime’s sake; they do so to fund luxurious lifestyles, taking advantage of those more vulnerable than themselves wherever they find them. They are extraordinarily innovative. From his wealth of experience, the noble Lord, Lord Dear, explained this to us very eloquently during our Second Reading debate.
It is therefore incredibly difficult to provide an exhaustive list of the types of criminal activity in which such people will engage, both now and in the future. If one looks at the way in which criminal activity has developed over the past few years because of the opportunities that technology has provided, it becomes clear why that is so. This type of criminal continually seeks to find new opportunities to exploit
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It is important that we do not fetter the discretion of the courts and their ability to adapt to the constant changes around us by looking too narrowly at these issues. We have to put them in the context of the position in which we find ourselves. The court will be able to make a fully informed and reasoned decision as to whether it will be appropriate for an offence to attract an order.
“Seriousness” is not a new concept, as I indicated at the start of our first debate. The term is well understood and there is a great deal of jurisprudence in relation to it. Further, an offence will not always be appropriate for attracting an order in all circumstances. Sometimes the context and nature of the activity and the way it will be used will make it particularly serious, and the court will need to balance when that occurs. The orders should not be used against someone whose crime is to get involved in a fight in a pub, for instance. However, someone who has routinely used violence in the past to intimidate and maintain a reign of terror in an area might be an appropriate candidate for an order after serving his sentence if there is evidence that an order would prevent such crimes taking place again. There are many historical figures that one could cite; the Kray brothers, for example, used violence and intimidation as an integral part of their criminal activities.
I hear what the noble Baroness, Lady Anelay, says about the need for certainty. I believe that the position provides just that while maintaining the flexibility which, as I have explained, we believe to be essential. The list in Schedule 1 to the Bill provides significant guidance for the courts about the types of offence that these orders are designed to be used against. I have every confidence that with this guidance the courts will be able to develop a consistent approach that strengthens the certainty of the Bill even further.
Although I understand the noble Baroness's concern, we believe that the way in which the Bill is structured and the tests that have to be applied are sufficiently rigorous to make us confident that these provisions can be used with a degree of certainty in law that would make them fit to be used to address this most dreadful and pernicious form of criminal activity.
8.45 pm
Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Dholakia, for his support. I agree with him that the difficulty is that it is impossible for people to ascertain in advance the likely legal consequences of their actions as a direct result of the way in which the Bill is drafted. I accept a lot of what the Minister said. I will have to read very carefully what she said and consider further.
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The Minister argues that the Bill provides the right balance between certainty and flexibility because Schedule 1 provides guidance about the type of offence. We will deal with the detail of Schedule 1 later on, but she says in support of her argument that there are three separate reasons why it is appropriate that there should not be an exhaustive list. She talks about the fact that criminals, particularly the ones whom we are trying to get at here, are highly innovative and devious, and will adapt their methods in order to find the easiest way to make the most money. I appreciate that it is difficult to provide an exhaustive list. The implication of the Minister’s argument is that if one has an exhaustive list, the serious criminal will simply say, “Right, well that avenue is closed off so I will find something else”. I understand that argument.
However, the Minister goes on to put three different scenarios in support of her argument. I will take them in reverse order, like a beauty contest. She said that the way in which one commits an offence can make it serious. It might be a multiple offence, or it might be the way in which one adapts a particular offence that makes it serious. I understand that the court might indeed be able to interpret seriousness in that way, because she also said that seriousness is well understood and there is jurisprudence on the matter. Those two matters go closely together and I can see her argument developing there. But she started with an argument that there is still some difficulty around.
The Minister pointed out, quite rightly, that society is always evolving by its very nature. In support of her arguments, she said that new crimes pop up. We have seen the development of internet fraud and its use for paedophile activity. Society is rightly concerned about both. But the difficulty seems to be, “We must be able to respond to new developments and new crimes”, but if an order is to be imposed, the court has to say that an activity is a crime anyway. In order to get to that stage Parliament would have to have been invited by the Government to have created an offence, the facilitation of which the court can then decide should be taken as being a serious offence. You cannot have a situation where some new innovative activity can bring a person into the order-making process. There has to be a crime first.
I can see that the second and third arguments have to be taken very seriously as undermining my proposition but the first one leaves me some cause of concern. I may be able to resolve it at a later stage. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17 to 25 not moved.]
Clause 3 [Involvement in serious crime: Northern Ireland orders]:
[Amendments Nos. 26 to 39 not moved.]
Lord Lloyd of Berwick moved Amendment No. 40:
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(1) In considering for the purposes of this Part whether a person is involved in serious crime the High Court may take account of any evidence admissible under the Regulation of Investigatory Powers Act 2000.
