The Attorney-General is impressed by the way intercept evidence has helped to jail mafia bosses in america. But would it work here? Grania Langdon-Down weighs up the issues

Law enforcement agencies planted more than 2,000 surveillance devices in homes, offices and hotel rooms during 2005/06 as they targeted suspected terrorists, drug traffickers and other serious criminals, while the home secretary authorised more than 1,800 warrants for telephone tapping, statistics reveal.

The results of the former, along with information gathered from bugs planted in cars and recordings of mobile telephone conversations, can be put before a court. But intelligence gathered from wiretaps is explicitly banned as evidence under section 17 of the Regulation of Investigatory Powers Act 2000.

Is this distinction still justified? No longer, according to Attorney-General Lord Goldsmith QC, who signalled a possible change of heart by the government last month. After visiting the US, he was impressed by the way American prosecutors had used intercept evidence to jail five top Mafia bosses.

The Director of Public Prosecutions (DPP), Ken Macdonald QC, is also a keen supporter of its use, as he made clear at a recent Law Society debate (see 2006 Gazette, 28 September, 6). He tells the Gazette: ?The value of this material is so great we have got to find a way through this. Foreign prosecutors are aghast that we don?t use it.?

The UK security services have always opposed the use of intercept evidence, fearing disclosure of sources and methods of working, alongside concern that they could be ?swamped? by defence teams? demands for transcripts of hours of bugged conversations.

It was only last year that Sir Swinton Thomas, the Interception of Communications Commissioner, said in his annual report that, having discussed the issue with all those engaged in this work, ?I am left in no doubt that the balance falls firmly against any change in the present law and that any amendment of section 17 would, overall, be damaging to the work of the security, intelligence and law enforcement agencies?.

The issue of intercept evidence has been reviewed five times in the past decade. Charles Clarke, then Home Secretary, told the Commons last year that the latest review concluded its use would only help secure a ?modest? increase in convictions of some serious criminals, but not terrorists.

The preferred legal model on the table comprised of three types of interception warrant ? intelligence-only and non-evidential, which would continue to be authorised by the home secretary and protected against disclosure, and evidential, which would need authorisation by a judge. But Mr Clarke said the risks for the intercepting agencies still outweighed the benefits.

According to a Home Office spokesman: ?That position hasn?t changed fundamentally since the last review. It is vital for us to protect our intercept capability and our sources. However, if it is possible to find a legal model that would provide the necessary safeguards, we would consider it.?

Mr Macdonald acknowledges the ?countervailing? arguments. He says: ?A tradition had developed where the prosecution just handed over everything, whether it was disclosable or not. When I became DPP, I introduced a push to get prosecutors to stand by the Criminal Procedures Investigation Act 1996 (CPIA) and stop handing over the keys to the warehouse.

?We need a legal model which is kept simple. Prosecutors need to do their job in assessing the disclosability of material and the courts need to apply the rules strictly ? if judges order the provision of endless transcripts of material of dubious relevance, it will create problems. But the CPIA provides the framework within which this model could work.?

The view that intercept evidence would only make a ?modest? difference leaves US prosecutors ?unable to believe what they are hearing?, he says. ?We have to get out of Alice in Wonderland. Are we really saying that if we were able to target professional criminals, intercept their phone calls and use that material as evidence, that it wouldn?t provide significant assistance to the prosecution? You have to live in the real world.?

He says there is a ?danger of parallel jurisdictions developing ? the criminal jurisdiction and the non-criminal or semi-criminal jurisdiction. We are keen to keep people in the criminal jurisdiction and intercept evidence would probably help us do that?.

The Bar Council has written to the Attorney-General and the DPP to discuss a way forward. Andrew Hall QC, chairman of the Criminal Bar Association, says: ?We are more than happy to work towards a sensible solution which doesn?t open the warehouse gates on disclosure but does build in protections for the accused.

?I don?t see why, with good sense on both sides, we can?t draw up some sort of protocol about how this material is handled which doesn?t mean the whole lot has to be disclosed or examined by all the lawyers at huge expense.?

One option, he says, might be to appoint an independent counsel who would listen to the parts that have been identified as containing potentially relevant material. ?That would provide a measure of protection, particularly in relation to sensitive material. They could be guided by the defence as to things they should be looking for and act as a conduit with the prosecution to suggest the disclosure of additional material.

?It is very important to find a solution so these cases are properly prosecuted, because the alternatives are far more Draconian, with suspects being held without trial or subject to control orders.?

He suspects the resistance is coming from the security services because they are fearful of disclosing how much information they have. ?But if the result of disclosing the material is an informant may be identified or other people tipped off, then the prosecution can drop the case.? Mr Macdonald says he will look at any proposals but adds: ?I am slightly dubious about bringing in special counsel. I don?t see why we couldn?t use this evidence within the normal parameters.?

Lawyers? human rights group Justice has been investigating how intercept evidence is used in other common law jurisdictions and will be releasing its findings shortly.

