pay tribute to her for having made such proposals over a long period.
The Gracious Speech referred to two Bills that are at the heart of today’s debate: one of them seeks to reform the criminal justice system, and the other seeks to change the law on terrorism. I shall, with considerable difficulty, resist the temptation to take issue with the many tendentious claims the Secretary of State for Justice made in his speech at the outset of the debate, because I want to concentrate on one measure which could find a place in either of those Bills: the admissibility of intercept evidence in cases involving serious crime.
That question has been the subject of repeated debate in another place, usually at the instigation of Lord Lloyd of Berwick. He has been indefatigable in his pursuit of this issue, and I pay tribute to his persistence and resourcefulness. Largely as a result of Lord Lloyd’s efforts, when the Serious Crime Bill—which has now been enacted—reached this House in the last Session it contained a clause that had been inserted in another place providing for such evidence to be permitted. Sadly,
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that clause was removed in Committee in this House. As far as I can tell, however—I apologise if my research has been incomplete—there does not exist on the record in this Chamber an extended account of the overwhelmingly strong case for the admissibility of such evidence. My right hon. Friend the Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, went some way towards remedying that omission in his excellent speech of today, and I propose to add to what he said in order to remedy it further.
In so doing, it would be wrong of me not to recognise that the Government have, in response to a suggestion of my right hon. Friend the Leader of the Opposition, set up a committee of Privy Councillors to examine this issue. I am delighted that one of its members, the right hon. Member for Berwick-upon-Tweed (Mr. Beith), is present. I have submitted evidence to it and hope to meet its members shortly. I also hope that they will report in time for their conclusions to be reflected in one or other of the Bills to which I have referred, and that they will report in favour of admissibility. I propose to devote the rest of this speech to an attempt to explain why.
It is remarkable that we appear to be one of only two countries in the developed world that does not allow the product of interception to be used in evidence in criminal trials—and, as my right hon. Friend the Member for Haltemprice and Howden pointed out, even that statement needs to be qualified. It is perfectly possible to rely in a prosecution in this country on intercept evidence obtained in another country. If incriminating conversations are intercepted by, for example, the Dutch authorities, the product of such interception can be—and, indeed, has been—admitted in evidence in the courts of our country. Only the product of evidence that has been intercepted by our own agencies cannot be used.
What is the reason for that surprising state of affairs? The Government have advanced a number of reasons for their continuing opposition to taking the necessary measures to effect a change, despite their acceptance of its desirability in principle. First, they say that such evidence is likely to be ineffective in securing the conviction of terrorists. Secondly, they say that it has, thus far at least, proved impossible to devise safeguards that are strong enough to protect sensitive methods of investigation from disclosure to criminals or suspected criminals who would exploit and abuse that knowledge thereafter. Thirdly, on occasion reliance is placed on the alleged burdensome nature of the procedure which would have to be followed if such evidence were to be used in court.
That third reason can be dealt with swiftly. The extra time and effort involved must surely be worth while even if only a small number of terrorists, or other serious criminals, are convicted as a consequence. The same point answers the first objection. It is inconceivable that intercept evidence could never help to secure a conviction, and it is not necessary to secure a large number of convictions to make the change worth while. After all, the Government have gone through judicial hell and high water to protect their system of control orders, yet there are only 14 such orders currently in existence.
No, the main argument against allowing such evidence to be used is the second of the three arguments that I identified: the risk of disclosing sensitive methods of
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investigation, which would then weaken our ability to protect ourselves from terrorist attack. If that risk were real, it would certainly have to be given great weight, but I contend that it is perfectly possible to identify procedures that would eliminate the risk altogether.
Two possible routes could be used. I have for some time been attracted by the model set out in the report of the Newton committee, which examined this subject in 2003. Paragraph 224 of that report stated:
“Another approach to the problem of confronting the suspect with specific accusations and evidence, without damaging intelligence sources and technique, would be to make a security-cleared judge responsible for assembling a fair, answerable case, based on a full range of both sensitive and non-sensitive material. This would then be tried in a conventional way by a different Judge. In our view this approach could be well suited for use in this limited context.”
