Draft Terrorism Act 2000 (Code of Practice on Video Recording of Interviews) (Northern Ireland) Order 2003

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Mr. John Randall (Uxbridge): On a point of order, Mr. Pike. As the Minister has made a good point on why we should go ahead and consider the order, I wonder whether an adjournment would be possible, during which we could make sure that all members of the Committee had a copy of the code?

Mr. Wilshire: Further to that point of order, Mr. Pike. I thought that I heard the word suspension mentioned. You have just been given 14 pages of paperwork and, with the best will in the world, it will take you more than a second or two to look at all of it. I am not yet sure that there are enough copies for everyone. I do not think that we can carry out a democratic procedure if people have not had a chance to look at the documents.

The Chairman: I cannot adjourn the proceedings, but I can suspend them for half an hour and I shall do so to allow people to consider the documents. We will be back at half past three. I am sorry, but I have the power to do that and I have made that decision.

2.55 pm

Sitting suspended.

3.30 pm

On resuming—

Mr. Wilshire: Many MPs ask those of us who are involved in Northern Ireland issues what we find interesting about them. We have just realised that the subject is a little avenue of politics in this place, which is never without its surprises—and this afternoon's proceedings is one of them. I hope that all members of the Committee, including you, Mr. Pike, had a happy half hour reading what I had a happy half hour reading earlier in the day.

I can recall the points I have already made, but I am sure that a member of the Committee will remind you, Mr. Pike, if I go over the same ground. I shall try not to. I refer to page 5 of the code, item 3, which is headed ''Objections by the detained person''. Paragraph 3.4 states:

    ''If the detained person indicates that he/she wishes to tell a police officer about matters not directly connected with matters in respect of which he/she was arrested''

the exchange does not have to be recorded if it was not concerned with the same issue. However, it also says that in the event of any statement being made after the end of the formal interview, a note shall be made of that request in the custody record.

I assume that the reason for saying there can be circumstances in which people can speak to the police without being recorded is that they want to say something for which they do not wish to be identified. They could be in fear for their lives if they were to be identified, yet that request will be recorded in the custody record. Were someone to see the custody record, it would raise the issue of what was said and why such a request was made.

Will the Minister tell us who would have access to those custody records? If the original case when the interview was recorded were to come to trial, would

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both the defence and prosecution be given access to the custody record, in which case we would be handing to someone information that something had happened, which the people concerned did not wish anyone to know about? What are the consequences of that? I understand why it is a good idea to keep a note of what people ask, but such details will go into the custody record. I am not a lawyer, but I should be surprised if a custody record were not a matter that could come before a court and be counted as evidence.

Paragraph 4 on page 6 of the code is headed ''Requirements relating to video recording''. The Minister drew our attention to the fact that one of the changes being made was that interviews should be recorded on super VHS, or an equivalent or superior form. Paragraph 4.1 refers to

    ''a recording equal or superior to either of these.''

Who will determine what equipment is superior? There must be a technical understanding of what is equivalent or superior equipment. What happens if there is a dispute about whether it is an improvement, and not just someone's way of saving money? Who will be the referee to determine that the alternative equipment is as good or superior?

I am worried about the first line of paragraph 4.2. It states:

    ''Only one video recording, namely the master recording, shall exist''.

I can understand a law saying ''shall be made'', ''shall be kept'' or ''shall not''. I am wondering whether a law can say that something shall or shall not exist, because it might. There could be another master recording. For us to assert in legislation that only one recording shall exist is a strange way to word such measures.

I think I know what the Government are trying to say, but I ask the Minister to consider whether this is the right way of saying it. It is making an assertion about the physical impossibility of there being another master recording, and it is not in the hands of human beings to be absolutely certain that there will not be another one. It could be made a criminal offence for there to be one, and perhaps the code should be worded in that way.

Mr. Randall: Before my hon. Friend leaves the issue of the video, it occurs to me that, as all Committee members probably know, from time to time a video—even a new one—goes wrong. Is there any provision for that sort of eventuality?

Mr. Wilshire: Unfortunately, I have to tell my hon. Friend that I am not the author of this code, and I therefore do not know the answer to his question. However, the Minister has heard it and I hope that it will be added to the list of things that she will tell us about when she replies to the debate.

