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              MI5 Phone Taps Cannot Be Used As Evidence
Monday, June 11th, 2007 It stands to reason, doesn’t it? MI5 has got all this evidence against terrorists taken from tapping their phones, so if it could be used in court, which it can’t, dozens of them would be behind bars. We would be able to prosecute suspected terrorists, rather than leaving them in judicial limbo - subject to control over their movements, but never actually accused of, charged with or tried for anything. Every year, about 1,500 intercept warrants are issued by ministers to enable the police and the security and intelligence agencies to monitor the conversations of suspects. Yet none of the information they gather can be used as part of any prosecution. Nobody can even ask in court whether a phone has been tapped. On the other hand, if a hidden microphone placed in a suspect’s house picks up what someone is saying on the phone, then that is admissible in court, because there was no tap on the phone line itself. This is clearly absurd. But it is not quite as straightforward as closing a loophole. It is often said that objections by the Security Service are the principal blockage to using phone-tap evidence. It is cast as the villain of the piece, even though successive directors general have said that they do not oppose its use. Where they have a problem is with the practicalities, of which more later. David Cameron recently suggested to Tony Blair that this whole issue should be considered by a committee of the Privy Council - an idea promptly filched by Gordon Brown. Both Labour and the Conservatives seem to see this as something of a breakthrough, but memories are short at Westminster. A similar committee of privy counsellors, chaired by Lord Newton, looked at precisely this subject five years ago, and concluded that intercept evidence should be admissible. A review of anti-terrorism legislation carried out by Lord Lloyd in 1996 also recommended such a change. The arguments have been debated umpteen times in Parliament, most recently when the Serious Crime Bill was going through the Lords just a few weeks ago. In the teeth of Government objections, peers voted to lift the ban in crime trials; and since this Bill starts its progress through the Commons tomorrow, MPs will also have the opportunity to vote on the matter. Sir Ken Macdonald, the Director of Public Prosecutions, wants the ban lifted and so does Lord Goldsmith, the Attorney General. Where criminal trials are concerned, there is no need to wait for a Privy Council inquiry. The case for allowing intercept evidence to be used by the prosecution in criminal trials is strong. In jurisdictions around the world, notably in America, it has been used to put underworld godfathers in jail. In Australia, where rules of evidence are similar to here, phone-tap evidence has been used in 2,363 prosecutions, of which 1,533 have resulted in convictions. But in terrorism cases, it is rarely used - not least because there are few, if any, pertinent cases. Tapping the phones of terrorist suspects is not simply about bringing people to trial. It is about discovering and thwarting plots that could kill hundreds of people. An apparently banal exchange overheard via a wire tap may mean nothing to most people, but be of huge importance to an intelligence officer who knows the codes that are used. It may be impossible in a trial to persuade a jury, beyond reasonable doubt, that whenever a suspect, mindful that his phone might be bugged, referred to a watermelon he meant a bomb, yet it could have been the information needed to stop a terrorist atrocity. Of course, it is Parliament’s will that should ultimately be decisive, not that of the security services. As our Direct Democracy authors argue in these pages today, criminal justice has passed out of democratic control and into the hands of a professional elite. This trend should be reversed - but it is still worth listening carefully to the concerns of that elite. MI5’s position is that if its intercept “product”, as it calls it, is going to be used in court, then MPs should be aware of the implications. At present, a Security Service officer will transcribe something from a telephone tap only if it is considered useful for further intelligence work. This could be just a few pages, or even sentences, from an intercept that has lasted months. But if this has to be produced in court then British disclosure rules mean everything will have to be transcribed. Rightly, defence lawyers are not going to be content with a selective transcript chosen by the prosecution; they will want to see the lot, since there could be something that will exonerate their client. (In fact, phone-tap evidence is already admissible in court, though only if it helps the defence, not the prosecution.) MI5 believes its officers have better things to do than spend weeks transcribing hundreds or thousands of pages of phone conversations, most of which will prove nothing in court. In Operation Crevice, which led to the conviction of five terrorists intent on blowing up shopping centres and nightclubs, 100 phones were intercepted over a period of 18 months. Transcribing all the conversations would have taken dozens of people months of effort. The work could be contracted out, but some conversations will be in languages or dialects that are not familiar to professional transcribers. This problem could be overcome with more money and extra staff. But is it needed? In the Crevice case, the key evidence that led to the convictions came from eavesdropping - bugging the cars and homes of the suspects, which is admissible - not from phone taps. It is not the disclosure of interception methods nor the fear of compromising sources that is MI5’s main concern; it is the sheer amount of work involved for possibly little positive outcome. You may think that is the price that has to be paid. But it is a price none the less. It might make more sense to draw a distinction between criminal and terrorist cases, using phone taps to secure convictions in the former, but only for intelligence-gathering purposes in the latter. Have Your Say: MI5 Phone Taps Cannot Be Used As Evidence Please read our posting guidelines before posting. Alternatively you can discuss this report here. Related News
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