Examination of Witness (Questions 320-339)
RT HON
CHARLES CLARKE
MP
21 MARCH 2006
Q320 Steve McCabe: Home Secretary,
Lord Carlile said that the extent of the control order is "so
great that they come to the very limit of restrictions on human
rights". If that is the case, would not control orders be
an effective device on those suspected of serious offences?
Mr Clarke: They could be, and
they take you quite a long way forward, but the question still
remains, when you look at the danger of individuals and the danger
that they pose—going back to Mr Malik's question in a context
where that can include catastrophic action, including killing
yourself as you do that—then the question we have to ask
ourselves, and I certainly have to ask myself, is: is the regime
tough enough to deal with the threat which is posed? Control orders
are an effective means of operating but they are not detention.
If I consider it necessary to go to detention, so-called non-derogated
control orders, I would certainly put that to Parliament, and
Parliament would have to decide upon it but I do not think we
are in that situation as we speak. The orders themselves are a
partial response to this problem and not a total response to the
problem.
Q321 Steve McCabe: If that is the
case, if we were to combine control orders plus tagging and other
surveillance techniques with the existing pre-charge detention
period, would you be confident that would allow you to disrupt
terrorist activities?
Mr Clarke: It is the same answer
really. I would be confident that it is better than not having
it, but it is not as good as having the ability to detain someone
for questioning based on the evidence that is acquired. This is
a very high risk game. With control orders, with tagging and with
surveillance there is always a question of how secure is that.
People are reasonably going to say, "Is it as secure as putting
somebody in a prison cell?" The answer is that it is not.
If it is not as secure as putting somebody in a prison cell, what
is the extent of the risk we are bearing if that arises? As Mr
Clappison said in his introduction, it is right there is always
the balance between individual liberty and security and I completely
accept that, but I cannot ignore the risk factors which are involved
in all of this. I think that some people, and certainly not you,
Mr McCabe, try and evade the sharpness of the choice by saying,
"Can we stack up a whole range of measures which are equivalent
to giving us the security of putting somebody in a prison cell?"
The answer to that is, "Well, you can't". At the end
of the day all of these measures, like control orders and so on,
are not as secure as putting somebody in prison. Then of course
the question arises, how can you put somebody in prison if you
do not know if they have committed an offence? That is of course
the liberty/security argument that you are in. The idea that you
can evade that dilemma, which is a real one I acknowledge, by
a whole set of measures of control orders and so on is not the
case. You cannot evade that; but it is of course the case that
control orders, tagging, surveillance and that whole range of
issues give you more security than you would have if you did not
have them, but less security than a prison cell.
Q322 Steve McCabe: Could I just ask
about post-charge questioning. I think you have said you have
got an open mind on it and, in fact, you promised a consultation
paper. You did say that you were concerned that one of the problems
was that it might not be possible to bring a charge in the first
place and hence the difficulty with it. In what proportion of
cases do you think it would not be possible to bring a charge
in the first place and, therefore, post-charge questioning would
be redundant?
Mr Clarke: I do not think it is
really possible to give a percentage. I think it must be the case
that the percentage that would result in criminal charges as a
result of post-charge questioning would be quite low. We are not
against it but I think it would be quite low. As I say, we are
looking at this and I think it is a perfectly appropriate thing
to look at, but it does not solve the problem if it has not been
possible to bring a charge against the person in the first place.
Q323 Steve McCabe: Are you still
planning to produce a consultation paper?
Mr Clarke: Yes.
Q324 Steve McCabe: Do you know when?
Mr Clarke: Look, we hope to launch
it in the next two or three months. I think, Mr McCabe, it is
quite important we have had that consultation before we get to
what I call the "codified legislation" next year; so
the whole idea is having this as comprehensive as possible. That
is why we have our time pressure too, to publish the consultation
document.
Q325 Chairman: Is that just in relation
to terrorism or all serious crime?
Mr Clarke: We have talked about
it in the context of terrorism. It is an interesting question,
in relation to a number of the measures we have talked about in
relation to terrorism, whether there might or might not be any
appropriate steps we can take in relation to serious and organised
crime—not general crime but serious and organised crime—and
we would consider that too, though it is currently intended that
the consultation primarily focuses on counter-terrorism, which
is where it comes from, but I think there could be a knock-on
effect into other areas.
Q326 Colin Burgon: I have a couple
of questions on Part 3 of the Regulation of Investigatory Powers
Act. We have heard from Lord Carlile and we have heard from JUSTICE
who argue that it should be brought into force. We have also heard
from Deputy Assistant Commissioner Clarke, and he was far more
guarded in his response on this question. Why have you not brought
this particular piece of legislation into force?
Mr Clarke: The short answer is
that this part of RIPA was conceived in the expectation that it
would only be four or five years before all electronic communications
and all stored electronic data would be routinely encrypted, and
that, in fact, has not happened at the speed at which we anticipated
when the RIPA bill was passed. There are a lot of reasons for
that, and the technological change is moving very quickly indeed
in the whole of the communications field. It is also the case
that the abuse of encryption by terrorists and criminals has not
taken place at the speed at which we thought it would when the
RIPA bill was passed. The take-up of encryption software has been
low because a lot it is still very difficult to use properly.
