Examination of Witnesses (Questions 260-280)
ASSISTANT COMMISSIONER
ANDY HAYMAN
QPM AND DEPUTY
ASSISTANT COMMISSIONER
PETER CLARKE
CVO OBE QPM
28 FEBRUARY 2006
Q260 Mr Clappison: Can you just take
us back to *** which you mentioned was where you began to think
about having a longer period of detention. Was that from August
2004 onwards which was the start date for the investigation?
Deputy Assistant Commissioner Clarke:
Yes.
Q261 Mr Clappison: So you started
to think about it then. Were there working groups thinking about
having a longer period of detention?
Deputy Assistant Commissioner Clarke:
This was informal discussions with my senior colleagues
about what sort of investigative strategies we were going to have
to develop to deal with this sort of case. The informal working
group thing about it was I sat down with a group of professionals
and said, "What do you think? How can we get into this?"
Interestingly, *** was the case which was referred to by Mr Owen
in his evidence before this Committee where he was talking about
custody time limits being loaded in favour of the prosecution
and he referred to the fact that this case was due to start trial
in April this year. I suppose, slightly ironically, the defence
a couple of weeks ago put in an application to have it taken out
and it is now actually listed for the autumn of this year, a lot
more than two years since the moment of arrest, and the grounds
of the defence application were that they have not had time to
consider the weight of the material!
Q262 Mr Clappison: It has always
been a part of your case that you wanted to stop developments
early because of the threat to public safety from this type of
offence really.
Deputy Assistant Commissioner Clarke:
Yes, exactly.
Q263 Mr Clappison: You mentioned
in ***, public nuisance through irradiation. That sounded rather
alarming.
Deputy Assistant Commissioner Clarke:
Well, this is a quirk of the British legal system. This
will be addressed actually by the Acts Preparatory to Terrorism
Measure. *** Because, under the current conspiracy laws, it is
very difficult in these cases, where you are drawing material
from a range of computers and other places, to actually prove
the act of conspiracy, the agreement, what we have to revert to
is a piece of 19th Century common law around conspiracy to cause
a public nuisance which is quaint.
Q264 Mr Clappison: Yes, it did ring
a bell and it sounded strange.
Deputy Assistant Commissioner Clarke:
Well, in the same way as in Springbourne, Kamel Bourgass
was convicted of conspiring to cause a public nuisance when what
he wanted to do was basically to poison the public. Again it is
about shoehorning 21st Century terrorism into 19th Century common
law which gives us difficulty.
Assistant Commissioner Hayman: Also,
making this point for the sympathy vote, it must not be overlooked,
and Peter actually described it, when you are trying to get your
case together within the 14 days, the impact on our people is
horrendous. Peter has described people sleeping on office floors
and they are doing that. As for the people who are looking at
CCTV footage, I saw one colleague go home and he had lost the
whites of his eyes, they were completely bloodshot from where
he was continually watching TV screens. Now, that is not a way
of managing people in your investigations because you have to
pull all the stops out to get within those timescales and the
consequence of not doing that is heaven knows.
Q265 Chairman: You have obviously
presented a case here that these are very complex cases and may
involve very dangerous people, but, if we go back over the argument
we have had earlier today and if we take *** and the other cases,
the strength of your case for having an extended period is that
you have to intervene early because these are cases where you
need to get in early to protect the public as well as carry out
the investigation. Can you point to any cases here where in practice
you did that and people were very close to actually committing
a terrorist offence? The alternative point of view to your case
is that this may well be the case, but if you had carried on with
another couple of months of surveillance or whatever, then you
may have been able to extract more evidence prior to arrest while
not putting the public at any particular increased danger of the
attack being carried out.
