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7 Dec 2006 : Column 163WH—continued

I suppose that my right hon. Friend was echoing the Home Secretary’s rather sceptical comments in the Queen’s Speech debate to the effect that intercept was not a “silver bullet” and that it could not get around the need to take difficult decisions on matters such as pre-charge detention and control orders. I certainly agree that it is not, by any stretch, a complete panacea in terms of counter-terrorism policy, but it would significantly strengthen the prospects of successful prosecutions and of putting terrorism suspects behind bars as the result of fair trials and judicial sentences,
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rather than without any form of judicial process. As I mentioned earlier, my Committee will shortly be considering possible ways in which the ban could be relaxed, and I would be interested to hear the Minister’s comments on the issue, including on the timing and nature of any work that the Home Office is doing on it.

When we came to consider alternatives to lengthy pre-charge detention, we were struck by what the DPP told us in an informal meeting. He told us that in most terrorist cases the threshold test for bringing charges—the test of reasonable suspicion—was used on the basis of some evidence. That is in accordance with the code for Crown prosecutors, which provides for the test to be applied when it is proposed to keep the suspect in custody, but the necessary evidence to apply the full code test is not yet available. We were therefore somewhat surprised that the police had said in evidence to the Home Affairs Committee that the threshold test was not applicable in terrorism cases. In their response to our report, the Government said that the test

They added that because it will not apply in all cases,

We were impressed by what the DPP told us about the threshold charge system. The use of the threshold test did not feature in parliamentary debates on the extension of the pre-charge detention period, which is a pity because it has to be an important and relevant factor. Perhaps my hon. Friend the Minister can clarify the differences between the evidence given to the Home Affairs Committee, to our Committee and in the Government’s response to our Committee about the extent of the use of the threshold test in terrorism cases. If the position is as he said it is in his response to our Committee, I would also invite him to reconsider the Government’s position that the use of the test is not relevant to the length of the pre-charge detention period. In our view, it provides an important way to resolve some of the issues that gave rise to the debate over the extension.

Mr. Grieve: I, too, look forward to some clarification from the Minister on this point. I think that one reason why the issue was not raised in debate was that it was so obvious—certainly for someone like myself. The threshold test issue has been around for a long time, and in the ordinary criminal cases in which I have been involved as a prosecutor, it is perfectly clear that the decision to charge is often taken on limited evidence, with the certainty in the background that a great deal more evidence will be obtainable thereafter. It never crossed my mind that terrorism cases might have to be subjected to some different regime. That, I think, is why the issue simply did not crop up in debate.

Mr. Dismore: I also suspect that many of those who were involved in the debate did not have a chance to research the issue and, probably more to the point, were probably not even aware of its existence. Our discussion with the DPP left us very impressed with the opportunities that the system would offer, including the fact that a charge can be levelled on the basis of suspicion when the evidence is there at a very low level, on the understanding that the way in which terrorism
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cases are investigated will mean that huge amounts of evidence will become available as the case progresses and will ultimately justify the full charging test. The hon. Gentleman has therefore made an important intervention.

Subject to adequate safeguards, we also recommend a relaxation of the existing rules on post-charge questioning, including the possibility of a court being permitted to draw adverse inferences from a refusal to answer questions. That would be compatible with human rights law and would be another useful tool in dealing with some of the concerns that the police have about the need to extend the period of pre-charge detention. My right hon. Friend expressed some scepticism about that proposal and, again, it is not a panacea in itself, but it would be yet another of the reforms that we could introduce in the criminal justice process to strengthen the hand of the police.

When I met the head of the anti-terrorism unit, long before all these issues came along, I looked at some of the unit’s many criticisms of the process, and one of them was that it could not interview suspects after charge. My right hon. Friend may well be right and suspects may not answer questions, but the fact that a court could draw inferences from that, as we think it should be able to do, would very much strengthen the hand of the prosecution when suspects do not co-operate. At the moment, such an inference cannot be drawn. In their response to us, the Government say that they will consult on a review of the Police and Criminal Evidence Act 1984, including on this point, and I would be grateful if my hon. Friend the Minister could address the issue and let us know what progress has been made.

