Worrying legal changes accompany new "British FBI"
01 March 2004
On 29 March, the Home Secretary, David Blunkett, published a White Paper entitled One Step Ahead: A 21st Century Strategy to Defeat Organised Criminals. In it he outlines government plans to bring together the National Criminal Intelligence Service, the National Crime Squad and the investigative arms of the immigration service and customs and excise under a new 5,000 strong Serious Organised Crime Agency (SOCA). Already dubbed the "British FBI", SOCA represents the largest reform to British policing since the re-drawing of force boundaries 40 years ago. It is designed to tackle organised criminal networks in the areas of drug trafficking, people smuggling and fraud.
The creation of SOCA seems to have been well received within the policing community, but accompanying new legal powers outlined in the White Paper have caused widespread concern. Perhaps the most obvious is the plan to compel professionals such as lawyers and accountants to cooperate with police enquiries and testify if necessary, even if it were to mean the breaking of traditional boundaries of client confidentiality. Attempts will also be made to utilise plea-bargaining (in order to speed up the trial process) and "Queen's Evidence" whereby "grasses" will be offered reduced sentences or even immunity for informing on their bosses. Previous experiments with this system proved to be absolutely disastrous. Throughout the 1960s and 1970s British police employed a notoriously corrupt system exemplified by police dealings with Soho informants. Even worse was to follow in Northern Ireland. There, between 1983 and 1985, 65 of 200 defendants were successfully prosecuted on the basis of uncorroborated "paid perjurer" testimony. All but one of which had their convictions overturned at the cost of millions of pounds of compensation to the taxpayer. How the government will ensure the credibility and accountability of sources under this system is unclear.
Another proposed change to the law is to make intercept material, such as phone calls, e-mails, and other forms of electronic data, admissible in organised crime trials. A Home Office review, commissioned by the Prime Minister, is expected to conclude in June, but Blunkett claims now to be "much more convinced that, in a limited range of cases, intercept evidence would make sense." It has been widely reported in the media that he has faced opposition to this from within the British intelligence community; members of which are reluctant to reveal to criminals their sophisticated surveillance techniques. Talking in February about the use of intelligence information in terrorism trials he claimed
It needs to be presented in a way that does not allow disclosure by any of the parties involved, which would destroy your security services. It is about the threshold of evidence and the nature of those involved being accredited and trusted not to reveal sources (see Statewatch vol 14 No 1)
Hope voiced, among some defence lawyers, for greater legal clarity could well prove somewhat misplaced. It seems far more likely that if sensitive intercept material were to be made admissible it would be accompanied by a system of vetted judges and lawyers. It is also likely, as in terrorism cases, that defendants would not be privy to the details of intelligence based prosecution evidence.
Indeed, indications are that the government views organised crime and terrorism trials in very much the same light (when introducing the bill to the House of Commons, the Home Secretary emphasised the former's financing of the latter). In February, to immense media criticism, Blunkett announced his intention to reduce the burden of proof in terrorism cases from "beyond reasonable doubt" to "the balance of probabilities". A week later, the Prime Minister, Tony Blair, suggested that the standard of proof in organised crime trials may be lowered to help secure a higher rate of convictions. "To require everything beyond reasonable doubt i