UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 910-iii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

HOME AFFAIRS COMMITTEE

 

 

TERRORISM DETENTION POWERS

 

 

Tuesday 28 February 2006

ASSISTANT COMMISIONER ANDY HAYMAN QPM and

DEPUTY ASSISTANT COMMISSIONER PETER CLARKE CVO OBE QPM

Evidence heard in Public Questions 183 - 257

 

 

USE OF THE TRANSCRIPT

1.	This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2.	Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 28 February 2006

Members present

Mr John Denham, in the Chair

Mr Richard Benyon

Mr Jeremy Browne

Colin Burgon

Mr James Clappison

Mrs Ann Cryer

Mrs Janet Dean

Nick Harvey

Steve McCabe

Mr Shahid Malik

Gwyn Prosser

Mr Richard Spring

Mr David Winnick

________________

Memorandum submitted by ACPO (Terrorism and Allied Matters) Committee

and the Metropolitan Police Service

 

Examination of Witnesses

 

Witnesses: Assistant Commissioner Andy Hayman QPM, Metropolitan Police Service (MPS) and Deputy Assistant Commissioner Peter Clarke CVO OBE QPM, Head of the MPS Anti-Terrorist Branch and National Co-ordinator of Terrorist Investigations, gave evidence.

Q183 Chairman: Good morning and thank you very much indeed for joining us at this further evidence session into the Committee's consideration of the case for extended pre-charge detention. We are very grateful to you for coming and for your evidence. I wonder if each of you could just introduce yourselves briefly for the record.

Assistant Commissioner Hayman: Andy Hayman. I am Assistant Commissioner for the Metropolitan Police with responsibilities for Specialist Operations which include the Anti-Terrorist Branch and Special Branch.

Deputy Assistant Commissioner Clarke: Peter Clarke. I am Deputy Assistant Commissioner in the Metropolitan Police. I have two roles, if you like: one is as Head of the Anti-Terrorist Branch in the Metropolitan Police; and, in addition to that, the Association of Chief Police Officers has given me the role of being National Co-ordinator of Terrorist Investigations, which means I have a national role in terms of that particular function.

Q184 Chairman: Thank you very much indeed. We look forward to drawing on your knowledge and expertise this morning. Obviously the proposal for up to 90 days pre-charge detention is one of the most controversial criminal justice changes there has been for some time. I would like to start if I may be asking some questions about the development of the policy of detention for up to 90 days. So far as the Committee was able to establish, in the autumn the main communications that the Government received from ACPO arguing for 90 days consisted of three press releases and two sides of A4 describing a couple of operations. I wonder if either of the witnesses could take us through the process that ACPO went through to come to the conclusion that up to 90 days was necessary.

Assistant Commissioner Hayman: In terms of the process, Chairman, we will try and do a double-act because we have both got contributions to make. So we get a bit of variety, one will lead and the other will follow-up after that. Perhaps on that one I will lead and Peter can add whatever he feels is relevant. First of all, I think it is worth stating at the outset that an invitation by government for an opinion is not unusual. With a different hat on, that happened last year around the Drugs Bill. In my other role as Chair of the ACPO Drugs Committee I was asked for an opinion and we went through that normal consultation.

Q185 Chairman: Could I just stop you. That is very interesting. It may just be me but I had understood that the proposal for extended detention up to 90 days was one that was made from ACPO to the Government unsolicited, as it were. Are you saying that actually the Government invited views on a further extension beyond the 14 days?

Assistant Commissioner Hayman: As it does with other agendas, the Government invited views on the subject matter, the question being posed.

Q186 Chairman: Specifically on detention or on general terrorism?

Assistant Commissioner Hayman: No, on general terrorism legislation. It was occurring around the time of the atrocities in July. Quite rightly, there had been deliberations before that but it became more focussed in the wake of July. Discussions between government and other agencies, not just the police, were in a consultative phase. It was a professional view about: what is working well; what needs to be revisited; and where are the gaps? The way in which that consultation was instigated was in many different forums. There is a statutory consultation home affairs working group which is with the Home Office and also within ACPO. As you would expect, having been given that invitation ACPO as an association then consulted its members and were asking those questions, exactly as we would do with any other agenda. When it comes to the specifics which you have asked, Chairman, around the 90 days, I think what needs to be clarified fairly strongly here was that the proposal from ACPO was that we felt from experience and investigations (matters which Peter can add more detail to) that 14 days was not sufficient and we were looking for an extension. This is a real subtlety which needs to be underlined. The extension proposed and suggested by ACPO would always be in line with any human rights legislation, and that would be subject to a judicial review. What then became a debate and discussion point was, how long can this go on for; how long do these judicial reviews keep occurring for? ACPO were being pushed for a judgement on that - and it was no more than a professional judgement - which is 90 days. What I think has happened on reflection is that the 90 days dominated the discussions and considerations, when actually the proposal was for judicial extensions.

Q187 Chairman: Can I take you further. This Committee certainly appreciates the subtlety you are trying to point us to there. ACPO though had obviously concluded that 14 days was insufficient. Could you tell the Committee how ACPO came to that conclusion? Did ACPO do what I know it has done on other issues in the past and set up a working group, professional group or study group to produce a report and analysis for internal consumption and then reach the conclusion; or was there just a view amongst officers working in this area that more than 14 days was necessary?

Assistant Commissioner Hayman: I will refer in a minute to Peter because he was obviously instrumental in helping us come to that view, but it was all those things. A letter was sent out to all ACPO colleagues across the country asking for views by the then Chair of the ACPO (TAM) which was Ken Jones, Chief Constable of Sussex; and material was then brought into a central point. It was very much influenced by Peter's world on the experience of investigations. Before I refer to Peter on this - the real difficulty here (which I know members are very alert to) is that the material (and we have original material here) is difficult to share. That is the dilemma which we have currently got. We would be delighted to share it under certain circumstances but it is very difficult.

Deputy Assistant Commissioner Clarke: If it would help the Committee, I could perhaps put an operational context on this and where the thinking came from.

Q188 Chairman: What I would like to know, without going into the detail of the cases at the moment, is how the case was assembled and what process of analysis was actually gone through. In the autumn when we as a Committee enquired what exactly had ACPO sent to the Home Office to justify its support, it came out of three press releases and two sides of A4. It did not look like a particularly substantial document of the sort we might have expected would have existed at least in confidence. I am very interested in how ACPO came to the conclusion that 14 days was inadequate?

Deputy Assistant Commissioner Clarke: What I can do is tell you how officers working with me in the Anti-Terrorist Branch on terrorist investigations all the time came to that conclusion - not through working groups, not through documents, but through discussion over a period of time and using what we saw as evolving trends from casework to inform our judgment. When the time came last summer and we were invited by the Government to put forward any measures which we felt would be useful in terms of amendments or new terrorist legislation, the proposal for extended detention was one of those issues we put forward. It was not the subject of a formal working party within the Police Service prior to that. It was the product of a lot of discussion and reflection by practitioners over a period of some two to three years. Remember, of course, that back in 2003 we had had discussions with government which had led in January 2004 to the extension from 7-14 days, and that was in response to trends we had seen emerging which had been set out in the paper which Mr Hayman sent to the Home Office in October - those trends we had seen back in 2002 and early 2003. The extension which was 7-14 days was very welcome. What we then saw during 2004 was an acceleration of those trends with some specific cases which (as Mr Hayman has said) I am in some difficulty in going into detail on because they are currently sub judice. Those cases really showed us the features which we set out in the paper to be continuing and developing features, and that is why we put forward the 90-day proposal.

Q189 Chairman: That is helpful. I am remiss and I will say something now that I should have said at the beginning and this is for the benefit of members of the public. I have indicated to the witnesses, given the nature of what we are discussing, that there may be a point in this morning's evidence session at which we invite the witnesses to give us evidence in confidence if there is evidence which cannot be used in public session. It may be that we will return to some of these matters later on in this particular area. Obviously for everyone's benefit we want to deal with as much as we possibly can do in public and on the public record. If I could go back to the process, I am right in thinking that it is very common in ACPO if there is a new policing problem to be dealt with for ACPO to go and set up a group of professional experts who produce a report, a business case for change. That was not done in this case. Why was it not done on a matter of such great importance? Terrorism is obviously important; civil liberties are important; why did ACPO not do what it has done on so many other issues before, which is to convene a proper professional working group to come up with recommendations?

