Stuart Weir & Andrew Blick (Cambridge & London, Democratic Audit): Last week we noted that easing the ban on the use of domestic intercepted communications as evidence in open court could provide a means of prosecuting some organised criminals and terrorists who might otherwise escape conviction, and make demands for longer term detention without charge even less justifiable.
It could also enable terrorist suspects whose liberties are being restricted without full due process to examine and challenge the evidence against them. Both these outcomes would enhance basic democratic rights in the UK and bring us into line with most other countries. Now Sir John Chilcot's committee of Privy Counsellors has reported, recommending a lifting of the prohibition on the use of intercept evidence, and they have been backed by the Prime Minister. This development is welcome but two questions arise. First, how far will the Intelligence and Security Agencies, and in particular GCHQ, be willing to cooperate with the use of material they have gathered in criminal prosecutions? In the US, while there is no equivalent ban on intercept evidence, we understand that communications obtained by the equivalent to GCHQ, the National Security Agency, are not in practice used in court.
Second, the report notes that the lifting of the ban will not reduce the need for control orders: restrictions placed upon terrorist suspects who cannot be prosecuted. This finding leads us to ask precisely what the evidential basis is for control orders. If it is good enough to restrict an individual's freedom, why is it not good enough to form the basis for a prosecution?
