UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1020-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

HOME AFFAIRS COMMITTEE

 

 

THE GOVERNMENT'S COUNTER-TERRORISM PROPOSALS

 

 

Thursday 11 October 2007

DR ERIC METCALFE, MS SHAMI CHAKRABARTI and MR JAGO RUSSELL

Evidence heard in Public Questions 113 - 171

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Home Affairs Committee

on Thursday 11 October 2007

Members present

Keith Vaz, in the Chair

Ms Karen Buck

Mrs Ann Cryer

Mrs Janet Dean

Patrick Mercer

Martin Salter

Mr Gary Streeter

Mr David Winnick

________________

Memoranda submitted by Justice and Liberty

 

Examination of Witnesses

 

Witnesses: Dr Eric Metcalfe, Director, Human Rights Policy, Justice, and Ms Shami Chakrabarti, Director, and Mr Jago Russell, Policy Officer, Liberty, gave evidence.

Q113 Chairman: Dr Metcalfe, Ms Chakrabarti, Mr Russell, welcome to this session of the Home Affairs Select Committee, our second session on the Government's proposals on counter-terrorism. In particular, Ms Chakrabarti, congratulations on getting your CBE. I do not know whether this is the establishment trying to say something to you, but congratulations anyway since the last time you came to this Committee.

Ms Chakrabarti: And to you, Sir, on taking the Chair on your Committee, if we are trading compliments.

Q114 Chairman: It is also good to start with mutual admiration. Do you share that same mutual admiration, Dr Metcalfe, with the Government's package of counter-terrorism proposals?

Dr Metcalfe: We share admiration, I would say, for the way in which the Government has presented its case. We very much welcome the shift towards a thoughtful and considered tone and, in particular, the Government is willing to consult with organisations such as Justice and Liberty. We support elements of the Government's package. We very much welcome the review on intercept evidence that was announced. We agree in principle with post-charge questioning of suspects in terrorism cases and also with the requirements for notification of those convicted of terrorism offences. We have some question marks over other elements of the Government's proposals - enhanced sentencing, data sharing powers and so forth - and, as you can perhaps anticipate, we are very disappointed in other proposals, in particular pre-charge questioning, but we do in general welcome the shift in tone, the shift in approach, even though we may disagree, as reasonable people can, it certainly makes a change from the somewhat strong rhetoric of the past.

Q115 Chairman: Ms Chakrabarti, you were quoted as saying only two weeks ago that the angels were weeping in heaven when you heard the security of police minister tell one of your Liberty meetings that the rules of the game had not changed, that the former Prime Minister was, in effect, wrong in saying that they had changed in August 2005. Do you share the same view put forward by Dr Metcalfe that this is a different tone, this is a different atmosphere in terms of this possible increase in the 28-day period?

Ms Chakrabarti: Banter aside, the serious point about Mr McNulty's remarks at the Labour Party Conference was that, by acknowledging the rules of the game - not that I think it was ever right to consider national security a game or the murder of innocents on the London Underground and elsewhere a game - what I think he was attempting to do, rightly, was to say we have to share the framework, we have to say that, as democrats, we believe in rights and freedoms and the rule of law, and whilst we will disagree from time to time - of course we will, in such a heated area of policy-making - about how those principles are to be applied, we will disagree about whether particular proposals comply or not with the framework that we share - we are not throwing the framework aside - and I think that is going to be really important for the consideration of this issue about pre-charge detention in particular. The fundamental question was, it seemed to me, do we say that the threat that we are facing in this country and in the world is now so cataclysmically different from anything the world has ever known that we must cast aside, in particular, the post-war human rights framework but possibly older principles that go back to Magna Carta, and start again. Mr Rumsfeld famously, or infamously, used the phrase "the new normal", "the long war" - what we would call a permanent state of emergency. Dr Reid suggested ripping up the ECHR and starting again. What was helpful about McNulty's comments on that occasion was, no, the rules must not change, the framework is something we must all share and then we will have the debate about whether this or that proposal complies with the framework.

Q116 Chairman: Do you feel the same as Dr Metcalfe that you were being consulted more on this round than you were in previous discussions on the counter-terrorism proposals?

Ms Chakrabarti: Yes, I have to say, there has certainly been more discussion and the discussion has been of a kinder, more thoughtful and more respectful tone, and that is hugely welcome. It was particularly welcome, if I may say so, in the immediate aftermath of various plots and incidents over the summer, and the Prime Minister, in particular, has to be commended for that, but now we get into the new parliamentary session and it will not be just about tone any more, it will be about substantive policy. All the tone and all the consultation in the world, charming and comforting and kind though it is, will not be an enormous comfort if we end up with a reintroduction of internment in this country.

Q117 Chairman: Mr Salter is going to ask you some questions specifically about the 28 days and what Sir Ian Blair said to us on Tuesday, but do you think the music is such that you feel the Government has decided it wants an increase in the time limit and that is where the debate is being framed? It is not about keeping it where it is: let us have a debate about how many days. Dr Metcalfe.

Dr Metcalfe: Absolutely. While we, in general, welcome the tone, we are deeply disappointed that the debate is being framed in terms of 56 days that the Government has indicated, not that it is prepared to go one side or the other, it is particularly disappointing in the options paper that there really is not an option to remain at 28 days, other than perhaps if you consider the civil contingencies proposal as an aspect of the status quo.

Q118 Chairman: We will come on to that later. Ms Chakrabarti, do you think that is the way to go: there is to be some kind of an increase, we do not know what it is, but let us have a debate about days?

Ms Chakrabarti: I have not been told that in terms by either the Prime Minister or any of his ministers, but certainly the signals are there. I hope it is not too late for important bodies like this Committee to suggest to Government that the new tone and the new mood of consultation is welcome. We, in particular, congratulate the Government on looking at various alternatives and actually taking forward and proposing some of the alternatives to increased periods of detention that we offered, that Mr Mercer offered and other parties offered. I would urge the Prime Minister in particular, at the very least, to try some of these other things first, particularly as your witnesses a couple of days ago said, "We are not saying"---. Sir Ian Blair, I think, said that he was not saying that he needs longer periods today, he was adopting a new principle of jurisprudence, the precautionary principle, where you legislate today for scenarios you imagine in the future. Given that there are other alternative policies that the Government is talking about adopting in its position paper, why not adopt those first? Given that there is this insurance policy called the Civil Contingencies Act---

Chairman: We will come to that in a minute. Mr Salter is specifically going to ask you about 28 days.

Q119 Martin Salter: Before we get on to the specifics of 28 days, we have got this debate, and it is pretty clear where you guys stand on it. The Joint Committee on Human Rights in July said that going beyond 28 days should be justified by clear evidence that the need for such a power exists, not my precautionary argument. It would be fair to say that would summarise your position.

Ms Chakrabarti: Yes, particularly as we are not just saying do nothing, we are saying that there are things that the police do not currently have at their disposal, like post-charge questioning, that you can throw into the pot. If, as they are saying, they have dealt adequately so far with suspects within the 28-day period - and that is what they have said because they have held some people almost up to 28 days, some of them have been released without charge, which highlights that potential danger, others have been charged at the last minute - that shows that, if you have these powers, they will be used and it also shows that the police are very good at their job and need to be commended for that, and they have worked with the period they have got, but what we have not seen are cases of the police saying, "We had to let somebody go on day 28 and then, a few days later, we rearrested them." That suggests that their cases we are coping within 28 days at this moment. We are saying there are new things we can give you that are more proportionate than extended detention. Do not rush to 56 days or any other period, given the significance and the dangers of that policy at this moment.

