The revelations provided by Sir Swinton Thomas, in the latest report (PDF) from the Interceptions of Communications Commissioner are little short of extraordinary. Last year, various state organisations made a stunning 439,000 requests to monitor in some way the activities of citizens of the realm. It's true that some of these are simple requests for phone numbers or e-mail addresses, but even so, this seems to suggest that there is snooping being carried out on a grand scale. Of these 439,000, at least 4,000 mistakes were made, with 66 involving information being wrongly intercepted from those who had nothing to do with whatever investigations were being pursued. Thomas calls these mistakes unacceptable, but due to the level of secrecy involved, those who were wrongly tapped or otherwise are unlikely to find out about the breach of their privacy.
The next target for the Communications Commissioner is the ban on the wire-tapping or spying on members of parliament and the lords. While Thomas has a reasonable case in suggesting that no one should be above the law in this regard, the introduction of the "Wilson doctrine" was because of the unaccountability of the security services, not to mention the motives of those behind the decision to spy on MPs. We're still unclear on just how far, if at all, an MI5 plot went to undermine Harold Wilson. It's quite true that we've moved on from the 70s, MI5 has to an extent been reformed, but as the rendition scandal has made clear, we're still in the dark over how far the security services go, and they're still completely opposed to having any formal watchdog imposed upon them.
This is what has to be kept in mind when considering whether MPs should be "above the law". While Thomas makes clear that he doesn't believe that any MPs are involved in terrorism or serious crime, we also don't know how far in cahoots the government itself is with the security services. Those with the most to fear are those of the more radical bent who manage to make it to parliament: it doesn't take much imagination to know that Sinn Fein MPs, if they took their seats, would probably be the most likely to be under suspicion, even now. If any BNP members were, god forbid, elected, they would also be likely targets. George Galloway could be another possible MP to be bugged, although seeing as he spends little time actually in the house, it might not provide much decent information on what he/Respect are up to. This is without considering whether the government itself could use such taps to spy on the opposition's plans. This might seem laughable now, even under a New Labour government that thinks nothing of stripping civil liberties to the bone, but it's still not conspiratorial to worry than an even worse government may one day be elected.
We therefore have to take a lot on trust if we're going to accept that our representatives should be allowed to be bugged. The Sun, being the Sun, has paedos on the brain and seems to think that the whole matter is about MPs not wanting their computers to be scanned for illegal material:
MPs love laying down the law — as long as they are not on the receiving end.
They fix their own pensions, perks and salaries. They set rules on freedom of information but insist on being exempt.
Now they want immunity from computer checks against paedophiles.
Have they got something to hide?
I don't know Rebekah, but I do know that you're far more obsessed with paedophiles than with anything else. Have you got something to hide?
It's quite true that MPs are just as human as the rest of us, probably even less so, but if this is to be implemented then at the very least the evidence that makes the case for a MP to be tapped should have to be presented to a judge, who could then authorise the operation. The current authorisation has to be given only by a secretary of state. There are so many potential ways that such tapping could be abused, that without a similar process being put in place Thomas's recommendation should be rejected.
Finally, Thomas takes aim at those who have been arguing for years now that intercept evidence should be made admissible in UK courts. His arguments are far from convincing:
If terrorists and criminals, most particularly those high up in the chain of command, know that interception would be used in evidence against them, they will do everything possible to stop providing the material which is so very valuable as intelligence. It is sometimes said: “but surely they know now that their communications will be intercepted?” They may suspect that their communications may be intercepted, but they do not know that they will be. This uncertainty is invaluable and they continue to provide immensely valuable intelligence material which would be lost if they ceased to communicate as they do now. Like everybody else they have to communicate to forward their enterprises, and there is a real danger that they will find means of doing so which are much more difficult or impossible to decipher if they know that the material would be used in evidence, so that valuable intelligence material leading to successful investigation and eventual prosecution will be lost.
This is pitiful on a number of levels. Firstly, it assumes that terrorists don't know that their messages are being intercepted, when those who are committed to the cause would know only too well to expect that their communications are. Secondly, the whole point of having the security services is so they monitor "subversives" and partly keep up with the methods they are using to communicate. This is no more than an handy excuse, which relies on the suspects themselves not changing their methods of communication in the first place.
Successive reviews on this subject over the last decade have been unable to show that the claimed benefits of using intercept product in evidence to secure more prosecutions (or to shorten trials) would be worth the risks that this entails for the operational effectiveness and capabilities of the agencies involved in fighting terrorism and serious crime. The last and most comprehensive review, the conclusions of which were reported in the then Home Secretary’s written Ministerial Statement of 26th January 2005 found that a modest increase in convictions of some serious criminals, but not terrorists, would come with serious risks to the continued effectiveness of the agencies.
The matter here though is that we simply don't know how effective it would be because we haven't tried. It's also worth remembering the judgment last week by Mr Justice Beaton, who made clear that he thought E, a Tunisian wanted in connection with an alleged conspiracy in Belgium, should have been prosecuted on the basis of the evidence in the intercept evidence obtained abroad, rather than put under a control order.
