Examination of Witnesses (Questions 47-59)
Thursday 8 July 2004
LORD NEWTON
OF BRAINTREE
AND MR
MICHAEL TODD
Q47 Chairman: Good morning Lord Newton
and Mr Todd. Thank you very much for joining us. I know that both
of you have been able to hear at least half of the preceding session.
Again could I ask each of you very briefly to introduce yourselves
for the record? Lord Newton?
Lord Newton of Braintree: I am
here because I was Chair of the Privy Counsellor Review Committee
on the 2001 Act. The full biography might take a little while—most
of you do know it—but I was a minister for the whole of
the period from 1979 to 1997 mostly in Health and Social Security.
I live quite close to Mr Russell's patch so if he does get himself
in the newspapers my eye might even fall on it.
Mr Todd: Michael Todd, Chief Constable
of Greater Manchester Police, formerly Assistant Commissioner
in the Metropolitan Police, so some of the discussion I have just
witnessed I am glad I did see because I found it very interesting
and very relevant.
Q48 Chairman: Let us pick up a few of
the issues that came out of the earlier session. Let us look at
arrests to start with—Section 41 powers—rather than
stop and search. The record seems to show that 562 people have
been arrested under the Terrorism Act 2000. Of those, 97 were
charged with offences under that Act; 14 convictions so far; a
total of 152 other people were either released into custody of
immigration or charged under other legislation. Can I ask each
of you what you think we should make of what seem to be a low
number of prosecutions in relation to the number of arrests, prosecution
under terrorism offences as opposed to other offences.
Mr Todd: I think one of the problems
of this—and I think this was starting to come out very much
in the last session—is that you arrest people on suspicion
of an offence because you have intelligence, you have information
which comes to the police to say there are reasons to arrest this
individual. You then have to go through an investigative process
with that individual; you have to interview him about it. Not
all arrests result in the person being charged. We all know that
the terrorism legislation and the investigation of terrorism is
even more difficult to investigate than normal criminal offences.
One of the things which I think is the great problem in terms
of the public debate—and I think this came out in the session
earlier—is almost a misunderstanding about the difference
between intelligence and evidence. We tend almost to stereotype
the whole thing by saying that if these people are released—because
not everyone is charged—then that is a failure totally.
Actually I do not necessarily regard that as a failure. Often
it is a disruption, a deterrent. If I can give you an example,
let us say that a mythical person is a drug dealer and discovers
. . .
Q49 Chairman: I do not want to stop you,
but if you are going to give examples could you give examples
in relation to terrorism, the type of intelligence that you would
regard as adequate to launch an action under Section 41. I think
that would be more useful to the Committee.
Mr Todd: I was just trying to
provide a parallel. Let us just say, then, that an informant comes
to the police and says, "I have information that this particular
terrorist is going to assassinate somebody. Fred Smith is going
to be assassinated on a particular date as I understand it but
I am not going to give evidence to you, I am not going to give
you any more confirming information whatsoever." We do not
actually have evidence at that stage; we have information and
intelligence. Let us just say that then we go to the Home Secretary
and apply for a warrant for interception of communications and
we hear over a telephone intercept evidence which says, "I
am going ..."—and you actually hear this person, the
suspect, talking to someone else—"... next Thursday
and I know where this woman that I want to assassinate is going
to be. They are going to be walking down this particular street."
Let us just say that they are silly enough to say, "I am
going to take a yellow-handled knife and I am going to stab them
through the heart and I am going to do it outside that telephone
box." That is fairly specific intelligence for the police
to actually act. Let us just say that now, as a police service,
we then put surveillance on a telephone box, we follow the person;
again this is intelligence, it is not evidence. Let us say that
we see the suspect who starts walking down the street, stops right
next to the telephone box—just as is suggested on the telephone
intercept—and we see the woman who is going to be subject
to this assassination walking down the road. She walks down the
road and just beforehand we decide that we cannot wait any longer,
we have to pounce. We arrest this individual by the telephone
box and in their hand they have a yellow-handled knife—just
small enough not to breach the offensive weapons legislation—and
we arrest him. Would any normal member of the public actually
say that we had not saved that individual's life? I do not think
they would; I think they would say yes, we have saved that person's
life. We have got it on intelligence; we have got it on the telephone
intercept. We would have enough intelligence and information to
justify that person's arrest. Could we convict that person without
an admission? Not a hope in hell because they have not actually
done anything wrong. I think that is one of the crucial things.
A lot of this is about us gaining intelligence from all sorts
of sources and we have to act on that intelligence and that has
been proven, but it does not always result in a prosecution.
Q50 Chairman: I think we can all understand
that there will be cases where the intelligence may have been
good and you may still be convinced that it was correct, but you
are not able to prosecute and that is why there is the debate
about the use of intercept evidence in court and all those kinds
of issues. However, 562 people have been arrested under Section
41 powers and there have only been 14 convictions. Obviously you
are not familiar with all of those arrests, but it is a little
hard to believe that all of those arrests were based on intelligence
as good as you have given us in this hypothetical example and
you have simply not been able to prosecute. Surely it must be
the case—and it would be useful to have some sense of how
many—that a substantial number of those arrests were carried
out on intelligence of a great deal lower quality than the example
you gave us.
