Frequently Asked Questions
Questions regarding terrorism legislation.
Part 4 Powers
Does
a Public State of Emergency exist?
Why can’t
those suspected of terrorism be prosecuted?
Why is the UK so
reluctant to come into line with the rest of the world
in allowing intercept to be used in court?
Why can’t
evidential use just be added to what we do now?
Why is changing
technology such a problem?
Wouldn’t
use of intercept help to convict lots more criminals
and terrorists?
Why not just simply
remove the current prohibition on the use of intercept
as evidence so that you can choose what to use in court.
As product from
bugging can be used as evidence, why not intercept?
Why can communications
on an internal (private) network be used as evidence
but not those on a public network?
Wouldn’t intercept
as evidence solve the problem of those detained under
ATCSA Part 4 powers?
FAQ's about Deportation with Assurances
FAQs about Control Orders
Who will control orders be applied
to?
Who will decide
whether to impose the controls?
What are the kinds
of controls that could be imposed?
Can Control Orders
be challenged?
Does a Control
Order mean ‘house arrest’?
What will be
the media restrictions on identifying those subject
to Control Orders?
When will the
new powers come into force?
Does a Public State of Emergency
exist?
Yes. Our understanding of the threat has advanced from
where we were in 2001. An increasing intelligence base
and the investigation of both successful and thwarted
attacks both here and abroad has deepened our understanding.
It is clear, for example, that some British nationals
are playing a more significant role in the threats we
face. And that networks consisting of foreign nationals
remain. And that there is a crossover of individuals
within networks.
The Government needs to adapt to respond effectively
to this changing picture.
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Why can’t those suspected
of terrorism be prosecuted?
Prosecution is the preferred option when dealing with
all terrorists and we would prosecute wherever possible.
However, some of the material held in these cases is
inadmissable, and other material, which technically
admissable, could not be used without compromising national
security, damaging relationships with foreign powers
or intelligence agencies, or putting the lives of the
sources at risk.
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Why is the UK so reluctant to come
into line with the rest of the world in allowing intercept
to be used in court?
Because we have a lot to lose if we get it wrong.
Our ‘intelligence’ only approach, based
on decades of dealing with terrorism, brings with it
uniquely close co-operation between law enforcement
and intelligence agencies. No other country in the world
even gets close to this level of co-operation. None
of those involved in this work here would be willing
simply to swap our approach for any of the evidential
schemes operating elsewhere.
Our approach delivers very impressive results. For example,
in 2003 interception led to:
• seizure of 26 tonnes of illicit drugs;
• seizure of 10 tonnes of tobacco;
• detection of £390m of financial crime;
and
• 1,680 arrests. (A sampling exercise carried
out in the recent review showed the resulting conviction
rate exceeded 80%.)
In addition to arrests and seizures, our intelligence
only approach has over many years helped to prevent
and/or disrupt terrorism and serious crime. For obvious
reasons successes are rarely publicised. As tempting
as it might be to say how these successes are achieved,
disclosure of details would threaten our ability to
go on being successful in the future.
There is no evidence that other countries get better
results than the UK through their use of intercept as
evidence.
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Why can’t evidential use just
be added to what we do now?
Unfortunately it is just not that simple. If it were,
we might have done it years ago. No one else has done
it.
Some of the key issues are:
• We can’t simply transplant another country’s
legal model because our legal system is very different.
Like our approach to interception, our legal system
is also unique in being both adversarial and subject
to ECHR.
• Intelligence agencies would not be able to give
as much support to law enforcement if doing so was likely
to lead to exposure in court of their techniques and
capabilities. Other countries don’t have this
problem because their intelligence agencies don’t
support law enforcement to anything like the same extent.
• Finding a way of limiting the exposure of sensitive
material in courts is extremely difficult because our
disclosure rules rightly seek to provide the defence
with all information necessary to ensure a fair trial.
Therefore we can only justify withholding material when
it is strictly necessary and proportionate (terms based
on requirements under the ECHR).
• Our best efforts to devise a workable legal
model have shown that the result would be a very complex
scheme with different types of warrants subject to an
array of requirements and exemptions in order to balance
the needs of security with the interests of ensuring
a fair trial. The model could not be tested before it
is in place – which would be too late if it does
not work as expected.
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Why is changing technology such a
problem?
It does not make sense to change our system just as
technology is undergoing a step change and before we
know what that means for the way in which interception
is regulated and deployed in the future.
Over the next few years the world of communications
technology will change very significantly in lots of
ways. Terms such as ‘wiretap evidence’ will
soon be as redundant as talk of telephone operators
and switchboards is today. They will be replaced by
technologies such as Voice over Internet Protocol (VoIP)
where the human voice is broken up into many signals
transmitted across a variety of different routes before
being brought together again on delivery – rather
than being carried over a single line.
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Wouldn’t use of intercept
help to convict lots more criminals and terrorists?
No. Intercept evidence is not a ‘silver bullet’.
We already get very good results (see above). The review
of intercept as evidence showed that there might be
a modest increase in convictions of lower level criminals
with no guarantee that this would be sustainable. Experience
from other countries shows that the resources required
to ensure that intercept material can be used evidentially
would limit the number of evidential cases that law
enforcement could handle.