The workload for the intelligence and law enforcement agencies in preserving and presenting intercept product as evidence would be very severe indeed, and very expensive, and would distract them from the work which they should be doing, and also from the work they are actually doing, so greatly reducing as opposed to increasing the value of the intercept. This would be counter-productive. I give one example. In a recent case a Court felt it had to order that 16,000 hours of eavesdropping (not intercept) material must be transcribed at the request of the Defence. I believe that the cost was of the order of £1.9 million. The work and cost in intercept cases would be very great indeed, and quite disproportionate to any perceived advantage. This may explain why some who tend to act on behalf of defendants in terrorist and serious criminal cases appear to be supporting the concept of a change in the law.
This sounds suspiciously like the justification made by the government for not having an independent inquiry into the 7/7 bombings, the specious reasoning being that it would distract or hinder the work being done now. If the problem is a lack of resources, then the resources should be made available. The situation at the moment is that we have men held under control orders which are both illiberal and ineffective, when it's quite possible that they could be prosecuted. The amount of money being spent on keeping them monitored should be compared to the amount spent trying them. Besides, money should not be an issue when we are considering such important rights as both justice and liberty. Additionally, Thomas's remark that this might be the reason why defense lawyers are supporting the introduction of intercept evidence is offensive. Why should they not have the full information available on which to defend their clients? In the cases of those on control orders, the very evidence against their clients is not being presented either to them or those they are representing. They're at a disadvantage when what they are simply trying to do is defend their clients to the best of their ability.
Criminals and terrorists do not speak in a language which is readily comprehensible to juries, even if their native language is English. Many conversations are in foreign languages or slang. In those that are not, they use their own particular language. In every case interpreters and translators would be required. In many languages and dialects there are very few capable of translating and interpreting. I give one example. In an intercept case which I saw recently, the participants were speaking in a tongue which is spoken by significantly less than 1000 people in the world.
In other words, juries are thick. Take that, members of the public performing your duty!
Some of those who favour a change in the law take the view that if the terrorist or criminal makes a clear confession in a telephone conversation, then why should it not be admissible as evidence. That is an understandable point of view and the converse may at first sight seem to be counter-intuitive. However real life is not so simple as that and criminals and terrorists do not behave like that. Apart from the matters that I have already referred to, I know from years of experience, particularly when dealing with foreign languages that interpreters and translators very rarely agree upon the meaning of anything, and there is never any difficulty in finding one interpreter who will disagree with another.
And? Juries should be given the chance to decide for themselves what they believe.
The Communications Service Providers (CSPs) are very important in this process and their staff do essential work. They are very co-operative and dedicated. I talk to them regularly and they are totally opposed to the concept of intercept being admissible in Court. The present regime provides a high degree of protection to the CSPs and particularly to those members of their staff who work in this sensitive field, and their strong co-operation referred to could easily be undermined.
They're very co-operative, except when it comes to their work being made admissible. No one is suggesting making their identities public, or questioning their work. It should be more than possible to make the evidence admissible while keeping both the methods used and those involved in its preparation secret.
The problems with the criminal process. I have made some reference to these, with examples, above. Having looked at this problem with great care, it is abundantly clear to me that it would be exceedingly difficult to prove that a conversation is taking place between A and B. The warrants would have to be proved. How is the material received at source? How is it transferred to the Agencies? How is it transcribed? What does it mean? Lawyers will inevitably challenge every connection and every issue, because that is their job. Admitting intercept evidence would take a very long time, and would greatly increase the length of already over-long trials and the expense involved. These problems are going to increase in the future because of the huge changes taking place in telecommunications technology as CSPs change to internet protocol networks. There is a real danger of criminal trials being aborted. I know that work has been done in an attempt to surmount these problems and the problems relating to European Community and Human Rights law, but I have not seen any system proposed which would successfully overcome these problems.
The problems are very great and should not be understated.
We're going to have to mostly take Thomas at his word here, as I make no claim to know properly how making intercept evidence admissible would affect the length of trials. One thing that is worth mentioning is the evidence presented in the trial of those accused of potentially targeting the Ministry of Sound nightclub, where those involved had their houses bugged. The evidence was reasonably damning, and as far as I'm aware, the defense has made no attempt to question it.
I'm not pretending to know for certain that introducing intercept evidence would do more good than harm, yet the reasons presented so far for not doing so are certainly not a "slam-dunk", to quote George Tenet. Especially considering that foreign agencies have no problems with making intercept evidence admissible, it's worth turning the Sun's question about MPs full-circle and ask what it is that MI5/6 have to hide.
Related post:
Spy Blog - Sir Swinton Thomas on the "Wilson Doctrine"Labels: intercept evidence, Interceptions of Communications report, privacy, Swinton Thomas, Wilson doctrine