Assistant Commissioner Hayman: I would just change that slightly, Chairman, because there are cases where the rigour you have just described is appropriate but, equally, I can cite other examples, and I have used one already which is the Drugs Bill proposal, where that was not the case and the proposal caveated that way. Government has asked for a professional opinion and that is what it has got. If you want a more substantial case which is describing the features you have, the rigour features, then quite clearly we will do that, but that was not the question that was asked.

Q190 Chairman: The position as far as we perceive it: ACPO put out a press release I think in late July or early August saying that they would like to have more than 14 days' detention up to a maximum of 90 days; by the middle of August the Government had decided to back the ACPO request. Did the Government ever ask for any more evidence or exploration of the case for more than 14 days than has been made available to this Committee in the form of ACPO press releases and the two sides of A4?

Assistant Commissioner Hayman: No.

Q191 Chairman: Were you surprised that the Government was prepared to back an extension from 14 days to up to 90 days on the basis of, yes, a professional opinion but so little analysis of the alternatives, how it might work in practice, the international experience and so on?

Assistant Commissioner Hayman: Clearly that is a matter that needs to be addressed to the Government.

Q192 Chairman: It will be, but as a professional police officer were you surprised, having put the initial position that you would like up to 90 days, that the Government did not come back and apparently say, "Well, possibly, but let's have some chapter and verse on this"?

Assistant Commissioner Hayman: An honest answer to you, Chairman, is: no, it did not cross my mind at all. There are some other very interesting comparisons where other periods of time have reached the legislative framework - the amount of hours for detention after review under PACE 24, 36 and 72. How did we reach those hours? It was the same sort of rigour you have described attached to that. You can go into other periods of time, not just in this profession. The answer to the question is: no, I was not surprised; and, secondly, it would be very interesting to explore how those other days were reached in other legislative frameworks.

Q193 Chairman: Indeed. The Prime Minister was quoted, I think in October, not long before the parliamentary vote with saying there was incontrovertible evidence in favour of the need for up to 90 days' extension. Are you aware of any information given to the Prime Minister other than what went in the two pages of A4 and the letter you yourself sent later in the process?

Assistant Commissioner Hayman: I can comment on that. In the wake of July I personally attended (and I can remember it very clearly), before the Prime Minister went away on annual leave, personal briefings along with other Security Service colleagues of the emerging picture. I do not know whether that is what the Prime Minister was drawing on. All I can say is that information had been shared.

Q194 Chairman: I do not want to put words into your mouth but just to make sure I have understood what you are saying, from an ACPO point of view, from your position as a professional police officer, the need to go more than 14 days is something of which you are absolutely certain. The question of whether the maximum period should be 90 days is much more a sense of instinctive judgment about what feels about right. Is that fair?

Assistant Commissioner Hayman: That is absolutely fair. I know that sounds pretty flaky. I expect members are sitting here thinking, "Crikey, there should be more basis for that", but that was the question that was asked. It is a really difficult judgment call to make, but we were asked for a professional judgment and that is what we gave. I want to go back to the earlier point, that we would not see this was being the norm. This is about an extension for detention before the 14 days with judicial oversight.

Q195 Mr Winnick: Mr Hayman, given there are no Members of Parliament, to my knowledge, who do not recognise there is an acute terrorist danger to our country, and that would be the position and was indeed the position before the atrocities of 7 July and what may or may not have happened a fortnight later, were you at all surprised that a large number of MPs were not persuaded that the 90 days was justified?

Assistant Commissioner Hayman: I have never formed a view on that. You now pose the question and I will try and give an intuitive reply. I am never surprised really; people have got their own views. It is not for me to do anything other than present as much information as I professionally can to form a debate and it is for others to form their own opinion. I am not so sure that the question about whether I am surprised or not helps out. You can never judge how people are going to go when they see all the information.

Q196 Mr Winnick: But it did come as somewhat of a surprise to you?

Assistant Commissioner Hayman: I guess the only thing I am left asking is: on the basis of the information that is available and the level of threat, and if the professionals have been asked for an opinion, I would have hoped we would have had the integrity to be trusted (when we came to the table for that opinion) as I would do if I went to see a surgeon or any other specialist or professional. I guess I am left asking the question of whether or not we were convincing enough in presenting our argument.

Q197 Mr Winnick: You are making the point that if you went to see a specialist you would expect to accept the specialist's point given to you. Are you therefore saying we should have accepted the 90 days because the police suggested it?

Assistant Commissioner Hayman: No, I think you are pushing me into a position I am not actually arguing.

Q198 Mr Winnick: I am taking it from what you have just said.

Assistant Commissioner Hayman: I am saying that the professional body was asked for an opinion and we gave that opinion. Members have weighed that up against what they feel and what other information they have got and they have individually come to a decision which is the real democracy of this country. I just felt information that was presented started to make a fairly compelling case that said beyond 14 days there was a case for further detention with judicial oversight. If others who have got to vote on that do not feel that way then that is a matter for them.

Q199 Mr Winnick: Mr Hayman, is there not a possibility, a pretty strong possibility, that members took into consideration that the increase from 7-14 days had been in operation for less than two years, and now it has been in operation for just over two years? Do you not consider that would have been a pretty serious consideration that the police had been given the extra powers which had been in operation, as I say, for less than two years?

Assistant Commissioner Hayman: Of course, what we have seen happen in the passage of those two years across the world and the complexity of the attacks and the atrocities that have occurred means that the timescale of two years becomes irrelevant. If it had been two months and there had been a massive change in circumstances, to be not flexible enough to change one's opinion or review legislation would be remiss.

Q200 Mr Winnick: Another factor which perhaps you can confirm is that what came out in the debate is that no-one who had been held in detention and then released (and I emphasise "released") had later been charged with terrorist offences? Is that not the position?

Assistant Commissioner Hayman: It is the position.

Deputy Assistant Commissioner Clarke: Yes, that is exactly the position.

Q201 Mr Winnick: That is the position. Let us get it absolutely clear - no-one who has been held in detention under the powers given to the police and then released has later been charged with terrorist offences?

Deputy Assistant Commissioner Clarke: That is absolutely correct.

Q202 Mr Winnick: Mr Hayman, it is said in the paper that the police have given us that "extensions past seven days are used very infrequently". But more than one in ten of those arrested under the Terrorism Act 2000 had been held for longer than seven days pre-charge; and between a quarter and a third of those suspects were released without charge. Can I therefore ask you, what proportion of suspects would you have expected to be held longer than 14 days if Parliament had agreed to the request, and how many of them would then have been released without charge?

Assistant Commissioner Hayman: It is a tall order to come up with an analysis like that. What I am saying is I am very proud of the investigations that are bound to operate without the constraints of the 14 days, and have been able to gather evidence under extreme circumstances to not go beyond that guillotine. What I am saying, and we have always said this in our oral and written submission, is that regardless of the timeframe we come up with for future proposals, we would see this as being a very extreme set of circumstances where it is going to occur. What we do know from our investigation is that it is a tall order to get within the 14 days.

Q203 Mr Winnick: Finally, on reflection do you not think you would have been much better to have stayed with the 14 days and, recognising the statistics which come from the police, the case for a longer period could have been put before Parliament later than it did do, namely less than two years since the 14 days had been in operation?

Assistant Commissioner Hayman: You have mentioned that twice, and I am struggling to understand the relevance of why it is just the two years; because with the world events and those that happened in this country (and you cannot ignore that this became a pressing government priority in the wake of the atrocities) there needed to be a point of reflection and review. Whether it was two years or two months becomes irrelevant.

Q204 Mr Winnick: But the initiative came from the Government?

Assistant Commissioner Hayman: We answered a Government question.

Q205 Chairman: How many of those that you have released without charge over the last couple of years do you believe you would have been able to charge if you had detained for longer?

