Juries 'should hear phone taps' to nail crime gangs

[Richard D G Cox]

On Thu, 12 Sep 2002 @09:58, Charles Lindsey <chl@clw.cs.man.ac.uk> wrote:

> We all know how it was done. They walked into the telephone exchange
> / telehouse / sorting office, waved their warrant, and attached their
> crock clips / monitored the traffic through the routers / looked into the
> POP mailboxes / opened the envelopes, and all with the active assistance
> of the technical staff at those locations.  It is no secret that, given
> that sort of access (and the Official Secrets Act to keep the facts
> concealed) you can do *anything*, and in a nice comfortable environment
> with cups of coffee brought round too.

Even if your "We" refers to the limited readership in here, I seriously
question whether "We all know how it was done" can be true.  Some, on the
other hand, might think they know, but might equally be very wrong!

The last place anyone would go to put an (authorised) tap on a telephone
line, would be the local telephone exchange ... very soon I suspect that
similar protocols will exist to allow similar remote access to IP traffic,
which will be essential if traffic that is currently circuit-switched is
expected to migrate across to IP.

> So what is there to hide, beyond the fact that a warrant had been
> issued and acted upon?

There is - at least in the UK - a key requirement for evidence to be
identified by those producing it, who will also be expected to state
where and how it was obtained - the "provenance" of the evidence.  Often
this can be done by means of a written statement, formally tendered by
the prosecutor and often accepted by the defence.  But if evidence is to
be relied on by the prosecution, the defence have the right to challenge
the author of such a statement by cross-examination in the witness-box.

That, in theory, should ensure that a recording put in evidence really was
made at from the BT bugging centre from the specified line and sent direct
(maintaining full continuity) rather than diverted via a tape editing room
somewhere in Special Branch.  Any limitations on the scope of the defence's
supplementary questioning would quite reasonably fall foul of the "Equality
of Arms" provisions in the HRA ... but even (staying with the phone-tapping
example) asking a witness from which line the particular recording was made,
or when tapping of a particular line started, would be expected to cause
considerable political embarrassment to the various Agencies.

It's bad enough having to remind the public of the depth of involvement of
BT in phone tapping cases (as will apply to the ISPs, too, as soon as it's
their turn to be sent to the "front line" ...) but having to identify the
actual processes used - were not so many people suffering from post 9/11
paranoia - may well cause a very negative public outcry or even Questions
In The House!

The fact that evidence for the prosecution is not always obtained with
clean hands, was highlighted by two recent cases in which I advised the
defence.  In one, a set of recordings was produced with claims that they
were obtained by connecting equipment to private switchboard extensions
(which, as the evidence gathering was pre-RIPA, would have been legal)
but basic "mistakes" in the statements of those allegedly producing that
evidence left me in little doubt that the recordings had been made using
rather different techniques ... that "little doubt" was soon extinguished
when a request for technical examination of the equipment allegedly used
to connect to the switchboard resulted in an application for a PII order!

In the other case, a set of records showing calls made from switchboard
extensions at a BT site were challenged, quite reasonably, on the basis
that no evidence had been tendered to associate specific telephones with
the extension numbers in the call log at the time that the (significant)
calls were made: normally this would be countered by producing the PBX's
administrative change-log (that particular type of PABX keeps such a log
as standard): but in this specific case that log had, most surprisingly,
been destroyed just after it was known that the case was to come to trial.

If, then, juries should hear the products of phone taps, there may be a
lot more that in the interests of justice, they will need to both hear,
and have explained to them, first.

-- 
Richard Cox