Human Rights Watch welcomes the governments decision to initiate a Privy Counsellor review of the ban on admissibility of intercept evidence at trial. The UK is the only Western country that prohibits the use in court of evidence from the monitoring of electronic communications. There is broad consensus that this archaic ban is a disproportionate response to a genuine concern over disclosure of intelligence sources and methods, and that removal of the ban would facilitate prosecution of terrorism suspects. Indeed, Director of Public Prosecutions Sir Ken Macdonald QC has called the ban one of the main obstacles to prosecuting terrorism suspects.51
The proposal was first advanced by Lord Lloyd in his 1996 review of terrorism legislation, and has since been endorsed by Lord Carlile, in parliament by the Privy Counsellor Review Committee (Newton Committee), and the Joint Committee on Human Rights. It has drawn support from a wide spectrum of opinion, including former Attorney General Lord Goldsmith, Metropolitan Police Commissioner Sir Ian Blair, the Bar Council and the Law Society (the governing bodies of Britains two legal professions), and the NGOs Liberty and Justice. In April 2007 the House of Lords approved an amendment to the Serious Crimes Bill introduced by Lord Lloyd that would allow for the use of intercept evidence.52
A 2006 study by Justice on the use of intercept evidence in other common law jurisdictions (including the United States, Canada, and Australia) demonstrated that the fear that intercept capabilities would be compromised by lifting the ban is unfounded.53 Reasonable protocols, similar to the public interest immunity safeguards that already exist in the UK, have been used in other jurisdictions to protect methods, sources, and informants. Moreover, timely reviews and legislative amendments can address rapid changes in communications technology to ensure that interceptions are carried out lawfully and usefully for the purposes of prosecution.
51 CPS chief warns MPs over terror threat to human rights, Guardian Unlimited, January 23, 2007, http://www.guardian.co.uk/terrorism/story/0,,1997090,00.html (accessed October 15, 2007).
52 The amendment was removed when the bill returned to the House of Commons. At this writing, the draft legislation remained before the House of Commons.
53 Justice, Intercept Evidence: Lifting the Ban, October 2006, http://www.justice.org.uk (accessed May 15, 2007).