This House would allow wire-tapped and ‘intercepted’ evidence as admissible in court
Electronic ‘intercept’ evidence can involve recording information which has been sent using any form of electronic media, including phone calls from fixed lines and mobiles (cellphones), emails, and pager or SMS messages[1]. Intercepted evidence can also include information and letters sent in the post[2]. By intercepting this information, many countries hope to prevent crime and increase national security through preventing violent incidents. Many countries already accept that wire-tapping is in fact necessary[3] to prevent atrocities such as terrorism – particularly in the wake of the 9/11 attacks on New York[4] - and that it is can be a highly effective way to combat ‘terror cells, war criminals and even mafia godfathers’[5]. However, not all countries agree that the evidence gathered through wire-tapping is in accordance with legal principles. This has given rise to debates over whether intercepted and wire-tapped evidence should be admissible in court.
Many western countries currently deem that wire-tap evidence is admissible in court and is merely subject to the standard rules of evidence[6]. However, wire-tap and intercept evidence is, or is meant to be, a last resort when the court finds that ‘normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.’[7] This is generally interpreted by courts of law ‘to require only that law enforcement try some other techniques, not that they exhaust all reasonably available methods of obtaining the necessary evidence’[8]. In either case, intercept evidence is not supposed to be used as an automatic option without other difficulties presenting themselves in due course of the investigation. While the law supposedly requires that law enforcement agents should not listen in on conversations which are obviously irrelevant to their case – such as personal phone calls among family and friends – it is rare that a wiretap is rejected in a court of law because the agents failed to minimise the tapping[9].
Britain[10], Ireland[11] and some American states[12] still do not always allow the use of this evidence. Typically, warrants for taps can be issued by senior ministers (such as the Home Secretary in the UK[13]) or by senior judges (in the USA[14]) and must target a specific form of communication by a suspect[15] rather than granted general authority to tap communication lines; for example, they may tap the landline, or emails, or a mobile phone. Under the Foreign Intelligence Surveillance Act (FISA) in the USA, ‘roaming’ taps (taps which cover any form of communication used by a suspect[16]) do exist but are very rare. In conditions where a judge has granted authorisation for a ‘roaming’ tap, it is possible that all the public telephones (pay phones) in an area could be tapped if authorities suspected that terrorists could be in that neighbourhood[17]. This is evidently a much more invasive and blanket-form of communications tapping. Since terrorist activities around 9/11, the American government has been criticised for the extensive levels of wire-tapping and interception which were secretly authorised and even encouraged by the government[18]. Particularly, the legal grounding for the creation of the tapping schemes remains unclear and controversial[19].
Wire-tapping tends to target three main types of crime: terrorism, organised crime and drug trafficking[20]. Many key drug trafficking trials in the USA have involved the admission of some kind of intercepted evidence[21]. However, in most countries a separate discussion is held either in court or with a judge after the warrant has been obtained for a tap in order to determine whether the specific intercept evidence is admissible, or whether it should be suppressed[22]. In the USA between 1985 and 1994, out of 8,489 criminal wiretaps judges across the US granted 138 suppression motions to ‘exclude intercepted material from evidence’ but denied 3,060 pleas for a suppression motion[23]. This ultimately resulted in a 4.3% suppression rate[24]. This data shows that almost all of the evidence collected by interception and wiretapping within states which allow it to be used as evidence is ultimately used in court. No FISA evidence which has been introduced to a criminal case has ever been excluded from that case.
