House of Commons Hansard Debates for 12 Apr 1994

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gratuitously violent videos from reaching children, without, by some form of legislative accident, banning serious films that may move us, and indeed shock us, but which do so for a serious and genuine purpose.

The film that is often quoted is "Schindler's List". That example makes the distinction. I would not want my eight-year-old child to watch it--it would be deeply disturbing. However, it is not a film that any sensible people would want banned. That is therefore the terrain in which we must negotiate.

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By imposing a statutory obligation on the board to take the care and protection of children into account but leaving them with legitimate boundaries of discretion intact, we can meet the public concern while avoiding the pitfalls. That is a sensible way to proceed. That is what we are attempting to do. We now have the basis to proceed. We can add a proper amendment to the Bill--we may improve the Bill in the course of doing so-- and show that we have listened attentively to public opinion and yet legislated with care.

Mr. Alton : On the basis of the speeches made this evening, and the interventions by many right hon. and hon. Members, I am happy to withdraw the amendment that is before the House. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 60 --

Evidence in cases involving interception of communications

Section 9 of the Interception of Communications Act 1985 shall be amended as follows :

(1) Subsection (1) shall commence with the words "subject to subsection 5".

(2) The following subsection shall be added :

"(5) Where intercepted material shows that the person making the intercepted communication has committed an offence, evidence to prove the relevant content of intercepted material which may include a tape recording thereof shall be admissible to proceedings against that person for that offence.".'.-- [Mr. Trimble.]

Brought up, and read the First time.

Mr. Trimble : I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Dame Janet Fookes) : With this we may discuss the following : New Clause 61-- Penalties for membership of proscribed organisations

(1) In section 2(2)(a) of the Prevention of Terrorism (Temporary Provisions) Act 1989 after the word "term", there shall be inserted "of not less than three years, and" and the words "or a fine or both" shall be omitted.

(2) Section 2(2)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 shall be repealed.

(3) In section 28(1) of the Northern Ireland (Emergency Provisions) Act 1991 after the word "term", there shall be inserted the words "of not less than three years and" and all the words of the subsection after the words "ten years" shall be omitted.'.

New Clause 62-- First hand hearsay

.--(1) Notwithstanding any rule of law or provision to the contrary, a statement made by a person in a document to a police officer or some other person charged with the duty of investigating offences or charging offenders shall be admissible in a trial on indictment for a scheduled offence under the Northern Ireland (Emergency Provisions) Act 1991, or in any criminal proceedings related thereto, as evidence of any fact of which direct oral evidence by him would be admissible.

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(2) For the purposes of this section a document includes an audio or video tape recording.'.

New clause 63-- Investigations by the Royal Ulster Constabulary . Section 57 of the Northern Ireland (Emergency Provisions) Act 1991 shall be amended as follows

(1) The following subsection shall be substituted for subsection (4)

"(4) This section applies to any investigation by the Royal Ulster Constabulary

(a) into the existence of

(i) the resources of a proscribed organisation ;

(ii) funds which may be applied or used for the commission of, or in furtherance of or in connection with acts of terrorism connected with the affairs of Northern Ireland ; or

(iii) the proceeds of the commission of such acts of terrorism or of activities engaged in furtherance of or in connection with such acts ; or

(b) into the activities of an organisation concerned in the commission of acts of terrorism".

(2) In subsection (5) for the references to paragraphs (a) and (c) of subsection (4) there shall be substituted references to paragraph 4(a)(i) and 4(i)(ii) respectively.

(3) The following new subsection shall be added as subsection (6) :

"An authorised investigator appointed in relation to an investigation under paragraph (4)(b) of this section shall be a barrister or a solicitor of at least 10 years standing".

(4) Schedule 5 to the Northern Ireland (Emergency Provisions) Act 1991 shall be amended as follows

(1) The following sub-paragraphs shall be added to paragraph 2 "(8) A notice in writing served under sub-paragraphs (1) or (2) of this paragraph may provide that the questions may be answered by a written answer or the information furnished as the case may be by post.

