Examination of Witness (Questions 80-99)
LORD CARLILE
OF BERRIEW
QC
14 FEBRUARY 2006
Q80 Chairman: If I can look at one
further question, which is to look at pre-charge detention itself,
we had a session last week with Liberty, JUSTICE and similar organisations
and much of the discussion was very much on the assumption, the
underlying assumption, that the purpose of pre-charge detention
was to enable interviewing and questioning to continue. It is
fairly clear from your remarks that actually you think that is
largely irrelevant because suspects will probably be well-advised
to remain silent. If the purpose of pre-charge detention is not
actually to enable you to question the suspects, what is the purpose
and what is the justification for it?
Lord Carlile of Berriew: As the
Committee knows, I am still a practising advocate. I doubt if
there are many advocates in this country or solicitors who would
ever advise a suspect in custody at Paddington Green to answer
questions unless they wanted to co-operate with the authorities
for what we will loosely call "plea-bargaining" purposes,
to reduce their sentence or to try and obtain immunity or something
of that kind. The reason for that is that you have to measure—and
this is something I am often asked to do though not in terrorism
cases because I do not appear in terrorism cases for obvious reasons—but
in other cases I am often asked to measure the damage done as
between answering questions on the basis of carefully managed
disclosure by the police, which could get suspects into an awful
lot of trouble later if he tells lies about an aspect, on the
one hand, and the adverse inference direction that is given if
you do not answer questions, on the other. Most of us involved
in serious cases would say that the adverse inference direction
is a flea bite compared with the danger, the risk or hostage to
fortune of answering questions. So, in my view, the interviewing
process is actually becoming not entirely irrelevant, but near
to irrelevant. To turn to the second part of your question, Chairman,
the purpose of the detention period in terrorism cases, first
of all, is to ensure that the act is not perpetrated, the conspiracy
is not brought to fruition and, secondly, to enable the orderly
gathering of evidence in order that a prosecution can be brought.
But it should not be any old prosecution. It is actually, I think,
in the public interest for people to be prosecuted and convicted
of what they have done. I am not a believer in arresting people
for shoplifting in order to get the evidence to prosecute them
for murder. I believe that it should be a proper process and a
fair process aimed at what is believed to be the incident, the
crime. In terrorism cases, there are reasons for arresting very
early, they are too obvious to state, I suspect, to one of the
members of this Committee. Therefore I think that a period when
police and others can gather evidence while a suspect is detained
is potentially very valuable. However, I do think that the 90
days argument was very badly managed because it started from the
wrong end of the spectrum. If you look at the proposals that I
made in my report in which quite independently, the police did
not suggest 90 days to me, I suggested a 90-day maximum, it actually
started with a raft of judicial control and rights to ensure day-by-day
management of the period when the person was detained with a view
to it being brought to an end at the first sensible opportunity.
Q81 Chairman: The point that we were
being put by last week's witnesses would be: how could you possibly
be sure enough that somebody should be locked up to prevent them
committing a crime when you have too little evidence to charge
them with anything at all?
Lord Carlile of Berriew: Well,
I do not know of any case in which people have been detained without
the evidence of reasonable suspicion that justifies an arrest,
though I am not saying I have looked at every case that has gone
to Paddington Green. There are some cases, including a couple
that I am afraid are still in the pipeline, still sub judice,
where I believe that very early arrest was absolutely necessary
and the current legislation may have had an effect on the gathering
of evidence. I think the Committee will have my meaning without
my going into too much detail.
Q82 Mr Winnick: No one in this room
or indeed in the House of Commons any more than in the House of
Lords for one moment underestimates the terrorist danger facing
our country, so we have got common ground. I want to ask you one
or two questions and, if the Chairman will allow it, perhaps I
can just go back for a moment to the clerics. We have the very
welcome seven-year sentence last week of a particular person.
