Jack Straw' View

[Donald Ramsbottom]

At 19:55 03/07/00 +0100, you wrote:
>	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-- 
>
>
Snips

Well I've read the passage and printed it out and read it twice more.
Firstly I note even though Lord BB notices there is is a discrepancy between
"crime" and "serious crime" he fails to address it in the amendment or in
the speech.

It appears to me that the HO have realised that the case Law in this area is
stacked against them. They want the widest posible flexibility from the new
powers, but know that the stumbling point may well be the judiciary.
Preston was a HL case and as such is binding on lower courts and can only be
oveturned by Act of Parliament (though it can be "distinguished" by lower
courts and itself).

Courts as we know can look at the intention of Parliament when the wording
of the statute is unclear. I think that this is a belt and braces job so
that should the matter appear before the HL in their judicial role, both
Preston and Morgan can be side stepped.

To what end you ask. Well it seems clear to me that "they" are intending,
when "they" want to, to surveille who they want when they want and use that
sigint, if necessary at trial despite the apparent disclaimers about
surveillance material not being produced in legal proceedings (remember S9
IOCA is repealed, and there will be no direct case on this because of that,
effectively side stepping Preston and Morgan as "old bad law"). This is all
advanced damage limitation or covering all the bases which ever you prefer.

It does seem clear, (well eventually on 5th reading), that surveillance,
interception, and sigint WILL be admissable as evidence. The noble Lord BB,
has gone a somewhat convoluted way about it, but sections from Hansard below
seem to allude to that (my emphasis)

"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
ph(r)ase 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. 


and

"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."

the relevant part of  215 quoted is:

"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".

This would seem to cover those areas previously excluded by the HL in the
cases quoted, and would cover "amassing of evidence", which is after all the
raison d'etre of the Bill.

Note the use of the word "any" crime and not "serious" crime.

Remember chapter II of part I are SS 20-24 and that part II & III are SS
25-52, in other words the bulk of the Act. There is no reason to single out
SS 20-24, which is the comms data bit, unless they want to use that comms
data in evidence. The word evidence has been used by Lord BB, not sigint or
any of the other euphemisms. Evidence, is only needed at trial (I am not
sure of the current status of "comms data", I know it was going to be looked
at but last I recall we had all effectively decided that it was the full
clickstream). S16 is by no means a s clear as it may first appear.

Well that's my ha'penny's worth, for what its worth.







Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists
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