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 therefore determine what and how much evidence is to be admitted. If it is strong evidence it will increase the likelihood of conviction, which will in turn assist the authorities in combating the terrorist threat and so protect the public. Equally, if the evidence is weak a defendant will be able to test it and a fairer trial will result. That does not need to result in hours of intercept evidence being gone through to no effect, but it should allow the defence to identify the source of evidence being used and any issues necessary to enable a jury to assess it in its proper context.
The use of intercept evidence should also end the argument about the need for greater pre-charge detention periods in terrorist matters. The primary reason advanced for requiring the 42-day period is the need to gather evidence. With the admission of covert evidence, that argument falls away and with it any real case for extended detention.
The terrorist threat is uncomfortably real and it is therefore surprising that those fighting it do not have access in court to evidence with which to fight it. We now have the opportunity to develop a system to enable the use of covert evidence in a balanced way that will lead to fairer trials. That opportunity should not be wasted by allowing the security services to have the final say in what the courts can consider.
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