Examination of Witnesses (Questions 1-19)
DR ERIC
METCALFE, MS
SHAMI CHAKRABARTI,
MS GARETH
PEIRCE AND
MR TIM
OWEN QC
7 FEBRUARY 2006
Q1 Chairman: Can I welcome you to this
first session of our Inquiry into Terrorism Detention Powers.
Just by way of background, obviously the House of Commons voted
before Christmas on proposals to extend the period of detention
without charge to a maximum of 90 days and voted to reduce that
period to 28 days. There was considerable discussion at that time
about how well or how poorly the case for an extension for detention
powers had been made and, notwithstanding the fact that the House
of Commons had already voted, this Committee decided to hold a
short inquiry into the case for detention powers and the alternatives
that have been put forward, and so on. We hope certainly that
this inquiry is not simply of historical interest because, as
we know, there will be a proposal, in a year or so's time, to
produce perhaps a consolidated Terrorism Act, pulling together
all the various different strands, and it seems very likely that,
in some form or other, these debates around detention and the
conduct of terrorism investigations will come back onto the political
agenda. We hope our inquiry, inevitably it starts from a discussion
which the House of Commons was having a few months ago, will be
useful when we come to look at these issues in the future. Can
I start by asking each of the witnesses if you could introduce
yourselves, very briefly, for the record, then we will get under
way?
Mr Owen: Tim Owen, Queen's Counsel,
from Matrix Chambers, barrister, with experience of criminal and
human rights issues.
Ms Chakrabarti: Shami Chakrabarti,
Director of Liberty, the National Council for Civil Liberties.
Dr Metcalfe: Eric Metcalfe, Director
of Human Rights Policy at JUSTICE.
Ms Peirce: I am Gareth Peirce,
a solicitor who has spent a lot of her life in Paddington Green
Police Station.
Mr Winnick: You have been impersonated
in films as well.
Q2 Chairman: Thank you. I have a
couple of opening questions which I am going to address to all
the witnesses, but, in view of the time, if you agree completely
with what the last person has just said please do not feel the
need to say it again. I will start off, if I may, with Shami Chakrabarti.
Do you accept the basic contention that terrorism cases do present
special features for the legal system and the criminal justice
system and so, in principle, should be treated differently from
other criminal cases?
Ms Chakrabarti: I think the first
proposition that I would make is that terrorism is crime, and
that is very important. If you remember, Mr Denham, the diatribe
recorded by Mohammed Sidique Khan, who was one of the London bombers,
one of the many things that he said was "This is a war and
I am a soldier." I think one should always be careful, whether
with political rhetoric or with political and legislative policy,
not to allow a murderer to call himself a soldier. There are also
dangers with any culture of exceptionalism, because I believe
the threat is real and I think it may be long term and so there
are grave dangers with a state of exception that could go on for
a generation or several generations. That said, I do accept that
some terrorist offences are likely to have very serious consequences.
I think what is important is to be specific about particular operational
problems and particular offences, rather than for people on either
my side of the argument or the security side of the argument to
talk about whether terrorism is so unprecedented that we have
to change the rules of the game.
Q3 Chairman: In principle, this is
acceptable, to have legislation which may be described as a Terrorism
Act, but, nonetheless, we need to look very carefully at what
it contains?
Ms Chakrabarti: When we do, I
think one should make an important distinction between the substantive
and the procedural criminal law. For example, in this country
now we are well used to having specific offences that are terrorist
offences; some people have concerns even about those. They tend
to be broader in their ambit and at times they include reverse
burdens of proof, and so on. Of course one has concerns about
that, but the graver difficulty, in my view, is with undermining
procedural criminal protections, in particular the presumption
of innocence.
Q4 Chairman: Do any of the other
witnesses wish to add anything significantly different from that?
Mr Owen: Speaking from the point
of view of a practitioner, I think the answer to your question
is, no, I do not see, from the way in which the criminal justice
system has to operate, that it requires fundamentally different
rules. Terrorist offences, firstly, range enormously in seriousness
from, at the lower end, membership of a proscribed organisation
right up to conspiracy to murder, and so on. In terms of the way
the criminal justice system operates, the rules of evidence, the
presentation of evidence, I do not see that there is justification
for a fundamentally different approach. Investigation is perhaps
a different matter.
