Previous Section Back to Table of Contents Lords Hansard Home Page

The Government have themselves argued that one of the reasons why it may not be possible to prosecute those suspected of involvement in terrorism is that the evidence on which the suspicion is based would be inadmissible in court. The JCHR recently concluded that the ban on the use of intercept evidence in criminal proceedings should be removed. That is one of the strong grounds why we should support this amendment.

Lord Thomas of Gresford: The curious thing about the ban on intercept evidence is that other evidence that is obtained clandestinely is used. I recall a case many yeas ago in which I was prosecuting—I hope that that does not cause too much of a shock to some noble Lords—when intercept evidence was used that had been obtained through the security services breaking into a person’s flat and planting a bug. The relevant conversations were before the jury and there was no problem. The only things that were concealed, following public interest immunity applications, were the method of entering the flat and where the bug was concealed because, presumably, that would have revealed methods used by the security services that it would not have been appropriate to make known.

In another much more recent case, which involved the smuggling of drugs from Turkey, a number of defendants’ cars were broken into and bugs were planted. Those bugs recorded conversations that were translated and put before the jury. However, the translation broke down when it was discovered that the proposed defendants were speaking Albanian, not Turkish, so there was a problem with the translation. I also recall a third case, in which bugs were placed in a police exercise yard. The product of that—a conversation between two prisoners who had both been interviewed by the police and were then put together in the prison yard—was used in a trial.

There is no bar in principle to recording conversations and putting them into the public domain—laying them before the jury. I have never understood why telephone conversations and telephone intercepts should be treated differently. I can only assume that there are two reasons. First, if someone says, “This is secret, you’re being told this in secret”, he has a certain power over everybody else. It is a secret that he does not want to tell anybody; he is holding it to his bosom and will not disclose it.

Frequently, a court will go in camera and one hears evidence that the public would not generally hear. My experience is that people involved in the security services and in this sort of work are very proud of the fact that they know things that other people do not know. Their whole purpose in life is to know things that other people do not know. I often wonder whether that is the reason why there is such reluctance to divulge it. The usual suspects in your Lordships’ House are not here tonight to put the other side of the case. We all know who they are. Unfortunately, they must have missed the fact that the noble and learned Lord, Lord Lloyd of Berwick, was introducing this measure tonight.

The other possible reason that I have wondered about is whether, if it was generally known that evidence

7 Mar 2007 : Column 305

from intercepted telephone calls could be used, criminals would not talk to each other by telephone for fear that they would be overheard and the evidence would be produced in due course. But that seems a bit of a nonsense to me because surely they would know that what they said was intelligence, and that intelligence-led action, to which I referred earlier, could be brought against them. We have never had a rational explanation of why those such as my noble friend Lord Carlile and Sir Swinton Thomas, who is an excellent judge, suddenly turn once they get a few secrets and join the security services in saying, “This cannot be put before a jury; their ears are not fit for it”.

Lord Lloyd of Berwick: The noble Lord, Lord Carlile, is on our side. It is only Sir Swinton Thomas who is against us.

9.15 pm

Lord Thomas of Gresford: I am pleased to hear that, as nobody could have more experience than my noble friend has of the sort of secrets that are passed around. However, I must assure the noble and learned Lord that I have known the noble Lord, Lord Carlile, for some 40 years, so he has changed his view at some point.

No rationale has ever been put before us to explain this, as other jurisdictions are clearly quite happy to use this type of evidence—and are clearly successful in using it. We approach this not from the point of view of it being helpful to the defence but that it would be helpful to the prosecution to have such evidence used. Once again, we await with bated breath the government response.

Lord Dear: As a relative newcomer to the House, I would love to take a great deal of time to dazzle your Lordships tonight with an erudite address on the necessity for this amendment. Sadly, from my point of view, all the points have been made, and in a far more erudite fashion than I could make them. I have nothing to say, except that I support the amendment 100 per cent.

However, I was interested to hear the noble and learned Lord, Lord Lloyd of Berwick, introduce—certainly, for the first time in my hearing—the issue of public interest immunity. I have long heard the arguments adduced against intercept evidence being used on the ground that to do so would display to the opposition, so to speak, all the methods that the Security Service and others use. I would have thought that public interest immunity would have covered the majority of that. In any case, as has just been said, criminals will continue to talk on the telephone, knowing that the product of that is used for intelligence purposes.

