Examination of Witnesses (Questions 183-199)
ASSISTANT COMMISSIONER
ANDY HAYMAN
QPM AND DEPUTY
ASSISTANT COMMISSIONER
PETER CLARKE
CVO OBE QPM
28 FEBRUARY 2006
Q183 Chairman: Good morning and thank
you very much indeed for joining us at this further evidence session
into the Committee's consideration of the case for extended pre-charge
detention. We are very grateful to you for coming and for your
evidence. I wonder if each of you could just introduce yourselves
briefly for the record.
Assistant Commissioner Hayman: Andy
Hayman. I am Assistant Commissioner for the Metropolitan Police
with responsibilities for Specialist Operations which include
the Anti-Terrorist Branch and Special Branch.
Deputy Assistant Commissioner Clarke:
Good morning. Peter Clarke. I am Deputy Assistant Commissioner
in the Metropolitan Police. I have two roles, if you like: one
is as Head of the Anti-Terrorist Branch in the Metropolitan Police;
and, in addition to that, the Association of Chief Police Officers
has given me the role of being National Co-ordinator of Terrorist
Investigations, which means I have a national role in terms of
that particular function.
Q184 Chairman: Thank you very much
indeed. We look forward to drawing on your knowledge and expertise
this morning. Obviously the proposal for up to 90 days' pre-charge
detention is one of the most controversial criminal justice changes
there has been for some time. I would like to start if I may by
asking some questions about the development of the policy of detention
for up to 90 days. So far as the Committee was able to establish,
in the autumn the main communications that the Government received
from ACPO arguing for 90 days consisted of three press releases
and two sides of A4 describing a couple of operations. I wonder
if either of the witnesses could take us through the process that
ACPO went through to come to the conclusion that up to 90 days
was necessary.
Assistant Commissioner Hayman: In
terms of the process, Chairman, we will try and do a double-act
because we have both got contributions to make. So we get a bit
of variety, one will lead and the other will follow-up after that.
Perhaps on that one I will lead and Peter can add whatever he
feels is relevant. First of all, I think it is worth stating at
the outset that an invitation by government for an opinion is
not unusual. With a different hat on, that happened last year
around the Drugs Bill. In my other role as Chair of the ACPO Drugs
Committee I was asked for an opinion and we went through that
normal consultation.
Q185 Chairman: Could I just stop
you. That is very interesting. It may just be me but I had understood
that the proposal for extended detention up to 90 days was one
that was made from ACPO to the Government unsolicited, as it were.
Are you saying that actually the Government invited views on a
further extension beyond the 14 days?
Assistant Commissioner Hayman: As
it does with other agendas, the Government invited views on the
subject matter, the question being posed.
Q186 Chairman: Specifically on detention
or on general terrorism?
Assistant Commissioner Hayman: No,
on general terrorism legislation. It was occurring around the
time of the atrocities in July. Quite rightly, there had been
deliberations before that but it became more focused in the wake
of July. Discussions between government and other agencies, not
just the police, were in a consultative phase. It was a professional
view about: what is working well; what needs to be revisited;
and where are the gaps? The way in which that consultation was
instigated was in many different forums. There is a statutory
consultation home affairs working group which is with the Home
Office and also within ACPO. As you would expect, having been
given that invitation ACPO as an association then consulted its
members and were asking those questions, exactly as we would do
with any other agenda. When it comes to the specifics which you
have asked, Chairman, around the 90 days, I think what needs to
be clarified fairly strongly here was that the proposal from ACPO
was that we felt from experience and investigations (matters which
Peter can add more detail to) that 14 days was not sufficient
and we were looking for an extension. This is a real subtlety
which needs to be underlined. The extension proposed and suggested
by ACPO would always be in line with any human rights legislation,
and that would be subject to a judicial review. What then became
a debate and discussion point was, how long can this go on for;
how long do these judicial reviews keep occurring for? ACPO were
being pushed for a judgement on that—and it was no more
than a professional judgement—which is 90 days. What I think
has happened on reflection is that the 90 days dominated the discussions
and considerations, when actually the proposal was for judicial
extensions.
Q187 Chairman: Can I take you further.
This Committee certainly appreciates the subtlety you are trying
to point us to there. ACPO though had obviously concluded that
14 days was insufficient. Could you tell the Committee how ACPO
came to that conclusion? Did ACPO do what I know it has done on
other issues in the past and set up a working group, professional
group or study group to produce a report and analysis for internal
consumption and then reach the conclusion; or was there just a
view amongst officers working in this area that more than 14 days
was necessary?
