Examination of Witnesses (Questions 1-19)
RT HON
JOHN DENHAM
MP AND DR
ROBIN JAMES
29 NOVEMBER 2005
Q1 Chairman: Welcome. At the close of
the last Parliament the Procedure Committee, as you are well aware,
looked into the operation of the sub judice rule and published
a report which has not yet been debated or approved by the House.
In the light of further representations that we have received
and a request we have received from the Liaison Committee,[1]
we have decided to revisit this area in particular in relation
to coroners' courts, but also looking at the issue again, so nothing
is ruled out in this second visit to this area because the operation
of the sub judice rule is giving cause for concern for
a number of Members in carrying out their constituency duties
as well as the concerns you have expressed from a select committee
point of view. Thank you for coming and offering to give evidence.
Although we have no television cameras here, we are on a webcast
so everything that is said will reach a wide audience. We are
also anxious to see that we obtain as much evidence as possible
to assist us with our deliberations. If, towards the end of your
evidence, you feel it would be helpful to allude to a specific
sub judice case we are happy at that point to resolve to
go into private session so that any evidence you may care to give
which might fall foul of that rule is not denied us.
Mr Denham: Thank you very much
indeed. I very much welcome this inquiry. If I set the scene very
briefly, after the London bombing on 7 July the Home Affairs Select
Committee decided to have a one-off hearing in September, anticipating
that we would want to look at the broad state of affairs two months
after the bombing. There then was the attempted bombing on 21
July and the shooting of Jean Charles de Menezes on 22 July, so
as we approached the September meeting we wanted to give all of
those issues as good an airing as we could. The difficulty that
faced the select committee was that we were advised very clearly
that almost everything to do with the three events, 7, 21 and
22, was sub judice by virtue either of them being the subject
of coroners' courts because of course 52 people were killed on
7 July, or because people had been arrested and charged in relation
to the 21 July or because it was at least possible that charges
might be brought at some time in the future against some of those
involved in the shooting. We had therefore some difficulty in
preparing the hearing in September. We looked at the very helpful
report that this Committee produced last year and it was very
clear from that that the 2001 resolution gave the chairman discretion
on the sub judice rule in cases of national importance.
This was clearly a case of national importance. However, the practical
problem that we found was that there was no guidance available
to myself as chairman or to the clerks who were advising me on
how exactly we should act once we had decided it was of national
importance. In effect, I think we came back to doing no more than
we would have done if there had not been a 2001 resolution. The
advice erred strongly on the side of caution. There is no criticism
at all of the clerks who were very helpful throughout, as was
the Attorney General in his role as the supervisor of prosecutions.
I felt though that in practice the committee was not able to ask
a number of questions that were being very widely discussed in
the media that would have been helpful to ask. My particular concern
is that when something of this importance happens, if the House
of Commons becomes the one place where the issues cannot be aired
because they are being widely discussed in the media, it seems
to me that it damages the credibility of the House of Commons.
That is really why I wrote on behalf of the committee to the Liaison
Committee in the first instance and said could this matter be
looked at again. I am happy to go into more detail about some
of the things we would have liked to ask and the way the rules
were applied.
Q2 Sir Robert Smith: You mentioned the
issue of national importance. Do you think any guidance to chairmen
on how that could be defined would have been helpful?
Mr Denham: I do not think we had
any difficulty in deciding that this was an issue of national
importance and in this particular case it was pretty self-evident
even if it had just been the tragic shooting as an isolated incident.
Even that I think we would have seen as an issue of national importance.
Our problem was deciding what it was legitimate to do once we
had decided it was of national importance. Clearly there was already
a number of people who had already been arrested and charged.
We would not have wanted to do anything that could prejudice the
trial of those individuals. That would be completely unacceptable.
However, not to be able to discuss some at least of the detail
concerning the shooting because it was in front of the coroner's
court and because it was just theoretically possible one or more
police officers might have been charged at some point in the future
seemed to me to be too limiting on such an important issue. Similarly
on 7 July. So far as everybody knew the perpetrators were dead.
It was put to us strongly that there might be subsequent arrests
and charges and we should therefore avoid prejudicing those. That
seemed to me to be too tight a restriction on what we could ask.
Q3 Sir Robert Smith: Where did the subsequent
arrest advice come from?
Mr Denham: That came as I recall
in discussion with clerks when we were seeking background advice.