(9) A person required to appear before an authorised investigator may be accompanied by a solicitor".

(2) In paragraph (5) all the words after "paragraph 2" shall be omitted and there shall be inserted the words "may be admissible in evidence.".'.

Mr. Trimble : It is my task to refer to new clause 60, with which we are taking new clauses 61, 62 and 63. These new clauses relate primarily to anti-terrorism legislation and intend to strengthen that legislation. Obviously, they are framed with a view to the terrorist situation in Northern Ireland, but they have implications for the kingdom as a whole. Indeed, one of the interesting aspects of the Bill is that it extends to the whole of the United Kingdom a significant number of anti-terrorism provisions that hitherto have applied only to Northern Ireland. It is appropriate that that should be done.

Of the four new clauses, new clause 60 is general in its extent. While terrorism was part of the background to the thinking behind new clause 60, the new clause is not so limited. It is trying to make admissible in criminal proceedings the results of intercepted communications--what is referred in the United States to as wire-tap evidence. There is legislation that regulates the interception of communications--the Interception of Communications Act 1985. That Act provides a legal regime by which the authorities can be authorised to intercept or to have forms of electronic eavesdropping on communications that are being made.

Nothing in the new clause in any way changes the range of circumstances in which interceptions can take place ; nothing in the new clause extends the extent to which there can be electronic surveillance or eavesdropping. I am prepared to concede that in some respects the new clause may not be happily drawn, but I am sure that the Minister is aware that this is a complex area, and it is not easy to draft provisions accurately.

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The new clause seeks to enable wire-tap information, whether in the form of actual tapes or transcripts, to be admissible in court. Under the Interception of Communications Act 1985, intercepted material as defined in the Act is not admissible. Indeed, it is now clear--any doubt was removed by a House of Lords decision in November last year--that intercepted material is not admissible in court, except in limited circumstances which are not relevant to this debate. That is undesirable. In nearly all the countries where there are serious terrorist problems or organised crime, what we can call wire-tap evidence is admissible.

A clear example is to be found in the United States. That country, having decided to undertake its war against organised crime, introduced the RICO-- racketeer-influenced corrupt

organisations--legislation in 1970. We were told that this was the basis of amendments to the Northern Ireland (Emergency Provisions) Act 1991. When the RICO code was introduced the United States also provided for wire-tap evidence to be admissible in court. Indeed, intercepted material has been the core of the prosecution evidence in many major cases against the Mafia and others engaged in organised crime.

I suggest that there is a clear parallel between organised crime, including Mafia-type activity, and terrorism. In any case, as there is organised crime relating to the drug problem in the rest of the United Kingdom, these provisions would be appropriate.

Hon. Members may recall a story in the Sunday Times of last weekend about the bombing of the Baltic Exchange--the St. Mary Axe incident. It appears that the prosecution case has collapsed as a result of witness intimidation. Where witness intimidation is rife, as in terrorist and drug situations, one has to consider what else can be done.

We have already changed the legislation concerning the admissibility of confessions. This has provided some scope, but there is still the problem that, because witnesses will not come forward, evidence is not forthcoming. One has to consider other opportunities for the production of evidence. Material intercepted as a result of electronic surveillance is an obvious example.

It is no secret that this new clause, together with the others that I shall propose, would make changes in the law that are currently being sought by the Royal Ulster Constabulary, and I know that they are being considered by the Government. Part of the objective in bringing the provision forward is to ensure that the debate takes place in a public arena and to enable the Government to give us a report, if not a decision--I should like a decision --on the course and extent of their thinking.

Indeed, in recent weeks this matter has been dealt with to a considerable extent in the media. The Irish edition of The Sunday Times of 20 March contained an article from which, as it did not appear in the edition that circulates in England and Wales, I should like to quote a paragraph referring to various initiatives being promoted by the police with a view to dealing with the terrorist situation.

