House again in Committee on Clause 2.
[Amendments Nos. 14 and 15 not moved.]
16: Clause 2 , page 2, line 33, leave out paragraph (b)
The noble Baroness said: In speaking to this amendment, I shall also speak to Amendments Nos. 25, 30 and 39, which are grouped with it.
The Government’s rhetoric surrounding the Bill has spoken of the new tough measures regarding people involved in serious crime, so it is important to examine whether these measures will indeed target what would be commonly thought of as serious crime, or whether it misses that target and adopts a scattergun approach across a wide range of offences that would not normally be considered serious. We have tabled a series of amendments to examine different aspects of that question. They fall into different groups, some of which I anticipate will be debated upon another occasion but not tonight.
The first group challenges the Government’s proposition that the definition of serious crime can be changed on a day-to-day, case-by-case basis by the courts. That seems extraordinary. There was some small reference to this earlier today, but these amendments address the detail of the matter.
Schedule 1 lists a range of criminal offences that are to be treated as serious crime. In a later group we shall examine whether that list is in itself appropriate, when we reach Amendment No. 49. What concerns us in this group of amendments is the fact that the Bill provides that a serious offence includes any that, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified. So even if an offence is not listed in Schedule 1, a judge can treat it as if it were.
I join with the Minister in her remarks earlier today; I am on record too as having great faith in our judiciary. Of course I do. I have previously declared my interest, that I am married to a barrister who sits as a part-time recorder in the Crown Court. The Minister’s effusive remarks were on the calibre of the High Court judges and the way they were going to make these decisions, and I also, of course, admire those in the Crown Court.
Despite all that, however, I can set that partiality aside; it does not mean I am content with the proposition that there should be so little clarity and certainty in the law before us that we should leave it to the judge to determine case by case, on the matter of the moment, what should be construed as serious crime within the context of the applications for a serious crime prevention order. In theory, that means any offence could be construed as serious, such as graffiti or minor criminal damage to a neighbour’s fence. Despite what the Minister said when she responded to Amendment No. 2 earlier today about the ability of High Court judges to construe what is serious crime, the problem is that, however able they are, by giving them that power in the context of these orders, we simply lose clarity and certainty in the law. The Explanatory Notes are silent on the Government’s justification for such a wide-ranging discretion in the hands of the court.
The Government’s proposals do damage to the principle of legal certainty. We seek to remove that uncertainty. Our amendment would ensure that an offence was only a serious offence if it was actually listed in Schedule 1. I beg to move.
We wish to be associated with these amendments. We are also concerned that, as the noble Baroness, Lady Anelay, has pointed out, at present an offence can be a serious offence for the purposes of the Bill if the court considers the circumstances of the case to be sufficiently serious to be treated as such. These amendments would remove that provision, meaning that an offence was only a serious offence if listed in Schedule 1 of the Bill.
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.
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 the way in which law-abiding people live their lives together. Our society never stands still; it is always evolving and changing, so the protection which exists at present has its weak points, which are usually preyed upon. The development of internet fraud and of pornographic and paedophiliac activity on the internet was unknown a few years ago, yet it has been developed with great facility by those who want to promulgate these pernicious activities.
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.
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.
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 2 agreed to.
Clause 3 [Involvement in serious crime: Northern Ireland orders]:
[Amendments Nos. 26 to 39 not moved.]
Clause 3 agreed to.
40: After Clause 3, insert the following new Clause—
“Involvement in serious crime: evidence
(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.
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,
“is archaic, unnecessary and counter-productive”.
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”.
In paragraph 45 he says:
“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 communications can be accepted and used in evidence against them in France, Germany, Holland and numerous other countries—every other country in the world except England—yet they continue to communicate in the way they always have, why should they behave in a different manner when they come to England?
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 witnesses, including the employees of the telecommunications providers. We urge that your Bill include provisions to protect the anonymity of witnesses”.
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.
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,
“one way of making it possible to prosecute in more”,
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.
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.
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 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”.
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.
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.
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, 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,
“We could not do without it”.—[Official Report, 18/11/2005; col. 1301.]
