Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 183-199)


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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