Select Committee on Constitutional Affairs Minutes of Evidence


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 2000—the 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 amenity—there 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 purpose—namely, 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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