[1] http://www.official-documents.gov.uk/document/cm73/7324/7324.pdf, accessed 28/08/11
[2] http://www.official-documents.gov.uk/document/cm73/7324/7324.pdf, accessed 28/08/11
[3] http://blogs.abcnews.com/theblotter/2006/09/uk_attorney_gen.html, accessed 28/08/11
[4] http://news.bbc.co.uk/1/hi/uk_politics/7230220.stm, accessed 28/08/11
[5] http://news.bbc.co.uk/1/hi/uk_politics/7230220.stm, accessed 28/08/11
[6] http://www.guardian.co.uk/politics/2009/jul/21/brown-intercept-evidence, accessed 28/08/11
[7] http://cdt.org/wiretap/wiretap_overview.html, accessed 28/08/11
[8] http://cdt.org/wiretap/wiretap_overview.html, accessed 28/08/11
[9] http://cdt.org/wiretap/wiretap_overview.html, accessed 28/08/11
[10] http://www.guardian.co.uk/politics/2009/jul/21/brown-intercept-evidence, accessed 28/08/11
[11] http://blogs.abcnews.com/theblotter/2006/09/uk_attorney_gen.html, accessed 28/08/11
[12] http://law-n-order.hubpages.com/hub/wiretapping, accessed 28/08/11
[13] http://www.bbc.co.uk/crimewatch/solved/caseclosed/wiretaps_and_honeytraps.shtml, accessed 28/08/11
[14] http://www.cnbc.com/id/43007292/How_Raj_Will_Fight_His_Conviction, accessed 28/08/11
[15] https://www.privacyinternational.org/survey/countries-a-g.html, accessed 28/08/11
[16] http://www.americanbar.org/publications/human_rights_magazine_home/irr_hr_winter02_podesta.html, accessed 28/08/11
[17] http://www.americanbar.org/publications/human_rights_magazine_home/irr_hr_winter02_podesta.html, accessed 28/08/11
[18] http://www.msnbc.msn.com/id/31852177/ns/politics/t/post--surveillance-went-beyond-wiretapping/, accessed 28/08/11
[19] http://www.msnbc.msn.com/id/31852177/ns/politics/t/post--surveillance-went-beyond-wiretapping/, accessed 28/08/11
[20] http://www.surveillance-and-society.org/articles4(3)/escalating.pdf, accessed 28/08/11
[21] http://www.justice.org.uk/pages/intercept-evidence.html, accessed 28/08/11
[22] http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp44-e/brdjanin.htm, accessed 28/08/11
[23] http://cdt.org/wiretap/wiretap_overview.html, accessed 28/08/11
[24] http://cdt.org/wiretap/wiretap_overview.html, accessed 28/08/11
Points For
Wiretapping is a highly effective method which helps to prevent serious crime and secure convictions for criminals.
Wiretapping helps to make society safer; we have the opportunity to prevent serious crime and to uphold the principle of prosecution in the justice system[1] by catching criminals and convicting them. For example, in the UK in 2003, intercepts led to the seizure of 26 tonnes of drugs and also detected wide-scale fraud and money laundering, resulting in 1680 arrests[2]. Without this evidence, these criminals may have escaped the justice system and remained free in society to commit other crimes. It is nonsensical to reject evidence which clearly implicates this individuals who would otherwise be released without charge. As the threat of terrorism escalates and had already damaged many countries[3][4][5][6], refusal to use this evidence in court puts the public at serious risk and fails to act in the defence of the country in question. For example, if the Norwegian authorities had kept closer tabs on information passed through eBay, they might well have been able to apprehend Anders Breivik before he committed the massacre on Utoya island[7]. Wiretapping is unique in the variety of information it can provide; it can show locations[8], times[9], the relationships between those involved[10] and even record specific details of conspiracies[11]. Accordingly, it can also be used to prove the innocence of somebody who might otherwise be wrongly accused or even wrongly imprisoned[12][13]. The obvious benefits to this motion demand that intercept evidence and wiretapping should be held as legitimate evidence in court.
[1] Page 65: http://vac.wvasiapacific.org/downloads/SAVE5.pdf, accessed 30/08/11
[2] http://www.newlawjournal.co.uk/nlj/content/surveillance-and-privacy—where-boundaries-blur, accessed 30/08/11
[3] In the UK: https://www.mi5.gov.uk/output/international-terrorism-and-the-uk.html
[4] In Norway: http://www.telegraph.co.uk/news/worldnews/europe/norway/8673118/Norway-massacre-British-traders-helped-supply-Breiviks-arsenal-of-weapons.html, accessed 30/08/11
[5] In the USA: http://www.army.mil/terrorism/, accessed 30/08/11
[6] In Europe and Belgium: http://www.telegraph.co.uk/news/worldnews/europe/belgium/8154475/Europe-wide-terrorism-arrests-after-plans-for-attack-on-Belgium.html, accessed 30/08/11
[7] http://www.telegraph.co.uk/news/worldnews/europe/norway/8673118/Norway-massacre-British-traders-helped-supply-Breiviks-arsenal-of-weapons.html, accessed 30/08/11
[8]http://www.eavesdropping-news.com/news-subjects/cell-phones-eavesdropping-wiretapping/cell-phone-syping.html, accessed 30/08/11
[9] http://www.eavesdropping-news.com/news-subjects/cell-phones-eavesdropping-wiretapping/cell-phone-syping.html, accessed 30/08/11
[10] http://online.wsj.com/article/SB10001424052748704889404576277341101995436.html, accessed 30/08/11
[11] http://www.npr.org/2011/05/12/136230882/wiretaps-help-prosecutors-get-hedge-fund-manager-convicted, accessed 30/08/11
[12] http://chicagoist.com/2011/04/14/blagojevich_live_presser.php, accessed 30/08/11
[13] http://articles.latimes.com/1992-02-14/news/mn-2239_1_top-gotti, accessed 30/08/11
COUNTERPOINTIf the use of wiretapping and intercept evidence was as simple as proposition makes out, undoubtedly it would be a common tool. However, there are also serious flaws in how this intelligence is gathered and interpreted. For example, a phone call might seem unduly incriminating when taken out of context and heard in a court of law which has already projected suspicions upon a particular individual[1]. Focusing only on one form of communications as is normal when authorisation is given for these interceptions fails to take in the wider picture and continues to be heard without the context[2]. Whether this unfairly incriminates somebody who has not acted in a crime, or falsely ‘proves’ the innocence of somebody who is not in fact innocent, intercept evidence is limited in its scope and as such should not be admissible in court.