Q120 Martin Salter: I will come back to whether 28 days is sufficient and whether we are up against the margins at the moment, because we did hear evidence to suggest that we might be and which we have got to weigh in the balance in producing our recommendation. Can I throw you back to the broader issue. We are not great in this place when we legislate in haste and, if I just take you to a scenario where, say, a terrorist suspect who had been released because the police were not able to build a case was then found to be responsible for a subsequent atrocity? You can imagine the horrendous media outcry there would be, and you can imagine the pressure to rush further legislation through this place. We have not had a glorious record, as I have said, in terms of when we push legislation through here quickly, whether it be crime security legislation, whether it be the Dangerous Dogs Act or whatever, we are not very good at it and we tend to legislate badly when we do it in haste. Is there not an argument for adopting the precautionary principle to an extent so that, where we have got a bit of time and space to produce legislation, that can be properly scrutinised, that we do it in that atmosphere rather than in the frenzied climate which will undoubtedly accompany the next terrorist outrage, which sadly will undoubtedly happen?

Ms Chakrabarti: Thank you. That is a very helpful question. It is not possible, with the best will in the world, to legislate to avoid the possibility that someone who never came to your attention commits a terrorist outrage, as we have seen, sadly, tragically, or someone who once came to your attention and you chose to let go, for whatever reason, goes and commits an atrocity. What it is possible to do, and actually what Parliament has already done, is to create a framework of emergency legislation, not for the individual suspect that you did not spot or that you let go, but for a scenario that is a genuine emergency scenario where the police and security services are physically overwhelmed because of the numbers of----

Q121 Martin Salter: This is the Civil Contingencies Bill.

Ms Chakrabarti: Exactly. The irony of my situation sitting here is, of course, my colleagues, including Justice colleagues and Liberty colleagues, worked very hard with people in opposition parties to limit the sweeping nature of that emergency measure, so I am not claiming authorship of it, but what I am saying is, in principle, you do not have to be naive or utopian to be a democrat or to believe in human rights. It is one thing to say one day we might need to reach for the emergency lever, and that is what you do with derogation mechanisms that exist in all human rights instruments around the world, that is what you do with the Civil Contingencies Act, you know that and you have it there. If necessary you draft regulations and you keep them in a locked drawer in the safe, but what you do not do under your precautionary principle is change the ordinary permanent law of the land to take us into a permanent emergency system on the basis that there might be an emergency or there might well be an emergency one day.

Q122 Martin Salter: The Chairman has just passed a very terse note asking me to keep my questions brief and punchy, but I can do nothing about the answers.

Ms Chakrabarti: I am sorry.

Q123 Martin Salter: Dr Metcalfe, would you just quickly fill us in on your position?

Dr Metcalfe: I agree with what Shami has said. Just to clarify, I think it is false to portray the options as being either legislation on a precautionary basis, where there is no evidence of a single case where the 28 days as been unnecessary or 14 days has been unnecessary, or to legislate in the rubble, in the aftermath of a terrorist atrocity. I think, if you look at the civil contingencies proposal that has been put forward, you can legislate on an emergency basis without an atrocity or an attack having actually happened.

Q124 Martin Salter: Some of my other colleagues are going to come back on that. I am going to roll two questions together here. The police have said, and Sir Ian Blair said to us, that they felt they had used their 28-day power sparingly. Would you agree with that analysis, and, secondly, what arrangements would you like to see in place for an external review of the way the police exercise their current pre-detention powers or any future pre-detention powers that Parliament chooses to give them?

Dr Metcalfe: I would agree that there do not seem to be many cases in which 28 days has been used. I am aware of three people held to 28 days and then charged and three people held to 28 days and then released. Whether, in fact, charges could have been brought within a 14-day period or even a seven-day period remains open to question. We genuinely do not know, because I think it is a fact of life that people work within the deadlines that they have. As to the adequacy of external review, we are extremely sceptical. However, given that there has been a proposal, we know that John Kinsman, human rights, has suggested the Metropolitan Police Authority, they might be one body that could---

Q125 Martin Salter: Have you any other suggestions that might help us?

Dr Metcalfe: No, we do not.

Ms Chakrabarti: There has not been, mercifully, to date hundreds or thousands of people held up until 28 days, and that is a really good thing for all of us, and that probably reflects what the circumstances have been on the ground. I do think, however, that before Parliament is asked to extend the period still further, given that people on both sides of the argument, the Prime Minister included, accept that this is serious stuff to do in a democracy, I think that if you read the small print in the latest JCHR report, you will see that they are concerned that perhaps there has not been a detailed forensic analysis of what actually happened in those cases and how, in particular, the possibility of post-charge questioning might have assisted and might have allowed the police to charge even earlier than 28 days. There is a bit of gentle criticism, perhaps, of the independent reviewer and/or of the police. It is that kind of detailed evidential analysis, I think, that one would want before saying to you readily you are up against the buffers at 28 days: because we have not yet had post-charge questioning as a possibility for the police and it could be very helpful but we do not know because we do not know in those cases whether there was enough evidence to charge with a lower level precursor terrorist offence.

Q126 Martin Salter: Then the review, or the review mechanism?

Ms Chakrabarti: I think I personally would like to see a greater level of parliamentary accountability. There is lots of sometimes fudged thinking about the appropriate role for judges and the appropriate role for Parliament. Sometimes people think that if you just create a new quasi judicial figure like a reviewer or you say as long as a judge authorises extended pre-charge detention, it is okay. I think it is important to go back to basics and say: what is the proper role of Parliament? What is the proper role of the courts? Parliament should set the parameters and judges are really good at adjudicating when there is a real contest. Once there is a charge, a judge is really good at making sure that both sides get a fair hearing, but judges are not desperately helpful, in my view, in the pre-charge phase because there is no contest because, by definition, there is no accusation: the suspect does not know what they are accused of. So, when people come to you and say, "Everything will be okay as long as a judge signs it off", I would raise concerns about that, and that is shared by my conversations with senior judges, I might add. So, in the whole area of terror powers, exceptional powers, secret intelligence, there is no reason why privy councillors from different parties should not see more of that intelligence about cases so that the burden, and it is a burden, of scrutiny is shared.

Chairman: I am going to stop you, because I know that you have a lot of information to give us, but we are trying to move on. We have got a lot of questions, so if you could keep your answers a little bit briefer, we would be grateful.

Q127 Mr Winnick: Can we clarify the situation from both organisations, regardless of how the matter should be dealt with. Do the two organisations before us today accept that Britain is facing a unique threat from terrorism, different from the situation prior to the IRA and different from the IRA, in that those who want to commit mass murder wish to do so on the largest extensive scale? Does Justice accept that?

Dr Metcalfe: We do accept that there are people out there who wish to commit large scale mass murder and on the largest possible scale. I am not sure whether I would go so far as to agree that this is somehow unique. It is certainly different in that sense from the IRA.

Q128 Mr Winnick: Who else wanted to commit mass murder against their fellow citizens apart from the IRA, when you say that it is not unique? Tell us.

Dr Metcalfe: We can go through the history of terrorism and look at various different terrorist groups in different countries.

Q129 Mr Winnick: In Britain?

Dr Metcalfe: Excuse me? I cannot give you a run down of particular organised groups, but I am very happy to put in a supplementary note following indicating various people. I think, in a sense, it is misleading to focus on the possibility of mass murder or the angst of mass murder, we also have to look at what other countries are facing and, if you look at the United States, they are facing an identical threat, if not an even greater threat, yet they have a constitutional guarantee that you cannot be held more than 48 hours post-arrest without being brought before a judge.

Q130 Mr Winnick: Dr Metcalfe, I will ask Liberty in a moment, before I finish this question and other colleagues come in, but in order to be quite clear, you are not suggesting, I believe, that previously your organisation did but you will correct me if I am wrong, that since so many people unfortunately and sadly die in road accidents one should look upon what happens with the casualties of terrorism much in the same way? That is not your argument, I take it?

