Fears British FBI could help top criminals

Published on Tuesday 13 April 2004 01:00

Key points

• New rules will make intercepted emails and wiretaps admissable in court

• Move brings UK into line with USA and many EU countries

• Concerns that it may help criminals by exposing police methods

Key quote: "One of the biggest concerns amongst detectives is that exposing surveillance and interception methods in open court will allow serious criminals to evade detection." Unnamed ACPO source

Story in full: SENIOR police officers have expressed serious concerns over a government white paper that could potentially lead to covert methods of surveillance against major criminals being exposed in Scottish courtrooms.

Evidence gained from bugged telephone calls will soon become admissible in courts south of the Border as part of a series of new measures designed to tackle organised criminal gangs, it has emerged in the past few weeks.

Under the terms of a new white paper, expected to come into force in the next two years, police will be able to use evidence gathered through intercepted phone calls and play extracts of taped conversations in court. Vital evidence gained from intercepted e-mails and other electronic communications, such as text messages, will similarly become admissible.

The white paper, which at its heart includes plans to set up the Serious and Organised Crime Agency, the so-called "British FBI", will see the merger of the National Criminal Intelligence Service, Special Branch, Immigration Service and Customs and Excise, which will pool resources to bring criminal "godfathers" to justice.

It is understood that although the measures apply specifically to England and Wales, they have the backing of Scottish Executive ministers.

Importantly, the laws governing the interception of communications remain reserved to Westminster - which means the changes could be applicable in Scotland if sought by the Crown Office.

The Association of Chief Police Officers Scotland (ACPOS) has already said that their long-held position against producing phone-tapping evidence in court is under review.

But The Scotsman has learned that although the body is likely to back the white paper, a number of senior police officers have claimed that the measures would expose police methods and ultimately give criminals an advantage.

A senior ACPOS source said: "We are reviewing our previous stance on producing surveillance of this nature in court but many feel this is more to do with political pressure and window dressing rather than constructive moves to assist investigations. One of the biggest concerns amongst detectives is that exposing surveillance and interception methods in open court will allow serious criminals to evade detection."

It emerged recently that MI5 and GCHQ had mounted a last-ditch defence against Whitehall proposals to end the traditional British ban on phone-tap evidence being used in court. The intelligence agencies claimed that criminals and terrorists would be tipped off about their sophisticated techniques if they were made public.

Allowing wiretaps into the courtroom would not only bring Britain into line with the United States and many EU countries, it could transform the conduct of many high- profile cases, particularly those involving drug-smuggling, international organised crime and terrorism.

Those in favour of the reform are a slightly surprising alliance of government prosecutors, who see the opportunity of getting more convictions, and civil libertarians, who believe it would enhance the rights of defendants. Some campaigners believe that if wiretaps were openly admitted and their product allowed as evidence in court, defendants could get proper disclosure of the surveillance evidence that had been gathered on them.

Currently, the existence of bugged phone conversations is routinely concealed from the defence. Customs and Excise officers, who were previously opposed to the change and who use a large number of phone taps, are understood to be "guardedly open-minded" on the issue.

Sir David Calvert-Smith, the former director of public prosecutions in England, believes that overturning the ban on wiretap evidence would help prosecutors get many more convictions. He said: "This change would assist us enormously. As prosecutors, our lives would be made much easier. I’m quite sure there are cases where important evidence which would have strengthened the prosecution is having to go by the board."

Sir David also said the vehement arguments of diehards were implausible. Many criminals knew already that their telephones were likely to be tapped. He added: "It’s been common knowledge for years."

One of Scotland’s leading QCs, Donald Findlay, urged caution over the proposals.

"If the public think the police have carte blanche to tap telephones at will that is not a good thing. Such is the pace of technology these days that this is something that would have to be very closely regulated. Misinterpretation and evidence being delivered out of context is a huge issue using intelligence obtained from bugs. The biggest question here is who will watch the watchers, so to speak," he said.

Despite the revamp of crime-fighting organisations, the independence of the Scottish Drug Enforcement Agency is being safeguarded. According to the Executive, it will continue to operate "in partnership" with the new UK-wide Serious Organised Crime Agency.