Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 47-59)

Thursday 8 July 2004


  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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