[1] http://www.fiercefinance.com/story/rajaratnam-jury-listens-more-wiretaps/2011-04-28, accessed 30/08/11
[2] http://www.fiercefinance.com/story/rajaratnam-jury-listens-more-wiretaps/2011-04-28, accessed 30/08/11
Intercepted evidence could be incredibly useful for both prosecution and defence cases in many trials.
Intercept evidence offers the opportunity to speed up court trials and stop wasting time and money by providing information which could lead to a faster, more accurate verdict. Other western democracies who use wire-tap evidence believe that is has or will help to achieve criminal convictions[1][2][3], which demonstrates popular support for it as an effective and swift method of justice. Given that the UK has allowed wire-tapping in some specific cases[4], it seems to be that it is not the principle of intercept evidence itself which is viewed as unacceptable by these countries, but perhaps a need to set up a formalised system of the conditions when and where intercept evidence can be used. David Bickford, the former chief legal adviser to MI5, has stated ‘I know we have lost cases as a result of not using such evidence’[5] and other experts have called for the wide use of intercept evidence in court[6]. Allowing the use of intercept evidence in the first place may well ensure that wire-taps are better carried out in a standardised, regulated manner
[1] In Sweden: http://news.bbc.co.uk/1/hi/world/europe/7463333.stm, accessed 30/08/11
[2] Widely in the USA: http://www.justice.gov/archive/ll/highlights.htm, accessed 30/08/11
[3] In Australia: http://www.thenewsmanual.net/Resources/medialaw_in_australia_06.html, accessed 30/08/11
[4] http://www.telegraph.co.uk/technology/news/8437978/BT-and-Phorm-escape-prosecution-for-secret-wiretaps.html, accessed 30/08/11
[5] http://www.guardian.co.uk/uk/2005/jan/28/september11.humanrights, accessed 30/08/11
[6] http://www.telegraph.co.uk/news/uknews/law-and-order/7732242/Intercept-evidence-should-be-admitted-in-court-officials-believe.html, accessed 30/08/11
COUNTERPOINTFor every expert who advocates the use of intercept evidence there is another who fiercely warns against it, particularly those who are experts in law[1]. Despite the use of wiretapping in the USA, many people advocate against intercept evidence by pointing out its past failures[2] and questionable authorisation[3][4]. In the UK, MI5, MI6 and GCHQ have voiced concerns that wire-tapping would expose the methods used by intelligence services[5]. This is not purely a debate about whether wire-tapping works, but whether it is in line with the legal principles held by those countries and states who currently do not allow it to be used in court. Just because it could be used does not make it legitimate – in fact, there is often heavy criticism against wiretapping within the legal profession itself[6][7].
[1] http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081700650.html, accessed 30/08/11
[2] http://www.jamaicaobserver.com/Wiretap-evidence-fails-in-New-York-drug-case-against-Jamaican_8024001, accessed 30/08/11
[3] http://www.msnbc.msn.com/id/11027207/ns/politics/t/sen-clinton-criticizes-bush-wiretap-rationale/, accessed 30/08/11
[4] http://abcnews.go.com/GMA/Politics/story?id=1420233, accessed 30/08/11
[5] http://www.guardian.co.uk/politics/2008/feb/06/uk.ukcrime, accessed 30/08/11
[6] http://fortunaty.net/org/wikileaks/CRS/wikileaks-crs-reports/98-251.pdf, accessed 30/08/11
[7] http://www.msnbc.msn.com/id/14393611/ns/us_news-security/t/feds-appeal-ruling-against-wiretap-program/, accessed 30/08/11
Countries which do not allow intercept evidence have created a contradictory, rather than transparent, set of legal boundaries.
