Exclusion of matters from legal proceedings

Investigatory Powers Bill – in a Public Bill Committee am 2:15 pm ar 14 Ebrill 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I oppose the inclusion of the clause in the Bill. Clause 48, with schedule 3, broadly replicates the existing procedure in section 17(1) of the Regulation of Investigatory Powers Act 2000, whereby material obtained by way of an intercept warrant cannot be used as evidence in ordinary criminal proceedings.

Schedule 3 makes a number of exceptions to allow intercept evidence to be considered in civil proceedings where there is a closed material procedure in place—that is where a party and his or her legal team are excluded. Those proceedings would include, for example, proceedings under section 6 of the Justice and Security Act 2013, proceedings in the Special Immigration Appeals Commission or under the Terrorism Prevention and Investigation Measures Act 2011. Schedule 3 makes no exception for criminal proceedings, except in so far as material may be disclosed to the prosecution and to the judge so that the judge might determine whether admissions by the Crown are necessary for the trial to proceed in a manner that is fair. Deleting clause 48 would remove that exclusion, so that there would be an exception for criminal proceedings. It would also permit intercept material to be treated as admissible in both ordinary civil and ordinary criminal proceedings, subject to the ordinary exclusionary rules applicable to other proceedings, including public interest immunity and the provisions of the Justice and Security Act in civil proceedings.

I am indebted to Justice, the human rights group of lawyers that includes members of all parties and none, for its help in formulating my argument for deleting the clause. Justice has long recommended the lifting of the bar on the admission of intercept material as evidence in civil and criminal proceedings. In 2006, it published a document “Intercept Evidence: Lifting the ban”, in which it argued that the statutory bar on the use of intercept as evidence was “archaic, unnecessary and counterproductive”.

The United Kingdom’s ban on intercept evidence in criminal proceedings reflects long-standing Government practice, but it is out of step with the position in many other Commonwealth and European countries, and it has proved increasingly controversial over time. Importantly, the European Court of Human Rights has recognised the value placed on admissible intercept material, in countries where it is available. It has said that admissible intercept material constitutes

“an important safeguard; against arbitrary and unlawful surveillance, as material obtained unlawfully will not be available to found the basis of any prosecution”.

Photo of Victoria Atkins Victoria Atkins Ceidwadwyr, Louth and Horncastle

Has the hon. and learned Lady taken into account the Criminal Procedure and Investigations Act 1996, which ensures fairness of disclosure in English and Welsh courts, as practised by many Members of the Committee, and is at the centre of the arguments against admission of this evidence?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I have considered it, but we are not talking about disclosure, we are talking about the admissibility of evidence. As the hon. Lady will very well know, things may be disclosed to lawyers in the course of proceedings to try, as I said earlier, to make sure that there is a fair trial, but they are not necessarily admissible. I am talking about lifting the ban on the admissibility of intercept evidence.

Photo of Victoria Atkins Victoria Atkins Ceidwadwyr, Louth and Horncastle

If there is something under the code that assists the defence or may undermine the prosecution, the prosecutor is obliged to make that known to the judge. A decision is then taken as to whether the disclosure of that material is so necessary that, in effect, the trial cannot continue.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

Of course the hon. Lady is absolutely right. I said that that was the case earlier, but that is not the end of the matter. As the European Court of Human Rights has recognised, where intercept material is admissible, its admissibility constitutes

“an important safeguard: against arbitrary and unlawful surveillance”.

I know many Government Members are not too keen on the European Court of Human Rights; they might find the Privy Council report published December 2014, “Intercept as Evidence”, more palatable. In paragraph 84, it confirmed that a fully funded model for the removal of the ban could result in a

“significant increase in the number of successful prosecutions.”

That report also reflected concerns of agencies and law enforcement bodies that removing the ban without full funding could reduce its effectiveness. I acknowledge there is a funding issue and I am sure the Government will want to talk about that.

What I am really saying is that the Bill is a lost opportunity to remove the ban on admissibility of intercept material in criminal proceedings, which could benefit all. The Committee has heard what the Privy Council and the European Court of Human Rights have said on that. Many other countries manage to operate effective surveillance systems in which intercept material is admissible in criminal proceedings in certain circumstances. As I said, there will always be public interest immunity and the provisions of the 2013 Act in civil proceedings to allay some of the concerns Government Members might have.

