| Previous Section | Index | Home Page |
Quite apart from illustrating the fact that interviewing is probably not the central aspect of the problem of investigating offences, those figures emphasise that if amendment No. 57 were passed, the chances are that it would have no impact whatever on the present position, because the chances of someone being interviewed for 24 hours post-charge are so negligible that they can be entirely ignored. If we are to allow post-charge questioning with some supervision, which the Minister has begun to concede in certain cases, we may as well grasp the nettle and say that it should apply in all post-charge cases. That would obtain whether the Minister were minded to adopt our amendment No. 15 or new clause 4.
Mr. David Heath (Somerton and Frome) (LD): I share the hon. and learned Gentleman’s view that the Government have moved in the right direction following the discussions in Committee. There is one further anxiety that he has not yet mentioned, however. He said, inadvertently I think, that his judicial supervision would test whether the questioning was required. I see a distinction between what the Government amendment says and his amendment. The Government amendment says
“that further questioning of the person is necessary in the interests of justice”,
and it is important that the interests of justice are included here. His amendment says, however, that
“it is in the interests of justice to allow further questioning in the circumstances.”
That is an important distinction, and I support his formulation rather than the Government’s because his words state that all circumstances should be taken into account by whatever level of judicial supervision to ensure that the interests of justice, rather than the necessity to pursue an investigation, are served.
5 pm
Mr. Grieve: I am grateful to the hon. Gentleman, and I agree. Although I am sure that there are different ways of approaching this—and I am always conscious when proposing an Opposition amendment that it will often be easy to find flaws in it as it will have been drafted without having all the benefits provided by civil servants—I would be grateful if the Minister could respond to amendment No. 16, because it seems to me to set out a perfectly sensible and rational way of proceeding. It says:
“A police officer of at least the rank of superintendent may make an application to a judge of the Crown Court...A judge may grant permission...if satisfied by evidence that:
(a) there are reasonable grounds for believing that the original charge was appropriate to bring; and
(b) it is in the interests of justice to allow further questioning in the circumstances”
“Where a judge grants permission for further questioning...he shall make such directions as he considers appropriate with regard to:
(a) the maximum permitted period...
(b) the total length of time over which further questioning is permitted; or
(c) any other directions as required in the interests of justice.”
Furthermore, we use the expression that I picked up with the Minister: a “related terrorism offence”, which
“means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.”
That is included because I have always had the slight anxiety, which the Government do not appear to share, that there may be a successful challenge to the notion that just because a person is charged with a particular offence, we can automatically go and charge them with another. My gut instinct is that that might be wrong because, in practising criminal law, I have been under the impression that if the matter arises entirely from the same facts, at present there may be objection, although I am conscious that the Minister has been advised—by his civil servants, I think—that that is not the case. To help the Government and because I would much rather that this situation did not arise, we have used the expression a “related terrorism offence”, which I hope effectively covers that point.
Mr. Hogg: I basically agree with my hon. and learned Friend. However, it is possible that both the Government proposal and his amendment might preclude a defendant or offender from being re-questioned if they wished to be so in order to clarify what they had said before. Perhaps we should consider whether the changes should be drafted in such a way as to make it plain that an offender could request re-questioning in order to clarify something or for some other reason.
Mr. Grieve: My right hon. and learned Friend raises an interesting point, although, at this stage, I fear that we shall have to consider it in another place. However, in trying to approach the debate in the same spirit in which I know the Minister has approached it—I repeat my gratitude to him for having taken on board the matters that have been raised—let me say that the Government have the opportunity to look at this further, so that we have a system with which we are all happy.
I do not want to take up much more of the House’s time, so let me simply reiterate that I do not believe that judicial supervision will produce any obstacle to achieving what the Government want. I do not think it will take up time. I do not even think it will cost very much. For all those reasons, it would be wise to include it in the Bill.
Just so that the Minister knows it, our position is that we will welcome new clauses 18 and 19, but I say with some regret that we will vote against amendment No. 57, because we would like the opportunity for our amendment No. 16 to be put before the House. Alternatively, if the hon. Member for Hendon (Mr. Dismore) chooses to press new clause 4 to a Division, we will support him. With that in mind, I hope that whatever the outcome of this evening’s debate, the Minister will examine this matter as the Bill goes through the House of Lords. I have no doubt that their lordships will be taking an interest in the matter, and it is in everybody’s interest that we should get it right.
Mr. Andrew Dismore (Hendon) (Lab):
I am grateful to have the opportunity to follow the hon. and learned Member for Beaconsfield (Mr. Grieve), and I agreed with everything that he has had to say about this matter. I am also grateful to my right hon. Friend the Minister
for the way in which he has approached it constructively and has moved the debate on a bit. The Joint Committee on Human Rights, which I have the honour of chairing, first recommended the introduction of post-charge questioning as long ago as July 2006 as a way of improving prosecution and as a human rights-compliant alternative to pre-charge detention. The proposal was part of a wider package of measures that we suggested.
