Privy Council Review of Intercept as Evidence
2.6 In paragraphs 2.6 – 2.7 of my Annual Report for 2007 I reported on the
Prime Minister’s announcement of a Privy Council Review of Intercept as
Evidence under the chairmanship of Sir John Chilcot. In my Report I commented
on the statement made by the Prime Minister to the House of Commons on 6
February 2008 accepting the committee’s main conclusion that it should be
possible to find a way to use some intercept material as evidence provided – and
only provided – that certain key conditions can be met. The report sets out nine
conditions in detail. They relate to complex and important issues, and include:
giving the intercepting agencies the ability to retain control over whether their
material is used in prosecutions; ensuring that disclosure of material cannot be
required against the wishes of the agency originating the material; protecting the
current close co-operation between intelligence and law enforcement agencies;
and ensuring that agencies cannot be required to transcribe or make notes of
material beyond a standard of detail that they deem necessary.
2.7 Since the Prime Minister’s statement a lot of work has been done, led by
the Home Office to see whether and how these issues and other conditions –
intended to protect sensitive techniques, safeguard resources, and ensure that
intercept can still be used effectively for intelligence – can be met. During 2008
I attended a number of meetings at the Home Office where I was fully briefed
on the development of models under which material might be made available
for use in criminal cases in England and Wales, strictly subject to all the Chilcot
conditions being met. I know that operational live testing of these models took
place in March and April 2009 followed by court role plays during May 2009.
These highlighted real legal and operational difficulties inherent in using intercept
as evidence within the UK; I cannot see a way to safely overcome these. Should
the conclusion be that the Chilcot conditions cannot be fully met, I would welcome
the government’s acceptance that intercept as evidence should not be introduced.
I look forward to being advised of the outcome of the court tests and to be able to
comment on these in my 2009 Annual Report.
The International Intelligence Review Agencies Conference
2.8 Along with the Intelligence Services Commissioner, the Right Honourable
Sir Peter Gibson, I attended the sixth international biennial conference of the
International Intelligence Review Agencies in Auckland, New Zealand between 6
– 8 October 2008. The aim of the Conference was for the delegates to explore and
exchange views on various principles or practices which were reasonably common
between them, ranging from whose interests do the oversight mechanisms serve, to
whether technology used by the agencies makes oversight reviews more difficult.
I was asked, and gladly agreed, to address the conference on the “Intrusion into
individual privacy in search of intelligence – oversight role”. Members of the
Intelligence and Security Committee were also present. There were delegates from
a number of countries from around the world – including Australia, Belgium,
Canada, New Zealand, Poland, Republic of South Africa and the United States
of America. I found the discussions during the conference and in the course of
informal fringe discussions to be interesting, informative and valuable.
House of Lords Select Committee on the Constitution
2.9 On 21 May 2008 I gave oral evidence to the House of Lords Select
Committee on the Constitution as part of their inquiry which sought answers
to questions as to the impact that government surveillance and data collection
have upon the privacy of citizens and their relationship with the State. I gladly
offered my views drawn from my oversight experience as the Interception of
Communications Commissioner. The Select Committee’s two-volume Report
“Surveillance: Citizens and the State” – Volume I: Report (HL Paper 18-I) and
Volume II: Evidence (HL Paper 18-II) was published on 6 February 2009.
4