 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism Bill |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
WitnessesSir
Ken Macdonald QC, Director of Public Prosecutions, Crown Prosecution
Service
Sue Hemming, Head
of Counter-Terrorism Division, Crown Prosecution
Service
Lord Goldsmith
QC
Lord Dear
QPM
Rt Hon. Elish
Angiolini QC, Lord Advocate, Scotland
Public Bill CommitteeTuesday 22 April 2008
(Afternoon)
[John Bercow in the Chair]Counter-Terrorism BillWritten evidence to be reported to the HouseCTB 01
Equality and Human Rights
Commission
CTB 02
Justice
CTB 03
Association of Chief Police
Officers
4
pm
The
Chairman:
I begin by warmly welcoming colleagues, our
expert witnesses and external observers. For the next session we have
up to 50 minutes but not a moment longer. I begin by asking our
witnesses, for the record, formally to introduce themselves.
Sir
Ken Macdonald:
I am Ken Macdonald, the Director of
Public Prosecutions.
Sue
Hemming:
I am Sue Hemming, the head of the
counter-terrorism division in the Crown Prosecution
Service.
The
Chairman:
Thank you very much indeed. Based on our
experience in the second evidence session this morning, I have
suggested to colleagues that we start with questions on matters other
than pre-charge detention without trial. When those questions are
exhausted, we will naturally move on to that very important matter.
Without further ado, let us get the questions
underway.
Q
118118
Mr.
Dominic Grieve (Beaconsfield) (Con): Good afternoon. May I
turn first to the issue of post-charge questioning? I notice, Sir Ken,
that when you gave evidence before the Home Affairs Committee back in
November, there was a general agreement on the desirability of
post-charge questioning, but you highlighted the issue of safeguards on
how it operates. If one looks at the Bill, one sees that there is no
judicial authorisation for post-charge questioning. Although it is
suggested that there should be amendments to a new PACE code—we
obviously do not have that at the moment—in order to regulate
it, no judicial element is introduced. From your point of view as
prosecutors, do you think that that is a satisfactory state of affairs?
Would it be better if there were a degree of judicial authorisation to
ensure that there are not subsequent arguments in court about whether
behaviour has been oppressive in any way to those who are being
interviewed, over what could of course be a prolonged period between
charge and
trial?
Sir
Ken Macdonald:
I do not believe that judicial
oversight is necessary, although that is a matter for Parliament. A
difficulty with judicial oversight of the sort that you are suggesting
is that it could significantly slow down the process. I imagine that
the judge would be relatively reluctant to make an order of that sort
until he was well seized of the case. We are envisaging
here questioning that takes place fairly swiftly after charge. However,
I do believe that some element of supervision would be desirable. It
seems natural that the police should consult the prosecutor in the
case, so that a decision can be taken on whether post-charge
questioning in the circumstances of that case is appropriate. An
element of supervision is desirable, but judicial supervision could
slow the process down too much.
Q
119
Mr.
Grieve:
May I turn briefly to data sharing, before we move
on to what is probably the main issue? Are you happy with the
provisions for extensive data sharing? While acknowledging that there
is an obvious need to be able to share data, particularly to prevent
terrorism, does the scope provided for in the legislation go further
than is necessary simply to deal with terrorist cases? It seems to
extend into a wider area, particularly when it comes to material that
might have been collected by the security services.
Sir
Ken Macdonald:
This is a matter on which there are
strong opinions, both inside and outside Parliament. Data sharing is a
hugely useful investigative tool and source of evidence for
prosecutors. We have seen the enormous use that we have been able to
make of the DNA database—I am thinking particularly of cold case
reviews, but material of that sort is increasing deployed by
prosecutors to great effect in our Crown courts. Data sharing is a
valuable tool, and one that we would
encourage.
Q
120
Mr.
Grieve:
May I ask a third question, this time on
aggravated offences? When you gave evidence back in November, there was
agreement that aggravated offences had a role, but you had some slight
reservations about the extent to which they could sometimes complicate
matters, particularly because they require areas of proof that might
not otherwise be required. Having seen the Bill, are you happy with the
way in which that measure has been formulated?
Sir
Ken Macdonald:
I said that I thought that it needed
careful examination, and the reason for that answer was that normally,
if a case is terrorist connected or terrorist aggravated, it will be
charged as a form of terrorist offence—for example, terrorist
financing, encouragement of terrorism, or another of the many new
offences that we have at our disposal. I think Miss Hemming and I both
struggle a little to imagine a situation in which we would be
prosecuting a case in the Crown court and only tangentially, perhaps at
sentencing, suddenly revealing our view that it is a
terrorist-aggravated offence. We would then have to prove that beyond
reasonable doubt, which would suggest that it should have been sensible
to prosecute it as a terrorist offence in the first place. The measure
can work, if that is what Parliament wants. I was expressing some
hesitation about the extent to which it might be useful, but that is a
matter for
Parliament.
Q
121
Mr.
David Heath (Somerton and Frome) (LD): Sir Ken and Sue
Hemming, I am pleased that you were able to join us today. I want to
ask you about the use of intercept evidence. I note, Sir Ken, that you
have been a strong proponent of that. We heard from the Metropolitan
Police Commissioner this morning that in his view, even if progress
were to be made in that area, it is inconceivable that arrangements
could be brought into practical effect
for a period of some years, and that it is not therefore a relevant
consideration for this Committee? Do you agree with that
assessment?
Sir
Ken Macdonald:
It sounds a little pessimistic. The
matter is not straightforward and there are good arguments on both
sides. The Chilcot review indicated that that is something that we
should do if we can, although it set a number of tests that need to be
met. They are being worked on, and we are contributing enthusiastically
to that work. As you said, we have long believed that the material
would be valuable and that we should find a way of using
it.
I
would not say that it is something that should take years, and as far
as I am aware, it is not the Government’s intention that the
process of completing Chilcot ought to take years. The imperative is to
get the work done as soon as
possible.
Q
122
Mr.
Heath:
This is a general question, and will have a bearing
on what we discuss later in terms of pre-charge detention. Again in the
evidence from the police this morning, Mr. Quick, who gave
evidence on behalf of ACPO, gave the impression—I do not want to
put words into his mouth—that he felt that the prosecuting
authorities were involved only at a late stage in the investigation
process, and might not be aware of the complexities that the
investigating officers had to face in trying to produce sufficient
evidence to put before a court. Do you, as prosecutors involved from
the early stages, share that
characterisation?
Sir
Ken Macdonald:
No, it is not a characterisation that
I share. We created the counter-terrorism division in 2006 to create a
centre of world expertise in prosecuting this work. We have achieved
that, and we have a 92 to 93 per cent. conviction rate. We have more
experience than any other public prosecutors in the world with this
sort of work, and we do it to an exceptionally high standard. We have
an extremely close relationship with the counter-terrorism command at
Scotland Yard. Miss Hemming and her colleagues work daily with officers
from the very earliest stages of investigation, often well before
arrest and sometimes at the stage when operations are being designed.