Lord Lloyd, on the other hand, believes that the existing procedures on public interest immunity, as set out in part 25 of the Criminal Procedure Rules 2005, provide sufficient safeguards without the need to go as far as to devise the admittedly novel procedure referred to in the Newton report. I have recently become persuaded that in this, he may well be right.
However, there is a further long-stop safeguard that would also be available, and that seems to me to provide a complete answer to the fears about disclosure that appear to be exerting such a mesmerising influence on the Government. It is always open to the Director of Public Prosecutions to withdraw any particular prosecution. If, despite all expectation, the judge in a case ruled that a particular piece of sensitive evidence should be disclosed to the defence, the DPP could stop the case and withdraw the prosecution. I see no reason why, in reaching that decision, the DPP should not consult all the relevant agencies. The final say on the evidence to be disclosed would therefore not be left to a judge; the final say would be that of the DPP, which would surely be a complete safeguard against any damaging disclosure. That point seems not to have been understood by the Government.
In replying to the Second Reading debate on the Serious Crime Bill on 12 June, the Minister for Security, Counter-Terrorism and Police suggested, at columns 672 and 673 of Hansard , that such a provision might fall foul of the European convention on human rights and of what he called the “equality of arms” principle. I do not see how withdrawing a prosecution can possibly amount to a breach of the ECHR, of the “equality of arms” principle or of any other principle. The Government have never answered that point. I do not believe that it can be answered.
The change for which I am arguing today has widespread support. As my right hon. Friend the shadow Home Secretary pointed out, the DPP has argued strongly in its favour, and so has his predecessor, Sir David Calvert-Smith. The previous Attorney-General, Lord Goldsmith, was in favour, and so is Lord Carlile, the independent watchdog in these matters, and Sir Ian Blair, the Metropolitan Police Commissioner, with whom I do not always find myself in total agreement. Support has also come from a number of bodies that have examined the issue, including Justice, in its October 2006 report entitled “Intercept Evidence, Lifting the Ban”, the Joint Committee on Human Rights, and the Joseph Rowntree
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Reform Trust, in its report of March 2007. So there is widespread support, and I believe that the case is overwhelming.
I close by citing the words of assistant commissioner Hayman of the Metropolitan police, given in evidence to the Home Affairs Committee:
“I speak from an ACPO and personal perspective. I have personally moved my position. I originally started off by being fairly unsupportive of the notion of using the material, mainly on the basis that it was starting to disclose methodology to the other side. I think that is now well and truly worn-out because I think most people are aware of that. It does not stop them still talking but they are aware of the methodology so that is a lightweight argument. The next point which I had reservations about was the true logistics about transcribing the material, where you could go into reams of material. Again, that is a fairly moot point now, given that you can be very selective about the things you are going to transcribe if you are very precise on your investigation and focused. I think I am moving, as I know ACPO is, to a conclusion that in a selected number of cases, not just for terrorism but also for serious crime, it would be useful. I think also it does make us look a little bit foolish that everywhere else in the world is using it to good effect.”
I think that the time has come for us to stop looking foolish.
Dr. Julian Lewis: Is not the best example historically of the tendency that my right hon. and learned Friend was describing in that very revealing quotation of President Richard Nixon, who knew perfectly well that his conversations were being tape-recorded, but still could not prevent himself from incriminating himself?
Mr. Howard: That is certainly an interesting example. I suspect that the implications of it are quite far-reaching. I might want to reflect on them before readily agreeing to the proposition advanced by my hon. Friend, but it is certainly an interesting thought.
I believe that it is time to allow intercept evidence to be used to help secure the conviction of those who are guilty of terrorism and other serious offences. I hope that we shall see legislation that will achieve that outcome on the statute book in this Session.
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