(2) Schedule (Intercept evidence) (which makes provision for the admissibility of intercept evidence in cases involving serious crime) has effect.”
The noble and learned Lord said: I stress that this is an important amendment for the Committee to consider. At Second Reading, the noble Baroness, Lady Anelay, suggested that before we go much further with the Bill we should look again at using intercept evidence in court, so that serious criminals, instead of being made subject to prevention orders under the Bill, could be charged and convicted. The noble Baroness, Lady Scotland, replied:
“During the debate I have encountered some issues that are old friends. One of the oldest of these is intercept. The issue has now become very dear to me. I cannot but see the noble and learned Lord in his place to know that any debate at any time on any day on any issue should have intercept woven somewhere into its fabric. If it were not, I would be deeply disappointed”.—[Official Report, 7/2/07; col. 765.]
That is a challenge that I could not possibly resist, hence the amendment now standing in my name. At least the Minister will not have been disappointed to see the amendment on the Order Paper.
What are the reasons for tabling this amendment in this context? Under Clause 1, the High Court judge has to be satisfied that a person has been involved in serious crime. That is the first stage of the two-stage test, which the noble Baroness has explained clearly. It seems to me that in reaching his conclusion on that first and vital step, the High Court judge ought to have the benefit of all the relevant evidence, not just some of it.
If a defendant's house has been bugged by the police, evidence of the bugging would be available under the Regulation of Investigatory Powers Act and would be admissible in court. If a defendant’s telephone conversations have been tapped by overseas agencies, the evidence would also be admissible in court. Section 17 of RIPA does not apply in such a case. However, if a defendant’s telephone has been tapped in England, that same evidence would not be admissible and the High Court judge would be deprived of what might be a vital piece of relevant evidence in deciding whether the defendant was involved in serious crime. An application for the prevention order might fail in circumstances when it should have succeeded if the High Court judge had known all the evidence. It still seems to me, as it has seemed to me for the past 10 years, to be a most curious and even quixotic result of our law as it stands that he does not know all the evidence.
That is the reason for my amendment, designed to make intercept evidence available in proceedings in the High Court in accordance with the Bill. The amendment goes wider because it will apply to the whole field of criminal prosecutions. Why should it not? Everybody agrees that prosecuting suspects is better than applying for a prevention order. That is so, whether the subject of the prevention order is the central figure in a conspiracy or whether, as is intended, it is someone merely on the fringes of the conspiracy.
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The fact is—and I state it as a fact—that serious criminals could be prosecuted and convicted if intercept evidence were admitted in our courts. That is now common ground between all parties. That was the evidence as I saw it when I conducted my investigation in 1996. More important is the evidence of the most recent report, the fifth review report of 26 January 2005. If some criminals could, as is common ground, be convicted by admitting intercept evidence then surely we should take that step.
I am conscious that we have been here before, but since we last addressed this subject in detail in November 2005 there have been two important developments. The first is the report of Justice, Intercept Evidence: Lifting the Ban. It goes into all the arguments for and against lifting the ban in great detail. It is a serious and scholarly study. At the end of the investigation it reaches a clear conclusion: the ban on intercept evidence,
The second event was the publication by Sir Swinton Thomas, the current Interception of Communications Commissioner, of his last report, dated as recently as 19 February 2007. Sir Swinton Thomas is an old friend and has been a colleague of mine for many years. He remains of the view that lifting the ban would be a great mistake. In paragraph 44, he regrets that,
- “various ... misguided, and often ill-informed ... people continue to re-open this complex question”.
“Those who advocate a change in the ... law would be wise to discuss [this] issue with those who are knowledgeable on [the] subject”.
Having raised that matter on many occasions, I have had my wrists well and truly slapped by my old friend. I do not despair, for I am in good company; I am not the only one who advocates change. Others who advocate change—and I mention only a few of them—include: the Attorney-General; Sir Ken Macdonald, the current Director of Public Prosecutions; Sir David Calvert-Smith, his predecessor; Sir Ian Blair, the Metropolitan Police Commissioner; Andy Hayman, the Assistant Metropolitan Police Commissioner; the noble Lord, Lord Carlile of Berriew, the commissioner of almost everything else; the Newton committee of the Privy Council; the House of Commons Home Affairs Committee; the Joint Committee on Human Rights and the Law Society. I suggest that at least some of them must have known what they were talking about when they advocated change.
The main argument against using intercept evidence appears in paragraph 46; it has always been the same, and it is simply that if criminals realised that their communications could be intercepted and used in evidence they would find other means of communicating. Justice, in paragraphs 52 to 62 of its report, says that the argument is “profoundly misplaced”. I agree.