Deputy Assistant Commissioner Clarke: That is a question that has been asked on many occasions and, if I may say so, Chairman, I do not think it is the right question because we do not know. It is a statement of the blindingly obvious: we do not know what we do not know and we cannot guess at what might have occurred had we been able to keep people longer. I am in no doubt whatsoever that in several cases there have been instances where the evidence would have developed to a stage where charges would probably have been more likely, certainly where intelligence would have flowed, and I can only speculate but a lot of this is speculation, where there could well have been instances where public safety could have been well served by some of the information that could have come from a longer period of detention. This is not I hasten to add solely about interviewing people. A lot of this is about having the time to properly investigate the information and the evidence which emerges in these cases. You have seen the papers which explain the whole range of issues which now make it more difficult and which make it necessary for us to have longer. There have been cases where I am quite sure there were people who had been arrested as part of a broader group who - had we had the opportunity to fully understand their particular role within the conspiracy, had we had the opportunity to serve that on the defence and for them to be in a position to recognise that we recognised their particular role - might well have chosen to say more to us or to say anything to us.

Mr Winnick: Mr Clarke, that could be an argument for much longer than 90 days, because before we knew where we were we had agreed to 90 days and in another year or two years you would be selling us the same position: if only we had more time, and therefore we require 100 days or 140 days and so on and so forth?

Q206 Chairman: Mr Clarke, please continue to answer the question because there is a key thing here that we need to get, which is the people who have been released you feel we might have done more with.

Deputy Assistant Commissioner Clarke: I have been asked to identify which terrorists who have evaded justice - I cannot do that. What I can do, and I am not arguing for more than 90 days, I am just saying that on the trends which we have seen develop in these investigations over the past three to four years there is, to my mind, no doubt whatsoever that the changed nature of the threat, the global nature of the threat, and all the other characteristics which we now see which we did not see in the past mean that on any calculation we need more than 14 days to be in a position to have sensible constructive interviews, to fully understand the nature of the conspiracies we are looking, which are global and complex. As Mr Hayman has said, I do not think there is any magic about 90 days. What we are asking for is a longer period beyond 14 days but it is not a police power - that is a point I would like to emphasise.

Mr Winnick: But you are getting it.

Chairman: There is an issue about 90 days per se but it is also very important that the Committee understands, if you like, the underlying case for extended detention.

Q207 Mr Spring: We read your hypothetical case study and it obviously does reflect to anybody who reads it the sheer complexity and difficulty that you face in these cases. We absolutely understand that. Tim Owen QC made come comments and criticisms of this particular case study and if I could just remind everybody of one or two of the points that were made. For example, that the threat itself has been greatly exaggerated; but also that it proceeds on the assumption that at the point of arrest police have literally no evidence and that the 14 days provides the only opportunity to commence investigation, and he disputed that; also that at the point of charge the CPS must in effect serve all its evidence, whereas in fact in practice he asserts that the CPS have effectively about six months to do this. Two final points: bail is hardly ever granted in terrorist cases; and also, finally, and I think this is a point we do need to examine, the benefits of interviewing from his assessment point of view is greatly exaggerated. Trying to balance the complexities as you have set out, which we all understand and appreciate, and these criticisms, I just wonder how you react to the points that he has made in trying to demolish your particular case?

Assistant Commissioner Hayman: If I deal with the points about the nature of the threat and the issue around bail, and then I will refer to Peter on the other issues. We read Mr Owen's comments with interest and it has to be said, as a headline, I do not actually agree with those points. First, to be saying that we have greatly exaggerated the nature of the threat I do not see that there is a basis for that statement at all. In fact if you look at events around the world, if you look at the autumn there was an unprecedented period of about three weeks where we saw attacks in Bali and Delhi, thwarted attacks on Australia and London, and that was in a very short space of time with loss of life. If we look at the threat there was around the world that just flies in the face of us saying that it is an exaggerated threat. I do not see there is a basis for that at all. In relation to bail, I am not quite sure how the judiciary and the criminal justice system would welcome those comments, because that is not a question that should be levied towards the police - that is a question levied to the judgment and the operation of the judiciary. I can tell you, I do not see it as a walk in the park. In the history of going before a court or the officers at the moment going before a court, to ask for remand as a custody or whatever, that is certainly not a walk in the park. On those two points I just do not recognise them.

Deputy Assistant Commissioner Clarke: The point about the case study being based on an assumption that the CPS would need all the evidence at the point of charge, I am afraid I do not recognise that at all. Of course there never is all the evidence available at the point of charge. These cases take many, many months to construct and develop the evidence and make those enquiries overseas. At the point of charge the CPS has to have reached a stage at which they are satisfied it is appropriate for the charge to be levied; and that is very different, of course, from the stage at which an arrest is appropriate. In order to make an arrest one merely has to have grounds - and that could be based on intelligence, it could be based upon material that is not admissible in court. Indeed in one particularly significant case which is awaiting trial, at the moment we arrested the people who now stand charged with very serious offences there was not one shred of admissible evidence at all; but on grounds of public safety we felt obliged to intervene at that stage and to make the arrests. Over the subsequent 14 days', intensive work led us to the point where on the fourteenth day the Director of Public Prosecutions felt able to authorise charges in respect of those people. It is not based upon the assumption that you have to have all the evidence at that stage. I am sorry, the other two points were?

Q208 Mr Spring: He talked about bail hardly ever being granted in terrorist cases and also (something I want to come onto) interviewing, and we can come on to that.

Deputy Assistant Commissioner Clarke: In respect of the bail issue it is a fact that there is no provision for bail under the Terrorism Act, so it is not something which can be granted.

Q209 Mr Spring: I think we can all agree that at the heart of this is the efficacy of the interviewing process - that is just absolutely key. We took some evidence in this Committee from Lord Carlile and I would just like to indicate two things that he said. He talked about the interviewing processing being "rarely productive"; he also said, "... in my view, the interviewing process is actually becoming not entirely irrelevant, but near to irrelevant", and we all know why, because of the right to silence and the advice which is given to individuals to remain silent. I am not sure we understand the difficulties which flow from this. Taking this particular point of Lord Carlile's, which was indeed confirmed to us by other witnesses, and given the fact that in many terrorism cases these individuals will remain silent, what are the implications therefore for a prolonged pre-charge detention, given the fact that it does not seem to work in practice other than the suggestion which was made, I think, by Mr Clarke that people may be persuaded to talk if it was made clear to them that their role was a minor one in any particular potential terrorism case and finally to allow them to gather evidence. I think this is a very important issue which we need to be clear about in our minds.

Assistant Commissioner Hayman: The point I would make is that any detention is not just solely for interviewing - it is for gathering the evidence that will probably form part of an interview strategy. The point made by Lord Carlile is well made, but that does not mean to say we should assume someone is not going to talk to us and we must deprive someone of the opportunity to actually make comment when evidence is presented to them. For me the type of detention should not just be focussed on interview, albeit that is the most critical part of it; it has got to be around the development and gathering of evidence to that charge.

Deputy Assistant Commissioner Clarke: I can foresee circumstances in which, after an initial interview to ascertain whether or not somebody wished to explain circumstances to us, we might not wish to interview somebody for perhaps days or even weeks because the gathering of the evidence, which is catered for within the legislation, might not be through the medium of an interview. It could well be through analysis of telephone or computer data or enquiries made overseas. Then we might want to return and put that material to the person who has been arrested. Under the proposed provisions under the Terrorism Bill it may well be if somebody is remanded into prison custody from police custody we would then have them produced back into police custody towards the end of that period of detention to enable us to put to them the things which we have been able to find in the intervening period. It is terribly important, and I agree with Lord Carlile entirely, that the efficacy of the interview process is comparatively small. We have recently conducted some research and found that in Anti-Terrorist Branch cases well over 60% of people detained do choose to exercise their right to silence. We broke that down a little further into those who are considered by the investigators to be either leaders or supporters, as a broad categorisation, and we found that only one in ten of those who would be considered to be leaders or directors of terrorism chose to speak.

Assistant Commissioner Hayman: This example has been ridiculed by some commentators, but I will go back to it and if we do go into a private session I will be able to give you much more material to support this point. If we had a scenario post 7 July where there were survivors from the attackers and they were in custody, in terms of investigation of where we saw the bomb factory and the amount of time it took to get in there with safe entry and actually analyse what was there, it would take us well beyond 14 days or any other time period you might want to describe. Therefore, we know we want to speak to X because we have linked X to the scene but we cannot speak to that person; and the point Peter is making is that we would not want to prematurely anyway, and we would need to wait until we were in a position where we were ready to discuss the matters with that person. When we go into the private session we can give you more information on that.

