Wire-tap and ‘intercept’ evidence, admissibility in courts
Should evidence obtained through telephone, email or other forms of communication tapping be admissible as evidence by either side in any form of trial?
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Wire-tap evidence quite simply works. It is highly effective in preventing crime and securing convi...
Wire-tap evidence quite simply works. It is highly effective in preventing crime and securing convictions once crimes have been committed. In the UK in 2003 alone, intercepts led to the seizure of 26 tonnes of drugs and detected fraud and money laundering to the value of £390m, resulting in 1680 arrests. It is madness that this evidence cannot then be used to convict those clearly implicated in crime who must otherwise be released without charge. Similarly, were jurisdictions who allow intercept evidence to cease to do so, the result would be criminals such as terrorists (where it is vital to stop the crime from actually be committed) either being held without trial or being allowed to go free. The variety of uses of intercept evidence is vast; it can show where suspects were at certain times, who they met or talked to, and even record exact details of conspiracies. They are also of course valuable in situations where they could be used to prove the innocence of a suspect. These are the functions that wiretap evidence should perform and thus courts should be able to hear this evidence.
The debate over wire-tap evidence is not just confined to the courtroom but rather includes both the supply and demand sides of the intelligence chain. We need to balance on one hand, the value of possibly inconclusive wiretap evidence against the harms caused to security services by the revelation of sensitive intelligence gathering techniques under cross-examination. Further, because the sources of intercept evidence are secretive intelligence agencies, it is very difficult to ensure that full disclosure, cross-examination and the rules of evidence in open court will be applied. These factors combine to complicate wiretap evidence sufficiently to mean that it should not be accepted in court but should be retained only as a powerful method to crack smuggling rings, terrorist cells and criminal organisations.
Those countries which do not allow intercept evidence have created a bizarre form of legal limbo in ...
Those countries which do not allow intercept evidence have created a bizarre form of legal limbo in order to do so. British courts admit intercepts from phones on a private network, calls on the public network where one party is an informant, and tapes from bugs. Most strangely of all, they allow intercept material lawfully obtained by foreign polices forces. This led to the conviction of the Merseyside drugs squad chief Elmore Davies for his corrupt relationship with drugs baron Curtis Warren on the basis of intercept evidence gathered on Dutch mobile phones by the Dutch police force, but where some conversations took place entirely in the UK. Thus, in order to maintain the intercept prohibition, Britain ends up with inconsistent legal standards which are damaging to the accountability and transparency of its courts and legal system. Allowing wire-tap evidence would remove these anomalies.
Where it is true that there are legal anomalies, these exist for good reason. Foreign governments can choose to reveal their intelligence gathering methods if they want, that does not mean the British government should. If one of the subjects of a wiretap is an agent or informer then it follows that we should be able to record this conversation just as when undercover agents wear wires. Further, private internal networks are technically easy to intercept as they are small and fixed.\
However, the opposition do not have to argue that the legal limbo at the moment is acceptable. Instead they can argue for a blanket ban on any such evidence and a strict separation between intelligence gathering and prosecution activities.
It is widely accepted that intercept evidence could usefully form part of a prosecution or defence c...
It is widely accepted that intercept evidence could usefully form part of a prosecution or defence case in many trials. Every western democracy except the UK and Ireland uses wire-tap evidence and the convictions they achieve using it suggest that they are not wasting their time. Further, the UK already accepts the utility of wiretap evidence by using it in some cases, with only legal prohibitions preventing wider use. Similarly, David Bickford, the former chief legal adviser to MI5 has stated that ¨I know we have lost cases as a result of not using such evidence¨ and Sir Ian Blair, Britain’s National Criminal Intelligence Unit and the Bar Council have all called for such evidence to be used. Such high-profile backing is not just an argument by authority, but also increases the number of suspects detained without trial or legal recourse because those figures who would authorise their trials are not confident of gaining convictions. This makes denial of wiretap evidence for trials a civil liberties issue. Similarly, allowing such evidence may well increase the scrutiny of wire-taps used in investigations by the intelligence services.
The argument that the proposition has supporters within the legal profession is simply an argument by authority. It also ignores the fact that those states which do use wiretap evidence have other judicial features which weight court cases in favour of the prosecution. Their intelligence services come under heavy criticism for not revealing all the information available to them, unsafe convictions are overturned on the basis of supplementary evidence which comes to light after suspects have been imprisoned for several years, and their rules of evidence allow more proceedings in closed or military courts for terrorist trials.\
Further, there is no consensus within the legal profession on intercept evidence and just as in the UK there are proponents, in the USA there is a large academic community which highlights its failures in federal courts. The opposition does not need to accept that just because most countries have something that it must be good; it can rather argue that those countries which do admit wiretap evidence should cease to do so.
The UK and other jurisdictions have rules of evidence which would prevent the release of sensitive i...