Another issue that we highlighted was raised with us by the DPP and privately with me on earlier occasions by the anti-terrorism unit. It related to the incentives to those who may be on the periphery of a plot to give evidence. The DPP calls for a more structured procedure, such as systemising lower sentences and proper witness protection arrangements, and we thought that the Government should urgently consider ways of enhancing incentives to give evidence, with the appropriate safeguards that one would expect, to ensure that some of the problems that have arisen in the past—for example, with the supergrass trials—are not repeated.

We share the Home Affairs Committee concern that judicial oversight of pre-charge detention is not adequate, although we do not, as we explained, agree with its proposals or with Lord Carlile’s that such oversight be carried out on the basis of an investigative approach. That would create major problems as regards a detained person’s right of access to a court to challenge the legality of his detention. Article 5 requires judicial control over the extension of pre-charge detention in the full sense of an adversarial hearing. In their response to our report, the Government say that they are carefully considering the proposals of Lord Carlile and others on judicial oversight. Again, perhaps my hon. Friend the Minister can tell us where that thinking has got to.

There is no doubt that the subject that we are debating is fundamental to the nature and future of our society. I am sure that my right hon. Friend would
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agree that both Committees recognise the seriousness and difficulty of the issues that the Government face in constructing an effective counter-terrorism policy while at the same time observing the essential standards of the rule of law and human rights. I hope that, for their part, the Government recognise that both Committees, from our different perspectives, are engaging constructively with those questions in our work and seeking to make positive proposals to assist with that policy. I hope that the Government will become rather more receptive to those proposals than they have been in the past. I also hope that they are persuaded that, in introducing new or consolidating legislation during this Session, they should allow sufficient time for proper parliamentary consideration and scrutiny. By now, experience must have demonstrated to them that that would be in their interests, as well as those of Parliament. More important, it would be in the interests of the country and of keeping it safe from terror.

3.19 pm

Patrick Mercer (Newark) (Con): It is a pleasure to follow the hon. Member for Hendon (Mr. Dismore), and I thank him for the report that his Committee has prepared. I also congratulate the right hon. Member for Southampton, Itchen (Mr. Denham) on a very fine and incisive opening speech.

On Monday, I spent some time at Belmarsh prison and had the salutary experience of briefly glimpsing a 32-year-old man who was starting a 40-year sentence. Whatever one thinks about the deliberations of the Government and the Opposition parties on these issues, or about the rights and wrongs of the crimes committed by the people we are discussing, it is none the less a chilling fact that, for the rest of his life, that man will spend 19 hours a day locked down. I want to record my thanks to the governor and staff of Belmarsh for the work that they do and the extremely humane way in which they handle the prisoners. I was terribly impressed.

It is tempting for someone like me, who has spent a long time fighting terrorism at the sharp end, to think that he has the answers and can, as a practitioner rather than a theoretician, say, “It wasn’t like that in my day; this is what we did in hot blood, on the end of a rifle or a baton, to people who had tried to carry out particular acts, and who indeed killed friends and colleagues.” I would not pretend for one moment thatI have the answers. I was extremely interested to hear the right hon. Member for Southampton, Itchen talking about witnesses who have long service and experience in Ulster and who said that there is no difference between what happened in the three decades of that campaign and what is happening now. There are huge differences and people with the sort of experience that I have could be drawn down very wrong avenues, to make some very wrong conclusions. None the less, there are valid comparisons to be made, andI shall ask the Minister a couple of questions; some of the matters on which I shall ask him for illumination arise from my practical experience, and some are based on experience that I gathered in later years, in what I hope was a more mature way than when I was a young, roaring infantry officer.

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A panoply of ideas has been put forward to try to make pre-charge detention more or less effective—we have talked, for instance, about intercept; although we have not mentioned it yet, the report mentions the business of preferring a lesser charge; and post-charge questioning is another such idea—but anyone who has seen those things in practice would not begin to think that any of them is a silver bullet, to borrow the phrase. None the less, I think that they are all useful tools, which may make it possible not to have to extend the period of pre-charge detention. Anyone who argues that the problems can be solved with any one tool is wrong.

