House of COMMONS
MINUTES OF EVIDENCE
HOME AFFAIRS COMMITTEE
Tuesday 7 February 2006
MR ERIC METCALFE, MS SHAMI CHAKRABARTI, MS GARETH PEIRCE and MR TIM OWEN QC
USE OF THE TRANSCRIPT
Taken before the Home Affairs Committee
on Tuesday 7 February 2006
Mr John Denham, in the Chair
Mr Richard Benyon
Mrs Ann Cryer
Mrs Janet Dean
Mr Shahid Malik
Mr Richard Spring
Mr David Winnick
Examination of Witnesses
Witnesses: Mr Eric Metcalfe, Human Rights Policy Director, JUSTICE; Ms Shami Chakrabarti, Director, Liberty; Ms Gareth Peirce, Birnberg Peirce, Solicitors; and Mr Tim Owen QC, Matrix Chambers; gave evidence.
Q1 Chairman: Can I welcome you to this first session of our Inquiry into Terrorism Detention Powers. Just by way of background, obviously the House of Commons voted before Christmas on proposals to extend the period of detention without charge to a maximum of 90 days and voted to reduce that period to 28 days. There was considerable discussion at that time about how well or how poorly the case for an extension for detention powers had been made and, notwithstanding the fact that the House of Commons had already voted, this Committee decided to hold a short inquiry into the case for detention powers and the alternatives that have been put forward, and so on. We hope certainly that this inquiry is not simply of historical interest because, as we know, there will be a proposal, in a year or so's time, to produce perhaps a consolidated Terrorism Act, pulling together all the various different strands, and it seems very likely that, in some form or other, these debates around detention and the conduct of terrorism investigations will come back onto the political agenda. We hope our inquiry, inevitably it starts from a discussion which the House of Commons was having a few months ago, will be useful when we come to look at these issues in the future. Can I start by asking each of the witnesses if you could introduce yourselves, very briefly, for the record, then we will get under way?
Mr Owen: Tim Owen, Queen's Counsel, from Matrix Chambers, barrister, with experience of criminal and human rights issues.
Ms Chakrabarti: Shami Chakrabarti, Director of Liberty, the National Council for Civil Liberties.
Mr Metcalfe: Eric Metcalfe, Director of Human Rights Policy at JUSTICE.
Ms Peirce: I am Gareth Peirce, a solicitor who has spent a lot of her life in Paddington Green Police Station.
Mr Winnick: You have been impersonated in films as well.
Q2 Chairman: Thank you. I have a couple of opening questions which I am going to address to all the witnesses, but, in view of the time, if you agree completely with what the last person has just said please do not feel the need to say it again. I will start off, if I may, with Shami Chakrabarti. Do you accept the basic contention that terrorism cases do present special features for the legal system and the criminal justice system and so, in principle, should be treated differently from other criminal cases?
Ms Chakrabarti: I think the first proposition that I would make is that terrorism is crime, and that is very important. If you remember, Mr Denham, the diatribe recorded by Mohammed Sidique Khan, who was one of the London bombers, one of the many things that he said was "This is a war and I am a soldier." I think one should always be careful, whether with political rhetoric or with political and legislative policy, not to allow a murderer to call himself a soldier. There are also dangers with any culture of exceptionalism, because I believe the threat is real and I think it may be long term and so there are grave dangers with a state of exception that could go on for a generation or several generations. That said, I do accept that some terrorist offences are likely to have very serious consequences. I think what is important is to be specific about particular operational problems and particular offences, rather than for people on either my side of the argument or the security side of the argument to talk about whether terrorism is so unprecedented that we have to change the rules of the game.
Q3 Chairman: In principle, this is acceptable, to have legislation which may be described as a Terrorism Act, but, nonetheless, we need to look very carefully at what it contains?
Ms Chakrabarti: When we do, I think one should make an important distinction between the substantive and the procedural criminal law. For example, in this country now we are well used to having specific offences that are terrorist offences; some people have concerns even about those. They tend to be broader in their ambit and at times they include reverse burdens of proof, and so on. Of course one has concerns about that, but the graver difficulty, in my view, is with undermining procedural criminal protections, in particular the presumption of innocence.
Q4 Chairman: Do any of the other witnesses wish to add anything significantly different from that?
Mr Owen: Speaking just from the point of view of a practitioner, I think the answer to your question is, no, I do not see, from the way in which the criminal justice system has to operate, that it requires fundamentally different rules. I think the terrorist offences, firstly, range enormously in seriousness from, at the lower end, membership of a prescribed organisation right up to conspiracy to murder, and so on. In terms of the way the criminal justice system operates, the rules of evidence, the presentation of evidence, I do not see that there is justification for a fundamentally different approach. Investigation is perhaps a different matter.
Ms Peirce: I simply note the comment on the police officer's briefing, Andy Hayman, to suggest that Irish terrorists, rightly or wrongly called, presented a different problem. Certainly that was not the way it was ever put, in any prosecution of any Irish defendant, and at that point of time seven days was considered an extravagantly long time that was a great deal for any suspect to have to endure. I think I cannot accept the proposition that the threat has changed in degree or severity or quality or the factual basis, it is very, very similar, and the investigative mechanisms and powers, in my view, present almost identical problems for all concerned.
Q5 Chairman: I will come back to that in a moment, if I may, but let Mr Metcalfe have a say?
Mr Metcalfe: Operationally, I can see that it makes a great deal of difference to the way in which the police have to tackle suspected offences, but, legally speaking, I agree completely with what other panel members have said, legally it does not make any difference. Bearing in mind that the problem with talking about these things, in most of these terrorism cases, is the broad definition that we have under Section 1 of the Terrorism Act 2000, under the terms of the Terrorism Act a terrorism case may involve a crop protestor committing criminal damage. It is perfectly correct for the police to address offences which involve the threat of large-scale loss of life, but it would be wrong to say that every terrorism case, as defined under the Act, necessarily would involve such a threat.
Q6 Chairman: Accepting the point which Mr Metcalfe has made, that the definition of terrorism is very broad, and actually Lord Carlile has been invited to advise the Government on the definition of terrorism, so if we can put to one side some of the more minor offences which can get caught up in the terrorism definition at the moment, Gareth Peirce, you said that you did not think the threat had changed in a significant way. We appear to be facing terrorists now whose central aim of terrorist action appears to be to kill as many people as possible as indiscriminately as possible. Is not that actually quite a significant change in the threat that we expect the police and the security services to protect us from, and that may require, in some way, those organisations to act differently?
Ms Peirce: I think, the IRA bombing campaign, which was directed, for the large part, against London over 25 to 30 years, it is quite wrong, retrospectively, to classify it as it was seen throughout by the police and the security services as anything other than exposing the citizens of London and the rest of the country to extreme danger. That was the way it was perceived. Whether or not it was conceded on occasion that the IRA sought to give warnings, I have to say, as a person who defended IRA suspects over many years, it was never put that way on prosecutions, it was always put that there was a high risk, or worse, of civilian casualties, all the time.
Q7 Chairman: That is perfectly obvious, that the IRA campaign did cause civilian deaths and, constantly, warnings or no warnings, ran the risk of civilian deaths. Nonetheless, is there not a substantive difference between that and the type of terrorist tactic which appears, as with the July bombings, to put the primacy simply on killing as many people as indiscriminately as possible? In practical terms, we look to the police and security services to protect us. Is it not the case that, faced with that type of threat, the measures they may need to contemplate will need to go further than were necessary in dealing with the IRA campaign?
Ms Peirce: I will split your question into two. I think one has to analyse, at some stage in our discussion, as to the appropriateness of the data we are considering, in relation to July 7, that is an important factor, what the police had to investigate, whether they used it properly or not. In terms of simply quantifying it, whether there is one death or 3,000 deaths, a bomb going off in a city, in my view, has to be approached with the same degree of seriousness of inquiry. I cannot see that the end result itself dictates a different form of investigation; all must be of the highest quality and the highest calibre.
Q8 Chairman: We will come on to the detail of this in a moment, but if part of the police argument is that some preventive measures are necessary, and obviously they are talking about detention powers, and we will go into that in detail, is it not the case that if what you fear is the attempt to kill of hundreds of people you may be justified in using a level of preventive measures that you would not have judged necessary when the danger was that somebody would be killed if a bomb warning was not acted upon? Would you really regard the two as exactly the same and there is no difference between the attempt to kill hundreds of people and the attempt to kill one person?
