Technology | 2009.12.11
'Get a grip' on intercept evidence
Sir Ken Macdonald suggests judicial oversight is key to resolving security issues
The former director of public prosecutions, Sir Ken Macdonald, today urged a Home Office review to "get a grip and make progress" in overcoming the problems surrounding the use of intercept evidence in court.
The former DPP said that a new system of judicial oversight of the storage and use of intercept material gathered by the security services through phone taps and email surveillance could be the key to resolving the issue.
The home secretary, Alan Johnson, yesterday gave a Home Office advisory group a further three months to resolve the problems after they reported today that practical testing, including staging mock trials, had shown the proposed model was not currently "legally viable".
It is now more than two years since Gordon Brown backed moves to see if intercept evidence could be made admissible in court without compromising the security sources or techniques used to acquire it. The further delay until Easter means that legislation is now highly unlikely before next year\'s general election.
The shadow home secretary, Chris Grayling, said the Conservatives still wanted to find a way of making it possible for intercept to be used in trials: "However, we also recognise that there are very major legal difficulties and it is important not to take any step that undermines our national security."
The Home Office advisory group review published today said that the model proposed by a group of privy councillors, led by Sir John Chilcot, was not yet legally viable because of the need to safeguard disclosure rights to the defence in a trial.
A senior Whitehall official said that storing and organising all the phone tap and email traffic recorded by the police and security services would require "electronic warehouses" and would cost "billions not millions".
He said it was not widely appreciated how much intercept material could be generated during a surveillance operation lasting months.
The amount of material involved in the MPs\' expenses scandal was equivalent to that generated by a single short-term criminal or terrorist case.
The implementation team will looking for a new way of increasing judicial oversight, seeing if it is possible to develop alternative ways of reviewing the intercept material kept and stored, and seeing if advances in technology can help in making the whole process more manageable.
Sir Geoffrey Grigson, a retired judge who took part in the mock trials, said defendants were entitled to test the evidence used against them to ensure a fair trial: "With intercept that will almost certainly require disclosure to the defence of information regarding techniques used by agencies and their capacities. Disclosure of such material would cause serious damage to the intelligence processes."
But the former DPP said the court of appeal had repeatedly stressed the need for judges to take a robust view of defence applications for disclosure: "The defence is not allowed to go on fishing expeditions to derail the process. The court of appeal has repeatedly said that disclosure applications have to be focused and realistic and if they are not courts will not accept them."
Macdonald said he believed a greater involvement of a judge in overseeing the process of disclosure of intercept evidence could be the key to resolving the issue.
For more information, please visit
http://www.guardian.co.uk/uk/2009/dec/10/intercept-evidence-use-court
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