Not Saussure

June 4, 2007

Brown, intercept evidence and disclosure

Filed under: civil liberties, Law, War on Terror — notsaussure @ 7:07 pm

Craig Murray, our sometime man in Tashkent, sounds a note of warning about Gordon Brown’s proposal to allow intercept or wire-tap evidence in terrorism cases.

He writes,

The concern [in the Home Office] is that intercept evidence might be more helpful to the defence than the prosecution. Where communication intercepts are used, as in the USA, the laws of evidence are that the prosecution must make complete disclosure of all the wiretaps made. The defence can then search this for evidence that points to innocence.Compare this to the situation that operates with control orders, or indefinite house arrest without trial. Here the prosecution just feeds to the judge (no jury) an isolated snippet of information from “intelligence”, reflecting not a whole picture but just the security services’ interpretation. Judges tend to be impressed by this “Top Secret” stuff.

To let the defence at raw intercepts threatens the intelligence services’ greatest lever of power – their monopoly of interpretation of raw data. Even Ministers, or Ambassadors as I was, don’t get the raw data, but a “Report” summarising, interpreting and selectively quoting.

In criminal cases in general, there are pretty complicated rules on ‘disclosure’ that are supposed to make sure the defence gets to see anything that may be relevant to the case, and in particular anything that may strengthen the defence or weaken the prosecution. And, most of the time, the defence can ask to see — and often insist on seeing — anything that’s been turned up during the investigation even if the prosecution don’t think it’s in any way relevant.

Now, according to Craig Murray, he’s been told by a friend of his who’s still in the senior civil service that

the proposal being considered by the Home Office is this – that the defence should not be allowed access to all the material from wiretaps of the accused. The prosecution would have to disclose in full only the conversation, or conversations, being directly quoted from. The security services are prepared to go along with that, and the Home Office believe that the public demand for wiretap evidence to be admissible will drown out any protests from lawyers. We will be told the Security Services are not staffed to cope with fuller disclosure.You read it here first. As my friend put it: “You see, in the minds of the Home Office, justice equals more convictions.

If this turns out to be the case, then it’s really rather sinister; it’s the equivalent to the defence only getting to see those witness statements that support the prosecution or, indeed, not getting to see the complainant’s past history of making false allegations. A good recipe, in other words, for miscarriages of justice.

Murray also raises the possibility that, slightly further down the line, doubts will be raised about the propriety of letting juries see some intercept evidence because of its security classification and that, a year or so from now, we’ll be seeing a move to introduce Diplock Courts in terrorism cases.

I don’t know about this, but it’ll certainly bear watching carefully when the detailed proposals are finally announced.


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