Ms Peirce: I regard the phenomenon we have faced in this country for at least 25 years, a phenomenon of bombings, carried out for political motives, to have been the most exceptional danger that any country could have been exposed to on a sustained level. I simply stick to what I say. Having experienced that and learned what we had to learn from that, I find it unjustifiable to do a quantum leap from an extended period of seven days to the level it is now.
Ms Chakrabarti: Forgive me, Mr Denham, I think there are aspects of this kind of discussion which are unhelpful, because it is too easy to make sweeping statements about "this is an unprecedented threat," "the IRA were gentlemen bombers;" I exaggerate.
Q9 Chairman: It is not what I think anybody in the Committee has suggested to you.
Ms Chakrabarti: No, not in the Committee, but out in public discourse it is very easy to get into a situation which is very unpleasant for IRA victims, for example, and the idea of the Raffles gentleman bomber always leaving a calling-card, of course that was not true. Equally, this threat is complex too. I am prepared to accept that the threat has aspects of difference about it. I am prepared to accept that it is not people like me who have access to secret intelligence, that is the nature of secret intelligence. What I always say is that the rule of law is robust enough to deal with this threat or that threat and that the post-war human rights consensus, that is the rule of law that we are talking about here, the Convention Articles, the right to a fair trial, qualified interferences with privacy, even the provisional Article 15 of the Convention on Human Rights which allows for a temporary state of exception, these provisions were drafted by democrats after the second world war, Eleanor Roosevelt, Winston Churchill, and so on. These people were not na´ve 1960s liberals, they had lived through the Holocaust and the Blitz and they came up with a framework that is still important today. It is against that framework that we and others should be examining this threat, or any new threat. There will be aspects of difference, there will be aspects of similarity; it is important to be specific about what is different.
Q10 Chairman: If we can be specific, what level of risk do you think we should be prepared to accept? This debate is, essentially, as you say, which of our established freedoms are we prepared to erode, by how much, in the face of the threat that we have got now? I think you are saying that the nature of the bomb threat we have now makes no difference, compared with the IRA fear, to that balance between freedoms. I suppose the question I am trying to pin you down to be specific about is what level of risk do you think we should be prepared to take rather than erode any of our freedoms?
Ms Chakrabarti: I would say that the framework for analysing this is all in the Convention. For example, one of the reasons why in public discourse people say frequently that these bombers are different from any other bombers is the concept of 'suicide bomber', which presents particular operational challenges and which is particularly uncomfortable for us because we find suicide difficult as well as the idea of murder difficult, so it is particularly unsavoury in our consciousness. Operationally, I have to accept, as a human rights proponent, that Article 2 of the Convention on Human Rights is an incredibly important Article of protection, but it is not absolute. For example, it allows for even the use of lethal force when strictly necessary to prevent an atrocity. I accept that, in the specific context, that operational context, if someone were about to detonate a suicide device but not acting by remote control, you might have to use more force than otherwise you would do. One has to approach this issue with that level of specificity, rather than sweeping political statements of that, because we have suicide bombers now, it is too much risk, and therefore we sweep away fair trial protections, protections against arbitrary detention, and so on.
Q11 Chairman: Let us not go too sweeping in answer to these questions. Essentially, you say we should work from the Convention backwards; some other people in the debate certainly will say "Let's work from the risk upwards and have a response that's proportionate." Mr Owen, or Metcalfe, do you have anything to add on this point?
Mr Owen: I think the relatives of those who died in Enniskillen, Omagh, Guildford, Woolwich, Birmingham or Canary Wharf will take the view that the IRA did not give targeted or clear warnings and I agree with what Gareth Peirce had to say about that. I just have a difficulty with Mr Hayman's paper on this point. While, of course, on one view, the more people who are killed the more evil and wicked is the deed, in terms of the threat, if you have a lorry loaded with three tonnes of home-made fertiliser being driven around London and left in a public place, with no or an inadequate warning, is it really suggested that the police would not, with information, do their utmost to arrest at the earliest point to avoid the threat. I do not see, conceptually, how it really matters whether it is a suicide bomber or a lorry being driven, loaded with explosives. It is important because that sets the scene for Mr Hayman's subsequent approach, because then what he says is, because you have to intervene at this prophylactic stage, at a stage where, in effect, he is saying, often you have no evidence at all, I just question that.
Chairman: I think witnesses have been very clear and consistent about the similarities they see between the current threat and the previous IRA threats. I do not think we need to go into that any further.
Q12 Mr Winnick: You mentioned, just for a moment, a number of atrocities carried out by the IRA. As far as Birmingham, which is near my constituency, is concerned, is it not the case that 21 were murdered in that terrible November in 1974, half of whom, I should say, Mr Chairman, were under the age of 25? Coming on to the justification that the police make for 90 days, you will have read the theoretical case study where the police use every kind of argument to say why, in all the circumstances, technical reasons given, and the rest of it, it is absolutely essential for the security of our country that the law provides for up to 90 days' detention; you are not impressed, presumably, the four of you? Ms Peirce, were you at all impressed, although I suppose the answer is pretty obvious?
Ms Peirce: Fairly obvious, but I think it is absolutely tragic that Parliament took its decisions on the length of time without first having a pause for investigation to get proper data, proper empirical data, as to what actually happens in police stations, the kinds of time and motion studies of how much time is used. In particular, in relation to July 7, I find it quite extraordinary that this whole debate and legislation, and once there is legislation in place there is never the same momentum to delegislate, and, I fear, here we are, with 28 days now.
Q13 Mr Winnick: That was not quite my question, with respect, Ms Peirce, because we know your strong views and we have read your article, which has been circulated. My question really was do you see any merit - perhaps I could have put it better, and it would be my fault - whatsoever in the theoretical case study the police have given as justification for up to 90 days' detention, any merit at all?
Ms Peirce: No, I see none, and I would argue for a retreat to seven days. I am sorry I digress but just to make one point very quickly. In relation to July 7, I believe that Parliament ought to have been provided, and still ought to be provided, whether it be privately or publicly, with what was known to the police beforehand about those who carried out the bombings, what police powers were used ---
Chairman: I am sorry, I must stop you. I think it is very important, because we have a number of questions to cover, that you reply directly to Mr Winnick's question about the case study.
Q14 Mr Winnick: I think we can work on the assumption that you see no merit at all in it. We can cut this pretty short, because obviously you are putting the opposition case, we will have the police in due course, and the rest of it, so, to some extent at least, my questions are theoretical as well as discussing a theoretical case study. Do any of the four witnesses see any merit whatsoever, obviously what you have studied, in the case which the police have put forward? Mr Owen? Really, yes or no, you might say.
Mr Owen: I accept that the factual information, if you like, may well reflect the reality of what the police are up against, but I do not accept that the legal system, at the moment, is not capable of delivering a solution without going to 28 days, or even 14 days. I have got six points to make about it, but I know you do not want six points.
Mr Winnick: Not on this question.
Q15 Chairman: It would be useful to have the key points about the case study, and we could take that now?
Mr Owen: To give you the six points. One has been dealt with, firstly; I think it greatly exaggerates the different nature of the threat. Secondly, it proceeds on the assumption that at the point of arrest police have literally no evidence and the 14 days provides the only opportunity to commence investigation, yet the case study that is there reveals there is two months of surveillance, including probes, and one really questions whether literally nothing emerges from that. Thirdly, there is no factoring in of the, frankly, absurd consequences flowing from our statutory bar on the admissibility of intercept evidence. At the moment, of course, if you know that intercept evidence is not admissible as evidence, you do not use intercepts in the way that you would if they were, and you use them for a purely intelligence background as opposed to an evidence-based background, and so really he does not factor that in. Fourthly, he suggests that at the point of charge the CPS must be in a position, in effect, to serve all its evidence and that the police are not permitted, at the moment, effectively, to continue to investigate; that is simply not the case. The current position, with any complicated terrorist case, is that the police, CPS, in effect get at least six months to serve the papers. It means that a defendant has to wait six months before he can even make a dismissal application on the grounds that there is no evidence; so that is not reflected. Fifthly, it fails to acknowledge that at the post-charge stage, in other words, detention pending trial, the Crown Prosecution Service and the police get what I would say is a pretty easy ride from the courts. Bail is hardly ever granted in terrorist cases. Evidence can be, and is, served continuously throughout the remand process, in stages, right up to the day before the trial; and, thirdly, custody time limits, which is the way in which post-charge detention is regulated, again is an extremely generous approach by the courts. As long as the prosecution show that they are investigating continuously, in a diligent way, the judge will extend custody time limits, up to two years. I was involved in a case last year, for which the trial is not going to take place now until April of this year; the arrests were August 2004, almost two years, custody time limits extended throughout. Lastly, I think Mr Hayman greatly exaggerates the benefits of interviewing as an exercise in evidence-gathering in itself, and he does not take account of the current Code of Practice, paragraph 16.5 of Code C, which enables interview post-charge in exceptional circumstances. Those are the six points.
