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Government amendments Nos. 58 and 59.
Amendment No. 14, page 61, line 18, clause 92, at end insert ‘, subject to subsection (7).’.
Amendment No. 45, page 61, line 18, at end insert ‘subject to subsections (7) and (8)’.
Amendment No. 13, page 61, line 21, at end add—
‘(7) Section 24 (post-charge questioning: England and Wales) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 (c. 60) and referred to in section 24(4) shall have been agreed by a resolution of each House of Parliament.’.
Amendment No. 46, in page 61, line 21, clause 92, at end add—
‘(7) Section 22 (period of pre-charge detention) and Schedule 2 (amendments relating to a period of pre-charge detention) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 regulating such detention shall have been approved by a resolution of each House of Parliament.
(8) Section 24 (period of post-charge questioning) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 and referred to in section 24(4) shall be approved by a resolution of each House of Parliament.’.
Mr. McNulty: I begin by reminding hon. Members that some further documents should be read alongside this group of amendments and new clauses. I made it clear in Committee that, were I in a position to do so, I would produce draft PACE—Police and Criminal Evidence Act 1984—codes for post-charge questioning. We have done so and I am assured that they are available in the Library, if not the Vote Office. For the sake of completeness, I agreed that with regard to clause 1 on the “Power to remove documents for examination”, I would introduce draft amendments to code B of PACE. We have done that, and they are also available. Finally, there were draft rules of court relating to the asset-freezing provisions. I said that I would introduce draft rules of court relating to asset-freezing, and they are also available. That is important, not least because, although there has been widespread support for the introduction of post-charge questioning for the offence charged in terrorism cases, people have rightly been concerned that safeguards should be put in place to protect the rights of those subject to questioning. I said in Committee that I had previously considered it better to leave the safeguards to the PACE codes, which is the normal practice in such circumstances. However, on reflection, I have decided that some safeguards should be included in the Bill, as hon. Members can see from our amendments.
Government new clauses 18 and 19 introduce a compulsory requirement for post-charge questioning to be video recorded. We believe that video recording of all interviews will guard against accusations that the questioning of the suspect was oppressive, although there are some areas, for example in Scotland, where facilities for video recording with sound are not yet available. I know that this is clumsy, but there is therefore a power for the Secretary of State to disapply the compulsory requirement in Scotland by means of an affirmative order.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con):
I welcome the requirement that the right hon. Gentleman has just outlined and it would be a good
precedent for establishing the same for other forms of questioning. Video recording should be extended throughout questioning under the PACE rules.
Mr. McNulty: I do not doubt that that is an absolutely fair point, but it is not relevant to our deliberations. However, I am sure that the right hon. and learned Gentleman will pursue the matter elsewhere.
Government amendments Nos. 57, 58 and 59 mean that post-charge questioning for terrorism suspects could be authorised for up to 24 hours, in the first instance by an officer of the rank of superintendent, and that any subsequent questioning would require authorisation by a justice of the peace. The justice of the peace could authorise detention for post-charge questioning for a maximum period of up to five days if they believed that such questioning was in the interests of justice and that the police were conducting their investigation diligently and expeditiously. Further periods of detention for questioning would require a further application to a justice of the peace.
I have also prepared an initial draft of PACE code H, which will apply in the post-charge questioning of terrorism suspects, and that includes further safeguards. In particular, those PACE safeguards will include a right to legal representation during all questioning, will require the authorisation of post-charge questioning by an officer of the rank of at least superintendent in conjunction with the prosecutor, and will limit the circumstances in which the questioning could proceed. Our amendments, when considered in conjunction with the amendments to PACE code H, will provide sufficient safeguards for suspects subject to post-charge questioning.
I would like now to comment on the amendments and the new clause tabled by others, which all call for authorisation by a judge. That would be inappropriate, as it would create a significant and unnecessary burden. Authorisation by a High Court judge could require extensive work by the police and the prosecutors to prepare the case for judicial authorisation. Furthermore, as the Director of Public Prosecutions told the Committee,
“judicial oversight...could significantly slow down the process.” ——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 45, Q118.]
Amendments Nos. 15 and 16 would require a judge to accept that
“there are reasonable grounds for believing the original charge was appropriate”.
That could lead to lengthy proceedings, which could be tantamount to the trial for the offence. Authorisation by a judge would also be a costly use of the court’s time.
New clause 4 would prevent post-charge questioning before the commencement of trial. The Government do not believe that the Bill should make express provision for that, as there may be situations when questioning close to the trial is unavoidable, such as to prevent the person from causing injury to others or if a retrial were to occur. In such cases, every effort would be made to discuss the issue with the suspect, or his or her legal representatives, in order to minimise disruption to the court process. Guidance on that is covered in the draft codes of practice, which make it clear that police and prosecutors should seek to avoid post-charge questioning that may limit or restrict the ability of the person, or his or her defence, to prepare adequately for court proceedings.
