The security services have once again triumphed – over Parliament, the legal system, principles of justice, and protection of the public. The report last week confirming that the Government would persist with the prohibition of the use of telephone intercepts in court will allow some criminals to walk free, some innocent defendants to be convicted, and the UK legal system to be denied a right to get at the truth by a convention that exists nowhere else in the world. This is madness. Putting a bug in a mobile phone can produce evidence that can be allowed in an English court, but if the evidence was obtained through an intercept that took place remotely, it can’t be used. This may well mean that evidence which alone could secure convictions for murder, drug dealing or sex offences, or which might give decisive support to the defence case preventing an unjust conviction, cannot be made available. How can such an absurd anomaly persist?

The Establishment rationale for refusing to open up intercept evidence to court scrutiny does not pass muster. The Government report said it would be too difficult. Storing, recording and cataloguing the material to make it available to the defendant would impose huge administrative and financial costs on investigators. This a less than plausible explanation when many complex cases surrently require assessing and storing many hundreds of hours of recorded conversations and video surveillance, as well as tens of thousands of texts and emails. This already happens and the system copes. Moreover, intercept evidence can be used in court by, among many other countries, the US and Australia without any obvious drawbacks. So why not Britain?
The real reason behind this Alice in Wonderland aberration is however nothing to do with problems of storing vast quantities of material in electronic warehouses. It is rather due to the determination of the security services to keep control over intercept material as part of their operational discretion. For the GCHQ spies, a prosecuting lawyer’s judgement about what is necessary for the fair trial of a suspect is of secondary importance. Moreover, they claim it might expose the techniques used by the police and security services. This thinking however cannot justify maintaining such a flawed rule which inevitably leads to miscarriages of justice. And again such self-serving restrictions cannot be allowed to stand when other countries’ security services find no problem in operating within a framework of open use of intercept evidence.

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