Barrister Eric Metcalfe, its director of human rights policy, says the use of special advocates in disclosure hearings and public interest immunity (PII) applications in criminal proceedings was sanctioned by the House of Lords in R v H 2004 UKHL 3. He says there are problems with the special advocate system in other proceedings but stresses: ?It is one thing to use a special advocate to consider the disclosure of unused material in criminal proceedings, and it is quite another to use them in the substantive hearing itself, such as the Special Immigration Appeals Commission hearings, where the defendant is not allowed to know the case against himself.

?The essential difference between this and what we normally think of as dreadful about the special advocate system is that there is no suggestion that the defendant is ever going to be tried on the basis of evidence they don?t get to see. Using special advocates in these disclosure situations would be a positive development.?

The Law Society has been among those pressing for the ban on intercept evidence to be lifted. Janet Arkinstall, criminal law policy adviser in its law reform directorate, says: ?One of the obvious reactions to the government?s desire to create new offences and extend police powers is to ask, why aren?t prosecutions working now?

?We are one of the few, if not the only, common law jurisdiction where intercept evidence is not allowed and law officers in those jurisdictions are completely baffled by this. I am Australian and I recall as a criminal lawyer wading through piles of transcripts of telephone conversations, particularly in drug matters.?

She says the Bar Council?s suggestion of a special advocate procedure could be a soluti
on. ?They would be alert to the need to ensure the evidence is a reliable record and go through the sequence of events to make sure it hasn?t been doctored.?

Ms Arkinstall says she can understand that the government is concerned at the potential expense of having to disclose reams of transcripts. ?But if that is the trade-off for prosecuting potential terrorists, so be it.?

Ian Kelcey, chairman of the Criminal Law Solicitors Association, suspects agencies? reservations may be more to do with not wanting the public to know how prevalent telephone tapping is.

He says that, as an evidential tool, it can be compelling. ?Say, if the police are tapping Joe Bloggs? telephone and hear him say to Fred Smith: ?We?ll meet at Ashford International railway station ? you bring the H and I?ll bring the cash?. They can stake out the railway station and make the arrest, but they can?t use the call as evidence ? even though it could cut the trial short ? because the defendants couldn?t claim they didn?t know what they were carrying.

?If the defence in that instance wants the tape of the whole call, why shouldn?t they be given it? It won?t disclose any techniques involved and it won?t stop criminals or terrorists using telephones ? they haven?t stopped using mobiles. It may be other calls did not produce anything of an evidential nature and the prosecution won?t want to disclose them. But the fact that they don?t reveal any criminal activity may undermine the prosecution case in the eyes of the jury and so should be disclosed.

?I have had seven trials where there has been covert surveillance evidence ? four resulted in defendants changing their plea to guilty straight away, while the evidence in the others was fairly ambiguous. There will be some problems but no greater than those that already exist with other surveillance methods.?

Louise Christian, senior partner of London human rights firm Christian Khan, also supports the use of ?phone tap evidence. ?I was involved in one case where we wanted to be able to introduce evidence about a ?phone call the client had made which we knew the Crown had, as we knew they had listened to the call. But we weren?t able to put it before the jury, even though it would have helped establish that person?s innocence.?

She is concerned about disclosure: ?If the security services have tapped a defendant?s ?phone, then the defence have got to be entitled to see that material ? that is the natural consequence. In one trial recently, we were given 300 CDs of surveillance material and we had to listen to it all to hear it in context.

?However, it is difficult to see why using intercept evidence will throw up more PII issues than any other surveillance material. The only sensitivity may be letting the public know the extent to which telephone tapping goes on.?

In 2004, 90 people lodged complaints with the Interception of Communications Commissioner, which did not find any breaches of the law in the ones it investigated. However, the commissioner reported 45 ?errors?, caused by human and procedural mistakes, which he said was ?unacceptably high?.

Ms Christian is worried by the idea of a special advocate procedure. ?I think that would be completely unacceptable. It is gradually undermining the right of defendants to know the case against them and to have access to material which may help clear their name.?

Raju Bhatt, a partner at London civil liberties firm Bhatt Murphy, agrees: ?What one has to guard against is a compromise involving special advocates and closed sessions, which is becoming the status quo.

?Disclosure is always an issue with surveillance evidence. It often requires contested hearings but you generally get it because claims about protecting sources are often quite thin and, under scrutiny, melt away. Going through unused material is costly and funding is a big issue. But I don?t think it would come well out of the mouth of the Crown to say it is too expensive.?

Linda Woolley, president of the London Criminal Courts Solicitors Association and managing partner of City firm Kingsley Napley, agrees: ?Prosecution is a costly business. You can?t have the Crown just producing the juicy bits in type. There is no way of overcoming the need to go through the material. However, expense can?t be a stumbling block to introducing this evidence in major crime and terrorism cases.?

For the DPP, the key point is that suspects should be put through due process trials under normal rules. ?If intercept enables us to do that in some cases where we presently can?t, then so much the better.?

Grania Langdon-Down is a freelance journalist