Intercept as evidence is not going to transform results
against the most serious criminals and terrorists who
tend to be the most security conscious in their use
of communications. In building cases against these people,
intercept provides only a part of the intelligence against
individuals - sometimes a small part. Its main value
is likely to continue to be to help intelligence agencies
and law enforcement to deploy other techniques –
eg surveillance, eavesdropping, use of informers –
in effectively obtaining evidence which can be used
in court. It does not stand alone. And we do convict
these people now without having to admit that intercept
helped in bringing them to justice.
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Why not just simply remove the current
prohibition on the use of intercept as evidence so that
you can choose what to use in court?
The simple removal of the prohibition on the use of
intercept as evidence without any attempt to provide
safeguards to protect sensitive techniques and capabilities
would do grave damage to the fight against serious crime
and terrorism. Without such protections, the intelligence
agencies simply could not do the vital work they do
now – including providing support for law enforcement
agencies.
The effort that would be required to handle all intercept
material to evidential standards would be a crippling
burden on the intercepting agencies.
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As product from bugging can be used
as evidence, why not intercept?
Exposure of capability in the case of interception
is potentially much more damaging because targets can
more easily avoid interception by changing the way in
which they choose to communicate. And one interception
technique may encompass many targets, some of enormous
importance, while one bug, if exposed, is unlikely to
compromise any other operations.
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Why can communications on
an internal (private) network be used as evidence but
not those on a public network?
In fact if a warrant is taken out to covertly intercept
a private network, the prohibition applies just the
same. But there is usually nothing covert or special
about techniques and capabilities involved in recording
communications on a private network and users have to
be warned that this may occur.
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Wouldn’t intercept as evidence
solve the problem of those detained under ATCSA Part
4 powers?
As the Home Secretary said in his statement to the
House of Commons on 26 January, there is a widespread
misconception that if we could only use intercept as
evidence, we would be able to prosecute those detained
under ATCSA Part 4 powers. However, the review of intercept
as evidence found no evidence to support this.
It is a common misconception that terrorists incriminate
themselves in telephone conversations. Intercept is
only a part – sometimes a small part – of
the intelligence in terrorist cases. It is not a “silver
bullet” and to suggest otherwise is, at best,
wishful thinking.
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FAQ's about Deportation with Assurances
Why can’t suspected terrorists
be deported?
The root cause of the concern is uncertainty about
the treatment such people are likely to receive if returned
to their country of origin. If we could find a way of
satisfying the UK's domestic courts - and the European
Court in Strasbourg - that the deportee's human rights
would be safeguarded on their return, we would then
be able to deport them.
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Why is the UK government attempting
to negotiate Memorandums of Understanding?
There are a small number of foreign nationals in the
UK whom we believe are involved in terrorist activities.
For technical, legal reasons, we are unable to prosecute
them. Removing them from the UK would disrupt their
activities, but we cannot do this either at present
because our courts are likely to rule that this would
be incompatible with the UK's obligations under the
European Convention on Human Rights and therefore unlawful.
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Which countries are you talking
to?
We are talking a range of countries
throughout North Africa and the Middle East.
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Control Orders
Who will control orders
be applied to?
Control Orders will be applicable
to anyone – whatever their nationality or claimed
cause – suspected of involvement in terrorism.
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Who will decide whether
to impose the controls?
The Home Secretary will make an
order where it is considered necessary to to protect
the public, and it is not possible (or not immediately
posible) to take alternative action (such as prosecuting
the individual or removing them from the country).
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What are the kinds of controls
that could be imposed?
We will use a combination of restrictions
to help prevent or restrict the activities of those
suspected of involvement in terrorism. Controls would
include a range of options such as:
- A restriction on the use of specific things (such
as communications equipment or computers),
- Limitations on people with whom an individual could
associate,
- A requirement to enable a suspect’s movements
to be restricted and monitored,
- A requirement to report to a specified person at
particular times.
The list is not exhaustive and restrictions will be
determined on a case by case basis.
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Can Control Orders be challenged?
The imposition of any Order and
its conditions, or any variation of those conditions
can be challenged.
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Does a Control Order mean
‘house arrest’?
No. Conditions in Control Orders
could include restricting movement where appropriate.
This might mean requiring a person to stay overnight
at a named residence for set hours. A named residence
could be a bail hostel or premises named by the Secretary
of State. It does not necessarily mean someone’s
home. It could also mean someone having to seek permission
before staying away from their residence.
However requiring an individual to remain at certain
premises at all times would amount to a deprivation
of liberty within the meaning of Article 5 of ECHR and
require a derogation from the Convention if this was
to be imposed. The Government has made it clear that
it does not intend to seek a derogation at this time.
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What will be the media
restrictions on identifying those subject to Control
Orders?
Individuals who are subject to
control order provisions will have the option of applying
for an anonymity order, as is currently the case with
those held under Part 4 ATCS powers.
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When will the new
powers come into force?
The necessary legislation will
be introduced into Parliament on 22 February for consideration.
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