Serious Crime Bill [HL]

The curious thing about the ban on intercept evidence is that other evidence that is obtained clandestinely is used. I recall a case many yeas ago in which I was prosecuting—I hope that that does not cause too much of a shock to some noble Lords—when intercept evidence was used that had been obtained through the security services breaking into a person’s flat and planting a bug. The relevant conversations were before the jury and there was no problem. The only things that were concealed, following public interest immunity applications, were the method of entering the flat and where the bug was concealed because, presumably, that would have revealed methods used by the security services that it would not have been appropriate to make known. In another much more recent case, which involved the smuggling of drugs from Turkey, a number of defendants’ cars were broken into and bugs were planted. Those bugs recorded conversations that were translated and put before the jury. However, the translation broke down when it was discovered that the proposed defendants were speaking Albanian, not Turkish, so there was a problem with the translation. I also recall a third case, in which bugs were placed in a police exercise yard. The product of that—a conversation between two prisoners who had both been interviewed by the police and were then put together in the prison yard—was used in a trial. There is no bar in principle to recording conversations and putting them into the public domain—laying them before the jury. I have never understood why telephone conversations and telephone intercepts should be treated differently. I can only assume that there are two reasons. First, if someone says, ““This is secret, you’re being told this in secret””, he has a certain power over everybody else. It is a secret that he does not want to tell anybody; he is holding it to his bosom and will not disclose it. Frequently, a court will go in camera and one hears evidence that the public would not generally hear. My experience is that people involved in the security services and in this sort of work are very proud of the fact that they know things that other people do not know. Their whole purpose in life is to know things that other people do not know. I often wonder whether that is the reason why there is such reluctance to divulge it. The usual suspects in your Lordships’ House are not here tonight to put the other side of the case. We all know who they are. Unfortunately, they must have missed the fact that the noble and learned Lord, Lord Lloyd of Berwick, was introducing this measure tonight. The other possible reason that I have wondered about is whether, if it was generally known that evidence from intercepted telephone calls could be used, criminals would not talk to each other by telephone for fear that they would be overheard and the evidence would be produced in due course. But that seems a bit of a nonsense to me because surely they would know that what they said was intelligence, and that intelligence-led action, to which I referred earlier, could be brought against them. We have never had a rational explanation of why those such as my noble friend Lord Carlile and Sir Swinton Thomas, who is an excellent judge, suddenly turn once they get a few secrets and join the security services in saying, ““This cannot be put before a jury; their ears are not fit for it””.