Chairman: We will come back certainly to that post-charge interview question a little later on.
Q16 Mr Winnick: Thank you very much; that is very useful.
Ms Peirce: May I add one point to Mr Owen's six points, in terms of what the prosecution has at its disposal, because the inference is, if you do not get someone while they are in the police station to admit or keep silent what they are being asked about, that the chance has gone. There is an entirely new procedure, which is much more stringent than it used to be, of a requirement on a defendant to give a defence case statement, in writing, before his trial, to the prosecution, which deals with every issue and every accusation in the case, and if he does not do that, or she does not do that, then it is a matter for comment and inference that the jury can draw, and that is missing completely from Mr Hayman's analysis.
Q17 Mr Winnick: Mr Metcalfe, do I take it that, as far as the theoretical case study is concerned, you do not accept the police evidence?
Mr Metcalfe: Yes, that is correct, entirely for the reasons which Mr Owen and Mrs Peirce have given.
Ms Chakrabarti: Just briefly, Mr Winnick, because I do not want to accuse the police of bad faith on this, they write a hypothetical case study, based on their experience, they raise many of the real operational concerns that they have here and there, but they start from the premise that they suspect an event in 90 days; that is the operating premise of this exercise, and I could write the exercise and make it 100 days, or 200 days, or ten years. A police officer could always do with more time, and of course we are talking about terrorism and you would like to have that time with the person detained. If you put it that way, it is an unassailable argument for completely dismantling fair trial protections.
Q18 Mr Winnick: Can I come to the crux of the matter, to a large extent at least, in this section of questions, the question basically whether the police should have any powers of detention without charges being made? Ms Peirce, as far as I recall, a few moments ago, said maximum seven days, am I not right?
Ms Peirce: That is a punishing amount of time for a suspect to be questioned, seven days.
Q19 Mr Winnick: As far as you are concerned, it should be simply seven days. Mr Metcalfe, in the evidence that JUSTICE has provided us with, on page two of your brief, you say, in effect, that 14 days is the maximum period you would be happy with. You differ, do you not, from what Ms Peirce has just told us; you are happy with 14 days?
Mr Metcalfe: No, we are not happy with 14 days.
Q20 Mr Winnick: But you are willing to live with 14 days?
Mr Metcalfe: In terms, we expressed a view that we thought 14 days was the maximum likely to be found compatible with the European Convention on Human Rights. That does not mean that we are happy with it.
Q21 Mr Winnick: What would you be happy with?
Mr Metcalfe: We believe that, seven days, the original limit set down in the 2000 Act was the correct one and we did not agree with the extension, made under the 2003 legislation, to 14 days.
Q22 Mr Winnick: Regardless of the atrocities which occurred on 7 July and what may or may not have happened a fortnight later, the organisation which you represent has not changed its views at all?
Mr Metcalfe: We have made it perfectly clear that we recognise the operational difficulties but we do not see that makes a difference to the legal framework which we have established.
Q23 Mr Winnick: So it is seven days; if you had your way, JUSTICE, it would be seven days?
Mr Metcalfe: It would be seven days, yes.
Q24 Mr Winnick: You indicated, nevertheless, as I have said, that you could live with 14 days, from your brief?
Mr Metcalfe: Yes.
Q25 Mr Winnick: Liberty's view?
Ms Chakrabarti: If you will forgive me, Mr Winnick, we are reluctant to enter into this approach.
Q26 Mr Winnick: I will try to put it differently. What we would like to know, as a Committee, is whether Liberty would be in favour of any form of detention without charges, apart from the original, what was it, two days?
Ms Chakrabarti: The requirement in law and in good constitutional policy is for someone to be charged promptly. Any extension of the pre-charge, and charge is a very important moment, and elsewhere you may ask us about lengthy periods of pre-trial detention in other countries, let us be clear about this, the right to know the charge against you promptly is a bare minimum, and a crucial bare minimum. If I am detained for a long time pending a complex trial where I am preparing my defence, the greater injustice is with being detained for a long time without even charge. From a counter-productivity point of view, this is essential, because the person who is detained, for many months or even, on occasion, into years, and then tried for a terrorist offence and acquitted is quite possibly celebrating at the court door, with a fantastic solicitor, like Mrs Peirce, standing by her side. The person who was detained for 90 days, or longer, pre-charge, and then sent home from the police station is not in such a celebratory mood, and the dangers to social policy and to operational policing and security work, I think, are desperately dangerous. I suggest that it is the job of parliamentarians to look at these issues and to look at the proportionality of the policy and to say that, before any extension in pre-charge detention is even entertained, all more proportionate, alternative policies should be explored. That, of course, is what you do not find in Mr Hayman's dossier, because that is not his job. For my sins, I used to be a Home Office civil servant; you would never have given advice in this unbalanced way.
Chairman: I must ask you to restrain your desire to give us the whole answer on every question, otherwise we will never make progress.
Q27 Mr Winnick: Mr Owen, do you take such a fundamental viewpoint as that which the others do?
Mr Owen: Can I answer your question in these two ways. Firstly, I agree with Gareth Peirce that I find it difficult to see how the average English judge would regard it as fair to admit evidence obtained after a person had been held for more than seven days in custody, or certainly longer than 14 days, even less likely, without any charge. Secondly, the most important legal restraint at the moment obviously is what the European Court of Human Rights has sanctioned. The position remains, quite recently in the Sinan Tannikulu case against Turkey, that ten days pre-charge detention was struck down as incompatible with the right to liberty in Article 5, and in Brogan four days six hours struck down as incompatible, therefore needing a derogation from Article 5. I think there are difficulties, real difficulties, and I am by no means sure about 14 days.
Q28 Mr Winnick: I was going to ask about the Convention on Human Rights, but, as far as you are concerned, Mr Owen, do we take it that your views are just the same as those of your three colleagues?
Mr Owen: Yes.
Q29 Mr Winnick: Seven days?
Mr Owen: I think more than seven days is unacceptable, yes.
Q30 Mr Winnick: Mr Owen, you say that you have considerable doubts about whether more than 14 days would not be a breach of the Convention on Human Rights?
Mr Owen: Yes. Of course, an important question - this leads on to another point about the involvement of the judges in the supervision ---
Q31 Mr Winnick: Indeed, you would hope that would be the position, would you not?
Mr Owen: It is not a question of whether I would hope it would be the position.
Q32 Mr Winnick: Taking the view that you do, presumably, like the other witnesses, you would be happy, if Parliament agreed to a period longer than 14 days, surely, given that viewpoint, you would wish that to be a breach of the European Convention on Human Rights, it would make sense, would it not?
Mr Owen: Yes. I think it would represent an abandonment of a core principle.
Q33 Mr Winnick: That answers my question. Presumably, to cut matters short, because there are many other questions to come from colleagues, the three of you would be happy that, if Parliament did agree, at the end of the day, to a period longer than 14 days, it would be a breach of the Convention on Human Rights?
Ms Peirce: Yes.
Mr Metcalfe: Yes.
Ms Chakrabarti: Yes, Mr Winnick.
Mr Owen: Yes.
Chairman: I am sorry, but we need to move on now to some of the more detailed aspects of the issue: Shahid Malik.
Q34 Mr Malik: This is a question to all the witnesses. You will be familiar with Lord Carlile, and I am going to quote him; he says that he is "satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of time limitations placed on the control authorities following arrest." Do you think he is wrong?
Ms Peirce: I am completely unaware of a single example. If he gave his examples, it would help.