That was the most substantive point. It also was the case of course
that the 7 July was subject to a coroner's inquiry.
Q4 Sir Robert Smith: The Attorney General's
evidence was that the moment of arrest was the point. The fact
that someone may be arrested in the future has not normally been—
Mr Denham: I am inclined to agree.
Q5 Sir Robert Smith: If we split the
three things apart, there are obviously people arrested, facing
charge. That is probably the most difficult one and you probably
felt you would not want to tread in that area. Then there is the
slightly grey area where people might be arrested, where in the
past we have not restrained ourselves. Then there is the coroner's
inquiry which was a part of the report. That was the grey area
about when that trigger point should be and whether there was
scope for redefining it because obviously there can be a long
delay from when they open to when there is a chance of being prejudiced.
Mr Denham: Indeed. There were
two types of coroner's inquiry going on. One was for 7 July where,
at least in terms of the immediate perpetrators, there was not
going to be much doubt about how people came to be killed. There
was also the coroner's inquiry into the shooting on 22 July which
clearly might play a very important role in identifying responsibility.
I would put it to this Committee that in both those cases it would
have been in the broad public interest for our committee to have
been able to explore those events in some more detail than we
were able to.
Q6 Andrew Gwynne: What action did you
take before and during the evidence session to ensure that the
sub judice rule was respected?
Mr Denham: Prior to the public
session, I went through the issues with members of the committee.
Dr James had also provided quite a helpful note which, if you
like, we can share with the Committee, suggesting the areas that
should not be covered and those that could be covered. We went
through that in the private session. In the public session, I
read out a prepared statement to the press and public explaining
the sub judice rule. In practice, once the session was
underway, nobody came near to flouting the rule. Indeed, the truth
is, rereading the transcript, we probably stayed incredibly within
the comfort zone. This was one of the difficulties. If you have
very restrictive and cautious advice, members then probably do
not go anywhere near breaching that advice. I suspect there were
many things that could have been asked in the committee session,
even within the guidance we had been given, that were not asked
because people were so nervous about making a mistake.
Q7 Andrew Gwynne: In the House of Lords
the sub judice rule has been interpreted less strictly
than in the House of Commons. The shoot to kill policy has been
discussed in the House of Lords. Are you concerned by this?
Mr Denham: I am. It points to
one of the flaws. The argument in part about sub judice
is that things that are said in the House of Commons when reported
outside are likely to have a particular weight and therefore are
more able to prejudice a trial than things that are said widely
in the media. The fact that that does not seem to be a problem
with the House of Lords suggests that that historic view, if it
ever was true, is no longer true and that we are less likely to
do damage than has been the perceived wisdom in the past. The
question is: is what we do proportionate to the importance of
the issue that we are discussing.
Q8 Mr Wilson: In your opening remarks,
you said you took quite a bit of advice and, as I understand it,
you took advice from the Attorney General, Mr Speaker and House
officials. Have I missed anybody?
Mr Denham: No. There would be
a number of House officials involved.
Dr James: That would be principally
the Clerk of the House who, as this Committee will be well aware,
is the House's chief adviser on procedure and the Clerk of the
Journals who specialises in sub judice and privilege issues.
Q9 Mr Wilson: Did you find that the advice
they gave was all pretty similar or was there a range of advice?
Was it something you could pick and choose from?
Mr Denham: The advice was pretty
consistent. It will be no surprise that Mr Speaker's advice was
consistent with the advice that I had had from the House officials
because I am sure he would have taken the same briefing as me.
The Attorney General was very consistent with that advice as well.
He had some broader concerns about other terrorist cases. He was
concerned that we should not prejudice those by raising them in
the session but that was the only new issue he raised.
Q10 Mr Wilson: Can I tease out of you
a little more detail about what the sub judice issues were
facing the Committee?
Mr Denham: The sub judice
issues were, one, that we should not prejudice criminal actions
that were going to proceed in the courts. The second was that
we should not, in a more general sense, offend the sub judice
rule on matters that were going to be in front of the coroners'
courts and the third was the suggestion that we should avoid prejudicing
matters where charges might be laid in the future, particularly
in relation to the shooting but also possible arrests under the
7 July bombings. Those were the three areas of concern.
Q11 Mr Wilson: How did you make the committee
aware of those issues?
Mr Denham: As I recall, we did
circulate members in advance of the meeting to warn them that
there was going to be an issue and then it was discussed in a
private session before the main hearing.
