The House of Commons Library now has a copy of the Privy Council Intercept as Evidence Advisory Group interim progress report 9th February 2009 (.pdf image scan only)
As predicted in our previous blog article, Chilcot Advisory Group on Intercept Evidence (lack of) Progress Report, there has been little tangible progress in the last year..
Note the emphasis on
Preventing successful defence "fishing expeditions"
bur there are no effective safeguards against prosecution "fishing expeditions", are there ?
Key stakeholders, such as Communications Service Providers (CSPs) have been engaged, in order to ensure that their legitimate concerns are identified and reflected at an appropriately early stage.
"Communications Service Providers" i.e. telecommunications and internet service provider companies have their own commercial agenda, which do not usually coincide with the privacy and security interests of their business and individual customers, neither of which seem to be represented as "stakeholders" in this Intercept as Evidence review.
If there had been anybody with some internet and telecommunications industry Consumer Privacy and Digital Rights experience on the Advisory Group, they might have been able to highlight the entirely negative consumer experience and collateral damage, where the commercial interests of CSPs conflict with those of their customers. Why shouldn't members of the public or businesses, who have suffered as a result of Phorm style deep packet inspection and interception, be able to call for Intercept Evidence in Court in civil cases ?
This Advisory Group does not appear to be considering an important aspect of current, let alone future technology and practice, which has already been misused in foreign terrorism trials involving mobile phone intercept evidence, such as those in Spain, namely the black art of supposedly expert "Voice Matching" technology. This is especially important where no clearly incriminating words have been uttered in the intercepted phone call.
See our Questions about the case of the first person to be served with a European Arrest Warrant in the UK, Farid Hilali, who was extradited to Spain, where he is facing
The whole European Union and other Mutual Legal Assistance legal aspects of United Kingdom "Intercept as Evidence" do not appear to be under consideration by this Advisory Group.
In order to help Spy Blog readers and future students of this creepy Surveillance Society / Police State, we have OCR / copy edited this image scan into a more web search engine friendly text based format below:
The Right Honourable Gordon Brown MP
10 Downing Street
LONDONINTERCEPT AS EVIDENCE
The Home Secretary's letter of 18 February 2008 invited Lord Archer of Sandwell, Alan Beith, Michael Howard and myself to form the Advisory Group of Privy Counsellors, tasked with advising the officials implementing the recommendations of the Privy Council Review which I led on the use of intercept as evidence. A copy of our Terms of Reference is attached.
I enclose a report, endorsed by all four members of the Advisory Group, on progress at it stands at the end of the first of the three phases of work-"designing" a model for the use of intercept as evidence (IAE).
The Privy Council Review recognised that the work programme would be both complex and demanding. So it is proving. But enough progress has been made for us to support the project's move into its second phase, "building" the model, before the final phase of "testing" it. Indeed these stages are essential to test in practice the findings from the theoretical work; and then to inform the decision on whether it is possible to set up a regime for the use of intercept as evidence which respects both the operational safeguards identified in the Privy Council review, and the public's basic legal rights.
The work so far has not altered our aspiration for a regime for the use of intercept of evidence that delivers better justice and protection for the public. Our aim remains to be in a position for the Government to bring forward legislation in the 2009-10 session of Parliament. But it would be wrong not to sound a clear note of caution. There remain key issues to resolve, in' particular in terms of reconciling legal and operational requirements in complex counter-terrorism and serious organised crime cases.
We envisage a further interim report on progress in the spring, at the conclusion of the "build" Phase, prior to a final report in the summer.
My colleagues on the Advisory Group and I have been greatly encouraged by the commitment and thoroughness with which the Interception community has sought to address the issues raised by implementation and our progress report highlights further particular areas which we believe that should be explored.Finally, we wish to register our concern that proposals for closed hearings in the present Coroners and Justice Bill should demonstrably secure the same or equivalent safeguards for use of intercept material as those set out in the original Privy Council Review.
A copy of this letter goes to the Home Secretary.Rt Hon Sir John Chilcot [9 FEBRUARY 2009]
(on behalf of the Advisory Group of Privy Counsellors)
ANNEX: PRIVY COUNCIL ADVISORY GROUP TERMS OF REFERENCE"In his statement to the House on 6 February 2008, the Prime Minister accepted the recommendation of the Chilcot Review that it should be possible to find a way of using some intercept material as evidence, providing certain key operational requirements can be met. He committed the Government to taking forward the necessary work to address how these operational requirements can best be met, and how to take into account the impact of new technology.
The Chilcot report sets out the operational requirements which any legal regime for intercept evidence would need to meet, in order to ensure that the UK's strategic intelligence capability was safeguarded and the ability of intelligence and law enforcement agencies to protect the public was not harmed (Chilcot, para 208). It also addresses the impact of new technology on interception and on legal models (chapter VI).
The role of the Chilcot Advisory Group is to provide advice to the Government's Implementation Team as they carry out this work, to ensure that the key objectives of safeguarding intelligence capability and protecting the public are not harmed as a scheme is developed.