The model that we now follow in our relationship with the police, which
we refer to as the prosecution team, is for prosecutors and
investigators to work together at the earliest stages, as they have
traditionally done in other jurisdictions, so that we can obtain the
best evidence in admissible form at the earliest possible stage, and
present the strongest case at trial. We have a close and enduring
relationship with the police, which involves early working on
cases.
The
Chairman:
Thank you. Sue Hemming, please feel free to come
in whenever you want to. I appreciate that you and Sir Ken are
appearing together, but we want to hear from both of
you.
Q
123
Martin
Salter (Reading, West) (Lab): Sir Ken, just for the
record, because some of my colleagues may not have heard you, did you
say that you are
proponent?
Sir
Ken Macdonald:
A proponent,
yes.
Q
124
Martin
Salter:
It would have screwed up my questions completely
if it was the other way round, so thank you for clarifying
that.
Sir
Ken, you gave very helpful evidence to the Home Affairs Select
Committee inquiry into intercept evidence, if I may remind you of it.
In our report, we said:
“We
found the DPP’s clarification of the problems surrounding
disclosure very helpful: if the Crown Prosecution Service has already
rowed back from a misinterpretation of the extent of disclosure
required under 1996 legislation, then it should be possible to cope
with the amount of transcription that the defence could legally
require.”
The
obstacles that the police appear to be putting in the way of, or the
arguments that they are advancing against, the use of intercept
evidence appear to be twofold: first, the potential disclosure of
intelligence sources and, secondly, the bureaucracy involved in
transcription. You clarified that for the Home Affairs Committee, and
it would be very helpful to us if you could clarify your view about why
that transcription is logistically possible and, indeed, how it works
to the advantage of your counterparts in other
jurisdictions.
Sir
Ken Macdonald:
Certainly, in other jurisdictions,
they regard that material as absolutely indispensable. The Americans
told me that they could not remember an organised crime prosecution in
the United States that last proceeded without intercept material. The
Australians told me that people who did not use this material were not
“serious” about prosecuting organised crime.
On the other
hand, I recognise that there are arguments on both sides. One is
certainly the bureaucracy involved. It is essential that we find a
system that does not place undue burden on the police or agencies and
cause them to divert resources from the front line. Under our law, what
is disclosable is any material that we intend to rely upon in evidence.
In addition, we must disclose any material that we possess that, in our
judgment—nobody else’s—undermines our case or
assists the defence’s case.
In recent
years, a practice has grown up of the prosecution simply opening the
keys to the warehouse and handing over everything so that the defence
could make the determination for itself. That practice was never in
accordance with the law. When I became DPP, I was determined that we
ought to return to the statutory basics in order to restrict
unnecessary disclosure in criminal cases, which was being used to
derail trials by swamping them with a mass of irrelevant materials. We
are now much more focused in what we
disclose.
As
far as transcripts are concerned, we have to disclose those upon which
we intend to rely. We also have to disclose those that seem to
undermine our case or assist the defence’s case. Beyond that, we
have no duty. Lord Bingham, the senior Law Lord in the case of H and C,
has decried the practice of defence fishing expeditions, which derail
the trial process in the vain hope of turning up something that might
be useful. We are much more careful about disclosure now. The judiciary
is much clearer as well about what should be disclosed. My view is that
general principles of common law and statutory disclosure in English
law can be relied upon to make the disclosure of transcripts in
organised crime and terrorist cases both appropriate and
manageable.
Q
125
Mr.
Ben Wallace (Lancaster and Wyre) (Con): I want to ask two
questions. The first follows on from the previous question about
interception. When you say
that you are a proponent of interception and the use of intercepts, is
that as defined under the Terrorism Act 2000, covering post, e-mail and
telephone, but not surveillance? There is often a misconception that
bugs in rooms, listening devices or cameras are in fact not considered
intercept as defined in previous law. Or are you saying that both
surveillance and intercept should be
admissible?
Sir
Ken Macdonald:
It should all be admissible, subject to the
normal rules of evidence and subject to us not disclosing material that
would compromise national security or the capability of the agencies.
Currently, mail intercepts are perfectly admissible, as too are bugs in
rooms and in telephone handsets. In essence, what is not admissible is
material that is tapped in a more sophisticated way. Everything else is
currently admissible, and we rely on it. We also rely on intercept
material from abroad, which we use to very good effect. Recently, we
got a string of convictions in people trafficking cases and guilty
pleas as a result of intercepts sent to us by the German police, I
think—certainly, it came from continental police. That happens
quite frequently. They are always surprised when we tell them that we
can use their intercept, but not
ours.
Q
126
Mr.
Wallace:
Secondly, on the post-charge interview, in your
experience, in how many cases has a lot of the evidence hinged on
forensic evidence rather than cross-examinations of suspects? We heard
from the police this morning that in 90 per cent. of the interviews
that they conduct, the suspect does not say
anything.
Sir
Ken Macdonald:
That is certainly true. In terrorism
cases, including the old IRA cases and cases involving the newer form
of terrorism, it is comparatively unusual—very unusual, I would
say—for suspects to answer questions. What is important,
however, is that if they do not answer questions, the jury can be
directed by the judge that they may draw an adverse inference against
the defendant for his failure to answer a
question.
The
importance of that in post-charge questioning is as you indicated in
your question. An awful lot of evidence comes to light after charge. At
present, we have no way of putting it to a suspect to obtain an adverse
inference if he refuses to answer questions about it, and we do not
think that that is fair. We think that it should be open to the
prosecution to place before a suspect the fruits of the investigation,
even if they come about after charge. If the defendant wants to answer,
fine—his answers can be given in evidence. If he does not want
to answer, why should the Crown not be allowed to have an inference
drawn from his failure? If that can be done if the defendant refuses to
answer questions pre-charge, why not
post-charge?
Q
127
Mr.
Wallace:
If the Bill were passed and you were in
a situation where you had a post-charge questioning
facility, would you be more likely to allow a charge against a suspect
to go ahead, given that you had the new power? This is going slightly
into the pre-trial detention issue, but you could lay a charge. I
suppose that the threshold would not be as high with the new
power.
Sir
Ken Macdonald:
I do not think that the power would
make any appreciable difference. The reason is that, as I said,
suspects rarely answer questions in
terrorism, or indeed organised crime cases. I am not sure that the
possibility of an inference from silence would be likely to tip
consideration of whether a threshold charge exists from
“no” to “yes”. My own view is that the
difference would be marginal. I do not know whether you share that
view.
Sue
Hemming:
Yes, I do share that view. Obviously, it
makes a difference if the jury can draw an inference if the judge
allows it to do so, but the key issue is that a lot of important
evidence comes to light after charge, and those issues should be put to
the defendant, as he will be at that stage, in the same way as anything
would be put to him before the charge is put. He can be given an
opportunity to give an explanation if he wishes to do so. If he does
not, he will be subject to the same powers that exist before charge;
that is, we can ask the judge to draw an adverse inference. The
difference in the charge will be marginal, but obviously there will be
a difference. Otherwise, there would be no point in having the
inference.
Q
128
Mr.