Dr Metcalfe: No, and it was not my argument then, with respect. It may be that that point has been misunderstood. I was only referring to the fact that the state has to always balance the risk to human life with the interests that the public has in protecting civil liberties. That would be a daily balance.

Q131 Mr Winnick: I see the distinction quite clearly between unfortunate accidents and deliberate mass murder.

Dr Metcalfe: I am not disagreeing that there are clear policies of difference and I am not suggesting that somehow the state should pay less attention to people who are intent on committing mass murder, I am only making the point that the uniqueness of this particular threat can be overstated insofar as not everyone who is involved in terrorism, Al Qaeda-related terrorism, is necessarily themselves prepared to die for their cause.

Q132 Mr Winnick: Ms Chakrabarti, do you accept the acute terrorist threat which is different from the IRA mass murder?

Ms Chakrabarti: To some extent all threats are different. I am not going to pretend to be the person qualified to say just how different. What I am prepared to say as a mother and a citizen, let alone a human rights campaigner, is that this is a very, very serious threat; I take it extremely seriously. Some of the people involved in perpetrating the threat have no regard for human life whatsoever and believe things that are completely opposite to everything that I believe, but some of the people around them and at the margins and in broader society do not necessarily think that way but must not be forced onto the wrong side of the line, have got to feel that they can have concerns about British foreign policy, or concerns about British domestic policy, and that there is a place for them in constructed democratic debate and do not have to choose between being a member of one community and being British. Ultimately, I think, this threat is so serious that it has to be dealt with at a philosophical and ideological level as well as an operational level, and that is why debates like this one about particular laws are not just important in terms of operational effectiveness, they are also very important in terms of who we are and what we say the alternative philosophy is to the philosophy of death and destruction.

Q133 Mr Winnick: Attempting to murder as many women as possible in a nightclub and describing women as slags has little to do, you will agree, with British foreign policy?

Ms Chakrabarti: I am sorry; I am not trying to make excuses.

Q134 Mr Winnick: I know.

Ms Chakrabarti: I am agreeing with you that some of the people at the epicentre of this have ideological objectives and have no regard for human life, but we have a philosophy. The danger is that we must not look as if we do not believe anything and we are just constantly responding. We have an entry in the competition of ideas that is as powerful as anything that those people believe. I am afraid that the part of all of this we believe in is about rights, freedoms and the rule of law and being charged promptly and getting a fair trial even if you are a terror subject. They are not vulnerable to the charge of hypocrisy, but we are. We have to be careful about that.

Q135 Patrick Mercer: First of all, thank you very much for coming in. On Tuesday we had a rare and I thought rather risky insight into operational matters where we were talking about the need for the security services, the police, et cetera, to have more time than was otherwise available, and they talked about a technique which, as I say, I am surprised was in the public domain, but there we are, about the painting of chemicals on to a wall, which would in the fullness of time reveal fingerprints and other impact marks which would be extremely helpful in detecting a crime, and other things which I will not go into. However, they suggested that it would take up to two weeks for this process to develop, to mature, to set, to dry. What is your view about that? The chemicals, as I say, would take up to two weeks. Do you accept that technological developments will change, perhaps not the face, but maybe the margins of this argument?

Dr Metcalfe: Dealing with the particular hand-print test, if we can call it that, I think the first question I have is: what if it did not take two weeks? What if it took two months or what if it took eight months? Would we be justified, given that we knew that we would have results from that test, in holding people for as long as the test took? I think this is a really good way to test the police arguments that are made in this area. Yes, if you give police an unlimited amount of time to investigate people, there will always be the prospect of further evidence turning up in the future, but, as we made clear in our written evidence, you can never know in advance that the evidence will be there. You can run the test for two weeks or for two months but you do not know that the hand-print will turn up. Also, and let us look at the end of the test, what does the hand-print show? Someone's hand-print on a building is forensic evidence of a kind, but it may only be the weakest kind of circumstantial evidence. The idea of holding someone in prolonged, extended detention for what may be at the end of the day marginal evidence seems to me a very disturbing proposition. I would say in the circumstances it is certainly true that forensic evidence and forensic techniques are producing greater demands on police time, but we think that is something that can be answered in the first instance by greater resources. I think it is particularly unfortunate for a suspect in 2007 to be detained given the much greater mass of information that can be gathered about suspects, and I think that in a sense there is a distraction, when the police talk about the greater complexity of terrorist plots and the greater complexity of investigations, that we tend to believe that simply because the police have 56 computers to go through that, therefore, means there is something there. It may mean that you have 56 computers to go through and the person is entirely innocent or that there is no admissible evidence to be found at the end of a two-week or four-week period because there is simply no admissible evidence there. It is a faulty premise to suppose, simply because the police believe that evidence may come to light, that evidence will come to light. I think that is the danger: justifying extending pre-charge detention on the idea of what prospectively may come to light.

Q136 Patrick Mercer: You make the point very well about resource. I am sure you are aware, we put this to the police on Tuesday. We said, "If there would be 56 computers, two people analysing them, let us have ten people analysing them", and they said, "Yes, we can increase resources but, do not forget, there is always going to be a narrowing of the filter where", I think the phrase was, "there were two or three moving minds".

Ms Chakrabarti: Controlling minds.

Q137 Patrick Mercer: Controlling minds, yes. It would be difficult to extend those controlling minds, and the thought makes the mind boggle. Nonetheless, it was quite an interesting argument.

Ms Chakrabarti: They are trying to bring together---. I think the biggest argument, the operational argument, they say, for needing more time is that they are dealing with complex conspiracies that are partly international in nature, involving lots of people, and they say, even with all the resources, someone on the police side has to be a controlling mind to spot the spider's web on the other side, and they may well be right about that, but that is why one really must look at post-charge questioning: because in recent years Parliament has passed a number of lower level anti-terror offences, some of which are yielding prosecutions as we speak - possessing material for a terrorist purpose, being a member of a proscribed organisation, attending a terror training camp, it goes on and on. What we are proposing is that you should be able to charge with one of these simpler offences and then have what you do not currently have, which is the option to continue your investigation while someone is detained on remand with the lower level or simpler individual offence. While the person is on remand, subject to protections, the police should be able to come back with the developing evidence of a big, complex conspiracy and put that material to the accused, and that in a sense would give them more time for the great big international conspiracy.

Q138 Patrick Mercer: Thank you. Can I move on to the likely impact on relations with the Muslim community. If we were to extend 28 days, what are your views, and it is an imprecise judgment, as to how the Muslim community would react?

Ms Chakrabarti: It would not go down well. Do you want to say any more?

Mr Russell: People at Liberty have been in a number of meetings with the Home Office at which members or representatives (however you describe it) of the Muslim community have raised serious concerns about government. There are people in the Muslim community who do say that this kind of law will be used to radicalise young Muslims. I do not think it is rocket science to imagine that a person who is held for 57 days and then released without charge may feel animosity to the Government and that their friends and family may share that feeling of animosity. I do not think that should be a contentious idea.

Q139 Patrick Mercer: Lord Carlisle was interesting, because he suggested that extended powers were fully understood inside the Muslim community and, to paraphrase, they were not terribly bothered. He thought a much greater factor in radicalisation was British foreign policy.

Ms Chakrabarti: I am going to be as polite as I possibly can be.

Q140 Mr Winnick: He was not too polite to you on Tuesday.

Ms Chakrabarti: Never mind. It may be that we are present in conversations and at meetings at which Lord Carlisle would not be welcome in the heart of the East End and other places where people are anxious about these policies.

