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Whilst allowing intercept evidence into open court can possibly address existing civil liberty concerns, it could conversely result in a fundamental revision of counter-terror strategy.
The advocacy group Justice has recently published a report, Intercept Evidence: Lifting the Ban. It is a detailed and comprehensive contribution to the growing debate surrounding the admissibility of intercepted communications in court. The report’s content delivers a balanced commentary on the respective arguments before concluding that the ban ‘is archaic, unnecessary and counter-productive.’ Through judicious employment of comparative international legal systems, Justice demonstrates the precedents in using such evidence, the safeguards that protect its integrity, and the benefits for overall criminal and terrorist convictions. But in many ways, Justice is pushing on an already open door.
As recently as 21 September 2006, the Attorney-General Lord Goldsmith, in interviews with the Guardian and Radio 4’s Today programme, suggested that the ban on the use of intercept evidence in court should be lifted. Goldsmith stated, ‘We do have a need to use intercept in court if we’re going to give ourselves the best chance of convicting some of the most dangerous and prolific criminals in the country.’ Similarly this position has been supported by other important voices including the Director of Public Prosecutions, Ken Macdonald and the Commissioner of the Metropolitan Police, Sir Ian Blair. Perhaps most significantly, the Security Service, as long ago as last September, has intimated that it would be in favour of making telephone intercept evidence admissible in court, but with certain reservations emphasized.
Two primary problems with the allowance of intercept evidence in open court have been consistently articulated by the security and intelligence agencies. Firstly, there is a concern that operational capabilities, personnel and future efforts may be compromised. Secondly, there is a worry that the requirement to provide such evidence, particularly in the light of potentially exhaustive defence counsel requests, could impose an excessive administrative burden on the services diverting important resources away from their primary objectives. It is these legitimate fears that have led the Home Office to declare that ‘intercepts’ are an ‘intelligence-only’ approach enabling the agencies to ‘decide how best and where to deploy the techniques they use to get evidence for courts such as surveillance, eavesdropping and use of informants.’ This quagmire of opinion and belief has led the Prime Minister’s Official Spokesman to declare that, ‘We had always been of the view that if it was possible to use intercept evidence in court in a way that it did not put at risk or jeopardize security service personnel and sources then that was something that should be very seriously looked at.’ Thus it remains ‘a subject of ongoing and active work…’
It is clear, as expressed by Justice, that there are mechanisms, such as public interest immunity, which can be adopted to possibly assuage the concerns of the security agencies but still allow intercept evidence to be admitted. Nevertheless what emerges is an implicit tension that is not easily reconciled; do the benefits of allowing such evidence to be used in criminal courts outweigh the operational and administrative costs? The defining consideration will always be the balance between public interest and public security. Moreover, whilst the Justice report deliberately and discreetly focuses on the role of intercept evidence in court it also, undoubtedly, provides a commentary on wider counter-terrorism legislation and strategy. Indeed the appropriateness of counter-terror policy and its potential reform is becoming increasingly significant following the recent revelation of two ‘control order escapees’. The entrance of intercept evidence into open court would go some way to undermining the requirement for the secret and closed Special Immigration Appeal Courts (SIAC) and the continuation of control orders; accused individuals would have the opportunity to hear and refute the evidence against them in an open court. In turn, it would also require a revision of the security agencies methods of operation and presentation of intelligence to satisfy the demands of the criminal justice system. What Justice refrains from concluding is that far from being a discreet aspect of the counter-terror debate, the use of intercept evidence goes to the heart of the inherent tension within liberal democracies, drawing in to sharp contrast the ongoing balance between security and liberty, the need to defeat terrorism and defend human rights.