He mentioned various clerics who had come to this country and
there is no doubt that there is a very strong feeling which clearly
you share that some of them at least are involved in, and you
implied as such, inciting hate, if I can put it in that way. Do
you think it is possible for you to give any sort of estimated
number? Are we talking of very large numbers? Are we talking about
a handful of extremists who have not yet been, if you like, expelled
by the congregation involved?
Lord Carlile of Berriew: I could
not give you examples, though there may be others here who are
better able to give the numbers, but a small number can have a
disproportionate effect if they are in the wrong place. If I had
to guess, I would be amazed if there were more than 20 such clerics
in the country, but that is a pure guess, or an impure guess,
just a guess. My worry is that they are in places where there
are a large number, cities and occasionally custodial institutions,
places where there are larger numbers than elsewhere, of impressionable
young males. Those of us who are interested in politics remember
our teenage years in which we had some very radical ideas. I remember
arguing communism at the end of my parents' bed when I was a teenager.
If this cannot be properly controlled in a proper debating environment
where all sides of the argument are shown, it is a dangerous business.
Q83 Mr Winnick: Forgetting for the
moment our teenage roots and politics and avoiding self-incrimination,
perhaps we can carry on. In your paper, Lord Carlile, at page
18, paragraph 61, you say, "I am satisfied beyond doubt that
there have been situations in which significant conspiracies to
commit terrorist acts have gone unprosecuted as a result of the
time limitations placed on the control authorities following arrest".
That is a pretty serious statement to make. What evidence do you
have?
Lord Carlile of Berriew: In carrying
out my role as independent reviewer, I go around the country and
I talk to various organisations, including the police and other
control authorities. That particular passage was especially based
on information I was given by a police force, not the Metropolitan
Police, relating to a number of suspects—and I cannot remember
the exact number, but at least eight. I did a lot of reading into
this subject because I was provided with a considerable amount
of material and I was satisfied that that was the case. I have
also had general descriptions of such events given to me by police
officers in particular, including the Metropolitan Police, but
that was principally founded on something outside the London area.
Q84 Mr Winnick: If we take the mass
murders of 7/7, there was no way in which they were suspected
in any way by the police, am I not right?
Lord Carlile of Berriew: There
is absolutely no way in which they were suspected by the police.
Q85 Mr Winnick: So it would not have
made any difference whether it was 28 days or 90 days or five
years—they would not have been apprehended and those mass
murders would have been carried out as they were?
Lord Carlile of Berriew: That
instance was an illustration of a quite different problem, the
problem we have been discussing in a way earlier, which is the
radicalisation of young, indigenous males. These were British
men.
Q86 Mr Winnick: So the most terrible
mass murder which had been committed for a very long time in this
country would have taken place quite regardless of the 28 days
or the 90 days and so on? You accept that?
Lord Carlile of Berriew: Of course
I accept that, but, and there is a "but" here, I believe
there have been other potential mass murders which have been prevented
by arrests and, as you quoted, there is at least one very significant
set of instances, as I would call it, in which I believe that,
although an incident or incidents were prevented by the arrests,
it was not possible, for various reasons, to prosecute the persons
concerned.
Q87 Mr Winnick: But, you see, if
we take what you have said and which I have quoted, that people
have been released because of the time limit, one would, therefore,
expect that those conspiracies would have actually resulted in
murder.
Lord Carlile of Berriew: No, because,
and the same used to happen with the IRA, if people are arrested
and thereby their conspiracy is disrupted, it is pretty rare for
that conspiracy to be resumed. Only an idiot would start to resume
their conspiracy because they will know perfectly well that their
every move is likely to be watched. It may not be watched, but
it is a reasonable suspicion, is it not, that you are going to
be watched if you are released?