Britain in particular seems to hold a paradoxical set of values in relation to intercept evidence. For example, British courts have allowed intercept material which has been lawfully obtained by foreign police forces. One notable example of this was the conviction of the Merseyside drugs squad chief Elmore Davies when it was discovered that he had a corrupt relationship with drug baron Curtis Warren[1]. The information which led to his conviction was collected on Dutch mobile phones by the Dutch police force, despite the fact that some of the conversations took place wholly within the UK. However this – bizarrely – was allowed as evidence in a British court[2], despite the systematic rejection of intercept evidence in other cases. When a country seems to recognise and even capitalise on the potential of intercept evidence in some cases but simultaneously reject it in others, the result is inconsistent legal standards which damage accountability and transparency of the entire state.
[1] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1, accessed 30/08/11
[2] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1, accessed 30/08/11
COUNTERPOINTThe more obvious solution to this problem (from the opposition’s view) would be to maintain a clear policy where no intercept evidence is admissible in court. However, this particular case becomes an anomaly for good reason. Individual countries – in this case Britain – cannot dictate whether foreign intelligence services – the Dutch – choose to reveal their intelligence-gathering methods or not. In this case, the crossover between national policies on information intelligence[1] led to this anomaly.
[1] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1, accessed 30/08/11
Intercept evidence deals particularly well with cases of conspiracy and criminal gangs which have a widespread network.
Intercept evidence can be very useful for showing associations between groups of people[1], which can be incredibly helpful in cases such as conspiracies to link people and events together. It can also expose inconsistencies or falsity in an individual’s alibi[2] or personal character if they deny contact with a certain party where intercept evidence proves that they had communicated[3]. However, under the status quo the defence lawyer may not be authorised to intercept evidence which would prove their client’s innocence[4]. Allowing such techniques would help to equalise the prosecution and defence; after all, the aim of court is not to blindly prosecute the defendant, but to ascertain whether he or she is in fact guilty before any prosecution occurs. Widening the array of tools which can be used by both prosecution and defence helps to encourage a wider view of the case and arrive at a more accurate verdict.
[1] http://online.wsj.com/article/SB10001424052748704889404576277341101995436.html, accessed 30/08/11
[2] http://www.totalcriminaldefense.com/news/articles/criminal-evidence/wiretap-legality.aspx, accessed 30/08/11
[3] http://www.totalcriminaldefense.com/news/articles/criminal-evidence/wiretap-legality.aspx, accessed 30/08/11
[4] http://chicagoist.com/2011/04/14/blagojevich_live_presser.php, accessed 30/08/11
COUNTERPOINTWhile intercept evidence may well show links between people, it does not necessarily accurately show what they were doing. In this way, intercepts make good intelligence, but poor evidence. There is no guarantee that intercept evidence will ‘prove’ anything in court rather than simply creating unfounded implications which could actually serve to confuse, rather than clear, the case in question. Until intercept intelligence can prove itself reliable enough to be routinely used as genuine evidence – and it is unclear that it ever will[1] – it certainly should not become an established part of the wider legal system.
[1] http://www.lrb.co.uk/v27/n06/conor-gearty/short-cuts, accessed 30/08/11
Points Against
Wiretapping is a highly effective method which helps to prevent serious crime and secure convictions for criminals.
Wiretapping helps to make society safer; we have the opportunity to prevent serious crime and to uphold the principle of prosecution in the justice system[1] by catching criminals and convicting them. For example, in the UK in 2003, intercepts led to the seizure of 26 tonnes of drugs and also detected wide-scale fraud and money laundering, resulting in 1680 arrests[2]. Without this evidence, these criminals may have escaped the justice system and remained free in society to commit other crimes. It is nonsensical to reject evidence which clearly implicates this individuals who would otherwise be released without charge. As the threat of terrorism escalates and had already damaged many countries[3][4][5][6], refusal to use this evidence in court puts the public at serious risk and fails to act in the defence of the country in question. For example, if the Norwegian authorities had kept closer tabs on information passed through eBay, they might well have been able to apprehend Anders Breivik before he committed the massacre on Utoya island[7]. Wiretapping is unique in the variety of information it can provide; it can show locations[8], times[9], the relationships between those involved[10] and even record specific details of conspiracies[11]. Accordingly, it can also be used to prove the innocence of somebody who might otherwise be wrongly accused or even wrongly imprisoned[12][13]. The obvious benefits to this motion demand that intercept evidence and wiretapping should be held as legitimate evidence in court.