I will not detain your Lordships any longer; I support wholeheartedly what has been said and have supported it for the past 10 years. It is interesting to see the tide not just turning but running strongly in favour of this proposal.

Lord Henley: The noble and learned Lord, Lord Lloyd of Berwick, referred to the Minister’s remarks at Second Reading, when she said that in any debate,

7 Mar 2007 : Column 306

at any time of day and on any subject, he brought up the subject of intercepts. That reminds one of Cato the Elder, who preceded any speech that he made in the Roman Senate with his remark, “Delenda est Carthago”, that is; Carthage must be destroyed. Well, he got his way in the end and Carthage was destroyed, which might have been rather sad for the Carthaginians but was what he wanted. It might be that the noble and learned Lord will get his way in the end—particularly as the Minister said, in her later remarks, that the matter had not been resolved and that the Government were still thinking about it.

I hope to add my voice, and that of the Official Opposition, to those who favour the noble and learned Lord’s amendment. Like the noble Lord, Lord Thomas of Gresford, I am mystified by the Government’s position. Why do they have any doubt about the great importance of intercept evidence in helping to identify criminals? I certainly want to take this opportunity to pay tribute to all those who work in the Security Service and that whole world of the intelligence services. The noble and learned Lord quite rightly said at Second Reading of his Private Member’s Bill in 2005 that,

Yet although the use of intercept evidence to identify criminals is well established, we do not permit that same evidence—however compelling it may be—to be used to bring those criminals to trial. That is the effect, as I understand it, of Section 17 of the Regulation of Investigatory Powers Act 2000.

We are by no means saying that the use of intercept evidence is the silver bullet. However as Eric Metcalfe, the director of human rights policy at Justice and the author of its report, which I have here and to which the noble and learned Lord referred, put it—

Lord Bassam of Brighton: I thank the noble Lord for giving way. I would like the answer to one question. When did the party opposite change its mind on this issue? I do not recall that it held this view when in government.

Lord Henley: It has been some 10 years since we were in government. We are always entitled to change our minds. I am grateful to the noble Lord for correcting me, but this is now our policy. I can think of a number of matters on which we have changed our policy and—dare I say?—I can think of a number of matters on which the party opposite, now in government, would not have recommended when it was in opposition—I have seen Home Office Ministers blush over a number of years. The noble Baroness will, no doubt, agree with me on that.

Perhaps I may return to what Eric Metcalfe said in his report. Although he accepted that it was not a silver bullet, he said,

As the noble and learned Lord underlined, outside the United Kingdom, intercept evidence has been used in a large number of countries, including in the US to convict various al-Qaeda cells following 9/11 and the five godfathers of New York crime, as well as

7 Mar 2007 : Column 307

war criminals before the International Criminal Tribunal for the former Yugoslavia.

The Justice report, published last year, highlights the fact, to which the noble and learned Lord also referred, that we are the only common-law country that prohibits completely the use of intercept evidence. The report details how prosecutors in Australia, Canada, New Zealand, South Africa and the US regularly use intercept evidence in prosecuting serious organised crime and terrorist offences. The report shows also how principles of public interest immunity are used in those countries to protect sensitive intelligence material from being disclosed in criminal proceedings. It concludes that the ban on such evidence in this country is, as the noble and learned Lord said, archaic, unnecessary and counterproductive. That view was supported by Liberty.

The noble and learned Lord underlined just how many other people supported this change. He mentioned the Commissioner of the Metropolitan Police and Dame Stella Rimington, the former director of MI5, who has called the ban ridiculous. He referred to the remarks of our own Attorney-General, the noble and learned Lord, Lord Goldsmith. I have his remarks as reported in the Guardian in September of last year, but I have not been able to dig them out for this occasion. He is yet another person who has supported this move, along with the Director of Public Prosecutions.

The Minister has argued that one reason why it may not be possible to prosecute those suspected of involvement in serious crime or terrorism is that the evidence on which suspicion is based would be inadmissible in court. I ask her what assessment the Government have made of the number of criminals who avoid conviction because of the restrictions on the use of this evidence. Would the disclosure of such methods that would result from the use of that evidence damage the ability of those who protect us to go on doing so as effectively as they do?