Q210 Chairman: It does sound though, and this may be what is coming out, that the primary aim of detaining people is actually preventive - in other words, to prevent them continuing planning terrorist activity - far more than actually doing anything with them that enables you to charge them?

Assistant Commissioner Hayman: It could do. I have read Lord Carlile's evidence to this Committee and there is one particular point where he described different scenarios which I support. The scenario could be on the basis of public safety and early interdiction to prevent an atrocity which could occur and that person would be detained, and that would fit into what you have just described. On the other hand, down the chain of events there might be a much later interdiction where there is evidence to be gathered which is very resource-intensive where there are much more substantial things to interview, which goes beyond a conspiracy. With the new legislation that has been proposed within the Bill for acts preparatory to terrorism that will probably become more the norm than we are seeing at the moment.

Q211 Mr Benyon: I want to talk about the more practical constraints and the difference of opinion that exists between the hypothetical case that you produced and opinions on it expressed to us, particularly in this case, by one of the solicitors, Ms Peirce, from whom we heard. In the scenario you talked about the importance of interpreters and that this is a constraint when you take a suspect into custody, and that you need an interpreter as soon as suspects are brought into a police station after being arrested. Why do you point to the need for interpreters as a cause for delay when suspects are later interviewed? Is there really such a difficulty in finding predominantly Arabic interpreters?

Deputy Assistant Commissioner Clarke: You have to take the issue of interpreters along with all the other factors we have put into the submissions around why it is that, taken together, they contribute to the lengthening of the process. In terms of interpreters, yes, there is a lack of availability of interpreters, not only because of the language issues of course but dealing with this sort of material they have to be security-cleared as well. Remember, it is not only the process of the police station we need interpreters for. There will frequently, for instance, be eavesdropping material which they have to transcribe and translate for us. There will very often be hundreds of documents seized which have to be translated for us so we can then analyse them before putting them into an interview strategy. We have seen several cases where suspects have come from some fairly remote parts of the world and the need not just for Arabic interpreters but for some people who can interpret in dialects which very few people speak. Indeed I can think of one case in the not too distant past where we actually had to bring an interpreter in from the other side of the Atlantic to assist us because there was no-one available in this country who could do that for us.

Q212 Mr Benyon: One of the other constraints brought out in the hypothetical case that we had was that there was a delay because a multitude of people had been arrested and there was only one firm of solicitors that was acting on their behalf. Ms Peirce disputed this. She said there were many firms who had the expertise and the wish to represent these people. Would any solicitor seek to represent a client in your experience if they could not do so properly? Her argument was that your hypothetical case was not made and there were plenty of people who were able and willing to do it and there should be no time constraint as a result?

Deputy Assistant Commissioner Clarke: I have to say, I do not recognise Ms Peirce's analysis of that situation at all. There are a limited number of firms who specialise in this area of work - Ms Peirce's firm is one. In this open session I cannot go into some details but I would say to your question of whether, in our experience, there are solicitors who do not represent clients to what we consider to be an acceptable professional standard the answer is, yes, I have seen that. I think there have been occasions when what anybody else would recognise as clear conflicts of interest have arisen through multiple representations of clients by one firm, and of course that is not a matter for us as police officers to point out to those professionals - that is a matter for them to recognise themselves. I would say undoubtedly there have been occasions when the representation afforded to people has not been of the highest standard because of this multiple representation issue.

Assistant Commissioner Hayman: Can I just clarify one point. There was a hypothetical example in the paper and when we get into a different session you will see on a scale of one to ten it is probably hitting about seven, and I can see real cases of sub judice which will go beyond that.

Q213 Mr Benyon: The other point is that in the hypothetical case you have to make allowances for frequent periods of religious observance, for Muslim prayer. In your experience is this really a factor in terms of limiting the amount of time that you can interview a suspect because they have to break for prayers four or five times a day?

Deputy Assistant Commissioner Clarke: I would not honestly say it is a factor which interferes with the amount of time that is available for interview. I think what it is, it is something we have to take into account when we are setting out our investigation and interview strategy; and we have to factor in breaks and proper opportunities for prayer to take place. It is difficult to quantify, but I would put it forward as another issue which we have to take into account when looking at the overall time available for the investigation to be completed in a proper fashion. We cannot just say, "Right, we'll set aside X number of hours for interview on a particular day", because we have to make sure there is proper opportunity for religious observance built in. I do not want to quantify that.

Q214 Mr Benyon: My last point - and I think the most serious criticism that Ms Peirce gave to us - is based around the physical constraints of Paddington Green, in most cases. Despite an enormous amount of money being spent on Paddington Green (and no doubt it is a very secure place to hold suspects) she argued that it has an entirely impractical layout to interview people in a timely fashion; a limited number of interview rooms; difficulty with access. She also criticised the Anti-Terrorist Branch for an over-methodical process of evidence-gathering and progressing an investigation. I am quite convinced you have got strong views on that, but we have been told that suspects are not interviewed very often during the first 48 hours in detention; and that only 10% or less of the time a suspect is detained is used for interviews. In relation to that and her criticisms, how would you reply to that?

Deputy Assistant Commissioner Clarke: It is a pleasant change to be accused by Ms Peirce of being over-methodical! In terms of the facilities at Paddington, yes, this is a secure unit which was built in the 1970s and early 1980s. I would be the first to say that I would like us to be able to move to somewhere probably more suited to the scale of case and the number of suspects we are now seeing in the modern era. We have spent a lot of money on upgrading it. There are now more interview rooms; there are three interview rooms there. We are doing what we can to make it as amenable an environment as possible, particularly bearing in mind now the possibility of people coming back after 14 days' detention. In terms of the suggestion that we do not interview for the first 48 hours, I am afraid I do not recognise that either. There is no policy about that. Indeed, it is very often in our interests to have an interview as soon as we reasonably can so that we can get an indication of an individual's intentions and demeanour in respect of the investigation. I simply do not recognise that. If need be we could supply all sorts of custody records and the like to the Committee which would show that that is simply not the case. Yes, interviews are structured; of course they are. We start off usually with basic information about an individual and build up a picture of that person before we start moving through a process of staged disclosure of material to defence. That is entirely appropriate; it is a proper investigative strategy. You do not put all your cards on the table at the very beginning, you stage the disclosure. In many of these cases we stage it as the material becomes available to us through all the other strands of enquiry which we are pursuing in parallel with the interview process. In terms of the amount of time that is actually taken up during detention by the process of interview, of course since the advent of tape recording some 20 years ago the process has become much shorter now. What used to take several hours of handwriting to record an interview now can be done in a matter of minutes. I do not have the exact details but what I do know is - from some survey that has been done about the total amount of time taken for interview in relation to the overall time in detention - that the upper limit we have seen is about 20% of time taken up for interview; but that is at the top end and I think a more reasonable estimate is probably somewhere between ten and 15% of total time on detention actually taken in the interview process.

Q215 Mr Clappison: We have heard evidence about proposed alternatives to the course which you favour, and we have also had some evidence from yourselves about that. Could I ask you about one or two points on the alternatives. You say that greater resources would not tackle the basic problem of the weight of material and the need for it to be analysed; but would it not be the case that greater resources would help in some respects, as for example where you were analysing large volumes of data or where you were looking at opportunities for interceptions of communications?