[1] Page 65: http://vac.wvasiapacific.org/downloads/SAVE5.pdf, accessed 30/08/11
[2] http://www.newlawjournal.co.uk/nlj/content/surveillance-and-privacy—where-boundaries-blur, accessed 30/08/11
[3] In the UK: https://www.mi5.gov.uk/output/international-terrorism-and-the-uk.html
[4] In Norway: http://www.telegraph.co.uk/news/worldnews/europe/norway/8673118/Norway-massacre-British-traders-helped-supply-Breiviks-arsenal-of-weapons.html, accessed 30/08/11
[5] In the USA: http://www.army.mil/terrorism/, accessed 30/08/11
[6] In Europe and Belgium: http://www.telegraph.co.uk/news/worldnews/europe/belgium/8154475/Europe-wide-terrorism-arrests-after-plans-for-attack-on-Belgium.html, accessed 30/08/11
[7] http://www.telegraph.co.uk/news/worldnews/europe/norway/8673118/Norway-massacre-British-traders-helped-supply-Breiviks-arsenal-of-weapons.html, accessed 30/08/11
[8]http://www.eavesdropping-news.com/news-subjects/cell-phones-eavesdropping-wiretapping/cell-phone-syping.html, accessed 30/08/11
[9] http://www.eavesdropping-news.com/news-subjects/cell-phones-eavesdropping-wiretapping/cell-phone-syping.html, accessed 30/08/11
[10] http://online.wsj.com/article/SB10001424052748704889404576277341101995436.html, accessed 30/08/11
[11] http://www.npr.org/2011/05/12/136230882/wiretaps-help-prosecutors-get-hedge-fund-manager-convicted, accessed 30/08/11
[12] http://chicagoist.com/2011/04/14/blagojevich_live_presser.php, accessed 30/08/11
[13] http://articles.latimes.com/1992-02-14/news/mn-2239_1_top-gotti, accessed 30/08/11
COUNTERPOINTIf the use of wiretapping and intercept evidence was as simple as proposition makes out, undoubtedly it would be a common tool. However, there are also serious flaws in how this intelligence is gathered and interpreted. For example, a phone call might seem unduly incriminating when taken out of context and heard in a court of law which has already projected suspicions upon a particular individual[1]. Focusing only on one form of communications as is normal when authorisation is given for these interceptions fails to take in the wider picture and continues to be heard without the context[2]. Whether this unfairly incriminates somebody who has not acted in a crime, or falsely ‘proves’ the innocence of somebody who is not in fact innocent, intercept evidence is limited in its scope and as such should not be admissible in court.
[1] http://www.fiercefinance.com/story/rajaratnam-jury-listens-more-wiretaps/2011-04-28, accessed 30/08/11
[2] http://www.fiercefinance.com/story/rajaratnam-jury-listens-more-wiretaps/2011-04-28, accessed 30/08/11
Intercepted evidence could be incredibly useful for both prosecution and defence cases in many trials.
Intercept evidence offers the opportunity to speed up court trials and stop wasting time and money by providing information which could lead to a faster, more accurate verdict. Other western democracies who use wire-tap evidence believe that is has or will help to achieve criminal convictions[1][2][3], which demonstrates popular support for it as an effective and swift method of justice. Given that the UK has allowed wire-tapping in some specific cases[4], it seems to be that it is not the principle of intercept evidence itself which is viewed as unacceptable by these countries, but perhaps a need to set up a formalised system of the conditions when and where intercept evidence can be used. David Bickford, the former chief legal adviser to MI5, has stated ‘I know we have lost cases as a result of not using such evidence’[5] and other experts have called for the wide use of intercept evidence in court[6]. Allowing the use of intercept evidence in the first place may well ensure that wire-taps are better carried out in a standardised, regulated manner
[1] In Sweden: http://news.bbc.co.uk/1/hi/world/europe/7463333.stm, accessed 30/08/11
[2] Widely in the USA: http://www.justice.gov/archive/ll/highlights.htm, accessed 30/08/11
[3] In Australia: http://www.thenewsmanual.net/Resources/medialaw_in_australia_06.html, accessed 30/08/11
[4] http://www.telegraph.co.uk/technology/news/8437978/BT-and-Phorm-escape-prosecution-for-secret-wiretaps.html, accessed 30/08/11
[5] http://www.guardian.co.uk/uk/2005/jan/28/september11.humanrights, accessed 30/08/11
[6] http://www.telegraph.co.uk/news/uknews/law-and-order/7732242/Intercept-evidence-should-be-admitted-in-court-officials-believe.html, accessed 30/08/11
COUNTERPOINTFor every expert who advocates the use of intercept evidence there is another who fiercely warns against it, particularly those who are experts in law[1]. Despite the use of wiretapping in the USA, many people advocate against intercept evidence by pointing out its past failures[2] and questionable authorisation[3][4]. In the UK, MI5, MI6 and GCHQ have voiced concerns that wire-tapping would expose the methods used by intelligence services[5]. This is not purely a debate about whether wire-tapping works, but whether it is in line with the legal principles held by those countries and states who currently do not allow it to be used in court. Just because it could be used does not make it legitimate – in fact, there is often heavy criticism against wiretapping within the legal profession itself[6][7].
