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Brown plans to admit wiretap evidence in court

Let the espionage masterclass commence

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Updated Prime Minister Gordon Brown is expected to announce plans for at least a partial lift of the British ban on use of wiretap evidence in court, according to reports. The conclusions of the government's deliberations following the seven-month Chilcot Review into the policy have leaked to the media ahead of the planned announcement later today.

BBC political reporter Nick Robinson says he has learned that Brown is "minded" to allow use of phone-tap or other electronic intercept evidence in a small number of crucial cases. At present, such evidence is inadmissible in court.

The plans are expected to face strong opposition from the intelligence and security services, as they feel that making intercept evidence admissible will lead to their methods being revealed to the world. Under disclosure rules, it is difficult for British prosecutors and investigating spooks or police to withold any information in their possession which could be relevant to the case.

This is so that defence lawyers can have a chance to argue against it properly, but it has been known in the past for terrorist defendants to use the rules to gain valuable intelligence on the operating methods of the British security forces.

An example of the operational constraints this can impose can be found in the operations of bomb-disposal robots. The van from which the robot is controlled has facilities to record the video pictures sent by the robot, but this is never done (or at least never was when your correspondent was operational). The recordings would often be very useful, but they would also be potential admissible evidence - and a rich mine of intel for bomb-makers. So they don't get made in the first place, and this also saves the huge admin burden of collating and storing the tapes under evidence-handling rules.

Interception of Communications Commissioner Sir Paul Kennedy - who oversees the use of wiretapping by the Secret Intelligence and Security Services, and GCHQ - came out firmly against the plans.

"The targets for criminal investigation do not know what the security services can and cannot do," he told the Beeb. "They have a good idea, but the boundaries are by no means certain... the first prosecuted case will be a master class for those involved in espionage or whatever... They will be watching closely to see how the system works."

All that said, the use of wiretap evidence could obviously have huge benefits too. In many cases the security services consider that a given person is a wrong'un, usually because they have bugged him or intercepted his comms and he has said that he wants to bomb a nightclub or something. But this doesn't let prosecutors build a case because such evidence is inadmissible, which leaves the government in a cleft stick.

They can tie up scarce, expensive spooks and/or secret plods watching him and his associates round the clock forever, but there are only so many surveillance teams available. So the next logical step becomes the use of worrying new powers to detain without charge for long periods, to impose control orders, ultimately perhaps to intern or deport (and then maybe render to somewhere nasty).

So considered against the background of rapidly-eroding civil liberties, some at least might be willing to accept an occasional masterclass in spookery held in the nation's courts. The Tories and Lib Dems, for instance, are broadly of this opinion.

"We have been calling for this for years," said shadow Home Sec David Davis.

"The use of intercept has proved vital to counter-terrorist efforts almost everywhere else in the world."

It's also just possible that the spooks of old Blighty are actually mainly worried about people learning quite how limited their capabilities are, rather than the disclosure of an armoury of impressive unknown tricks. The spies might perhaps be more afraid of embarrassment than operational compromise. ®

Update

As expected, the Prime Minister has announced plans for limited court admission of wiretap evidence to Parliament. However, there will be a complex regime of checks and safeguards.

Speaking to MPs, Brown said that a non-partisan team of privy councillors lead by Sir John Chilcot - who produced the just completed review on which the PM's decision was based - would develop the rules under which intercept evidence could be used. The Chilcot review will provide a starting point.

The plans met with cross-party support and near-universal backing from most interested parties. Civil-rights groups, regular police and prosecutors all responded warmly.

It is understood that the clandestine services - SIS/MI6, SS/MI5 and GCHQ, perhaps to some extent joined by the secret SO15 counterterror police - continue to strongly oppose the moves. They will now be hoping mainly to minimise the administration burden of transcription and recordkeeping which will accompany disclosure of some intercepts in court.

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