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—
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,
“it is a bullet nonetheless”.
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 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.
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, 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.
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.
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.
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 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.
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. 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 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.
The noble Lord, Thomas of Gresford, said that if it is vital to protect sensitive capabilities and techniques from disclosure you should devise a way of separating the two out. I remind the Committee that, frankly, that is easier said than done. The Home Office has been leading work to assess the impact of new technology on communications and their interception. That work, which has had a substantial input from a cross-section of communications service providers, has highlighted that the United Kingdom, before anywhere else in the world, is to undergo the biggest change in communications technologies since the invention of the telephone. Within just a couple of years voice communications in the UK, like e-mails or video streams, will be computer data signals carried over the internet. The old-fashioned voice signals carried down lines and through telephone exchanges will go for ever. The priority must be to ensure that we maintain our interception capabilities in the face of this change. And we cannot look to see how others are doing it because we will be the first. We have already made it clear that the ongoing work is also looking at what evidential opportunities there might be with the new technologies. That is why I have continually said we keep on looking at it. It is not that we have closed our minds or that we do not want to do it. We are looking at it to see how and if it could be done, and done safely.
Noble Lords said this evening that overseas jurisdictions do not seem to have any problem with using intercept evidentially. They also asked: “Why do we think we are different?”. The answer is that our system is different. We have a rigorous disclosure regime within an adversarial justice system in which evidence is probed in court to an extent that does not occur in the inquisitorial or examining magistrates’ systems. In addition, the co-operation between our intelligence and law enforcement agencies is unparalleled. We need to protect this partnership. Overseas jurisdictions do not. Because their intelligence and law enforcement agencies work separately they can have evidential intercept use for law enforcement and intelligence use for intelligence. We need to protect our co-operative and collaborative approach because we think that that model is more successful. It has delivered us outstanding results on terrorism and organised crime that we believe is second to none.
I repeat that there is no evidence that other countries do better than we and it simply does not make sense to dismantle our system in favour of an alternative approach unless we are sure that the benefits of doing so will outweigh the risks.
It has also been said that overseas jurisdictions do that and that we should also. It remains to be seen how those other countries that allow intercept will fare in the new world of computer technology. Will they be able to continue to intercept communications and will they be able to make what material they gather stick in a court of law? Our work suggests that they will not. I respectfully say to noble Lords that that is not a sound basis on which to go forward. The Home Office has set up a cross-department programme to co-ordinate our response to the technology changes and consider the resource implications. The business case phase of that programme will be ready fairly soon. That will be followed by an implementation phase.
Let me turn last, I hope, to the legal model set out in the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. His amendment would give the prosecution alone the right to choose when to apply evidential intercept and when to withhold it. We have grave doubts that such a system would be consistent with Article 6 of the European Convention on Human Rights, which requires there to be equality of arms between the prosecution and the defence and which prohibits cherry-picking by the state. Even if the judicial discretion accorded by the scheme proposed by the noble Lord might theoretically go part of the way to meet those concerns, the Article 6 considerations are likely to render the scheme redundant in practice.
Finding a way to limit the exposure of sensitive material imports is extremely difficult because our disclosure rules rightly—I emphasise “rightly”—seek to provide the defence with all the information necessary to ensure a fair trial. Therefore, we can justify withholding information only when it is strictly necessary and proportionate. Our previous efforts to devise a workable legal model have shown that the increased burdens on the intercepting agencies of devising systems to meet the Article 6 requirements would be crippling and undermine their capacity to undertake crucial interception.
We must ensure that intercepting agencies, especially the Security Services, are able to combat terrorism and serious crime effectively and continue to have the flexibility to deploy resources to keep us safe. I know that all noble Lords agree with that. It has also been said that past prosecutions have been dropped—we could not proceed with them. We do not think that that is very helpful.
There are specific issues about the Prevention of Terrorism Act. I could entertain your Lordships for some time about them. Suffice it to say that during debates on intercept being used evidentially to help to prosecute terrorists, including those on the Prevention of Terrorism Act, it was asserted that that would have rendered certain approaches to counter-terrorism, such as control orders, unnecessary. That was repeated again this evening.