The Joint Committee on the Draft Investigatory Powers Bill recommended that the matter should remain under review, and in paragraph 675 of its report invited the Government to take note of the “significant perceived benefits” of using intercept material in criminal proceedings. There are other arguments in favour of removing this ban. Members may want to think about how the current bar on the use of targeted intercept material relates to a new focus in the Bill on expanded and untargeted access to communications data.

Photo of Victoria Atkins Victoria Atkins Ceidwadwyr, Louth and Horncastle

How would the hon. and learned Lady recommend that prosecuting counsel deal with an application from the defence to reveal the methodology used by the security services in obtaining intercept material? If the ban is removed, how is prosecuting counsel to answer that?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

It is not about the methodology; it is about the admissibility of the material itself. Far be it from me to lay down rules, at this stage of proceedings, for the Crown Prosecution Service or the Crown Office and Procurator Fiscal Service in Scotland. That is something that will have to be worked out, but it will not be worked out in a vacuum, because the Privy Council has looked at this detail and many other countries have a system such as this that works.

It comes back to a continuing theme in my concerns about the Bill. Let us not be inward-looking. Members of my party are sometimes accused of being narrow nationalists, but I often think that is an allegation more accurately directed at the Conservatives. We should look the practice elsewhere in the world. Britain is not uniquely placed to decide how to have the best and fairest surveillance system. Our security services probably are world leading—I recognise that, and I mean no disrespect to them—but we are not here just to please them; we are here to protect our constituents’ interests, as well as human rights in general, and to produce legislation that is balanced and fair.

I oppose the clause because I think there are good arguments in favour of making intercept material admissible in criminal proceedings. As the hon. Lady has indicated complex procedural rules would have to be built up—we have had a ban in our two legal systems in Scotland and England for so long that we would have to go back to the drawing board and think very carefully. She is right to say that this is not an easy matter, but we are not starting with a blank slate. If we do not want to look to Europe—I know that people are not too keen on Europe at the moment—we can look to the experience of other Commonwealth countries.

Photo of Victoria Atkins Victoria Atkins Ceidwadwyr, Louth and Horncastle

The reason I keep rising when the hon. and learned Lady mentions other countries is that England and Wales have an extraordinarily thorough—I want to say “generous,” but that is not the right word—disclosure regime, which is not mirrored elsewhere in the world. Look at the United States: the disclosure tests that occur in this country have very little relationship to what happens in America, so it is not right to compare the two.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

The hon. Lady makes a fair point that England and Wales have very clear disclosure procedures. Now, thank goodness, so does Scotland as a result of a number of Supreme Court decisions. We had a long way to go 10 years ago, but we have since come a long way. This is not about disclosure; it is about admissibility. Those are two very different things, as she well knows. Frequently things are disclosed that are not admissible.

Photo of Victoria Atkins Victoria Atkins Ceidwadwyr, Louth and Horncastle

If evidence is admissible, the defence is quite within its rights to ask that question of prosecuting counsel. It is a question that is asked in a different form when a defendant suspects that there is an informant. How is prosecuting counsel to argue against that?

Photo of Albert Owen Albert Owen Llafur, Ynys Môn

Order. If the hon. Lady wishes to make interventions, they are to be short. She has an opportunity to make a contribution afterwards.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

At present, in the United Kingdom intercept evidence is not admissible in criminal trials. My purpose in opposing the clause is to make it admissible in criminal trials and proceedings, but there would have to be very careful rules and procedures, and the nature of our disclosure systems both north and south of the border will need to be taken into account.

I invite Members to consider, on the one hand, how the ban on the use of such material balances the new system that the Bill seeks to introduce of expanded and untargeted access to communications data and whether lifting the ban on the admissibility of intercept evidence in criminal trials would, as the Privy Council has said, increase the likelihood of successful prosecutions and, on the other hand, whether it might also reduce the reliance on administrative alternatives to prosecution, such as terrorism prevention and investigation measures, and on the use of untargeted forms of surveillance. Members will also have to consider whether the Government’s cost base analysis is accurate and sustainable. We cannot say that the ceiling would fall down on the security surveillance system in this country if we removed the ban, because the system operates effectively in other countries.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

It is of course the long-standing practice of all Governments to maintain this exclusion. The current form is effectively to continue the regime as it has operated until now. The regime has been reviewed a number of times, and the last review was probably in 2014. As has already been mentioned, the Privy Council said that the regime’s removal could lead to an increase in the number of successful prosecutions. The exclusion is frustrating, and I was frustrated in a number of cases when I was Director of Public Prosecutions where, had it been possible to deploy such evidence, individuals who could not be convicted and locked up for serious offences might have been successfully charged and prosecuted. So the ban is a source of frustration because the net result is that, where someone cannot be charged because of this rule, there are only two possibilities in serious cases. One is that they continue to be subjected to surveillance, which can be extremely expensive and resource-intensive. The other is that they are put through some preventive measure, which has advantages and disadvantages but also a shelf life, which is normally shorter than the sort of sentence they might have received if the evidence had been admissible and a conviction had been obtained.

