The Home Office has now published
Intercept as Evidence Report Dec 10th 2009 (.pdf 331Kb)
Sir John Chilcot, was chairing the Privy Council Working Group (comprised of politician lawyers and civil servants, but no actual IT experts) on "Intercept as Evidence", before being appointed to conduct the deliberately delayed, for Labour party political reasons, inquiry into some aspects of the war on Iraq,
Yet again, the UK security and legal establishment in Whitehall, has failed to produce an acceptable or practical policy on the use of phone and internet electronic interception, to be used as evidence, by both the prosecution and the defence, in criminal trials involving terrorism or other serious crimes.
- How can this be, when every other country in the world, with the possible exception of the Irish Republic, can mange to do this ?
- UK Courts can and do make use of Intercept Evidence which has been produced by foreign law enforcement agencies.
- UK Courts also seem to accept evidence gained from intrusive surveillance hidden microphones or video cameras or other "probes" , which may well pick up one side or both sides of a phone conversation.
- Nothing in the reports produced by this Privy Council Working group provides any safeguards regarding the use of intercept evidence used against British citizens, by foreign countries, in Extradition proceedings.
The Report sets out an obviously unworkable list of 9 criteria, which seeks to preserve the status quo.
There is an extremely dubious argument on the question of transcription and translation resources. Somehow the argument has been allowed that, for some reason, all current interception investigations would have to be transcribed and translated, to proper court evidential standards i.e. with extra effort being spent to record each and every unclear recording or the translation every word of a foreign language conversation.
Remember also, that not all serious crime cases actually involve any translation of obscure foreign language dialects at all.
Surely this extra effort is only necessary, in the minority of investigations, where a criminal case is actually being prepared for trial ? Why can this not be handled by staff who are not employed in front line work for the law enforcement or intelligence services ?
The media spin about this report, that somehow it is "too expensive" to store all the possibly exculpatory intercept material i.e. long hours of boring or innocent conversations, and not just the potentially incriminating bits, is so ridiculous as to be deliberately misleading, given the low cost of terabytes of disk space these days and the billions of pounds being wasted on ID Card databases and the mandatory retention of the Communications Data of millions of innocent people etc.
Sir Ken MacDonald, the former Director of Public Prosecutions has pointed out that the intelligence agencies and the police are already under a legal duty to bring to the attention of the courts any evidence they find which tends to show an alibi or the innocence of an accused person, perhaps there are cases where they have deliberately concealed this ?
If there are cases where people have been under electronic surveillance for years on end, without saying anything incriminating, then the totality of that non-evidence >strong>should be allowed to be presented in court by defence lawyers - perhaps some of them may actually be innocent of what they are suspected of ?
The Report mentions that there should be safeguards against "fishing expeditions" by defence lawyers, something which Judges already deal with adequately in all other types of court evidence. However there is no mention of the "fishing expeditions" and "data trawling" through innocent people's data, which the intelligence agencies and police appear to be involved in, something which the untrustworthy and technologically incompetent Labour Home Secretaries or Foreign Secretaries are meant to prevent, through a test of proportionality when signing an Interception Warrant.
The Report also mentions that the mock trials and legal advice over the last year or so, to test this flawed legal model, has involved over a hundred people, and cost over £2.5 million, all for nothing.
All in all, this yet another failure by the Home Office, for which Home Secretary Alan Johnson and his predecessor Jacqui Smith are to blame politically, although, the unelected and unaccountable Admiral Lord West of Spithead, who is nominally in charge of the Home Office's Office for Security and Counter Terrorism, must also share some of the blame.