Interception of Communications (Admissibility of Evidence) Bill [HL]

My Lords, I entirely follow the noble Baroness’s point. Indeed, I propose to deal with it shortly; I am just leading up to it, and I am making that preliminary point before getting into the argument and grapple with the points that the noble Baroness has raised. Intercept evidence is not admissible, but directed or intrusive surveillance or the use of covert human intelligence under Part 2 of the Regulation of Investigatory Powers Act 2000, can be. So, for example, there is no problem about a member of the security services breaking into somebody’s home and planting a bug there or for the product of that particular piece of covert surveillance being used in court. If a person’s car is bugged, there is no problem in producing a record of the conversations that take place within the car. So, on the one hand, there is total prohibition on intercept evidence, and, on the other, you can use foreign intercept evidence and the product of surveillance freely in the courts of this country. If government agencies intercept your communications legally, not just the content but the very existence of such data cannot be mentioned in a court of law. The interception cannot be used to provide evidence either. There are these drawbacks. A prosecution may not proceed because the only evidence is intercept evidence. It may be very strong, perhaps a confession or an admission. It may be part of a conspiracy that is going ahead, which could be fully proved by intercept evidence. However, because of this absolute prohibition, it cannot be used, and guilty people get away. There is another aspect. The prosecution may not be able to rebut a plausible defence put forward in a trial. It may have intercept evidence in its possession, such as recorded conversations, but it may not use it. It knows the defendant is lying, and that the jury would be influenced if it could hear what the defendant said on the phone or on the Internet, but it cannot use it. People can be acquitted for that reason. There is this aspect: the defence does not know of material that undermines the prosecution and supports its case. It does not even know that its conversations have been intercepted and recorded. There could well be material that would acquit it, but it is not admissible and anyway it does not know it exists. Defendants may be convicted quite unfairly. Arguments against admissibility have been put forward in this debate. Some of them seem to be founded on a mistaken stereotype, one that causes amusement in this House, as happened yesterday: that of the defence counsel who conducts his case in a malign and dishonest way regardless of the public interest. As the noble Baroness herself said, the defence counsel may range far and wide in an adversarial contest. There could be unacceptable disclosure of techniques by reason of the way he conducts his case. The noble Lord, Lord Robertson, said that ““clever lawyers will find a way”” around anything put in their way that would protect sources, and so on. As I have said on previous occasions, that is a total distortion of what actually happens in court. When I asked the noble Lord, Lord Robertson, whether he could tell me of a case where defence counsel has extracted information that has been to the detriment of the security of this country, he was unable to do so. These are stereotypes that have no foundation in reality. It is said that the use of the material will disclose interception techniques and capabilities and may give rise to counter-measures by criminals or terrorists, which might greatly reduce the utility of that resource. For centuries, though, the courts have been quick to protect informers, and to ensure that the names of informers are not revealed in court. We are in a different world and technology has developed, but the court still has complete power, through the use of public interest immunity applications, to protect from disclosure information that is not in the public interest. If the judge were to hear it being put forward by a prosecuting counsel that, ““If this information goes in, it will damage the security services””, he can say: ““It will not go in””. He has control.