Chairman: Very politely put.

Q141 Patrick Mercer: That is very clear; thank you.

Dr Metcalfe: Can I make an additional point. I think in some ways to focus on the idea of alienation or radicalisation may be putting the argument too strongly. We would not claim that a reason not to extend pre-charge detention is that it might cause people to take arms against the British Government. I think anyone who was alienated to that extent was probably not a safe individual in the first place. What I think is far more important is the negative impact on community relations in terms of loss of confidence, lack of trust, a chilling effect. You may be much more unwilling to give information to the police concerning a neighbour, or a family member, or a distant relative if you believe that they are likely to be held for 56 days without any kind of charge. You may simply be concerned yourself, given the increasing complexity of terrorist investigations - we know that family members and relatives are very much brought into investigations and are themselves arrested - of giving information if you are concerned that many people you know may be drawn in to arrest and spend extended time in Paddington Green. So, I think to focus on the idea of alienation and radicalisation and people taking up arms is slightly to miss the point.

Q142 Patrick Mercer: Thank you. Moving on to options one and two, Ms Chakrabarti, you have stated that the further extension of the pre-charge detention limit would be internment, something that you and I have talked about in the past quite extensively. The two experiences in this country, to the best of my knowledge, that we had recently were internment policy during the Second World War and then the policy in Ulster and the North, which I certainly witnessed in the 1970s. The witnesses on Tuesday were at great pains to disallow any similarity between what is going on now and those two policies, some of which, it was claimed, were botched. What are your views?

Ms Chakrabarti: I can understand why they do not want to use the label, because the policy with that label has been so discredited. When, after 9/11, the Government adopted what became the Belmarsh policy, we called that a form of internment. The Government denied it for a long time, but by the time that policy was tested in the House of Lords the former Attorney General, defending the policy for the Government, called it internment. We can have linguistic, semantic, jurisprudential debates about how many days constitutes internment or what degree of judicial oversight or supervision would make it look less like internment, but internment is prevented detention, internment is locking people up for long periods of time without the necessity for charge or trial. All I would say to you simply is that when this question was put to me and Sir Ronnie Flanagan at the Police Superintendent's Conference - "What do you think about 56 days?" - he responded that internment was a big disaster in Northern Ireland. I do not want to put words into his mouth, but that was his answer to that question, and out on the street in Bethnal Green, or in Yorkshire, or elsewhere people will not necessarily even remember, some young people will not even necessarily remember the experience of Northern Ireland. What they will know is it is not about the person who eventually gets charged: they will be banged up for several months or more pending trial for the big conspiracy anyway. It is about the person who is released on the 55th or the 56th day, goes back into their community, they have lost their job, nobody trusts them any more, that was British justice. Whatever you want to call it, that is the outcome that we have got to guard against.

Q143 Mrs Cryer: Can I ask Mr Metcalfe a question on behalf of your organisation. Apparently Justice expresses scepticism that the challenges faced by the British police are "somehow different in kind" from those faced by police in other countries where pre-charge detention periods are much shorter, but is not the scale of the threat facing the UK greater than that faced in most other countries? Could I just add to that that Sir Ian Blair, when he was before us the other day, did differentiate between the IRA and what is happening now and two of the things he mentioned was that frequently the IRA would give warnings. For whatever reason they would give warnings to cause maximum disruption but minimise actual loss of life. That does not happen now. He also mentioned the fact that the perpetrators in present times do not have any care about other life but also about their own life. Frequently they take it as perhaps a plus if they also lose their lives in what they perpetrate. Could you comment on this?

Dr Metcalfe: To take the last part first, I believe in part I have already addressed some of those points in answer to Mr Winnick. Yes, it is true that the IRA did give warnings, but they did not always give warnings and they did not always give accurate warnings. The effectiveness of warnings, if you look at something such as the Armagh bombing, which was given by a splinter faction, is of relatively little comfort to the people who died there. I do accept that operationally the willingness of people to die for their cause does make, generally speaking, Al Qaeda-related terrorism different and more difficult for the police to counteract than in relation to the IRA, but I do think there is sometimes a danger in exaggerating that. Do the police in the United Kingdom face different challenges than those in other countries? Of that I am far more sceptical. Al Qaeda is a threat, as we understand it, to Western values and Western liberal democracies. We have seen many other common law countries, countries who have inherited the British traditions of due process and adversarial justice, have also adopted counter-terrorism laws - Australia, Canada, New Zealand, South Africa. The one country which faces arguably an even greater threat of terrorism than the United Kingdom is the United States. In the United States the Fourth and the Fifth Amendment, collectively, guaranteed you process, they protect against reasonable seizure, and they require that anyone who was arrested be brought before a judge within 48 hours. Nonetheless, in the United States since 2001 there have been numerous terrorist plots which have been stopped and people have been arrested and charged, and I can give you a list of some of them. There was a potential attack on the Brooklyn Bridge, a threat to derail NTrack between New York and Washington, a person was arrested and charged in May 2003, a plan to blow up a shopping mall in Columbus Ohio in June 2004.

Q144 Chairman: Rather than read out the list, if you would send it to us that would be very helpful.

Dr Metcalfe: I would be very happy to. Any event, I can give you approximately 40 or 50 serious plots, plots of identical complexity and threat, large scale loss of life as we fear facing the United Kingdom, which have been prevented and detected by the police in the United States and suspects have been charged, large scale conspiracies, within 48 hours. So, you have to ask the question: if the United States' police can do that without reliance on exceptional measures such as Guantanamo Bay, is it really true to say that the police need 56 days or 90 days to question suspects to gather evidence?

Mr Russell: Could I add two observations to that? Another distinction is that we now have a whole range of preparatory offences which can be used in the context of the current very serious threat from terrorism which were not available in the context of the threat from terrorism in relation to Northern Ireland. That makes a significant difference. Another point that I should make now is that Liberty has commissioned a large amount of research from a number of lawyers in different jurisdictions and we are starting to get that advice back in terms of the number of days pre-charge detention that they have available, and it is not only the United States that shows up the United Kingdom as having an incredibly long period of time: Canada also, for example, has just one day pre-charge detention permitted. So, obviously, as soon as that has been finalised I will provide it to the Committee and hope you can consider it.

Q145 Mrs Cryer: Can I mention also, because it may be relevant to what we are discussing now, that Sir Ian Blair also said that we could have been in great difficulties had the bombings of the Haymarket and Glasgow Airport been successful. Had they killed a lot of people, they may have been really pushed about the 28 days. They could have needed to go beyond that. If I could move on, but could you bear in mind what he was saying. Dr Metcalfe, again, Justice claim that 14 days is the maximum period likely to be held by the courts to be compatible with fundamental rights. What is the basis for this claim and are you aware of any legal challenges to 28-day detention currently before the courts or likely to come before the courts?

Dr Metcalfe: I am not aware of any challenges to 28-days' detention. I am curious to know why no charges have been brought, but I know from the way in which criminal procedure works that there may be any number of mundane reasons why challenges have been brought and I am not aware of any coming; but I would certainly expect that, if a challenge were brought, there would be a serious issue to be determined and my view is that, were it to go all the way to the European Court of Human Rights in Strasbourg, it would be found incompatible. I say that on the basis of the jurisprudence of the European Court of Human Rights, to which we have referred previously. You have the 1988 decision of Brogan v United Kingdom in which the previous Northern Ireland regime for pre-charge detention was under challenge and was found to be incompatible. When we appeared before the Committee in 2005 we drew the Committee's attention to cases from south-eastern Turkey where there has been large scale loss of life due to terrorism and in south-eastern Turkey the European Court of Human Rights found that pre-charge detention exceeding four days was in breach of Article 5, and the European Court said that this was the case even having regard to the need to combat terrorism. So, it is clear that the European Court of Human Rights takes a very strict line in relation to pre-charge detention and believes that the right to be brought promptly before a judge to be charged or released has to happen within a very short timescale. We gave the view that 14 days was the maximum likely to be found compatible. I may be wrong about that, but if I am wrong it is likely to be at the lower end of the scale rather than the higher end of the scale. It may be that even seven days pre-charge detention is not compatible, but 14 days is the longest that I could reasonably foresee for it passing muster.

