Scotland Yard finds itself in the curious position of collecting evidence for foreign jurisdictions that cannot be presented in the UK.
An attempt by the police and Security Service to adduce intercepts into evidence during criminal trials has failed after a series of exercises involving mock courts encountered obstacles.
The history of what are termed Home Office Warrants (HOW) is remarkable, for until 1939 MI5 tapped telephones without any authority beyond the Royal Prerogative, the principle that unless specifically banned by statute, the Crown could do anything it wanted. However, the Royal Mail was a different matter, and HOWs were applied for and granted before the First World War.
The procedure was considered so secret during the Cold War that warrants were issued without any statutory authority until the 1986 Interception of Communications Act, legislation that spelt out precisely the circumstances in which warrants to intercept mail and telephones could be granted. The Act also revealed that numerous ministers had the authority to issue the warrants, including the Secretary of State for Trade and Industry who could sign them to protect the country’s ‘economic well-being’.
It has always been recognized that interpretation and translation would be serious issues when transcripts were presented in court. Famously, the Communist mineworkers’ leader Mick McGahey’s drunken conversations in a thick Glaswegian accent made extremely difficult listening.
Equally notorious were the sexually explicit conversations conducted by the former Liberal leader Jeremy Thorpe, which were considered so disgusting that MI5’s women transcribers were banned from working on them.
In an era of transnational terrorism, much of the intercepts are recorded in a foreign language, adding a translation problem to the one of interpretation and identification. Who is the person on the line, who is he talking to, and is the exchange coherent? Anyone who has read an intercept of a sensible conversation conducted in English knows how hard it is to make sense of the disjointed and interrupted speech which may be interspersed with grunts and other intonations.
All these difficulties have combined to make the problem of presenting intercept evidence in court apparently insurmountable, thus highlighting a curious anomaly. Intercept evidence is used routinely in foreign jurisdictions, and police intercepts recorded in Great Britain can be adduced, for example, in the United States. Thus Scotland Yard finds itself in the curious position of collecting evidence for foreign jurisdictions that cannot be presented in the UK.
Another perceived problem concerns disclosure of related evidence, such as details of when the HOW commenced, which might expose embarrassing information about when a particular investigation began. It may be that an enquiry had been in play for a couple of years before an arrest was made, and perhaps during that period there were indications of other crimes that were not pursued.
This revelation might, in certain circumstances, jeopardize a prosecution or endanger a witness, perhaps even compromise the identity of a confidential informant. Thus, although the introduction of intercept evidence might have looked like a panacea, the procedure is fraught with problems.
The one complication that does not seem to have affected the government’s decision is the fear that public disclosure of intercept techniques might inhibit criminals talking on their cellphones. This was an anxiety articulated before the introduction of the Interception of Communications Bill, when it was widely believed that open discussion of intercepts would tip of the targets, but the reality is that criminals and terrorists alike remain wonderfully indiscreet when using their telephones.