Select Committee on Home Affairs Minutes of Evidence


Examination of Witness (Questions 100-117)

LORD CARLILE OF BERRIEW QC

14 FEBRUARY 2006

  Q100  Mr Streeter: Our friends from JUSTICE have made three specific suggestions which they prefer to the current detention provisions. The first one is developing the threshold test for prosecutors, secondly, bringing into force Part 3 of the Regulation of Investigatory Powers Act, and then, finally, allowing intercept evidence. Can you comment on how you react to that? Do you think they would be useful mechanisms or useful tools, particularly the use of intercept evidence which of course is a big political debating point?

  Lord Carlile of Berriew: I agree completely with JUSTICE on all three points. I think they would all be helpful and useful developments. I think there is a danger of this whole intercept evidence issue, however, being exaggerated in its importance. My own view is that the use of intercept evidence in British courts would be very useful. I have been in the odd case in which intercept evidence was used, but it happened to be foreign intercept evidence, so it was admissible. For example, I was in a case where Dutch intercept evidence was used. However, I think that intercept evidence would be of greatest utility in catching people who have committed serious money laundering offences and drugs crime. There would be some cases, I suspect a very, very small number, in which intercept evidence could be useful in catching terrorists. I cannot see myself any good remaining reason why we should exclude its use. After all, it does not have to be used and it only has to be disclosed if its disclosure materially assists the defence case or materially undermines the prosecution case. That is the basic rule of disclosure, otherwise it does not have to be disclosed. At the end of the day, they do not have to prosecute either. I do think intercept evidence has a small potential for utility in this area.

  Q101  Mr Streeter: But you do not think these three tools could replace detention?

  Lord Carlile of Berriew: No, I do not think they would replace it. Of course when you say "detention", by that I understand you to be saying a reasonable period for investigation after arrest.

  Q102  Mr Streeter: Yes, 28 days.

  Lord Carlile of Berriew: No, I do not think they would replace it. They might accelerate the release time.

  Q103  Mr Streeter: You have already commented on my next question, the police charging a suspect with a lesser crime and holding them in custody while gathering evidence for a greater crime, but could you just comment more fully on your views about that?

  Lord Carlile of Berriew: This was the suggestion that I think was put forward most strongly by the Party to which I happen to belong early in the debates on the Bill. In France they arrest people for something called `association malfaiteur', and it does not come much vaguer than that, and incidentally the comparison of the French and Spanish system generally favours British human rights standards which I can go into in more detail if you would like. I do not believe that it is right for somebody to be arrested and charged with, and my analogy was shoplifting rather than murder, using telephone cards as currency, which is one of the things which has been done for asylum-seekers who may be interested in terrorism, when, in reality, what you are investigating is a big terrorism conspiracy. I think people should be charged, and prosecuted, for what they are thought to have done. I do not think it is fair to people to say, "We're arresting you and charging you with a trivial charge", then put them in Belmarsh on a charge of credit card fraud, keep them there for the 18 months it takes to bring a really big terrorism offence to trial, much longer than 90 days, and then half-way through or near the end of that period say, "Woops, terribly sorry, old chap, but we have not been able to get the evidence together, so if you kindly come down to the Woolwich Crown Court and plead guilty to obtaining telephone cards by deception, you will not get three months' imprisonment and you can go home". I think that is fundamentally dishonest and I do not agree with it. It is a very naive view.

  Q104  Mr Streeter: That is very clear. Finally, could I have your views on the use of tagging, surveillance, bail conditions or control orders as alternatives to custody in this area of course.

  Lord Carlile of Berriew: I said in my recent report that I think more should be done to review the extent of the control orders as apply. That is really why I insisted on the standard control order being included in the report. I think the Home Secretary has accepted in principle now that there should be within the Department regular reviews of each case to see whether every restriction is really needed. My own view is that the control orders that are imposed at the moment, in all but one case, and that one case happens to be the only case where a British national is the subject of a control order, they come close-ish, some might say "perilously close", I would merely say "close-ish", to derogation. I think we are still on the side of non-derogation, but it could be challenged.