[1] http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081700650.html, accessed 30/08/11
[2] http://www.jamaicaobserver.com/Wiretap-evidence-fails-in-New-York-drug-case-against-Jamaican_8024001, accessed 30/08/11
[3] http://www.msnbc.msn.com/id/11027207/ns/politics/t/sen-clinton-criticizes-bush-wiretap-rationale/, accessed 30/08/11
[4] http://abcnews.go.com/GMA/Politics/story?id=1420233, accessed 30/08/11
[5] http://www.guardian.co.uk/politics/2008/feb/06/uk.ukcrime, accessed 30/08/11
[6] http://fortunaty.net/org/wikileaks/CRS/wikileaks-crs-reports/98-251.pdf, accessed 30/08/11
[7] http://www.msnbc.msn.com/id/14393611/ns/us_news-security/t/feds-appeal-ruling-against-wiretap-program/, accessed 30/08/11
Countries which do not allow intercept evidence have created a contradictory, rather than transparent, set of legal boundaries.
Britain in particular seems to hold a paradoxical set of values in relation to intercept evidence. For example, British courts have allowed intercept material which has been lawfully obtained by foreign police forces. One notable example of this was the conviction of the Merseyside drugs squad chief Elmore Davies when it was discovered that he had a corrupt relationship with drug baron Curtis Warren[1]. The information which led to his conviction was collected on Dutch mobile phones by the Dutch police force, despite the fact that some of the conversations took place wholly within the UK. However this – bizarrely – was allowed as evidence in a British court[2], despite the systematic rejection of intercept evidence in other cases. When a country seems to recognise and even capitalise on the potential of intercept evidence in some cases but simultaneously reject it in others, the result is inconsistent legal standards which damage accountability and transparency of the entire state.
[1] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1, accessed 30/08/11
[2] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1, accessed 30/08/11
COUNTERPOINTThe more obvious solution to this problem (from the opposition’s view) would be to maintain a clear policy where no intercept evidence is admissible in court. However, this particular case becomes an anomaly for good reason. Individual countries – in this case Britain – cannot dictate whether foreign intelligence services – the Dutch – choose to reveal their intelligence-gathering methods or not. In this case, the crossover between national policies on information intelligence[1] led to this anomaly.
[1] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1, accessed 30/08/11
Intercept evidence deals particularly well with cases of conspiracy and criminal gangs which have a widespread network.
Intercept evidence can be very useful for showing associations between groups of people[1], which can be incredibly helpful in cases such as conspiracies to link people and events together. It can also expose inconsistencies or falsity in an individual’s alibi[2] or personal character if they deny contact with a certain party where intercept evidence proves that they had communicated[3]. However, under the status quo the defence lawyer may not be authorised to intercept evidence which would prove their client’s innocence[4]. Allowing such techniques would help to equalise the prosecution and defence; after all, the aim of court is not to blindly prosecute the defendant, but to ascertain whether he or she is in fact guilty before any prosecution occurs. Widening the array of tools which can be used by both prosecution and defence helps to encourage a wider view of the case and arrive at a more accurate verdict.
[1] http://online.wsj.com/article/SB10001424052748704889404576277341101995436.html, accessed 30/08/11
[2] http://www.totalcriminaldefense.com/news/articles/criminal-evidence/wiretap-legality.aspx, accessed 30/08/11
[3] http://www.totalcriminaldefense.com/news/articles/criminal-evidence/wiretap-legality.aspx, accessed 30/08/11
[4] http://chicagoist.com/2011/04/14/blagojevich_live_presser.php, accessed 30/08/11
COUNTERPOINTWhile intercept evidence may well show links between people, it does not necessarily accurately show what they were doing. In this way, intercepts make good intelligence, but poor evidence. There is no guarantee that intercept evidence will ‘prove’ anything in court rather than simply creating unfounded implications which could actually serve to confuse, rather than clear, the case in question. Until intercept intelligence can prove itself reliable enough to be routinely used as genuine evidence – and it is unclear that it ever will[1] – it certainly should not become an established part of the wider legal system.
[1] http://www.lrb.co.uk/v27/n06/conor-gearty/short-cuts, accessed 30/08/11
The controversy which surrounds intercept evidence is far-reaching and very complex.