Wallace:
This question is on an entirely different part of
the Bill and is about territorial extent. From lessons from around the
world, we know that specialist prosecutors are more successful in
dealing with this type of crime. I suppose that that is why you
invested in your specialist unit. The argument that is proposed by the
Scottish Law Society is to keep a separation, or at least to have a
requirement for a certain number of hurdles to be overcome before you
could take control of a case that may have implications in Scotland. In
your experience, would the Bill make things easier? Does it remove some
of the barriers that existed in the recent case of the London and
Glasgow bomb plots? Does the Bill remove barriers or unnecessary
bureaucracy?
Sir
Ken Macdonald:
If you do not mind, it would be
awkward to talk about that case, which is presently before the courts.
What I can say is that we have invested a good deal of time and effort
over the past two or three years in developing our relations with the
Crown Office and the Procurator Fiscal Service in Scotland. Indeed, I
was in Glasgow only yesterday meeting with colleagues from the PFS, and
we speak frequently with people in Edinburgh. We have a very good and
co-operative relationship, and I do not at present see barriers to our
doing our work as we wish to. The proposals in the Bill will certainly
assist.
Q
129
Martin
Salter:
Sir Ken, I omitted this point earlier, but I know
that clause 60 will amend section 18 of the Regulation of Investigatory
Powers Act 2000 to enable the disclosure of intercepted communications
in asset freezing proceedings. Does not it strike you as slightly
strange—in my view it is slightly barmy—that the Bill
proposes the use of intercept evidence to freeze a suspect’s
assets but not to secure a conviction in a terrorist case? Could you
clarify that for
me?
Sir
Ken Macdonald:
I shall not describe anything in the
Bill as
barmy.
Sir
Ken Macdonald:
I think that these proceedings would
presumably be less public and would not involve juries. That might be
part of the rationale for it.
Sue
Hemming:
I think that that must be right, because the
disclosure regime obviously does not apply to a different sort of
proceedings in the same way that it would to criminal proceedings, so
the disclosure aspects of it will be
different.
Sir
Ken Macdonald:
The issue in criminal proceedings on
disclosure and public interest and all the rest of it is not what we
are going to tell the judge, but what we will say in open court and
what the jury will hear, which would not apply in asset
freezing.
Q
130
Patrick
Mercer (Newark) (Con): Although I do not wish to conflate
the two, were the period of pre-charge detention to be extended beyond
28 days, there might be certain parallels with what happened during
internment in Northern Ireland. I would like to hear your views on
that. First, what would be the reaction of the vulnerable communities
to an extension beyond 28 days, most particularly the Muslim community?
Secondly, what would be the effect on intelligence sources who are
currently talking to us? Thirdly, what do you feel would be the effect
on terrorist
recruiting?
Sir
Ken Macdonald:
I do not think that one ought to
confuse internment with pre-charge detention. Pre-charge detention is
not internment. My view about the time period is quite well known, but
I would not confuse pre-charge detention with internment. Internment
without trial is an executive act designed to take people off the
streets and incarcerate them without much process of law. I am not an
expert on what happened in Northern Ireland, but broadly that would be
internment. Pre-charge detention means holding people in the
expectation that sufficient material will be forthcoming to charge them
with a criminal offence and put them into the court system. It is a
procedure that is entirely controlled by the
judiciary.
Q
131
Patrick
Mercer:
I absolutely accept that and do not wish to
conflate the two, but our enemies
will.
Sir
Ken Macdonald:
Certainly, in the debate that is
currently raging, a lot of people are confusing pre-charge detention
and internment. I hope that we have not done that, as I think that the
two are distinct. It is certainly true that people will wish to do so
for propaganda purposes, and perhaps people are doing so.
I am not sure
that I am best qualified to answer the other questions that you asked,
Mr. Mercer. We spend quite a lot of time looking at that
issue and Miss Hemming goes around the country addressing Muslim
community groups to try to reassure them about how we do our work, why
we do it and how we try to be fair. I find that to be a useful process,
and it is certainly something that we will continue to do. We see it as
an important part of our work to win public confidence and engage with
communities that might feel that they are being marginalised or
discriminated against. We do not discriminate against any communities
in how we do our work. I think that issues about the effect that this
will have on particular communities is beyond my
expertise.
Q
132
Patrick
Mercer:
I certainly was not an expert on internment, but I
was definitely a witness to it and saw the damaging effect. I return to
the point that
whatever we say rationally about it here, our enemies will use it none
the less. To take this a stage further, when we extended the period of
detention from 14 days to 28 days, did any of you get a feel that our
enemies had seized upon that as a propaganda tool that they could
already use? I appreciate that there might not be an answer to
hand.
Sir
Ken Macdonald:
Sue Hemming, as I have said, went
across the country speaking to meetings of community groups that we had
organised, so she will have a decent sense of that.
Sue
Hemming:
There is probably discomfort among certain
communities about extended detention, but a lot of that relates to a
lack of understanding of exactly what its purpose is, how it is
operated and what the safeguards are. As Sir Ken has said, a lot of it
is about confusion with internment. There are quite a few safeguards,
in that the police, the prosecutor and then the judge have to look at
it on a regular basis. Making an application for a warrant for further
detention is not an easy process, nor should it be. The decision about
whether to make an application in the first place is not one that is
taken readily. From the community point of view it is as much about
explaining what it is, how it works and why we need it, as it is about
the length of time; however, there may come a length of time when it
becomes more
uncomfortable.
Q
133
Patrick
Mercer:
May I pay tribute to the work that is being done?
Certainly coming back from the Muslim community, with whom I mix
frequently, I think that the message is being put across effectively.
However, are more resources needed to
help?
Sir
Ken Macdonald:
You are inviting us to ask for more
money. We obviously prioritise our own resources. We put quite a bit
into this, and I think it is money well
spent.
The
Chairman:
May I gently point out to colleagues that at
this stage we are supposed to be covering matters other than pre-charge
detention without trial, in which context a number of people are still
seeking to catch my
eye?
Q
134
Ms
Dari Taylor (Stockton, South) (Lab): I am not confident
that you will respond to this, but I should like to put this question
to you in case you feel that it is appropriate. There is concern that
using intercept evidence could define agencies’ weaknesses in
their investigations into terrorism. Do you have a sense that that
could be the case, or are there sufficient safeguards to ensure that
that does not
happen?
Sir
Ken Macdonald:
Obviously, that is a danger that has
to be avoided and obviously it is one of the concerns that has been
raised. I can only say that other jurisdictions that are very similar
to ours, such as the Australian jurisdiction, the Canadian jurisdiction
and the United States jurisdiction—we all understand that the
Americans have considerable capacities in this area—manage to
develop systems for the admission of this material that are consistent
with fair trial and which protect the matters to which you have
alluded. My own view is that we can deal with all of this. We have to
be careful and there are respectable arguments on both sides, but I
personally believe that as colleagues in other jurisdictions have
managed to find a way through it, so can
we.