  Q105  Mr Malik: I welcome Mr Winnick's intervention earlier on because I do think language is incredibly important. You talked about good imams and bad imams and obviously that describes them, but it does not give any sense of the quantum. The same equally is true for this notion of moderate Muslims and extremists. I think that actually undermines confidence, it deepens quite a mistrust, it reinforces all the stereotypes and it damages community cohesion. For me, terms like "mainstream Islam" would then give a sense of quantum and extremists obviously would be a small part bolted on to that somewhere. I just want to come back to a point, and that is why I am pleased that you asked about it, David, but I just want to come back to a point that you raised which was that, and hopefully it is a correction, that actually the last terrorist attack in this country was not in the name of a united Ireland, but it was in the name of killing black ethnic minorities, Muslims, Christians, whoever they might be, and it was David Copeland, the bomber in Brixton, Soho and Brick Lane where he killed three and maimed over 80. This is the real problem with this whole debate actually, that the focus in all the examples you gave, there was not any white supremacist, not any animals rights activist, there was not anything about Christian fundamentalists, anti-abortionists, and the focus was just Muslim, Muslim, Muslim. Is it any wonder then that people out there think that this legislation is targeting Islam and Muslims when we ought to be saying that this legislation discriminates only on the grounds of those who would be engaged in, and involved with, terrorism and not on the basis of religion? The whole debate is extremely counterproductive, so how do we improve this debate?

  Lord Carlile of Berriew: First of all, Mr Malik, I say, and I hope you will not think this patronising, that I have been hugely impressed by the way you have dealt with these issues publicly. I know the area you come from very well as I was brought up in Burnley and my mother still lives there, so I know the area extremely well, and I think the way—

  Q106  Mr Malik: You are trying to endear yourself to me!

  Lord Carlile of Berriew: We are both Clarets supporters, are we not! I think the way that what you have done has resonated has been very good. I would, however, throw the question back at you and say that I have merely responded to the questions that have been put to me and the language I have adopted in answers has been derived from the language of the questions. I agree with you entirely. I think it is very important that we should look at terrorism as a whole and it is very unfortunate that Muslims are feeling stereotyped by all this. It is extremely important that the police in particular, for example, when they are searching and stopping people at airports, should not stereotype. I have said that the number of section 44 searches under the Terrorism Act could be reduced by 50% without damage to national security and the number of Schedule 7 stops at ports could be reduced by the same proportion without risk to national security. Underlying your question is a dilemma though. I have been asked by the Government, and have accepted the task, to prepare a report on the definition of "terrorism" in British law, and this is going to take a number of months. I issued a call for papers recently and there are going to be public events if people wish to attend them and I hope they will. You raised a number of potential terrorism issues about which I have had questions raised with me about whether they are terrorism at all. Is, for example, animal rights activity a terrorist activity or is it just a very bad, common crime? There is, therefore, a genuine question about how wide the range of terrorism should be in law. The Bishop of Oxford, on the other hand, in a speech in the House of Lords very recently, and Bishop Harries is a man of great wisdom, proposed an extremely wide definition that would certainly have included the activities of the leader of the British National Party, a former constituent of mine, about whom I know much, too much, so I think there are difficult definition issues underlying what you say, but I will accept completely your thesis and I think we all have to learn how to deal with these issues, and some of them I gain from you actually as I listen to what you say.

  Q107  Mr Spring: Just turning to your report and your recommendations based on the Newton Committee, you talk about the fact that the existing system of scrutiny is designed currently for short periods and you say, "a more searching system is required to reflect the seriousness of the State holding someone in high-security custody without charge for as long as three months". Obviously we have, as you have heard, had representations and evidence from JUSTICE and Liberty. One of the things that arises out of their comments is that the current system of judicial oversight of pre-charge detention is invariably flawed because the adversarial system which operates in this country is one where the judge is likely to hear what the prosecution has to say and act accordingly. Now, in your proposals how do you feel that this contention of theirs and their concern could be dealt with?

  Lord Carlile of Berriew: The concern is a legitimate one, but I think it is over-expressed. If you look at the performance, and I am only talking about the performance, of judges under the Diplock system in the courts in Northern Ireland, and I am not making a comment about the merits of the Diplock system, the judges who have been giving judgment for many years now in the Diplock courts in Northern Ireland have learnt a completely new discipline and they do it extremely well. They give reasoned judgments and actually the prospects of being acquitted in a Diplock court are higher than the prospects of being acquitted before a jury, as it so happens. Now, I thought very hard about the kind of judges who would need to do the work I suggested in my proposal and it seemed to me that we needed senior judges, and I mean senior in terms of competence as opposed to age though they may coincide occasionally, with great experience of criminal law, preferably people who have both prosecuted and defended in their practising years who, I believe, would happily adjust to a new system like this. The stereotyping of judges, of whom I know a large number, is almost as risky as the stereotyping of anyone else and I believe that, if one were to take the example of a group of senior judges at the Old Bailey, and there are others around the country, and asked them to do this kind of examining judge work that I have proposed, I think they would do it very well and adapt to it extremely quickly. Most of them have pretty rigorous minds and that is the most important quality needed.