We are dealing here with highly sophisticated organised crime, crime that crosses international boundaries. If criminals know that their
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It is feared that interception methods would be compromised and that clever defence lawyers would soon winkle out the truth, but that argument fails to take account of the use of public interest immunity certificates. Public interest immunity is not something new and untried; its principles are used and applied day in and day out in the courts to protect sensitive sources, methods or techniques. It is used to protect informants and to protect methods of covert surveillance. I know that the noble Lord, Lord Thomas—I hope we will hear from him later—has much more experience of the use of PII than I have myself. There is no reason to suppose that such methods would not protect the methods used by GCHQ to intercept communications.
If there were any doubt at all about that—I suggest that there is none—those doubts would immediately be displaced by looking at what happens in other common law jurisdictions. Intercept evidence is used regularly in Australia, Canada, New Zealand, South Africa and the United States. They are all described in great detail in paragraphs 115 to 167 of the report. In all those countries, means have been devised to protect the methods used, whether by PII as such, a variation of PII or, in some cases, by statute. Why cannot we do the same here? I find it surprising that Sir Swinton Thomas, in his comprehensive report, fails entirely to mention the use of PII and has failed entirely to refer to the powerful case made in the Justice report; nor has he dealt with the point that intercept evidence works well in the five Commonwealth countries that I have mentioned.
With one exception, all the other arguments have been dealt with in advance by the Justice report. The only exception is in paragraph 46(vi), where Sir Swinton refers to the “strong opposition” of the communication service providers. He describes them as being “totally opposed” to any change in the law. Here again, Sir Swinton says that,
- “people who hold views on this subject should talk to the Communication Service Providers themselves”.
I have not had talks with them for many years, though I did in the old days; but I did get a letter from them dated 14 November 2005. I shall quote two paragraphs from the letter, which is from the Mobile Broadband Group, comprising all the main companies that we know, including O2, Orange, Vodafone and so on:
“We acknowledge that you and others have been advocating for many years the relaxation of the UK's ban on the use of intercept evidence in court. While it is not our intention to challenge or take a view on this proposal, we do have some serious concerns about its implications for the safety of our staff. We would therefore urge you to consider the inclusion of unambiguous provisions that would offer protection to people giving evidence. We understand that where intercept evidence is used in other jurisdictions such as France, Germany, USA and Canada, arrangements exist to protect the anonymity of
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So those companies do not oppose it, root and branch. They say that, provided that their staff are protected, they would be satisfied. There is no reason why their staff should not be perfectly well protected under the existing arrangements.
I leave the last word to Andy Hayman, the assistant commissioner. On page 33 of the report he says:
“I am moving, as I know ACBO is, to a conclusion that in a selected number of cases, not just for terrorism but also for serious crime, it would be useful. I think also it does make us look a little bit foolish that everywhere else in the world is using it to good effect”.
I have been hoping for the past 12 years that we would make this necessary change. I shudder to think of the number of people who might have been prosecuted and convicted if we had made it 12 years ago.
Over and over again we are told that the Government are keeping the matter under consideration. It is time they moved forward from that step and took action. I beg to move.
Lord Dholakia: The noble and learned Lord, Lord Lloyd, has our support on this amendment. He has been consistent for years on this and I am delighted that he has put forward the case in this amendment, which would permit the introduction of intercept evidence and evidence of communication data in certain criminal proceedings.
Let me give the reasons for our support. One of the Government’s arguments in the Bill is that this new breed of civil orders is necessary—in particular, serious crime prevention orders and control orders. The difficulty that they see lies with prosecuting people involved in serious crime or terrorism. I understand that. We do not doubt that criminal prosecutions may well be more difficult, time-consuming and costly for the state than serious crime prevention order applications. But this is not a justification for abandoning the criminal justice system. Criminal prosecutions are more respectful of our democratic process and values, the rule of law and our human rights than the orders that we are asked to consider. Criminal prosecutions and prison sentences for those found guilty of serious crime would also be a far more effective way of providing justice to victims, a visible public deterrent and protections for the public. We therefore urge the Government to consider ways of overcoming any practical difficulties with the prosecution of those involved in serious crimes.
In 2003, the Newton committee concluded that lifting the blanket ban on the use of intercepted communication in court would be,
terrorism cases. It proposed the removal of the bar as a “more acceptable and sustainable” approach to the threat of terrorism than executive powers to restrict liberty which evade the criminal justice process. Since then, a number of other influential bodies have identified the removal of the bar on intercept evidence as a possible change to the criminal justice system. I am delighted that the noble and learned Lord, Lord Lloyd, was able to identify all these organisations.
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