Q12 Mr Wilson: Did they support those
objectives?
Mr Denham: I think they accepted
the guidance that they were being given. I do not think there
was anybody in the committee who wanted to have an argument about
it before we went into the main session. Equally when we discussed
this matter after the hearing, everybody agreed that I should
write to the Liaison Committee because everybody felt that we
had not done as good a job in airing issues in public as they
would have liked.
Q13 Mr Wilson: Do you think there was
a difference in feeling at the end of the meeting from the start
of the meeting in the acceptance of what you could and could not
ask?
Mr Denham: The committee is very
disciplined and if the committee gets advice from the clerks as
to what is permissible the Members I have on the Home Affairs
Select Committee are going to follow that advice because they
will trust the source of it. The frustration perhaps is that we
were not able to get a different set of advice. Had there been
some clearer guidance to the clerks, we could have had some advice
that would have enabled us to go further.
Q14 Mr Wilson: What do you think the
outcome of all this will be? Do you think there will be an effect
on the final report you are able to present?
Mr Denham: This was a one-off
hearing and therefore it was particularly important that we aired
the issues in public. If we had been carrying out an inquiry over
six or seven sessions in the normal way, we might have taken the
advice of the Procedure Committee and met to hear some evidence
in private. It is a little difficult to say whether, had we been
producing a report, we could have produced a report having had
some sessions in private, but we were having a one-off hearing
which we do on a number of issues from time to time and therefore
it made no sense to have a private evidence session.
Q15 Rosemary McKenna: All the advice
you were given was based on the resolution of the House of 2001?
Mr Denham: Yes.
Q16 Rosemary McKenna: Were you aware
of the Procedure Committee's subsequent report, although it had
not been before the House?
Mr Denham: Yes, we were. We found
it very helpful up until, if you like, the last point in the proceedings
because the Procedure Committee report referred to the 2001 resolution,
so it was very clear this was a matter of national importance.
It was very clear therefore that the chair had discretion. It
was very clear from your report that I was the chair for the purposes
of that resolution, although it advised me to talk to Mr Speaker.
However, the implication of the 2001 resolution is that, if it
is of national importance, you can in some way vary, waive or
ignore the sub judice rule, but it does not tell you how.
The clerks had difficulty in advising us what bits of sub judice
we could ignore because it was of national importance. In practice,
I think the advice we had from the clerks was almost identical
to what we would have got if there had not been the 2001 resolution.
What I hope this Committee might consider is giving some guidance
as to, once you have decided it is of national importance, the
ways in which sub judice might be varied by select committees.
Q17 Rosemary McKenna: If this report
said that the select committee chairs would have the power to
exercise chair's discretion, that would not be sufficient?
Mr Denham: That is the way I read
the report but it does not tell me what I can then do. As the
chairman I would not want to go so far as to ruin the trial of
the people who had been arrested for 21 July. When it came to
the question of the shooting, it was very difficult to be clear.
In principle, we would have liked to have set aside the fact that
the shooting was subject to the coroner's court, at least to some
degree. How far I could go in ignoring the sub judice rule
was not at all clear.
Q18 Rosemary McKenna: What advice would
you like this Committee to give? Should we say that in those specific
instances where it was of national importance—?
Mr Denham: For example, if we
had had something that said to the committee, "You need to
some extent to set aside sub judice but you need to be
careful about the risk of prejudicing a trial. Therefore, committee
witnesses should avoid making direct allegations or implications
against named individuals" and had we had that sort of discretion
we probably could have asked questions about the intelligence
on the named suicide bombers, information about their foreign
travel, known associates, knowledge of how they were recruited,
if any, how knowledge of that compared with other studies by the
intelligence services and questions about methods used by the
suicide bombers. There is a whole series of questions which we
felt unable to ask because we felt that would breach the sub
judice rule as it was interpreted to us.
Q19 Rosemary McKenna: It is a different
interpretation of the sub judice rule?
Mr Denham: It is a narrower interpretation,
looking at the 2001 resolution which says that, if it is of national
importance, I as the chairman have the discretion to set it aside
but it does not help decide what I can and cannot do. Nobody believes
the 2001 resolution simply means you can ignore sub judice
and be as irresponsible as you want and nobody would want to be
that irresponsible. It is giving some clearer guidance on how
to operate the 2001 resolution in practice that is needed.
1 Written Ev 31. Back
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