  Q108  Mr Spring: Thank you for that answer. Irrespective of the quality or qualities of the judges, specifically in your proposals you say that the judge should be provided with a "full and continuing account of all matters involved in the investigation in question", but who do you think should prepare that sort of information for the particular judge in question?

  Lord Carlile of Berriew: The Crown Prosecution Service basically, although I have suggested that there be added a special advocate there to scrutinise the material and make completely objective representations to the judge, both orally and in writing, and of course to make contact with the defence lawyers. I would like to see the whole special advocate system operating a little more flexibly than it is right across the board.

  Q109  Mr Spring: You talk about the special advocates and would such the special advocate who had received security clearance have contact with the detained person on whose behalf they were appearing even after they had been fully briefed on the investigation?

  Lord Carlile of Berriew: I think that they certainly should have contact with the lawyers for the detained person whose interests they are representing, but on whose behalf they are not strictly appearing. I believe that it should be in the discretion of the oversight judge to decide the extent to which such contact should take place. There is a danger of compromise and of undermining the whole system and each case has to be considered on its merits, but I would hope that, compared with, say, the SIAC system, the special advocate would be able to come a little closer to the defence interests in the case.

  Q110  Mr Spring: You talk about again the discretion of the judge and the sort of judge you have in mind and, as one of your proposals, you talk about the "suitable opportunity for written and oral defence representation against extended detention". What do you envisage by a "suitable opportunity for written and oral defence representation against extended detention"?

  Lord Carlile of Berriew: I do not think we should be too structural about this. The analogy I would take, I suppose, is the Woolf reforms, the civil procedure rules for civil courts where some work is done by the judge in chambers dealing in private, taking representations in writing, some is done on the telephone, which is a remarkable development for the legal system to have hearings by telephone, and some is done with hearings in a courtroom of one kind or another. I think the procedure should be flexible enough to enable the result to be right rather than there being a procedural straitjacket that might limit the prospects of the result. I think this is something that would have to develop. I see a group of judges doing this kind of job as something like a sort of collegiate body and with a great influence on their own rules and I would hope it would not be too formal.

  Q111  Mr Spring: Lastly, and I think we can guess what the answer to this will be, but just for the record as it has been put to us, on the question of increased judicial oversight, there is some criticism of your suggestion on the grounds that there are incompatible elements here of an examining magistrature and the common law system. Do you see any incompatibility in those?

  Lord Carlile of Berriew: I did, but I have been persuaded, partly by Newton and partly by looking year after year at these issues, that the common law system, which after all is built on flexibility, a system of precedent built on the potential for change, is more capable of adapting itself to this kind of requirement than possibly the continental systems are. I had a meeting very recently with Juge de Brugiere, the very celebrated and very able French number one juge d'instruction in these terrorism matters, and I asked him a number of questions and was slightly appalled by some of the answers. They do not tape-record interviews and, during the first two days of arrest while the suspect is under arrest for association malfaiteur, he does not have a lawyer present. He said to me, "Monsieur, this is a very productive period of interrogation"! I am not surprised because I practised at the Bar before the Police and Criminal Evidence Act 1984 when tape-recordings came into force. Now, I think our system is more flexible than that. I pointed out to him that in my local Welshpool Police Station they have a tape-recording suite, and it is not really very difficult to provide it. I think our common law system is adaptable. If you talk to French or Spanish lawyers, they say to you, "Well, I wish we had some of the elements of your system".

  Q112  Mr Clappison: I was very struck by the point you made that a number of cases which would need the longer period of detention is very small, but of course there is a strong public interest in making sure that every such case, and there will be serious cases, is properly investigated and, where appropriate, brought to justice. You have also been asked about the case which you told us of where significant conspiracies have gone unprosecuted and you told us a bit about that, but I wonder if you can just take us through the mechanics of how it is that those cases come to go unprosecuted because for somebody who is in detention at the time and they are released, they can still be charged later on, can they, with sufficient evidence?