The paragraph says :

"A second initiative is to allow Government prosecutors to use recordings from telephone tapping as evidence in court. MI5 and the RUC say senior IRA and Sinn Fein members could have been prosecuted if police had been allowed to use tapes against them. They cite one double murder last year, in which they knew who

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planned the killings but were unable to act because the phone tap evidence was not admissible in court. Dozens of other terrorist prosecutions have also been dropped because intelligence material is not admissible in court."

I do not know whether that report is factually accurate. It is good that the Minister of State, Northern Ireland Office, who is responsible for these matters is present. Perhaps he will take the opportunity to comment on the story's accuracy.

If it is correct, dozens of cases where prosecutions might have been brought successfully had this provision been in force are having to be dropped, and terrorists are given a further lease of liberty and opportunity to commit crimes--to kill and injure people and destroy property. For that reason alone, this matter deserves serious consideration. It applies not just to terrorism but to all organised crime, especially in drugs.

According to the report from which I have quoted, both the RUC and the Security Service--MI5--want this provision. Other press reports--I refer to a Sunday Times story of 27 March--say that the Association of Chief Police Officers, the customs people and the Home Office oppose it.

I think that we are entitled to know why that is. I do not know why, although I can think of some possible reasons. There may be fear or concern about whether the tapes could be doctored or interfered with. That is a possibility, but we have the technology to enable us to tell whether that has occurred to a certain extent. The court can decide whether the evidence is sufficiently reliable to proceed. Another reason given for fearing that it might not be wise to admit such evidence--it is said that this reason has been put forward by the customs and the Association of Chief Police Officers, and the Minister can say whether that is accurate--is that it might disclose to criminals the extent to which the interception of communications is taking place. It has been suggested that interception is now extremely widespread, and if the material were admissible in court it would alert the criminals.

I think that that argument is quite misconceived. It is silly to suggest that those involved in organised crime and terrorism are not aware of that possibility. They are of course aware of it. They know that the interception of communications is possible and--I dare say--they may have a better idea than any of us on the Back Benches of the extent to which interception takes place. They are probably more familiar with the technology for the interception of communications. I do not think that the argument holds water.

In any event, the new clause imposes no obligation to disclose material. We are not saying that those involved must use wire-tap evidence in all cases, and it can be used as it is at present. Wire taps are used to intercept criminals, and other evidence which is obtained can be used. Those involved in organised crime are well aware of the extent of wire tapping.

Members of my party--and I personally--have reason to know that it is quite extensive. I remember several years ago when the telephone exchange at our party headquarters in Glengall street suddenly went on fire. Some persons were for some reason pumping so much extra energy into the telephone wires that the exchange went on fire. I also remember one occasion in 1986 when my telephone blew up at the wall socket. There was a bang and a wisp of smoke, and I got a telephone engineer out to examine and repair it. I asked what had happened to my

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telephone, and was told that there must have been a sudden surge of power on the line. I asked what could have caused that, and I was told that it could have been something like a lightning strike. Does that mean, I asked, that it was a special lightning strike which hit only my telephone wire and nobody else's ? The telephone engineer shrugged, smiled and walked on.

It was probably an attempt by the Northern Ireland Office to discover what my party was doing with regard to our opposition to the Anglo-Irish Agreement in 1986. That, of course, would not have been within the terms of the Interception of Communications Act 1985. Any bugging of the Ulster Unionist party's telephone exchange would not have been within the terms of the Act, either. That is a mystery which we will leave to another day.

Those two incidents merely show that people know that the practice is widespread. The argument that making such evidence admissible in court would alert people to the possibility simply does not hold water.

