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Intercept Evidence

Volume 716: debated on Thursday 14 January 2010


Asked By

To ask Her Majesty’s Government what assessment they have made of how the size of the United Kingdom intercept operation, described in the Privy Council review in February 2008 as “a particularly large and sophisticated intercept capability”, has contributed to the inability to find a solution to the admissibility of intercept evidence in court.

My Lords, the difficulties arise out of the need to reconcile fair trial requirements with the operational requirements cited in the Privy Council review. The amount of interception conducted directly affects how much must be retained and reviewed under an intercept-as-evidence regime. Less interception would ease the burden of retention and review but would mean missing out on significant amounts of intelligence that are vital for protecting the public.

My Lords, I thank the Minister for that reply. The Government’s intention was to lay a further updated report before Parliament before Easter. Is this timetable still on track? Will the Minister give the House some idea of how many outstanding serious criminal cases are not being prosecuted as a result of the inability to admit such evidence?

My Lords, I will come back in writing on the report, because I am not sure exactly where we stand on that. As the House will be aware, we have looked at the nine points that were raised by Chilcot and that need to be ticked and cleared before we can go down this route. The answer is that we have not been able to meet all nine points, which is why we are now looking at further work with the advisory group of privy counsellors.

On the point about cases not being conducted because of this, I would prefer to put it another way; at the moment, this evidence can be provided if it needs to be. So far in the past year, we have had just under 1,500 arrests, picked up 146 firearms, helped to prevent the loss of 20 lives and picked up 4 tonnes of class A drugs. These are the sorts of things that we can do because of our intercept ability. It is certainly a jewel in the crown when it comes to alerting us to real threats of terrorism to this country.

My Lords, in the light of the Minister’s initial Answer, will he say whether the intended outcome of the intercept modernisation programme is that it will assist in allowing intercept to be used as evidence in court?

My Lords, the two are not really related. The IMP is there because of what is happening in the world and because there are new methods of communication. This is being driven by the telecom companies for the very good reasons of efficiency and cost, which makes it extremely difficult for old methods of interception to work, so we need to look at new ways of collecting primarily communications data. In the case of letters, for example, we are talking about addresses and things such as that. Such communications data are used dramatically by our law enforcement services and are extremely valuable in very serious cases such as terrorist cases. The IMP issue does not relate directly to the intercept-as-evidence issue.

My Lords, this is one of very few countries, if not the only country, in the developed world not to use intercept as evidence. There must be other countries that have adversarial systems, as we do, rather than inquisitorial ones. How have they solved the problem of protecting the security services while pursuing prosecutions?

My Lords, the Privy Council review, which is cross-party, made it absolutely clear that comparisons with other countries are of very limited value for a number of reasons, including different legal reasons and operational environments. The particular features of our legal system, including very demanding disclosure requirements, are not necessarily the same as those in most of those countries, and foreign models could not really be replicated. Also, because of some of the requirements, a number of those countries miss out on the very close interagency co-operation, which in some ways we lead the world in and which has enabled us to keep this country safe.

My Lords, what are the differences between the United States, Canada and ourselves in our legal systems which allow them to use intercept evidence but not us?

My Lords, I had hoped that I had answered that to an extent in terms of the legal processes. Although there are a lot of statements about stuff being used, I know very well that most intercept evidence used in America is what I would call phone-tapping, which is used by the FBI and others. It does not use stuff that NSA collects in the same way. I do not think that it is the same. There are differences, as was said by the Privy Council review.