New clause 4 would require the presence of the defendant’s lawyer before questioning could take place. The Government accept that all those subject to post-charge questioning should have access to legal representation. Indeed, we have made explicit provision for that in the draft codes of practice. However, we are concerned that new clause 4 would allow the suspect to veto questioning, as they could simply refuse to allow a lawyer to represent their interests.
New clause 4 confines the questioning to new evidence that has become available since the accused person was charged. We believe that it would not be appropriate or practical to confine post-charge questioning to new evidence that has become available only following charge.
Mr. Dominic Grieve (Beaconsfield) (Con): The Minister will know that we registered some anxiety in Committee over the question of whether such questioning should be confined to new evidence. Another issue was whether the Government are right that re-interviewing can always take place when a separate charge is being considered. The Minister will know that there have been mixed views about that, so will he comment further?
4.45 pm
Mr. McNulty: If the hon. and learned Gentleman will bear with me, I will come to that shortly.
As I was saying, we think that confining post-charge questioning to new evidence could make all post-charge questioning subject to challenge on the basis of whether the evidence was available at charge. We also consider that there may be circumstances in which it would be appropriate to question the suspect about evidence available pre-charge—for example, analysis of evidence collected after charge could cast a new light on evidence that was available pre-charge. This is a dynamic process, as people will know.
Amendments Nos. 15 and 16 would allow questioning after charge for offences other than the offence for which an individual has been charged—namely, a “related terrorism offence”. The Government believe—and the matter has already been alluded to—that this is already possible. If, for example, the police charge a suspect with a lesser terrorism offence and further evidence becomes available that a more serious offence was committed as part of the conduct in question, the police could re-caution the suspect—or re-arrest them if on bail—and interview them about the more serious offence.
We believe that judicial review of the transcripts of post-charge questioning is also unnecessary, as the trial judge could refuse to allow prosecution evidence if it was believed that it had been obtained by unfair questioning, including confessions obtained through the oppression of the suspect. It is also unclear what actions a judge reviewing a transcript would undertake, should discrepancies be found.
Finally, amendments Nos. 13, 14, 45 and 46 would require codes of practice for post-charge questioning and pre-charge detention before the Bill could come into effect. It is already the case that codes of practice must be issued for post-charge questioning; as I have said, draft codes have already been circulated. Pre-charge
detention provisions will only require minor amendments to PACE codes. Although these will be done before anyone is detained pursuant to these provisions, having a statutory requirement for those codes to be issued and approved by Parliament before commencement is, we think, unnecessary, so I ask Members not to press any of these four amendments.
For the reasons I have outlined, I commend Government amendments Nos. 57, 58 and 59, as well as Government new clauses 18 and 19, to the House. In doing so, I accept, as I acknowledged in Committee, that these are sensitive matters and that post-charge questioning is not a simple panacea. I also accept that a whole range of models of post-charge questioning are proffered by various experts.
Pete Wishart (Perth and North Perthshire) (SNP): The Minister will know of the particular sensitivity about how this provision will apply to the Scottish legal system. He will be aware that it is a principle of Scottish common law that when someone is arrested and charged, they become the ward of the court and it is crucial that nothing is done to prejudice their trial. Does he accept that there are issues, perhaps difficulties, with how post-charge questioning will apply to Scottish common law?
Mr. McNulty: I do, just as there are in the broader sense of the common-law base. That is what we are trying to get around. I genuinely believe that we have reached a place where post-charge questioning could work. It is a shift—a concession, in a sense—on my part from saying that it could all be done through PACE 2 to having some safeguards built into the Bill. I genuinely think that we have got the balance about right, notwithstanding what the hon. Gentleman says about Scottish common law. I commend the amending provisions to the House.
Mr. Peter Bone (Wellingborough) (Con): On a point of order, Mr. Deputy Speaker. The Minister said that the draft PACE codes were freely available. I have been to check at the Vote Office and found that they are not available.
Mr. Deputy Speaker: That is not a matter for the Chair, and I am sure that any omission will be put right as soon as possible.
Mr. Deputy Speaker: Does the Minister wish to speak?
Mr. McNulty: Further to that point of order, Mr Deputy Speaker. I had finished my speech and sat down, but I want to point out that I thought that I had made it clear that the documents were in the Library, not the Vote Office.
Mr. Grieve:
I thank the Minister for listening to some of the representations made in Committee on post-charge questioning. Although I shall have to disagree with him in a little while on one matter, I want to make it clear that I am the first to acknowledge that the Government did listen and that new clauses 18 and 19 reflect that. I go further and am prepared to acknowledge that
Government amendments Nos. 57 to 59 also attempt to reflect some of the concerns raised in Committee about the process.
It is almost universally agreed on both sides of the House that post-charge questioning is desirable in terrorist cases. That said, there has perhaps always been a slight tendency to see it almost as a panacea that can simply be wafted in without much further consideration. Plainly that is not the case, as the Minister acknowledged in Committee.