Deputy Assistant Commissioner Clarke: I was asked this very question by the Joint Committee on Human Rights last autumn and I think my answer is still fundamentally the same. Yes, while obviously the greater resources in the initial gathering stage for data would be and always are useful, and of course we put whatever resources are required into that stage of the process, gradually it filters down and the process is sequential. If I could give an example - it would be gathering telephone data. If you go into premises to search then a thorough search will normally take two to three days. During the course of that search nowadays we regularly find large numbers of SIM cards, mobile telephones and the like. That material has to be recorded in situ and it has to be taken to the laboratory and the material downloaded from it. Then the investigation has to move onto the service providers to gather billing data and the subscriber details. That material then in turn has to be recorded and analysed, and that has to be put into the interview strategy to try and work out where that fits into the context of the overall investigation. That is a centrally sequential piece of work. The same applies to lots of other parts of an investigation. Recovering fingerprint data from documents, for instance, is a sequential thing; it just takes time. Examining the chemical analysis of materials found in premises of explosives and the like does take time. I am saying, at the initial stages, yes, have the broad brush; throw resources at it; but then when you get the material you have to start focussing it down. What we have found is not good practice is to have too many people engaged in the final analysis of material before it is fed into an interview strategy, because if you have too many people they will not have an overall view of the investigation and might not recognise the significance. One example in one particular case was where we did try to bring in extra people to wade through computer material over the course of a weekend, but because they were not fully sighted of all the issues in the particular case, they actually missed a vital piece of material on a computer hard drive, which was only thankfully then recovered by one of the detectives who had been engaged in the whole case and was able to see it. You have to narrow it down eventually.

Q216 Mr Clappison: You are saying in short that it would be a help to have more resources but that does not remove the need for a longer period of detention?

Deputy Assistant Commissioner Clarke: Absolutely not.

Assistant Commissioner Hayman: Too many cooks spoil the broth.

Q217 Mr Clappison: Another alternative which has been raised and which has been part of the debate is potentially charging suspects with lesser offences. It is right to say you have raised a number of legal difficulties with this and also the risk of diverting resources. It is also right to say that Lord Carlile set his face against charging suspects with lesser offences at an earlier stage, and it does look unattractive in some ways. Are you saying that there are no cases in which that would be a useful way of proceeding, to charge someone with a lesser offence?

Assistant Commissioner Hayman: I just think this is so unpalatable. It is unfair; it flies in the face of true justice. What are you really going to gain from that? It is surely the case for an investigation to gather the evidence that is available to prove or disprove someone's culpability in a criminal offence. The notion of us trying to basically get round the problem of longer detention by bringing in a lower level charge is just not acceptable professionally; and I do not think it is fair to the suspect either.

Deputy Assistant Commissioner Clarke: If you are going to charge a lesser offence you have got to have the evidence, for a start.

Q218 Mr Clappison: You mention that in your written evidence.

Deputy Assistant Commissioner Clarke: Of course it would always be open to the person to plead guilty and ask for the case to be disposed of by the courts and that would be the end of that particular ruse, as is being suggested it could be termed as.

Q219 Mr Clappison: One of the other alternatives which has been mentioned generally in this debate is the use of control orders. Do you feel they are appropriate to be used in these cases?

Deputy Assistant Commissioner Clarke: Personally I do not think so, because we are only talking about applying to the courts for an extended period of detention in respect of the most serious cases right at the top end of the investigative scale - those people who potentially provide the most serious threat to public safety. To suggest a control order, which is designed for an entirely different purpose, as an appropriate way of safeguarding the public against the sort of people we are suggesting should be subject to extended detention during the investigative stage, I do not think that provides sufficient reassurance for the public or indeed the level of protection for the public that is appropriate.

Q220 Mrs Dean: Following on from that with control orders, could terrorist conspiracies be disrupted by the use of control orders and tagging, linked with the existing periods of pre-charge detention?

Assistant Commissioner Hayman: Disruption is always a tool in the kitbag. The measures you have described are always going to be useful. We must not lose sight that the cases we are describing, which are born out of the debate around the period of detention, are the ones that have gone beyond that, and they are probably going into the preparatory acts to make an attack. That is well evidenced in the investigations where we are waiting to go to trial over the next two to three years. I have just got to be really careful. I understand what you are saying. They are a very useful tool in the kitbag, but they are not appropriate for the circumstances we were arguing around detention.

Q221 Mrs Dean: You are generally supportive of allowing post-charge questioning. Can you give examples of cases where you would have still wanted to be able to detain suspects for 90 days pre-charge, even if post-charge questioning was allowed?

Assistant Commissioner Hayman: We have never said we wanted to keep them for 90 days. It is a subtle point but one which has to keep being made, I think.

Q222 Mrs Dean: Up to 90 days.

Assistant Commissioner Hayman: There is a case which was cited by Lord Carlile in his evidence which is one I rely upon which would have been helpful.

Q223 Mrs Dean: Do you think that once charged suspects would be less inclined to speak because they have no incentive to do so?

Assistant Commissioner Hayman: It is a good question. Who knows, because they are not always going to talk at the start, are they?

Q224 Mrs Dean: You mentioned difficulties with providing intercept material of an evidential standard as a problem with allowing its use in courts. Could you give examples of such difficulties with foreign intercept material which is allowed in court?

Assistant Commissioner Hayman: This has been a fascinating discussion over a fair amount of time and I speak from an ACPO and personal perspective. I have personally moved my position. I originally started off by being fairly unsupportive of the notion of using the material, mainly on the basis that it was starting to disclose methodology to the other side. I think that is now well and truly worn-out because I think most people are aware of that. It does not stop them still talking but they are aware of the methodology so that is a lightweight argument. The next point which I had reservations about was the true logistics about transcribing the material, where you could go into reams of material. Again, that is a fairly mute point now, given that you can be very selective about the things you are going to transcribe if you are very precise on your investigation and focussed. I think I am moving, as I know ACPO is, to a conclusion that in a selected number of cases, not just for terrorism but also for serious crime, it would be useful. I think also it does make us look a little bit foolish that everywhere else in the world is using it to good effect.

Q225 Chairman: Could I just take you back to the exchange with Janet Dean and James Clappison about control orders, where the answer was essentially that these are very dangerous people and, therefore, not having them locked up is not sufficient security to the public. Does that not bring us back to the earlier point that actually your main case for extending detention is actually to disrupt or prevent terrorist activity, as opposed to having more time in which to gather evidence?

Assistant Commissioner Hayman: I was reluctant earlier on to support that point, but as the debate has matured in here I can see where you are coming from on that. There are a vast amount of cases now where an early interdiction is to disrupt on the grounds of public safety. What we are hopeful to do is to gather evidence that would culminate in a charge. Unfortunately, at the moment as we stand without the new legislation being in place, i.e. acts preparatory to terrorism, sometimes it is really difficult to make that fit what is on the legislative books. With that new legislation, with the early interdiction, yes, I can support your point.

Q226 Gwyn Prosser: Mr Hayman, on the issue of intercept evidence, are you saying that ACPO are on the brink of recommending to ministers that there should be a change in legislation to provide intercept evidence in exceptional cases?

Assistant Commissioner Hayman: Of course we will provide a robust business case behind it in relation to that because, given we have to change our position, that is required. The problem we have still got is that in about 18 months to two years' time there is going to be a change in technology, which needs to be borne in mind. Certainly if we are asked a question, that is what our response would be.

Q227 Gwyn Prosser: Mr Clarke, you have told us this morning the amount of evidence required for a charge is a great deal more than that required for arrest. I suppose we should expect that to be self-evident. In evidence we took and opinions we elicited from JUSTICE they said there should be greater attention given to the Threshold Test in section 6 of the Code for Crown Prosecutors. They went on to say that that would allow the CPS to bring charges on reasonable suspicion, which is the same as the test required for arrest. What is your view on that?

Deputy Assistant Commissioner Clarke: The application of the Threshold Test is something which the Crown Prosecution Service has to answer for themselves. If I may offer my observations on this: the CPS still has to have evidence in order for a charge to be preferred. It is totally different from the grounds for arrest. The CPS is not allowed to speculate as to what evidence may become available in the future. The Threshold Test is there for them to be able to prefer a charge where bail is not suitable, but where the standard for the final test (the realistic prospect of conviction) has not yet been reached; but they are allowed to take into account that evidence which they can reasonably anticipate will become available during the course of the investigation. I think there is something of a red herring about this, because I do not think the Threshold Test is at all applicable in these sorts of cases. It is not that we are saying to the CPS, "This is what we've got, and this is what we think we'll get"; this is in cases where we have not got sufficient to charge and require more time, or are asking for more time to actually go and find the evidence which is not yet available and we do not know is there. It is an entirely different concept, and I do not think the Threshold Test is something which really plays into this debate at all.