The UK and other jurisdictions have rules of evidence which would prevent the release of sensitive information from the intelligence services. It is perfectly possible to separate the evidence required (the record of a phone call of 3 mins having taken place between two suspects who deny having been in contact) from the method of gathering that evidence and the scale of the gathering operation. In addition, it is not the evidence itself which is cross-examined in court, but rather expert witnesses and their certainty that a voice on a recording is that of the accused, or the reliability of voice matching technology. Therefore because cross-examination is one step away from the intercept process it can be used as stand-alone evidence in court in the same way as any other evidence without revealing too much information about its source.
The intelligence agencies such as GCHQ oppose the use of wiretap evidence in courts because doing so would reveal the evidence-gathering capabilities of the agencies and hence make them less effective in disrupting terrorism and serious crime. The problems are twofold, firstly that the evidence being presented would allow criminals to learn who and what the intelligence services are monitoring and hence shift their methods of communication, perhaps encrypting emails or using disposable mobile phones. Secondly, that scientific evidence such as forensics need to be cross-examined in order for the trial process to be fair, and allowing full cross-examination might reveal how the intelligence is gathered and the scale of monitoring operations. The justice system needs to bear in mind that bringing criminals to trial is not its only objective, rather disrupting criminal and particularly terrorist activities (which would be harmed were wiretap evidence to be revealed in court) is often more important than bringing them to trial.
Intercept evidence is often not decisive to a case, but it is very useful for showing associations b...
Intercept evidence is often not decisive to a case, but it is very useful for showing associations between groups of people which can be used in conspiracy trials. It can also show the unreliable character of witnesses who deny having contact with involved parties when intercept evidence proves that they have been in communication. Of course intercept evidence is not as good as DNA, but it does have its uses and importantly is another tool that both the prosecution and defence can use but do not have to.\
The problem that exists at the moment is an asymmetry (uneven balance) of capabilities where defence lawyers often do not have access to intercept evidence that might help their client’s cases. Allowing such evidence would at the very least present options to both sides. Even if the evidence only works in a handful of trials, there is no harm in allowing it to be used. Further, techniques for examining intercepts are advancing all the time, with acoustic identification and image matching becoming ever more accurate.
There are serious problems with the quality of intercept evidence. Whilst it is good at showing links between people, it is bad at proving that they are actually doing anything, which is why intercepts make good intelligence but bad evidence. Further, because of this, the vast majority of intercept material could only be corroborative, supporting other evidence but not by itself leading to a conviction. However, its presence would most likely cause more cases to be brought to trial and more trials to collapse as a result. Wiretap evidence is not in the same league as DNA evidence but rather heavily open to interpretation by the jury and so requires extensive cross-examination. Voice analysis techniques can only provide a percentage matching probability. The problems of video intercept evidence were shown by the video which purported to show Morgan Tsvangirai, the Zimbabwean opposition leader conspiring against the government, when in fact he was somewhere else at the time. The problem of intercept evidence is not just that it is bad, but that it will breed over-reliance by prosecutors, ultimately leading to more cases collapsing and verdicts being overturned in the long-run.
Claims about the revelation of intelligence-gathering capabilities due to open trials and the Europe...
Claims about the revelation of intelligence-gathering capabilities due to open trials and the European Convention of Human Rights are based on misinformation. Judges can hold closed trials, just as they often do in terrorist cases already, and they can allow only the legal teams access to some information. They can also derogate (declare a partial suspension) from the ECHR in circumstances where doing so is required to protect ‘national security’, which protecting the country against terrorism clearly is.\
Similarly, if intelligence services deliberately withhold information, this is a case of them acting beyond their remit and falls under the jurisdiction of bodies such as the JISC in the UK and should be regulated and punished accordingly. It is not an argument to say that a policy is flawed because intelligence agencies may commit crimes in order to avoid implementing that policy.\
A blanket prohibition on wiretap evidence would be useful because it removes problems created in disclosure rules by the current ambiguity. Under the ECHR the defence team can ask for all evidence collected by the prosecution to be disclosed, whether or not it is presented to the court. This either means that sensitive information will definitely be revealed to terrorist and organised crime suspects (not what we want if they then go free), or that the intelligence services, knowing this, will deliberately withhold information, including information which would help the defence. A blanket prohibition would prevent power in the justice system from being held by unaccountable, secretive spies.
Allowing intercepts as evidence will hopefully increase the transparency of the warrant-granting pro...
Allowing intercepts as evidence will hopefully increase the transparency of the warrant-granting process across the board, requiring the intelligence services and police to be more specific about their purposes and provide more justification of why a tap would produce results. It is often only when resources are squeezed that the most effective system for their allocation emerges. There should therefore be a spill-over effect of increasing our liberties overall by reducing the quantity of dubious surveillance in society. This is why the NGO Justice favours the admissibility of wiretap evidence, not just for that evidence which is submitted, but for the consequent effects on wiretaps in general.
Admitting wiretap evidence would result in an inevitable ‘creep’ which would result in the mis-allocation of resources to tackle crime. Wire-tap permits are rarely refused by the judiciary and allowing them to be used as evidence will expand their use beyond terrorism and organised crime. Add to this the fact that wiretaps are expensive, have a poor success rate at trial in those countries where they are allowed and waste resources (FBI officers commented that they spent much of their time listening to mob underlings ordering take-out food rather than being out on the street busting drug dealers).
What do you think?