Mr Metcalfe: Can I say that I am very disturbed by the statements that Lord Carlile made in this minute. He says the independent review of the terrorism legislation given access to closed information that is not made public. I am not in any way comforted by the fact that he has special access to information that other people do not have and then feels secure in making these statements about how happy he is about increasing the control of terrorism legislation. I think it is profoundly dangerous, in a democratic society, for measures which infringe on fundamental rights to be justified in this way. President Truman once said that secrecy and democratic government do not mix and I hope that the Committee will bear that in mind when they have regard to those kinds of statements. I have great respect for the role that Lord Carlile is appointed to carry out and I think that he does it with great diligence, but I am deeply concerned that we should be justifying public policy on such a basis.
Q35 Chairman: Is your point that he should not make such statements, even if he is convinced that they are true, or that we should dismiss them because we do not know the basis on which he has made them?
Mr Metcalfe: We are in no position to second-guess someone when we do not have access to the evidence ourselves and, much as I trust Lord Carlile to carry out a role as an independent reviewer of terrorism legislation, I do not trust him to govern for us, and essentially this is what you are asking someone to do when you make statements of that nature.
Q36 Mr Malik: Basically, you and Gareth are making the same point, that because you do not know the examples, because of the privy nature of it, you think, on those grounds, it is not warranted?
Mr Metcalfe: Yes. I cannot place any weight on that statement, unfortunately, much as I might like to.
Ms Chakrabarti: It may be that silence would be even better than succinctness, and Mr Denham will forgive me for my lengthy remarks on other questions.
Mr Owen: I think you are going to have to deal with Lord Carlile in private and find out from him exactly what that is based on, and perhaps you will need a special advocate to cross-examine him in front of you who is party to the same material. The difficulty I have with this is that he is postulating a scenario in which there are lawful grounds to arrest this person, or persons, for serious offences, but 14 days have gone by and there is no evidence available which passes the Threshold CPS Test for charging in relation to any offence at all. Really I question whether that is true, and when you question Lord Carlile, I am not suggesting he is obviously lying or acting in bad faith but it is a question really of testing the implication of what he is saying.
Mr Winnick: We will do our best.
Q37 Mr Malik: Your position basically is that you cannot see on what grounds this could be a legitimate comment to make?
Mr Owen: I just do not know. It is not fair perhaps, because I have not seen what he has seen, but I am saying that is the implication of what he is saying and it seems a fairly extraordinary state of affairs.
Mr Malik: That is fair comment.
Q38 Chairman: This is useful, because this is the first session, because it does help us set up questions for later evidence sessions.
Ms Chakrabarti: Mr Owen tempts me back in, just briefly, because he reminds me of a really important point. Let us look at anti-terror legislation in the round, look at the full armoury at the disposal of the police and security services and look also at minor offences, precursor offences, acts preparatory, being a member of a prescribed organisation, etc., bicycle-taking, whatever it happens to be, there is a lot of criminal law on the statute book and you can take preventative measures, in a sense, by using lower-level offences.
Mr Owen: You might want to ask him whether there was intercept evidence available which they could not use, and that then leads to the question, was that sensible.
Q39 Mr Malik: I am going to come on to that shortly. To move on to alternatives to increased detention, the first question is for JUSTICE and then everyone can come in. You make three suggestions, in terms of alternatives to increased detention: developing the Threshold Test for prosecutors, bringing into force Part 3 of the Regulation of Investigatory Powers Act, and allowing intercept evidence. Essentially, these are procedural. Do you think they are all that is needed?
Mr Metcalfe: I would be surprised, if you lifted the current ban on intercept evidence and ensured that there was greater understanding of the Threshold Test, whether you would not diminish significantly some of the evidential or operational challenges that the police face currently, in relation to terrorism investigations. To take the last point first, intercept evidence is the most important part of that argument. It seems, from reading Andy Hayman's letter, that a great deal of the reason, or suspicion, that the police have that individuals are involved in terrorist activity comes from evidence that is obtained through intercept and surveillance. Were evidence of this kind made available, admissible in court, then one would imagine that the police would have much less difficulty. To talk about the other two points, the Regulation of Investigatory Powers Act of 2000, Part 3 of that legislation contains provisions whereby, if someone has an encryption key and refuses to hand it over at the request of an authorised person, they will be subject to criminal sanctions. Basically that allows for, following trial, that a person can be made subject to imprisonment. It seems to us that this was a fairly straightforward way of cutting through the computer evidence problems which were indicated in the Metropolitan Police's letter, because they indicated that they had difficulties with obtaining encryption keys. If the person whose computer it is refuses to provide you with an encryption code then they have committed a criminal offence under Part 3 of the Act. The difficulty is, of course, that Part 3 has not been brought into force. These are powers which the Association of Chief Police Officers asked to be brought into force, in their letter of 22 July; to date, as far as we are aware, the Home Office has not done so, the Government has not done so. Turning, just very quickly, to the Threshold Test, I am not really sure that a change is needed. The words we used were 'greater clarification', because it seems to us, looking at the difficulties that are said to exist, the police do not see how they can have enough evidence to charge a person, it is very difficult to reconcile that with the text of the Threshold Test, and this is set out in a public document, the Code for Crown Prosecutors. What it says is that Crown Prosecutors have to decide "whether there is at least a reasonable suspicion that the suspect has committed an offence..." It applies to "cases in which it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the Full Code Test is not yet available." In essence, what the Threshold Test is saying is, if you have a complicated, ongoing criminal investigation and you do not have all the evidence back, it is perfectly appropriate to apply the Threshold Test, where it is in the public interest, to ensure that a person is brought up on charges. As I said, this is a publicly-available document. It has not been made clear to us, in any of the debate since the July bombings, why the Threshold Test is somehow inadequate. I do not know whether this Committee is planning to take evidence from the Crown Prosecution Service but I would be extremely interested in their answer, as to their views why the Threshold Test is inadequate.
Q40 Mr Malik: To the other three witnesses. I know that already some of you, both today and previously in the public domain, have made your feelings clear on intercept evidence. Do you agree with JUSTICE's suggestions and are there any potential problems with these steps? The final question was going to be around intercept evidence and whether you would have any objection to it being brought forward as evidence in court? Do you agree with JUSTICE's suggestions, are there any potential problems with the steps that they propose?
Mr Owen: I agree with it. I cannot understand; there is certainly no human rights obstacle at all to admitting the evidence. Clearly, the objection has come from, I understand, solely the security services and GCHQ, who are concerned about releasing information. I think if you talk to any law enforcement agency, anywhere in the world, and tell them our approach to intercept evidence, they regard it as absurd. The five godfathers of New York crime are all in jail at the moment, thanks to intercept evidence. The Senate review of the operation of the Patriot Act has identified intercept evidence as essential in getting convictions. I do not understand it. The idea that the criminal courts at the moment do not have ways of detecting disclosure of technical aspects of the gathering and collecting of evidence in circumstances where it is not necessary to the fairness of the trial to reveal those technical issues, that already exists within the public interest immunity process, which applies in all criminal trials at the moment.
Ms Chakrabarti: This has been Liberty policy for some years. It is sometimes so surprising that it makes the front page of the newspapers. We do give up some of our privacy when it is necessary and proportionate and you cannot actually think of anything more proportionate than having telephone taps to prevent terrorist outrages. We would prefer if judges issued the warrants, that would be a helpful safeguard, but if you are listening in, that is the privacy interference, why not use it in court, sometimes it might even exculpate a defender. This is a no-brainer from a human rights perspective. I understand that there are operational concerns, but really they need to be addressed, because, we just have to look at the hard reality of us being so alone in the world, the United States do it, so many other people do it, we admit their intercept in our courts, and there are issues about reciprocity. I am disappointed that this debate has not moved on further more quickly.
Q41 Mr Malik: You are at one with JUSTICE's suggestions, the three which I outlined?
Ms Chakrabarti: I think so.
Ms Peirce: If I were defending someone who was guilty, I would regard intercept as a big problem for the defence. If I were representing someone who was innocent, I would be aghast, as I am often, that we cannot have that evidence. It is obsessive secrecy on the part of the agencies which have the intercept capability, and it is madness really, frankly, for this country to go on as the one country which does not use it.
