Intercept Evidence

Stephen Phillips Excerpts

Thursday 18th October 2012 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

I, too, pay tribute to the right hon. Member for Tottenham (Mr Lammy) for raising this issue and for the way he has done so, particularly in relation to his constituents, but also in respect of the wider issues of justice at stake. Like my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I wish to discuss the big picture and then address specific issues relating to counter-terrorism and white collar crime.

The big picture is that in this country, particularly since 9/11, we have somehow started to view the justice system as an impediment to fighting crime and to law enforcement, rather than as something that is integral to and part of the solution. My view is that the justice system is a weapon, because without it and its integrity law enforcement will always be subject to flaws, be open to challenge and be fickle and fragile. Over the past 10 years, the prosecutorial edge that we have in this country has, if anything, started to become blunter, because of these prevailing attitudes.

In a cross-party debate that is being conducted in an admirable tone and spirit, I must make some criticism of the previous Government. Nobody doubts the pressures on government, given that the first duty is to protect the public, but since 9/11 and 7/7 we have seen a trend of excessive, hyperactive legislation, coupled with increasing surveillance, not just of terrorists and serious criminals but of the ordinary, average citizen. I am thinking of identity cards; the surveillance of not just terrorist suspects but people responsible for fly-tipping, dog pooping and so on; and the current proposals on the internet and e-mail, and text and BlackBerry messaging, which are really a rehash of earlier proposals under the previous Government.

While we have had this ever-expanding criminal legislative base and net of surveillance, it seems that the one set of characters we are getting worse at tackling and bringing to justice using that surveillance are the terrorists. Between 2006 and 2010 convictions for terrorism offences fell by close to three quarters—75% is a massive drop at a time when we supposedly have an ever-increasing threat, a massively expanding criminal base and ever more use of surveillance. Despite all that we cannot address the No. 1 priority, which all in this House would agree is counter-terrorism. Incredibly, the most serious seem to slip through the ever-expanding net of surveillance.

There are various aspects to what I regard as a serious and substantial prosecutorial deficit in this country. I understand the English Bar’s concerns about plea bargaining, but without going the whole hog and adopting the American approach we could make an incremental and stronger use of plea bargaining, particularly in cases of “joint criminal enterprise”, where concentric circles of active criminal participants are involved. We need to look at the issue of plea bargaining.

We also need to have a far more robust prosecutorial policy. We saw with the Abu Hamza case the tendency of the intelligence agencies to sit back and watch, whereas he should have been nailed the minute he did something that crossed the line—the Americans take the latter approach. We saw the same thing at the time of the protests in 2006 against the Danish cartoons: eventually there were four convictions for the clear and flagrant criminal activity of inciting violence and murder but, boy, were we slow to respond. What message does it send if it takes six weeks to arrest people who were advocating murder on the streets of this country? We need to be more robust in the use of prosecution, because it is a weapon.

The real missing piece in the jigsaw puzzle has been intercept evidence. I make no claim that it is the silver bullet or some kind of touchstone panacea, but its law enforcement value is beyond doubt. We are, as others have said, alone in the democratic world in not taking advantage of it.

My right hon. Friend the Member for Haltemprice and Howden discussed the visit that he and I made to Washington in 2007, taking in the White House, the FBI and all the relevant law enforcement agencies. The impact there of intercept evidence is clear in action against kingpin mafia dons and counter-terrorism. An excellent report by Justice in 2007 reviewed 10 US terrorism plots involving 50 suspects since 9/11. The US authorities secured charges and convictions in each case using a 48-hour maximum pre-charge detention limit—bear in mind the debate we had in this country—and in every single case, that was made possible by intercept evidence.

Former US Assistant Attorney General Ken Wainstein argues that intercept evidence is a vital part of the preventive strand of US counter-terrorism strategy—not just the prosecutorial, but the preventive strand—because of the disruption it causes in the concentric circles of terrorist actors. The way the US authorities use it in the joint criminal enterprise approach is to use plea bargaining to turn the minnows against the big fish and then work their way up the ladder, so to speak. Its disruptive impact is not only powerful in and of its own right, but it also has a strong deterrent effect.

The Australian Commonwealth Director of Public Prosecutions, Damian Bugg QC, has highlighted the value of intercept evidence in drug trafficking cases, as well as terrorism cases. When asked about the analogous position in Britain, he says:

“The use of telephone intercepts in trials for terrorism offences and other serious crimes is now quite common in Australia and I cannot understand why England has not taken the step as well.”

Senior Canadian prosecutors make precisely the same point. We also have the evidence from our own law enforcement officials. The former DPP Sir Ken, now Lord, Macdonald told the Home Affairs Committee in 2009:

“If we had intercept available as an evidential tool and if we were directing intercept capability towards the gathering of evidence, I am absolutely confident that our experience would mirror the experience of other jurisdictions where it is used very frequently to great effect”.

The current DPP has drawn similar conclusions. He told the Committee:

“Evidence obtained by interception would be of benefit to prosecution in this country, particularly in respect of counter-terrorism and organised crime.”

That was not some abstract conclusion. He continued:

“I base that answer on an analysis of the cases where we have been able to use foreign intercept evidence. There have recently been 11 such cases involving organised crime. In eight of those cases, there were pleas of guilty based on foreign intercept evidence.”

