Down To The Wire

First published in The Law Society Gazette 22 February

2008.

We can use intercept evidence in a way that will lead to

fairer trials and avoid extending pre-charge detention, argues

Jeremy Summers

In 1586 encoded letters were intercepted and admitted in

evidence to convict Mary Queen of Scots of treason for plotting

to kill Elizabeth I. England is therefore no stranger to the

use of intercept evidence in criminal trials and as a country

we now authorise more surveillance operations than most other

countries.

Despite this, a report this month by Sir John Chilcot

recommending that intercepted communications be used in

terrorism trials generated a huge amount of media debate. The

Prime Minister is supportive of Chilcot's report, albeit

with tight limits.

Internationally, intercept evidence is routinely used in

evidence, for example by the US in Mafia and terrorist trials,

but our own intelligence community is decidedly squeamish when

it comes to the prospect of allowing covert material to find

its way into English courts.

The arguments advanced in support of that position are that

sources and secret service operations would be compromised and

the relationship between the police and intelligence providers

would be jeopardised. Additionally, disclosing this material,

it is said, would place too great a burden on prosecution

resources and might hamper the ability to react to changes in

communications technology.

No other common law country prohibits the use of covertly

obtained evidence, and, despite the security services'

reservations, there can be little plausible justification for

having evidence and not using it. If compelling information is

available it should be before a court to assess. More pertinent

questions arise as to how it should be used and what impact it

should have on the fight against terror more generally.

Gordon Brown indicated that the intercepting agencies should

have the right to determine whether evidence is used. While

accepting that national security must always be protected, it

should be left to the courts, not the security services or

others, to decide when that risk arises. The intercepting

agencies should have the ability to argue their case, if

necessary before a specially appointed court, but they should

not be judge and jury. There are already too many instances in

British criminal justice history where abuse of power by the

authorities has led to collapsed trials and, worse,

miscarriages of justice.

A court should...