UK mulls admitting wiretap evidence in court
The secret's out
The UK government is looking to make wiretap evidence admissible in court as part of its latest review of anti-terrorism legislation.
The UK courts currently do not allow it, though the practice is commonly accepted in most Western countries.
As part of plans to review anti-terrorism legislation, outgoing Home Secretary John Reid announced a review "into the potential ramifications of allowing intercept to be used in terrorism court cases".
The government is also pushing for police to be given the power for longer pre-charge detention, beyond the current 28 day limit. Government plans to push this limit to three months - a move critics describe as equivalent to internment - previously floundered and are highly controversial.
The latest anti-terrorism review will also consider giving police enhanced powers to "stop and question" suspects, and courts the ability to allow the support of terrorism to be considered as an aggravating factor when imposing sentences for general offences, such as credit card fraud.
Reid announced the consultation in Parliament on Thursday. The government intends to allow Parliament greater time to debate the proposed changes in legislation, a decision that reflects the enhanced status for parliamentary deliberations favoured by Prime Minister-elect Gordon Brown, as well as previous failures to fast-track longer detention of terror suspects past MPs and peers.
Lawful interception firm SS8 Networks welcomed the consultation. MI5 has been reluctant to allow wiretap evidence to be admitted in court fearing it would expose interception techniques. SS8 said concerns that the move might compromise the effectiveness of police and security services operations are misplaced.
"The use of wiretapping information as evidence in US court systems has been going on for decades and has not jeopardised the techniques and usefulness of this information," said Stephen Gleave, marketing VP at SS8 Networks. "Wiretapping and the use of wiretaps is a technique familiar to almost every adult on the planet. How it is done is fairly common knowledge or can be readily obtained and has not proven to reduce its effectiveness.
"Since the introduction of wiretapping legislation and the standards that support it, law enforcement agencies – with the proper legal authorisation and the cooperation of service providers - can now execute wiretaps using standards-based, off the shelf solutions. These solutions leverage wiretapping capabilities that are now commonly built into most telecommunications and data communications equipment to facilitate lawful intercept – itself typically a condition of license for service providers."
SS8 added that, contrary to movie myths, the call data information (who called who, when did they talk, where were they, how long did they talk etc.) is often much more useful in the investigation of crimes than the actual content of conversations. In the US, the vast majority of real-time intercepts are for call data only (130,000 per year) while intercepts that include voice number less than 3,000, it added.
Gleave said: "Even if law enforcement is concerned with the sensitive nature of lawful intercept technology and revealing their methods, the most basic of information, readily available off just about any switching equipment, proves to be by far the most relevant and useful." ®
... why would they need to? The security service only has to ask a minister for authority and they get it, and then the intercept is legal.
The problem is that if intercept evidence is admissible, the defence can demand to see it whether or not the prosecution want to use it. Even if there are public policy reasons not to admit it, the defence will be aware that the evidence exists, and can use the fact that it is not admitted to persuade a jury that it shows the defendants are innocent, regardless of whether it actually does.
As to whether the methods and equipment used in the UK are already in the public domain, how would we know? The whole point is that at the moment that information is not released, so they could have publically unknown methods, or just not want the public to know which particular methods they do use.
Holding in custody for over 28 days is a power that the police claim they need, but on their own admission, they have never encountered an instance in a terrorist case where they would have needed to use it.
What I find even worse though, is the suggestion that questionning of suspects generally will be allowed after charge. It doesn't take much imagination to work out how the police will use that power. Without enough evidence to charge a suspect, they know they will have to persuade a court that they can hold on to him any longer unless he's charged. Charge him anyway, and keep putting the pressure on him afterwards, when there is no limit on how long he can be held and worked over, and the court will not be overseeing it.
Will it mean 'The Bill' will become more like 'The Wire'?
I have to wonder if the reason MI5 are worried about allowing wiretap evidence is that they'd have to admit they're already tapping lots of phones illegally!