Q88 Mr Winnick: So clearly, if that
is the case, Lord Carlile, the 14 days were sufficient because,
as you say, they were placed under detention for 14 days—
Lord Carlile of Berriew: No, it
was not sufficient because in that instance, and this is a set
of circumstances crossing the Anglo-Scottish border, I have been
told, and it is not just that I was told because I have seen quite
a lot of documentation, and there was a review carried out internally
in the police force concerned mainly with what had happened in
the case, I have been told that there were people who ought to
have been prosecuted about whom it was expected that they could
be prosecuted if it had been possible to have enough time to gather
the evidence while they were in custody. I know you are going
to hear evidence later about computer encryption and that kind
of thing, and I am not an expert on it, but all I can tell you
is that the police say, and this is around the country, that it
is formidably difficult to collect evidence during a short period
while people are in custody when you have nipped a conspiracy
when it is really only just in bud.
Q89 Mr Winnick: That may be an explanation
for the fact that no one has been released under the complaint
and not charged because obviously they have to be charged, but,
of the large numbers of people who have been released, no one,
once released, was later charged with terrorist offences?
Lord Carlile of Berriew: No, that
is right, but there is a lot of overkill in this area because
the police obviously have got to act more or less immediately
on reasonable suspicion. Reasonable suspicion may be based on
inaccurate information, but, if the police are given inaccurate
information, that gives them a reasonable suspicion that there
may be a terrorism act and they have got to do something about
it. You are bound to have more arrests without what the police
might regard as a result in this area than in most areas of crime.
Q90 Mr Winnick: You describe the
three months' post-charge detention as a "reasonable maximum",
and you would clearly choose this period, and you were often quoted
in the debates understandably by the Government and their supporters
on this issue, rather than 28 days.
Lord Carlile of Berriew: Yes.
Q91 Mr Winnick: So why three months?
Why not six months? Why not nine months?
Lord Carlile of Berriew: It is
a very difficult question to answer and the answer runs like this:
nobody has suggested to me that 90 days was appropriate, but I
have, as I said earlier, spoken to a lot of groups, the police
and others, including of course some other people who gave evidence
before you insofar as they were willing to talk to me, over a
long period of time, and I have been doing this now for over four
years. I believe that there would never be an instance of more
than about three months in which the police could not gather enough
evidence if the evidence was available. I believe that there are
only maybe a couple of cases every two or three years, and you
might have a flurry of them and then have none for three years,
in which it would be necessary to hold anyone for anything like
up to three months. It was simply a judgment that I made. Six
months, I would have said, was outrageous and 28 days, I think,
was too little, but that is a judgment. Of course I emphasise,
as I keep emphasising, that what I said was that we should introduce
a new system which was consistent with the recommendations of
the Newton Committee, a system that involved taking a senior judge
and effectively making that senior judge something like a juge
d'instruction, but better. The juges d'instruction
are not judges, in my view, but they are basically very skilled
prosecutors. I thought that, if we introduced a senior judge,
a senior circuit judge with great experience of crime who would
be there, on hand, with special advocates available to look at
all the evidence on a day-by-day basis, we would probably get
most people being released after, at the most, 14 days, but the
judge would be there, giving reasons to examine all the material
and could ensure that this was a fair procedure.
Q92 Mr Winnick: Parliament increased
the seven days to 14 days, as you know obviously, less than two
years ago.
Lord Carlile of Berriew: Yes.
Q93 Mr Winnick: Therefore, do you
believe it is justified to jump, having doubled the period in
less than two years, from seven to 14 days? Do you, Lord Carlile,
a distinguished lawyer as well as parliamentarian, consider it
perfectly justified to go in one jump from 14 days to three months?
Lord Carlile of Berriew: As long
as a whole new raft of protections is introduced far and away
beyond anything available for the 14 days to ensure that nobody
is kept in for a day longer than is necessary. I actually believe
that the Government was moderately sympathetic, perhaps more than
moderately sympathetic, to the way in which I presented it, but
it was thought it was perhaps too complicated to introduce it
now. I do think, and I have said this publicly, that the management
of the current Bill has not been particularly skilled, it did
not need to be done in such a hurry, and I would have preferred
an evidential legislative process, the sort of thing you are doing
now.
