Examination of Witnesses

Part of Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 10:47 am on 21st June 2011.

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Keir Starmer: I think it is important to focus on what the difficulties are before coming to whether intercept is the answer. The difficulties that we confront in these cases are as follows. First, what we are looking at is very often an intelligence-based file, and therefore is not a file that has the sort of evidence that you might find in other cases. That brings into sharp focus the issue of admissibility: where has the intelligence come from? Is it a source that can sensibly be put into the public domain, or would that put other sources and individuals at risk? Is it coherent? Often, the intelligence picture  may be fragmented because of the nature of intelligence—it may well work for an intelligence purpose, but may not work for building a case. There are also rules about hearsay which apply strictly in the criminal arena but not in the intelligence arena. It is true that hearsay evidence can now be adduced in criminal cases, but there are limits on that—the statutory tests. These are the issues we are predominantly looking at.

Even when there is evidence—something in addition to the intelligence that we can use—the question is then, is there enough to provide that realistic prospect of a conviction? If there is, we would prefer to prosecute, because we strongly believe in the priority of prosecuting, and we have prosecuted a number of cases, as everybody knows.

There is one additional group which warrants some consideration. Of the 12 control orders which are now in place, three are what we call post-acquittal control orders, meaning that we have taken the decision historically that there was enough evidence to bring proceedings, and the judge has very often taken the view that there is enough evidence to leave the case to the jury, but the jury has none the less acquitted; there is then an examination of the file. In these cases, the question is slightly different: there was obviously admissible evidence—that was the base upon which the case was put forward in the first place—so the question is, what is there, post-acquittal, that might cause concern to those who are assessing risk?

Returning to your question—how do we plug those gaps?—some of them are difficult to plug, because if you are dealing with intelligence, you are dealing with intelligence. As far as intercept is concerned, my own position is that, in principle, I am in favour of intercept evidence being admissible in evidence, subject to two caveats. The first is that there must be a fair trial, and therefore the disclosure issues raised by intercept evidence have to be fully thought through—and they are not straightforward, as everybody appreciates. Secondly, there should be a caveat that the use in any given set of circumstances or set of cases should not significantly impact on the ability of the security and intelligence services to do their job. But, in principle, I am in favour.

There is a difficulty in assessing whether or not intercept would have made the difference in historical cases, because, when historical cases were prepared, intercept evidence was not admissible, and therefore it was never part of the thinking for an operation that you would be obtaining admissible intercept evidence. To look at cases now and say, “Would it have made a difference?” is an exercise, but in my view a pretty limited exercise.