Deputy Assistant Commissioner Clarke:
I could point to the converse of ***, as it were, where
we were able to manage the terrorist cell through control measures,
through surveillance and technical intervention, *** We were able
to mount a surveillance operation *** and it was probably the
most extensive operation we have ever conducted in this country,
enormous both physical and technical surveillance, so that gave
us the comfort that we were fairly sure that they would not be
able to mount an attack while they were under that level of surveillance.
*** we were able, to use the jargon, to run it long until the
point where we were able to say that, when we intervened, we would
have unequivocal evidence of terrorism so that they could then
be charged. *** I thought that it was absolutely critical for
community confidence, because we had had a lot of criticism about
arresting and then releasing under the Terrorism Act with no charges,
that, if we are going to arrest a group of young British men on
such serious allegations, we should be able to have unequivocal
evidence to put before the court. Now, of course there is a frustration
that, in the public debate for the last two years, none of this
has been able to be rolled out and I do sense that the public,
for all the obvious reasons, are being denied a part of the information
which would be so important to them and enable them to come to
judgments. It is very difficult for us, particularly when we are
speaking with the Muslim community, to explain the reality and
the strength and the depth of the threat when we cannot actually
allude to the sort of things which are currently waiting to come
before the courts.
Assistant Commissioner Hayman: I
am just thinking out loud here, but I think there have been three
thwarted attacks since July. *** was one and I think there are
two where discussions were being held as part of the investigation
and the meeting that Peter chairs which is looking at the best
time and the right time to predict where, and I do not want to
put words into your mouth, Peter, but I know we had discussions
that public safety is the predominant consideration here, decisions
made to interject, and then what you think you are going to find
actually presents you with more of a challenge to gather the evidence
and it is whether you have struck too early and you really do
not think you can balance or you can gamble with the public safety.
I can remember one particular case where Peter and his team had
been working like billy-o to get that within those 14 days, and
I just think that you cannot help but wonder at times that, because
you are working at such a rate of knots, the thoroughness may
not be there always or it may produce hastiness, and, okay, you
can repair that when you start to prepare the case for presentation
in court, but that just seems to me to be a crazy way of operating.
Q266 Chairman: Going back to Springbourne,
it has been widely suggested that it was a bit of a fiasco actually,
that there was not any ricin, and that large numbers of people
were found not guilty. It is one of the cases that is used to
discredit the anti-terrorist operation. The police seem to suggest
that this was one of the cases where further investigation would
have led to more successful charges. Is that right, in your view,
and obviously we do not know legally what the position is, but
in your view?
Deputy Assistant Commissioner Clarke:
I think with Springbourne there could have been a different
outcome. Mohammed Meguerba was the individual who was arrested
early in this operation, and, remember, this was a rolling operation
from the spring of 2002 right the way through to the finding of
ricin by-products in January 2003, the murder of Stephen Oake
in January 2003 and the search of the Finsbury Park mosque in
that same month. Meguerba was the man who was arrested in September
2002 and there was no evidence to charge him at that time in respect
of terrorist offences. There were some issues around identity
fraud and the like. He was released, jumped bail and went to Algeria
and then it was in the subsequent three-month period that his
fingerprints then appeared on a ricin recipe which had been recovered
in Norfolk. Had he still been with us, he would have been charged
as a main conspirator along with Bourgass and the others. The
broader issues around Springbourne are very interesting in terms
of the legal process and case management, and the challenge which
I think our criminal justice system faces in dealing with this
new type of case where we have international conspiracies, information
and intelligence coming from different jurisdictions and the,
I hesitate to use the expression, the "game", but I
heard an eminent QC use it recently, saying that the "game
has changed and we've moved on from the Queensbury Rules of the
IRA", he said, "to the new game which is to try and
hit the PII bullseye in court", in other words, test the
information which is coming forward or try and probe to the point
where the prosecution are obliged to relinquish or throw out the
case because it would cause such jeopardy to international relations
were we to proceed, and that is a new form of tactic which we
are seeing evolve now. I do not know how that will play out during
the coming year; we will see how our criminal justice system is
equipped to deal with it.