Q146 Mrs Dean: Could I ask Dr Metcalfe first: how far would your concerns about pre-charge detention be addressed if there was a statutory requirement that a High Court judge could only grant an application for an extension beyond 28 days if it had been demonstrated that there were specified circumstances applying, for instance, that there appear to be multiple plots or links with multiple countries or exceptional levels of complexity?

Dr Metcalfe: I wonder what "exceptional levels of complexity" means in the current circumstances. My fear would be that those criteria would be all too easily satisfied. I think it is generally true that both terrorism cases and terrorism investigations involved multiple suspects, that there may be multiple plots ongoing, and so forth, so I think that would be a very low hurdle. Insofar as a High Court judge determining that issue, again, I am not really sure what the seniority of a judge adds to it. Lord Carlisle made the point last Friday at a conference I was attending that, in fact, moving higher up the judicial scale is really not necessarily any serious safeguard, and in fact the experience of judges close to the grass-roots levels, district judges and Crown Court judges, in relation to procedural measures, might be far greater than a law lord or lord justice of appeal. So, I am not really sure what the seniority of a judge adds. More generally, there is a point we made in our written evidence that, with the best will in the world, faced with statements from the police that they are actively pursuing all investigations and that they hope to have evidence in the future but do not have it right away, there is actually very little that a British judge can do. I am not saying there is nothing they can do, and we do think it is an important safeguard, but we are very sceptical that anything intrinsically can be done to increase judicial scrutiny of the pre-charge process.

Ms Chakrabarti: With respect, forget the judges. Write into the statute that the Director of Liberty will issue these warrants and he or she will sign, because there is no contest. All that they will be told by the police, in good faith, is, "We are really anxious about this suspect. This is potentially a very complex plot. We need more time", and he or she will sign. The essence of fairness that a judge can help deliver is where there is a contest where an accused person is told, this is what has been stated, and at that point---

Q147 Mr Streeter: We were told that there was a contest when these matters go before a judge, that there was an adversarial hearing. Sir Ian Blair told us that on Tuesday. A barrister argues for one side and another barrister argues for another side.

Dr Metcalfe: Ian Blair is misrepresenting the process. The Joint Committee on Human Rights in its July report highlighted its concerns that you really do not have a proper adversarial process. In particular, Schedule 8 of the Terrorism Act 2000 allows a great deal of information to be withheld from the suspect and withheld from the suspect's lawyers. You can, and in fact you do, often in these cases have what is known as an ex parte hearing, where only the prosecution and the judge argue about the equity of defendant and the defendant is excluded. Even the Crown Prosecution Service's own paper on the pre-charge process, which was released by the Home Office, makes clear that all the defendant gets is a summary and that summary will not say a great deal. So it is a long way from what we would recognise.

Mr Streeter: May I ask that we seek extra evidence from the police on this, because we were specifically told, and actually it stopped me from pushing the point to the police because we were given such a clear answer, that there was an adversarial hearing?

Chairman: Indeed; we will do that. That is a very good suggestion.

Q148 Mrs Dean: From what you said, do you disagree and dispute the fact that the Government has cited one case in the alleged airline plot where a judge granted an application for less than the time requested? Does that not demonstrate that judges take their oversight responsibilities seriously?

Dr Metcalfe: I agree. They take their oversight responsibilities extremely seriously. The point I am making goes to, as I think Shami illustrated very well, intrinsically what are you dealing with at the end of the day? There will be some cases where the judges challenge the police, there are some cases where the facts of the case are such that the judges can second-guess the police, but the general experience is that judges do not want to interfere too greatly in police operations because, unlike the investigating judicial system you have in France and Spain, judges here do not have any experience or any competence to tell the police how to do their job. There will be some cases where, if the police are less than diligent, the judge will pull them up on it, but we should not believe that that is an adequate safeguard in relation to pre-charge detention.

Ms Chakrabarti: Forgive me butting again for a moment, the problem is this is not about judges not taking their role seriously. If I were the judge, if could see that the police were dragging their heels on an investigation, if I were able to say to them, "You said you would go away and do X, Y, Z last time and you did not", then of course I can say, "I am sorry, I am not going to keep signing, but if the police are doing, as I expect them to do, their job well and in good faith but they are just not coming up with the goods but they are terrified of what might happen, I am going to sign. To go back to the point about adversarial process, in a sense this detailed debate about whether lawyers are present and whether there is an argument is not the point. The point is that in our system the moment of charge is a very special, iconic, seminal moment when for the first time you know the bare minimum of what the contest is, what it is roughly that you are said to have done, and until that moment proper criminal proceedings, fair proceedings, do not begin. Before that it is suspicions. After that it is argument and evidence.

Q149 Mrs Dean: My last question. Obviously you disagree that pre-charge detention should be extended, but if it were, what further safeguards in terms of judicial oversight do you think should be required other than reference to yourselves?

Dr Metcalfe: I would welcome any further proposals for increased judicial scrutiny, but we are at a loss to understand how greater scrutiny could be achieved. There has been talk about non-judicial scrutiny, parliamentary scrutiny, and that would certainly be welcome, but we think that there are inherent limitations in the pre-charge process. The very nature of the pre-charge process is that you do not have evidence: because if you did have sufficient admissible evidence to meet even the threshold test, the person will have been charged already. So, by its very nature, you are talking about a process in which there is not sufficient admissible evidence to show that the person is involved in the crime.

Ms Chakrabarti: We agree.

Q150 Mr Streeter: Moving to option three, which, of course, was a Liberty proposal, the proposal is that the Civil Contingencies Act should be used to enable another 30 days after the 28 days has expired. These proposals have been described variously as mad, draconian, completely unrealistic, impractical, unprincipled and poorly conceived. Of course, it will mean that Parliament would have to declare a national state of emergency. Would not that of itself hand the terrorists an incredible publicity coup, a worldwide story that Britain has declared a national state of emergency? Is it such a great idea?

Ms Chakrabarti: The first thing to say about it being a Liberty proposal is that we did not pass this legislation. With respect, you did, or those of you who were here at the time did, and there was quite a lot of scrutiny and debate about those powers. So, those are the emergency powers of this land and they have application, not just in terrorist emergencies but in pandemics and epidemics and problems with floods and cattle. So that is what has been agreed, rightly or wrongly, in this country as emergency powers.

Q151 Mr Streeter: You are talking about using it for one instance, where one person is being held beyond 28 days.

Ms Chakrabarti: What I would say about those emergency powers is that, whilst they may well be chilling, I think it was Mr McNulty who said mad and draconian and an abomination to jurisprudence or something, and he is good at the banter and I much enjoyed debating with him.

Q152 Chairman: And you were getting on so well with him.

