The right to a fair trial is paramount in a democracy, especially in the nation that is the birth place of the Magna Carta of 1215. 795 years later, there are a few unknown questions that the Home Office wanted to flush out. Among them is the use of electronic surveillance techniques used. Would the evidence stand up before the courts, what needed to be disclosed, and how would a defence team act upon such evidence. Turns out, the problems are many.
In a BBC report, the Home Office decided to test such concerns in a set of mock trials. What they revealed has humbled more than a few experts.;
A series of mock trials showed that using e-mails and phone taps was not compatible with strict rules around the disclosure of evidence to the defence.
Storing such material would also be too difficult and costly, the trials found.
That was the first set of problems determined. The financial costs, while absurd, are valid. Given the quality of security, IT management required for such records is expensive. The second set of issues are ones that likely defeat such use of information in several circumstances, in particular terrorism cases.
Under current UK law, material from intercepted e-mails or phone calls can be used only for intelligence purposes, but a possible method by which it could be used in court was devised in a Privy Council review.
Under the model, the prosecution did not have to store, transcribe and disclose all intercepted material to the defence, but independent lawyers said this was not compatible with the suspect's human rights.
Sir Geoffrey Grigson, a former judge who took part in the mock trials, said allowing the material could also have serious operational implications.
"With intercept, that will almost certainly require disclosure to the defence of information regarding techniques used by agencies and their capacities," he said.
The last issue winds up being a significant barrier. Intelligence communities are certainly not going to give a defence team or the public information on what techniques it uses. Home Secretary Alan Johnson commented;
Home Secretary Alan Johnson said it was "disappointing" that the trials had failed, but "no responsible government could proceed with implementation on this basis".
"Because of the additional demand on resources to make intercept as evidence admissible in court, this model could jeopardise national security and damage our ability to bring terrorists and other serious criminals to justice," he said.
The legal system is not perfect and experts agree that there are ways to protect evidence gathering techniques. The question is, will the public accept automatic policies and safeguards? A method of peer review will clearly be required before adoption can take place. Possibly a security-cleared Defence Trial Body can be created enabling key defence witness experts to testify before the courts and validating if specific kinds of evidence can be submitted before the courts.