Jack Straw' View

[Charles Lindsey]

	On Mon, 03 Jul 2000 18:40:44 +0100
	Donald Ramsbottom <donald@ramsbottom.co.uk> said...


> Sorry Guys, I have not been keeping up with this thread, (bloody real world
> keeps intruding), what was the question in a nutshell and I will see whether
> I can help. Sorry to be a pain.

Essentially, please look at the following piece of Hansard, and tell
ukcrypto what it is all about.




Lord Bassam of Brighton moved Amendment No. 215: 


      Page 78, line 47, at end insert-- 


("(4A) For the purposes of this Act detecting crime shall be taken to include-- 
   (a) establishing by whom, for what purpose, by what means and
   generally in what circumstances any crime was committed; and 
   (b) the apprehension of the person by whom any crime was committed; 
and any reference in this Act to preventing or detecting serious crime
shall be construed accordingly, except that, in Chapter I of Part I, it
shall not include a reference to gathering evidence for use in any legal
proceedings.").

The noble Lord said: Each of the six investigatory powers in this Bill can
be used for specific purposes enshrined in the Bill. All include the
purpose, 


      "for the prevention and detection of crime". 

In some cases that is further qualified by the stipulation that the purpose
can only be used for serious crime. Precisely what is covered by the term
"detection" of crime has never been defined in statute. Operationally, it
has generally been taken to mean that powers can be used up to the point
of charge. And this interpretation is currently the one adopted, for
example, by the surveillance commissioners when giving prior approval to
applications for intrusive surveillance made under the Police Act 1997. 

However, in the case of Preston in 1994, the House of Lords considered
whether there was a prohibition on the use of intercept material in
evidence. That was Section 9 of the Interception of Communications Act. 

28 Jun 2000 : Column 1054

We had a stimulating debate on those provisions--now included in Clauses
16 and 17 of this Bill--last week. In the case of Preston the Judicial
Committee reflected on the fact that interception has never been intended
to play a part in the prosecution process. The noble and learned Lord,
Lord Mustill, when delivering the leading judgment, rejected the view that
the prevention and detection of serious crime went beyond, 

   "the forestalling of future crimes and the discovery that crimes had
   been committed in the past, and by whom and in what manner". 

He particularly rejected the view that the detection of crime extended to
the, 


      "amassing of evidence ... with a view to the prosecution of offenders". 

This was not a surprising assessment. 

In the case of Morgans on 17th February of this year, the noble and
learned Lord, Lord Mackay, summarised the case law. In respect of the
Interception of Communications Act, he clearly stated that the effect of
Preston was that, 


      "the purposes of preventing or detecting serious crime did not
      include the purpose of gathering evidence of criminal proceedings
      in respect of such crime".

That case provides us with a difficulty in respect of this Bill. A narrow
definition of "detection" is satisfactory in the case of interception, though
we have tried to ensure even here that the law is as clear as possible. But
the same formulation of "prevention and detection" exists in each of the
five other powers of the Bill where we most certainly do want the phase to
have a wider meaning and to include gathering evidence. Therefore, we
believe that we must say what we intend the phrase to mean in each of
the places where we use it. That is the purpose of these amendments. 

We have deliberated long and hard over this matter. The result of our
deliberations are now tabled before the Committee as Amendments Nos.
215, 222A, 224A and 226. Noble Lords will see from Amendment No. 215
that, across the generality of the Bill, we clarify that detection of crime
includes, 


      "establishing by whom, for what purpose, by what means and
      generally in what circumstances any crime is committed; and the
      apprehension of the person by whom any crime was committed".

I believe that this clarification should be welcomed. It means that it is
possible to use the powers in Chapter II of Part I and in Parts II and III of
the Bill for the purpose spelled out in Amendment No. 215. 

I believe that I have dealt with the uncertain areas and the inconsistencies
in the expression of "detecting crime" across a number of existing statutes.
We have tabled amendments to clarify the meaning in respect of this Bill
and related legislation. I beg to move. 

On Question, amendment agreed to. 



Charles H. Lindsey ---------At Home, doing my own thing------------------------
Email:     chl@clw.cs.man.ac.uk  Web:   http://www.cs.man.ac.uk/~chl
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