I shall speak to new clause 3, tabled in my name. It is entitled “Intercept Evidence—use in legal proceedings”. It is a probing amendment and I do not propose to press it to the vote on this occasion. If I had wanted to press it, I would have included in the new clause the relevant legal machinery required, which is complex but not difficult to achieve if I wanted to do so. My aim is to provoke some sort of non-partisan debate on what is the cornerstone of counter-terrorism strategy—the legal treatment of intercept evidence. If need be, depending on what the Minister says and what the Government do in the meantime, I shall come back to the issue on Report.
The United Kingdom is unique among major western powers—common law powers and European Union countries—in not allowing the use of intercept evidence in court. I shall come on to the few exceptions in a moment. Why is that the case? It is difficult to know. GCHQ and its predecessor has always resisted putting any intercept evidence into the public domain. Frankly, this has probably been the case since the invention of the telephone. In the early days, I suspect it happened because gentlemen thought it ungentlemanly to listen in on other people’s conversations. Today, however, the argument advanced by the agencies concerns the protection of technique and capacity. Their attitude is very different from that of every other agency of its sort in the world. All our allies in the “five eyes” countries and beyond are equally concerned about protecting capability, but they also give high priority to the prosecution and conviction of terrorists and those who commit serious crimes. They manage to square that circle, but we do not appear to be able to do so at present.
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The fact that we cannot use intercept evidence makes it more difficult for us to secure convictions in court in terrorism and serious crime cases. Lord Lloyd of Berwick has talked of the
“”difficulty of obtaining evidence on which to charge and convict terrorists, particularly those who plan and direct terrorist activities without taking part in their…execution”.
Obtaining such evidence is incredibly important to those who must deal with the al-Qaeda style of terrorist operation, in which the bit players disappear in a cloud of vapour as they carry out their evil tasks.
I pay attention to Lord Lloyd because he is an appeal judge, a past Interception Commissioner, the man whom the last Conservative Government put in charge of reviewing all terrorism legislation, and a strong advocate of the use of intercept evidence in court—as, indeed, are the past Director of Public Prosecutions Ken Macdonald and the past Attorney-General Lord Goldsmith, along with a large number of senior police officers who are in charge of counter-terrorism.
The result of not being able to use intercept evidence in court is the greater difficulty of securing convictions. That in turn has been used to justify indefinite detention under part 4 of the Anti-terrorism, Crime and Security Act 2001, control orders and terrorism prevention and investigation measures, and the proposals for first 90, then 42, then 28 days of detention without charge. I am glad to say that all those proposals were defeated, or have subsequently been revoked.
What is perhaps worst of all is that the difficulty of securing convictions encourages our counter-terrorism agencies—both the intelligence agencies and the police agencies—to rely too much on disruption rather than prosecution. As the hon. Member for North Down (Lady Hermon) is present, let me add that that approach patently failed in Northern Ireland. It leaves too many terrorists on the streets, and leaves the agencies with a bigger job and a very difficult, perhaps impossible, task of assessment. That is clear from the report from the Intelligence and Security Committee on the Lee Rigby murder. The agencies fell down on the assessment of the murderers, who were known to them. The 7/7 bombers were also known to the agencies, but were judged to be too far down the list of 2,000 suspects. The problem is made worse by the failure to prosecute terrorists and to imprison terrorists after their convictions, and the lack of intercept evidence makes it worse still.
GCHQ told the Chilcot inquiry, and the subsequent Privy Council committee, that the use of intercept evidence would not deliver many extra convictions, but it is very hard to square that with evidence from other countries. When I was looking into the matter seven or eight years ago, I went to America to speak to all the various “three letters of the alphabet” agencies over there, as well as—most important in this context—the Department of Justice, about their use of intercept evidence. The man who was the second-highest-ranking representative of the Department of Justice—the highest-ranking non-political appointee—said that not a single terrorism or organised crime case had been successfully prosecuted in the United States without the use of intercept evidence, which was a major part of its massively successful counter-terrorism and counter-Mafia operations.
I have mentioned the Mafia and counter-organised crime operations because the problems involved are quite similar. Obtaining witnesses is difficult, as is obtaining intelligence. Those people kill their witnesses, and they are very clever about their use of communications. The organised crime syndicates in America are better advised than the likes of al-Qaeda by lawyers and technical people. The Americans have something called a CIPA process—CIPA stands for “Confidential Information Protection Act”. There is a CIPA court, which is a bit
like the Special Immigration Appeals Commission. It involves security-cleared prosecution and defence counsel and a security-cleared judge, and all its hearings take place in secret.
That court decides on what evidence can be put to the main trial. This is a big battle that goes on. It prevents malevolent fishing expeditions by malevolent or badly judged lawyers, but it ensures that both sides of the case get proper treatment and proper justice is delivered. He said: “If we win the CIPA case, the main case goes straight to plea bargaining”—in other words, the other side gives in and accepts the outcome. He viewed the British approach as “incomprehensible.”
