Investigatory Powers Bill

Debate between Lord Strasburger and Baroness Hamwee

Wednesday 13th July 2016 Lords Chamber

[Baroness Hamwee]

In moving Amendment 81, I shall also speak to Amendment 239. I am not proposing, now, a facile change in the rules of evidence—but given the subject matter of the Bill, it might be a little odd not to explore the issue of intercept as evidence a little. Amendment 81 contains an enabling clause; enabling clauses go a bit against the grain, but for this purpose I think one is appropriate. It would require consultation and the affirmative resolution—but this is a probing amendment.

I know about the concerns that intercept as evidence would be massively expensive, because of the entirely proper rules of disclosure of evidence to the defence and the prosecution. Intercepted phone calls would not just be monitored for intelligence, with rough notes made and conversations only partially transcribed; this would mean a huge amount of transcription, and maybe translation as well, plus storage and indexation. Disclosure could, I accept, have operational implications, through disclosing techniques and the capacity of the agencies.

On the other hand, intercept evidence could significantly influence the outcome of a trial, but at the moment is simply unused. Lord Lloyd of Berwick said:

“We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted”. —[Offcial Report, 19/6/00; cols 109-10,]

So we spend a lot of resources on spying on those implicated in organised crime and terrorism, but we cannot prosecute them or prevent further crime. Other common law countries use such evidence. I am aware that their legal systems are said to be “less demanding”, but does that not suggest that we should not abandon the idea?

The right to a fair trial raises the issue of all evidence being available to both prosecution and defence. The prosecution has the advantage of being aware of evidence but not using it, and that puts the defence at a disadvantage. Further, I understand that a ban applies only to interceptions in the UK. Recordings and transcripts of intercepted calls made in other countries are used, for instance in prosecutions for drug trafficking. Nor is there a bar on introducing evidence of phone calls made from prisons. I believe that the Ian Huntley Soham case featured such evidence. One can also use a recording from a hidden bug as evidence, but one cannot use interception as evidence.

It is argued that our system of public interest immunity could be applied to protect the details of investigative techniques—the subject of the concern that I raised a moment ago. The Privy Council’s review on that issue, which reported in 2008, concluded that it would be possible to provide for use as evidence by developing a “robust legal model” with public interest immunity as the basis, which would be human rights compliant. I appreciate that that review was the seventh report to Ministers in 13 years, so this matter has not gone unexamined.

However, we are now in a position whereby our criminal justice system cannot accommodate what will often be the best evidence in a case, so cases that should be prosecuted may not be. Given advances in technology—and those no doubt to come—it must be right to keep the issue on the agenda, which is what the amendment seeks to do. I beg to move.

[Lord Strasburger]

My Lords, I have a question for the Government. Am I correct in believing that evidence derived from equipment interference is permitted to be used in court? If so, could not equipment interference lead to an equally large and costly process of evidence-gathering? Why is there a difference between the two sources of evidence?