Ms Peirce: I simply note the comment
on the police officer's briefing, Andy Hayman, to suggest that
Irish terrorists, rightly or wrongly called, presented a different
problem. Certainly that was not the way it was ever put, in any
prosecution of any Irish defendant, and at that point of time
seven days was considered an extravagantly long time that was
a great deal for any suspect to have to endure. I think I cannot
accept the proposition that the threat has changed in degree or
severity or quality or the factual basis, it is very, very similar,
and the investigative mechanisms and powers, in my view, present
almost identical problems for all concerned.
Q5 Chairman: I will come back to
that in a moment, if I may, but let Mr Metcalfe have a say?
Dr Metcalfe: Operationally, I
can see that it makes a great deal of difference to the way in
which the police have to tackle suspected offences, but, legally
speaking, I agree completely with what other panel members have
said, legally it does not make any difference. Bearing in mind
that the problem with talking about these things, in most of these
terrorism cases, is the broad definition that we have under Section
1 of the Terrorism Act 2000. Under the terms of the Terrorism
Act a terrorism case may involve a crop protestor committing criminal
damage. It is perfectly correct for the police to address offences
which involve the threat of large-scale loss of life, but it would
be wrong to say that every terrorism case, as defined under the
Act, necessarily would involve such a threat.
Q6 Chairman: Accepting the point
which Dr Metcalfe has made, that the definition of terrorism is
very broad, and actually Lord Carlile has been invited to advise
the Government on the definition of terrorism, so if we can put
to one side some of the more minor offences which can get caught
up in the terrorism definition at the moment, Gareth Peirce, you
said that you did not think the threat had changed in a significant
way. We appear to be facing terrorists now whose central aim of
terrorist action appears to be to kill as many people as possible
as indiscriminately as possible. Is not that actually quite a
significant change in the threat that we expect the police and
the security services to protect us from, and that may require,
in some way, those organisations to act differently?
Ms Peirce: I think, the IRA bombing
campaign, which was directed, for the large part, against London
over 25 to 30 years, it is quite wrong, retrospectively, to classify
it as it was seen throughout by the police and the security services
as anything other than exposing the citizens of London and the
rest of the country to extreme danger. That was the way it was
perceived. Whether or not it was conceded on occasion that the
IRA sought to give warnings, I have to say, as a person who defended
IRA suspects over many years, it was never put that way on prosecutions,
it was always put that there was a high risk, or worse, of civilian
casualties, all the time.
Q7 Chairman: That is perfectly obvious,
that the IRA campaign did cause civilian deaths and, constantly,
warnings or no warnings, ran the risk of civilian deaths. Nonetheless,
is there not a substantive difference between that and the type
of terrorist tactic which appears, as with the July bombings,
to put the primacy simply on killing as many people as indiscriminately
as possible? In practical terms, we look to the police and security
services to protect us. Is it not the case that, faced with that
type of threat, the measures they may need to contemplate will
need to go further than were necessary in dealing with the IRA
campaign?
Ms Peirce: I will split your question
into two. I think one has to analyse, at some stage in our discussion,
as to the appropriateness of the data we are considering, in relation
to July 7, that is an important factor, what the police had to
investigate, whether they used it properly or not. In terms of
simply quantifying it, whether there is one death or 3,000 deaths,
a bomb going off in a city, in my view, has to be approached with
the same degree of seriousness of inquiry. I cannot see that the
end result itself dictates a different form of investigation;
all must be of the highest quality and the highest calibre.
Q8 Chairman: We will come on to the
detail of this in a moment, but if part of the police argument
is that some preventive measures are necessary, and obviously
they are talking about detention powers, and we will go into that
in detail, is it not the case that if what you fear is the attempt
to kill of hundreds of people you may be justified in using a
level of preventive measures that you would not have judged necessary
when the danger was that somebody would be killed if a bomb warning
was not acted upon? Would you really regard the two as exactly
the same and there is no difference between the attempt to kill
hundreds of people and the attempt to kill one person?