Q
135
Ms
Taylor:
Is there in your answer a sense that you are
acknowledging something that ACPO states, which is that developing
trends have pushed investigating officers to the limits, and that there
is so much for them to investigate and to attempt to understand that
intercept could be one part of the toolkit and could be very productive
in securing and understanding, and possibly enabling a
charge?
Sir
Ken Macdonald:
Certainly, if we can rely on the
intercept material in court it is very useful in founding charging
decisions. My sense of it is that if we started to use this material in
criminal trials, most of the intercept material that we would use would
be police intercept, not agency intercept. My feeling is that once we
started to use it, it would become fairly prominent in our armoury. The
Australians say that it is so cheap and so effective, the danger is
that they use it too much and neglect other areas of investigation.
That is obviously something that one would have to guard
against.
Q
136
David
T.C. Davies (Monmouth) (Con): My question relates to
comments that Sir Ken made earlier in clarification. Would that be in
order? I was at the Home Affairs Committee when you expressed your view
about the extension beyond 28 days which I thought was very important.
On Second Reading of the Bill, the Home Secretary and other Ministers
characterised your view as being almost identical to the
Government’s in that you were quite happy to support the
Government position that there should be no extension without strong
judicial and parliamentary oversight. The implication was that you
supported the Government’s position. That was not my
recollection of your evidence to the Home Affairs Committee. Could you
clarify? Would it be fair to say that you support the
Government’s position, or would you say that, respectfully, you
differ from
it?
Sir
Ken Macdonald:
First, it is Parliament’s
decision, not mine. I have expressed my professional view, which is
derived from our operational experience, on whether 28 days is
sufficient and is likely to remain so, and our conclusion is that it
is. I have read Hansard, which did not seem to catch all
the debate. I heard Members calling out at one point, but, for some
reason, that was not in Hansard. The Home Secretary said that I
had never said that I did not want this legislation, and some Members
called out, “He did.” I think that the Home Secretary was
saying that I had been perfectly plain that if the legislation is
enacted, we will use it if it becomes appropriate to do so. It is not
for us to say whether we do or do not want legislation, and I am not
prepared to express a view about that—that is not my job. What I
can say—I have said this on a number of occasions—is that
for our part, as prosecutors, we do not perceive any need for the
period of 28 days to be increased. Of course, people have argued to the
contrary, and you have heard some evidence to the contrary. Various
scenarios have been put up, and anything is possible, but the question
is whether it is remotely likely.
Q
137
David
T.C. Davies:
Thank you very much for that clarification.
Will you confirm whether it might make it difficult for the CPS to
bring a prosecution if somebody was held for more than 28
days?
Sir
Ken Macdonald:
It depends whether more evidence came
to light during that extra period. If it did, and it was sufficient to
charge on the threshold test or the full test, we could bring a
prosecution.
Q
138
David
T.C. Davies:
If no further evidence was found during that
extended period, would the fact that someone had been detained for
longer than 28 days not make it harder to prosecute them than if they
had been detained for only 28 days or
less?
Sir
Ken Macdonald:
If we had the same evidence before 28
days, and it was sufficient to cross the threshold, we would charge
them; if it was not, we would not, and if the situation did not change,
we still would not. It would simply mean that they had been in custody
for longer without being charged.
Sir
Ken Macdonald:
No, I do not. We might come up with
extra evidence and we might
not.
The
Chairman:
Thank you, David. We have clearly elided
naturally into the subject of pre-charge detention without trial. I
simply note that we have 18 minutes left. It is open house, and if
colleagues could help me to help them by indicating that they want to
come in, that would be great.
Q
140
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
I am very pleased that we
got on to pre-charge detention—I was not sure whether we had for
a moment. I want to go back momentarily to intercept evidence. You were
saying—I hope that this is not an ungenerous
characterisation—that we had set the bar a little too high with
Chilcot in terms of how to go from where we are to
implementation.
Sir
Ken Macdonald:
No. Chilcot set a number of tests that
we have to meet. It was a very high-level inquiry, and I am perfectly
content to accept those tests as set out. They have to be met;
otherwise, Chilcot recommends that nothing can happen. Work is going on
at the moment to see whether those tests can be
met.
Q
141
Mr.
McNulty:
Equally, as you have just said, and as you said
at the Home Affairs Committee, any extension or change to the law is a
matter for Parliament first, rather than yourself, and that is an
entirely fair point. It has been said during the debate on this
issue—I am aware of the sub judice side of things—and it
was said again by one witness this morning that in the three cases that
went to charge after 27 or 28 days, you more or less had the evidence
and the substance by day 14 and, in one case, by day 18. The clear
inference was that the prosecution service and the police just sat
around and did not do a whole lot for the remaining 10 to 14 days
because they had it in the bag already. That has been said very
seriously by some senior Members of Parliament, and I just wonder what
your reaction was.
Sir
Ken Macdonald:
Was that said this
morning?
Sir
Ken Macdonald:
May I say something about this first,
before asking Miss Hemming to deal with it? This is a completely
misconceived assertion. During periods of detention, the police and
prosecutors work extremely hard, at all hours. Miss Hemming and her
colleagues will leave Scotland Yard when they need to sleep, but
apart from that they are there. When the material is sufficient, and the
prosecutor, within his or her discretion, believes that a charge should
be laid, it will be laid. The idea that we have sufficient evidence
after 14 days, but, for some reason best known to ourselves, wait until
26 or 27 days to charge is wrong. I am going to ask Miss Hemming, who
has direct experience of how this process works, to answer you,
Mr. McNulty.
Sue
Hemming:
May I begin by talking about the cases in
which we have not gone past 14 days? With the last 35 people we have
charged, in 40 per cent. of cases, we have charged them on the
threshold test. If we were going to make applications for warrants of
further detention and keep people in unnecessarily, we would have used
the 14-to-28-day period a lot more often than we have. We have used it
in only three cases, and we have not used it once since the
London-Glasgow bombings. That probably says something about our
attitude towards warrants of further detention and pre-charge
detention.
I was the
prosecutor who spent 28 days in the police station with the police
officers on one of those cases—the largest—and made the
charging decisions. We certainly did not keep people in unnecessarily.
There has to be a certain amount of time for the police to investigate.
If you arrest people, the police have to look at what the plot is, who
is involved and what the evidence is. As with any case, the pre-charge
detention time has to allow a certain amount of time for the police to
investigate and question. I seriously dispute any allegation that we
kept people in any longer than we had to. As I have said to others who
have asked me that question, I wanted to go to bed a long time before
the 28th day, and I certainly was not going to sit in the police
station for hours and hours and days and days with people being
unnecessarily and unfairly locked
up.
Q
142
Mr.
McNulty:
Why do you think that senior politicians and
serious organisations such as Justice carry on with those
claims?
Sir
Ken Macdonald:
I am sure that you do not expect us to
answer that, Mr.
McNulty.
We
were also told this morning that the only ground on which the court
must be satisfied to extend pre-charge detention is that the
investigation is being conducted diligently. The clear impression given
was that as long as the judge is satisfied that you were diligent,
along with the police, that is all that would be necessary to jump
through that hoop and get a rather simplistic, “Off you go, and
have another seven days.”