Assistant Commissioner Hayman: I
will refer in a minute to Peter because he was obviously instrumental
in helping us come to that view, but it was all those things.
A letter was sent out to all ACPO colleagues across the country
asking for views by the then Chair of the ACPO (TAM) which was
Ken Jones, Chief Constable of Sussex; and material was then brought
into a central point. It was very much influenced by Peter's world
on the experience of investigations. Before I refer to Peter on
this—the real difficulty here (which I know members are
very alert to) is that the material (and we have got material
and we have original material here) is difficult to share. That
is the dilemma which we have currently got. We would be delighted
to share it under certain circumstances but it is very difficult.
Deputy Assistant Commissioner Clarke:
If it would help the Committee, I could perhaps put an
operational context on this and where the thinking came from.
Q188 Chairman: What I would like
to know, without going into the detail of the cases at the moment,
is how the case was assembled and what process of analysis was
actually gone through. In the autumn when we as a Committee enquired
what exactly had ACPO sent to the Home Office to justify its support,
it came out of three press releases and two sides of A4. It did
not look like a particularly substantial document of the sort
we might have expected would have existed at least in confidence.
I am very interested in how ACPO came to the conclusion that 14
days was inadequate?
Deputy Assistant Commissioner Clarke:
What I can do is tell you how officers working with me
in the Anti-Terrorist Branch on terrorist investigations all the
time came to that conclusion—not through working groups,
not through documents, but through discussion over a period of
time and using what we saw as evolving trends from casework to
inform our judgment. So when the time came last summer and we
were invited by the Government to put forward any measures which
we felt would be useful in terms of amendments or new terrorist
legislation, the proposal for extended detention was one of those
issues we put forward. It was not the subject of a formal working
party within the Police Service prior to that. It was the product
of a lot of discussion and reflection by practitioners over a
period of some two to three years. Remember, of course, that back
in 2003 we had had discussions with government which had led in
January 2004 to the extension from 7-14 days, and that was in
response to trends we had seen emerging which had been set out
in the paper which Mr Hayman sent to the Home Office in October—those
trends we had seen back in 2002 and early 2003. The extension
which was 7-14 days then was very welcome. What we then saw during
2004 was an acceleration of those trends with some specific cases
which again (as Mr Hayman has said) I am in some difficulty in
going into detail on because they are currently sub judice.
Those cases really showed us the features which we set out in
the paper to be continuing and developing features, and that is
why we put forward the 90-day proposal.
Q189 Chairman: That is helpful. I
am remiss and I will say something now that I should have said
at the beginning and this is for the benefit of members of the
public. I have indicated to the witnesses, given the nature of
what we are discussing, that there may be a point in this morning's
evidence session at which we invite the witnesses to give us evidence
in confidence if there is evidence which cannot be used in public
session. It may be that we will return to some of these matters
later on in this particular area. Obviously for everyone's benefit
we want to deal with as much as we possibly can do in public and
on the public record. If I could go back to the process, I am
right in thinking that it is very common in ACPO if there is a
new policing problem to be dealt with for ACPO to go and set up
a group of professional experts who produce a report, a business
case for change. That was not done in this case. Why was it not
done on a matter of such great importance? Terrorism is obviously
important; civil liberties are important; why did ACPO not do
what it has done on so many other issues before, which is to convene
a proper professional working group to come up with recommendations?
Assistant Commissioner Hayman: I
would just change that slightly, Chairman, because there are cases
where the rigour you have just described is appropriate but, equally,
I can cite other examples, and I have used one already which is
the Drugs Bill proposal, where that was not the case and the proposal
caveated that way. Government has asked for a professional opinion
and that is what it has got. If you want a more substantial case
which is describing the features you have, the rigour features,
then quite clearly we will do that, but that was not the question
that was asked.
Q190 Chairman: The position as far
as we perceive it: ACPO put out a press release I think in late
July or early August saying that they would like to have more
than 14 days' detention up to a maximum of 90 days; by the middle
of August the Government had decided to back the ACPO request.
Did the Government ever ask for any more evidence or exploration
of the case for more than 14 days than has been made available
to this Committee in the form of ACPO press releases and the two
sides of A4?
Assistant Commissioner Hayman: No.
Q191 Chairman: Were you surprised
that the Government was prepared to back an extension from 14
days to up to 90 days on the basis of, yes, a professional opinion
but so little analysis of the alternatives, how it might work
in practice, the international experience and so on?
Assistant Commissioner Hayman: Clearly
that is a matter that needs to be addressed to the Government.
Q192 Chairman: It will be, but as
a professional police officer were you surprised, having put the
initial position that you would like up to 90 days, that the Government
did not come back and apparently say, "Well, possibly, but
let's have some chapter and verse on this"?
