Serious Crime Bill [HL]

moved Amendment No. 40: 40: After Clause 3, insert the following new Clause— ““Involvement in serious crime: evidence (1) In considering for the purposes of this Part whether a person is involved in serious crime the High Court may take account of any evidence admissible under the Regulation of Investigatory Powers Act 2000. (2) Schedule (Intercept evidence) (which makes provision for the admissibility of intercept evidence in cases involving serious crime) has effect.”” The noble and learned Lord said: I stress that this is an important amendment for the Committee to consider. At Second Reading, the noble Baroness, Lady Anelay, suggested that before we go much further with the Bill we should look again at using intercept evidence in court, so that serious criminals, instead of being made subject to prevention orders under the Bill, could be charged and convicted. The noble Baroness, Lady Scotland, replied: "““During the debate I have encountered some issues that are old friends. One of the oldest of these is intercept. The issue has now become very dear to me. I cannot but see the noble and learned Lord in his place to know that any debate at any time on any day on any issue should have intercept woven somewhere into its fabric. If it were not, I would be deeply disappointed””.—[Official Report, 7/2/07; col. 765.]" That is a challenge that I could not possibly resist, hence the amendment now standing in my name. At least the Minister will not have been disappointed to see the amendment on the Order Paper. What are the reasons for tabling this amendment in this context? Under Clause 1, the High Court judge has to be satisfied that a person has been involved in serious crime. That is the first stage of the two-stage test, which the noble Baroness has explained clearly. It seems to me that in reaching his conclusion on that first and vital step, the High Court judge ought to have the benefit of all the relevant evidence, not just some of it. If a defendant's house has been bugged by the police, evidence of the bugging would be available under the Regulation of Investigatory Powers Act and would be admissible in court. If a defendant’s telephone conversations have been tapped by overseas agencies, the evidence would also be admissible in court. Section 17 of RIPA does not apply in such a case. However, if a defendant’s telephone has been tapped in England, that same evidence would not be admissible and the High Court judge would be deprived of what might be a vital piece of relevant evidence in deciding whether the defendant was involved in serious crime. An application for the prevention order might fail in circumstances when it should have succeeded if the High Court judge had known all the evidence. It still seems to me, as it has seemed to me for the past 10 years, to be a most curious and even quixotic result of our law as it stands that he does not know all the evidence. That is the reason for my amendment, designed to make intercept evidence available in proceedings in the High Court in accordance with the Bill. The amendment goes wider because it will apply to the whole field of criminal prosecutions. Why should it not? Everybody agrees that prosecuting suspects is better than applying for a prevention order. That is so, whether the subject of the prevention order is the central figure in a conspiracy or whether, as is intended, it is someone merely on the fringes of the conspiracy. The fact is—and I state it as a fact—that serious criminals could be prosecuted and convicted if intercept evidence were admitted in our courts. That is now common ground between all parties. That was the evidence as I saw it when I conducted my investigation in 1996. More important is the evidence of the most recent report, the fifth review report of 26 January 2005. If some criminals could, as is common ground, be convicted by admitting intercept evidence then surely we should take that step. I am conscious that we have been here before, but since we last addressed this subject in detail in November 2005 there have been two important developments. The first is the report of Justice, Intercept Evidence: Lifting the Ban. It goes into all the arguments for and against lifting the ban in great detail. It is a serious and scholarly study. At the end of the investigation it reaches a clear conclusion: the ban on intercept evidence, "““is archaic, unnecessary and counter-productive””." The second event was the publication by Sir Swinton Thomas, the current Interception of Communications Commissioner, of his last report, dated as recently as 19 February 2007. Sir Swinton Thomas is an old friend and has been a colleague of mine for many years. He remains of the view that lifting the ban would be a great mistake. In paragraph 44, he regrets that, "““various … misguided, and often ill-informed … people continue to re-open this complex question””." In paragraph 45 he says: "““Those who advocate a change in the … law would be wise to discuss [this] issue with those who are knowledgeable on [the] subject””." Having raised that matter on many occasions, I have had my wrists well and truly slapped by my old friend. I do not despair, for I am in good company; I am not the only one who advocates change. Others who advocate change—and I mention only a few