Q267 Chairman: Taking that case as
relevant to today's discussion, it does not sound as though, had
you had detention of up to 90 days, you would have necessarily
got any more detentions.
Deputy Assistant Commissioner Clarke:
Not necessarily on that, no, but I cannot say yes or no.
I have been asked this question many times: "Tell me how
many terrorists you have had to let go because you have not had
14 days, 28 days or 90 days". As I said earlier, I think,
with respect, that is the wrong question.
Mr Winnick: There is no contradiction
between what you are trying to do and what we are doing to try
and prevent this country from being the subject of terrorism and
at the same time not affronting what may appear to be the long
tradition in this country of the rule of law for protecting civil
liberties. Mr Malik said that he respected your integrity and
that goes for all of us, though differences may occur, and we
have the highest respect for the work you do day in and day out—
Mr Malik: I said we all respected
it, not just me.
Q268 Mr Winnick: We say so publicly,
we have said so and we know the responsibility that you carry,
but there are one or two questions. As far as the atrocities of
7 July are concerned, and there is no doubt that if there had
been 90 days, 180 days or whatever, it would not have made the
slightest difference, it took the police and security authorities
totally by surprise presumably?
Assistant Commissioner Hayman: I
am not sure what the question there is. What we are saying is
that obviously the main perpetrators lost their lives, so, if
that is what you are saying, the days would not have really mattered.
Q269 Mr Winnick: There was no suspicion
about them, that is what I am saying, otherwise obviously they
would have been brought in in the usual way. It is not a trick
question. What I am saying is that this atrocity which occurred
and took the lives of 56 people on 7 July, it would not have made
any difference if there had been 28 days or 90 days or whatever.
Deputy Assistant Commissioner Clarke:
I have to be immensely careful in answering this because
of the position we are at and because I do not want to mislead
the Committee, but *** What I am saying is that I cannot say that
90 days would definitely have stopped 7 July, but neither can
I exclude it as a possibility, however remote. ***
Q270 Mr Winnick: But you will accept,
Mr Clarke, that, if that was the argument for 90 days, then, as
Mr Browne and myself said earlier on, that could equally be an
argument for longer because you could say, "Well, if we just
had longer than 90 days, if Parliament had given 90 days, we might
have found this or the other". The danger perhaps from the
point of view of parliamentarians who took a particular view and
voted accordingly on 5 November is the danger of escalation where
you actually say in effect, "We stop here and no further".
Assistant Commissioner Hayman: I
have just a slight concern that I would like to share. Regardless
of the pros and cons of whether it is 90 days or not, what I think
we are starting to paint here is a picture which is getting worse,
getting more complex. With the technology that is starting to
advance, it is a fair opinion, I think you could say, that in
the next two or three years it can only get more complex and more
difficult. I am just worried that the consequence of the debate
we have had both in Parliament and in the public domain creates
a difficult environment where, because of the things we are now
starting to see, we need to go back in two or three years' time
to review our position on levels of detention, and that this whole
process and what went on in the autumn starts to make it so difficult
to have that debate when actually we should be having the debate,
given how the picture starts to unfold, and that is a concern
I really have got.
Q271 Mr Malik: I understand where
David is coming from. I think there has got to be a clear distinction,
has there not, between pre-7/7 and post-7/7? The argument really
does not seem to make too much sense to me if you are saying that,
if you had been able to hold people for 90 days before 7/7, would
7/7 have taken place? Is it not the case that 7/7 has woken up
everybody and it changes entirely how the Security Service and
the police work and, if that situation arose again, then you would
be looking at it in a different way? You would be operating in
a different way with a different set of circumstances, so I am
just a bit confused about the kind of circular debate we are having
about the 90 days as that is just one aspect of the police and
Security Service's work and there are many other aspects that
have changed as a result.