My first question to the Minister arises from the fact that I disagree slightly with the right hon. Member for Southampton, Itchen about the business of earlier arrests. My experience in Ulster was that we frequently carried out arrests that were referred to, rightly or improperly, as preventive arrests, at an early stage of the terrorist process. The devices that we were dealing with were unlikely to kill more than, say, dozens of people—and clearly, dozens was too many, but none the less a 1,000 lb bomb in a crowded city centre would kill a lot of people. The only devices that have been successfully detonated so far in our current campaign against Islamist fundamentalism are similar.

I fully appreciate that the young man whom I talked about earlier is serving a 40-year sentence for tryingto design—forgive the phrase—weapons of mass destruction, dirty devices and the like, but I ask the Minister to be clear and to throw some light on the business of why, if we were arresting IRA terrorists at an early stage, we did not then feel the need to talk about such judicial oversight as has been discussed by the right hon. Member for Southampton, Itchen and, very eloquently, my hon. Friend the Member for Beaconsfield (Mr. Grieve). Where does the difference between the two lie, and why should it apply? In my day, we had seven days to detain those people; that was all. As far as I can remember—I should not want to suggest that I was an expert, having been very much at the blunt end—we always managed to produce a successful charge against terrorists within seven days. My view was that when we went to 14 days life would be made slightly easier for counter-terrorism in all its styles, but I began to quail when we moved to 28 days, let alone the proposed 90 days.

I am probably arguing against myself, but perhaps the Minister can help me with this one. I thought that one of the arguments that might be made for a 90-day period of detention, or even more, was about contamination. That problem is something that we did not experience at the hands of the IRA; however, most notably after 9/11 in America, several hoax and genuine threats of the use of contaminative agents of one sort or another have been made. They make it extremely difficult to get to the scene of the crime. I understand, although I do not necessarily accept, the arguments about de-encryption of disks, hard drives and the rest, but I wonder why the Government have not mentioned this issue. It is probably not helpful of me to say it, from the Opposition’s point of view, because I find it quite persuasive. The Minister looks a little confused, but I should be interested to hear his views.

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One of the arguments that we have deployed, particularly on the 90-day detention period, is the argument of resource. I think that the Government made the case extremely badly this time last year, and I have no doubt that we shall return to it, either in the fullness of time or, more sinisterly, hard on the back of the next incident, which is coming, I suspect, shortly. May I have clarification from the Minister that he has looked into the argument closely, and can he convince me that if a number of terrorist suspects with overseas connections are held and there are difficulties with translation, encryption, hard drives or all the other things that we have talked about before, the argument is not actually just about resource? Could not we achieve our aim with more police, legal officers and analytical experts, and if our security forces in their broadest sense were properly resourced—as they would have been if we had taken the warning of 9/11 properly, sensibly and maturely, and begun to expand our security forces as we should have done? The Minister has heard me make this argument many times before. Can he reassure me that the argument founders, or is it still a live and valid argument?

My next point is about intercept. It is terribly important to try to divorce it from the campaign in Northern Ireland. I hope that I am not compromising anything by saying this, but I think that it is now widely known that our most active source of covert intelligence against the IRA was intercept, which was used against what used to be called citizen band radio. That is no longer really very relevant. I am talking about 10 or more years ago, when it would have been disastrous to the security forces’ efforts if that style of intelligence gathering had been compromised. I am not convinced that we have managed to pull ourselves out from under the shadow of Northern Ireland. I continue to be concerned about the fact that in recent conversations with Greater Manchester police, officers have said to me, “Please understand that we desperately need intercept evidence to be made admissible. Currently on a regular basis we are turning back individuals, mainly from Manchester airport, who are hellbent on killing themselves in one or another theatre of operations abroad, who have come to terms with death, but whom we can arrest only on lesser charges. They end up with a £50 fine in the magistrates court, at best, and then we return them to the community, prepared to die, at ease with themselves, and determined on their course of jihad. We need desperately to be able to use intercept to prosecute these people—to nail them and send them down.”

I find that desperately persuasive. Those are police officers. None of us in the House is doing what they do. We sit on comfortable seats in warm buildings every day of the week, while those people are out risking their lives, trying to prevent gangsters and thugs from carrying out the inevitable suicide attack, in this case in the centre of Manchester. I simply do not understand why the intercept case is not being pursued with much greater energy and determination by the Government. I should be awfully grateful for a reply about that from the Minister.