It is now time for the noble Baroness to justify why the Government, in bringing forward a Bill of this nature, will not give the prosecutors the ammunition that they need, whether it is a silver bullet or an ordinary bullet, to prosecute serious criminals and terrorists in the criminal courts. She says that she would like to see further prosecutions. Rather than supporting what the Bill seems to be doing—relying on control orders and super-ASBOs—she might take this opportunity of supporting the noble and learned Lord’s amendment and allowing a more effective method of achieving prosecutions.

Baroness Scotland of Asthal: I have been sitting quietly, listening to everything that has been said, tossing up in my mind whether to give your Lordships the short version or the long version. It seems absolutely clear that if I am to do justice to all the questions raised by the noble and learned Lord, Lord Lloyd, the anxieties expressed by the noble Lord, Lord Dear, with his wealth of experience and the changed position of the noble Lord, Lord Henley, and the noble Lord, Lord Thomas of Gresford,

7 Mar 2007 : Column 308

notwithstanding the paucity of Members on your Lordships’ Benches, I think I could very well entertain your Lordships for the next 35 minutes and therefore I intend so to try.

Lord Lloyd of Berwick: I wonder if we could have a vote on that because I think we would all want the short version rather than the long version.

Baroness Scotland of Asthal: In that case, I would not be able to answer each and every question I have been asked and answer globally. The noble Lords, Lord Henley, Lord Dear, and Lord Thomas, have asked me repeatedly what the Government’s justification for its position is and I fear I should answer that.

Lord Thomas of Gresford: I am very anxious for the long version. That will take us to 10 o’clock.

Baroness Scotland of Asthal: I start by saying to the noble Lord, Lord Henley, that the destruction of Carthage is seen by very few as having been a good thing. It was a civilisation of great grace, great beauty and great intelligence. When it was lost, it was much regretted and it could not be brought back. Some may see some real similarities between the destruction of that and the protection we currently have the advantage of having through the use of intercept.

Lord Henley: I do not want to delay the noble Baroness. I was purely referring to the persistence of Cato the Elder and I hoped that she would admire the persistence of the noble and learned Lord, Lord Lloyd of Berwick.

Baroness Scotland of Asthal: I certainly do and I pay tribute to that persistence. I also admire the erudition of the noble Lord, Lord Henley. By his example he has reminded me why it is so important to resist the temptation simply to concede when one ought not to do so.

Our position remains what it has always been. We see that this would be an advantage if it could be safely deployed. The noble and learned Lord the Attorney-General is a fine member of our Government—this is a Government view. The emphasis has always been on whether it is possible for it to be safely deployed. When this matter was discussed in Committee, as the noble and learned Lord, Lord Lloyd, made plain in late 2005, several Members of your Lordships’ House explained that the successor to the noble and learned Lord, Lord Lloyd, as Interception of Communications Commissioner, the right honourable Sir Swinton Thomas, had profound concerns that these amendments would cause grave damage to our capability.

In addition to his extensive legal experience which has been appropriately lauded in this House, Sir Swinton has the widest independence and up-to-date experience in all aspects of interception, including his scrutiny of the use and effectiveness of interception by all interception agencies and the

7 Mar 2007 : Column 309

co-operation of the service providers. The House will have seen Sir Swinton Thomas’ latest annual report, quoted so correctly by the noble and learned Lord, Lord Lloyd, tonight. In view of his authority, his views should be taken very seriously indeed. I hear what he says about being “misguided” and “ill-informed” but I am sure he could not have thought that the noble Lord was “ill-informed”, although I make no mention of whether it is possible to change things in view of current circumstances. He makes it clear in his report, as the noble Lord indicated, that protection is vital if we are to ensure that the most effective protection from terrorism and serious crime is provided and if we want to continue to benefit from the crucial co-operation of the communications industry on which we rely. We cannot afford, or be seen, to play games here because there is simply too much at stake.