Q42 Mr Spring: Just in passing, I must say, for the record, I think it is very important that you expressed yourselves on that point so robustly, and I think there is a considerable amount of sympathy for that, in all sorts of quarters, in the House of Commons. I want to move on to the question of what happens post-charge and refer particularly to the submission from Liberty in this regard. I note that you talked about, in this whole area of re-interviewing and recharging, that you would suggest an amendment, which I thought was interesting, to allow for re-interviewing, and I quote, "in cases in which the Secretary of State considers it to be in the interests of national security or if the person is arrested in connection with terrorism." It was framed very widely. Specifically, Ms Chakrabarti, you suggest, in allowing the questioning post-charge, that there should be a widening of this Code of the Police and Criminal Evidence Act. Apart from the possibility of abuse, which obviously we have to be sensitive about, why actually do you think this has not been adopted?
Ms Chakrabarti: It is a very good point. Maybe the practitioners will have a better insight into that. There are obvious dangers with oppressive and continual questioning, I can understand that, but just to say there are different degrees of violation of this, that there are more proportionate approaches to these difficulties that we all face, of our locking up people for extended periods without even charge. When you look at the role of judicial safeguards, there are certain concerns that I think judicial safeguards are capable of re-meeting, so if one were to go for a lot of additional questioning post-charge and one was concerned about oppression, that is the kind of moment where I think potentially a judge could really help. Where a judge cannot help to safeguard a process is where there is no process at all because there is not even a charge. Maybe, and this would be interesting to hear from the police and the CPS again, they feel that once someone has been charged there is a disinclination to speak, no real incentive to speak, because the person has already been charged. I would be very interested in their view. All of this would be far more proportionate than the alternative put by Mr Hayman.
Q43 Mr Spring: Thank you for that. I wonder if the others might wish to comment on that. You make the point about protection and there may be some judicial oversight of this, but of course the opportunity arises for new evidence to be produced, which obviously could be hugely important and beneficial to a resolution of this particular problem?
Mr Owen: From a Human Rights Convention point of view, there is a fundamental right not to incriminate yourself. It is an important principle, once you have been charged with an offence, that you are not then compelled, on pain of adverse inferences, and so on, being drawn against you from then re-interviewing you, having been charged; that is really not the difficulty that I think we are facing here. At the moment, if I am arrested for burglary and then, while I am on remand awaiting trial for burglary, the police get evidence that I may have committed a murder, they can arrest me and interview me for the different offence. What we are looking at, I think, is a scenario in which the police have initially arrested and charged with one level of terrorist offence; in the course of the investigation they then get other evidence which enables them to believe that a more serious terrorist offence can be charged. The question is, in those circumstances, where it is a graver offence arising out of, if you like, the same charge, what are the human rights obstacles to interviewing again post-charge. The answer is, subject to not using evidence and breaching the privilege against self-incrimination, not using compelled questioning, if you like, and using it against a suspect, there is nothing, in principle, to prevent the holding of an interview, the presenting of the fresh evidence to the suspect and questioning and inviting the suspect to give an answer to it. Having been advised of their right not to say anything, if then they give answers, that evidence can be given at the trial. There is not a difficulty, in my view, certainly there is no fundamental primary legislation or human rights principle which prevents an amendment to the Code in a way that Liberty and JUSTICE have suggested.
Mr Metcalfe: I am in complete agreement with what Shami and Tim have said. We believe that post-charge questioning is already accommodated under PACE, but for the avoidance of doubt, in terrorism cases, we would not have any objection to a suitable amendment to make this clear.
Ms Peirce: We do not have an inquisitorial system and our adversarial system is not really matched to having continuing inquisition after charge. However, certainly there are cases, which we are all familiar with, where a person has been charged, for instance, with conspiracy to cause explosions, then a lock-up has been found with explosives in it and that person has been re-arrested from prison, taken to a police station and interviewed about a different substantive offence; so it is catered for, in many ways, already.
Q44 Chairman: If I could just interject for a moment. Earlier, I think all of you were saying that there is a certain point, seven days, perhaps 14 days, and if you have been questioned for all that period of time, you begin to get to a situation where judges then would be wary about taking evidence into account. If you have post-charge questioning, it does seem to me that, from the point of view of the person being questioned, though technically you may have moved from one charge to another, it must feel awfully like you have been questioned for 14 days or more in a row. Do not the same human rights issues arise as for somebody who has been under continual questioning for a long period of time, albeit in the technical legal sense the charge in question has been changed, or am I misunderstanding it?
Mr Owen: I was responding, and I agree with Gareth Peirce's view, that there is a difference between being held continuously for seven to 14 days in police custody without any charge and then the increasing pressure that brings on any human being, and then therefore doubts about the voluntariness of any admissions which then are given. There is a difference, it seems to me, between that scenario and another scenario, whereby you have been charged, yes, you have been remanded in custody, but you are living a regime, I agree, probably a horrible regime, of detention in conditions of high security, in Belmarsh Prison. If you are asking me whether an interview, three months, six months on, on the basis of new evidence which has come to light, would be fundamentally objectionable purely because it would be oppressive, in and of itself, I do not think it would be, necessarily, no.
Q45 Mr Spring: What the Committee has been looking at obviously is what happens in other jurisdictions, particularly countries that have suffered problems with terrorism, notably France and Spain. It is my understanding that charges are laid rather more rapidly, if one can generalise, in these countries but that the period of detention, when further questioning and interviewing take place, is a period of time considerably longer, so there is a kind of difference in balance between, again, this country and perhaps others. Do you think that the balance which exists in, say, countries like France and Spain is a more appropriate one, or not?
Ms Chakrabarti: I think one has to be careful about this extrapolation of completely different legal systems. I personally would not advocate, for all sorts of reasons, moving wholesale to an inquisitorial system of justice. I think actually that English adversarial criminal justice is the paradigm of due process and it has been adopted all over the world and forms the framework of the Convention of Human Rights. That said, you must know the charge against you. I would say that nobody wants a situation where people are detained for years and years pre-trial; that can be very oppressive and very harsh for someone who ultimately is acquitted. The test there is reasonableness and you must expedite prosecution and preparation for trial as quickly as possible, where the judge can really chivvy things along, but this crucial period of being between arrest and charge must be kept to as short a period as possible. The charge is the bare minimum of the case against you, the reason why.
Q46 Mr Spring: Of course, you make that point. I think what we are talking about is post-charge, post-charge detention, which is not quite the same thing, to say the least. I think it is on that we want to have some sort of clarification. I take your point totally that legal systems are different and so are traditions, but is there some advantage, to your knowledge, of what happens in these jurisdictions from which we can draw? That is really the essence of the question.
Mr Owen: I think it is a myth, actually, I really do, and it is not being parochial. It is not that we do it better, but the idea that other countries, before the European Court of Human Rights, get away with, if you like, some much more draconian system of post-charge detention I do think is a myth. As I say, I know of cases myself, that I have been involved in, where suspects have been on remand for up to two years before the start of their trial. The European Court of Human Rights does not set down rigid time limits for reasonable times.
Ms Chakrabarti: Everyone is bound by the Convention but what it is important to say to the Committee is that the Convention, rightly, is more forgiving about lengthy detention between charge and trial than it is about lengthy detention without charge, or pre-charge.
Mr Metcalfe: It has never been suggested, in any of the debates, in relation to terrorism detention powers in this country, that somehow post-charge detention in European countries has made those countries safer. Post-charge detention exists in this country if you are refused bail, if you are seen to be a risk to public safety and the court refuses bail on that ground, then, yes, you will be held on remand until your trial. I agree with Shami and Tim again that, the extended periods of custody that you have in European jurisdictions, there is nothing to be emulated and it has not been suggested anywhere in this debate that somehow post-charge detention would make the country safer, in any event.
Q47 Mr Spring: If I can ask just one final question, and I think I know what the answer is going to be, which is the alternatives to custody, for example, control orders, tagging, specific surveillance, I wonder if you would make some judgments about how efficacious that might be and how protective of the individual that might be, and what difference there might be?
