Intercept evidence

What is intercept evidence?

An ‘intercept’ is the technical term for the covert interception of private messages (whether via phone, post or email) by police and intelligence services. The most well-known form of interception is a telephone tap. However, with the rise of new technologies, increasing numbers of intercepts are made on electronic communications, such as mobile phones, emails, text messages and internet calls.

‘Intercept evidence’ is the use of recordings or transcripts from intercepted communications as evidence in criminal or civil proceedings. However, section 17 of the Regulation of Investigatory Powers Act 2000 prohibits the use of intercept evidence in UK courts.

Why is intercept evidence banned in the UK?

The government’s refusal to allow intercept evidence is a very long-standing one, going back to the invention of the telephone.

Historically, the Home Secretary had the power to issue warrants authorising interceptions of post and there are numerous instances in the 17th and 18th centuries of intercepted mail being used as evidence in criminal trials.

However, with the development of the telephone, the government has preferred to keep secret the particular methods it uses to intercept telephone calls. Its primary concern is that using intercepted material as evidence might inadvertently reveal too much about the particular methods that it uses to intercept calls.

The government has said that the ability of police and security services covertly to intercept private communications is a significant tool in the fight against serious organised crime and terrorism. In particular, intercepts allow police and security services to gain valuable intelligence on the activities of suspects leading to their arrest and prosecution. However, the government claims that this material is valuable as intelligence, rather than actual evidence against suspects. It states that if it were to allow the use of intercept material as evidence, this may make suspected criminals and terrorists aware of the particular methods used by the police to intercept their communications. This would lead to a deterioration in the ability of police and security services to intercept calls, as suspects adopted counter-measures to avoid interception.

Why is the ban on intercept evidence controversial?

The UK’s ban on intercept evidence is controversial for two reasons:

because the UK is the only country in the common law world to prohibit completely the use of intercept evidence in courts;

because, since 9/11, the government has cited the evidential problems in terrorism cases as justification for introducing a number of exceptional measures impinging on basic rights:

  • indefinite detention under Part 4 of the Anti-Terrorism Crime and Security Act 2001;
  • the use of control orders under the Prevention of Terrorism Act 2005;
  • most recently, the extension of pre-charge detention in terrorism cases from 14 days to 28 days under the Terrorism Act 2006.

What kinds of evidential problems are there in terrorism cases?

A number of reports have referred to the difficulty of obtaining sufficient evidence to prosecute terrorism cases. In 1996, the then-reviewer of terrorism legislation, Lord Lloyd of Berwick, noted ‘the difficulty of obtaining evidence on which to charge and convict terrorists, particularly those who plan and direct terrorist activities without taking part in their actual execution’.((Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism, Vol 1 (October 1996: Cm 3420), para 7.1))

In December 2003, the Committee of Privy Counsellors appointed to review the Anti-Terrorism Crime and Security Act 2001 reported that the ‘inhibiting factor’ in prosecuting suspected terrorists was ‘not a lack of available offences’ but rather than ‘the intelligence on which suspicion of involvement in … terrorism is based would be inadmissible in court or the authorities would not be prepared to make it available in open court for fear of compromising their sources or methods’.((Report of the Privy Counsellors Review of the Anti-Terrorism Crime and Security Act 2001 (HC 100: 18 December 2003), para 207))

So, if intercept evidence were made admissible, the government could prosecute suspects rather than relying on such exceptional measures as control orders?

Many believe so. For instance, the Attorney General, Lord Goldsmith, the Director of Public Prosecutions, Ken Macdonald QC, and the Metropolitan Police Commissioner, Sir Ian Blair have all expressed their support for lifting the ban on intercept evidence to enable criminal prosecutions in terrorism cases.

But wouldn’t using intercept evidence compromise the ability of the police and the security services to gather intelligence on suspects?

That seems unlikely. Intercept evidence is regularly used in virtually every other EU and common law country, including Australia, Canada, France, Germany, New Zealand, Israel, and the United States. If intercept evidence were as harmful to intelligence gathering as the government claimed, it would be readily apparent from these other jurisdictions.

The government’s stance on intercept evidence is also deeply inconsistent. First, the ban on intercept material only applies to interceptions in the UK. Recordings and transcripts of intercepted calls made in other countries are frequently used as evidence in, for example, criminal prosecutions for drug trafficking offences. Secondly, the ban has certain exceptions – there is no bar to introducing evidence of telephone calls made from prisons, for example. Ian Huntley was convicted of the Soham murders partly on the basis of intercept evidence. Thirdly, the definition of ‘intercept evidence’ does not extend to the use of recordings made from bugs, even where the bug records a telephone call taking place. The police frequently use evidence of recordings of telephone calls recorded in this way.