Assistant Commissioner Hayman: A good example which was given to me - and forget the case because they are not comparable - if you imagine a very routine shoplifting case where you know you will need certain statements to support the prosecution but you just have not got those, that is when the Threshold Test is applicable, when it is a matter of going out and getting those statements to add to the case. As Peter says, you just cannot compare that with a terrorist investigation.

Q228 Gwyn Prosser: A number of witnesses also told us that using Part 3 of the Regulation of Investigatory Powers Act would be helpful in avoiding long periods of detention before charge. What is your view on that?

Deputy Assistant Commissioner Clarke: Is that in respect of the encryption debate?

Q229 Gwyn Prosser: Yes.

Deputy Assistant Commissioner Clarke: The provision within Part 3 has not yet of course been implemented. I think it is important to bear in mind, if it was to be implemented, that would carry a penalty of two years' imprisonment. What we are looking at here are people who have secreted or encrypted material on their computers who, if that material were to be found, would stand the possibility of perhaps facing 20 years' imprisonment. If the choice is between giving the key to us to find evidence which could potentially lead to them serving 20 years or refusing to give the key to us and potentially being liable to two years' imprisonment under Part 3 of RIPA, I think the choice is fairly clear which one you take. I think what we need to do is we do need to think about what sort of encouragement we could give to people to release the encryption keys, but I think the way to do that is probably to find some way of aligning the potential sentence more closely to the ultimate offence, if you like, or that offence which perhaps, if we could show there is more grounds to suspect an individual was concerned with it, would be the one that they were charged with, but for the fact that they were refusing to release information. It is a difficult area because it gets into self-incrimination issues and all of this, but I do not think Part 3 RIPA, as it stands, if it was implemented, would be the answer to it.

Q230 Steve McCabe: I want to ask what I hope are some fairly straightforward questions about computers which is probably a big feature in this. As you can imagine, I am a computer buff. In your judgment, do you have the resources both in terms of equipment and personnel that you need for decryption and other computer forensics?

Assistant Commissioner Hayman: The use of computers not just in terrorism cases, but also in serious crime, bank fraud, et cetera, means that not just the Police Service, but wider industry, commerce, et cetera, are all hunting the same skill-set, so, although we still need conventional and traditional detective investigative skills, they need to be complementary with what we call 'hi-tech crime skills', so we are actually all competing for the same limited amount of resources. You get into market forces to see who can pay the best buck to keep the people and what we do find is that it is not necessarily the job of a police officer, a warranted officer, but that could be done by a non-warranted officer. Whilst we can end up training people to do certain skills, there is a level of retention which, for all of us, is an issue. I need to make the point that the actual encrypting of these computers is not necessarily something that the Police Service would conduct, other agencies would do that, but typically, when we are looking now at the growth that we require, there will be a balancing act between those conventional skills and the hi-tech crime skills.

Q231 Steve McCabe: How often do you come across encrypted material and can you give us some idea of the average length of time it might take to decrypt material?

Assistant Commissioner Hayman: I will ask Peter to answer the second part, but I think the better question to ask, and the answer to the first question, is: when do you not? Rather than how many times, it is when do you not.

Q232 Steve McCabe: It is extremely common?

Assistant Commissioner Hayman: Well, it can be as basic as the password right up to something very sophisticated where it takes weeks for a machine to decrypt it.

Deputy Assistant Commissioner Clarke: I think there are two issues. One is about encryption itself which, as Andy says, some of it is just password protection, and another is commercially available software which can, as I understand it and I am no expert on this, lead to some de-encryption which can take a long, long time to answer, to break. Indeed I have seen in the United States a computer left running for weeks on end to try to break through encryption. The other aspect of this is of course hiding material which takes time. What we have seen is, for instance, a DVD of a film and the officers sit down to go through this film and, about an hour into the film, suddenly it changes into a terrorist targeting video of locations, so that again is an issue which takes a considerable amount of time. Just because someone has got a set of commercial films does not mean that is what is actually on them, so we have to go through them and we have found material, which has formed the subject of charges, buried in that way.

Assistant Commissioner Hayman: I think our nightmare scenario, regardless of where we are coming from, the length of detention or anything like that, surely has got to be what on the face of it appears to be a very innocent, innocuous piece of material which then means that someone is not arrested or is released and then weeks down the line suddenly becomes a horrendous revelation. That is the nightmare scenario.

Q233 Steve McCabe: Is it common for unencrypted material to lead to a charge by itself?

Deputy Assistant Commissioner Clarke: It has done, yes. I can think of some instances where we have recovered things, such as in one particular case, and I am treading carefully because it is sub judice, where we recovered what is virtually a 25-minute film of how to make suicide vests. Now, my understanding is that that was not actually encrypted, though I am not sure whether that was hidden within the computer system, but I do not think it was encrypted, as such.

Assistant Commissioner Hayman: My understanding is that it was not, that it was on a pen-drive which had been downloaded off a hard disk. Again I am treading carefully and I am only speculating, but it may be that the suspect was just a little bit haphazard then in not having the sort of back-up of the security of encryption, but who knows.

Deputy Assistant Commissioner Clarke: We have seen cases as well where people have thought that they have managed to delete things from their hard drives, but actually they have not been able to clean them entirely and we have been able to recover material.

Q234 Steve McCabe: I was just thinking, we took evidence the other week from some computer experts, which you may have seen, but what takes the most time? Is it the decryption of material or is it the analysis of the material?

Deputy Assistant Commissioner Clarke: I would probably have to ask my own computer experts, but I think they would tell me that it is the analysis of the material. The decryption, we send off elsewhere for that to be done, and it depends upon the depth of the encryption as to how long that takes and whether it can be achieved at all. There are some things and one case I can think of, which is two years old now, where we still have not been able to access all the material.

Assistant Commissioner Hayman: What that does is, and it is a statement of the obvious really, but once you start to understand what the material is telling you, it then leads you into, because you go wherever it takes you, it leads you then into associations with people and other networks and that then will lead you to other material which you need then to interrogate. Typically, we could show you on office walls the print-outs of association charts and linkages which all develop into lines of enquiry which again have to be managed in a very meticulous way.

Q235 Steve McCabe: I think Professor Anderson suggested that analysis was almost infinite or at least until the analysts got fed up with it. Is that your view as well?

Assistant Commissioner Hayman: I hope it is not when they get fed up with it, but certainly that is a tall order for them, yes.

Q236 Steve McCabe: Finally, it is pretty evident that the growth of computers, I guess, in all sorts of investigations is a serious issue and it must pose questions about the police management strategy. I just wondered whether you could say something about how your management of inquiries has adapted to try and accommodate this new system or new approach?

Deputy Assistant Commissioner Clarke: Yes, it really does play into the whole discussion we are having this morning about the shape of an investigation. Traditional, good detective work is that you follow the evidence wherever it takes you and that is the purity. You keep an open mind from the beginning of an investigation and follow the evidence where it takes you. However, with the weight of material we are now seeing, what we actually have to do is to set clear priorities at a very early stage and we have to make choices around which material we are going to try and access on computers or through mobile phones or overseas and hope, and it really does come down to hope, that that will yield the evidence we need prior to the end of what is now the 14-day period. As I described earlier, in one case it was on day 13 that the nugget came out of the computer system, so, if we had chosen a different hard drive to look at, we might not have found that at all and the people who now face very serious charges would have had to have been released. I think that is the key thing. The other part about the management of the investigation is the weight of resources that you put into different aspects of it, so, whereas in previous times we might have perhaps focused on forensics, for instance, and put a huge amount of resources into that, now increasingly we have to try and focus it on the analysis of technological data. There is an example of the importance of this, and again I must be careful, but there is one case which is now coming before the courts where what we will be alleging is that this is the first instance in our experience of a virtual network where we will be saying that there are people who have conspired together to commit terrorist acts, but they have never actually met, or we have no evidence at this stage of them having met other than electronically, so that perhaps gives a flavour of the sort of shift in the nature of these investigations and I hope that is helpful.

