Examination of Witnesses (Questions 100-119)
MR ROGER
SMITH, DR
ERIC METCALFE,
MS VICKI
CHAPMAN, MS
ALEXANDRA MARKS,
MS SHAMI
CHAKRABARTI AND
MR GARETH
CROSSMAN
11 OCTOBER 2005
Q100 Colin Burgon: Reading through
JUSTICE's briefing,[3]
they make a statement, "In particular, we think it is false
to suggest it is necessary to significantly restrict fundamental
rights in order to protect one right in particular, the right
to life". Would you not say there was a certain primacy about
the right to life that it should in effect determine our response?
http://www.justice.org.uk/inthenews/index.html
Dr Metcalfe: Yes, there is a primacy
to the right to life, but, as the European Court of Human Rights
made clear in the case of Osman, involving the measures
that the police officers could have taken in respect of a dangerous
suspect several years ago, what the European Court said in that
case was that, "Yes, the right to life is very important,
but the protection of the right to life cannot be allowed to circumscribe
the other rights that people enjoy under the European Convention".
That is to say, you cannot abrogate all the other rights in the
name of protecting one right in particular. Now, I am not suggesting
that the Government does not have a serious responsibility in
protecting the lives and safety of members of the public and I
have a great deal of respect for the heavy task that they have
in that regard, but I would also point out that there are a number
of risks in our daily lives that we have to balance. If you just
take the idea of the threat to the right to life or bear in mind
that there were 800 murders in the United Kingdom last year and
3,000 road deaths, we do not talk about abrogating the right to
liberty or the right to due process by reference to safeguarding
people who die from speeding or from drunk-driving or from murder.
I am not trying to be callous and I am not trying to suggest that
it is not atrocious what happened on July 7, but I am asking you
to bear in mind that every risk to the right to life that appears
in this country does not necessarily require an extreme response.
Again I am not saying that the Government is not entitled to take
very seriously important measures against terrorism, but you need
to balance all the rights in a society because there is a danger
that if you go too far in one direction, you end up undermining
what you were fighting to protect in the first place.
Q101 Colin Burgon: What grounds do
you have for claiming that the current limit of two weeks' pre-charge
detention is the maximum period that would be compatible with
Article 5 of the European Convention on Human Rights?
Dr Metcalfe: Well, the case of
Brogan v United Kingdom came up in 1988 and that was a
case that was brought under the 1984 Prevention of Terrorism Act
in Northern Ireland. In that case the European Court of Human
Rights said that detention and police custody without judicial
control that had lasted four days and six hours was in breach
or Article 5(3) of the European Convention on Human Rights. They
said that to find otherwise, to go further would be "a serious
weakening of the procedural guarantee to the detriment of the
individual and impede the very essence of the right protected".
It is also quite interesting, I think, to point out that last
week, just as the Home Secretary was releasing his latest letter
on 6 October defending his claim to have three months' detention,
the European Court of Human Rights was handing down another judgment
in relation to a Turkish case. This related to the state of emergency
in south-eastern Turkey and the Turkish Government has a declaration
of a state of emergency and had derogated under Article 15 of
the Convention and even in that situation detention of more than
10 days without being brought before a judge and having a judicial
determination was found to be contrary to Article 5(3), so that
is the basis we have for saying that if you have any more than
two weeks' detention, it is highly likely to be found incompatible
by the European Court of Human Rights, if not by any number of
British courts on the way to Strasbourg.
Q102 Colin Burgon: So the Home Secretary
has been badly advised, has he?
Dr Metcalfe: Well, I suspect he
is probably being quite well advised, but I am not quite sure
that his answers reflect the full extent of the advice that he
has received.
Q103 Nick Herbert: Can I just direct
my questions to Liberty. You do not object, do you, to the principle
that there are circumstances in which it is necessary to detain
suspects without trial?