I do not know if you have ever tried, Mr Burgon, to use encrypted
communications yourself?
Q327 Colin Burgon: No, I have not.
Mr Clarke: There are commercially
available options, but in fact it slows down your operation. If,
as I am sure you are, you are a very fast one or two finger typist—
Q328 Colin Burgon: I am at the cutting
edge of technology: I use Teletext!
Mr Clarke: I thought, as a Yorkshire
man, you would be bound to be ahead of the game in this instance!
Joking aside, the fact is that there are a lot of people who might
think of using encryption but do not, for that reason. It simply
has not moved as quickly. We did create the National Technical
Assistance Centre, from which you have had evidence in 2001, to
provide technical support, and it is doing that, but we would
consider that the bringing in of Part 3 is necessary as the situation
operates. We will, I think within the next three months, be consulting
publicly on a draft code of practice on Part 3 of RIPA and, after
that public consultation, Parliament will be required to approve
the statutory code. That is the reason why we have not done it
thus far, but we think things are moving so that we should deal
with it now.
Q329 Colin Burgon: The penalty under
Part 3 of RIPA for failing to release an encryption key is two
years. Do you think that is inadequate in the light of the fact
that the suspect could be facing something like 20 years in prison
on a terrorism charge? How do you balance that one out?
Mr Clarke: I do, and that is why
we put the proposal in clause 15 on the Terrorism Bill to increase
the maximum in national security cases to five years, for exactly
the reason you imply, because the encryption key is so important
that it needs to be seen as a very serious offence. Some might
argue that five years is itself not long enough, but we are increasing
it to five years for the reason that you have said.
Q330 Mrs Dean: JUSTICE have proposed
that greater attention should be given to the "threshold
test" in section six of the Code for Crown Prosecutors, which
they consider means that the CPS can bring a charge on reasonable
suspicion (ie the same level required for an arrest), but the
police have disputed this, arguing that the "threshold test"
was not applicable to terrorist cases. Could you tell us your
view?
Mr Clarke: At the moment, as you
say, Mrs Dean, as regards decisions on charging a government by
the DPP's guidance and to charge under the full code test, which
is the one that is likely to be applicable in these kinds of cases,
there must be sufficient evidence to provide a realistic prospect
of conviction, and also it must be in the public interest to proceed.
Both have to be there. The nature of the terrorism we face means
that it may be necessary for the police to intervene at an earlier
stage than they might have done in the past since intelligence
may well link a person with terrorism, justifying the arrest,
but there may not be sufficient admissible evidence at that point
to bring a charge and we need to ensure that the police can hold
the suspect for a sufficiently long period to enable such evidence
to be obtained. That is why we have taken the approach we have,
and I think it is the right one.
Q331 Mrs Dean: You have raised difficulties
with each of the possible alternatives to extended detention;
but is it not possible that cumulatively they would be effective
enough for extended detention to be unnecessary?
Mr Clarke: They certainly make
it less necessary. The classic example is the new offences in
the Terrorism Bill, which I hope will become an Act, which deal
with that. It makes it less necessary, but I do not think it makes
it unnecessary. What all those cumulative things do is make detention
a necessary thing for fewer and fewer people. We have said all
the time that we expect it will be a relatively small number of
people, and the changes reduce that number of people but it does
not reduce it to zero. It does, as you imply, have the effect
of reducing the need for it but it does not eliminate it.
Q332 Mr Clappison: Can I move on
to the question which you have just raised of the need for early
arrest. As part of our evidence we heard from Assistant Commissioner
Hayman that there are "a vast amount" of cases now where
an early interdiction is to disrupt on the grounds of public safety.
I believe it has always been part of the case in support of extended
detention that a relatively early arrest is needed in order to
prevent some terrorist incidents with the potential for greater
catastrophe than in the case of many other types of crime. Does
that remain part of your thinking? Would you agree that that is
the main case for extending detention?
Mr Clarke: It has always been
the case, as you rightly say, but I think the "always"
is given increased intensity by the fact you are now talking about
suicide bombers rather than people who are setting bombs elsewhere—it
puts a different context for that—but you have correctly
summed up our thinking. It is critically important for us to disrupt
any terrorist attack, and that may involve arresting some people
earlier than would be ideal because we need to disrupt the terrorist
cell. Nevertheless, the purpose of the arrest is still with the
aim of gathering the evidence to bring a charge. All the time
it has to be based on seeking to bring a charge—that is
the core of the whole thing—but, as always, the police and
prosecution have a judgment to make about the appropriate time
to make such an arrest, and that is formed, as you rightly say,
by the new circumstances which we are up against.