Sir
Ken Macdonald:
I very much doubt that the individual
who gave that evidence has ever attended one of those hearings, but I
shall ask Miss Hemming to say a little more about what they
entail.
Sue
Hemming:
That is the second requirement in a warrant
of further detention. The first is that it is necessary. The judge must
first be satisfied that it is necessary for investigation to
continue—three different grounds are given. It certainly is not
the case that only diligence and expeditiousness must be shown; they
are an “as well”. I have seen the notes and work put into
warrants of further detention by my lawyers, but I have not personally
conducted one. I have also spoken to a number of people who have done
them. The judge
certainly expects the first ground to be made out in detail before he
will look at how diligently and expeditiously the investigation has
been handled. He needs to be satisfied of both those grounds, without a
doubt.
Sir
Ken Macdonald:
Our experience is that the judiciary
take a very robust and independent approach to these applications. That
is one of the points that I was making to the Home Affairs Select
Committee.
Q
144
Mr.
McNulty:
Would it be fair to say that they become more
robust the more times you go back for further
extensions?
Sir
Ken Macdonald:
They are pretty robust right from the
start, even in the magistrates court, but our experience is that the
longer you have had someone in custody and are asking for yet more
time, the tougher it gets. We think that is right and how it should
be.
Q
145
Mr.
McNulty:
We were also told this morning that suspects do
not know the evidence against them and can be excluded from the entire
application for extended detention—again, as though that were
the norm for the process. Is that the
case?
Sue
Hemming:
Again, no; it is not the case. The notice
that is served on the suspect before the hearing takes place is not
particularly detailed, but suspects’ solicitors are given, as a
matter of practice rather than law, a summary of the evidence so far
and an overview of the investigation so far. The actual application is
generally very detailed, and the ex parte part of any application will
depend on each individual case. Our experience is that, as time goes
on, the ex parte applications become less and shorter. Clearly, at the
very beginning of an investigation you are in a very different
situation than at 14 or 21 days. In only one of the applications that
have been made by prosecutors against 17 individuals was there any form
of ex parte application and that was a tiny part of
it.
Q
146
Mr.
McNulty:
The clear impression this morning was that ex
parte was the norm. I think that we were sold rather a pig in a poke
this
morning.
I
have one last question, if I may? Perhaps for lay people around the
table you could elaborate on what the threshold test entails. Secondly,
can you come up with a charge after the threshold test purely on an
intelligence basis? Thirdly, there seems to be a view abroad that the
threshold test is this magic bullet and that when all else fails, have
a look at the threshold test and charge them with something or
other.
Sir
Ken Macdonald:
The normal full test for prosecution
is a judgment by the prosecutor that the material before him provides a
realistic prospect of conviction. That means that there is a better
than evens chance that the verdict will be guilty. The prosecution must
also be in the public interest. If the prosecutor is considering a case
that is sufficiently serious that a remand in custody would be
appropriate in the event of a charge, he may charge on the threshold
test, which is a lower
test.
The
threshold test says that a prosecutor can charge on the basis of
reasonable suspicion that the offence was committed, coupled with it
being in the public interest to prosecute. That reasonable suspicion at
the charging stage must be based upon material that is already
admissible or which the prosecutor believes can
be rendered admissible for trial. Currently, it could not be based on
intercept evidence or any other material that is clearly inadmissible,
such as intelligence material that could not be rendered admissible.
There must be a reasonable suspicion on the basis of material that is
either presently admissible or is capable of becoming admissible, plus
it being in the public interest to prosecute. That is obviously a lower
test than the full
test.
The
Chairman:
We have just under eight minutes left and there
are no fewer than six colleagues seeking to catch my eye so I appeal to
colleagues to pose short questions and to our witnesses to offer short
answers.
Q
147
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Miss Hemming,
you described the close relationship that you have with the police
somewhat graphically in that you leave the police station just to
sleep, which sounds rather onerous. You also made the point that there
has not been an application for an extension to 28 days since the
Scottish airport bombing incident. Is that right? That is nine months
or so, is it
not?
Sue
Hemming:
Yes.
Q
148
Mr.
Llwyd:
So you have been working within the confines of 14
days quite adequately for the past nine months or
so.
Sue
Hemming:
We had no need to make an application beyond
that
time.
Q
149
Mr.
Llwyd:
A quick question to Sir Ken. As a founder member of
Matrix chambers, a chambers acclaimed for human rights work, if this
change in the law were to come about and 42 days was granted, what is
your opinion on possible breaches of article 5 of the European
convention on human
rights?
Sir
Ken Macdonald:
My view is that this provision would
be lawful if sufficiently controlled by the judiciary, which it would
be. It would be compatible with the European convention on human rights
and I think that it would be Strasbourg-compliant. I suppose the issue
is that if you are considering a provision that fundamentally affects
civil liberties, as this one does, you wish to be sure that the problem
that it is directed against is real. I am quite satisfied that this
provision would be lawful. As I have said, if it was in law, we would
use it if we ever found it necessary to do
so.
Q
150
Mr.
Grieve:
Two things. The first is about the difference
between you and the police as put by Sir Ian Blair and Mr.
Quick this morning. It is curious that you are working in tandem. In
effect, the investigative process has you almost identically enmeshed
because of the new rules on the Crown Prosecution Service. You are
working to solve the same problems, yet at the end, Sir Ian’s
reaction was to say that if we lived in a different world with
intercept evidence and American-style plea bargaining, he would be more
comfortable, but he feels the need for 42 days. You explained, and you
have repeated this afternoon, that from the CPS point of view, 28 days
appears to be entirely adequate for the task that you have to perform.
You may not wish to answer this question, but will you give an
explanation to the Committee for that divergence of
view?
Sir
Ken Macdonald:
It just shows that there can be honest
opinions on both sides, Mr. Grieve. I looked at Sir
Ian’s evidence this morning and I think that he suggested that
the police were better placed to make the
judgment because they are involved in the investigation. In fact,
prosecutors must determine when the investigation has turned up
sufficient evidence to create a charge, and I should have thought that
we were very well placed to make that judgment. I respect Sir
Ian’s view and the police view, and those of everyone on the
other side, but our experience is that we have managed comfortably with
28 days, and have therefore not asked for an increase. It is possible
to set up hypothetical situations in which you might have nothing after
28 days but suddenly get evidence after that time. I repeat: anything
is possible; the question is whether it is remotely
likely.
Q
151
Mr.
Adrian Bailey (West Bromwich, West) (Lab/Co-op): If I may
briefly follow on that last comment, you said that the discrepancy in
views between yourself and ACPO is based on your assessment of the
evidence and the chargeability of that evidence. The police view is
that, because they are responsible for gathering the evidence, in
effect, they have a different perspective. Would it not seem fair to
you that, although you sit in judgment of the evidence that has been
gathered—it is perfectly legitimate for you to have a view on
that—the police view on the legitimacy of extending the period,
which is based on the fact that they continue to pursue areas of
investigation, should prevail?
