Monday 7 February 2005

Terrorism, marmalade and MI5

How naive of me to think juries can deal with phone-tap evidence

by Roy Hattersley

Obey! If it is true that Charles Clarke enjoys trouble, the home secretary must be looking forward to a week of almost uninterrupted pleasure. Deporting infant refugees from sub-Saharan Africa may be an essential element in his new immigration plans. But announcing the intention to send the starvelings back to what is loosely called their home is not a task that everyone would relish.

No doubt Clarke will insist stoically that "someone has to do it". Perhaps. But must he also offend against the rule of law by introducing a new form of detention without trial? There is, or seems to be, a practical way of balancing protection against terrorism with the preservation of civil liberties. It was set out last week by Sir Ian Blair, who, being the Metropolitan police commissioner, can hardly be regarded as one of the fashionable libertarians about whom David Blunkett complained so loudly. People suspected of the sort of "offence" that now qualifies for indefinite imprisonment in Belmarsh should be tried in open court with the single innovation of phone-tap evidence against them being made admissible.

The solution seems so obvious that I asked a recent refugee from the Home Office why the government would not accept it. The reply came in two parts. The first was generally unconvincing, and the second highly disturbing. It was wise of Clarke to confine his rejection of the idea to two generalities. An explanation of the "technical" and "intelligence" difficulties of revealing the contents of "intercepted communication" would have confirmed civil libertarians' worst fears.

Remember, I was sternly told, the British system of justice is quite different from that which guides the courts in countries where phone-tap evidence is allowed. Our trials are adversarial. The barrister defending the terrorist suspect would demand to know how the intercepts had been obtained, who had obtained them and by whom they had been sent. The result, it was claimed, would be the exposure of dangerous details about the activities of MI5 and MI6. Foreign governments might be offended. Brave men's lives would be at risk.

I suggested that the act of parliament that made phone-tap evidence admissible might circumscribe its treatment in court. For instance, the judge could certify that it had been obtained under legal warrant and that it was a verbatim account of a conversation in which the accused had taken part. My suggestion was dismissed in tones that combined triumph with astonishment at my naivety. "What do you think a jury would make of a verbatim intercept?" That explanation can only mean that phone taps do not provide sufficient evidence to convict. Hardly surprisingly, criminals of every sort talk to each other in code. As an example, I was given a drug dealer who spoke to his confederates about consignments of marmalade. That man, it seems, was convicted because the police did not rely on intercept evidence alone.

Perhaps the security services should follow the same example. In any event, the rule of law requires the jury to decide if, when a young man recently returned from Afghanistan talks about his grocery order, he is really speaking of Semtex. Otherwise men are locked up in Belmarsh, and will soon be imprisoned in their own homes, on the say-so of the intelligence services - the men and women who interpret what the phone taps really mean.

Ministers, in their arrogance, will claim that the need for them to endorse the decision is a safeguard. But it is hard to imagine a secretary of state arguing with the interpretation put on a telephone call by MI5 - an institution to which politicians are unreasonably deferential. Even now, I can hear the director general asking: "But do you really want to take the risk?" The answer will always be "No" - not because there is much likelihood of a bomb being planted in Buckingham Palace but because the minister will not want to take the one in 10 million chance of going down in history as the man or woman whose negligence allowed the Queen's assassination.

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