Brown is attempting to establish his hard man credentials by trailing the next bunch of anti-terror laws. The most publicity has been given to the proposal that wiretaps should be available as evidence in court.
I have always favoured this, provided the wiretap is legal; and not just in terrorism cases. I blogged recently that I had never understood the government’s objection, but suspected it was because they did not want juries to be exposed to the extremely tenuous interpretations which the security services often put on communications ‘ which I have personally seen on the inside.
After I posted this, I met with a friend, still in the senior civil service, who filled me in on a fuller picture. I now realise, which I did not at the time, that he or she was telling me this because a move was imminent.
The concern is that intercept evidence might be more helpful to the defence than the prosecution. Where communication intercepts are used, as in the USA, the laws of evidence are that the prosecution must make complete disclosure of all the wiretaps made. The defence can then search this for evidence that points to innocence.
Compare this to the situation that operates with control orders, or indefinite house arrest without trial. Here the prosecution just feeds to the judge (no jury) an isolated snippet of information from ‘intelligence’, reflecting not a whole picture but just the security services’ interpretation. Judges tend to be impressed by this ‘Top Secret’ stuff.
To let the defence at raw intercepts threatens the intelligence services’ greatest lever of power ‘ their monopoly of interpretation of raw data. Even Ministers, or Ambassadors as I was, don’t get the raw data, but a ‘Report’ summarising, interpreting and selectively quoting.
So the proposal being considered by the Home Office is this ‘ that the defence should not be allowed access to all the material from wiretaps of the accused. The prosecution would have to disclose in full only the conversation, or conversations, being directly quoted from. The security services are prepared to go along with that, and the Home Office believe that the public demand for wiretap evidence to be admissible will drown out any protests from lawyers. We will be told the Security Services are not staffed to cope with fuller disclosure.
You read it here first. As my friend put it: “You see, in the minds of the Home Office, justice equals more convictions.”
The other point my friend flagged up was that some in the Home Office are arguing that the classification of many intercepts is such that they could not be available to juries. The demand to bring in intercept evidence might therefore be used to push the case for Diplock Courts in terrorist cases. I should be surprised if we see that kite flown at this stage; the government’s technique so far is to push back liberty by a series of hefty shoves. That is probably next year’s argument. But then I hadn’t realised my friend was warning me about something imminent on Wiretaps, so I could be wrong.
The other proposed Brown measure getting most attention is another call for ninety day internment without charge. But in many ways the most insidious proposal of all is the idea that you should still be subject to questioning after you have been charged.
This is a fundamental rebalancing of our legal system. It means that the police can charge you on spec, and then harass you for a confession when you are banged up in jail on remand and subject to extreme pressure, and all kinds of possibilities of physical abuse from fellow convicts -‘trusties’ working with the police. It removes a fundamental safeguard, that once charged the questioning takes place in open court before a jury. It is a huge change.
This proposal also completely obviates the whole ninety day detention question. At the moment, the police do not charge without a firm case, because then they can no longer question. If this new proposal goes through, then the police can just charge willy-nilly and hold the suspect for the usual remand of two or three years in terror cases.
Needless to say, the BBC and Sky have been able to find Lord Windbag Carlile, various ‘security experts’ and Gordon Brown himself to explain while all this is necessary. Even Simon Hughes turned up to pledge Lib Dem support for the right to question after charging. Obviously the whole country supports all this, as they have been unable to find anyone to argue against.