This debate is not contained within the courtroom but also spans wider principles of legal justice and the rules which uphold democratic law. Even countries which currently allow this evidence, such as certain US states[1], have noted that it can be difficult to use successfully and without violating past Acts and wider legal principles[2]. Bodies such as MI5, MI6 and GCHQ argue that revealing the ‘evidence’ necessitates revealing how that evidence was garnered; as such, intercept evidence can compromise the security status of intelligence services and their techniques[3]. This kind of method should be reserved, if used at all, for singular, extreme cases such as terrorist activity where all other possibilities for collecting evidence have truly been exhausted. Finally, wiretapping and intercept evidence has been criticised or deemed illegitimate by many legal professionals[4][5]. For this kind of evidence to be admissible in court, it needs to follow legal principles which have already been set up. There is little evidence that it can do so.
[1] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=416586, accessed 30/08/11
[2] http://caselaw.lp.findlaw.com/data/constitution/amendment04/05.html, accessed 30/08/11
[3] http://www.guardian.co.uk/politics/2008/feb/06/uk.ukcrime, accessed 30/08/11
[4] http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081700650.html, accessed 30/08/11
[5] http://www.msnbc.msn.com/id/14393611/ns/us_news-security/t/feds-appeal-ruling-against-wiretap-program/, accessed 30/08/11
COUNTERPOINTAs criminals and terrorists adapt to modern times, so should the law. If the principles of law are responsible for a failure to act which ultimately leads to criminals walking free and crimes being repeatedly committed, then the law has failed to serve the society it was built for[1]. The principles of law are meant to uphold justice[2], but in this case they become an obstacle to it. Considering that the law in countries like Britain has already acknowledged intercept evidence as a tool in specific cases[3], it cannot oppose the underlying principle of intercept evidence – rather, the practicalities. This undermines the opposition’s argument that intercept evidence is fundamentally out of joint with legal practice. Problematic practicalities will be better regulated[4][5] and monitored if this motion is granted, but until then we risk allowing crime to go unhindered because of an imaginary obligation to the past.
[1] http://sixthsense.osfc.ac.uk/citizenship/distinction_crim_civil/distinction_crim_civil.asp, accessed 30/08/11
[2] http://www.gsdrc.org/go/display&type=Document&id=4054, accessed 30/08/11
[3] http://www.telegraph.co.uk/technology/news/8437978/BT-and-Phorm-escape-prosecution-for-secret-wiretaps.html,, accessed 30/08/11
[4] Regulations in American states: http://books.google.co.uk/books?id=jLnBeSbJiCUC&pg=PA542&lpg=PA542&dq=regulation+of+wiretapping&source=bl&ots=rvb5mnIUm0&sig=2vJFtD1c_ZN1F6P6FIfw-SuFmAs&hl=en&ei=Ru5cToXnI5DA8QPC0IjTAw&sa=X&oi=book_result&ct=result&resnum=5&ved=0CCsQ6AEwBDgK#v=onepage&q=regulation%20of%20wiretapping&f=false, accessed 30/08/11
[5] Regulation of wiretapping in Australia: http://www.caslon.com.au/privacyguide3.htm, accessed 30/08/11
Wiretapping can actually threaten the success of intelligence services in preventing crime and helping to prove criminals guilty.
Regular use of wiretap and intercept evidence poses a danger to the evidence-gathering capabilities of intelligence agencies. There are concerns among experts that terrorists, far from being apprehended, will simply learn new techniques for ‘listening in to calls made over the internet’[1] and know exactly who and what the intelligence services are monitoring. In this way, they could actually evade intelligence services and the police by using different forms of communication, such as encrypting messages or using disposable mobile phones. Revealing the capabilities of our intelligence agencies could create harms which far outweigh any potential benefits of intercept evidence[2]. This makes intercept evidence self-negating; if it is used, the very revelation of its use will alert criminals to it and make it vulnerable to manipulation and tampering – therefore, the evidence actually becomes less reliable and less effective[3]. Ultimately, it does not provide a tangible benefit.
[1] http://www.timesonline.co.uk/tol/news/politics/article2806756.ece, accessed 30/08/11
[2] http://www.timesonline.co.uk/tol/news/politics/article2806756.ece, accessed 30/08/11
[3] http://www.timesonline.co.uk/tol/news/politics/article2806756.ece, accessed 30/08/11
COUNTERPOINTThis argument is made irrelevant by the fact that the UK and other jurisdictions have rules of evidence which prevent the release of sensitive information from intelligence services[1]. There is no reason why playing a few minutes of recorded conversation in a courtroom automatically means that criminals and terrorists know the exact mechanisms used to record that information. Furthermore, if a trial is being held anyway, then the suspects involved already know that they have been monitored by intelligence services – otherwise they would not have been brought to trial. Similarly, high-risk terrorist cells already protect their communication by using things like encrypted messages[2] and disposable mobile phones[3]. Dangerous criminals and terrorists are already one step ahead of our current justice system; implementing this motion is the only way to have a genuine chance at apprehending them.
