UK Counter Terrorism and Electronic Intercept Evidence

UK Counter-terrorism
By Arthur Hayes

Simply put, terrorists are people who have made the decision to use violence for political purposes. Like the majority of other members of contemporary societies, they use a whole range of available electronic devices in their daily lives. For those tracking and hunting them, such as law enforcement and intelligence agencies, this providesa fertile area of investigation and enquiry as they attempt to gather sufficient intelligence and evidence to prevent violence and protect the public.

It would seem obvious that prosecutors should be able to present to a court all the available evidence against a defendant in order to maximise the possibility of a successful prosecution. Many would assume that in any contemporary society this would include material obtained from ‘bugging phones’, for example.  Yet, section 17 of the Regulation of Investigatory Powers Act (RIPA) forbids the admission of the product of electronic intercept, defined as evidence that is obtained from communications intercepted by law enforcement and intelligence services. It forbids the use of international telephone calls, mobile phone calls, emails and texts in criminal trials in England and Wales. Similar legislation also exists in Scotland and Northern Ireland.

This proscription is virtually unique among European and the English speaking nations, which have similar legal systems to the UK. Intercept evidence that has been obtained from foreign countries via their indigenous legal systems is admissible in British criminal trials. A very recent example of intercept obtained abroad used successfully in the UK was during the re-trial of Ibrahim Savant, Arafat Khan and Waheed Zaman, convicted for their participation in a plot to blow up transatlantic airliners with liquid bombs in 2006. Key new evidence offered by prosecutors to the jury was copies of emails between the defendants obtained via courts in California. 

Material obtained from eavesdropping devices is, however, admissible in court as was the case in June 2011, when four Metropolitan Police Service officers were found not guilty of assaulting Babar Ahmad during his 2003 arrest on suspicion of terrorism offences. The core to the officers’ defence was the inclusion of audio product from an eavesdropping bug secretly deployed in Ahmad’s house by the British security service during the investigation.

Aware of this seemingly strange and inexplicable inconsistency, the then UK Labour Government set up a committee to review the situation in January 2008. They recommended lifting the ban, but only as long as nine “operational requirements” are met, designed to “ensure that the UK’s strategic intelligence capability was safeguarded and the ability of intelligence and law enforcement agencies to protect the public was not harmed”.

Why does the ban still stand?

The British security service (MI5) has national primacy in counter terrorism matters. It remains publicly opposed to the use of intercept in court because of their concerns around the rules of evidential disclosure in counter terrorism trials in the UK. The UK has the highest standards of disclosure of evidence in criminal trials in the world. This is a deliberate intention by the UK legal community to comply with the European Convention on Human Rights (ECHR) which guarantees a right to fair trial. 

Disclosure means that the police and intelligence agencies must declare all available evidence they hold that may be relevant in the case against a defendant to the prosecutors. The difficulty in counter terrorism trials occurs when this evidence has been obtained by sensitive means: the prosecution would seek to not reveal this sensitive material in open court or in certain circumstances to the defence at all, although the trial judge would be aware of all the evidence available to the prosecution.

Intercept is not the only method of intelligence gathering that the prosecution tries to protect by the use of the principle of public interest immunity (PII), which allows the separation of disclosure of sensitive and non – sensitive evidence.

The second factor that influences the decision not to repeal the ban is that the UK has an adversarial legal system, which means that trials are not designed to establish the truth but to either prove guilt beyond all reasonable doubt or not. MI5 fear that defence counsels at counter terrorism trials would impose exhaustive demands on the prosecution and courts in an attempt to ascertain the very details of methodology about how a mobile phone call is intercepted as part of the right to a fair trial.

Another factor that one must consider in disclosure is the legal requirement to record and retain all intercept material that could be of potential relevance in any prosecution. In all likelihood, the defence will demand and obtain that the prosecution must provide written transcriptions of the original intercept. This is further complicated by the possibility that there may be hundreds if not thousands of hours of cumulative intercept to be dealt with, many of which may be in different languages placing an even greater strain on resources which could be deployed on more pressing operational matters.

The new UK government has run mock trials attempting to resolve the procedural issues highlighted above and concluded that such a practical solution was unobtainable. If it could be proven that the rate of conviction obtained in counter terrorism trials could be dramatically increased by the use of intercept evidence, this would dramatically increase the strength of the case to continue to seek a remedy. Yet, there is no conclusive proof that the use of intercept as evidence has resulted in a higher rate of convictions..

Intercept product will remain an intelligence only tool in UK counter terrorism trials for the time being whilst eavesdropping material will remain admissible as will intercept obtained from the US authorities for example. What will remain absolutely key in any counter terrorism investigation is the ability to learn how a suspect is communicating with their fellow conspirators and how to lawfully obtain the intelligence product of that communication. 

 

Arthur Hayes is a Senior Counter-Terrorism Officer with over 20 years’ experience. He has taken part in major counter-terrorism operations and intelligence gathering against a diverse range of targets, including Irish Republicans, Middle Eastern and domestic Islamic extremists.  

 

17 June 2011