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Intercept evidence 'not viable' Intercept evidence 'not viable'
(about 3 hours later)
The use of intercept evidence in criminal trials is not yet "legally or practically viable", the independent reviewer of terror laws has said. The use of intercept evidence in courts in England and Wales is not "legally viable", the Home Office has said.
Gordon Brown had wanted to allow the use of material from e-mails and phone taps in England and Wales as long as security was safeguarded. A series of mock trials showed that using e-mails and phone taps was not compatible with strict rules around the disclosure of evidence to the defence.
But Lord Carlile said major problems had emerged in mock trials with the disclosure of evidence to the defence. Storing such material would also be too difficult and costly, the trials found.
Human rights organisation Liberty said it was "a very sad day" for justice. The home secretary said "no responsible government could precede on this basis", while police chiefs said the difficulties were "insurmountable".
Under current UK law, intercept material can be used only for intelligence purposes, but a possible system under which it could be used in court was devised in a Privy Council review and tested earlier this year. 'Warehouses full'
However, the trials exposed fundamental problems with the amount of material required to be disclosed to the defence and the administrative burden that placed on police and security agencies. Under current UK law, material from intercepted e-mails or phone calls can be used only for intelligence purposes, but a possible method by which it could be used in court was devised in a Privy Council review.
Now a report due out on Thursday is expected to say that the move will be abandoned, at least in the short-term. However, the BBC's home affairs correspondent Danny Shaw said the trials exposed fundamental problems with the system.
"The difficulties are regarded as so serious that there's no prospect of legislation before the next election," said BBC home affairs correspondent Danny Shaw. Under the model, the prosecution did not have to retain and disclose all intercepted material to the defence, but independent lawyers said this was not compatible with the suspect's human rights.
Practical problems The alternative would be to store all of the material for the full duration of the inquiry, but officials concluded this would mean "warehouses full of documents" and would cost billions of pounds.
Lord Carlile said the long-term aim was to introduce intercept evidence, but the circumstances were not yet right. We have the highest standards of disclosure in the world Lord CarlileIndependent reviewer of terror laws
"Before intercept evidence can be useful in court it has to be able to satisfy two broad tests," he said. "It has to be legally viable and it has to be practically viable. Our correspondent said officials believed the end result could be to undermine investigations and reduce the number of inquiries which used intercept.
"I suspect that [the government] may well say that neither of those broad tests have been met." Home Secretary Alan Johnson said efforts would continue to try to make the system workable, but added: "No responsible government could precede with implementation on this basis."
Clearly, sometimes you do have to protect sensitive material Shami Chakrabarti, Liberty Deputy Assistant Commissioner Janet Williams, speaking on behalf of the Association of Chief Police Officers, said the difficulties were "insurmountable".
He said that under European human rights law all material intercepted during the course of an inquiry would have to be available at trial, possibly several years later. But a senior Whitehall official told the BBC he was not as pessimistic and that Thursday's conclusion did not spell the "death knell" for intercept evidence.
The practical means to electronically store that much data did not currently exist, he said. 'Sad day'
Lord Carlile also argued that in other countries in Europe and elsewhere where intercept evidence was used the legal system was much less "demanding". Earlier, the government's independent reviewer of terrorism legislation, Lord Carlile, said the long-term aim was to introduce intercept evidence, but the circumstances were not yet right.
"Before intercept evidence can be useful in court it has to be able to satisfy two broad tests," he said. "It has to be legally viable and it has to be practically viable."
Lord Carlile said that in Europe and other countries where intercept evidence was used the legal system was much less "demanding".
"That means that it can be entirely unknown to the suspect that intercepts have been examined and used on an evidential basis," the peer said."That means that it can be entirely unknown to the suspect that intercepts have been examined and used on an evidential basis," the peer said.
"That could not happen here because we have the highest standards of disclosure in the world."
'Nonsense'
But Shami Chakrabarti, director of human rights organisation Liberty, said the argument about disclosure was "full of holes" and sensitive material was already regularly used in court.
"Bugs, for example," she said. "Here's one particular piece of nonsense.
FROM THE TODAY PROGRAMME More from Today programmeFROM THE TODAY PROGRAMME More from Today programme
"If I put a bug in your bedroom and I hear the intimate conversations between you and your wife that conversation can be used in court. If it happens to be a telephone call between you and your wife, we cant. "That could not happen here because we have the highest standards of disclosure in the world."
But Shami Chakrabarti, director of human rights organisation Liberty, said it was "a very sad day" for justice because intercept evidence could be "very, very useful" in proving someone's guilt or innocence.
"Here's one particular piece of nonsense," she said. "If I put a bug in your bedroom and I hear the intimate conversations between you and your wife that conversation can be used in court.
"If it happens to be a telephone call between you and your wife, we cant.
"Clearly, sometimes you do have to protect sensitive material. We have a very well developed system of public interest immunity - we protect informants that way and other technologies that way - and that could all apply in this case.""Clearly, sometimes you do have to protect sensitive material. We have a very well developed system of public interest immunity - we protect informants that way and other technologies that way - and that could all apply in this case."
Lord Carlile said he hoped Thursday's report would represent a "work in progress and not a conclusion".