Intercept Evidence

Debate between Lord Beith and David Lammy

Thursday 18th October 2012 Commons Chamber

[Mr Lammy]

My hon. Friend raises a very important point. Of course, serious and organised crime is dealt with by a particular agency and it would be for a Home Secretary to determine whether it would fall within the scope of any provisions.

Let me move on to the other steps that can be taken to ensure that we do not compromise and that we separate the material from the means. Successive Home Secretaries have been concerned about the means, when there is really a need to separate the means from the material provided.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I have great respect for the right hon. Gentleman and for the particular problem that has led him to take this position. I hope, however, that he does not underestimate the complexity of the task—something I have also been engaged in—of finding a way to achieve what we all agree is desirable. A combination of the disclosure requirements that operate in English courts, and article 6 of the European convention on human rights, could lead to massive requirements for retention and transcribing, and that could impair the operating efficiency of our security and intelligence services.

[Mr Lammy]

I am grateful to the right hon. Gentleman who I know has huge experience in these matters. Inquests have been with us since shortly after the Domesday Book, and if other major jurisdictions can crack this complexity, surely we in our developed democracy should be able to do the same.

Surveillance evidence has long been admissible in court. The police can eavesdrop on a conversation in a pub, and use the evidence in court. Someone’s phone conversation can be recorded on a microphone hidden under a desk and played back in court. If something is recorded, it is fine. There is only a problem if the conversation is contemporaneous, which seems strange.

If someone’s call is intercepted in a foreign country where intercept evidence is admissible—that is the case in every country other than the United Kingdom—that material can come before the courts. That is absurd. If sensitive material gathered by any other means can be heard in court, from transcripts of telephone surveillance to the account of an informant—informants are obviously important in this context—why can we not find a way to make contemporaneous intercept evidence admissible, handling the sensitivity of that material with due care?

We must dispose of the notion that intercept evidence is categorically more sensitive than evidence gathered by other means such as surveillance or informants. Evidence of any other kind is handled based on the sensitivity of the material, but that is not so with intercept evidence, which is the only evidence that has a blanket, categorical ban. In practice, it means that evidence from a phone interception of a conversation detailing a planned robbery is categorically inadmissible in court. At the same time, detection of a human trafficking ring through highly sensitive material provided by an informant faces no such categorical ban.

Of course, no hon. Member would wish to compromise the gathering of intelligence, but I wish to put to one side the notion that because maintaining records of intercept evidence may require logistical consideration, it is not worth doing. If intercept evidence recorded in another country is good enough for the eyes and ears of the British public, how can we maintain the position that evidence intercepted on our soil is not? If America, Canada and Australia allow intercept material to be used in court, one might suppose that the logistical hurdles are not insurmountable.

It simply does not hold true that removing the ban imposed by section 17 of RIPA would hamper the secret services from developing interception technology without exposing their methods to the public. Admitting intercept evidence in court would not restrict the way such evidence is collected any more than existing legislation. The British justice system already has a system that allows prosecutors to disclose material without disclosing its source. Given the strong similarity between admissible surveillance evidence and inadmissible intercept evidence, surely a similar system of disclosure could be applied. Indeed, a framework for making intercept evidence permissible in court already exists in public interest immunity plus. Public interest immunity is already used in cases where admissible surveillance data are heard. I see no reason why a similar safeguard cannot be applied to intercept evidence that has been made admissible in court. As with all difficult tasks, implementing a comprehensive safeguard will not be straightforward, but we cannot afford to give up on challenging the ban.

Yes, the Government have received legal advice against public interest immunity plus in the light of European Court of Human Rights rulings on similar cases from Finland in 2008, and public interest immunity may need refining, but to take the ECHR rulings as a definitive rejection of the principle of a Home Secretary or senior judge assessing the material and deciding which bit is relevant would go too far.

The alternative in amending the Regulation of Investigatory Powers Act 2000 would allow a coroner to fulfil their role in determining the cause of death in mysterious circumstances. Such amendments were proposed in the Lords to the Coroners and Justice Act 2009. They proposed that the coroner nominated by the chief coroner should be able to see the intercept material and make a decision on its disclosure. Material would only be redacted when strictly necessary and in proportion to the public interest. If we wanted to go further, we could confine the role to the senior coroner in such cases.

I am not concerned with the question whether the state should intercept private communications between individuals. My concern lies with the ludicrous situation that there is a statutory ban on using material gathered through interception in court, despite a clear legal case for admitting it. That is a bizarre situation that leaves a family in my constituency without a full inquest into the death of their son more than a year since he was killed. That stubbornness might prevent there ever being an inquest into the death of Mark Duggan. That is unconscionable following the scenes of last August.

As it stands, section 17 represents legislation that obstructs, restricts and obfuscates—bad legislation. It is the House’s duty to return to the matter. Will the Minister say when Chilcot will end the reviewing period—it seems to have gone on for ever? The arrangements are small but necessary, and I hope we can make them. I do not want to compromise the important interception work that is done in cases throughout the country, but we should at least allow a senior coroner or judge, or the Home Secretary, through the use of public interest immunity, to look at the material and redact what is necessary to ensure that the means are not compromised.