We are missing a massive trick in this country. As others have mentioned, the assistant commissioner for counter-terrorism in the very difficult period between 2005 and 2007, Andy Hayman, said that while he began as a sceptic about the value of intercept evidence, he was turned around. Although I respect the Chilcot review and its conclusions, I have to say that in the light of the evidence made available both in this country and abroad by people who have taken a big picture, overarching and strategic view, I cannot accept that intercept is not of serious and substantial law enforcement value.

My right hon. Friend the Member for Esher and Walton—[Hon. Members: “That’s you.”] I am sorry; I meant my right hon. Friend the Member for Haltemprice and Howden. I was confused because he was referring to me.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

And you made yourself a Privy Counsellor.

[Mr Raab]

I think it is the only way I will get promotion these days.

It is an anomaly that we have so many other sources of sensitive information that can be used in UK courts. What is so special about intercept evidence? The objections to its use—certainly those from Chilcot and other reviews—cluster around three or four issues. We have heard about article 6, the threat of disclosure of sensitive sources and the inadequacy of public interest immunity, but the truth is that every other jurisdiction that uses intercept evidence has a killer back-stop: if they fear disclosure, they drop the charges. There is zero risk of disclosure because the option of dropping charges and dropping a prosecution is always available.

Another argument that has been made ad tedium is that a disproportionate part of the resources of the intelligence agencies, particularly GCHQ, would be absorbed, but that argument, which relates to transcription of the evidence, has been made almost totally redundant by modern information and communications technology and the ability to use it to store data and subsequently search it. That argument has therefore fallen by the wayside, but even so, the senior prosecutors I mentioned have made the point that the costs, to the extent that there are costs involved, are more than offset by the increasing number of people who plead guilty as a result of the use of intercept evidence.

I will refer briefly to the Natunen case, because there has been a huge amount of misreporting of its impact and what it really means for the use of intercept evidence. The 2009 Home Office report, and other GCHQ sources, point to the Natunen case and claim that it requires

“full retention of all intercepted material”

just in case it might include something that shows a suspect is innocent. That is simply an inaccurate reflection of the Strasbourg case law. In the Natunen case, which concerned a drug dealer who was convicted in Finland using intercept evidence, the Strasbourg Court emphasises that

“disclosure of relevant evidence is not an absolute right”,

acknowledging

“competing interests, such as national security or the need to protect witnesses”.

The Court stated that it was not its role

“to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.”

Far from requiring “full retention”—this is the key point—the Strasbourg Court required that defence requests for disclosure of sensitive evidence be backed up by “specific and acceptable reasons”. The intelligence agencies would need to retain some relevant material. However, the Court made it clear that that necessitated neither defence access to that evidence nor the wholesale retention of all intercept material. In the Finnish case, it merely required that a judicial body approve the destruction by the intelligence agencies of relevant intercept material, collected over a limited three-week period. Frankly, I think that the Natunen case has been blown out of all proportion.

The real issue—I do not think that the agencies are making this up—is not the Aunt Sally or the false reasons that have been put up and are rebutted by the empirical evidence. The real reason is that GCHQ, which was originally an intercept organisation confined to the military zone, has had its functions broadened to include counter-terrorism and other serious crimes. Its role has increased exponentially. I can see why it worries about lack of focus and the huge competing obligations being placed on it with finite resources, notwithstanding the increases in its budget. I understand that, but that is a strategic issue of tasking intelligence, not a technical issue of viability.

Likewise, the fact is that we face a cultural shift with regard to law enforcement and the division between intelligence and prosecution. It is a shift that has taken place in other countries but that our authorities have not yet to bridge and overcome. There is a cultural aversion in this country to combining intelligence with prosecution, and I think that we have to overcome it.

--- Later in debate ---

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Like the hon. Member for Poplar and Limehouse (Jim Fitzpatrick), I hesitated to rise in this debate; I congratulate the right hon. Member for Tottenham (Mr Lammy) on having secured it. His contribution and those of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Esher and Walton (Mr Raab) have been extraordinary and among the best that I have heard on this subject since I have been in the House.

The debate has been extraordinary not only in its quality but in the fact that the House is having it yet again. I entered the House only in May 2010, yet the issue has been rumbling on not only in this Chamber but among lawyers—including those, such as me, who sit a few weeks a year judging crime—for a considerable period.

My right hon. Friend the Member for Haltemprice and Howden is entirely right in saying that, as the position prevails at present, courts and prosecutorial authorities have one hand tied behind their backs. It is extraordinary that, as our colleagues from not only other democracies but other common law jurisdictions tell us, we are the only country that has never permitted the use of intercept evidence to secure the conviction of the guilty and—almost as importantly—the acquittal of the innocent.

Notwithstanding the powerful speeches from both sides of the House, I want to concentrate on one other point. While we continue to exclude such evidence from our prosecutions in this country, we run the risk of interfering with our civil liberties. It may be, of course, that, as the last Government said during the last Parliament, none of those on control orders could have been prosecuted even if intercept evidence had been capable of being used in the courts. However, that is the sort of thing that Governments always say because they have it on advice from their security advisers.

One of the things that has concerned me about the non-use of intercept evidence, which must compel us to move in the direction not only of looking at this question more closely but of coming to a resolution in favour of using such evidence, is that if we do permit it to be used we may end up with prosecutions in cases where hitherto we have had to use administrative measures that begin to interfere with people’s civil liberties. I hope that that is yet another reason why the Minister will be compelled to indicate to the House precisely when we will see the introduction of legislation in this context, in accordance with the recommendations not only of the whole House but of the Privy Counsellors who previously considered the matter.