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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