I accept, as the hon. and learned Member for Beaconsfield has done, that this measure is not a panacea. I also accept the comment of the former deputy assistant commissioner, Peter Clarke, that it is unlikely that a suspect would answer questions after charge, because they do not do so pre-charge. The important fact is that the measure would give us the opportunity to draw adverse inferences at trial if a suspect was not prepared to co-operate.
The Government say that the measure does not breach article 6—the right against self-incrimination—and we agree with that, but only if the right safeguards against the oppressive use of post-charge questioning are put in place. That view is shared by Lord Carlile, the independent reviewer of terrorism legislation. His report on the proposed measures for this Bill stated that the provision
“would require careful amendment to the current Police and Criminal Evidence Act 1984 Codes of Practice, or an additional and specific Code.”
He says that that is particularly the case with regard to
“limitations on its extent, and...protection of the suspect from arbitrariness.”
In particular, he mentioned the importance of judicial supervision of the exercise of the power and the need to amend the code to
“include protection against repetitive or oppressive questioning.”
That view was shared by the eminent Professor Clive Walker and Professor Ed Cape, who is a criminal law professor, when they gave evidence to our Committee. They both expressed their strong concerns about the need for a number of detailed safeguards, particularly because the situation is different after charge, when the accused is in a particularly vulnerable position compared with the position pre-charge. Although many of the physical conditions could be dealt with in the PACE codes, it is important to set out in primary legislation the purpose of the questioning, the limitations on it—in particular, that it should be confined to new evidence—and the need for judicial supervision.
My new clause 4 would give effect to a series of recommendations proposed by the Joint Committee on Human Rights in its eighth report on counter-terrorism policy, published in February 2008, and in its 10th report on the subject. I am pleased that the Government have accepted some of our recommendations in principle and that we have made progress on others, although decisions remain on some.
The two key issues are those highlighted by the hon. and learned Member for Beaconsfield: judicial authority and the time limit for questioning. In their original responses, the Government merely said that it is the prison governor’s responsibility thoroughly to scrutinise the request, as they do for post-charge interviews and other matters—and that was about it. Our view was pretty clearly that that was an inadequate safeguard.
We now have the proposal on authorisation for 24 hours by a superintendent—presumably, that is again subject only to what the prison governor may or may not have
to say about it, and that is not much of a safeguard—and the possibility of authorisation in chunks of five days by magistrates. Of course, it is not just one batch of five days; it can be repeated five days at a time. Some progress has been made, but the position is a long way short of the safeguards that are needed.
I stand by our report’s view that there should be judicial supervision. We have judicial supervision of pre-charge detention, for the purpose ultimately, I suppose, of questioning the suspect, so what is wrong with post-charge questioning also being subject to that judicial authority? Why choose the magistrates? We can only assume from the explanation that we have been given by the Minister that the magistrates would be expected to undertake rather less scrutiny of the police and Crown Prosecution Service request than a High Court or circuit judge would. We are told that it might slow down the process, but it is less time-critical because we are talking about after charge, not before.
I am very concerned about the five-day chunks, because they could become oppressive. We could end up with a cat and mouse game with the suspect. There is no reason why the police should not be able to organise their questioning before they start. We must also bear in mind the fact that a suspect may be on bail, because the offence is not one of the major or serious ones. In that case, the suspect could be rearrested and interviewed in detention for five days at a time.
We are also concerned about the sort of evidence that should be put to the suspect. We accept the argument that it should include new evidence that has come to light post-charge, such as computer decrypts or evidence from overseas that could not reasonably have been received before, but there is a risk of oppressive questioning if old evidence is regurgitated and old questions are put again, effectively giving the police a second bite at the cherry. The new draft PACE code seems to be on the same wavelength as we are with that point, but our view is that, because this is such an important development, the safeguards should be in the Bill.
Chris Bryant (Rhondda) (Lab): I presume that some of my hon. Friend’s new clause would be redundant if Government new clauses 18 and 19 were to be added to the Bill. I understand the point that he makes about post-charge questioning on only new evidence, but I do not understand the point about evidence that
“could not reasonable”—
I think that that is a typographical error and should read “reasonably”—
“have come to light before.”
What would happen if another suspect in the same case decided to provide some evidence that he had—in his mind—reasonably withheld until that point? He might be held to have done so unreasonably, in which case I presume that questioning on it would not be allowed.
Mr. Dismore:
Ultimately that will be for the judicial authority to decide, but we are talking about a case in which, say, a computer has been seized and is in the possession of the police, but has not been decrypted. If the decryption comes after charge, it would be reasonable for that evidence to be put to the suspect. Similarly, if another suspect turns Queen’s evidence and decides to confess, that is evidence that could not reasonably have
been available to the police before. It is a question of common sense. We added that provision to our original intentions to cope with scenarios in which new evidence came to light that might have been available before, but could not have been put to the suspect for those sorts of reasons. That part of the new clause is clear.