Sir
Ken Macdonald:
Of course, investigations always
continue in such cases, and huge amounts of evidence come to light
after charge. Our judgment is that the threshold test is sufficient to
allow us scope to charge appropriately, even in the most
extraordinarily complex terrorism offences. It is a question for
Parliament whether the provision is directed against a real
problem.
Q
152
Mr.
Heath:
What is your attitude to using what are effectively
holding charges—acts preparatory to, or offences of that
kind—to maintain a person in remand? In the case of encryption,
does the refusal to provide the key to encryption provide an adequate
initial offence for charge for those purposes?
Sir
Ken Macdonald:
We do not use holding charges in our
jurisdiction; our culture is to try to get the right charge at the
beginning. They use holding charges in the United States—I
discussed this with the US Attorney General recently—and can
therefore charge a person quickly. However, they overcharge to persuade
people to accept a lesser plea in a somewhat one-sided plea bargain. We
do not do any of those things. Our view is that we should proceed on
the basis of the correct charge at the beginning of the
process.
The
Chairman:
Extreme brevity is required. I know that Ben
Wallace and Adam Holloway want to come in, but it is time-dependent and
we have to end by 4.50 pm.
Q
153
Martin
Salter:
Sir Ken, you referred earlier to misleading
statements, which have inevitably been made in this debate. Some of the
statements—
Q
154
Martin
Salter:
On comparisons with other jurisdictions, the
research that I have seen on France shows that there is up to two years
pre-trial detention
and four years pre-trial detention for crimes punishable by more than 10
years. In Germany, people are being held for six months, and in Spain
for up to two years. It is very difficult to make comparisons between
different legal systems, but will you comment on how we are placed in
the league
table?
Sir
Ken Macdonald:
I do not find comparisons with other
jurisdictions terribly helpful, particularly those with European
jurisdictions that have a different concept of charge to us—I
have already mentioned that they can charge early because they use
holding charges. We have enough problems analysing our own
jurisdiction, and I think that we should stick to it and discover what
works for us and how to apply
it.
Q
155
Mr.
Wallace:
Sue Hemming, if you cannot give the answer off
the top of your head, will you inform the Committee in writing how many
arrests have been made that have resulted in convictions, as opposed to
those arrested under terrorism legislation and then released, and how
many have been charged? Apart from the post-7/7 or post-Glasgow
incidents, in those precautionary cases in which people were arrested
before they carried out an attack, how many times did you have to hold
people beyond 14 days or thought that you needed to do so?
Sir
Ken Macdonald:
We came on to that quite
quickly.
Sue
Hemming:
On the first question, I think that the Home
Office have the figures for arrests and
convictions.
Sir
Ken Macdonald:
As to how many times we have gone
beyond 14 days, there have only been three
cases.
Sue
Hemming:
Yes, we have only gone beyond 14 days in
three cases since it was extended to 28
days.
Sue
Hemming:
A
mixture.
Sir
Ken Macdonald:
For most terrorist cases now, the
whole purpose of terrorism legislation is to intervene as early in the
process as possible. You cannot arrest a suicide bomber after he has
blown himself
up.
The
Chairman:
Sir Ken, Sue Hemming, thank you very much indeed
for your time and expertise, of which the Committee is extremely
appreciative. We would like to have a quick turnaround and move to the
next witnesses. I am mindful of people who did not get in and they will
be high up on the list when we hear our next
witnesses.
4.50
pm
Welcome
to our next witness. I probably should have introduced myself to our
previous witness. My name is John Bercow. I am the Member of Parliament
for Buckingham and I am co-chairing this Public Bill Committee. Just
for the record, perhaps you would be good enough formally to introduce
yourself.
Lord
Goldsmith:
I am Lord Goldsmith. I am a Member of the
House of
Lords.
The
Chairman:
Thank you. Following the model of each of the
last two witness sessions, I am suggesting to colleagues that we take
questions first on matters other than pre-charge detention without
trial. For this sitting, so that colleagues are clear, we have until
5.40 pm, but no later. I look first to Dominic
Grieve.
Q
157
Mr.
Grieve:
Good afternoon, Lord Goldsmith. I will turn first
to post-charge questioning. When you gave evidence in front of the Home
Affairs Committee on 21 November, you indicated that you were in favour
of it, subject to the right safeguards. Indeed, that seems to be an
almost universal view on a cross-party basis in the Commons. Do you
feel able to comment on the Bill as it has been published and do you
consider that the safeguards in respect of post-charge questioning are
adequate? In particular, do you consider that a layer of judicial
oversight ought to be provided, or do you think that it is merely
sufficient that we should have revised PACE codes to cover the system
that ought to be
adopted?
Lord
Goldsmith:
That is an important question. Plainly,
the safeguards will depend in the first instance on what the contents
of the code of practice will be. I am unaware of whether there is a
draft in existence, but if there is, I am afraid that I have not seen
it.
In
answer to your question, given that the likelihood is that in many
circumstances, the judges will have some oversight in relation to
post-charge questioning—I would have thought that if anyone
comes to trial and there has been questioning post charge, it would be
up to the defence to complain about how it had taken place, if it was
contrary to the codes of practice. I would have thought that would
provide a degree of judicial supervision in that case. I suppose that
it might not do so in circumstances where the defendant was not charge,
or for some reason the issue was not raised. I would prefer to see some
degree of judicial supervision in all cases, however that came about;
not for the judges to be asked to approve questioning, perhaps before
it took place, which might put them in an invidious position, but to
have an oversight as to how code was operated and how people exercised
the powers in
practice.
Q
158
Mr.
Grieve:
So a system by which one could make an application
to the court if one were unhappy with the
process?
Lord
Goldsmith:
That would be one way of doing it. There
may be others as well, but ultimately some degree of judicial
supervision would be an appropriate
safeguard.
Q
159
Mr.
Llwyd:
This morning we were told by Sir Ian Blair that the
use of intercept evidence would not happen for a long time—I
think he said two or three years—due to some legislative
blockages and possible problems with administration and so on. Other
witnesses expressed a contrary view. Some commentators hold the view
that it would be useful to look at it now, and that it might just as
well have been in the Bill. What is your view on the usefulness of
intercept evidence, and do you perceive any insurmountable problems
that might delay its use for two or three
years?
Lord
Goldsmith:
My view now—as it has been for
quite some time—is that there is potentially significant value
in the use of intercept evidence. There are problems, but I do not
regard them as
insurmountable.
Lord
Goldsmith:
Yes, plainly it could have
been.
Q
161
Patrick
Mercer:
My Lord, what are your views on the
Government’s inclusion in the Bill of coroners’
inquests?
Lord
Goldsmith:
I have not focused on that, I am afraid.
There are obviously issues in relation to coroners’ inquests. If
the question is whether this is the most appropriate legislative
vehicle to deal with that, I am sorry but I have not thought hard
enough to have a conclusion for
you.
Q
162
Mr.
Heath:
Again, I hope that this is not too left field a
question. During your time in office, did you have any difficulties in
your dealings with the Lord Advocate or the Scottish jurisdiction, and
were there any areas of the relationship between the two jurisdictions
in terms of terrorist offences that caused you
concern?