Another factor which makes it necessary to consider such a clause stems from the House of Lords decision which I mentioned earlier in the case of the Queen v. Stephen Preston, on which their Lordships delivered judgment on 4 November. That case showed that there is a serious dilemma in the matter. In recent years, the law on the disclosure of information to the defence has developed considerably. There are considerable obligations on the Crown to make sure that any unused material which might assist the defence is disclosed. Many of the laws have been developed with particular regard to the Ward case, and to the other cases in which miscarriages of justice have occurred recently. A tension between those laws and the provision in the Interception of Communications Act preventing disclosure came to light interestingly in the Preston case. In that case, it was clear that the authorities became aware of the drug smuggling operation as a result of electronic surveillance. On the basis of the surveillance, they intercepted the consignment of drugs--or the money involved--and persons dealing with it. The accused, Preston, argued that he was acting under duress, and that the telephone conversations that had been intercepted would have proved that. Relying on the Ward case, among others, he tried to compel disclosure of the intercepted communications to assist his defence. The Attorney-General instructed prosecuting counsel that they were not to disclose the material concerned, and were not even to inquire into it.

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In an interesting passage in their judgment--it is only a couple of sentences, Madam Deputy Speaker--referring to the Attorney-General's argument that there could be no disclosure of the wire-tap evidence even if it would assist the defence, their Lordships said : "If the Attorney- General is right, it must follow that, even if the contents of the intercept would clearly demonstrate to prosecuting counsel that the accused person is innocent, he must be kept in ignorance of it, and in the interests of secrecy left to press unwittingly for an unjust conviction. My Lords, this is raison d'e tat indeed, and I would not hold it to be the law of England unless compelled to do so. I find no such compulsion in the Attorney-General's advice, for even if it gave a sound reason for refusing disclosure to the defence . . . the logic cannot be transferred to the supply of material, admissible or otherwise, to prosecuting counsel. If this too is to be withheld, a justification must be found elsewhere."

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Some hon. Members might find in that sentence an echo of another inquiry that is taking place, and of other recent cases.

Their Lordships went on to find that, because of the express terms of the Interception of Communications Act, there was a justification elsewhere.

I find the tenor of the earlier part of the quotation interesting, as it shows that their Lordships consider that withholding that information, where it might assist the defence, is in principle objectionable. I should have thought that, for that reason alone, and quite apart from the advantages that it might give the prosecution, the Government must consider carefully whether intercepted material should be made available and be admissible in proceedings. I am prepared to concede that the drafting of the new clause may not be ideal, but an important issue is involved. It will greatly strengthen the security forces in Northern Ireland when dealing with terrorist operations, as well as those in England and Wales-- perhaps I should say, especially those in England and Wales, because terrorist operations there must depend to some extent on communications with the bases in Northern Ireland and the Republic of Ireland, so the interception of communications would be especially useful, and might enable the prosecution of terrorists.

The interception of communications would also be useful when dealing with organised crime and drugs, and I hope that the Government will seriously consider the matter.

New clause 61 would increase the penalties for membership of proscribed organisations. That offence has been on the statute book for a long time, but it is rarely used. Why is that the case ? Very often, it is used as a back-up offence--after someone has been charged with a series of specific offences, the sweeper of membership is added. I am told that, during the past three years, there have been no summary charges, and only four on indictment, where membership is the only charge laid. In those four cases, one was acquitted and three were convicted but received suspended sentences. That cannot be right.

Membership of a proscribed organisation must be a serious offence. It cannot be caused accidentally. Joining is a very deliberate act and cannot be done inadvertently. I understand that proscribed organisations all have elaborate induction ceremonies for members--swearing in and all the rest-- so joining is a very deliberate act ; and because of the crimes and offences that terrorist organisations have committed, joining such an organisation should not be treated lightly.

I cannot imagine how it is possible, or how a court could consider it appropriate, for this to be a matter for which there should only be a suspended sentence. That is why, in this new clause, the minimum sentence is prescribed within the terms, and the existing maximum retained. It would be worth the authorities looking more seriously at this offence. I am sure that there are cases in which it may be difficult to prove that a person has committed a specific offence, a particular shooting or a particular bombing, yet it would be possible to assemble material to show that such a person was a member of a proscribed organisation.

We can think, perhaps, of some of the godfathers who are particularly well known, of whose membership of a proscribed organisation nobody in his right mind has any doubt. Let us consider, for example, the case of Mr. Martin

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McGuinness. For many years, Mr. McGuinness was quite happy to have newspapers refer to him as chief of staff of the IRA and as a member of the IRA's army council.