Ms Chakrabarti: Control orders are a nonsense; the people who wear plastic tags in their homes, if they are so dangerous they should not be there, they should be charged and they should be detained pending trial. They are the cruelty without the benefits of security which come with incarceration. Alternatives, I think one of the things we explored is bail with conditions. The trouble with control orders is that potentially they are indefinite punishment without trial. Again, if one were really interested in more proportionate alternatives, Mr Hayman and his colleagues, or perhaps people better qualified to advise on criminal policy, might suggest bail with conditions with a hard-edged end date for trial. With regard to these two parallel systems that do not make sense, indefinite punishment without trial but is not incarceration, and therefore is not very safe, on the one hand, and then very long pre-charge periods, on the other, which amount effectively to internment, so says Lord Lloyd.
Q48 Mr Benyon: Just on that, in paragraph 14 of your submission, you talk about, this is Section 47 of the Police and Criminal Evidence Act: "Conditions could include curfew, reporting, or the surrender of a passport." Is that what you were just referring to?
Ms Chakrabarti: I am talking about that, as a bail condition, has an end point; bail is part of this criminal justice process that I have described, that begins at the point of charge.
Q49 Mr Benyon: You are talking about potentially the most dangerous people in this country?
Ms Chakrabarti: If they are so dangerous they will not be on bail, quite rightly they will be remanded in custody, which is how things work.
Mr Metcalfe: With respect, you asked us the question, what do we think of control orders as an alternative to detention. We are not saying that people who have been refused bail have been refused bail wrongly necessarily, we are simply making the point that control orders do not really show much of an alternative, in fact, they are worse, because they lack the vindication. With a control order, you are held more or less from year to year without ever having a criminal trial to clear your name, you are simply held on suspicion of the Home Secretary.
Mr Benyon: I could take it much further but I will leave it there.
Chairman: I have a couple of points about what we were told in France that I was going to raise too, but I will not, we will move on.
Q50 Mrs Dean: If we could look at the possibility of greater involvement of the judiciary, the existing procedures require judicial oversight of the more limited extensions presently available. How do you think this oversight works; is it effective or is it just a rubber-stamp of police requests?
Mr Owen: I think the relevance of this is the idea that, again, you have not got enough evidence to charge and so you are going to prolong the pre-charge detention and you are going to make it Convention-acceptable by involving a judge who will monitor the process, and that will make it compatible. The difficulty, however, it seems to me, is this, and we are back, I suspect, to the problem of intercept evidence, because either there is sufficient material, I will use the word 'material' ---
Q51 Chairman: Mr Owen, if I can help, can we focus on existing practice, because at the moment judges are approving this. I think the purpose of this question is, at the moment, in your experience, is this a real process, where judges really scrutinise, or is it actually a rubber-stamping of requests?
Mr Owen: I shall have to be careful about my language. From the point of view of the defendant, or a defence barrister, attempting realistically to persuade a judge, at the point where the CPS hold all the cards, they have all the material, they can give you bits and pieces in various forms, they do not have to serve all their evidence for up to six months, effectively it is a rubber-stamp. We do not have, and this is not a criticism, a Juge d'Instruction model, where you have a neutral judge whose role is to investigate evidence for and against the accused. We have a system, a separation of powers, the police and the CPS collect the evidence, they present it to a judge, who at that stage is simply saying, "Well, is it enough to justify effectively a charge and then detention pending trial?" Inevitably, they tend to say "It's enough; we'll tick the box."
Ms Chakrabarti: This is no slur at all on the judiciary, of whom obviously I am a great fan. Let me put it this way, and this is a bold statement indeed. Up until the point of charge there is very little that a judge, or anyone, can do to make a process fair; it becomes fair in our adversarial system at the point at which the bare minimum is put to the defendant and they can start to argue their own side of things, and therefore the judge can start seeing the alternative point of view. I would say this, forget the judges, put the Director of Liberty in charge of this process and she will become a rubber-stamp, because she will hear one very compelling side of the argument, which is, "There is secret intelligence. I know something you don't know. This person is a very dangerous suspect," and what else has she got to go on, and there is a potential terrorist atrocity. That is the problem. What makes the process fair in our system is that adversarial aspect, which cannot even begin until someone has been charged.
Mr Metcalfe: I agree completely with what has been said before.
Ms Peirce: I agree.
Q52 Mrs Dean: Can I turn to you, Mr Metcalfe. JUSTICE say that Lord Carlile's proposals for strengthening judicial oversight would not work because a judge does not have the training or the powers of an examining magistrate in the civil law system and because such training and powers would be incompatible with the common law system. Is it not reasonable to try to increase judicial oversight of detention?
Mr Metcalfe: I agree that more judicial oversight is always a good thing but, as previous discussion has made clear, at the pre-charge level there is actually very little for judges to scrutinise. The alternative which was suggested by Lord Carlile, first of all he proposes the introduction of a small group of security-cleared, designated, senior circuit judges, acting as examining judges. The term he uses, 'examining judges', refers of course to the continental system that you find in Spain and France, for instance, and yet, when you look at those systems in detail, the background of a judge in those jurisdictions is not typically the background of a judge that you would find, that is to say, a practitioner, in this country, someone with long experience of courtroom law. The background of a judge often will be either as a prosecutor or actually there is a separate judicial trek, if you like, in the legal profession, there is almost a separate profession of judge in the administrative court systems. That is a completely different style of training, and the systems which have that type of judge are used to having their police forces controlled at the investigative stage by an examining judge. I am not sure what the police forces in this country would think about taking directions from an examining magistrate, in the way that they do in France and Spain. For all the reasons that we set out in our written evidence, we are extremely uncomfortable that the common law adversarial system that has served us so well for so many centuries is being tinkered with because of a level of police dissatisfaction with the pre-charge process. A second proposal that Lord Carlile made, a feature of the system, if you like, that we are very concerned about, is his suggestion that you could use special advocates. You will be aware, of course, of the concern over the use of special advocates in relation to the Special Immigration Appeals Commission and indefinite detention under the 2001 Terrorism Act. I have to say that I find the idea of using special advocates at the pre-charge stage also very disturbing. One of the essential guarantees that you have under the European Convention on Human Rights is that someone who is subject to detention has the right of access to a court, and the right of access to a court means being able to know all the evidence that is tendered against you. With the system of special advocates, by contrast, you will be in a position whereby you are detained, someone is appointed to represent you, that person is not able to discuss the evidence against you with you, and a court proceeding takes place in your absence. That is to say, you may never know the basis of the evidence against you and you will be in no real position to be able to challenge that.
Q53 Mrs Dean: What about the Canadian system of investigation; does that not provide a model from another common law system?
Mr Metcalfe: I discussed that with Mr Owen earlier. It is actually quite a different system and it is not at all the examining magistrate system that we have been discussing in relation to, say, France and Spain. In Canada, you have something which is modelled much more on the provisions we have in the Criminal Justice Act 1987, which establishes powers for the Serious Fraud Office to ask people a bunch of questions; in Canada the system is under the Anti-Terrorism Act 2001 and that system is controlled by a judge. Really it is an evidence-gathering mechanism and the person themselves is granted immunity; nothing that they say in relation to any of the questions that they are asked can be used against them in relation to later criminal proceedings. What the investigative judge system under the Anti-Terrorism Act in Canada is used for is to gather evidence against other people, so you call someone in, you question them and you build a case against someone else. The system in Canada allows a police officer to refer a case to a judge, the judge takes hold of the file and calls in witnesses and then builds a case on that basis. It is a tribute to what a great device this is in the Canadian system, the Attorney General in Canada is required to report annually to Parliament to tell them how the system is going, according to the most recent report, in 2004 the sum total of requests made to courts under this power between 2003 and 2004 was zero. In fact, there has been only one case that I am aware of and that was in relation to the Air India bombing, the criminal proceedings, which related to a bombing in 1990. So not exactly a great shining way forward, not necessarily to be ruled out completely but I cannot see a great deal of enthusiasm for it.
Mr Owen: Just following on from that, I think Lord Carlile bases his suggestion on what was in the Newton Committee's Report. I do think that there is a misunderstanding about how the Canadian system operates, and I agree with what Eric Metcalfe has just said. It seems to be believed that under the Canadian system you can have a special disclosure judge, if you like, who sits in camera with the prosecution, no defence in, and the prosecutor and the judge then prepare a sanitised version of otherwise sensitive evidence, and that this evidence emerges to be presented to the defence and before the jury in a way which the defence can never go behind, therefore they are not able to challenge the sanitised version. That is just not true; that is not how the Canadian systems work, and Eric Metcalfe's analysis is right. The Canadians would never seek to have a situation where evidence is introduced in a criminal trial without the ability to challenge it. Of course there are ways, and I have referred to it in terms of the public interest immunity certificate, and so on, and you do not have to disclose everything about how you are gathering your evidence, unless it is regarded as essential for a fair trial, and in many cases it will not be. I do think that, in your further investigation, you may want to get evidence from a Canadian lawyer or somebody with real experience of it, but my understanding is that this cannot really provide us with much assistance.