Q333 Mr Clappison: Drawing a distinction
on those grounds between this type of arrest and the arrest which
is made in other types of criminal case, would you be open in
your thinking to consider different treatments of the arrest process
through judicial oversight, perhaps, for example, through judicial
oversight from before the point of arrest, which is what I believe
happens in France and a few other places?
Mr Clarke: I have said before
publicly (and I have always got to be careful what I say because
I am now speaking on behalf of myself and not the Government),
I think that a supervisory system and investigating magistrates
regime is very superior to the system that we have in this country.
That is not the position of the Government, I make clear. As I
say, that is my personal view, but I do not think counsel must
swathe themselves in distinction and I do not think the adversarial
system has been a particularly effective means of securing justice,
but, I admit, I am not a lawyer and, therefore, not steeped in
the conventions which say that what I have just said is a load
of nonsense, but many of my colleagues in government, as in Parliament,
are lawyers who believe that the current system is perfect.
Q334 Mr Clappison: You will be aware
there is a high profile case in France at the moment where they
are actually looking at this whole issue because of the difficulties
which have arisen in the course of the investigation, but my point
put to you was looking at what happened before the arrest took
place. Would you be prepared to at least think about some judicial
oversight, whether on our model or on the Continental model?
Mr Clarke: Yes, indeed. To answer
your question directly, yes, I would. I am ready to look at it,
but I do not want to give the impression that it is the Government's
position that we should go down that course, because it is not.
I think there is a lot to be said for it and I think our system
would benefit from that, but you will understand, Mr Clappison,
better than I, and it would be perhaps surprising to describe
Lord Carlile as a revolutionary but actually it is a revolutionary
suggestion for our legal system to operate in that way. That does
not mean it is wrong, but it does mean that there is not consent
for it across the whole of government.
Q335 Gwyn Prosser: Home Secretary,
you have been talking about judicial oversight, et cetera, and
you have said yourself that you would accept the need for greater
judicial oversight. Why is it that you have not gone as far as
Lord Carlile when he talks about a judicial authority, et cetera,
and a very structured method of overseeing these matters?
Mr Clarke: Simply because I think
there is not yet a consensus across the British legal system that
that kind of change would be impossible. As I implied in my answer
to Mr Clappison, I am personally sympathetic to what Lord Carlile
is saying and to the implication of your question, Mr Prosser,
right now. I am absolutely open to moving in that direction, but
there is not a consensus that that is the right way to proceed.
Q336 Mr Prosser: You have seen that
in the evidence that we took from various witnesses there was
a very strong view that, because of the adversarial nature of
our system, this meant that the decision of district judges was
influenced only by the prosecution case and there was not the
opportunity for someone representing the detainee to put his or
her case and, consequently, it has been described as a rubber
stamp mechanism. We know from our visit to Paddington Green, and
from other evidence, that in all of the cases that have come before
district judges never has a district judge said, "No",
detention is not allowed. We know there is an argument that the
case might be very good, but there is a matter there to discuss,
is there not?
Mr Clarke: You are quite right,
Mr Prosser, to identify those who make that argument. I think
the argument is totally wrong and totally flawed. I certainly
believe that the courts and the judiciary take these issues seriously.
Moreover, I believe that the police work on the basis that the
courts and the judiciary take these things very seriously indeed
and that they have to be properly carried through. I do not just
think it is a question of the defence that the judiciary take
it seriously, the police work on the basis that the judiciary
takes it seriously and so I simply do not accept the proposition
that some have made that the judges are essentially rubber stamps
for the police. I think that is absolutely not the case.
Q337 Mr Winnick: Do you think that
your proposals to replace district judges with High Court judges
would make things fairer?
Mr Clarke: That is a hard question.
We accepted, as the government, the view in the Commons that we
ought to have this done by a High Court judge, and I accepted
that because of the confidence that is reposed in High Court judges.
I was slightly reluctant to do so because I thought that implied
a lack of confidence in district judges, which I do not believe
would be warranted. I think district judges have least as much
integrity and professionalism as High Court judges. You put the
question: is it fairer? I would not say it is fairer. I do not
think that that High Court judges will be fairer in their approach
than district judges, but I accepted the amendment because I accept
it would give people more confidence in the integrity of the system,
though I myself think that the change was not necessary to give
that confidence, if I can put it like that.
Q338 Chairman: Home Secretary, you
have often in the course of the discussions about this prayed
in aid Lord Carlile's support for the maximum of 90 days detention.
Lord Carlile said that his support was based in part on the knowledge
of one particular case which had influenced him. The Metropolitan
Police and ACPO were not able to give us the details of that case
because it was in another jurisdiction, we presume Scotland. Are
you familiar with the details of the case that influenced Lord
Carlile?
Mr Clarke: I am familiar with
the detail of cases. I would not necessarily say that I know which
case has particularly influenced Lord Carlile.
Q339 Chairman: Even though that is
pretty central to his position?
Mr Clarke: I have occasional meetings
with Lord Carlile, not regular meetings, but I have not in any
such meeting asked him what it is in particular that has led him
to his view and, therefore, I cannot comment on that directly.
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