Ms Chakrabarti: Well, there are
circumstances in which it is necessary to detain suspects without
trial and every time a suspect is arrested for a period he is
of course detained without trial. Article 5 of the Convention
says that he should promptly be charged and then, beyond charge,
he should be tried as soon as is reasonable. If what is being
said to me is something bigger than that, if what you mean by
your question is that there are circumstances in which there is
such a threat to the life of the nation, Parliament has been obliterated,
the fuel supply and the food supply, what I believe to be a truly
temporary emergency situation of that kind arises, then of course
the Convention itself provides for a derogation mechanism and
of course that was a mechanism that the Government sought to employ
in the context of internment or lengthy detention without trial
in the whole Belmarsh scenario. What I would say about those sorts
of cataclysmic moment, the moment where those in power declare
the state of exception where, for a time, the rulebook is truly
put aside is that if moments of that kind are adopted too easily
and in an unending war or an unending emergency, that is incredibly
dangerous indeed and that is effectively the end of our society.
Moments of that kind should only be entered into as the very,
very last resort, not just because we have been attacked, not
just because people's lives have been lost, but because the State
effectively cannot function.
Q104 Nick Herbert: In your brief
you say, "The State must be permitted the ability to detain
for a reasonable period without laying charges to allow investigation.
Up to this time that period has been 14 days for terrorist suspects",
a clear indication that you support the existing period of 14
days. Is that right or not?
Ms Chakrabarti: I am not sure
that I am going to enter into the auction of—
Q105 Nick Herbert: Is the 14-day
period justifiable or not?
Ms Chakrabarti: I personally have
concerns even about 14 days, but I do accept in principle that
people are arrested and the original question that you put to
me was whether I accepted that people have to be arrested and
detained for a period prior to charge and trial. Yes, of course
I do. I think 14 days is quite lengthy if you compare it to the
four-day maximum for crimes, such as murders and rapes and complex
fraud. That in itself is a lengthy period, but I do not think
it is helpful to enter into bidding in an auction for what period
between 14 days and three months would be acceptable. What I think
should be done instead is to look at whether any extension from
the status quo is justified and what more proportionate alternative
policies might be adopted.
Q106 Nick Herbert: But you used this
quite dramatic language and you talked about doing away with habeas
corpus. My point is that the existing law under the Criminal
Justice Act, because of the 14-day period, in your language, does
away with habeas corpus.
Ms Chakrabarti: No, that is not
my view.
Mr Crossman: Sorry, I wrote the
briefing that you are reading from and if there is any confusion
about what I was saying, I was simply stating that the current
law allows for 14 days' detention in terrorism cases. Now, when
a Bill is introduced where the Government and the Home Secretary
are suggesting that that be increased to three months, I am hardly
likely to turn around and start suggesting that 14 days itself
is too long. That was simply stating what the current length permissible
is now.
Q107 Nick Herbert: No, it was not.
In your brief you say that, "The State must be permitted
the ability to detain for a reasonable period without laying charges".
Mr Crossman: That is right of
course.
Ms Chakrabarti: That is right.
I agree with that.
Q108 Nick Herbert: Can I move on.
The police's contention is that they need more time in order to
be able to assemble the evidence and Liberty's response to that
is that the police should have more resources, not more time,
but more resources. However, the police explicitly say, do they
not, in the anti-terrorist branch justification for making a case
for change that in particular in relation to the de-encryption
of the vast amounts of data this is not primarily a resourcing
issue, but one of necessarily sequential activity, data-capture,
analysis and disclosure. Is that not a point that we should take
seriously and is there not a fundamental difference between the
fraud investigations which you have described and the kind of
offences which we are talking about in that the latter could potentially
involve the very grave loss of life?
Ms Chakrabarti: That is certainly
true, but in relation to complexity and just to get to the heart
of your question, if I may, on de-encryption, we believe that
it is perfectly justified for the police to go to a judge and
say, "We believe that we need a de-encryption key in order
to pursue this investigation. The suspect will not turn it over.
Please order that they do"—
Q109 Chairman: Would you please answer
Mr Herbert's point where he has fairly quoted to you a statement
from the head of terrorist operations in the police, saying that
it is not primarily an issue of resources?
Ms Chakrabarti: Well, I am afraid
that I disagree.
Q110 Chairman: So Liberty knows better?
This is quite an important point because the debate that is taking
place here is that the Government should not do this because they
could do it in other ways and you are saying to us that it is
about resources. The people who are advising the Government are
saying it is not primarily about resources and Mr Herbert is only
wanting to establish how you have your opinion, where it comes
from.
