Background Briefing

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Prosecution as the “Preferred Approach”

Introducing the Bill to the House of Commons on February 22, the Home Secretary repeated that prosecution of terrorism suspects remains the Government’s “preferred approach” to meeting the threat from terrorism. The government argues that the rules of evidence and concerns about disclosing the sources and methods of intelligence gathering preclude it from relying on evidence that could otherwise found prosecutions.13

Yet the Prevention of Terrorism Bill 2005 contains no measures to facilitate the prosecution of terrorism suspects. This omission underscores the Government’s inclination to privilege extraordinary executive powers over proper use of the criminal justice system. There is no shortage of ideas about ways in which prosecutions could be facilitated. The Newton Committee and the Joint Committee on Human Rights have both produced extensive recommendations, based on evaluations of the practices of other countries and consultations with expert witnesses. 14 

The Government’s refusal to consider lifting the ban on intercepted communications is particularly striking. The United Kingdom and Ireland are the only two western countries with total bans on such evidence. While the Regulation of Investigatory Powers Act 2000 prohibits using domestic intercepts, foreign intercepts may be used as evidence if obtained legally, and bugged communications and the results of surveillance or eavesdropping are also admissible, even if not authorised. There is a broad consensus that the ban is a disproportionate response to a genuine concern over disclosure of intelligence sources or methods, and that removal of the ban would facilitate prosecution of terrorism suspects. The proposal was advanced by Lord Lloyd in his 1996 review of terrorism legislation, and has been echoed by Lord Carlile and the Newton Committee.15 It has drawn support from a wide spectrum of opinion including the Metropolitan Police Commissioner Sir Ian Blair, European Union High Representative on Common Foreign and Security Policy Javier Solana, and non-governmental organizations Liberty and Justice.16

Safeguards to protect against undue disclosure of sources and methods already exist, such as the judicial discretion to exclude under section 28 of the Police and Criminal Evidence Act of 1984, and further safeguards could be developed. The use of properly authorised intercepted communications subject to the rules of criminal evidence would not pose any significant human rights issues.

[13] “Some of the material held in these cases is inadmissable [sic], and other material, which technically admissable [sic], could not be used without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting the lives of the sources at risk.” Home Office, “Frequently Asked Questions: Questions regarding terrorism legislation, n.d. [online], (retrieved February 28, 2005).

[14] Privy Counsellor Review Committee, Anti-terrorism, Security and Crime Act 2001 Review: Report; Joint Committee on Human Rights, “Review of Counter-Terrorism Powers,” Eighteenth Report of Session 2003-4.

[15] Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism, Cm 3420, October 1996;

 Privy Counsellor Review Committee, “Anti-terrorism, Security and Crime Act 2001Review: Report,” para. 6; Lord Carlile of Berriew, “Anti-Terrorism Crime and Security Act 2001 Part IV Section 28 Review 2004,” para. 39.

[16] Rachel Sylvester, “Lift phone tap ban in terror trials, says new Met chief,” The Daily Telegraph, February 5, 2005 [online], (accessed February 25, 2004); BBC News Online “Ministers 'naive' over phone-taps” February 6, 2005 [online], (accessed February 25, 2004).

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