We wanted to provide for the presence of the defendant’s lawyer, and the Government have accepted that in principle in the draft PACE code. It is an important safeguard that should be included in the Bill.
We also want the interviews to be video-recorded, and I am pleased that the Government’s amendments will give effect to that. My right hon. Friend the Minister has explained that the exceptions that troubled me in new clause 18(2) were to cover Scotland, so I shall not press that point.
New clauses 4, 7 and 8 would require the judge to review the transcript and provide that there should be no questioning after the start of the trial. The Government appear to agree with the second point, but say that that should be up to the trial judge. Our view is that such a safeguard should be included in the Bill, primarily to ensure that the rules are followed. It should not be left to the uncertainty of how a trial judge may react. For example, if a case is adjourned—
Mr. Grieve: I agree entirely with the hon. Gentleman. I find it inconceivable that someone could be interviewed during a trial.
Mr. Dismore: I agree, but unless it is excluded, one cannot say for sure that it will not happen. The PACE code seems to be heading in that direction. Let us suppose that a trial were adjourned for some reason. The trial judge could allow questioning to go ahead because there was time for it. The only way to prevent that for sure and ensure that the rules are kept is to include a provision in the Bill. That is why we also want to provide that the judge should review the transcript of the examination of the suspect, because the judge can then check whether the parameters laid down when he or she gave consent have been properly followed. That would effectively mean that the whole process would be subject to judicial supervision, which is what Lord Carlile and the eminent professors seem to recommend, and with which we agree. We should not leave those fundamental and essential safeguards to the uncertainties and vagaries of a trial judge, who may react in a different way.
To conclude, we certainly welcome the introduction of post-charge questioning. There is a considerable measure of agreement about the safeguards. We need, in particular, proper judicial authorisation and fair maximum time limits to avoid oppressive questioning and the risk of no fair trial, which would be the case if new clause 4 were not accepted.
5.15 pm
Tom Brake (Carshalton and Wallington) (LD):
I, too, want to start my comments by thanking the Minister for what he has taken on board from the concerns that were expressed in Committee. I am sure that other Opposition Members have had the experience of serving
in Committee when a range of amendments have been tabled, many of which were perfectly straightforward, and none has been taken on board. Here, we have an example of some having been taken on board and the Government coming back with their own proposals. From that point of view, it has been a positive experience.
It is clear that there is almost universal consensus that post-charge questioning is necessary, but there is also almost universal consensus on the limits of its effectiveness. The Minister has said that it is not a silver bullet, and all Members in the House, and those who were on the Committee, would agree, because terrorists are inclined not to respond to questions. Post-charge questioning should be part of the panoply of tools or measures that are at our disposal to tackle terrorist cases.
I am pleased to say that, with varying degrees of enthusiasm, the Liberal Democrats can support all the amendments, from the proposals tabled by the Government to those tabled by the official Opposition and the Joint Committee on Human Rights. The Government’s proposals create a system of safeguards over post-charge questioning, including judicial oversight by justices of the peace after the first 24 hours and video recording of the interview.
The Conservatives have tabled a group of amendments that involve an application to the Crown court, which can then judge the legitimacy of the case and set out conditions. The Minister described those amendments as creating a burden, but there are clearly cases where it is worth creating a burden because a contribution is made. Members often bemoan the number of forms that the police have to complete, but there are some good reasons why some of those forms are completed. They create a burden, but they make a positive contribution. The hon. and learned Member for Beaconsfield (Mr. Grieve) eloquently set out why, if there were a burden, it would be strictly limited.
Mr. Nigel Evans (Ribble Valley) (Con): The hon. Gentleman will be aware that the Government are planning to get rid of some of those forms, or at least to reduce the burden, by implementing the Flanagan report. Will his party support the implementation of that report?
Tom Brake: I do not think that it would be appropriate for me to respond to that point. Clearly, no Member will say that they are in favour of unnecessarily burdensome form-filling. That is my view, and I am sure that it is the view of every other Member in the Chamber.
The hon. Member for Hendon (Mr. Dismore) eloquently set out the reasons why the JCHR has come up with a much more detailed series of amendments on the appropriate judicial oversight as well as the right to legal representation. The Minister has highlighted a point in the JCHR proposals that might require some refinement. Will requiring the presence of a defendant’s lawyer mean that there will be a loophole that people can use? That might need some refinement.
We are glad that the Government have taken on board so many of the points raised in Committee and brought forward amendments that introduce proper safeguards for post-charge questioning. We accept that that is not a cure-all, but it is important that that type of questioning does not become a form of intimidation—especially in terrorist investigations, where the evidence thresholds are lower.
| Next Section | Index | Home Page |