Assistant Commissioner Hayman: An
honest answer to you, Chairman, is: no, it did not cross my mind
at all. I think there are some other very interesting comparisons
where other periods of time have reached the legislative framework—the
amount of hours for detention after review under PACE 24, 36 and
72. How did we reach those hours? It was the same sort of rigour
you have described attached to that. You can go into other periods
of time, not just in this profession. The answer to the question
is: no, I was not surprised; and, secondly, it would be very interesting
to explore how those other days were reached in other legislative
frameworks.
Q193 Chairman: Indeed. The Prime
Minister was quoted, I think in October, not long before the parliamentary
vote with saying there was incontrovertible evidence in favour
of the need for up to 90 days' extension. Are you aware of any
information given to the Prime Minister other than what went in
the two pages of A4 and the letter you yourself sent later in
the process?
Assistant Commissioner Hayman: I
can comment on that. I personally attended in the wake of July
(and I can remember it very clearly), before the Prime Minister
went away on annual leave, personal briefings along with other
Security Service colleagues of the emerging picture. I do not
know whether that is what the Prime Minister was drawing on. All
I can say is that information had been shared.
Q194 Chairman: I do not want to put
words into your mouth but just to make sure I have understood
what you are saying, from an ACPO point of view, from your position
as a professional police officer, the need to go more than 14
days is something of which you are absolutely certain. The question
of whether the maximum period should be 90 days is much more a
sense of instinctive judgment about what feels about right. Is
that fair?
Assistant Commissioner Hayman: That
is absolutely fair. I know that sounds pretty flaky. I expect
members are sitting here thinking, "Crikey, there should
be more basis for that", but that was the question that was
asked. It is a really difficult judgment call to make, but we
were asked for a professional judgment and that is what we gave.
I want to go back to the earlier point, that we would not see
this was being the norm. This is about an extension for detention
before the 14 days with judicial oversight.
Q195 Mr Winnick: Mr Hayman, given
there are no Members of Parliament, to my knowledge, who do not
recognise there is an acute terrorist danger to our country, and
that would be the position and was indeed the position before
the atrocities of 7 July and what may or may not have happened
a fortnight later, were you at all surprised that a large number
of MPs were not persuaded that the 90 days was justified?
Assistant Commissioner Hayman: I
have never formed a view on that. You now pose the question and
I will try and give an intuitive reply. I am never surprised really;
people have got their own views. It is not for me to do anything
other than present as much information as I professionally can
to form a debate and it is for others to form their own opinion.
I am not so sure that the question about whether I am surprised
or not helps out. You can never judge how people are going to
go when they see all the information.
Q196 Mr Winnick: But it did come
as somewhat of a surprise to you?
Assistant Commissioner Hayman: I
guess the only thing I am left asking is: on the basis of the
information that is available and the level of threat, and if
the professionals have been asked for an opinion, I would have
hoped we would have had the integrity (when we came to the table
for that opinion) to be trusted as I would do if I went to see
a surgeon or any other specialist or professional. I guess I am
left asking the question of whether or not we were convincing
enough in presenting our argument.
Q197 Mr Winnick: You are making the
point that if you went to see a specialist you would expect to
accept the specialist's point given to you. Are you therefore
saying we should have accepted the 90 days because the police
suggested it?
Assistant Commissioner Hayman: No,
I think you are pushing me into a position I am not actually arguing.
Q198 Mr Winnick: I am taking it from
what you have just said.
Assistant Commissioner Hayman: I
am saying that the professional body was asked for an opinion
and we gave that opinion. Members have weighed that up against
what they feel and what other information they have got and they
have individually come to a decision which is the real democracy
in this country. I just felt information that was presented started
to make a fairly compelling case that said beyond 14 days there
was a case for further detention with judicial oversight. If others
who have got to vote on that do not feel that way then that is
a matter for them.
Q199 Mr Winnick: Mr Hayman, is there
not a possibility, a pretty strong possibility, that members took
into consideration that the increase from 7 to 14 days had been
in operation for less than two years, and now it has been in operation
for just over two years? Do you not consider that would have been
a pretty serious consideration that the police had been given
the extra powers which had been in operation, as I say, for less
than two years?
Assistant Commissioner Hayman: Of
course, what we have seen happen in the passage of those two years
across the world and the complexity of the attacks and the atrocities
that have occurred means that the timescale of two years becomes
irrelevant. If it had been two months and there had been a massive
change in circumstances, to be not flexible enough to change one's
opinion or review legislation would be remiss.
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