My next point is about lesser charging. In my younger days, I was probably the victim of Royal Ulster Constabulary blarney: if it held a terrorist suspect beyond the seven days, it did him for tax
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evasion, bald tyres or something like that. I suspect that that never really happened—that it was a bit of Irish myth that one tended to believe as an ordinary soldier. However, I am extremely impressed by volume I of the Home Affairs Committee report, paragraph 103 of which states:

As far as I am concerned, that conclusion closes the argument. It impresses me hugely and I am grateful to the right hon. Member for Southampton, Itchen for coming to it. I also read the report’s conclusionson post-charge questioning. To my mind, they are fascinating. As paragraph 104 makes clear, the legislation states:

or it is

That strikes me as very applicable. I challenge slightly what the right hon. Gentleman said about the vast majority of individuals remaining silent after arrest. Having visited a trial currently going on at the Old Bailey, my impression is that that is not the case. I should be interested if the Minister threw some light on the issue. If post-charge questioning is relatively easy to do and the legislation exists to do it, why are we not doing it? Would it not help?

Mr. Dismore: The key difference between the two reports is that the Joint Committee on Human Rights particularly emphasised the need for a court to be able to draw adverse inferences; the Home Affairs Committee report did not focus particularly on that issue. Being able to draw such inferences makes a difference: if a suspect knew that if he refused to answer questions, the judge would say to the jury, “He wouldn’t answer; members of the jury can decide why he didn’t”, that would concentrate his mind. If he did not answer, the jury would know where it stood.

Patrick Mercer: That intervention is well made, I am sure. I have no doubt that better trained legal minds than mine will clear up that point.

The main point is about the 28 days or 90 days. I shall be brief about that because to my mind it is very simple. According to my experience, the extension to14 days seemed reasonable and probably desirable. I found 28 days difficult to swallow and 90 days impossible to swallow.

My case is simply this: in 1975, I arrived in Northern Ireland as a second lieutenant and came across men on the street who had just been released from internment. They struck me as reasonable and balanced. If we looked at their backgrounds or questioned them carefully, we found that they were certainly republicans.
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Their families might well have had a history of violence, and they were certainly sympathetic to the cause.

I am generalising hugely; there were others, of course, who clearly were bad hats. However, many had been changed from being reasonable men into extraordinarily angry men, from principled men into firebrands and from passive men into active supporters and recruiters for a violent cause. I worry very much that if we go beyond the current limits, which I can just about take, we will be in danger of creating a whole new generation of recruiting sergeants—people who will move back into the vulnerable communities from which they have been drawn in the first place. If they endure 90 days in the sort of conditions that I have just seen in Belmarsh, where individuals on remand are treated in precisely the same way as hardened criminals who have been found guilty and face a 40-year sentence, they will go back to their communities and preach the word. Alternatively, they will be used as icons for those who choose to preach the word in a most ardent and articulate way. That would be a huge mistake and weaken our efforts against terror. Rather than helping, it would make things more difficult.

3.35 pm

Mr. David Winnick (Walsall, North) (Lab): The hon. Member for Newark (Patrick Mercer) certainly has more extensive and recent military experience than I. We listened with great interest to what he said about his experience in Northern Ireland.

I am glad that we have the opportunity today to discuss the two reports. I am a member of the Home Affairs Committee, and I enjoyed—if that is the right word—our inquiry. At the end of the day, I could not go along with the report; I voted against, for reasons that my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) knows about. However, I hope that he, other members of the Committee of all political persuasions and I came to certain common conclusions.

There is a difference between the IRA murders and the terrorist threat that we now face. The IRA murdered indiscriminately; for example, 21 people were murdered in Birmingham, quite near my constituency, in November 1974. The IRA certainly did not take steps to minimise the murders. There was alsothe Guildford bombing, and the bombing on Remembrance day 1987 in Northern Ireland, where most of the atrocities were committed. Of course, there were also loyalist murder gangs who murdered ordinary civilian Catholics who were in no way involved in paramilitary activity.

I suppose that the present-day mass murderers are different to this degree: they bring religion into it. They believe that they are carrying out the will of the god in whom they believe and that they will go to paradise. I doubt whether the IRA murderers took the view that they would go immediately to heaven, but the present-day terrorists believe that they will, and that they will wake up with 72 virgins or otherwise.

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