It is not just the Americans; all the other English-speaking peoples in the “five eyes” do much the same. In 2006, Australia, under its intercept arrangements delivered just short of 1,500 convictions—a combination of serious crime and counter-terrorism work. Its director of public prosecutions was even fiercer. His words at that time were: “If you don’t use intercept against terrorists, you are not being serious.” There are various problems in the UK under the European Court of Human Rights regime which make things a little bit more risky for us than for others, but there are nevertheless issues that can be dealt with.
The agencies talk about protecting methods or techniques and operations. They are both perfectly legitimate concerns and we need to deal with them. Let us deal first with methods or techniques. GCHQ is good but it is no better than the National Security Agency and it is tiny in comparison with the NSA. The techniques that are used to intercept are commonly in the public domain in court in all of the “five eyes” countries—in America, Canada, Australia and New Zealand. In the days of the internet, we can get court records from around the world, and if we are worried about al-Qaeda knowing what we are doing, it can know by looking at every other country in our alliance, because they do the same things. So I do not think that that argument—the argument of technique—stands up much at all, but we can protect it.
The second question is about protecting individual operations and agents and I will come back to that. This is manageable, too. All the countries—the USA, Australia, Canada, New Zealand and Israel—have techniques for certification and warranting that explicitly protect operations and operational security, again from malevolent defence lawyers going on fishing expeditions. I will cite the example later.
Before I go any further, we should be clear that there is a range of exceptions to the ban on intercept evidence in court. One exception is intercepts carried out in other countries. We have this extraordinary arrangement in our law that means we can use intercepts arrived at abroad but not in the UK, so quite how we deal with the issues of protection of technique and operations in that regard is interesting and debatable. A number of the suspects who were charged after the Heathrow bomb plot were not convicted and some of those lack of convictions were critical. Three in particular—Ali, Sarwar and Hussain—were so critical that they were retried. The evidence that convicted them was e-mail intercept evidence obtained from Yahoo! in California. It led to their conviction in 2008. That demonstrates straight away the value of intercept in difficult cases. Those intercept data were not initially released because the US
felt at first that it compromised an existing operation—against a man called Rashid Rauf in Pakistan. He disappeared or died—we do not know which—under strange, mysterious circumstances, and the information was then available because that operation was no longer sensitive. That is a simple example of both the effectiveness of the mechanism and the fact that we can control the information using American or other “five eyes” processes to release it when appropriate, and do it safely.
There are two other exceptions to the use of intercept evidence in court that the House should be aware of. The first is the intercept of telephone and other communications out of prisons, which is open. For example, the Soham killer, Ian Huntley, was convicted largely on the basis of intercept evidence arrived at from there. The second is bugging. If we bug a phone, we can use the information, but if we intercept the phone we cannot. That is an extraordinary distinction, particularly given that if we put a physical bug in the phone I am holding, we could use the data, but if we put a software bug in it, we cannot. That is an astonishing piece of out-of-date law and it needs to be brought up to date.
As I said, the intercept ban inevitably pushes agencies towards disruption rather than prosecution, which, of course, is inevitably less effective and leads to a progressively more difficult problem for agencies over time. The Privy Council committee very nearly recommended allowing a tentative use of intercept evidence some time ago, after Chilcot, but it appeared to be put off by one case that came up at the last minute—Natunen v. the Finnish Government. The ECHR stepped into that case, which revolved around intercept, and struck down the conviction. Natunen had been convicted as a drugs smuggler and some intercept evidence had been used in the case. It turned out that the police had destroyed some other intercept evidence that could have been—may have been—exculpatory. That case shocked the Privy Council committee. The reason for the change of stance at the last minute, as I understand it, was that Chilcot laid out five principles, a couple of which said, “The agencies have at all times to control the recording, transcription, storage and, by implication, the possible destruction of any evidence, and this should only be under the agencies’ control, not under judicial control.” Of course that leads to a problem—if they destroy evidence without judicial control, the balance in a court case may be changed—and so that cannot be done. It seems to me that we need to revisit that issue and start to try to copy some of the techniques used by other countries.
This matter is very technical on one level but straightforward on another, and I go back to what I said about how the Americans do it. They have a court that goes through this information and sifts out what is available to put before the court, which is fair to both sides and does not allow the compromising of proper intelligence operations. That court is very like SIAC, a court we already use and which can hear intercept evidence. Although SIAC has had its rulings overturned from time to time by the ECHR, it has never been given any sort of instruction to put that intercept evidence in the public domain or make it available to people who are perhaps not responsible. So this issue is capable of resolution. We have been overly nervous and overly attentive to the understandable worries of GCHQ and the other agencies in the past. That is why those who work with this, including the police, are more—