Assistant Commissioner Hayman: Yes,
I agree. If you took a snapshot pre- and post-July, I do not think
you would see it radically different in the way we are operating
because we have enjoyed tremendous partnership arrangements without
confusing the boundaries between unique roles. I think investigative
capability and techniques remain the same, but what I would shine
the light on where there is a wake-up call is around the community
relations and embracing the community. I think that has been a
big wake-up call for everyone and, if we look at the things we
are planning now, that is radically different from what it was
post- and pre-July.
Q272 Gwyn Prosser: In the public
session, you made some cautious remarks about the way certain
firms of lawyers and solicitors act on behalf of their clients
and share cases. Do you want to expand on that?
Deputy Assistant Commissioner Clarke:
I fear my remarks probably were not cautious enough. It
is not for me to second-guess a professional judgment of lawyers
because we do see certain patterns and I do find it strange when,
say, we have nine people in custody, eight of whom are represented
by the same firm, and they all receive identical advice even though
their circumstances are radically different as I am not sure that
each individual suspect is getting the best possible advice. Now,
I can only speculate as to whether that might be because there
is a wish to protect a leading party within a conspiracy from
a revelation by other members of that conspiracy. I can only speculate
on that and it would be improper for me to go any further, but
nevertheless I sometimes feel that not everybody is benefiting
from the most objective and professional advice.
Q273 Mr Benyon: You said earlier
that you were content with the resources you had at your disposal.
We had a meeting with Head of the Security Service, Eliza Manningham-Buller,
last year and she said that the Prime Minister talked about there
being hundreds of people who were causing concern, but that figure
has since gone up to nearly 2,000, and maybe beyond. One got an
impression that resources would never be enough really to be able
to play it, but, in terms of this inquiry and your description
of seeing one of your officers with his bloodshot eyes, you will
never have enough resources really to be able to expedite an inquiry
as quickly as you want, so can you go a bit further than what
you were saying earlier in terms of answering Mr Clappison?
Assistant Commissioner Hayman: I
am making those comments, I guess, as a bit of a realist really.
Terrorism is a dreadful crime, but it is not the only crime and,
when there is a limited amount of resources which need to be spread
across a very broad agenda which is not just in terms of the Police
Service, but right across the public sector, I just do not think
it is right that you go in there trying to take the lion's share
of the resources when actually the reality is that you are still
going to be prioritising as you are now. That is where the professional
judgment comes in to make sure that you get that prioritisation
right because it is not a bottomless pit, and we all know that,
so why go to the negotiating table being so bullish that actually
you disadvantage other important parts of the public sector funding,
knowing in the back of your mind that you are never going to be
able to meet the exact demand that you know exists? Therefore,
I would rather have a modest settlement where I can look ministers
in the eye and say that I will deliver on what I have promised
I will deliver. Yes, it is not easy to keep prioritising. When
I go to the briefings with ministers, I say to them, which is
fact, "What is getting prioritised out at the moment post-July
would, pre-July, have been a top priority". Now, that could
sound horrific, but actually we are making those judgments on
the basis that there are not enough resources to go around.
Q274 Mr Browne: It does not really
need to be said in this session, but you were just talking about
different types of crime and one of the other cases being made
at the moment for amalgamations of police forces is to deal with
terrorism and large-scale organised crime. I am just curious to
know, as you are here, whether you think that will assist the
process, whether it becomes more difficult and more fiddly, if
you like, just having 43 forces in England where, I suspect, there
is not that much terrorism concentrated in quite a lot of those
forces, whether you think the process of amalgamation would help
streamline your investigations or whether it would not actually
help that much in that.