Ms Chakrabarti: Absolutely. Mr McNulty is a great parliamentary character, but he would be the first to admit that I would not pass my law degree if I took jurisprudence lectures from him. Chilling and sweeping though the Civil Contingencies Act is, it is set up to be emergency legislation and, therefore, is subject to certain safeguards. The first safeguard is that it is, by definition, emergency legislation. So, there is an inbuilt political disincentive to activating it too lightly, and that political disincentive in a democracy is a very important and precious safeguard, whilst we are talking about safeguards. The second thing to say about it is that the regulations that are made are secondary legislation and, therefore, subject to quashing if they are abused in the courts, and a safeguard that was lobbied for by Mr Metcalfe at Justice (my colleague's at Liberty is also in there) is that human rights scrutiny is available in the context of those regulations. You can have a retrospective debate now about whether there are sufficient safeguards in that Act, but they should apply to mad cow disease and pandemics and flooding as well, and if you want to review that, so be it. I come back to what I said earlier about a fundamental choice that we have to make in this society knowing that there are grave threats facing this society, and the fundamental choice is whether to say we will have available to us in the locked drawer, subject to all sorts of parliamentary and judicial safeguards, for a moment, a genuine emergency when there are, God forbid, multiple plots that are about to come together at once or that have come together - 9/11, 7/7 - various things that all come together at once. That is, even to a democrat and human rights campaigner like me, something that looks like a genuine emergency. Do you say: "In that event we will activate emergency powers for a temporary period" - because an emergency by definition is temporary in nature - or whether we do not do that because we say that would give the terrorists the victory and we instead enter Donald Rumsfeld's "new normal" permanent state of emergency. It is my passionate view that the latter is what hands the victory to the terrorists and allows people to be released after 55 days without charge.

Q153 Mr Streeter: With respect, are you applying the right test? It might just be one incident or one conspiracy that the police have intercepted and nipped in the bud and they require more than 28 days to charge one person. You are telling us that you would rather see a national state of emergency declared.

Ms Chakrabarti: No.

Q154 Mr Streeter: It might just be one law. Rather than having a law which enables the police under judicial scrutiny in these exceptional circumstances to continue to hold one person perhaps for another week, fortnight, you would rather declare a state of emergency to deal with that situation.

Ms Chakrabarti: It is not about this declaration of state of emergency, it is about a series of tests that have been set out in the Civil Contingencies Act and I hope that we have provided you with David Panick QC's opinion on the application.

Q155 Chairman: You have.

Ms Chakrabarti: The question is whether there is an emergency and whether the regulations are necessary and proportionate, whether there is an urgent need for this to happen. I personally think it unlikely that that test could be met in the case of one person who needs to be detained for longer.

Chairman: If you would let Mr Streeter develop his argument, it would be helpful.

Q156 Mr Streeter: Thank you, your Honour! What if Parliament is not sitting? Say this incident happens in August or September. The procedures for getting Parliament back are actually quite cumbersome and can take quite a long time. How would you overcome that problem?

Dr Metcalfe: The Act is very clear about the power of the Minister to make emergency regulations in the absence of Parliament. It is very surprising in the Government's option paper the way it tends to dismiss parliamentary oversight. As Shami has mentioned, Justice and Liberty have been very heavily involved in meetings with the Cabinet Office when this Act was being drafted and well before it went into Parliament. There are various ways and procedures in which measures could be made in an emergency. If the criteria of the Act are met and if the Minister can make, even without resort to an order in council, emergency regulations, a week later Parliament would have to be recalled and there will be a debate, but I do not think there is anything inflexible or unwieldy about the emergency powers system.

Q157 Mr Streeter: So Justice support declaring an emergency situation to deal with my one person being detained, as do Liberty?

Dr Metcalfe: Here is my problem with your example. You can never know in advance in the case of one person. It is more sensible for the police to say, "We are facing multiple investigations, multiple plots which are overwhelming our resources", but since you can never know logically in advance that you can have admissible evidence in a single person's case, it is impossible to justify, I think, a state of emergency on that basis in relation to one individual. You can only ever point ex post facto (after the fact) to a single case, and that would be a person being held for up to the maximum period, released and then specific admissible evidence coming to light through the police investigations, but we have never had a case of that kind. More to the point, you could never have a single case, as a matter of logic, where you could say in advance that you know that you will have the admissible evidence, because you can never know that. If you could know that, you would have met the threshold test already. In general, however, we agree with Liberty's proposal. There may be circumstances which rise to the threshold set down in the Act, and that will allow a state of emergency to be declared. There seems to be something extraordinary about the idea that we are so worried about declaring a state of emergency to extend pre-charge detention but we are certainly prepared to countenance as the new normal 56 days or 90 days. The United Kingdom has the longest period of pre-charge detention of any country in the Western world. It has a longer period of pre-charge detention than Zimbabwe.

Mr Russell: I just want to make one very practical, simple point about this question of the cumbersome business of recalling Parliament. The simple point is that this question of recalling Parliament in order to use the Civil Contingencies Act would not arise until the existing 28 days is coming to an end. So, it is not that all of a sudden you need to recall Parliament immediately upon these numerous incidents occurring, you have got 28 days' warning of the need for possible future extension in which to do that. Just the very practical point that it is not that it has to be done within seven days and that there is no prior warning.

Ms Chakrabarti: And you have now adopted, as I think the Prime Minister will do, our suggestion of the possibility of post-charge questioning, which we do not currently have.

Chairman: We will come on to that in other questions. Karen Buck.

Q158 Ms Buck: Sticking with the Government's options paper and looking at the fourth option, the judge-managed investigations, which, obviously, I think we all agree represent an absolutely fundamental shift in the whole approach to such in investigations, I know you have expressed a number of reservations, which you can draw up, but Lord Carlisle and, indeed, others, indeed this Committee in a previous report, expressed the view that it would be possible to import at least some of the elements of a judge-managed investigation without having to go down the road of such complete restructuring. What is your view?

Ms Chakrabarti: Our view is always that it is inherently dangerous to think you can do a pick and mix of different legal systems. I really have reservations about that approach. It may be that in the context of intercept evidence (and this is a difficult thing to discuss here because, of course, the Privy Council is conducting it, Sir John Chilcott is conducting his review and so on) there is a special role for a judge who would issue the intercept warrants who has seen more than another judge would see and who is not part of the trial process, but, generally speaking, this idea that we are going to take little bit of an inquisitorial system and import it into our system, and if this sounds a little bit patriotic forgive me, but we did design in this country, I would argue, the best system of fair trials long before financial services and David Beckham. It was one of the greatest exports ever produced and I think we should be slow to dismantle it, whether on a piecemeal or on a pick and mix basis.

Q159 Ms Buck: I hear murmurs approval. To a non-lawyer, what is so wrong, for example, with appointing a judge to oversee investigations from the point of arrest in this legislation? In what way does that undermine our total legal system?

Dr Metcalfe: I think the simplest analogy I can give is that it is apples and oranges. We have an apple tree here and they have an orange tree over there and you cannot simply graft one onto the other and expect to grow oranges here in the United Kingdom. It is never going to work. You are looking at a system in France and Spain, for example, where judges are trained from the get-go. It is not the system here where a judge is appointed after 20 years of practise. You have big lawyers going to law school to train to be judges and specifically to train to manage police investigations and the more of the inquisitorial system you seek to import, the greater control you are giving judges over police investigations, a matter for which they have no experience or competence or probably wish to control. I think the Home Office's own paper on judge-managed investigations makes it very clear how radically different that system is. It works well for them, but then their system has evolved over centuries, as ours has, to work with those particular checks and advances. If you seek to import piecemeal items from another system without the checks and balances, you end up overburdening the system here. The way our system is set up is that the judge referees the police investigation, he does not control it, and I think, ultimately, you are up again the inherent limitations of the pre-charge scrutiny process, which we have talked about before.