Chairman: Thank you very much indeed.
Q54 Mr Benyon: I want to look now at some of the practical difficulties, in terms of the timescale concerned, and I suspect the majority will be towards you, Gareth, but others may wish to chip in. I read your article in the Guardian and one thing that comes straight out of it is the constraints at Paddington Green. I think we had all rather hoped, or assumed, that the large amount of money which had been spent there had made at least a practical building, if not a particularly comfortable one. If we can work through various of the points which you have raised and which Lord Carlile has raised and his concerns about this as well and start with the question of interpreters, the police argue that the need to find interpreters causes delays. In your experience, what proportion of cases involves the use of interpreters in questioning suspects, and are the languages that they are required to interpret on rare, or are they readily accessible?
Ms Peirce: The category of case that is being considered in this discussion involves particular suspects. Although July 7, which triggered this debate, was British young men and many people detained at the present time are British young men, on the whole there have been many arrests and detentions in the past five years in which the language has been universally Arabic. No shortage of Arabic interpreters. I have never heard of a shortage of Arabic interpreters, there are always sufficient Arabic interpreters at the police station.
Q55 Mr Benyon: Would you suspect that there has been a delay in questioning a suspect or a delay in you having access to a client on the basis that no-one could find an interpreter?
Ms Peirce: I am sure not, because it is mandatory, when a person is brought in, that their name will be taken, basic details, and the custody record will be gone through, that they will be told their rights to finger-printing or DNA samples; they have to have an interpreter there. I have no experience of that difficulty at all.
Q56 Mr Benyon: When cases come to court, there is no difficulty in putting forward evidence on the basis that there was not a proper interpreter at the time?
Mr Owen: I have had trouble with that, and it slows the trial down, having an interpreter, but that is all.
Q57 Mr Benyon: This is really to everybody. The police claim that greater resources will not solve their problems, and the quote that we have been given is: "the process of staged disclosure to the defence, consultation with clients to take instructions, interview and assessment is essentially sequential." How far do you agree with the police that greater resources will not solve their problems in this respect?
Ms Chakrabarti: That is an assertion which makes no sense to me whatsoever. A lot of what they say, "We have difficulty getting material from this country or that country, we have difficulty getting forensics back," if you were to have, for example, a number of atrocities in different parts of the country you would have to - all of those points are put and surely they beg for more resources. Also, of course, they predicate the whole argument on the basis that the investigatory clock begins ticking almost only at the moment of arrest. Clearly, that is not true and should not be true, and the investigation can only be improved, it would seem to me, by more and better qualified resources. I am afraid, as so often in this document, there are sweeping assertions that are not borne out, and that, I am afraid, "resources won't do the trick" seems to be something that is added possibly when Liberty, or someone else, has popped up on the TV and said "Spend the ID card budget on resources."
Ms Peirce: The Anti-Terrorist Squad has its own methodology and it is one at which one expresses extreme frustration, for 48 or 96 hours, saying, "Come on, come on, if you're going to interview, let us know what you're going to interview about, let's get on with it, let's have some interviews; the person I'm representing wants to know why he's been arrested." The police say, "We are only going to go at our own pace, and we have the way we approach it and we can't go any differently." Individual interviewing officers say, "It may be crazy but this is the way we're doing it." It may be 48 hours before a person is even being asked where he was born, where his parents are living, all of that; it is frustration, from the point of view of the detainee, in terms of how it progresses.
Q58 Mr Benyon: They might point that frustration towards having to put a trial before a very clever QC who may expose them if they do not follow the procedures absolutely to the letter? I am being devil's advocate here.
Ms Peirce: I think, unlike the job of a QC, the job of a solicitor in a police station is to protect the interests of the person you are representing, but also to have some sufficient flow of information that the person knows why he is there, it is a fundamental right. You could be there on suspicion of involvement in, the term is, 'commission, instigation, preparation of acts of terrorism', that is the catch-all phrase in the legislation that is used to arrest and detain people, and you may know nothing more than that phrase for the whole period of time you are in the police station. If there is a grudging process of disclosure, over seven days or 14 days, you may still not know at the end.
Q59 Mr Benyon: They say there is another problem, which they also allude to, in the case study that is in your paper, that the delay is caused by one firm of solicitors representing most of their suspects. What would you say about that?
Ms Peirce: I am not sure if that is apocryphal. I am aware of one case where one firm acted, I think, for the majority, not all, of the detainees. I know of this indirectly, not directly. Certainly, I would say, the only professional way in which you could represent people would be if you had the manpower, or womanpower, to do it. Certainly, speaking from my experience, in our firm, if we were asked to act for more than one person, we would only do so, and could only do so, if we were able to act responsibly for that person. I am not at all sure. I find this a very dubious proposition. It would be appropriate for the police, if a solicitor was representing more than one person and could not deal with it, to say, "I'm very sorry but we're going to have to explain to the person you represent that they can't be interviewed properly because you can't do it." If it is the example I am thinking of, I am sure that firm did have a very large number of people available. I cannot say more than that, but I am very dubious about the legitimacy of that example given by the police.
Q60 Chairman: Just out of interest, can I ask how many firms of solicitors, or perhaps how many individual solicitors, would you say have some specialism in this area of law?
Ms Peirce: I think, probably more than I would know, in the sense, there is a duty solicitor scheme and I would have thought at least half, and probably more, I am only guessing, of people detained under any terrorism legislation would ask for the duty solicitor, would not know a solicitor. However, rather like the case of the Irish community, as it becomes more the position that it is a suspect community, in a sense, so the Muslim community in this country is aware that it is a suspect community and people who have no reason to worry about the law begin to think they ought to have a solicitor's number, and their families do. You get to a position where if someone is arrested people in that community will be ringing each other to know if there is someone who has some relevant experience. I would have thought there is a reasonable number of firms which are within that range of familiarity, in the most general terms, but they are not necessarily firms that will be called in the police station. If a person asks for a duty solicitor and there is a solicitor in place, even if the family have asked subsequently for a named solicitor, that solicitor will already be embedded, so to speak, in the police station, the duty solicitor, and will continue with the interviews.
Q61 Gwyn Prosser: Ms Chakrabarti, in cases where a detainee has chosen one specific solicitor and that person is not always available, you have made a tentative suggestion that there might be scope for stopping the clock. How practical would that be and how could we avoid even that process being described as an abuse?
Ms Chakrabarti: Actually, I have been rather heartened by Mrs Peirce's practical insight. Remember, of course, that I do not spend time in Paddington Green, not yet, until new speech offences put me there, but at the moment I am not in Paddington Green. If I am detained in Paddington Green, I am probably going to 'phone Ms Peirce or Ms Christian. Ms Peirce was saying that solicitors have professional obligations and if they cannot meet them, and the fact that they are going to act in this interesting case means it is almost going to be floundering in custody, unrepresented, then they should not represent them. You see already, just through professional ethics, a much more proportionate response to the idea that you have to lock people up for longer periods because everybody wants to be represented by whoever it happens to be. In my case, probably it would be Ms Peirce. I do not even wholeheartedly support this suggestion. We mentioned this clock-stopping scenario just to highlight the fact that we approach this in good faith and the police dossier does not even explore any more proportionate alternative to the problems that they raise within this extended detention. I think there would be real difficulties with scenarios where the clock stopped because you insisted on Ms Peirce, and it would require a great deal of safeguard, but it would certainly be more proportionate than what ended up being the police proposal. I think Ms Peirce gave the best answer. If a firm cannot provide the representation, if an individual celebrity solicitor cannot do all the work, they have professional obligations to say so.