[1]The Official Secrets Act of 1989: https://www.sis.gov.uk/glossary.html, accessed 30/08/11
[2] http://www.usatoday.com/tech/news/2001-02-05-binladen.htm, accessed 30/08/11
[3] http://abcnews.go.com/WNT/Investigation/story?id=1499905, accessed 30/08/11
Intercept evidence is simply not reliable enough to be effective evidence in court.
Wiretap evidence is not as reliable as other forms of evidence which we currently have at our disposal, such as DNA evidence which has ‘sent thousands of people to prison and . . . has played a vital role in exonerating men who were falsely convicted’[1]. Many potential aspects of intercept evidence lack this reliability. Voice analysis, for example, has been shown to be unreliable in exploring messages supposedly spoken by Osama Bin Laden[2]. Video intercept evidence notably failed when a video which purported to show Morgan Tsvangirai (the Zimbabwean opposition leader) conspiring against the government, when in fact he was somewhere else at the time[3]. The poor quality of intercept evidence is a threat within an individual trial, but also more widely; reliance on intercept evidence by prosecutors might lead to more cases collapsing after the evidence is proved unreliable, and wasting time and money for all involved.
[1] http://www.bioforensics.com/articles/champion1/champion1.html, accessed 30/08/11
[2] http://www.cbsnews.com/stories/2002/11/13/tech/main529273.shtml, accessed 30/08/11
[3] http://www.swradioafrica.com/Documents/TheStateversusMorganTsvangirai.htm, accessed 30/08/11
COUNTERPOINTMore established forms of evidence – even those as sophisticated as DNA testing – also have their weaknesses. Following the death of British student Meredith Kercher, her supposed killer Amanda Knox was imprisoned after DNA evidence proved that Knox’s DNA was found on the handle of the murder weapon (a kitchen knife) while Meredith’s blood was on the blade[1]. However, an appeal has declared that the DNA evidence ‘was so small it should have been considered “inadmissible”’[2], and the original forensic team have been branded as incompetent[3]. This is an example of an extremely high-profile case which hinged a conviction on the use of ‘reliable’ DNA evidence, and may potentially be proved wrong – the appeal is currently ongoing. There is no evidence which is utterly, 100% certain; it is always open to interpretation. However, allowing intercept evidence in court gives another chance at finding out the truth. Given that intercept evidence would work in combination with expert cross-examination, there is no proof that intercept evidence cannot be as effective as any other form of evidence – or perhaps even more so.
[1] http://news.sky.com/home/article/16040314, accessed 30/08/11
[2] http://news.sky.com/home/article/16040314, accessed 30/08/11
[3] http://news.sky.com/home/article/16040314, accessed 30/08/11
Common authorisation for wiretapping would result in misallocation of resources.
Wiretaps are not only unreliable, but incredibly expensive[1][2]. Intelligence agents also often find themselves inadvertently listening in on ‘irrelevant, non-incriminating aspects of the target’s life’[3] which not only breaches the privacy of innocent people but is an obvious waste of time and money for all involved. Given that many countries are considering or have cut their funding for police forces because of the recession[4][5][6], this money could be put to a better use: preventing crime and terrorist activity by a stronger police presence.
[1] http://www.tscm.com/wiretaprobin.html, accessed 30/08/11
[2] http://www.wired.com/threatlevel/2008/03/fbis-500-millio/, accessed 30/08/11
[3] http://cdt.org/wiretap/wiretap_overview.html, accessed 30/08/11
[4] In the UK: http://www.guardian.co.uk/politics/2011/aug/11/nick-clegg-police-funding-cuts-riots, accessed 30/08/11
[5] In the USA: http://www.businessinsider.com/newark-carjackings-2011-1, accessed 30/08/11
[6] In New Zealand: http://www.scoop.co.nz/stories/PA1104/S00010/cuts-to-police-budget-endanger-progress.htm, accessed 30/08/11
COUNTERPOINTIf wiretapping and intercept evidence can stop large-scale conspiracies[1] and potentially stop terrorist actions[2], as it has done and has the potential to do, then price becomes irrelevant. The price of preventing perhaps hundred of people from being harmed in terrorist action should and will always outweigh a financial argument. Wiretapping could in fact lift the burden on over-stretched police forces as they do not have to physically apprehend criminals to attain evidence of their guilt. Wiretapping and intercept evidence is a step towards greater efficiency in our justice system.
[1] http://www.guardian.co.uk/uk/2002/sep/08/ukcrime1,, accessed 30/08/11
[2] www.parliament.uk/briefing-papers/SN05249.pdf, accessed 30/08/11
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