Secret plan to prevent disclosure at trials
Stuart Millar and Richard Norton-Taylor
Tuesday June 18, 2002
(c) The Guardian
Surveillance techniques to be used by law enforcement agencies to access internet and telephone records will be kept so secret that criminal prosecuti
ons may be abandoned to prevent their disclosure, according to a classified police manual passed to the Guardian.
Amid mounting opposition to government moves to allow a host of public bodies to access phone, email and internet traffic data without a court order, the leaked document from the Association of Chief Police Officers sets out the lengths to which forces must go to prevent their communications surveillance methods being revealed.
The manual, dated March 20 2002 and marked “Draft – not for open publication”, reveals that law enforcement agencies will be expected to seek controversial public interest immunity (PII) certificates to prevent disclosure at trial.
Senior officers acknowledge in the manual that the ability to access communications logs without first seeking the permission of a judge gives British police powers far in excess of those enjoyed by their counterparts in most other countries.
“In many other countries this process requires a judicial order,” the manual says. “There is a need to balance this important power against the right to privacy and to ensure that it is properly used.”
The document, which will be used by every police force, the national crime squad, the national criminal intelligence service, the Scottish drug enforcement agency and customs and excise once approved, states: “This manual contains significant areas of explanation concerning the application of covert techniques, the release of which would be likely to aid offenders in the frustration of law enforcement.”
It continues: “There is an expectation that law enforcement agencies will take all reasonable steps to protect any sensitive methodology in accessing communications data through applications for PII, even in cases where the product is intended for use in evidence.”
In cases where this tactic is inappropriate and sensitive material is at risk of disclosure, the crown prosecution service may have to advise that the prosecutions be stayed.
The use of PII certificates has been at the centre of some of the most high-profile judicial scandals. They were savagely attacked by Labour, most famously in the Iraq supergun trial, when they were in opposition. Their use was heavily criticised by Lord Scott in his arms-to-Iraq inquiry.
PIIs were also used in the M25 murder case, where the conviction of the three defendants was quashed after the European human rights court said they had been denied the right to a fair trial because evidence of informers – protected by PIIs – was not disclosed at the trial. John Wadham, director of Liberty, said: “This story gets worse and worse. Preventing the defendant from having access to secret documents but giving them to the judge is a fundamental erosion of the right to a fair trial.”
Details of the manual emerged as the government indicated that it will make limited concessions to proposals, revealed by the Guardian last week, to extend the power to access communications records without a court order to a range of government departments, local councils and quangos.
But the modifications, which may include limiting the scope of data these organisations can authorise themselves to obtain, are unlikely to quell the public concern.
A committee of MPs was today due to debate the proposal, introduced under the Regulation of Investigatory Powers Act, but the hearing has been postponed until next week, when the move will face stiff opposition from across the political spectrum.
Tom Watson, a Labour member of the home affairs committee, said: “When I read the breadth of this order I was shocked. I have no problem with the police having these powers to crack down on organised crime or terrorism. But the draft order gives the world and his dog the right to snoop on emails and phone calls.”
The latest Acpo document will hand fresh ammunition to government critics. According to the manual, the interception of communications commissioner, a senior judge appointed by the government to monitor how the powers are used, will provide an adequate safeguard to prevent the powers being misused.
But critics say the commissioner, Sir Swinton Thomas, a retired appeal court judge, is so under-resourced that it will be impossible for him to check the thousands of data retention notices likely to be issued by police and other agencies.