Juries 'should hear phone taps' to nail crime gangs
Owen Lewis
Owen Lewis" <oml at sysrx.uk.com
Mon, 9 Sep 2002 12:55:19 +0100
----- Original Message -----
From: Peter Sommer <hcorn@cix.co.uk>
To: <ukcrypto@chiark.greenend.org.uk>
Sent: 08 September 2002 14:03
Subject: Re: Juries 'should hear phone taps' to nail crime gangs
> At 12:30 08/09/2002 +0100, Richard Clayton wrote:
> >There's a long
> >discussion of this in the 1999 consultation paper on amending IOCA
>
> reproduced below - even now there's no single "police" view
I get involved in matters of this type from time to time. To try and
summarise the position as I believe it to be and offer a short view thereon:
1. The police and C&E especially appear to be using more and increasingly
sophisticated methods of electronic eavesdropping.
2. It was declared a while back that the security services were being
re-roled to include operations against organised crime and industrial
espionage when in the national interest.
3. It is axiomatic that many forms of electronic eavesdropping are easly
rendered nugatory if the method of their execution is understood. It is
entirely reasonable that the technology used should not be:
- Publically explained so that the technique can subsequently be
used for criminal purposes.
- Explained so that serious criminals can adequately protect
themselves against it.
4. From the many recordings obtained in what may have been a protracted
operation:
- The prosecution will select those recordings that they feel
sufficiently prove their case. Copies of these recordings are supplied to
the defence.
- The defence should also be supplied with a complete list of the
recordings made and they may apply to review this unused material.
- On listening to the copy recordings provided, the method by
which some or all were made may be incomprehensible to the defence team. The
recordings may also contain anomalies that make the defence suspicious that
the recordings may not be true.
- It is open to the defence to employ an expert to examine the
recordings and to apply to the trial judge that the originals rather than
copies be made available for expert examination. Usually, but not perhaps
always, the trial judge will so order, whether or not a PIC is in place
regarding the methos of eavesdropping.
5. The defence may also apply to the judge to order that the
eavsdropping equipment be made available for examination. Such applications
are often refused or even if granted are only partially complied with. This
is not quite as serious as it sounds since the 'expert' should be assumed to
be just that and has a wealth of background knowledge and experience he can
bring to bear in developing his views of the recordings.
6. In my view, the proper interest of a defence can be served as follows:
- Expert examinaton of all the *original* recordings upon
which the prosecution will rely.
- Expert examination of at least a selected sample of the
original recordings on which the prosecution has decided not to rely.
- If there are anomalies unexplained by such expert
examination, then expert access to at least some of the recording system
may be warranted, though the judge may, having heard privately expert
evidence for the prosecution decide not to grant such access.Where such
acess is applied for, it is relatively unusual for access to the 'sharp end'
of the system to be required. Anomalies arise more frequently from methods
of recording and the laying down of different signals into a single medium
than by the exact method of signal acquisition.
- The expert owes a (moral and presently unenforceable) duty
not make public technical or operational information that would be be useful
for criminal purposes, provided only that he exercises his skill and
knowledge to the full in the interest of a full and true report according to
his terms of instruction and the need of the court to hear the truth. I
believe this to be a less difficult duty to discharge in practice than might
be assumed.
7. In such experience of these matters as I have had, defence suspicions are
often raised by the carelessness with which defence copies are prepared
and, sometimes, carelessness in the preparation of the original recordings
themselves. It is not possible alway to distinguish with certainty
difference between accidental/careless and deliberate acts. The touchstone
needs to be, is the result of any such act prejudicial to the defence case?
That question is one for the court to decide on and not for the expert but
it is for the expert to point out the act(s) and, where true, that the
probable cause could be distinguished.
8. I think a testing of the chain of evidence from the collection of a
signal to the production of a recording of it in court is of greater
importance than it is sometimes accorded. The chain is sometimes often
insufficient to provise assurance that undetectable alteration or faking of
recordings has not occurred. In my view, if electronic eavesdropping is to
be used in evidence, the standards required for the making, processing and
custody of such evidence - which is easily altered or faked- need to be of a
far higher standard than is the case where such eavesdropping occurs for the
purposes of intelligence gathering only. As far as I know, the Crown has
not yet lost a case because of a lack of due care in the processing and
presentation in court of covert recordings. However, cases that might have
been 'open and shut' have made problematic and it may well be that some
major cases have not been put before a jury at all because, wholly or in
part, of flaws in making and/or processing of recordings.