Although there can be only one master copy of a video, the code of practice describes circumstances in which copies can legally be made. The most obvious of those is where a defendant requires a copy to prepare his defence. Paragraph 8.3 states:

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    ''Where a copy of a master recording, or a copy of part of a master recording, is to be made available to a person . . . it shall be processed so as to obscure the identity but not the movements or actions of those appearing on it.''

Can the Minister tell us how it is proposed that that will be done? How is the identity of that person to be obscured on the copy of the video, and what assurances can the Minister give us that there are not electronic or technical ways to reinstate what has been obscured? The purpose of obscuring a person's identity is to protect them but I, as a layman in these matters, do not rule out the possibility that what can be obscured can subsequently be undone. The Minister must give us reassurances on that.

The Minister will be relieved that there is only one other question that I would welcome an answer to. Paragraph 9 on the destruction of master recordings describes the point at which tapes must be destroyed. It states that they must be kept for a minimum of six years, but it goes on to describe the circumstances in which they will be disposed of. One of those is when

    ''the prosecutor decides not to proceed with the case.''

I have no objection to that. If a decision were taken that there was nothing to proceed with, it would be sensible to destroy such items because of the amount of storage space they required. That might sound like a farcical point, but I had discussions on this issue with the Metropolitan police and they told me that they needed almost entire warehouses to store tapes for six years. The amount of material that we are talking about can be very considerable, so it is sensible to get rid of it when it is not needed.

Although one of the circumstances in which such tapes can be disposed of is when a prosecutor decides not to proceed with a case, I understand that some criminal cases in the United Kingdom have been ongoing for 10 or 20 years or more, because the police have kept the file open as a suspect has not yet been charged. Are we really talking about keeping such documents for that length of time? Should we not put some onus on the prosecutor by saying, irrespective of the difficulties that he faces, ''There comes a point when you cannot have that sword of Damocles hanging over a person's head for an almost indefinite period, just because nobody has got around to closing the file''?

Lady Hermon: Under the new Criminal Justice Bill, a case will be admissible if there is new and compelling evidence. These tapes might fall into the category of new and compelling evidence, so six years might be too short a period. It might have to be extended, because of changes to the criminal justice legislation.

Mr. Wilshire: I am always relieved when the hon. Lady is on the same Committee as me because I know that I will receive good legal advice when I stray into unfamiliar territory. I hear what she says, and it underlines my concern.

If there is a good reason for keeping something, I can understand it. I hope that in this place we never lose sight of the principle of people being innocent until proved guilty. It is unfortunate to have it tucked away somewhere just for the convenience of the court or a particular group of people, just in case something

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might be necessary. If there were a good case for more than six years, I would be willing to listen to it. If I was persuaded, I would say fine, let it be seven years; but there has to be a reason other than convenience.

The phrase

    ''or the prosecutor decides not to proceed with the case''

does not say that the prosecutor needs good reasons or is able to adduce reasons; it is just until he has decided not to. If he just does not get around to it, the file will get stuck in a corner and be forgotten about. Is that justification? I am not happy with that.

Those are the specific points that I wanted to raise, but the Minister raised some other points that I will deal with. She said that there could be a different way of finding an audit control ''where practical''. I am interested to know what she means by that. What judgment is made as to whether an alternative audit trail is sensible? On the point that I raised about super VHS equivalent or superior equipment, she said that sealing an alternative method could be used if it was the same, or better. Who is the arbiter of ''better'' if there were a dispute?

We have discussed the availability of documents. It bears underlining that the process of whether or not we have the documents is wholly unsatisfactory. There are genuine questions to be asked. I am sure colleagues will ask about matters that concern them. In the end, it does not matter what answer the Minister gives, because it is a case of ''Take it or leave it.'' We either say that we have considered it, or we have not.

However many sensible issues we may raise, if the Minister does not care to agree with them, so much debating time is wasted. I am sorry if some people feel that this is a process they should not be going through. It is irritating to be kept on a Thursday afternoon and it is a pity that the Committee was suspended, because someone might have missed a train. However, Parliament is charged with a job of work. It must make sure that the Government's actions are right, proper and justifiable, and that the Government are held to account. I make no apology for anything that has happened this afternoon. We are here to hold the Government to account, and this afternoon we have seen that they do not want to be held to account, are not prepared to raise papers and become annoyed when we ask questions.

3.42 pm

 
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