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UK: Statement by the Home Secretary on the "interception of communications" (26 January 2005)

Interception of Communications

The Secretary of State for the Home Department (Mr. Charles Clarke): I am announcing today the Government's conclusions on the review on the evidential use of intercept material in criminal proceedings. This accompanies the announcement I intend making on counter-terrorism legislation following the House of Lord's ruling on the use of Anti-terrorism, Crime and Security Act 2001, Part 4 powers.

My right hon. Friend the Prime Minister commissioned the review in July 2003. Its remit was to examine the benefits and risks of using intercept as evidence to secure more convictions of organised criminals and terrorists. In doing so, the review was tasked with considering how a legal model, providing for the use of interception for evidential purposes, could be deployed in a way which is compatible with the ECHR, addresses the practical concerns of the intercepting agencies and takes account of developments in communications technology.

The review, which was the most thorough and far-reaching of five reviews on the subject in the last 10 years, reported last summer. It concluded that evidential use of intercept would be likely to help secure a modest increase in convictions of some serious criminals but not terrorists. The preferred legal model for evidential use of intercept would comprise three types of interception warrant—intelligence only, non-evidential and evidential, the latter requiring authorisation by a judge. Intelligence only and non-evidential warrants would continue to be authorised by the Secretary of State and would provide criteria-based protections against disclosure in court of the most sensitive interception capabilities and techniques. Set against the benefits that this approach might deliver, the review identified a number of serious risks that evidential use of intercept would entail for the intercepting agencies and their present capabilities in fighting serious crime and terrorism.

The review did not make agreed recommendations for or against lifting the prohibition on evidential use of intercept but invited Ministers to consider, in the light of the evidence presented on the balance of benefits and risks, whether or not to do so. Further work on what might be done to mitigate the risks identified in the review report was completed shortly before Christmas. This showed that there was no immediate prospect of

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removing the main risks, partly because of the difficulty of assessing the impact of major changes expected in communications technologies over the next few years.

The Government have from the outset made it clear that we would change the law on evidential use of intercept only if we could be satisfied that the benefits of doing so clearly outweigh the risks. We have therefore concluded that it would not be right to legislate now to remove the existing prohibition. We will continue to keep these issues under review.

The review report is a classified document which cannot be published in the ordinary way. It will however be made available to the Intelligence and Security Committee to which I will give further evidence if requested to do so. A summary of the report's main findings is set out below:

- there is no easy or risk free way of keeping what our "intelligence only" approach—with its uniquely close working relationships between law enforcement and intelligence agencies—delivers now and adding to this the benefits that evidential use of intercept could deliver. Evidential regimes in other countries provide useful pointers on the latter but are of little help on the first point;

- the ideal of allowing intercepting agencies unfettered freedom to choose when to go evidential is not an option as it would be open to "cherry picking" and therefore fails to meet the requirements of ensuring fairness in criminal proceedings;

- evidential use of intercept would be likely to help convict some serious criminals;

- intercept evidence would be unlikely to assist in prosecuting terrorist targets and would not have made a critical difference in supporting criminal prosecution of those detained under ATCSA (Part 4) powers;

- a legal model providing for three types of interception warrant—intelligence only, non-evidential, and evidential—appears to offer the best basis for evidential use of intercept. Substantial further work would be needed on the details of the legal model before it could be introduced. Major changes expected in communications technologies over the next few years mean that the model potentially has only a very short shelf-life.

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