Owen
>
> CHAPTER 8 USE OF INTERCEPT MATERIAL IN EVIDENCE
> 8.1 Section 9 of the Interception of Communications Act 1985 has the
effect
> of prohibiting the evidential use of intercept material gathered under a
> warrant issued under the Act. The value of this provision has been the
> subject of much debate over the years, with opinions sharply divided. More
> recently, the use of foreign intercept material in UK trials has
> highlighted the difference between our practice and that of Europe.
> 8.2 There are strong arguments both for the repeal and retention of this
> particular part of IOCA. Those seeking repeal believe use of this material
> is one of the few ways of gathering evidence against those who plan crimes
> but engage others to carry them out. The Inquiry into Legislation Against
> Terrorism, undertaken by Lord Lloyd 24 addressed the law on interception
> evidence, recommending that "section 9 of IOCA be amended so as to allow
> the prosecution to adduce intercept material in cases affecting national
> security....".
> 8.3 The main counter-argument, for retention of the prohibition on
> evidential use, is that exposure of interception capabilities will educate
> criminals and terrorists who will then use greater counter interception
> measures than they presently do. This would mean that any advantage gained
> by repeal would be short lived and would make interception operations more
> difficult in the longer term.
> 8.4 In addressing this part of IOCA, the Government will have to bear in
> mind the requirement of Article 6 of the European Convention on Human
> Rights, which guarantees the right to a fair trial. Implicit in this
> guarantee is the principle that there must be "equality of arms" between
> the prosecution and the defence in criminal proceedings. Any rule of
> evidence or procedure which favours one party over the other may conflict
> with this principle.
> 8.5 The question of whether section 9 of IOCA undermines the principle of
> "equality of arms" and introduces an unfairness into proceedings where
> interception played a part in the investigation was addressed by the
> European Commission in the case of P reston v UK25. The applicants
claimed,
> amongst other things, that their trial 26 was unfair because knowledge of
> material gathered through interception of communications gave the
> prosecution an advantage in preparing their case. They also claimed that
> the use in evidence of data relating to communications, while interception
> material was excluded, amounted to an inequality of arms. The Commission
> did not agree, noting that section 9 prevented either party adducing
> evidence which could tend to suggest that interception had taken place.
The
> Commission did not consider that the applicants had shown how access to
> interception material by the police had any effect on subsequent
> proceedings, or in what respect that material was used to the applicants'
> detriment in preparing the prosecution case, other than to provide the
> prosecuting authorities with a starting point from which to gather
> admissible evidence against the applicants. The Commission, by a majority,
> declared the application inadmissible. 23 24Cm 3420, published October
> 1996. 25Application number 24193/94 (2 July 1997). 26House of Lords 4 All
> ER 640 (1993).
>
> 8.6 In many other European states, intercept evidence is used in criminal
> cases and, so far as Article 6 is concerned, this practice has been
> approved by the European Court. See, for example, Valenzuela Contreras v
> Spain (30 July 1998) and Lamber t v France (24 August 1998).
> 8.7 However, in those States interception is generally ordered by an
> investigating judge. The United Kingdom is in a different position, since
> criminal investigations are not supervised by judges but by the law
> enforcement agency. For that reason, the principle of equality of arms as
> between prosecution and defence will be particularly relevant in devising
> any system which allows the use of intercept material in evidence.
> Furthermore, any arrangements which make intercept material available to
> one or both parties would have to be both practical and affordable.
> 8.8 To date, no satisfactory arrangements have been found. Nevertheless,
> the Government continues to work on the question, and would welcome the
> views of others.
> The Government welcomes suggestions for a regime which would enable
> intercept material to be used in evidence and to make appropriate
> disclosures to the defence, bearing in mind the effects upon sensitive
> information, resources and the efficient operation of the criminal justice
> system. 24
>
>
>
> Peter Sommer
> hcorn@cix.co.uk; P.M.Sommer@lse.ac.uk
> Academic URL: http://csrc.lse.ac.uk//Sommer.htm
> Commercial URL: http://www.pmsommer.com
>
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