44. Various, in my view sometimes misguided, and often ill-informed, though
no doubt well-motivated people continue to re-open this complex question. In
order to understand it fully one needs a reasonably extensive knowledge of
intelligence, law enforcement and the criminal process in Court. Amongst those
who advocate changes are some lawyers, indeed some distinguished lawyers.
They have, of course, an extensive knowledge of the law, and some, though
certainly not all, a detailed knowledge of the criminal legal process. But they do
not have knowledge of experience of intelligence and law enforcement work
which is so vital in detecting and preventing terrorism and serious crime, and is
a necessary prerequisite to putting criminals and terrorists in prison which is a
prime objective of everybody concerned.
45. Those who advocate a change in the present law would be wise to discuss
the issue with those who are knowledgeable on this subject. They do, after all,
know what they are talking about. In my judgment, it is absolutely vital that
anyone who wishes to pronounce on this topic should understand how technology
changes will impact on their work.
46. It is impossible in Reports of this nature to discuss fully and in great detail
my reasons for being firmly of this view in this complex area. But, put
comparatively briefly, they are as follows;
i.
If terrorists and criminals, most particularly those high up in the chain
of command, know that interception would be used in evidence against
them, they will do everything possible to stop providing the material
which is so very valuable as intelligence. It is sometimes said: “but
surely they know now that their communications will be intercepted?”
They may suspect that their communications may be intercepted, but
they do not know that they will be. This uncertainty is invaluable and
they continue to provide immensely valuable intelligence material
which would be lost if they ceased to communicate as they do now.
Like everybody else they have to communicate to forward their
enterprises, and there is a real danger that they will find means of
doing so which are much more difficult or impossible to decipher if
they know that the material would be used in evidence, so that valuable
intelligence material leading to successful investigation and eventual
prosecution will be lost. As has been widely publicised the Intelligence
and Security Services have disrupted and prevented a number of
serious prospective terrorist and criminal attacks both before and since
July 2005. The intelligence derived from intercept has been crucial to
these successes which might not have occurred if the intercept had not
been available, as would be likely if those communicating believed that
the material would be used in evidence against them. In addition to the
advantages accruing from not knowing what intercepting agencies can
do or are doing, it is a considerable advantage that they do not know
what they are not doing or cannot do. All these advantages would be
lost if all interception techniques are laid bare.
ii.
Successive reviews on this subject over the last decade have been
unable to show that the claimed benefits of using intercept product in
evidence to secure more prosecutions (or to shorten trials) would be
worth the risks that this entails for the operational effectiveness and
capabilities of the agencies involved in fighting terrorism and serious
crime. The last and most comprehensive review, the conclusions of
which were reported in the then Home Secretary’s written Ministerial
Statement of 26th January 2005 found that a modest increase in
convictions of some serious criminals, but not terrorists, would come
with serious risks to the continued effectiveness of the agencies. The
statement added that there was no immediate prospect of removing the
main risks, partly because of the difficulty of lessening the impact of
the major changes expected in communications technologies over the
next few years.
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