Ms Peirce: I regard the phenomenon
we have faced in this country for at least 25 years, a phenomenon
of bombings, carried out for political motives, to have been the
most exceptional danger that any country could have been exposed
to on a sustained level. I simply stick to what I say. Having
experienced that and learned what we had to learn from that, I
find it unjustifiable to do a quantum leap from an extended period
of seven days to the level it is now.
Ms Chakrabarti: Forgive me, Mr
Denham, I think there are aspects of this kind of discussion which
are unhelpful, because it is too easy to make sweeping statements
about "this is an unprecedented threat," "the IRA
were gentlemen bombers;" I exaggerate.
Q9 Chairman: It is not what I think
anybody in the Committee has suggested to you.
Ms Chakrabarti: No, not in the
Committee, but out in public discourse it is very easy to get
into a situation which is very unpleasant for IRA victims, for
example, and the idea of the Raffles gentleman bomber always leaving
a calling-card, of course that was not true. Equally, this threat
is complex too. I am prepared to accept that the threat has aspects
of difference about it. I am prepared to accept that it is not
people like me who have access to secret intelligence, that is
the nature of secret intelligence. What I always say is that the
rule of law is robust enough to deal with this threat or that
threat and that the post-war human rights consensus, that is the
rule of law that we are talking about here, the Convention Articles,
the right to a fair trial, qualified interferences with privacy,
even the provisional Article 15 of the Convention on Human Rights
which allows for a temporary state of exception, these provisions
were drafted by democrats after the second world war, Eleanor
Roosevelt, Winston Churchill, and so on. These people were not
naive 1960s liberals, they had lived through the Holocaust and
the Blitz and they came up with a framework that is still important
today. It is against that framework that we and others should
be examining this threat, or any new threat. There will be aspects
of difference, there will be aspects of similarity; it is important
to be specific about what is different.
Q10 Chairman: If we can be specific,
what level of risk do you think we should be prepared to accept?
This debate is, essentially, as you say, which of our established
freedoms are we prepared to erode, by how much, in the face of
the threat that we have got now? I think you are saying that the
nature of the bomb threat we have now makes no difference, compared
with the IRA fear, to that balance between freedoms. I suppose
the question I am trying to pin you down to be specific about
is what level of risk do you think we should be prepared to take
rather than erode any of our freedoms?
Ms Chakrabarti: I would say that
the framework for analysing this is all in the Convention. For
example, one of the reasons why in public discourse people say
frequently that these bombers are different from any other bombers
is the concept of `suicide bomber', which presents particular
operational challenges and which is particularly uncomfortable
for us because we find suicide difficult as well as the idea of
murder difficult, so it is particularly unsavoury in our consciousness.
Operationally, I have to accept, as a human rights proponent,
that Article 2 of the Convention on Human Rights is an incredibly
important Article of protection, but it is not absolute. For example,
it allows for even the use of lethal force when strictly necessary
to prevent an atrocity. I accept that, in the specific context,
that operational context, if someone were about to detonate a
suicide device but not acting by remote control, you might have
to use more force than otherwise you would do. One has to approach
this issue with that level of specificity, rather than sweeping
political statements of that, because we have suicide bombers
now, it is too much risk, and therefore we sweep away fair trial
protections, protections against arbitrary detention, and so on.
Q11 Chairman: Let us not go too sweeping
in answer to these questions. Essentially, you say we should work
from the Convention backwards; some other people in the debate
certainly will say "Let's work from the risk upwards and
have a response that's proportionate." Mr Owen, or Metcalfe,
do you have anything to add on this point?