It was suggested that intercept could have enabled those previously detained under Part 4 of the Anti-terrorism Crime and Security Act 2001 to be prosecuted. I can confirm that that is simply not the case. A detailed analysis of all the material in those cases, including available intercept material showed that intercept would not—I emphasise, not—have enabled those individuals to be prosecuted, even if we had been able safely to adduce it. During the most extensive review of the possible impact of intercept as evidence, that conclusion was replicated with regard to terrorist cases generally. Clearly it is a priority of the Government to ensure the conviction of those who are guilty of crimes, but we would prefer those crimes, which might include terrorist atrocities, not to be committed in the first place. In that respect, our existing interception regime has served us well both with terror and with serious crime. The London attacks on 7 July 2005 and the attempted attacks two weeks later on 21 July were truly horrendous, but other attacks have been prevented and it is vital that we do not undermine our ability to prevent future attacks by exposing our most sensitive capabilities.
The noble and learned Lord, Lord Lloyd of Berwick, in the Lords debates on the private Peer’s Bill in November 2005 and on the preamble to the amendments proposed for the Terrorism Bill in December 2005, intimated that his proposals needed further work and consideration. I am sure that he would say the same for these. These are merely a stalking horse for us to come back to the issue. I honour him for coming back to the issue but I assure him that our refusal so far to accept his proposal is not intransigence, blindness or obdurate refusal to consider change. Each issue is being considered very carefully because it would be a consummation devoutly to be wished if it could safely be used. Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would.
I have tried to answer far more fully than I have previously, not to dissuade noble Lords from bringing back judicious interventions, but in the hope that the noble and learned Lord will be at least convinced that the provision has been rigorously examined. It will continue to be rigorously examined during the continuing review. I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear. I hope that his passion for the subject may at least be sated for this evening and I invite him to withdraw his amendment.
I congratulate the Minister on giving us the fullest explanation that I have ever heard on this topic. We are obviously moving forward. I hope that she will convey the contents of her speech, the statistics and so on, to the Attorney-General and the Director of Public Prosecutions in the hope that they may change the attitude that they have taken. Perhaps the noble Baroness will convey it also to the Commissioner for the Metropolitan Police and all the other people who, one presumes, know a little about the criminal justice system, so that they too will realise the error of their ways—she has most certainly told us the error of our ways tonight.
The Minister must appreciate that, if the technology is improving, that must mean that you can hear it better. One of the problems of intercept evidence through bugs is that we only half hear what is going on and it is not easy to hear. With the new technology, what is being said must be as clear as a bell. I know that a 12-month terrorist trial has just finished in the Old Bailey. It is all being held in camera; I do not know what it was about. The noble Baroness, Lady Kennedy of The Shaws, has gone to California to take a well earned rest. I do not know what that case was about but, assuming there was a piece of intercept evidence which at the beginning had indicated in absolutely unequivocal terms that the defendants had admitted what they were charged with, under the policy of the noble Baroness that would not have been produced in court. They would not have pleaded guilty and we have had a 12-month trial. So from the point of view of resources and justice it is essential that such material is released.
It is not just a question of the prosecution always benefiting. If there is nothing in the intercept evidence or if there are indications that the defendant is innocent, that evidence should be released to the defence. But the defence is not allowed to know that. A completely innocent conversation may take place in intercept evidence which supports the defence, but it will not be released. I just do not understand where the Government are coming from.
Of course I accept that the Government have been and still are considering this matter. My complaint is that they have now been considering it for 10 years and still have not come to a decision. At this late hour, and I certainly have no intention of playing out the time until 10 o’clock, all I want to do is to congratulate the Minister on her reply and to thank her for it. As the noble Lord, Lord Thomas, has said, it was the fullest reply we have yet had. I am afraid to say that I did not find it convincing. She said that there was passion on my side, but I thought I was advancing an argument in the cold light of reason. It seems to me that the passion was more on her side than on mine. Whatever it may be, I hope she will not be disappointed if I bring the matter back yet again. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.