The implementation team will consult the advisory group on its work programme and emerging findings on a regular basis, and at least three times during the course of the work - at the outset, as the plan is devised; part-way through the work to demonstrate progress; and towards the end of the work, before final advice is prepared for Ministers.
The advisory group will do their work on Privy Counsellor terms. They will be offered information in confidence, including information that may have a bearing on national security, in order that they can advise on the basis of good information; and they will respect that confidence and will not share or divulge the information to which they have been party.FEB 2008"
INTERCEPT AS EVIDENCE - FIRST INTERIM PROGRESS REPORT OF THE ADVISORY GROUP OF PRIVY COUNSELLORSThis interim Report summarises the views of the Advisory Group of Privy Counsellors, on progress in implementing the use of Intercept as Evidence (IAE).
2. The Privy Council Review, published in January 2008, concluded that it would be desirable and should be possible to introduce the use of intercept as evidence subject to this "at one and the same time safeguard[ing] national security, facilitate[ing] bringing cases to trial and allow[ing] the effective use as intercept as intelligence to continue" (para 205). Reflecting this it also concluded that "before legislation could be introduced for the use of intercept as evidence, further extensive work would be required to develop a detailed regime by:
(para 214).
- completing the development of an ECHR1 compatible legal model, based in statute, starting from the PIl Plus model2;
- in advance of any repeal of RIPA s173, ensuring that such a regime met the operational requirements set out above; and
- creating confidence amongst the relevant interests (including communicatio service providers and international partners) that the introduction of such a regime would enhance justice and public protection in the UK, whilst safeguarding national security and partners' legitimate needs"
1 European Convention on Human Rights. Articles 6 (right to a fair trial) and Article 8 (right to respect
2 A legal model for use of intercept as evidence based on Public Immunity Interest, under which material can be withheld from the defence if the judge considers that the public interest in withholding it outweighs the public interest in disclosure.
3 Regulation of Investigatory Powers Act 2000, Part 1 Chapter 1 Section 17 currently prohibits the use
APPROACH TAKEN3. The central challenge is to protect the key operational requirements identified by the Privy Council Review while also protecting fairness of trials and privacy. There is an intrinsic tension between these goals -- particularly in terms of how intercept material is currently examined, retained and transcribed. The Review made clear that for implementation to be successful neither could be sacrificed. The issues are necessarily complex and challenging. So the work programme, which the Advisory Group approved, addresses both operational and legal issues together:
- "Model design" (Phase 1): centred on the development of an IAE model best reflecting operational, fairness of trial and right to privacy requirements, this is now largely complete.
- "Model build" (Phase 2): preparing the draft "legislative principles" and "operational guidance" required to "case-test" IAE, ongoing policy development and undertaking preparatory "desk-top" scenarios.
- "Model test" (Phase 3): undertaking the live and case-testing required to give us confidence that IAE would in practice facilitate prosecutions while ensuring fairness and protecting operational requirements.
4. The Government Implementation Team leading the work programme is based in the Home Office drawing on but distinct from the wider interception community. The intercepting Agencies and relevant legal departments, including the Crown Prosecution Service, have been fully engaged in developing the work programme and in taking it forward. Key stakeholders, such as Communications Service Providers (CSPs) have been engaged, in order to ensure that their legitimate concerns are identified and reflected at an appropriately early stage.
The commercial interests of Communications Service Providers are sometimes in conflict with the rights of their business and individual customers.
Why shouldn't members of the public or businesses, who have suffered as a result of Phorm style deep packet inspection and Interception, be able to call for Intercept Evidence in Court in civil cases?
5. The Advisory Group has taken an active role in monitoring and commenting on the work as it has progressed. Since April it has met on seven occasions, six of these being with the Home Office Senior Responsible Officer and head of the Implementation Team. Consistent with its responsibilities, it has taken a particular interest in ensuring that external stakeholder interests are reflected in the work programme.
OPERATIONAL REQUIREMENTS
6. The Privy Council Report identified (para 208) those operational requirements necessary to protect the UK's strategic intelligence capability and the ability of the law enforcement and intelligence agencies to protect the public. These have formed a central part of the work programme and consist of:
- An Agency "final say" on the use of intercept material in legal proceedings, in particular to protect sensitive techniques and capabilities: these do not appear to raise any fundamental legal or operational problems. There is, however, considerable further activity required on practicalities, lead-in times and possible
- Continued Agency discretion over retention, examination and transcription of intercept material: any failure to meet this requirement would have profound impacts on the costs to and effectiveness of intercepting Agencies. So it has been central to the development of the model. But this raises difficult legal issues around fairness of trials and privacy,
- Maintaining real-time tactical capability, strategic flexibility and close operational engagement between law enforcement and intelligence agencies: the policies necessary to support delivery of these have similarly been embedded in model development. However, as with the retention and transcription requirements above, giving effect to these has significant legal implications, for instance requiring changes to how the Criminal Procedure and Investigations Act 1996 would be applied to intercept material.
How come this is not a problem for all the other countries around the world which allow the use of Intercept Evidence in Court ?