First, as I have always accepted, post-charge questioning will not necessarily deliver all sorts of remarkable results. Secondly, when a person has been charged, one cannot simply ignore the fact that that point in the criminal justice process has been reached. Within a few hours, or overnight, the person is likely to be brought before a magistrates court. Under the fast-track procedure on committal that this country now has, the person is usually also in the Crown court within a very short period.
The measure envisages the possibility of a person being interviewed, or re-interviewed, right up to the moment when the trial process begins. In those circumstances, it is perfectly obvious that injustice could take place, and that the process could also be oppressive. As the Minister acknowledged in Committee, were any of those things to take place, at worse the trial process might be vitiated as unfair, in which case we would not get a true verdict and someone might escape prosecution, or it might result in the end of the prosecution process altogether. It is therefore in everybody’s interests that we succeed in getting things right.
In new clauses 18 and 19, the Government have done exactly the right thing in respect of video recordings and the PACE codes. I greatly welcome that, and we will support them. But the Opposition continue to have a difficulty over whether judicial authorisation should take place. The Minister thinks that judicial authorisation or scrutiny would be ponderous. My feeling is that it need not be ponderous at all. If he will consider our amendments Nos. 16 and 15, he will note that we have moved the process from the High Court, as we discussed in Committee, to the Crown court. In all probability, much of the questioning will take place when the defendant is already before the Crown court, and the Crown court judge, who might eventually do the trial or whatever it might be, will already be seized of the matter.
Making an application to the court ought not to be a complicated matter; it is a matter of someone attending a Crown court for a couple of hours on a weekday morning for the sorts of applications that take place routinely in criminal justice proceedings. In most cases, I am absolutely confident that the judge, having considered and had the reasons for a further interview being required explained to him, would have absolutely no difficulty in giving the authorisation. Such a process would provide for a level of scrutiny, whereas the Government’s proposals, to which I shall return, seem not to do so. Slightly more bizarrely, the Government have made a move in our direction about providing a measure of judicial scrutiny, but in a way, as I shall try to illustrate in a moment, that will not really make any difference.
Mr. Hogg: May I explore my hon. and learned Friend’s thinking on this matter? Is he suggesting that the application should be ex parte or inter partes?
Mr. Grieve: The application should be inter partes, but an inter partes hearing in front of a Crown court judge need not take up an enormous amount of court time. All that needs to be done is for the prosecution to indicate to the defence that it wishes to re-interview and that it has the grounds to fulfil the necessary criteria. It is possible, of course, that the defendant will consent to being re-interviewed. If he consents with his lawyers present, I do not see why the interview should not proceed without an application, but if there is an argument over it, presumably the matter could be put before a Crown Court judge, who could reach a decision after considering the circumstances. He could also exercise a watching brief, so that if a problem arose, an application might again be possible.
Mr. John Gummer (Suffolk, Coastal) (Con): Surely the procedure would be complicated and difficult only if there were a large number of such cases. Given that such cases will be unusual, the procedure surely does exactly what my hon. and learned Friend wants: it ensures that there is a little halt while people decide whether it is sensible to re-interview someone. Will he press the Government to tell us how often they think the procedure is likely to be used?
Mr. Grieve: I am happy to press the Minister to answer that question, but I think that I can almost give my right hon. Friend the answer now. In Committee, we discussed the number of times that the problem was likely to arise. We need only consider the number of terrorist cases. Mercifully, we are not so burdened with those at present that such circumstances are not unusual, and I do not believe that they will arise very often.
The other reason why I think the circumstances will not arise very often—and it is one of the reasons why I consider Government amendment No. 57 to be deficient—is that people who have been detained for a long time without charge have not necessarily been questioned for very long. Amendment No. 57 would allow a person to be questioned for 24 hours, although obviously not continuously, on the authority of a senior police officer. Only after that would it be necessary to obtain permission from a magistrate to continue the questioning for another five days. It is at that point that I begin to feel that the Government are not really addressing the issue.
We know that there have been two instances in which a person has been detained for up to 28 days and subsequently charged. As it happens, I have the figures before me showing the amount of time in those 28 days for which those people were actually questioned. One was questioned for 13 hours and 29 minutes in all, while the other was questioned for 14 hours and 34 minutes. In one case, the longest interview lasted for one hour and 58 minutes, and in the other it lasted for one hour and 37 minutes.
After the 14th day of detention, one defendant was not interviewed on 14 days in the subsequent 14-day period, and the other was not interviewed on 11 days. The figures break down as follows: in the case of one, 38 minutes on day 19, 14 minutes on day 20, one hour and 11 minutes on day 26, and 15 minutes on day 27; in the case of the other, 54 minutes on day 19, one hour and 58 minutes on day 20, and one hour and 17 minutes on day 26.
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