Assistant Commissioner Hayman: There are two points I would add to that, I think. There is that description Peter has just given of that allegation which has very strong rings in paedophilia crime, and again we know the challenges that has been presenting in recent years. I was just reflecting when you asked that question and I think I would want to go further than that. I would just look at the technology that is now available to us all and it is conceivable that I could walk out of my home with a throw-away mobile phone, with a couple of SIM cards and I could have two conversations with you using different SIM cards, or I could communicate with you through a PSP and, if I wanted to be really careful, I would go to an Internet café and use different terminals in there. I could probably have a conversation and contact with you, having walked out of my home and come back, where conventional surveillance was a waste of time and, even with technical surveillance, it is a challenge because of how quick I am changing the medium through which I am communicating with you. Therefore, when we get to the bottom of that, we have to go back to where I started when I went out of my home with those two throw-away mobile phones and went to the Internet café. I just think the complexity of that should never be underestimated.

Q237 Colin Burgon: You have mentioned mobile phones and I noticed in the Metropolitan Police Service paper accompanying your letter of 5 October that you said that the use of mobile phones by terrorists as a means of secure communications is a relatively new phenomenon. Do you think you have, in the case of this new phenomenon, the necessary resources both in terms of equipment and personnel to handle this whole issue of mobile phones?

Assistant Commissioner Hayman: Yes, and it is not just of course the Police Service that contributes to the investigation, but it is other agencies that do. I am certainly not going to use that as an opportunity to pitch for more resources because I think what has been given to us at the moment is sufficient. The earlier points that Peter made that we do not just sprint at this and we have to be very methodical, too many cooks spoil the broth, I think, is a good way of describing that. I also think we need to be very measured in the way in which we start to develop our own strategies to deal with this. We have got to see how these things start to unfold. Is the mobile phone going to be redundant in a couple of years' time? For the moment it seems to be the main way of communicating. There is one particular case of allegations here of over 300 mobile phones with about 140 SIM cards, so in that particular case it is suggested that that was the main medium, but it may not be. What I do not think we should be doing is responding to what we see as being a problem now and we have to try and get ahead of the game here and try and identify what the new medium will be and then bring in strategies to deal with that.

Q238 Colin Burgon: With regards to your relationship with the network providers, we had an expert witness tell us, for instance, that, if it is a level one incident, an immediate threat to life, then usually they can let you know what you want within two or three hours. How important are, and how can you develop, these relationships with the network providers which seem to us, as outsiders, to be absolutely crucial?

Assistant Commissioner Hayman: Well, I would not want to go into too much detail here, but I think the headline would be that we are blessed with very good relationships, very professional, where the balance between the libertarian perspective and the subscriber as against the need for investigating the serious crime of terrorism is struck, in my view.

Q239 Colin Burgon: The expert that we listened to said something, and I would like you to respond to this. He said that the police or the people in charge who are responsible for this type of work send people on a two- or three-day course and then no further training is offered. Is that an accurate picture of your training of officers in relation to mobile phones or do you think it is a bit unfair?

Assistant Commissioner Hayman: I think the description is modest. By the time you have registered and had lunch over a couple of days, there is no input, is there? That would just be ridiculous. I think we would look at it as being a much longer period of training and of course, once you are involved in investigations, you develop your expertise in the field.

Q240 Colin Burgon: But you would agree that long-term investment and training are needed to ensure that officers keep up with the pace of technology?

Assistant Commissioner Hayman: Yes.

Q241 Colin Burgon: Is that a resource issue because I noticed earlier that you said you were not pitching for resources all the time?

Assistant Commissioner Hayman: We feel that the level of resources that we have got, certainly the Government's recent new money which has been allocated not just to the Police Service, but all the other security agencies, is sufficient and it is for us now to deliver outcomes which we have said we will be able to do.

Colin Burgon: I am sure the Home Secretary would be delighted to hear that!

Q242 Mr Browne: Mr Hayman, carrying on on the same theme, would you expand on the point you just made about the balance to be struck with mobile phones between the liberty of the individual user, if you like, and the access and the co-operativeness that you get from the phone operators?

Assistant Commissioner Hayman: As you know, the legislative framework demands certain thresholds to be met in terms of intelligence and any kind of intercept, or whatever else you are alluding to, maintains those levels of threshold. There is nothing you can do to bypass that, so, unless those things are in place, it is not a conversation, and I would say that is what you rely on.

Q243 Mr Browne: But you find that the phone companies understand the scale of the work that confronts you, that you do not feel you are constantly having to justify access in a way that is frustrating to you?

Assistant Commissioner Hayman: That is not even an issue.

Q244 Mr Browne: We have just spoken for the last half hour or so about technological requirements, whether it is computers or mobile phones, but is there a frustration for both of you that Parliament, when considering this 90-day detention period, does not fully grasp or the public do not fully grasp how technical by nature a lot of this investigative work is, that there is a conventional idea of an interview process where you follow the evidence and you have the experience and police officers who have got a lot of track record in this record has been overtaken by a far more sophisticated process where you are looking for needles in haystacks the whole time and that the legislation is not keeping up with that? Can you think, for example, of particular cases where just the technical requirements, leaving aside everything else, would in themselves justify keeping someone for three months just because of the sheer amount of material you have to sort through?

Assistant Commissioner Hayman: If we go into a different session, I can certainly share that, and maybe we have not made it strong enough, but in the early submissions and in the debates which went on in the summer/autumn, I know I certainly gave an example where the hard drive had been seized and, if the material had been printed, it would have equated to 66,000 feet of paper piled up and it is only luck obviously if you find the relevant material when you first start the interrogation of that material. If you got to the 65,000^th, you would be really unlucky, would you not? I think, and this may be completely pie in the sky, but I do think the general opinion of the public is informed by what they read and what they see in different mediums and, therefore, if they are informed by popular TV shows which depict investigations and that show, obviously because it has been focused more on entertainment than anything else, does not go into what we see as reality, that is the way in which public opinion is formed. I am not making a judgment about that, I am offering a commentary and I might be wrong, but, if that is the case and the majority of people are informed by what they read and what they see, from what I see and what I read, it bears absolutely no resemblance to what I see and experience every day at work.

Q245 Mr Browne: So, rather than having some Miss Marple figure who sort of comes to this amazing conclusion, you actually really need dozens and dozens of technical men and women, sitting there, sifting through acres of material and that is the changing nature of investigation?

Assistant Commissioner Hayman: Yes, we are building at the moment a new response to counter terrorism as part of our restructuring and we are looking at the functionality that is going to be required. I guess the breadth of the coverage that we now need in terms of skills profile is just unrecognisable as to what it would have been even five years ago, so the point I was making in answer to questions was that we are just desperate to try and get ahead of the technology and that is why we are working with the industry to try and understand what the technology is going to be in five to six years' time so that we can start preparing for it in our own plans now rather than the sense, it has to be said, that we are always trying to play catch-up.

Q246 Mr Browne: Mr Winnick right at the beginning was saying, "Why stop at 90? Why not have 100 days, 120 or 140 days?" That is a reasonable point and I am not trying to lead you to an answer one way or the other, but, if you have 66,000 pages of evidence to go through and it gets even more sophisticated and even more complicated, would it be reasonable to say, just from a straightforward crime prevention point of view even if you leave aside for the moment civil liberties, that there may be periods where even 90 days is not sufficient to go through the amount of material you need to in order to reach the nugget that Mr Clarke talked about?

Assistant Commissioner Hayman: Maybe, maybe not. We are going back into the sort of previous discussion where we were asked for a judgment and, on balance, three months. I would start to get an uncomfortable feeling if it goes beyond that, it is unreasonable. You have focused on the fact that that is the only line of enquiry we had available to us for that investigation, in which case it would be difficult to get it maybe in 90 days, but one would hope that there are other lines of enquiry which are there and, if they are developed, would give you grounds for charging or disposing in another way and you would not just have to rely on that 66,000 feet of paper.

Q247 Mr Malik: I would just say that the interference we heard earlier on was my phone and it was a text message from the Home Secretary who says, "Thank you, Mr Hayman"! On a serious note, I think a thank you is owed to you, to the Met, and in particular to the way you have co-operated and worked with West Yorkshire, my particular constituency, which had Mohammed Sidique Khan who was the leader of the suicide bombers. I think we are all grateful to you for the work you have done and the work you are doing. You talked earlier on about trusting your integrity and opinion and I voted for 90 days, whereas the majority of my colleagues here did not, but I think we all trust your integrity irrespective of which way we voted on that particular point. The question really is about the current system of judicial oversight of pre-charge detention. There is this kind of accusation that really it is some kind of rubber-stamping exercise because it is the prosecution who alone present their case to a judge to authorise the extension. Do you think that the current system can be fairly described as robust or is it indeed this kind of rubber-stamping?