He is now a little bit reluctant about it, because my hon. Friend the Member for Fermanagh and South Tyrone (Mr. Maginnis) has taken to naming him repeatedly in this respect, and Mr. McGuinness is now pretending that he is not such a member ; but, in view of his past conduct, the statements that he has made and the statements that he has allowed to be made about his membership, I would have thought that there would be no difficulty in laying the charge of membership and prosecuting it successfully.

I am amazed that it has not been done. When we consider the material that was disclosed in the television programmes "The Cook Report" about that individual, it is amazing that nothing has happened. It is scarcely surprising that rumours abound in Northern Ireland that the Northern Ireland Office has intervened to prevent police action against Mr. McGuinness and that this is the only reason why action has not been taken. But that is perhaps an individual case that it would be inappropriate to pursue at any length at this stage. My point is that membership offences should be taken more seriously and carry more effective penalties.

New clause 62 deals with what is called "first hand hearsay". When we discussed this in Committee, the Minister of State, Home Office referred, quite rightly, to the fact that the Royal Commission had recommended that this issue be looked at by the Law Commission, and this recommendation is itself a recognition that in many respects the hearsay rules are outmoded.

They have been largely discarded in civil cases, but I do not think that the reference by the Royal Commission to a reconsideration of the matter is a good enough reason for not proceeding with new clause 62. New clause 62 applies only to the Diplock courts--in other words, the non-jury courts dealing with scheduled offences in Northern Ireland. For that there is no need to wait for a Law Commission recommendation. How long will the Law Commission take ? It is not a body noted for its speed of action. This is something that we could deal with now.

It is particularly appropriate to deal with it in Diplock courts, because there is no jury there, just as in civil cases there is no jury. Because of the absence of a jury in civil cases, Governments have felt quite happy to modify considerably the hearsay rule so that first-hand hearsay is admissible. I think that there is an argument for introducing it into the non-jury Diplock courts too.

It is important that this provision be passed, so that first-hand hearsay would be admissible. I understand that there is a large number of cases in which persons being questioned by the police are happy to name, while being questioned, other persons involved in a terrorist incident--their accomplices or whatever--but will not give evidence to that effect in court, with the result that the accomplices cannot then be proceeded against in court.

However, if first-hand hearsay were admissible, the police officers who conducted the questioning could themselves give evidence to the effect that X, when questioned, named A, B and C as his accomplices--or, as is so often the case, as the persons who instructed him to carry out the offences or the persons who planned them.

The people who are escaping from justice because we do not admit first-hand hearsay are very often the

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organisers and planners of terrorist offences, the commanders, whereas it is the foot soldiers who are being caught. It should be the other way round.

That brings me to new clause 63, which is specifically directed to the godfathers--the commanders who are going free, whom we know are involved in directing terrorist organisations, who have been doing so for decades and who remain at liberty. The law currently does not touch them.

Lady Olga Maitland (Sutton and Cheam) : I congratulate the hon. Gentleman on instigating and moving those important clauses. Will he, however, confirm that the clauses were drawn together in consultation with the Royal Ulster Constabulary ? It is to be hoped that the Government will therefore pay extra attention to his remarks.

Mr. Trimble : I am happy to confirm what the hon. Lady has said. She is right to remind me that new clauses 61, 62 and 63 were tabled as a result of consultation with the RUC, and that they embody the changes in the present form that the RUC desires.

New clause 63 is directed especially at the commanders of terrorist organisations--the persons who direct them. I was interested to note that, when we discussed the subject in Committee, the Minister of State said :

"the increasing ability of a category of offenders, or a criminal organisation, to exploit the relevant aspect of the law to its own ends and to cause intense public suffering and hardship without fear of punishment can justify exceptional measures to rectify the balance in the interests of justice."--[ Official Report, Standing Committee B , 1 March 1994 ; c. 1092.]

I focus on the phrase

"can justify exceptional measures to rectify the balance". New clause 63 is one such measure. What the Minister said in Committee is an argument in favour of the new clause.