Mr Todd: Yes, it would. Without
going into complete details, within my own experience where you
have very, very good intelligence about some people, in developing
that intelligence you then say that there are other associates
with this person which draw them into this web: are they connected
with a particular plot to commit some sort of terrorist outrage
or are they involved in financially providing support for terrorists?
You develop a pattern and eventually you have to make a decision:
are we going to arrest these people or are we not? The point of
arrest is to see if you can substantiate that and actually gain
evidence through the investigation process, through forensics,
through looking at computers, through interviewing the suspects
and to see if you can get any further, but frequently you cannot
get any further.
Q51 Chairman: Lord Newton, we have seen
that a substantial number of prosecutions that do take place after
arrest under the Terrorism Act are for offences that are not to
do with terrorism. The majority of the members of this Committee
voted for this legislation on the basis that it was necessary
to deal with terrorism. How concerned should we, as members of
Parliament, be that more people get charged with offences that
are not to do with terrorism as a result of the legislation than
get charged with terrorism?
Lord Newton of Braintree: Can
I preface anything I say with just one remark? It appeared to
me from the earlier part of your session this morning and, indeed,
from a conversation I had with the Committee secretariat, that
quite a lot of your questions are directed at the provisions of
the Terrorism Act 2000, not the Anti-Terrorism, Crime and Security
Act 2001. My Privy Counsellor Committee had quite enough to do
looking at the 2001 Act and we did not spend a great deal of time
looking at the 2000 Act. Indeed, when I went to look up Section
41, to which there had been much reference, I discovered it was
to do with biological toxins in the Act with which I was concerned.
I hope you will understand if some of my remarks are more cautious
than you might wish. That will also reflect the fact that it is
six or seven months since I was intensively looking at this material.
With that preamble, coming to your question, it was a point that
came up quite a lot in the course of our studies and one of the
strong thrusts of our report was that the Act, although it had
been perceived as largely directed at terrorism—of course
its long title goes wider than that so there is a legalistic argument
to be pursued—the psychology was that this was all required
by the events of 9/11 and it became increasingly clear to us that
there were a lot of powers in the 2001 Act that were not really
specifically directed at terrorism, nevertheless, they were reasonably
sensible on their own. Let us take the classic case of extending
the powers of the British Transport Police and the MOD police
to operate outside the boundaries of their particular territorial
jurisdictions. It appeared to us to be entirely sensible, but
the notion that it was primarily directed at terrorism melted
away when it was discovered that the British Transport Policing
powers had almost entirely been used against football hooligans
who are not normally within the definition of terrorism in the
sense that we are talking about. We did have some concerns about
that against the psychological background of the way in which
the legislation had been passed and the speed with which it had
been passed, and therefore what we recommended—and I do
not think it has been terribly warmly greeted by Her Majesty's
Government—was that when opportunities arose some parts
of this legislation should be placed into their more normal mainstream
context. For example, the powers of the MOD police and the British
Transport Police really belong in defence legislation and in transport
legislation and when an opportunity arises that is where they
should go.
Q52 Chairman: I accept the role that
your Committee played, but on the issue of principle would you
have a view on my question as to whether members of Parliament
should be concerned about an Act which certainly was brought in
for terrorism purposes is now leading to a lot of convictions
for other matters. Should that be a matter of concern for us?
Lord Newton of Braintree: I listened
with great interest to what Mr Todd was saying. Some of these
distinctions are very difficult to draw. We all know that. I thought
that Mr Todd gave a very balanced reply. I find it quite difficult
to say how far I think you should be concerned without delving
into what is actually happening rather more than I have had the
opportunity to do. I think it is legitimate for you to raise the
question; I think it would be simplistic for me to give you an
off-the-cuff black and white answer.
Mr Todd: I do not think you should
be concerned. You might say that I would say that, would I not,
but I think with reason. As I said at the beginning, it is incredibly
difficult to actually gain the evidence to prosecute someone for
terrorist offences. With some of the operations that we have run
nationally over the last twelve months some have been successful
and we have been able to charge people over them. However, the
way in which terrorism is always evolving, what has frequently
happened with some of these cases is that we have arrested people
under the terrorism legislation but the evidence that we have
actually gained during the course of that investigation has allowed
us to charge people with fraud offences or theft offences for
example. You might say that you did not give us the anti-terrorist
legislation to arrest people for fraud. We are not arresting people
for fraud; that is the outcome because if you find people are
engaging in identity theft or identity theft to finance terrorism
or finance a particular terrorist group, you may end up prosecuting
them under fraud, theft, counterfeiting or a whole variety of
legislation, but actually we know that the intention of that operation
was an anti-terrorist operation. It is just the most appropriate
legislation that fits the evidence that we gain as a result of
that investigation and frankly it is a lot easier sometimes to
prosecute someone for counterfeiting, fraud or theft.