Lord
Goldsmith:
No, I did not have any difficulties with
the Lord Advocate. During my period of office there were two Lord
Advocates, Lord Boyd and then Elish Angiolini, and I had no
difficulties with them at all. If it is not inappropriate to say, for
most of that time the fundamental complexion of the Governments in both
places was the
same.
Lord
Goldsmith:
We had good arrangements. It is important
that prosecutors have good arrangements for co-ordinating between
themselves, not just within the United Kingdom but also overseas. I
tried to have such arrangements with, for example, the United States as
well. But we certainly had arrangements with Scotland, so that
discussions could take place about where the most appropriate place to
start proceedings would be, when there was shared evidence or shared
defendants. The co-operation seemed to work—in my time at least
it worked very
well.
Q
163
Martin
Salter:
I want to put to you, Lord Goldsmith, the issue of
the use of intercept evidence. As you know, the Home Affairs Committee
has recommended that it be allowed. What is your general view on the
use of intercept evidence, given that what we have heard about
experiences in other jurisdictions seems to indicate that it has been
immensely useful in securing terrorist
convictions?
Lord
Goldsmith:
We are out on a limb in relation to this.
I looked very hard at it during my time in office, and particularly
wanted to talk to those countries that had highly sophisticated
intelligence-gathering capabilities. I can understand that if a country
does not have the same level of capability as we have, their experience
may not be the same. I was told by very senior officials, at the
highest level in the US justice system for example, that they regarded
intercept evidence as highly important and did not understand how we
managed without it. We heard similar views from other jurisdictions. I
am quite clear that in the field of serious crime, at least—I
recognise that the Committee is looking rather specifically at
terrorism, to which I shall come—intercept evidence could be
highly valuable. To deny prosecutors that very important tool runs the
risk that very serious criminals will not be properly
pursued.
As
far as terrorism is concerned, from cases that I have seen, I am also
confident that there are cases in which intercept evidence would be
valuable. There would need to be safeguards. I believe that the model
referred to in the report of the Chilcott review, which I have worked
on a lot, could provide the necessary safeguards,
with a little more work. I very much hope—to speak liberated
outside the Government—that we will get on with that, because I
think that it is important for the protection of the people in this
country.
Q
164
Martin
Salter:
In respect of getting on with that, have you had a
chance to look at clause 60? It is very short. To remind you, it will
amend the Regulation of Investigatory Powers Act 2000 to enable the
disclosure of intercepted communications in asset-freezing proceedings.
I was told off when questioning a previous witness for calling that
slightly barmy. Do you not think that it is slightly strange that we
are proposing to legislate to use intercept evidence to freeze assets,
but not to secure terrorist convictions? The answer is yes, by the
way.
Lord
Goldsmith:
Yes, I guessed it was, from the way you
asked the question.
Lord
Goldsmith:
I would like to understand the
justification for making that separation. If you are going to use
intercept evidence, if makes sense to look at it across the board and
not just in one important, but isolated area. This does not help in
circumstances where prosecutors know that there is intercept evidence
that would help them to secure a conviction, because they will still
not be able to use
it.
Q
165
Ms
Taylor:
I believe that our security agencies are either
concerned about the use of intercept or are against its use as
evidence. Does that not worry
you?
Lord
Goldsmith:
It concerns me because they are precisely
the legitimate concerns would need to be dealt with in any model. The
first principal legitimate concern is about the risk that they will be
required to disclose information that could undermine their
capabilities by revealing an ability to do something, which could be
damaging. In my view, that could be dealt with in part by not making it
obligatory for the prosecution to use intercept evidence, so that it
would be used only if it is inculpatory—when it tends to prove
the guilt of the defendant—and when the state wants to use it.
That means that if you have good intercept evidence, but the security
agencies say, “You cannot reveal this”, you do not use
it.
Ultimately,
the other way of dealing with that, as happens in other cases, is to
find other ways of ensuring disclosure, if you are required to disclose
something that tends to show that the defendant is
innocent—exculpatory evidence—which RIPA sort of covers.
There are ways in which to deal with that, but the ultimate sanction is
that the prosecution simply does not continue with the case. Very
occasionally, that happens, for example, when a court requires an
informant’s identity to be disclosed. In that case, you just do
not continue. That is the
protection.
The
agencies’ second legitimate concern is that they might be
required to spend a significant part of their resources on what they
would regard as fishing expeditions—people say, “Please
transcribe every tape that you have intercepted in relation to this
person over the past five years and translate it.” That is a
legitimate concern. I believe that the way in which to deal with it is
to have a system under which the court closely supervises, and is
required by Parliament to supervise, the way in
which such disclosure applications are made and met, so that the court
will only order that disclosure where it is satisfied that it is
necessary to do so in the interests of justice. That is not
straightforward to do. One way of doing it is to have codes of practice
as to the way that intercept operations are run, which are no doubt
laid before Parliament for its consideration, if not approval, and have
that as a part of the structure. So it is quite complicated. I believe
that although there are legitimate concerns, they can be met, which is
why I answered the first question by saying yes, there are problems.
But I do not regard them as
insurmountable.
Q
166
Ms
Taylor:
So you do not think that by using intercept in
this way—you are choosing when and when not to do so—you
are actually defining for anybody, particularly terrorists, what the
weaknesses of investigatory process are, which is the agencies’
suggestion.
Lord
Goldsmith:
I do not think it would follow that the
discussion about when to use intercept would be on the basis of our
saying, “If people know we can do this, use it, but if they
don’t, don’t.” Obviously, there is a field for
disinformation in the sense of keeping people guessing as to what they
can do. That would be one of the considerations in what is done. But
everybody knows that certain forms of communication can be intercepted.
We see it when foreign Governments produce evidence that we ourselves
use in our courts. We prosecuted a very significant trafficking case
that we could not otherwise have done, as I recall, without using
intercept evidence from Holland. There may be more esoteric areas where
you do not want to let people know you can or can’t, but I do
not regard that as a reason for not using intercept evidence where it
is probative and it will help to secure the ends of justice, where,
frankly, everyone will know that that is a capability that you have got
already.
Q
167
Mr.
Crispin Blunt (Reigate) (Con): I just want to pursue this
point. In answering Ms Taylor’s questions you have identified
two areas of concern for the services, both of which appear to have an
answer. First, the prosecuting, or the state, authorities can decide
how much intercept evidence to disclose and, if it is a risk, not
disclose it. Secondly, if the agencies are receiving end of fishing
expedition requests, as you describe it, it would seem merely to be an
operational decision as to whether they have the resources to respond
positively to those, as well as a decision about its appropriateness;
and its appropriateness would be covered, as you suggest, by a code of
practice. If I have summarised those two areas correctly, what is your
conclusion as to why proposals from the Government are not included in
this
Bill?
Lord
Goldsmith:
I shall come back in a moment, if I may,
and make a couple of qualifications about the way that you summarised
what I said, just for
completeness.