Having said that, there are disclosure problems in two senses. The first is complying with the requirements of the CPIA. Now, I am not saying that it cannot be done but, although there have been reviews, it is time to look at it again. There are ways in which that could be accommodated. It would have to mean some adjustment of the existing rules because it is difficult to accommodate in the rules as they are. Historically, there has always been a secondary concern, which is disclosure of techniques. It would be difficult to have a regime that did not involve the risk of disclosing techniques. Those have been the most influential factors when this has been reviewed.

We have to accept that, in the past two or three years, something pretty extraordinary has happened in the field. The Bill is partly the result of that because powers and techniques that were not known are now avowed. Therefore, the risk that there once was that some of the techniques that we are now scrutinising—and which it was thought, two or three years ago, would be extremely risky to disclose—are now out there. That is why I do not support deleting the provision, but I do want to put on the record that there is now room for a review, and it is not the same old review. It is a review on a very different set of circumstances, where at least some of the disclosure arguments as to technique are not as powerful as they once were. My position is to review first. Do not delete until the review has had the chance to consider all the possible options, including keeping the rule as it is.

Photo of Robert Buckland Robert Buckland The Solicitor-General 2:30, 14 Ebrill 2016

The hon. and learned Gentleman is right about avowal but, of course, evidence pursuant to equipment interference has always been admissible. It is a bit of a mixed picture when you look at the detail of it.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I accept that there have been different avowals at different times in the past two years. I was speaking more generally. The argument about techniques is harder to sustain in the current set of circumstances. My view is that if there were a way to get around this exclusion, being able to use the evidence would bring very many benefits. When it comes to those involved in serious crimes, my strong preference is that they should be charged, put before a jury and, if convicted, serve the appropriate sentence, rather than be dealt with in some other way. For reasons that everybody understands, this provision frustrates that process. That is why I think it is time for a review against the current set of circumstances.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful to hon. Members for giving us the chance to have this brief but important debate. The hon. and learned Lady is right to characterise the existence of the prohibition, which has been in existence since the Interception of Communications Act 1985, with good reason.

I accept the points made by the hon. and learned Gentleman about evolution of powers and the avowal of particular techniques. Of course, very often we are talking about the protection of individual capabilities and that is a slightly more nuanced argument than the general points he makes. Therefore, ground No. 2 of the objection to the adduction into evidence of intercept material still remains a strong one, and ground No. 1 has to be acknowledged.

My hon. Friend the Member for Louth and Horncastle made the point well about the need to recast disclosure because it is material and relevant to the debate, and about ensuring that what is now intelligence but what would be evidence is in a form that can therefore be handled and admitted by a court. There is a cost to that, and the estimates given in the 2014 report vary between £4.25 billion and £9.25 billion. Those are not insignificant sums and they cannot be ignored or dismissed when balancing out the merits of taking this step.

The Government take the view—this is iterated in the 2014 report—that the problems outweigh, for the present at the very least, the potential benefit. The potential benefit is not clear, save for the points that the hon. and learned Gentleman makes. As a litigator and a prosecutor myself, I share his frustration and have been in those circumstances many times. I will not repeat the points he makes: I will adopt them.

The Government’s position in that report was to say that they will keep under review any changes that might affect the conclusions of their latest review. That remains very much the position. I do not think it is appropriate in this legislation for us to depart, in the absence of any further evidence, from the position that has been iterated in no fewer than eight different reports over the past few years.

Many of us in the room are familiar with this issue. The debate is held regularly and will continue, but in the absence of compelling reasons to depart from the provisions of the 1985 Act I commend the clause to stand part of the Bill.

Question put, That the clause stand part of the Bill.

The Committee divided:

Ayes 10, Noes 2.

Rhif adran 4 Christmas Tree Industry — Exclusion of matters from legal proceedings

Ie: 10 MPs

Na: 2 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly agreed to.

Clause 48 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 49