Interception
Interception as evidence review
A review examining the benefits and risks of using intercept as evidence to secure more convictions of organised criminals and terrorists was ordered by the Prime Minister in 2003.
Following the review’s completion, the Government concluded that it was not the right time to change the law and that the impact of new technology needed to be properly considered and factored into the decision-making process.
Why not change the law on interception?
Interception is an important tool in the UK’s fight against terrorism and organised crime and the Government was not convinced that the benefits of changing the law on interception outweighed the risks of doing so.
A modest increase in convictions might be achieved. However it is unlikely that the most serious criminals and terrorists would be convicted as they are careful not to incriminate themselves in the way they communicate.
There is also a real risk that if the sensitive capabilities and techniques used to gather the information are revealed:
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criminals will be able to avoid interception by changing how they communicate
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we would lose the close intelligence co-operation between agencies that has delivered impressive results in the UK
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this would undermine UK agencies’ ability to fight crime as effectively as they might
Our current approach and methods
In addition to facilitating arrests and seizures, the UK’s existing intelligence-only approach has helped to prevent and, or disrupt terrorism and serious crime for many years, although our successes are rarely publicised. It is tempting to say how we have been successful but releasing details would threaten our ability to go on being successful in the future.
In the UK intelligence and law enforcement agencies work closely together and this co-operation is vital to maintain the effectiveness of operations against terrorism and serious crime. The Home Office is currently seeking to develop a legal model for evidential interception that would protect sensitive working methods, capabilities and techniques that underpin effective co-operation.
A number of different models have been examined but we have not found a form of protection that is compatible with our obligations under the European Convention on Human Rights, or that would not detract from agencies’ ability to work effectively against terrorism and organised crime.
Other countries use intercept evidence, so why not the UK?
There is no proof that other countries get better results by using intercept as evidence.
No country uses both intercept as evidence and close intelligence law enforcement agency co-operation.
The UK has a unique combination of:
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an adversarial judicial system
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common law precedent
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European Convention on Human Rights responsibilities
It is unlikely that arrangements that work well overseas could simply be translated here with the same results.
What impact will new technology have?
The world of communications is undergoing a computer revolution that is set to transform current systems. For example terms such as ‘wiretap evidence’ will soon be redundant and replaced by technologies such as Voice over Internet Protocol (VoIP).
It does not make sense to change our intercept regime before we know what these changes mean for the way interception is carried out. The changeover to computer technology and the effects this will have on interception is not confined to the UK; it is something every country that uses interception will need to address.
It might be possible in the future to create a legal framework that has all the checks and balances needed to ensure that material that is intercepted can be put forward as evidence in a way that is not going to damage our crime fighting capabilities and satisfy all our legal obligations. But not yet.