Mr Owen: I think the relatives
of those who died in Enniskillen, Omagh, Guildford, Woolwich,
Birmingham or Canary Wharf would take the view that the IRA did
not give targeted or clear warnings and I agree with what Gareth
Peirce had to say about that. I just have a difficulty with Mr
Hayman's paper on this point. While, of course, on one view, the
more people who are killed the more evil and wicked is the deed,
but in terms of the threat, if you have a lorry loaded with three
tonnes of home-made fertiliser being driven around London and
left in a public place, with no or an inadequate warning, is it
really suggested that the police would not, do their utmost to
arrest at the earliest point to avoid the threat? I do not see,
conceptually, how it really matters whether it is a suicide bomber
or a lorry being driven, loaded with explosives. This is important
because that sets the scene for Mr Hayman's subsequent approach,
because then what he says is, because you have to intervene at
this prophylactic stage, at a stage where, in effect, he is saying,
often you have no evidence at all, I just question that.
Chairman: I think witnesses have been
very clear and consistent about the similarities they see between
the current threat and the previous IRA threats. I do not think
we need to go into that any further.
Q12 Mr Winnick: You mentioned, just
for a moment, a number of atrocities carried out by the IRA. As
far as Birmingham, which is near my constituency, is concerned,
is it not the case that 21 were murdered in that terrible November
in 1974, half of whom, I should say, Mr Chairman, were under the
age of 25? Coming on to the justification that the police make
for 90 days, you will have read the theoretical case study where
the police use every kind of argument to say why, in all the circumstances,
technical reasons given, and the rest of it, it is absolutely
essential for the security of our country that the law provides
for up to 90 days' detention; you are not impressed, presumably,
the four of you? Ms Peirce, were you at all impressed, although
I suppose the answer is pretty obvious?
Ms Peirce: Fairly obvious, but
I think it is absolutely tragic that Parliament took its decisions
on the length of time without first having a pause for investigation
to get proper data, proper empirical data, as to what actually
happens in police stations, the kinds of time and motion studies
of how much time is used. In particular, in relation to July 7,
I find it quite extraordinary that this whole debate and legislation,
and once there is legislation in place there is never the same
momentum to delegislate, and, I fear, here we are, with 28 days
now.
Q13 Mr Winnick: That was not quite
my question, with respect, Ms Peirce, because we know your strong
views and we have read your article, which has been circulated.
My question really was do you see any merit—perhaps I could
have put it better, and it would be my fault—whatsoever
in the theoretical case study the police have given as justification
for up to 90 days' detention, any merit at all?
Ms Peirce: No, I see none, and
I would argue for a retreat to seven days. I am sorry I digress
but just to make one point very quickly. In relation to July 7,
I believe that Parliament ought to have been provided, and still
ought to be provided, whether it be privately or publicly, with
what was known to the police beforehand about those who carried
out the bombings, what police powers were used—
Chairman: I am sorry, I must stop you.
I think it is very important, because we have a number of questions
to cover, that you reply directly to Mr Winnick's question about
the case study.
Q14 Mr Winnick: I think we can work
on the assumption that you see no merit at all in it. We can cut
this pretty short, because obviously you are putting the opposition
case, we will have the police in due course, therefore my questions
are theoretical as well as discussing a theoretical case study.
Do any of the four witnesses see any merit whatsoever, obviously
what you have studied, in the case which the police have put forward?
Mr Owen? Really, yes or no, you might say.
Mr Owen: I accept that the factual
information, if you like, may well reflect the reality of what
the police are up against, but I do not accept that the legal
system, at the moment, is not capable of delivering a solution
without going to 28 days, or even 14 days. I have got six points
to make about it, but I know you do not want six points.
Mr Winnick: Not on this question.
Q15 Chairman: It would be useful
to have the key points about the case study, and we could take
that now?
Mr Owen: To give you the six points.
The first has been dealt with. I think Mr Hayman's paper greatly
exaggerates the different nature of the threat. Secondly, it proceeds
on the assumption that at the point of arrest the police have
literally no evidence and the 14 days provides the first opportunity
to commence investigation. Yet Mr Hayman's case study assumes
two months of surveillance, including probes, and one really questions
whether literally nothing emerges from that. Thirdly, there is
no factoring in of the, frankly, absurd consequences flowing from
our statutory bar on the admissibility of intercept evidence.
