Examination of Witnesses (Questions 73-79)
DR ERIC
METCALFE, GARETH
CROSSMAN AND
LIVIO ZILLI
22 FEBRUARY 2005
Chairman: Good morning. We are very glad
to have your views and insights into these matters. I will ask
Mr Soley to begin the questioning.
Q73 Mr Soley: Continuing really from
where we left off with the last group. Do you accept the need
for any special powers and procedures to deal with terrorist suspects
outside the normal criminal law?
Livio Zilli: As far as Amnesty
International is concerned, we have already had in the United
Kingdom very extensive anti-terrorist legislation enacted quite
recently in 2000. That in fact consolidated what was in so-called
temporary form in both the Prevention of Terrorism Act and the
ATA. The law was then in temporary form and it was then consolidated
on a permanent statutory basis. We do not accept that there should
be a special criminal process. If people are reasonably suspected
of having committed a criminal offence they should be charged
with a recognisably criminal offence and tried in proceedings
that fully meet international fair trial standards.
Q74 Mr Soley: You would accept, would
you, that this is a common problem across many countries now or
have you got one ideal country which we should all follow?
Livio Zilli: I am afraid I do
not share the premise that it is a problem. I think it is a duty
of the State to take measures to protect people in their jurisdictions.
In doing so, they must uphold the rule of law in human rights.
Some people refer to the question of balance, and by that I do
not accept there is a problem as such.
Gareth Crossman: One of the main
criticisms, one of many criticisms, arising from the Newton Committee
was that they believed the Government had simply not put sufficient
effort into looking into ways in which the domestic criminal courts
could be used as an alternative to the use of Part 4 powers.
Q75 Chairman: I was the Deputy Chairman
of the Newton Committee!
Gareth Crossman: I am aware of
that, Chairman. It is always difficult when you are asked to put
forward alternatives because you can end up finding yourself moving
towards suggesting we should have some sort of domestic Diplock
court. Having said that, given the range of offences under the
Terrorism Act 2000the existing common law in relation to
conspiracy attempt, the possibility of looking at acts preparatory
to terrorism, ways of introducing security within the court process
that do not affect fundamental fair trial rights, the admissibility
of intercept, the use of public interest amenitythere is
a range of material that can be looked at. I think part of the
problem is that a lot of this has to be led by the Government.
If there is a feeling that we are looking more towards the use
of domestic courts and moving away from either the use of SIAC
for Part 4, or Control Orders, organisations such as Liberty,
Amnesty and JUSTICE we can say these things, but there needs to
be some sort of incentive coming from Government that they are
actually listening.
Dr Metcalfe: Our view, since the
2001 legislation was first introduced, has always been that the
need for any exceptional powers to fight terrorism outside of
the normal criminal process has always been a matter for the Government
to show the justification by reference to a threat of terrorism.
We have always been agnostic as to the need for those powers,
simply because the Government has justified those measures by
reference to evidence that is not publicly available. It is difficult
to second-guess the Government on the point that you cannot say
any particular measure may be proportionate or disproportionate
if we do not know the evidence upon which they are relying. However,
I think it is true to say that we have always been sceptical,
and we have become increasingly sceptical since 2001. Following
the judgment of the House of Lords in the Belmarsh case last December,
I would say that there is now a very clear consensus that whatever
special measures may be necessary (and it is possible you might
adopt minor procedures in reference to civil cases) you cannot
compromise the basic guarantees of due process.
Q76 Mr Soley: Would all three of you
rule out the use of secret courts and investigating judges, those
sorts of approaches, or not? Do you rule them all out as options?
Eric Metcalfe: With reference
to secret courts and special judges, there was one proposal which
was raised by the Newton Committee; again, we were sceptical that
this was a useful way forward. There was some suggestion of adapting
the use of judges sitting alone from the Canadian system and screening
evidence that would act as a way forward for further criminal
proceedings. However, it was not clear to us what exactly you
did with the summary of evidence that you then gained from the
judge sitting alone; how that would be adjudicated upon by the
subsequent judge and jury, presumably sitting in criminal proceedings.
It was not obvious. We are not prepared to rule it out completely
if there was a detailed proposal put forward, but I would say
that the UK system is very much an adversarial system and the
checks and balances which we have in place are very much tied
to that system. It would be a dangerous departure to introduce
a more inquisitorial system without a great deal of careful thought.