Assistant Commissioner Hayman: Well,
I would put my cards on the table and say I am a strong advocate
of fewer forces. I have worked in a smaller force alongside two
other smaller forces and the extent to which I, as the chief there,
could meet some of the demands not just of terrorism, but of serious
crime, it was just impossible. We had the guy who had his fingerprints
on the ricin menu in Thetford and, therefore, it meant that there
was absolutely no way we could deal with that and we had to bow
to the expertise at the centre and to the Met, so, for me, the
configuration for something like this where you have fewer forces
where collaboration and strategic position are at the heart of
the way in which you order yourself, you recognise that, coming
from London, there is a very specialist unit which is able to
help and assist, but it is corralling what also is available around
the rest of the country. I think there is the other piece at the
moment which needs to be re-ordered which is part of the agenda
for the next 12 to 18 months nationally and that is to get the
gearing right in terms of terrorist investigations between intelligence-gathering
and investigation and what we call "protective security",
which are the things where you try to deter acts of terrorism.
If we get that balance right and we have got it ordered in a strategic
sense with fewer forces, I think that would be an awesome force
to deal with not just terrorism, but also serious crime.
Q275 Mr Malik: One of my concerns
is community relations and how well equipped the Met is by and
large. They have got their kind of capacity and skills and some
of the expertise and experience now in dealing with some of those
issues, whether it is intelligence-gathering or whether it is
community confidence-building, but I am not confident at all that
the majority of the constabularies around the country are anywhere
near the Met and that leaves a real deficiency in terms of dealing
with intelligence and other issues. How are we going to build
up some of that network and structure across the country?
Assistant Commissioner Hayman: I
am going to speak candidly now and say that I do not share your
perception of what is going on in London, to be honest. I think
there is still a lot of room for improvement. It is on the right
track, it has got the right ideas, but it has not got the kind
of depth of contact and the confidence that is required; there
is a long way to go. If your judgment is that we are okay—
Q276 Mr Malik: My judgment is that,
relative to other constabularies, you are a long way ahead, though
I still say you have a long way to go, but that is a great concern
that they are so far behind.
Assistant Commissioner Hayman: I
agree with you there. It is not just about necessarily terrorism
investigations or relationships with the Muslim community, but
that can spread right across the crime agenda into drugs and serious
crime.
Q277 Steve McCabe: This is a very
simple question I wanted to try and ask. Obviously the whole debate
about the maximum 90 days attracted enormous publicity and some
people thought it was a great parliamentary event and others were
not quite so sure and you said yourself that it may have made
it difficult to discuss some of this. I presume that the purpose
of producing this paper is to say to us that there were a lot
of very serious cases going on and still going on and there is
a more persuasive case than parliamentarians may have thought
at the time. Are you hampered by the way we behave? Is there another
mechanism by which you could communicate to parliamentarians which
would maybe take this out of the newspapers and out of the parliamentary
ether and allow that exchange which is really important to take
place?
Assistant Commissioner Hayman: Well,
we are up against the problem of sharing this material and we
cannot get over that and we all understand that. I would not in
any way want to obstruct what I think is a healthy democracy where
we are having the debates in open because that could get misunderstood,
albeit there is a daily contact which we have with both peers
and members. I think it boils down to responsible reporting and
that is where the effort and the lobbying needs to occur or it
gets out of control. Who would have predicted the amount of publicity
and the commentary that occurred around that awesome summertime?
Maybe if we had anticipated that, we would have dealt with it
in a different way, but I felt that we were acting responsibly
and professionally and, as ever, if there is a quiet news day,
maybe that contributes to it.
Q278 Chairman: I want, if I can,
to pursue this because looking at the cases you have put in front
of us, you can see that Parliament has left it at 28 days, which
was Mr Winnick's amendment, and you can certainly see from these
cases, I think, although we have not gone through it in great
detail, how 14 days was up against the wire in terms of at least
half of these cases. It is quite difficult at this stage to look
at this information and sense that 28 days, which is a doubling
of that period of time, would not make a very significant difference
to what you faced in these cases. It is more difficult to look
at these cases and to see where the argument that it must be more
than 28 days comes from. Rather than argue it in general terms,
and I know it is repeating a question to Mr Clarke about how many
terrorists did you let go last week, but can you look at the cases
here and highlight ones or aspects of them that lead you to believe
that significantly more than 28 days would in practice be needed
in order to be as effective as you want to be?