Q94 Mr Winnick: Lord Carlile, no
one would exaggerate this, and certainly most of us have avoided
doing so, by saying that three months is more or less what happened
with the IRA and the Loyalists over internment, and obviously
there is a difference. However, bearing in mind what you said
earlier both to the Chair and to myself about extremists in the
Muslim community, do you at all accept the argument that, if it
was three months, the danger would be one of antagonising large
elements of the Muslim community where people would be held for
a maximum of three months, and I accept that it would be less
in many instances, and then released in large numbers, like under
the 14 days, without being charged, and would that not play right
into the hands of the people that you and I recognise are very
dangerous to the Muslim community as well as to the wider community
in our country who would say in effect, "This is how Muslims
are being treated"? Do you recognise the acute danger of
playing right into the hands of those extremists?
Lord Carlile of Berriew: Of course
I recognise the point. I believe—
Q95 Mr Winnick: A strong point?
Lord Carlile of Berriew: Perhaps
I could just finish. I believe that the Muslim community is extremely
responsible and I believe that there are large elements of the
Muslim community who are very keen that there should be a full
raft of powers in place that ensure that the Muslim community
is not subjected to the sort of criticism that is sometimes levelled
at them. Let us not forget, we happen to be talking at the moment
about Jihadists, but the last major lot of terrorism we had in
this country was absolutely nothing to do with the Muslim community
at all and it was connected with the island of Ireland. One of
my concerns, and I think Mr Clarke now has this very much in mind,
indeed I know he has had it in mind since he first became Home
Secretary, is that we should have some permanent terrorism legislation
that will stick and be reliable against all potential forms of
terrorism which we cannot predict in the future and should hopefully
last as long as the Offences Against the Person Act of 1861.
Q96 Mr Winnick: Could you name anyone
from the Muslim community who has come out in favour of the three
months' proposed detention which you advocate?
Lord Carlile of Berriew: No, I
could not name any individual, but I did not have notice of the
question and I might have been able to if I had done.
Q97 Mr Winnick: But you cannot name
any?
Lord Carlile of Berriew: I cannot
off the top of my head, no.
Q98 Mr Streeter: Lord Carlile, I
have got some specific questions about alternatives to detention
based on evidence from witnesses to date, but just picking up
the specific example you have given of cases where a longer period
would have enabled the police to prosecute rather than release,
I do not recall the Government arguing that in the run-up to this
Bill going through Parliament. We were crying out for specific
examples where the 90 days would have been helpful and I do not
recall them coming up with any examples, albeit anonymous examples,
at all. I know you do not speak for the Government, but can you
comment on that?
Lord Carlile of Berriew: I thought
that the Government, and I think ministers occasionally, have
cited what I have said to what Mr Winnick read out. It is very
difficult to cite examples in this area because it involves revealing
quite a lot of information about cases.
Q99 Mr Streeter: But you have just
done it.
Lord Carlile of Berriew: Well,
to a limited extent obviously and I have not said anything which
I think will do any damage. There are cases at the moment, as
I put it, in the pipeline about which there are concerns as to
whether the police have had sufficient time to garner all the
evidence that would have been available. There is an interesting
article in The Times which I read on the tube this morning
about this whole area. It makes the point that there is of course
a lot of information available about the tools of terrorism, particularly
very low-grade fraud. It is pretty easy to bring together the
evidence of credit card fraud and other small frauds which are
used to fund terrorism, but that is only at best, if I can use
a football analogy, league one and it is neither championship
nor premier league. If one is going to obtain the information
that shows the premier league terrorism conspiracies, one needs
to go far beyond that fairly basic evidence. It is like the whole
question of drug crime where it is pretty easy to catch people
who are small-scale street distributors, but it is much more difficult
to catch the very big fish because it involves a great deal more
work and that is more difficult in volumes, in multipliers in
the world of terrorism, I believe.
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