Gareth Crossman: I would very
much agree with Eric. One of the suggestions put forward in a
Home Office discussion paper last year was some adoption of a
French Juge d'Instruction system, which again was trying
to put the elements of an inquisitorial system on to what is effectively
an adversarial system in the United Kingdom, excluding Scotland.
We felt that this was extremely problematic. We felt that many
of the problems that arose from the Juge d'Instruction
system would not be remedied by adopting it in any of the courts
in England and Wales.
Q77 Mr Soley: Can you tell me what you
think the Government ought to do about evidence that is obtained
from secret phone taps, or whatever, but also from overseas and
other agencies; how should that be presented in court?
Livio Zilli: In relation to evidence
I think here are two fundamental questions: first is the role
of the court, and what the inquiry that the court must conduct
should look like; second is the imposition on the authority (and
by that I mean both the executive and the judiciary) to uphold
the rule of law and human rights. If it is with reference to evidence
obtained through torture or by other unlawful means, clearly there
should be an exclusion ban on the use of such evidence. In respect
of any other legal evidence or any evidence where there is a presumption
that it might have been unlawfully obtained, it is for the authorities
to rebut that presumption, that it has in fact not been unlawfully
obtained.
Eric Metcalfe: In relation to
the use of intercept evidence it is clear, since the UK and Ireland
are the only two jurisdictions in the world which refuse to use
it, there is a very large number of different procedural models
for the use of such material. We were particularly surprised by
the suggestion of Charles Clarke appearing before the Home Affairs
Committee very recently in which he declared that the UK's legal
system was somehow unlike other legal systems. I think that will
come as some surprise to lawyers in Canada, Australia and New
Zealand, and even the United States, which are based on common
law principles. We would therefore suggest that if the UK is considering
(and we certainly do propose) that the ban on intercept evidence
should be lifted, we should be looking towards those common law
jurisdictions first and foremost to see how they handle such evidence.
I do not believe it is beyond the wit of lawyers here to be able
to handle such material if criminal proceedings in Australia and
the United States are able to do so. I do accept there are some
practical problems with the technical way in which evidence is
adduced. However, we already have a great deal of regulation,
the Regulation of Investigatory Powers Act 2000, which relates
to the regulation of evidence gained from non-intercept but, nonetheless,
other kinds of surveillance evidence, such as bugging someone's
house. It is not obvious what the difficulties are, if you already
have that framework in place in relation to a bug, why you cannot
extend the same procedures in reference to intercept evidence
from a telephone tap.
Q78 Chairman: Do you think there is a
distinction to be drawn between procedures that are used when
someone is being detained, and those which were devised for immigration
purposenamely, to exclude someone from this country or,
indeed, to refuse entry to this country on security grounds? Is
that a legitimate distinction?
Gareth Crossman: I think it was
pointed out in the last session that the introduction of SIAC
arose from Chahal. The use of Special Advocates in Chahal
was essentially to determine whether or not Mr Chahal's presence
was conducive to the public good of the nation. In immigration
proceedings, rightly or wrongly, there is no right for a non-British
national to remain in the country. The determination by SIAC and
the use of Special Advocates was not determination of rights as
we would understand it under Articles 5 and 6 of the Human Rights
Act. We would say there is a very strong distinction between the
use of Special Advocates and the use of SIAC for what are effectively
administrative decisions, and the use of Special Advocates when
individual liberty and the right to a fair trial and the presumption
of innocence are at the forefront.
Q79 Dr Whitehead: Could you shed some
light on the exact status or the exact nature of the proceedings
under the Anti-Terrorism, Crime and Security Act? Would you say
that they are essentially criminal or civil in nature, and what
would be the consequences of that distinction?
Eric Metcalfe: It is an interesting
question, at least from the perspective of the European Convention
of Human Rights, because there is an argument in relation to the
right to fair proceedings, Article 6, which suggests that you
do not look at how the proceedings are classified in the jurisdiction
in the United Kingdom but you look at the essence of the proceedings.
We would say, at least in relation to SIAC proceedings under Part
4 of the 2001 Act, the essence of the charge is essentially criminal.
Although you are talking about the reasonable suspicions of the
Home Secretary in relation to people under immigration control,
in fact what you are saying or suggesting is that these people
are involved in terrorism and as a consequence of that determination
you are depriving them of liberty. In our view, within Article
6, that would constitute a criminal charge. Even though it is
within civil proceedings, you are essentially talking about the
determination of a criminal offence by other means.
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