Assistant Commissioner Hayman: Peter is probably more appropriate to answer that from his perspective, but I have gone on public record many times, saying that this is just unfair, this is not a walk in the park. You go in front of a judge and, regardless of your view on the case, the judiciary have got a role to play and they are very probing in their scrutiny of the evidence and, if anyone thinks this is a nod and a wink to get through that process, I think that is an insult both to the judiciary and ourselves.

Deputy Assistant Commissioner Clarke: Again I do not recognise the expression "rubber-stamping" in respect of the process of the application for warrants of further detention which is gone through. This is a very meticulous and detailed process and, most importantly, it is an adversarial process. The suspects are represented in court and the case is argued out in front of the district judge, so to suggest that somehow that then is a rubber-stamping, I find strange. Again, when I was giving evidence here before the Joint Committee on Human Rights last October, I was asked if I could recall any occasions on which our applications had been rejected. I could not then, and I cannot now, recall one where the application in totality was rejected, but I can think of many occasions where we have asked for perhaps four or five days and the district judge has said, "No, you have 48 hours. Come back after 48 hours and show us what you have done with the time which the court has granted". These whole issues are looked at with great care, in my experience, and I have talked to district judges about this informally and they are utterly robust in their examination of the cases put before them. I think also the fact that we have not had total rejections of our applications for warrants of further detention is an indication not of rubber-stamping, but it is an indication of the care with which we put those applications together always in concert with the CPS. We always consult with the CPS, we examine the material, and we discuss with them whether an application would be justified and, if it is not, we do not make the application. It is as simple as that.

Q248 Mr Malik: It has been put to us by previous witnesses that evidence obtained from a person who has been held for, for example, more than seven days in custody would not really be taken into consideration by an English judge and certainly not that which is longer than 14 days. The question really is: how confident are you that pre-charge detention for more than 14 days would be consistent with the European Convention on Human Rights?

Deputy Assistant Commissioner Clarke: Having seen that evidence that was given previously, we took counsel's opinion ourselves because obviously this is a matter of some legal technicality and I think there are two issues which flow from counsel's opinion which we have. First of all, the cases which were cited to this Committee as suggesting that periods of detention actually for less than 14 days were incompatible with ECHR, counsel tells us that those cases are not authority for the proposition that 14 days' pre-charge detention with appropriate judicial involvement is incompatible with the European Convention, and the key point there is judicial involvement. Of course we have to go before the district judge after 48 hours to apply for a warrant of further detention and I think it is a key point that is often missed in this discussion, that this is not a police power, this is a judicial power exercised on application by the prosecuting authorities, so counsel's opinion on this is that this is not incompatible with ECHR so long as there is appropriate judicial involvement. Then on the question about the admissibility of evidence obtained after 14 days, again counsel says that those cases which were cited to this Committee are not relevant to the question of interpretation of evidence obtained after a lengthy period of detention and counsel makes it absolutely clear that you have to take the entire context into consideration, and that would be a matter for the tribunal of fact, ie the court, to decide whether or not evidence can be relied upon.

Q249 Mrs Cryer: Can I seek further clarification on the questions that Mr Malik has put to you. We had a witness, Mr Owen, before us earlier this month and he observed that he found 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. Therefore, do you think that evidence obtained after a person has been held for longer than 14 days without charge is likely to be admissible in an English court?

Deputy Assistant Commissioner Clarke: Again this is clearly a matter for some legal debate, but, if I may quote a sentence here from counsel's opinion on this very point, he says, "So long as the detention is lawful and there has been no oppression or unfairness, there will be no reason to exclude evidence obtained after 14 days merely because of the time when it was obtained. The weight which is to be given to it will depend on all the circumstances of the case". That is the best and the current opinion which we have from counsel.

Q250 Mrs Cryer: So you disagree with what Mr Owen said?

Deputy Assistant Commissioner Clarke: Well, it is not for me to agree or disagree with learned counsel; it is for me to say that we have sought advice on this because clearly this is an important matter that was brought before the Committee, so we have taken legal advice ourselves so that we could discuss this with you here today.

Assistant Commissioner Hayman: It must be stressed here that we have got two separate counsel offering different opinions on a set of circumstances, which is not unusual!

Q251 Mrs Cryer: Can I also ask both of you for your views on the dangers to community relations arising from someone being released after a long period of detention without charge and, when you were preparing your submission regarding the request for 90 days' detention without charge, did you seek information from, for instance, Colin Cramphorn, who is the Chief Constable of West Yorkshire where the young men came from involved with the bombing? Did you ask his opinion due to the fact that he would be left keeping the peace during the 90-day period?

Assistant Commissioner Hayman: Colin is a very well-respected colleague with experience in working in Irish terrorism cases, so he would be someone clearly we went to. I think it is a wider point really. I think the issue of our relations with all sections of the community has got to be at the heart of all of our work, whether it is following detention or whether it is following investigation or trying to actually prevent. One of the things we know, because we have responded, hopefully in the public's opinion, in a very positive way, is that we have put a lot more effort and a lot more resources into developing better community ties, particularly with the Muslim community, but actually I would not want to single out that community over and above any other. Success for us has surely got to be a greater transparency and openness without contravening any kind of confidential material where the community understand what we are doing and why we are doing things, so there is, therefore, an acceptance of the need to do it rather than things being very sort of secretive where people do not understand why things are occurring which then causes conflict. I think that is a very, very important point that we have to have very much in our minds.

Q252 Mr Winnick: When it came to the debate, or just before the debate itself, in November and prior, what was the position of ACPO in contacting or encouraging senior police officers to contact the Member of Parliament in a particular area?

Assistant Commissioner Hayman: Certainly I am aware of the letter that was sent by the Chair of TAM, Chief Constable Ken Jones. I cannot recall the exact detail of it, but my recollection of its tone was that in those circumstances where Members of Parliament wanted more information to understand the detail of what was being submitted, then that might be an option for local chief constables or local commanders to avail themselves for that kind of briefing. Certainly the intention, as is my understanding, was to do nothing more than to give the opportunity for as much information to be available to enable people to inform their own opinion so that they can respond accordingly.

Q253 Mr Winnick: So how did the process work? Did the senior police officer in a given area phone or leave a message for the Member of Parliament to contact him or her?

Assistant Commissioner Hayman: I do not know. I guess whoever responded to that would react in different ways. I would imagine that most, if it was a divisional commander or a chief constable, would have very healthy, productive relationships where it would not be amiss for people to be contacted by phone or in person and maybe that is what happened. On the other hand, maybe that did not.

Q254 Mr Winnick: Would you describe that as a sort of lobbying of MPs?

Assistant Commissioner Hayman: No.

Q255 Mr Winnick: How would you describe it?

Assistant Commissioner Hayman: As part of an ongoing relationship that I always enjoyed when I was the Chief Constable in Norfolk where, having a relationship with my local Members of Parliament, it would be inconceivable not to avail myself for opinion not just about that subject, but about the wider subjects, whatever they might be. For us to be in a position, Mr Winnick, where we were concerned about having conversations with Members of Parliament on any particular topic, be it ahead of a vote or ahead of any other debate, I think would be a retrograde step.

Q256 Mr Winnick: Do you feel that, on reflection, it might have been counterproductive that Members of Parliament, rightly or wrongly, came to the view that pressure was being put on them?

Assistant Commissioner Hayman: Did you feel that then?

Q257 Mr Winnick: Do you think it was counterproductive, what actually happened, in the sense that some MPs, perhaps not many, nevertheless felt there was some pressure which was being put on them to vote according to what the Government wanted?

Assistant Commissioner Hayman: I was not being disrespectful when I posed that question because I cannot speak for other people, but I can ask you that question. If you feel that way, I can then have a conversation with you about it, but I cannot second-guess other people.

Chairman: Colleagues, as I indicated earlier, we are now going to move into private session so that we can now go through some of the more detailed information that has been offered to us.