New Clause 12 - Interception of communications (No. 4)
Serious Organised Crime and Police Bill
9:30 am
Ms Vera Baird (Redcar, Labour)
I apologise for being slightly late in arriving this morning, Mr. O'Brien.
It is believed that about 1,500 phones a year are tapped under Home Secretary's warrants, but, as has been made clear this morning, evidence thus derived can only be used for intelligence, although it is broadly believed that was used in the Belmarsh detention process. Evidence gained in that way is specifically not admissible in court, however—indeed, nobody can even ask in court whether a phone has been tapped. That applies if a phone has been tapped in a public telecommunications system, which means if I am on my landline and my phone is tapped, perhaps in the receiver, the evidence is not admissible; similarly, if the tap is somewhere on the line to the exchange—I understand I am using slightly old-fashioned language—that is not admissible. However, if the tap is between a base station in my house and the cordless phone in my hand, that the evidence is admissible, as that region is not part of a public telecommunications system but part of a private one owned by myself. If my phone is tapped on a private network, the evidence is admissible, as the tap is in a private telecommunications system—as in the case of the Assistant Chief Constable of Liverpool, Alison Halford, whose phone was tapped internally in a network owned by the police. Similarly, if prison phones are tapped, which they are all the time, that the evidence would be admissible because the telecommunications system is private.
The need for operational secrecy therefore seems odd, because it is quite plain that if, for technical reasons, the material becomes admissible, the fact that the tap is being done is often disclosed and the material used. As the hon. Member for Sutton Coldfield said, if one bugs someone's house rather than their phone, what is said on the phone will be admissible because a public telecommunications system is not involved—I am sure that it is technically possible using a sufficiently strong microphone to hear both ends of a conservation Phone taps are widely used in most of Europe, the US, Japan and Australia.
Let me tell the Committee about a case I was involved with just before I became an MP. It concerned an Anglo-Dutch drugs conspiracy, the arrangements for which were made by a Mr. Big in the UK and a Mr. Big in Holland. It seemed quite plain that the phones were being tapped at both ends, but no one could ask whether they were being tapped at the British end and none of the material produced here—if there was any—could be used. However, all the material tapped at the Dutch end was used, even though the calls were often initiated somewhere on the south coast of England. Although we do not use our own phone taps, we can use Dutch phone taps covering phone calls initiated in the UK. I do not understand the technology, but when the Dutch Mr. Big came to the UK, phone conversations held entirely in the UK between both Mr. Bigs were intercepted by the Dutch, and they were used even though the calls were made in the UK. That shows how illogical the position is. I doubt that the UK Mr. Big would have been convicted if not for those phone taps, which seems a shame.
It seems clear that the police have moved from rooted opposition, as has the Crown Prosecution Service. David Calvert-Smith, the former Director of Public Prosecutions, described the ban as
''a damaging restriction . . . weakening Britain's fight against organised crime, drug trafficking and terrorism'',
and he said that the admission of phone taps would assist enormously. Major criminals obviously take a great deal of care not to use land lines, or even mobile phones registered to them, regularly, but that does not mean that phone tapping them is impossible. I understand that the National Criminal Intelligence Service and MI6 are against it, but it is said that MI5 has long been reconciled to it, although it notes that
''We do not want to alert serious criminals to the ways that we catch them.''
Customs is said to be guardedly open minded.
Meanwhile, as Opposition Members mentioned, moves are being made from the other vantage point. Liberty, always with one eye on civil liberties, regard it as acceptable for the fruits of phone tapping to be admissible. However, it says that the disclosure of material that would be necessary at trial might be an issue, and one can see the problem. Everything that undermines the prosecution or assists the defence has to be disclosed. If a phone has been bugged for two years and the Crown wants to use only 10 minutes, the prosecution is likely to have to disclose the rest of the recordings—even if they have not listened to the rest of them—because it could undermine the prosecution. That could be expensive and time consuming. It gives scope for cross-examination and risks undermining the Crown's case, but that is what trials are for and I cannot believe that it is impossible to solve that major problem.
The reports that I have read say that the Secret Intelligence Service and the electronic eavesdropping agency GCHQ claim that criminals and terrorists will be tipped off about their techniques if they are made public. However, Sir David Calvert-Smith said that the vehement arguments used by diehards are implausible. Criminals know already that their telephones are likely to be tapped. He said:
''It has been common knowledge for years.''
Experience shows how valuable tapping is as an intelligence tool. The argument is that it disrupts drug traffickers and serious Revenue fraudsters, and the benefits of allowing the fruits of phone tapping to be used in court must outweigh the disadvantages of exposure in court of details of law enforcement intelligence techniques.
A strong advocate of the admissibility of phone tap evidence is the new director of SOCA, Sir Stephen Lander, who, after 25 years in the secret services, says that he is an enthusiast for the move, although there would have to be robust arrangements to protect sources and techniques. He has said,
''Here's something that happens in almost every jurisdiction but not here, but the protection of techniques argument is a valid one''.
He describes the question as ''complicated'' but says that he has a lot of sympathy with the straightforward approach of asking, ''If everyone else can do this, why can't we?''
That is a good question, which is given added urgency now that it is believed that material of the kind in question has been used in the Belmarsh cases. If it were made admissible in criminal courts, it might at least partially solve the dilemma affecting the Belmarsh internees, by enabling them to be prosecuted using the material that has already been gathered. I should be grateful for an update on the position and on the Government's thinking.