9.30 pm

Perhaps I may try to correct what appears to be a misapprehension in the amendment of the noble and learned Lord, Lord Lloyd, concerning the current inadmissibility of communications data, as defined by Section 21(4) of the Regulation of Investigatory Powers Act 2000.The noble and learned Lord will be interested to know that the current prohibition on communications data evidence extends only to data related to interception and not communications data within the meaning of Section 21(4), which is obtained separately under RIPA, Part I, Chapter II powers and widely used as evidence by a number of public bodies. I think that the comments of the noble Lord, Lord Thomas of Gresford, demonstrated the way in which those issues are dealt with.

Perhaps I may again highlight the issues and expose the many misconceptions. It is frequently pointed out—the noble and learned Lord did so this evening—that there is little or almost no knowledge of the interception regimes in either the UK or overseas and that the United Kingdom is one of the few countries which do not use interception evidentially. The intimation is that a vital tool is missing from our criminal justice toolkit. However, that takes no heed of the fact that our results—what we achieve with our intelligence-only regime—are already impressive. For example, in 2003, interception led to the seizure of 26 tonnes of illicit drugs and 10 tonnes of tobacco, and the detection of £390 million worth of financial crime and 1,680 arrests. A sampling exercise carried out in the latest review showed that the resulting proportion of convictions exceeded 80 per cent of those arrested as a result of the use of interception for intelligence purposes only.

Those statistics are very significant because no evidence has been produced or found to show that other countries are more effective in countering terrorism and organised crime. It has been implied by a number of noble Lords tonight that we could do significantly better if we exchanged our system for the Australian or US systems, yet I have to tell your Lordships that that is simply not true. For example, the media have reported on the unsuccessful use of intercept product in terrorist trials in Spain and Italy.

7 Mar 2007 : Column 310

Australia’s latest published figures on interception, from the Telecommunications (Interception) Act 1979 Report for the year ending 2004, show that in 2003-04 there were no convictions in the five terrorism trials which used intercept evidence. The Canadian 2004 Annual Report on the Use of Electronic Surveillance shows that there were 84 interception authorisations in that year but that none ended with a conviction. In the United States, in 2004 there were 1,710 law enforcement interceptions—much the same figure as in the United Kingdom—but those resulted in 634 convictions, which is a success rate well below that estimated, albeit based on a small sample, for the UK.

These statistics are very powerful. They do not support the contention that the evidential use of intercept will produce more convictions than using intercept for intelligence purposes only but, rather, that there is every reason to suppose that it would not.

It cannot be disputed that no other country in the world—none—enjoys the huge benefits which the United Kingdom derives from the close relationship, including in terms of interception, between law enforcement and the intelligence agencies and with the communications service providers. Yet there are those who still propose that we adopt the interception regimes used in other countries—consequently undermining or severing those relationships. However, they fail to point out that in doing so we have little, if anything, to gain but potentially much to lose. Indeed, even if it were possible to preserve the effectiveness of intercept as intelligence entirely, while also using it evidentially—and no one has yet found a way of making that possible; that is what we are trying to do and if we could, obviously, it would be capable of being used—the evidential use of intercept would not even add significantly to the number of convictions that can be secured.

The most extensive and comprehensive review of a series of reviews culminating in January 2005 found that—even if a way could be found to protect sensitive material—the evidential results of intercept products would be modest, confined to lower and medium-level criminals and could not be sustained past the change to new technology which is beginning. It expressly found that the modest and time-limited benefits that might arise from the evidential use of intercept would not apply to terrorists at all.

The noble Lord, Lord Thomas of Gresford, asked: “Why can we have bugging and eavesdropping products used as evidence and not intercept material?”. That overlooks fundamental differences between the two investigative techniques. In the case of planting microphones, a matter to which the noble Lord referred, it is the investigative agency which chooses the medium; with interception it is the criminal. The crucial distinction is that the criminal selects the way of communicating that he believes is safe and continues to provide intelligence on his intentions and preparations. That advantage would be lost to the investigation if disclosed to the criminal by evidential use.

Furthermore, one interception technique may encompass many targets, some of enormous

7 Mar 2007 : Column 311

importance, while one bug, or position of surveillance, if exposed, is unlikely to compromise any other operations. So comparisons between these entirely different techniques are neither appropriate nor helpful.

Next Section Back to Table of Contents Lords Hansard Home Page