Lord Newton of Braintree: Could
I just add one further word? I think the area that you should
be most concerned about in general terms is an area where additional
powers which would probably have been felt to erode civil liberties
too far if they had been directed at what I will call normal or
general offences were justified and accepted on the basis that
this was a necessary evil to deal with the evil of terrorism and
where it is clear from subsequent experience that in practice
those powers were being fairly systematically used—if that
is the case, I am not in a position to give you any figures—for
non-terrorist offences. Is that a balanced way of putting, as
it were, the identifiable area of potential problem.
Q53 Bob Russell: Mr Todd, who, if anyone,
reviews the quality of intelligence leading to an arrest?
Mr Todd: On some occasions I do,
even. I have to talk about Greater Manchester Police and because
of the size of our particular organisation I have an assistant
chief constable in charge of crime who has a direct line of responsibility
for special branch and if they are going to run a counter-terrorism
operation where we are going to arrest someone that individual
now—at assistant chief constable level—will be crucially
involved in it. He will be crucially involved in the planning.
We want our fingerprints all over it, so to speak, in terms of
accountability. They will come to me and I will actually delve
into the quality of the intelligence. On one or two of the high
profile cases in particular they have come to me and I have said
that I really want to understand exactly what the evidence is
in this case.
Q54 Bob Russell: Would you say that that
is typical of all 43 police authorities?
Mr Todd: I think it is very difficult
to say. When I was working within the Metropolitan Police—the
biggest volume contributor to this—David Veness took a very,
very deep personal interest in this when he was at the same level
of myself and so did John Stevens. I actually saw that on a daily
basis working with the Met.
Q55 Bob Russell: I wonder if you could
take that away so the chief constables might want to consider
the best practice that you have just referred to. Do you think
the police authorities have a role at all in this?
Mr Todd: Speaking for the Greater
Manchester Police Authority, I have made it a practice—albeit
in closed session—to include the Police Authority sometimes
in advance of operations that have taken place because they understand
the community impact that some of these operations can have. Sometimes
they are actually drawn into the confidence and certainly afterwards
we have always given an account of the operations that we have
run, sometimes in public and sometimes in private.
Q56 Bob Russell: Lord Carlile has suggested
that new offences might be created (such as being involved in
the preparation of an act of terrorism, as I understand it) and
Lord Newton, your Committee suggested defining a set of offences
characteristic of terrorism. Do you think that would reverse the
low number of prosecutions if your Committee's recommendation
was implemented?
Lord Newton of Braintree: I think
that is very difficult to judge. Our concern was to increase the
number of prosecutions as distinct from indefinite detentions
under Part 4 of the 2001 Act. We come back to this issue that
we were coming at this from a different angle. I think the answer
to your question is that it might, but our primary aim was to
find possible ways, and I emphasise that what we presented was
a menu of possibilities that we thought needed further consideration
and not—to use the phrase I used earlier—a black and
white, crisp, one-off answer. Our concern was to increase the
number of prosecutions as distinct from detentions.
Q57 Bob Russell: If your Committee's
recommendations were taken forward and these new offences created,
do you feel then that Section 41 which, as we heard earlier, is
causing grave concern could be abolished because then all arrests,
as I understand it, could then be based on reasonable suspicion
of actual offences as under ordinary criminal law?
Lord Newton of Braintree: I am
sorry, Mr Russell, and you will no doubt think it a deficiency
in me, but without more of an opportunity to look at the terms
of Section 41 and look at it in the context of what we proposed,
I think it would be silly of me to try to answer that.
Q58 Bob Russell: I have to say that deficiency
is never a word I associate with you, Lord Newton. Perhaps that
can lie on the table and can be looked at subsequently.
Lord Newton of Braintree: I am
prepared to give some thought to it, but the combination of factors
to which I referred does leave me in some difficulty at this moment.
Q59 Bob Russell: I appreciate that. Mr
Todd, can you give practical examples of what evidence would be
considered sufficient to justify an arrest under Section 41? You
heard the previous witnesses, so how do you determine the appropriate
threshold?
Mr Todd: It has to be on a case
by case basis. I am the sort of person who will always say that
if we have time, develop the intelligence further. I have to say
it was slightly frustrating sitting here earlier because I would
not want a fishing expedition, but let us do all we can. One of
the problems that we frequently have is if we have a particular
time which is suggested when a particular act is likely to be
carried out, unless we are going to place ourselves in a September
11 type situation where afterwards you say, why on earth did you
not act?—and I have said that to some of our own people—we
have to develop the intelligence as soon as we can, but eventually
someone has to make a decision and we do have to act. If you have
information from an informer, if you have technical surveillance
evidence, if you have intercept evidence, there is a whole series
of things which actually says, "This group of people or this
individual are involved in the preparation for some form of act
of terrorism", then we will arrest.
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