I should like hon. Members to appreciate that the new clause builds on existing provisions of the Emergency Provisions Act 1991. Under that Act, authorised investigators can be appointed to inquire into the funds of a proscribed organisation and the proceeds of the commission of terrorist acts. Those authorised investigators can require persons to answer questions or to furnish information. As the law stands under the 1991 Act, failure to answer those questions and failure to supply that information is an offence carrying with it a sentence of up to five years imprisonment, so we already have on the statute book provisions which direct that failure to answer questions or to supply information is an offence. That has made serious inroads into what is called the right of silence with respect to the financial aspects of terrorism.

New clause 63 would extend the effect of those existing provisions to cover the more serious offence of directing terrorist organisations. It would bring the godfathers of terrorism into focus so far as the legislation is concerned. It does not create a new exception ; it takes an existing exception which is on the statute book, and extends it.

It is not a dangerous extension or a new fundamental provision, as was said in Committee ; it is an existing provision, which the Government themselves have put on the statute book, and which the Government are currently using. Authorised investigators are being appointed. They are requiring people to furnish information, and that requirement carries with it the penalty of five years imprisonment if they fail to do so.

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I cannot see the justification for saying that it is all right to require people to answer questions under pain of imprisonment about terrorist funding without requiring them, under the same penalty, to answer questions about directing terrorist organisations. This issue was referred to in an article by Patrick Wintour which appeared in the Guardian on, I think, 11 March. I do not know whether the information is accurate, and perhaps the Minister will confirm it. The article states :

"So far, the Government has rejected outright the proposal that it should be an offence to refuse to talk during an interview, but ministers have said that they are still consulting with the RUC about giving greater powers to the authorised investigators and to the admissibility of their evidence."

I will be interested to hear whether the Minister can confirm the accuracy of that statement.

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Sir Nicholas Fairbairn (Perth and Kinross) : I admire the hon. Gentleman's brave speech ; it is most courageous. But I ask him to pause on the question of hearsay evidence, because anybody can say that someone said something which they did not say.

Mr. Trimble : I thank the hon. and learned Gentleman for making that point. Indeed, it enables me to draw attention to the fact that the new clause provides that tape recordings of interviews would be admissible in this context, which would provide proof without giving rise to the problems mentioned by the hon. and learned Gentleman. But that point arises in new clause 62, and I want to return to new clause 63.

In Committee, the Minister said, as part of his reason for not proceeding further, that more research had to be carried out and that time was needed to take soundings. I would like to know what further research and soundings are necessary. Are the soundings being confined to those in Northern Ireland who would have to operate such provisions, or are they being taken on a wider scale and involving people outside Norther Ireland ?

When we discussed these matters last year--I raised similar provisions in June during debate on last year's Criminal Justice Bill--on 22 June in Committee, the Minister said that the proposals were a bit premature. On Report on 29 June last year, I was assured that "full and urgent consideration" had been given, and on 1 March this year, in Committee, that had become "still under active consideration".

Will the Government place a term on that consideration ? As they have extended it now, can they tell us how long that consideration will continue ? Or will we be making the same provisions in next year's Criminal Justice Bill ? I assure the Minister that I have the persistence--and I know the Royal Ulster Constabulary has the persistence--to pursue this matter further. I think that it is about time that we received a comprehensive answer from the Government on this issue.

As the Minister knows, the issues go back to the press conference called by the Chief Constable of the RUC on 27 May 1993. On that occasion, he listed a number of what he considered to be desirable changes in the law. When I consulted the RUC about these proposals at the end of last year, I was told that the RUC had a shopping list--if I can use that phrase--of eight measures. Of those eight measures, one has been accepted by the Government in response to an amendment I put down in Committee on the

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Bill, concerning plucked hair samples suitable for DNA analysis. I acknowledge that that was an important move on the part of the Government.

That is just one of the eight measures on the RUC shopping list. Another three are in the new clauses, dealing with authorised investigators, first- hand hearsay, and the admissibility of intercepted communications.

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