At the moment, of course, if you know that intercept evidence
is not admissible as evidence, you do not use intercepts in the
way that you would if they were, and you use them for a purely
intelligence background as opposed to an evidence-based background,
and so really he does not factor that in. Fourthly, he suggests
that at the point of charge the CPS must be in a position, in
effect, to serve all its evidence and that the police are not
permitted, at the moment, effectively, to continue to investigate;
that is simply not the case. The current position, with any complicated
terrorist case, is that the police and CPS in effect get at least
six months to serve the papers. It means that a defendant has
to wait six months before he can even make a dismissal application
on the grounds that there is no evidence; so that is not reflected
in Mr Hayman's paper. Fifthly, it fails to acknowledge that at
the post-charge stage, in other words, detention pending trial,
the Crown Prosecution Service and the police get what I would
say is a pretty easy ride from the courts. Bail is hardly ever
granted in terrorist cases. Evidence can be, and is, served continuously
throughout the remand process, in stages, sometimes right up to
the day before the trial. As for custody time limits, which is
the way in which post-charge detention is regulated, again there
is an extremely generous approach by the courts. As long as the
prosecution show that they are investigating continuously, in
a diligent way, the judge will extend custody time limits, sometimes
up to two years. I was involved in a case last year, for example,
in which the trial is not going to take place now until April
of this year. The arrests were in August 2004, almost two years
earlier, with custody time limits consistently extended throughout.
Lastly, I think Mr Hayman greatly exaggerates the benefits of
interviewing as an exercise in evidence-gathering in itself, and
he does not take account of the current Code of Practice, paragraph
16.5 of Code C, which enables interview post-charge in exceptional
circumstances. Those are the six points.
Chairman: We will come back certainly
to that post-charge interview question a little later on.
Q16 Mr Winnick: Thank you very much;
that is very useful.
Ms Peirce: May I add one point
to Mr Owen's six points, in terms of what the prosecution has
at its disposal, because the inference is, if you do not get someone
while they are in the police station to admit or keep silent what
they are being asked about, that the chance has gone. There is
an entirely new procedure, which is much more stringent than it
used to be, of a requirement on a defendant to give a defence
case statement, in writing, before his trial, to the prosecution,
which deals with every issue and every accusation in the case,
and if he does not do that, or she does not do that, then it is
a matter for comment and inference that the jury can draw, and
that is missing completely from Mr Hayman's analysis.
Q17 Mr Winnick: Dr Metcalfe, do I
take it that, as far as the theoretical case study is concerned,
you do not accept the police evidence?
Dr Metcalfe: Yes, that is correct,
entirely for the reasons which Mr Owen and Mrs Peirce have given.
Ms Chakrabarti: Just briefly,
Mr Winnick, because I do not want to accuse the police of bad
faith on this, they write a hypothetical case study, based on
their experience, they raise many of the real operational concerns
that they have here and there, but they start from the premise
that they suspect an event in 90 days; that is the operating premise
of this exercise, and I could write the exercise and make it 100
days, or 200 days, or 10 years. A police officer could always
do with more time, and of course we are talking about terrorism
and you would like to have that time with the person detained.
If you put it that way, it is an unassailable argument for completely
dismantling fair trial protections.
Q18 Mr Winnick: Can I come to the
crux of the matter, to a large extent at least, in this section
of questions, the question basically whether the police should
have any powers of detention without charges being made? Ms Peirce,
as far as I recall, a few moments ago, said maximum seven days,
am I not right?
Ms Peirce: That is a punishing
amount of time for a suspect to be questioned, seven days.
Q19 Mr Winnick: As far as you are
concerned, it should be simply seven days. Dr Metcalfe, in the
evidence that JUSTICE has provided us with, on page two of your
brief, you say, in effect, that 14 days is the maximum period
you would be happy with. You differ, do you not, from what Ms
Peirce has just told us; you are happy with 14 days?
Dr Metcalfe: No, we are not happy
with 14 days.
|