Assistant Commissioner Hayman: This
discussion is such a difficult discussion because there is a bit
of me which is saying, as we were when we were debating the technology,
that the pattern which is starting to emerge means that we can,
I think, quite reasonably anticipate in two years' time, 18 months'
time or next week, I do not know, but we will come across a case
which has live operations going on at the moment and one particular
operation is exhausting our resources and the point of interdiction
is being weighed up by Peter on a twice- or thrice-weekly basis.
We are saying, maybe not analysing where we are now, that it is
the pattern which is starting to emerge and only time will tell
on that. Do you not think I have pored over this every week since
this debate has gone on, changing my own conscience, changing
my own assessment and judgment, and we fell on one particular
timescale which, I think, got misconstrued or misreported really,
skewed in the reporting. It was about the extension, not the 90
days, and that, I think, is the point and it is very difficult
for Peter and I to answer that question against a benchmark of
28 days.
Q279 Chairman: Lord Carlile told
us that there was a case simply put to him that there were cases
where up to 90 days might be justified. Are you able to identify
for us whether you believe that is one of these cases or a separate
case? If so, what would it have been that led to that?
Assistant Commissioner Hayman: It
is a separate case.
Deputy Assistant Commissioner Clarke:
It is a separate case and, because it is in a slightly
different jurisdiction, with respect to any Scottish members here,
slightly different rules apply anyway. His briefing from the senior
investigators in that case was clearly that it would have helped.
I am not privy actually to those details in that specific case.
It was an offshoot of a case which was based in and around London,
but it was dealt with entirely within Scottish jurisdiction, so
I am not in a position really to comment in detail on it or the
briefing Lord Carlile received.
Q280 Mr Winnick: There has been a
more recent vote obviously, as you know, in the Lords which rejected
not 90 days, but 60 days, and the Government, because of what
the Home Secretary had said earlier, did not vote and, if they
had voted in the Lords, it would have been five, 10 or at the
most 20 extra votes, probably less, but there would have been
a majority against 60. When the question of seven to 14 days came
before the House, I do not believe there was a vote on it, but
I do not recall anyone voting against, so there was no controversy.
We recognised in the House of Commons at the time when Beverley
Hughes put the argument that there should be an increase and in
fact it was 20 May 2003. I am just wondering, would it not be
wise to see how the 28 days goes, not that you have got much option,
I accept that, and, if you really believe that there is the strongest
case that could be put to Parliament in due course, then it would
seem appropriate to do so? I find it difficult to believe that
parliamentarians, if they were faced with a very, very strong
degree of evidence, be it on the Government side or the Opposition
side, would say, "No, no, we have agreed to 28 days",
whenever it was, last year or three years ago, "and we won't
consider any increase". In answer to the Chair, you said
you could not point to anywhere here where more than 28 days was
necessary, so I would have thought that would be the best way
to proceed.
Assistant Commissioner Hayman: I
guess some of the points of reflection on all of this can be summarised
like this really: let us not lose sight of the position the Government
found themselves in in the wake of an attack in July. Speed was
of the essence, was my reading of that, and, therefore, maybe
in the essence of speed in getting some legislation framed, some
of the processes you would normally go through got compromised,
and that is for others to make a judgment about. This process
here seems to me to be very thorough and very strong in its scrutiny
and, if you were looking for any kind of evidence-based development
of proposals, it could come from some kind of scrutiny committee
cross-party or something like this. I know that Lord Carlile,
when he gave his evidence, certainly was an advocate of that and
we would want to be a contributor. Of course that is with the
luxury of time and I do not think that was there in the summer.
Chairman: Can I thank you both
very, very much. You will want these papers back, I am sure, so
we will return these to you.
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