Ms Chakrabarti: The Prime Minister
once famously said, "We asked the police what powers they
wanted and we gave them to them". I humbly suggest that is
not the appropriate way for democratic politicians to behave.
I merely suggest that there may be more proportionate ways to
address the police's operational concerns, like the point about
interview post charge, like the point about de-encryption, like
the point about more resources when all of these should be looked
at far more seriously before such an extension of pre-charge detention.
Q111 Nick Herbert: In France, as
I understand it, suspects can be detained for up to four years
on similar charges. Is that approach, which I imagine you object
to, compatible with the European Convention?
Ms Chakrabarti: I am not an expert
on French law. Dr Metcalfe knows a bit more than me, but I do
not think that it is four years pre charge. I think it may be
four years pre trial, but not pre charge.
Mr Crossman: In our briefing we
did not make a statement as to any particular length of time that
we thought would be Article 5 compatible or not Article 5 compatible
because we were aware that different countries have different
time lengths. What we are saying is that this Government should
need to justify any extension in the UK.
Dr Metcalfe: We are particularly
concerned about the idea that the Home Secretary has suggested
that there might be judicial control and what he is trying to
model it upon is the French, the Italian and the Spanish jurisdictions
that he has talked about. In the French system in particular,
the French examining magistrate has a much more intimate role
in the investigation process. They are in fact in charge of the
investigation. They interview the witnesses, they assess the evidence
for themselves and they in fact in most cases take the decision
whether the person is to be charged and prosecuted in the first
place. Now, if you want to import that system into the British
model of justice, then you have got to adopt also the French style
of training magistrates, giving them the specific background training.
You train to be a judge in the way that you train to be a lawyer
in France, so the model is very different. What the Home Secretary
is talking about is importing a notion of judicial control without
any of the background of experience of any of the judges in this
country. There has been some suggestion that if you upped the
level of seniority of judge in this country, then that might provide
a better safeguard, but even the most senior judge in this country
does not have the same degree in expertise of conducting an investigation
as the most ordinary examining magistrate in France, so I think
it is highly inappropriate for the suggestion that the French
model should be transplanted into the English adversarial model
without also importing the same safeguards that the French enjoy.
Mr Smith: You have to be totally
careful about cultural pick-and-mix, it seems to me. I have sat
with the juge d'instruction and it is just an entirely
different process. You sit there and the file gets bigger and
bigger. It is a completely different role.
Q112 Mr Clappison: Can we just have
a straight answer to the question please. How long can somebody
be held in France before they are charged?
Dr Metcalfe: My understanding
is that they cannot be held for more than 48 hours. I am not offering
you gospel on that. I am not an expert on French law.
Q113 Chairman: But the practical
reality is that in France somebody can be held, charged very early
and then held for an extremely long period of time before they
are brought to trial and that does not fall foul of the European
Convention.
Dr Metcalfe: It happens in this
country too, that once you have been charged and if you are not
granted bail, then you can be detained for quite a lengthy period.
Ms Chakrabarti: But the Convention
makes an important distinction between the prompt charge and the
period between charge and trial and that needs to be remembered.
The charge is the bare minimum of knowing why it is that you are
detained.
Q114 Mrs Cryer: If the safeguards
in the draft Bill were to be strengthened, for instance, by requiring
the application to be heard by a High Court judge rather than
a district judge, would this dispose of some of the compatibility
issues? This question was put to the Home Secretary and he sounded
to me as if he was quite sympathetic to these being strengthened.
Mr Smith: I think the answer to
your question is no, but it would be desirable.
Q115 Chairman: And Liberty would
say yes?
Ms Chakrabarti: Well, we would
say no. We have been here before, if I may say so, Mrs Cryer.
We have been here before with Belmarsh which was supposed to be
okay because judges were involved. We have been here before with
control orders which are supposed, some would say, to be okay
because judges are involved. A process is only fair where a judge
is presiding over something that is a fair process. Just importing
the fig-leaf of judicial involvement does not turn something into
a fair and proper legal process. What is the judge going to look
at? There is not even a charge. I would suggest that in this lengthy
pre-charge detention phase, all the judge can do is to say to
the police, "Have you really made enquiries of the Egyptians
yet? Why is it taking you so long?" What he cannot do is
to substitute for the fact that there is as yet no charge, no
particularised allegation against the individual concerned.