of them—include: the Attorney-General; Sir Ken Macdonald, the current Director of Public Prosecutions; Sir David Calvert-Smith, his predecessor; Sir Ian Blair, the Metropolitan Police Commissioner; Andy Hayman, the Assistant Metropolitan Police Commissioner; the noble Lord, Lord Carlile of Berriew, the commissioner of almost everything else; the Newton committee of the Privy Council; the House of Commons Home Affairs Committee; the Joint Committee on Human Rights and the Law Society. I suggest that at least some of them must have known what they were talking about when they advocated change. The main argument against using intercept evidence appears in paragraph 46; it has always been the same, and it is simply that if criminals realised that their communications could be intercepted and used in evidence they would find other means of communicating. Justice, in paragraphs 52 to 62 of its report, says that the argument is ““profoundly misplaced””. I agree. We are dealing here with highly sophisticated organised crime, crime that crosses international boundaries. If criminals know that their communications can be accepted and used in evidence against them in France, Germany, Holland and numerous other countries—every other country in the world except England—yet they continue to communicate in the way they always have, why should they behave in a different manner when they come to England? It is feared that interception methods would be compromised and that clever defence lawyers would soon winkle out the truth, but that argument fails to take account of the use of public interest immunity certificates. Public interest immunity is not something new and untried; its principles are used and applied day in and day out in the courts to protect sensitive sources, methods or techniques. It is used to protect informants and to protect methods of covert surveillance. I know that the noble Lord, Lord Thomas—I hope we will hear from him later—has much more experience of the use of PII than I have myself. There is no reason to suppose that such methods would not protect the methods used by GCHQ to intercept communications. If there were any doubt at all about that—I suggest that there is none—those doubts would immediately be displaced by looking at what happens in other common law jurisdictions. Intercept evidence is used regularly in Australia, Canada, New Zealand, South Africa and the United States. They are all described in great detail in paragraphs 115 to 167 of the report. In all those countries, means have been devised to protect the methods used, whether by PII as such, a variation of PII or, in some cases, by statute. Why cannot we do the same here? I find it surprising that Sir Swinton Thomas, in his comprehensive report, fails entirely to mention the use of PII and has failed entirely to refer to the powerful case made in the Justice report; nor has he dealt with the point that intercept evidence works well in the five Commonwealth countries that I have mentioned. With one exception, all the other arguments have been dealt with in advance by the Justice report. The only exception is in paragraph 46(vi), where Sir Swinton refers to the ““strong opposition”” of the communication service providers. He describes them as being ““totally opposed”” to any change in the law. Here again, Sir Swinton says that, "““people who hold views on this subject should talk to the Communication Service Providers themselves””." I have not had talks with them for many years, though I did in the old days; but I did get a letter from them dated 14 November 2005. I shall quote two paragraphs from the letter, which is from the Mobile Broadband Group, comprising all the main companies that we know, including O2, Orange, Vodafone and so on: "““We acknowledge that you and others have been advocating for many years the relaxation of the UK's ban on the use of intercept evidence in court. While it is not our intention to challenge or take a view on this proposal, we do have some serious concerns about its implications for the safety of our staff. We would therefore urge you to consider the inclusion of unambiguous provisions that would offer protection to people giving evidence. We understand that where intercept evidence is used in other jurisdictions such as France, Germany, USA and Canada, arrangements exist to protect the anonymity of ""witnesses, including the employees of the telecommunications providers. We urge that your Bill include provisions to protect the anonymity of witnesses””." So those companies do not oppose it, root and branch. They say that, provided that their staff are protected, they would be satisfied. There is no reason why their staff should not be perfectly well protected under the existing arrangements. I leave the last word to Andy Hayman, the assistant commissioner. On page 33 of the report he says: "““I am moving, as I know ACBO 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 have been hoping for the past 12 years that we would make this necessary change. I shudder to think of the number of people who might have been prosecuted and convicted if we had made it 12 years ago. Over and over again we are told that the Government are keeping the matter under consideration. It is time they moved forward from that step and took action. I beg to move.