- Preventing successful defence "fishing expeditions" : work on this is less well advanced, but is now in hand. In recent years court procedures have already been tightened up and possible further steps relating specifically to protect intercept material could be considered. However, there remains a broader risk that lifting the statutory bar on use of intercept could result in greater trial complexity and cost, even in cases where the prosecution is not seeking to rely on intercept material itself.
Where are the effective safeguards against prosecution "fishing expeditions", if and when Intercept Evidence is allowed in Court ?
7. The Privy Council Review also identified a number of wider issues concerning; civil proceedings; Scotland and Northern Ireland; and technological sustainability. These are also being addressed by the work programme. The Privy Council Review further recommended that the Government should be prepared, if necessary, to return to the current regime. The preliminary legal view is that "reversion" should, in principle, be possible. However, the legal advice is that reversion is likely to be vulnerable to challenge. We will need to consider further.
LEGAL REQUIREMENTS
8. In addition to meeting the operational requirements, the use of intercept as evidence needs also to be consistent with fair trials and the right to privacy. The work programme has, as recommended by the Privy Council Review, centred on the "PII+" model, which has the advantage over previous approaches of reflecting and building on existing legal and operational practice.
PII = Public Interest Immunity - where a Minister or nameless bureaucratic official rubber stamps a Certificate which prevents some evidence being used in Court. Neither Ministers nor officials ever seem to resign or even aplogise, when it turns out that they have made a mistake in suppressing such evidence.
9. Further legal advice has been obtained reflecting progress to date. There are particular concerns with respect to continued Agency discretion over retention, examination and transcription of intercept material:
- These fair trial considerations would often result in a "corrective ruling" by the trial judge. This ruling could include the exclusion of intercept material from consideration (in whole or part) or the trial itself being stayed.
- Indeed, in the majority of cases of any real complexity there is very real danger that fair trial considerations could cause judges to exclude prosecution intercept product. There would also be a real risk that in some cases trial judges would accede to abuse of process challenges and stay proceedings in their entirety.
- Indeed, in the majority of cases of any real complexity there is very real danger that fair trial considerations could cause judges to exclude prosecution intercept product. There would also be a real risk that in some cases trial judges would accede to abuse of process challenges and stay proceedings in their entirety.
If there has been an abuse of process, sufficient to satisfy a Judge so that he throws a shoddy case out of Court, then that is not a "risk", that is Justice !
- There is an estimated core risk of some 40-50% that the regime would be found incompatible with the right to privacy.
UPDATE:
David Leppard and Chris Williams in The Sunday Times highlight this as the main point of the report Privacy law threat to Gordon Brown's phone tap plan
.
- Even in trials where the prosecution is permitted to rely on intercept product, defence challenges to admissibility would be likely to make proceedings more time consuming, complex and costly. There is also some risk of this, even in cases where the prosecution did not itself wish to adduce intercept in evidence.
- And although fairness of trial and right to privacy risks could be mitigated by the enhanced judicial oversight arrangements envisaged, the impact of this depends on how far in practice this can take place without significantly impacting on operational capability
10. This suggests the need for considerable further work before we can be confident of achieving the goals set by the Privy Council Review. In particular, the legal advice makes clear that:
- Further analysis is required of the practical consequences of the model in a set of scenarios representative set of real-life interception operations.
- There is a need to assess how far enhanced oversight arrangements could operate to reduce risk.
- The approach taken to intercept material in individual cases by individual trial judges will also be critical.
- Further work is needed to assess whether the authenticity and accuracy of an intercepted communication can be sufficiently established to make it admissible in a criminal trial for use by the prosecution"
CONCLUSIONS AND NEXT STEPS
11. As identified in the Privy Council and previous reviews, the issues surrounding intercept as evidence are intrinsically complex. At this stage we can only make preliminary judgements about progress - it is not possible to prejudge the likelihood of meeting all the goals set out in the Privy Council Review. That said, at this stage it seems likely that most and possibly all of the key operational requirements set out can be met. But the concomitant of this - because of the intrinsic tension between operational and legal issues - is that securing the intended increase in successful prosecutions while ensuring fairness of trial remains difficult and in may not prove possible in most complex cases.
12. These issues cannot be addressed in the abstract. They need to be tested in practice. So we believe that the programme should progress to the next "Build" and "Test" Phases. We are content that the PII+ model, as subsequently developed, remains the best prospect for IAE implementation. This work should in particular focus on the key issues underpinning operational and legal requirements and:
13. Finally, the Advisory Group believes that there will need to be continued and sustained engagement by the Implementation Team alongside the interception community, in building the confidence of stakeholders in the implementation work programme and emerging conclusions.
- Draw out the likely impacts in practice on the operations of the intercepting Agencies and on Counter Terrorist and serious organised crime trials,
- How far potentially exculpatory material could in fact be identified and retained, as necessary.
- The implications of advisory and discretionary judicial oversight and the scope to engage this meaningfully, consistent with the key operational requirements.
- Reflect the views of operational and legal practitioners, in particular on the:
- Potential implications for complexity of trial and how the risk of successful defence "fishing" might be addressed. Admissibility of intercept material and how this might be best secured given the particular features of the regime necessary for it,
- Be clearly sustainable (e.g. in the light of technology change)
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