Serious Crime Bill [HL]

moved Amendment No. 21: 21: 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 (c. 23). (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: My Lords, this amendment was also considered at considerable length in Committee. At the end of her reply the Minister, with her usual courtesy, offered us the choice of what she called either her short reply or her long reply. The record shows that I was in favour of the short reply, but the Minister chose otherwise,no doubt because of the strong support for the amendment from the noble Lord, Lord Dholakia, on the Liberal Democrat Benches, the noble Lord, Lord Henley, on the Conservative Benches and my noble friend Lord Dear on the Cross Benches. I am glad that the noble Baroness chose as she did because it means that we know the full extent of the government case for not admitting intercept evidence in criminal prosecutions—something which, as I have said so often in the past, is permissible in every other country of which I am aware. It simply does not make sense that we alone should exclude this evidence. Towards the end of her reply the noble Baroness said that if she could find a way to admit intercept evidence safely, it would be, "““a consummation devoutly to be wished””." In other words—I do not aspire to her Shakespearean quotation—it would serve a useful purpose. It would enable prosecutions to be brought in at least some cases of serious crime where they cannot be brought at present. I do not think that anybody now suggests otherwise. So the desire is there on the part of the Government. Why, then, do they not do it? I suggest that the clue is to be found in a sentence or two of the noble Baroness’s reply. At the very end of her reply, she said: "““Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would””." A little later she added: "““I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear””.—[Official Report, 7/3/07; col. 313]" She said that neither we nor anyone else had found a way of admitting such evidence safely, but I found that very hard to reconcile with our experience gained from other countries. In Committee, I referred to the report recently published by the independent organisation JUSTICE, Intercept Evidence: Lifting the Ban. Starting at paragraph 115, it set out the current experience of five other common law countries around the world where intercept evidence is used regularly in cases of serious crime. Those countries are Australia, Canada, New Zealand, South Africa and the United States. Australia is a particularly relevant case in point, because the Minister has been kind enough to write to me since Committee to correct an impression that may have been given inadvertently that in Australia intercept evidence is used hardly at all. That is not the case. In her letter to me of 23 April, she pointed out that the most recent figures, to June 2005, showed that in Australia intercept evidence has been adduced in 2,363 prosecutions, of which 1,533 have resulted in convictions. She kindly attached the table explaining how those totals were arrived at. In the light of those figures from Australia alone—and no doubt there are similar figures fromall the other countries referred to in the JUSTICE report—the Minister has to answer this simple question. If Australia has found a way of admitting intercept evidence safely, why cannot we find such a way ourselves? The Australian figures are also useful, indeed critical, for another purpose, because they bear out the experience of our Director of Public Prosecutions, Sir Ken Macdonald. A year or so ago, he visited three countries—Australia, Canada and the United States—to find out how they dealt with intercept evidence. He found it being used everywhere he went. It was being used safely everywhere, and he found disbelief everywhere that we could do without it in our country. Sir Ken Macdonald recently gave that evidence at a hearing of the Joint Committee on Human Rights and made an extremely powerful case for admitting such evidence now. I can say that that case was powerful, because I heard it myself. I suggest to the House that we should take his advice very seriously, especially as it confirms the advice of his predecessor, Sir David Calvert-Smith—now Mr Justice Calvert-Smith. They are not the only people to have expressed such a view. In Committee, I listed a number of others who had done so. It would be tiresome to repeat that list now. But many other people who are in a good position to judge say that the time has now come for intercept evidence to be admitted. Despite all of that experience world-wide, and despite the views expressed by so many people who are qualified to express views on this matter, I accept that some people say that it cannot be done safely, that we risk too much and that, sooner or later, the secret processes that we are so anxious to protect will come out in court. No doubt, some noble Lords will express that view this afternoon, although there is a notable absentee—but she may come later. To those who still believe that admitting the evidence cannot be done safely, I say two things. First, they should look elsewhere. It has been and is being done safely in all the countries that I have mentioned, not to mention all the European countries—France, Germany, Italy, Holland and so on. Secondly, they underestimate the power of the court under the public interest immunity procedure, which is now clearly set out in black and white in Part 25 of the Criminal Procedure Rules 2005, and appendix 1 of Blackstone. I assure the House that there is no prospect of any judge of the High Court ordering the disclosure of material that would damage the public interest by revealing sensitive matters that ought not to be revealed. If any judge did so order, there would be an immediate appeal to the Court of Appeal. It comes to this: the Minister says that she would admit the evidence if a way could be found of doing so safely—that the desire is there. I hope that I have demonstrated to the House that a way has been found of doing so safely in all the other countries to which our system is most similar, and many others to which I have not referred. I am left with the thought that what is lacking is not the ability to make the evidence admissible, but the political will to make a decision after all these years. I hope that this House willnow make that decision for the Government. I begto move.