Q116 Mrs Cryer: So you feel that
having a High Court judge would be preferable to a district judge?
Mr Smith: Yes, that was the distinction
I made. The answer to that question is yes, it would be better
and there has been, I have forgotten the name of it, but a horrific
case in relation to an Anti-Social Behaviour Order which was made
by a district judge and then had to be overturned and then became
a cause célèbre in the Court of Appeal which
shows how badly these things can work. District judges one has
immense respect for, but a High Court judge is the minimum, so
the answer to your second question is yes and to the way you originally
formulated it is no, it is not enough in itself.
Q117 Mrs Cryer: We have already talked
about increased resourcing and it is a little bit of a repeat
but I wonder if I could put this to the Law Society specifically.
In your memorandum,[4]
you argue that "it appears to a large extent that the call
for an extension of detention powers relates to the question of
resources". What evidence do you have to back up this assertion?
What scale of increased resourcing do you think is necessary?
Ms Marks: Our paper actually referred
to the information available and quoted not only the annex to
Charles Clarke's original letter to his opposite numbers in the
opposition parties, but actually we have also had the benefit
of seeing the information that was supplied by the Assistant Commissioner
Andy Hayman on 6 October. Some of the case studies he gave in
his own evidence were, I found, extremely interesting. For example,
he referred to one case where it was the sheer weight of material.
In another, in his hypothetical study and this was a hypothetical
one, he said that a targeting document was found on the 50th computer
to be examined in the seventh week which to me indicates that
if there were 50 people looking at 50 computers instead of one,
that could have been the first computer on the first day of the
first week rather than, as he suggests, looking at them sequentially.
If this amount of material is seized, I respectfully suggest that
it is almost impossible to know what the sequence is until you
start looking at it, so you really need a large number of people
to be looking at it. What I thought was particularly striking
was one of his early examples where it was a real case study and
it was sub judice, so he could not give much detail, but
what he could say about it was that if the decision to charge
could have been delayed while the investigation developed, things
might have turned out differently and went on to say, and this
is the final point, that the case is to be heard in January 2006.
What that seems to suggest is that once a charge has been placed,
that is the end of the investigation. We all know that is not
so and we only have to think of some of the more serious criminal
offences, serial murders, serious fraud cases and so on, the investigation
continues even after charge and we can see no reason why the investigation
could not continue after initial charge and if further evidence
emerges, further charges can be put. That was something which
we suggested in our evidence would be a way of dealing with this
particular difficulty. After all, we would stress, in order to
arrest an individual, there have to be reasonable grounds in the
first place, so if within 14 days it is not possible to substantiate
those reasonable grounds sufficient to place a charge, let alone
bring them to trial, we suggest there is something seriously awry
with the arrest in the first place.
Q118 Nick Herbert: Following that
reply, I just wanted to establish what these lesser offences might
be. One of the suggestions which has been made and I asked the
Home Secretary about was that if there was not sufficient evidence
to justify a charge under these terrorist offences, there might
be lesser charges which would then enable detention until the
evidence could be gathered to upgrade the charge. This is a suggestion
which all three of you have made, so what are these lesser offences?
Dr Metcalfe: Well, I think it
is helpful to point out that what the Newton Committee made reference
to was that many of those involved in terrorist offences or suspected
to be involved in terrorist offences are also engaged in a great
deal of low-level criminality in order to fund that and they gave
examples of people who are involved with credit card fraud. That
is not an unusual occurrence.
Q119 Nick Herbert: The sort of `Al
Capone' point?
Dr Metcalfe: Exactly.
Ms Chakrabarti: Also there are
low-level terrorist offences. There is being associated with a
terrorist organisation, there is funding terrorism, supporting
terrorism, possession of material. There is a whole range, a whole
hierarchy of offences within the special terror offences regime
and of course these other offences of fraud and so on which Dr
Metcalfe refers to.
3 Not printed. Available in the House of Commons Library
(for inspection by Members of the House) and the House of Lords
Record Office, and on the internet at: Back
4
Not printed. Available in the House of Commons Library (for inspection
by Members of the House) and the House of Lords Record Office,
and on the internet at: http://www.lawsociety.org.uk/influencinglaw/currentbillactivity/briefingsandupdates.law Back
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