Q160 Ms Buck: Can we move on to looking at the issue of intercept evidence. We know and accept completely that no-one is advocating that the use of intercept evidence would be in itself enough completely to transform the capacity to investigate these this issues effectively, but I think, listening to the evidence of Sir Ian Blair and Peter Clarke on Tuesday, it was very strongly the case put forward that intercept evidence, whilst potentially useful, was unlikely, or unlikely on the basis of their understanding in practice to date, to have led to any significant difference in the number of successful prosecutions that were brought. In other words, it is kind of irrelevant was the message. Why do you believe that that is not the case?

Mr Russell: We have stated clearly that we do not think that there is a magic bullet that will make it possible to charge in every case. That is the starting point. It is one of a number of measures, including the post-charge questioning, and some measures which have already been taken up which we have suggested as alternatives to be considered first. Actually, reading the Guardian, there was an interesting case reported this morning, which is again probably subjudicy, but it is worth mentioning that the court had put before it in that case evidence of a mobile phone text message which is being used to prove the guilt of a number of people who were meant to be planning and training for terrorists. If under the existing laws and in this existing case that kind of evidence is being used in a criminal trial, I think that shows that it could be useful in enabling the police to bridge the very narrow gap between the arrest standard the charging standard.

Q161 Ms Buck: Would you not expect senior police officers, with massive experience, to be saying to us, "Goodness, we have so much experience. We know that that evidence is out there." If it was good enough to have been useful to have transformed their scope for pursuing a successful prosecution, why would they not be saying that to us? There is a logistical issue, which we can come back to quickly in a second, but why would they not be saying to us that that evidence is sufficiently robust? In fact there are lots of other issues, not just logistical but about proving the identity of the person at the other end of the phone. The fact that suspects are extremely surveillance conscious and, therefore, are capable of making that kind of communication very resistant to its use?

Ms Chakrabarti: To speak plainly, I think the police are changing their tune, because they are not feeling optimistic about whether---. They are taking a view of what may happen as a result of this review, but a couple of years ago Sir Ian Blair was as great an enthusiast as we are for making this work and having intercept intelligence admissible. It is useful all over the world, the United States, in Europe. In this case that Jago refers to, in addition to the text message, there is bugging material. We have the proposition in this country that I can bug your bedroom and use that material, but if it is a telephone call to your husband, we cannot use that. There is also the use of intercepts in cases that have currently never come before the police. That is the Belmarsh people and the control order people who currently have not necessarily been interviewed by the police. We have got these parallel systems for dealing with terrorism that have gone on and so the perhaps do not have the experiences of those cases where intercepts may have been terribly relevant.

Q162 Ms Buck: What on earth is the motivation for the police to change their position? Why would they do that?

Dr Metcalfe: With respect, the police engaged in a lobbying exercise. I think it is unfortunate that the police are doing this but they have before, and when Sir Ian Blair appears before you he is arguing, he is seeking an extension to pre-charge detention. It weakens his case to agree with the proposition that intercept evidence is compelling. I can quote you Sir Ian's previous statements: "I have long been in favour of intercept evidence being used in court. The court can then weigh it up. At the moment nobody can test it." That is what he said in February 2005. Andy Hayman, who is head of the counter-terrorism tasking group stated that he originally started off being fairly unsupportive of the notion of using intercept. "I came to the conclusion that in a select number of cases, not just for terrorists but also for serious crime, it will be useful. I also think it does make us look a wee bit foolish that everywhere else in the world is using it to good effect." I can quote you the FBI Director in 1999.

Q163 Ms Buck: Is the implication of what you are saying that the police are more concerned with lobbying for an extension of the period of detention than they are in securing successful prosecutions?

Dr Metcalfe: No, that is not correct. I am saying that they believe it is more advantageous for them to have more time in which to detain suspects to prevent terrorist attacks than it is to use intercept.

Ms Chakrabarti: Not just that but that they think it is more likely, for whatever reasons, in the current political frame and where we are to get 56 days than to get intercept, and that is because the intercept issue is proving complex, as anyone who has given evidence to Sir John Chilcott's committee will say. There are issues that are coming up about disclosure, about the technology, and so on. Sir Ian Blair, I think rightly, suspects a quicker win for him would be getting more time. A more difficult debate, a longer struggle would be to get the admissibility of intercept.

Q164 Ms Buck: One of the other arguments that was being put up forward by Forum is the logistical concerns, the fact that disclosure would require the transcripts of every conversation rather than merely a transcript of part of a conversation which could substantiate a case. Do you think that is a genuine concern?

Mr Russell: I think there are two very brief observations I would like to make. One is that it would obviously be worthwhile looking at how almost every other country in the world manages to use this and to overcome similar problems, and the second point is that it is perhaps naive to have this old-fashioned idea that secretaries are sitting there with typewriters in front of them. Presumably the technology exists so that you can do electronic searches of recorded conversations. I mean, there are computers now that can type out things as you speak.

Dr Metcalfe: We did a study in 2006, which I can flag by holding it up here. I hope that some members of the Committee already have it, but we looked at the intercept evidence in all the other complementary restrictions. Yes, it is true to say that using intercept evidence does increase the burden on prosecutors and police and also the security services to use it. Nonetheless, prosecutors and police and security services in other countries are wildly in favour of intercept evidence because they believe that the benefits far outweigh the costs. As to the point in relation to electronic retention, surely the security services and the police have to retain this material in any event for their own investigations, so that is something of a red herring. It is true to say that transcription can be an increased resource implication, but, of course, it is not necessary to transcribe all the telephone calls or all the emails that you may have in a particular case.

Q165 Ms Buck: Pursuing Mr Russell - this is my last question - obviously, the issue is, as we have already discussed recently, that we have a particular legal system here, an adversarial system of justice. You have just advised us not to draw from other systems.

Dr Metcalfe: These are adversarial systems. There are systems which have inherited English common law, that use exactly the same trial model, police, investigation, prosecution model as the United Kingdom does, and all those countries use intercept evidence.

Chairman: Thank you. Janet Dean has a question on post-charge questioning.

Q166 Mrs Dean: Thank you. I certainly think we have heard today from Liberty that you are very much in favour of post-charge questions. Can you tell us why you think it is in anybody's interest, if they have been charged with a crime, to actually respond to any post-charge questioning?

Ms Chakrabarti: Why it is in your interests to ever answer questions. It is as much in your interests as it ever is to answer questions in the police station. You can have debates about when it is or when it is not in your interests to answer questions, and people take legal advice, and so on, but I can imagine many scenarios when I might be interested and I would be very happy to answer questions, particularly when scenarios are put to me, potential evidence is put to me. There is often an interest. I know that the police will say that people do not answer questions, but they would say that pre-charge and post-charge - some people do, some people do not. I do not think it becomes inherently harder. Part of the reason for questioning is a possibility of putting a case to a suspect. The process of questioning and holding people for questioning that is sometimes presented is if you are questioning the suspect and you are getting all this wonderful information out of them, and, of course, you are not necessarily, even under the current regime, but part of the way our system works is that later at trial you say, we put all this material to the accused. Now, of course, we have the possibility of adverse inferences, which is not something that we ever welcomed at Liberty because it does slightly shift the balance of proof, but partly what questioning is about is putting allegations, putting material, putting what other witnesses are saying to an accused.

Q167 Mrs Dean: Would JUSTICE like to comment?

Dr Metcalfe: The complaint about inability to question suspects post charge is part of the police case for proposing 90 days' detention in the middle of 2005, if the police were saying that we need a greater period to detain suspects pre-charge because we cannot question them post-charge, so on the police's own case introducing post-charge questioning must obviously relieve any pressure on future detention for the reasons that Shami has identified. Some obviously have adequate safeguards against oppressive questioning and indeed there is already a limited provision to question suspects post-charge under the Police and Criminal Evidence Act right now. All that is being talked about is extending that more broadly so that when fresh evidence arises for example post-charge you can go back to the suspect and say, "What about this plastic explosive we found underneath your bed?"