  Lord Carlile of Berriew: Let me give you a hypothetical answer, but it is not beyond the bounds of reality. Supposing the police arrest a young male who shows physically all the signs of being a suicide-bomber. He has prepared himself physically, and there are certain physical signs which are well known, and he has prepared his life, as it were, to become a suicide-bomber. The police arrest him and they have more than reasonable grounds for suspecting that he is a suicide-bomber, perhaps they have had a tip-off, but they know nothing or next to nothing about his connections. Now, they have taken him out of circulation by arresting him, and that is fine, he is not going to be a suicide-bomber, but, if he is a suicide-bomber, you can rest assured that he is unlikely to be the only one in a group and there is likely to be some kind of cell and they need to discover more. If that person sits in Paddington Green or Govan or the custody unit in Northern Ireland, which I visited very recently, and says, "I'm terribly sorry, but I've been advised to say absolutely nothing", which is going to happen in possibly 100% of cases, then it is actually very, very difficult, as it is a very slow process, to put together his life and times, his connections, years of associations, his travel details over the last five or six years; it is a slow process. I think that is quite a good and realistic hypothetical example of how one individual could lead to great investigative difficulties. Of course there is a particular problem if, say, eight individuals are arrested. You may have the same lawyers representing all or some of them. The Paddington Green process, the police will tell you rightly, is an extremely slow process because they do properly respect various aspects of the personal lives of the people concerned and certainly 14 days can disappear very quickly and there is an awful lot of administration. I hope that answers your question.

  Q113  Mr Clappison: I find that very helpful. Bringing to bear all your professional experience and also the experience you have had of four years in this post, you are telling the Committee then that, without the longer period of detention and taking into account the possible alternative courses of investigation, there remains a risk that a significant conspiracy would go unprosecuted?

  Lord Carlile of Berriew: Yes.

  Q114  Mr Clappison: Can I now ask you about a completely different subject. You were talking earlier on about the period in life when young people are very impressionable and you mentioned the influence that some extremist preachers would possibly have. You also mentioned universities and, for the sake of completeness, people could be influenced by extremists of many different kinds at university.

  Lord Carlile of Berriew: Of course.

  Q115  Mr Clappison: Just taking this area, can you say a bit more about the concerns which you have got in that area because what happens in universities is a matter of great concern?

  Lord Carlile of Berriew: This is entirely anecdotal, so I really would not pretend that I have evidence that I, as a lawyer, would regard as evidence, but, talking to young people, I believe that what I said earlier is true, that there are some societies in some universities which are very exclusive. They may include the sort of societies Mr Malik was talking about outside of anything connected with Islam at all, and I am sure there are many of them. Some of those might be all-female societies, there is exclusivism everywhere, but I am led to believe that there are some pretty intimidating groups in some, I suspect a small number of, universities. Nobody wants to inhibit people who are going through that very important education process that the university degree provides from being as conceptual as they like, their imaginations running riot, but there are dangers too.

  Q116  Mr Clappison: Do you know anything about the attitude of university authorities towards this?

  Lord Carlile of Berriew: No.

  Q117  Chairman: Lord Carlile, you have been enormously helpful this morning, drawing on your deep experience. Can I put one question to you and it is really asking, if I may, for your advice to myself, as Chairman of the Committee, as a whole. Much of the powerful evidence you have given depends on the information which is necessarily confidential and indeed last week witnesses said to us, "Well, you should just dismiss Lord Carlile's views because they are not based on public information and we cannot rely on them". As a committee, up until now we have chosen not to meet in private session, where we could of course get some of this information in a confidential session, largely, I think, because we are trying to judge these matters as other members of the public have to judge these matters on the basis of the publicly available information. If we get confidential information, we are putting ourselves in the same position as you and we cannot explain why we have reached any conclusions we have. Do you think it is absolutely intrinsically possible to reach a balanced judgment about the correct period of pre-charge detention without having access to information which is necessarily confidential because it is about past or current police inquiries?

  Lord Carlile of Berriew: No, I do not. I think, if I can answer the question in a slightly different way because this concerns me every day of my life, there is a trust issue, there has got to be a trust issue because not all information can be given publicly. The trust issue has been very damaged by intelligence information connected with the Iraq War which is perceived, rightly or wrongly, and I make no judgment on it, to be inaccurate, particularly what is described by the press as the "dodgy dossier". That has had a devastating effect on the level of trust given to MI5 or to anyone like myself. I do not see that much and the press exaggerate what I see, who is able to what I ask to see and I am not refused anything that I ask to see. We would like to be trusted and we would like the public to believe what we say. The effect of past events means that we are not trusted as we would like to be. It is a matter for a committee like this whether you take it on trust or whether you get to see more information, and of course it is a matter for government as well in the end what they show you, but I do not believe one can make a fully objective judgment without seeing the information, unless you are prepared to say, "Well, we'll take certain things on trust". Eliza Manningham-Buller will tell you in general terms roughly what I have told you, I think, and I see no reason not to trust her, far from it, but it may be of reassurance to the public if you were to see more. It is a matter for you, sir.

  Chairman: Well, that is very helpful and something the Committee will need to reflect on during the rest of the programme of this inquiry. Lord Carlile, you have been enormously helpful and thank you very much indeed.





 
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