Ms Peirce: There are occasions when there is more than one person in a police station asking if a particular firm can represent them, and they or their families think that is the guarantee that they will be represented correctly. If you cannot, sometimes you will talk to that person and say, "I cannot. There are three solicitors, we are able to go to the police station, we cannot represent a fourth person," over however many days it can be, "we cannot do it; but I would be very happy to give you the names of two or three firms which I think have relevant experience." I do that, I do that often, and I do it not just in London but people could ring from a police station in Liverpool or Manchester and I would say, "This is who I suggest you might have." I do not accept this police example which is given.
Q62 Gwyn Prosser: Ms Peirce, you have told us this afternoon that very often there is no interview or proper contact for the first 48 hours, and then when the interview starts it is very perfunctory, it is "What's your name; where do you come from?" etc. You have given us that, in anecdotal terms, of course. How precise can you be? What proportion of cases that you see, for instance, in Paddington Green Police Station, follows that pattern?
Ms Peirce: Over 25 years, or whatever, I would say 90% of the interviews have followed that particular pattern. If it is of assistance to the Committee, I will try, within my office, to go back and take perhaps ten sample cases and try to quantify it more particularly; but that is a pattern, the police will tell you they have that methodology, I am sure.
Q63 Chairman: That would be enormously helpful, if you could do that, and could you expand a little in your search, I think you have just touched on the same point, that this appears to be part of the deliberate approach of the counter-terrorist section of the police?
Ms Peirce: Indeed; yes.
Q64 Chairman: Have you explored with them at any time why they adopt this approach, which now, in other cases, they are citing as evidence for needing more detention?
Ms Peirce: Although part of the rationale is, if you have ten people in custody, it is rare that it is that number, that perhaps if there is a suspicion that they want to progress in unison through the interviews to compare answers, but I do not think it is that. I do not know, is the answer. They have not ever given me an answer that is satisfactory. You could go 100% quicker with all of the basic questions than they do.
Q65 Chairman: Over the time that you have been practising, the period of detention without charge has been extended. Is it your sense that this fallow period, before anything is done, has grown as the maximum period of extension has been increased, or has it always been there, even when the ability to detain without charge was much shorter?
Ms Peirce: It has always been there. May I give you just one comment on the ricin case, since Mr Hayman has referred to it. I will try to do an exact analysis of all the people detained within that inquiry, but that was a seven-day period still, it had not gone to 14 days, and, for those individuals who were represented, who were not always arrested at the same time, over a certain period, it was less than seven days that was used before charging. This is why I find it not convincing to say ricin is an example where you need 28 or 90 days; they did not use even the seven days. Two people charged with that case, both of whom were acquitted, were never interviewed in relation to the ricin conspiracy; they were charged with it, they were already in prison charged with a different offence, and they were never interviewed, they were simply charged with ricin, never interviewed. This was a point which was made to the judges, made to the jury; absolutely extraordinary that was the case.
Q66 Mr Winnick: That was covered in your article, was it not, Ms Peirce, ricin?
Ms Peirce: Not quite. I was referring to the claim that the case was lost basically because the main suspect was bailed. However, that suspect was bailed after a day and a half in the police station and it was not the first time he had been arrested and bailed within the same time period. It was no justification for extended detention.
Q67 Gwyn Prosser: On the same theme, of the use of time at Paddington Green Police Station, you have made the assertion that up to 90% of the time a person is in custody is not used in any sort of productive interviewing, so, in a 14-day detention, less than a day and a half perhaps actually is interviewing. Can you give us evidence for that assertion, when you write to us about the other matters?
Ms Peirce: Yes. I think what might be of use to you is if I give you a sample custody record, with the name taken out, so that you can see for yourselves the periods of time.
Gwyn Prosser: That will be very helpful. Thank you very much.
Q68 Chairman: That will be very, very helpful indeed; thank you. Just a few last questions. The problem with only two interview rooms at Paddington Green.
Ms Peirce: They seemed to have another one, the last time I went.
Chairman: There are now three.
Mr Winnick: You were going to give evidence.
Q69 Chairman: Do you have any sense - and this may be not an easy question, of course - of how many need to be available at least to cover 90% of the situations which arise, so that the interview rooms themselves would not be a delay, with this picture of the Edgware Road being full of lawyers drinking coffee which you paint in your submission?
Ms Peirce: I do not know. I think there are occasions when there are a lot of detainees, but even if there are, say, five at a time it is not a good place, for a range of reasons. They have used a room where a solicitor could have a conference with their client, apart from interview, for an interrogation room, so to speak, with a video, so it is robbing Peter to pay Paul. I think the police would tell you, who work there, that they find it a very bad working environment. They do not like being there for seven or 14 days. Those who are interviewing, it is not good; the interpreters are in poor conditions. If it were possible, in your inquiry, to go to Paddington Green and go into one of the cells and just see; there is no natural light, no proper heating, no proper ventilation, and it is a bad environment for seven days.
Q70 Chairman: Can I ask each of the witnesses to concentrate, if you could, just on this specific point of practical issues that have arisen in the course of questions; are there any others that you would like to stress to the Committee that we have not touched on already this afternoon, or have we covered the main, practical, organisational questions that have arisen?
Mr Owen: I think so, yes. I have got nothing to add.
Ms Peirce: No; thank you very much.
Mr Metcalfe: No.
Ms Chakrabarti: No.
Q71 Chairman: One final question, just to put to you a point that Lord Carlile has made. He argued, in fact, actually in support of your position, he said that delays in interviewing suspects are not a justification for extending pre-charge detention, because he said that most suspects will exercise their right to silence. Is that a true observation, in your experience? I do not think he defined what 'most' was. Do a significant number of suspects exercise the right to silence, or is that more unusual?
Ms Peirce: Probably a significant number are advised to, in part because you do not know what it is the person is there for, and therefore you are struggling. You say, "I don't think you should launch into answering questions," particularly if you have concerns that the person you are representing is not necessarily very articulate, may not be completely understanding of what is going on, or may be very frightened. You say, "Please, let's just wait until we find out why you've been arrested," which could be days along the line, "and then we can sensibly say is there something you should be answering." The wastage of time, in fact, before you know what you are there for, probably is a factor in prolonging "no comment" situations. The sooner you knew, the sooner you and your lawyer could decide whether it would be appropriate for you to answer, but then the longer the time goes on the more exhausted the detainee gets and is less able to answer questions to do justice to themselves.
Chairman: Thank you. That is very helpful.
Q72 Mr Winnick: To pick up just one comment that you made, Ms Peirce. You referred a few moments ago to a "suspect community," referring obviously to the Muslim community. I am not suggesting you were making implications against the police, but would it not be the case that when the IRA were committing their atrocities on the mainland it would have been rather foolish, to say the least, for the police to be looking into the Muslim community for the culprit? If that were the case, as obviously it would be, because they knew who were responsible, as an organisation, surely now, since ceasefire by the IRA and bearing in mind the suicides attacks of July 7, does it not make sense for the police to be looking for the obvious people within the Muslim community, however unrepresentative those people are, as we know they are, of the vast majority of Muslims living in Britain, who are no less lawful and law-abiding than ourselves?
Ms Peirce: My comment was not directed to the police, it was in answer to a question as to whether certain firms of solicitors' names were circulated.
Q73 Mr Winnick: I understand that, but then you used that term and I am just trying to get an explanation from you?
Ms Peirce: I have to say that my experience is identical, in terms of the innocent, wider community and its apprehensions. What was the Irish community with apprehensions now has become the Muslim community in this country and people have a real fear that they could be arrested when they have done nothing wrong.
Q74 Mr Winnick: I understand that and that the Irish community, again, the overwhelming majority, like the Muslim community, perfectly law-abiding, had nothing to do with the mass murderers, and it is important, as you say, to bear in mind, which both you and I agree on. Inevitably though when you are looking at suicide bombings and those who want to commit such further atrocities then the police have no alternative but to look within that community for those who are carrying out the attacks which occur?
Ms Peirce: I think, just my own comment, having represented individuals in the Muslim community since 1997, before British young Muslims became a suspect community, a huge number of individuals in the refugee community became apprehensive that they were suspects for terrorism, and were not. That was not a happy progression of suspicion and I think led to a number of real, real difficulties in our criminal justice system.
Chairman: Thank you very much. I think that is a good point on which to end. Can I thank all four of you very much indeed; you have got the inquiry off to a good start and raised a number of issues that we will want to put to other witnesses in the subsequent sessions. Thank you very much indeed.