Ms Chakrabarti: Here judicial safeguards could actually make a difference, I would argue, because here a judge is well placed to say, "No, you cannot just question someone day in, day out for six months pending trial to get them to crack to another offence." Here a judge can guarantee that the person still has access to legal advice and that the PACE protections that apply at the moment pre-charge are exported to that post-charge questioning, even though the person is now on remand and not in the police station any more.

Mr Russell: Liberty and others have suggested post-charge questioning as an alternative to longer pre-charge detention and that is something that seems to have sometimes been forgotten in this context. The police seem to be quite happy to support the idea of post-charge questioning but at the same time they are saying, "We must still have longer pre-charge detention." Our view at Liberty is that you should try out the post-charge questioning before you go down this very dangerous route of longer pre-charge detention.

Q168 Mrs Dean: What is your view of the government's proposal for enhanced sentences for non-terrorist specific offences and should enhancement be determined during the trial as one of the elements of the offence as with racially aggravated offences rather than dealt with at the point of sentence?

Mr Russell: Liberty has no objection in principle to the idea of enhanced sentences, but there are a wide range of ways in which it can be done, some of which could be incredibly problematic from a human rights perspective. Perhaps the most worrying suggestion that I heard was on the Tuesday when Lord Carlile seemed to be suggesting that you could get an addition five year sentence on top of the existing statutory maximum for the underlying offence; and that that should be down purely to the discretion of the judge at the point of sentencing. To be clear, that is not the way it works in the context of existing racially aggravated offences, for example, in the case of the existing law in that context. The jury has to be satisfied to the criminal standard that the racially aggravating factor exists and that either happens during the course of the trial or, in some cases, it happens in a separate hearing, but nevertheless a Newton hearing at which the jury is present, and the same burden of proof applies.

Ms Chakrabarti: The crucial thing is that where I have convicted you of bicycle taking or fraud or whatever it is, where I allege that not only was that a terrible fraud perpetrated for terrorist purposes and where you dispute that, there is going to have to be a contest on that matter. Whether it is at trial or a Newton hearing, that is a matter of detail and we will see what the government comes out with but where there is a contest about that and you are going to add years on you are going to have to have a fair adjudication of that contest. If you were to adopt that, in principle, there is no fundamental objection to the idea that perhaps you take fraud for the purposes of terrorism slightly more seriously. That is a matter of parliamentary policy and that is the kind of sentencing policy that you make here all the time about whether one offence rather than another should attract a greater sentence.

Dr Metcalfe: We agree.

Q169 Chairman: I understand that neither JUSTICE nor Liberty are opposed in principle to the government's proposal to require terrorist offenders released from prison to notify the police of their whereabouts and travel plans after release. Do you see any practical implications of those proposals? Do you think it could be better dealt with by using the existing system of control orders?

Dr Metcalfe: It is certainly not necessary to resort to control orders to effect this particular proposal. Indeed, it is worth noting that there are also notification requirements recently introduced under the last criminal justice legislation. What is surprising is that a large number of terrorist offences have been largely left out. There is a certain overlap with offences such as soliciting to murder, for example, which is often used to prosecute terror suspects. Generally speaking, the specific terrorist offences were not included n the general serious crime notification requirements. The principle is sound. If you have someone who is convicted of a very serious offence, you want to know their whereabouts afterwards, you already have a system in place for example in relation to sex offenders. It is a requirement to notify police when you move to a new area. It assists the police in monitoring those who have been convicted and are proven terrorists. The difficulty of creating a special system goes back to the old problem of treating terrorism differently than other kinds of serious crime. We think it is sound to have notification requirements but we do not think it is necessary to create a special system to effect that.

Ms Chakrabarti: The ideal paradigm would be that this is part of the envelope of your sentence. I am the judge; you have been convicted; it is a serious terrorist offence and I say you are now going to prison. It is right there, up front as part of the envelope of the sentence and, "By the way, when you do come out of prison, this is such a grave offence that you will be subject to various restrictions afterwards." That would be a perfectly fair and sound sentencing paradigm, in my view. Control orders are a whole other special, quasi-judicial system that is basically about putting restrictions on people, punishing people without trial outside that system of law and justice.

Q170 Mr Benyon: In relation to the use of DNA of terrorist suspects and the proposals concerning data sharing powers with the security services, am I right that Liberty does not seem to have any problem with the principle of what is being proposed but you have practical concerns about the practical implementation? Could you briefly set out what those practical concerns are and whether there are practical measures that would alleviate those concerns?

Ms Chakrabarti: The first thing to say about DNA and why it is that there is a need for this comes back to what I said before about control orders and these other things being outside the normal criminal law. As we know - and we do not all agree with this - if you are in the normal, criminal justice system your DNA is taken and kept for ever. When I just feel your collar as a policeman, I arrest you for shoplifting and I got the wrong person and send you on your way, but I still keep your DNA for ever. It is because control orders are not part of normal policing or the criminal law that this anomaly has arisen. What we say there is it is just another reason not to go down these exceptional, shadowy, non-criminal justice routes, because they would already have the DNA of people on control orders if they were not on control orders but they were in the proper criminal justice system. The point about sharing of data is we really need to see what it is and the detail. This is a couple of lines or something in the position paper. This could be good or bad for the rule of law, depending on the proposal, but the basic proposition that I would support is that the human rights paradigm, the right to respect for privacy, does allow interferences if they are necessary, if they are proportionate and they are provided for by law. If there is lots of data sharing going on outside any statutory remit and what is required and desired is to put a proper statutory regime in place, that would be a good thing. If what is on the table is some sweeping data sharing that is not proportionate and is not accountable, then we would have greater concerns, but this is really one where the devil is going to be in the detail.

Q171 Mr Benyon: At the moment the proposal is that it should put the intelligence services on the same footing as, for example, SOCA, so the same principles would apply to them.

Ms Chakrabarti: I would like to see the clauses but, yes, if it is about putting data sharing on a proper, statutory footing, data sharing that is going on informally, it would be better for this to have a statutory regime, but I would like to see the actual clauses before I gave it a personal blessing or endorsement.

Dr Metcalfe: There are elements of the proposals in relation to data sharing and DNA which are about assimilating the security services to the general criminal justice framework, so putting them on the same footing as SOCA. That seems to us, in principle, a sound proposal. There are other aspects such as creating a separate DNA database or putting what seems to be a DNA database used separately in terrorism cases on a statutory footing similar to that we have for the national police DNA database. That is an example of going in the opposite direction where, rather than making sure that you address terrorism as a kind of serious crime, you are taking a section of serious crime and you are creating special procedures for it. In both cases we need to see more detail before we would be prepared to say things positively or negatively. We are concerned about a shift towards creating special, separate terrorism procedures and frameworks unless we can show that it will be necessary in the circumstances. It is not clear why the terrorism suspects would need a different DNA database than the general criminal law database, for example.

Ms Chakrabarti: Possibly the general one is just too big, there are too many innocent people on it and it is unwieldy.

Chairman: MsChakrabarti, Dr Metcalfe and Mr Russell, thank you very much for coming here today. This Committee is always very grateful to receive comments from your organisations. We appreciate how very busy you are and how small your organisations are in terms of resources and people. The fact that you come here and give evidence to us and always supply us with briefings is extremely well received by us. You said today, Ms Chakrabarti, that Britain faces a very, very serious threat from people with no regard for human rights and the Commissioner said to us on Tuesday that the UK was facing an epidemic of terror, so these are clearly very serious issues. We will be taking evidence from the Home Secretary on the 22^nd of this month, but we will be in touch with you with further information with Members of the Committee if required. Thank you very much.