My
conclusion in relation to that matter is not to suggest any bad faith
or anything of that sort on the part of anybody. I am sure that the
reason lies in a genuine concern as to how the system would operate and
to be sure that it would operate. I am concerned that there are ways of
dealing with these problems. It is important that, if there is a
decision in principle that
intercept evidence should be made available under the right conditions,
everyone, including the agencies, which have a legitimate interest in
this, can work together to ensure that the safeguards, codes of
practice or whatever actually do the
job.
Q
168
Mr.
Blunt:
Are you aware of any other reasons, other than the
two areas that you outlined, that would be operating on the
Government's mind in respect of not bringing proposals forward? Is it
reasonable for us to interpret these two areas of concern as the ones
that lead to the reluctance to bring proposals forward in the
Bill?
Lord
Goldsmith:
The answer to the question as you put it
can only come either from the Government or, possibly, from the
security agencies, not from
me.
Lord
Goldsmith:
There is a third issue, which is to do
with the impact of this on the providers of telecommunications. I would
not want to go much more into the detail of that; I believe that that
can be dealt with as well. So that is my
reason.
If
I may, I should just like to make a slight qualification. The
disclosure of evidence is not simply dealt with by way of the
prosecution deciding, because there is evidence that is incriminating,
where the prosecution can decide, and evidence that tends to exonerate,
where that needs to be revealed in some form in the interest of a fair
trial. That has to happen anyway, under section 18 of RIPA. You have to
find a way of disclosing at least the substance of the matter, and you
need to do something along those lines. Out of fairness to the
agencies, the resources issue is not just operational; there are some
areas in which the availability of resources, such as the translation
of scarce languages, might be quite limited. I understand the concern
about people not being able to listen to live conversations that may
affect security today because they are engaged in the fruitless
exercise of transcribing conversations from the past, which,
ultimately, are not going to be relevant to the trial. Forgive me for
the long answer, but I wanted to clarify the
issue.
The
Chairman:
Are there any further questions from colleagues
on matters other than pre-charge detention without trial. No? If not, I
am equally happy to move on to the subject of pre-charge detention
without
trial.
Q
170
Patrick
Mercer:
My lord, if a threshold test, post-charge
questioning, the use of intercepts and the more contentious area of
plea bargaining were allowed, do you think that that would change the
need for a longer period of pre-charge detention?
Lord
Goldsmith:
I do not think that there is a need for a
longer period of pre-charge detention even without some of the things
that you have mentioned.
Q
171
Mr.
Grieve:
May I return to the plea bargaining point? This
morning in evidence involving Mr. Ian Blair and
Mr. Quick, the emphasis was made that one reason why the
extension was required was that apart from the
inability to secure intercept evidence, we do not have US-style plea
bargaining. I was a little surprised at that, because we have made
some, and indeed could make further, provisions on plea bargaining, but
do you consider it to be a major issue?
Lord
Goldsmith:
I have never heard that put forward as a
reason for wanting to extend the period of pre-trial detention. I am,
frankly,
bewildered.
Q
172
Patrick
Mercer:
My lord, may I ask for some clarity about what you
understand the applicability or otherwise of plea bargaining would be
in this case?
Lord
Goldsmith:
I happen to be in favour of extending the
ability for plea bargaining—or plea negotiation, as I prefer to
call it—generally. I would be in favour of that, and the fraud
review, which I established, dealt with it. Currently, you can ask a
judge for an indication of the sentence, but you cannot involve the
prosecution very much, and I would be in favour of doing that. However,
I am not sure why it would justify the extension of the period of
pre-trial detention. Pre-trial detention should be necessary for the
purpose of identifying whether that person needs to be charged. There
comes a period when you will get no more useful information out of
them.
Q
173
Patrick
Mercer:
Would not plea bargaining work the other way? To
make a longer period less necessary?
Lord
Goldsmith:
Being a little slow, I wonder what the
mechanics of that would be.
Lord
Goldsmith:
I am not sure. As I said, the purpose of a
period of detention before charge is to allow the police an adequate
opportunity to investigate whether the person is guilty of an offence
and then to charge them. Post-charge questioning would enable you to
charge them if they passed the threshold test and if you had enough
evidence but still thought that there may be something else. There
comes a moment when you are not going to get anything more and you
ought to make up your mind about whether you will
charge.
Q
174
Mr.
Heath:
Lord Goldsmith, you have been commendably frank in
your view that you do not see a need for the extension of pre-charge
detention timing. I agree, as you know, but let us set that aside for
the moment. If there were an extension, what is your view of the
Government’s suggested mechanism in terms of judicial oversight
and parliamentary scrutiny of the
decision?
Lord
Goldsmith:
I have one or two points of detail, but I
think that you have identified the fundamental points. Judicial
oversight is critical; it is absolutely essential. Indeed, the proposal
would not be ECHR-compatible and it certainly would not be right in
principle unless the decision about whether somebody should continue to
be detained was subject to judicial
supervision.
On
parliamentary scrutiny, I confess to being rather troubled. I am not
troubled about the concept of parliamentary scrutiny because one of the
great things about our democracy is that we have a high level of it.
However, I am worried that there is a constitutional confusion between
the position of Parliament, which looks at things across the board, and
the position of judges, who adjudicate on the liberty of
individuals.
I do not
understand quite how the system will work. Under the scheme, the
Secretary of State will make a decision and it will come before
Parliament at some stage. Parliament will not be told anything that
would be prejudicial to prosecution. That is plainly right, but I do
not understand on what basis Parliament could decide whether it is
right to extend the period. I would be very worried if questions of
individual liberty were determined on party lines. Strong supporter
that I am of parliamentary scrutiny, I do not see the value of it in
this
context.
Q
175
Mr.
Heath:
In the circumstances that Parliament was used as
this kind of quasi-grand jury, your advice as Attorney-General would
have been that it would be quite wrong for Ministers to provide
evidence to put before the House for fear of jeopardising any future
conviction.
Lord
Goldsmith:
I would have asked, “How are you
going to do that? How are you going to give Parliament enough
information that it can make a decision?” I do not think that
Parliament has sat in private since the second world war. I would have
asked, “What will you be asking Parliament to do? Will you just
tell it to trust the Secretary of State?” Frankly, that would
not give a terribly great
safeguard.
Q
176
Ms
Taylor:
Lord Goldsmith, we received a note from ACPO
making a number of statements. I think that they are fairly
predictable, such as that there
is
“convincing
evidence of the mounting complexity and global nature of terrorist
investigations.”
It
states
that
“developing
trends have already pushed investigating officers to the
limit.”
A
very carefully worded section
says:
“Accordingly
we conclude that it is possible to foresee circumstances arising in the
future in which the current upper limit for pre-charge detention should
prove inadequate to ensure a full and expeditious
investigation.”
Are
you seriously sitting there and denying the efficacy of what the police
are saying, and saying that you do not see the need, in exceptional
cases, for an extension of the 28
days?
Lord
Goldsmith:
I am sorry, but I am seriously sitting
here and saying that, for two reasons. The police have had significant
plots and concurrent plots that they have had to investigate and they
have done enormously well. Jacqui Smith’s statement the other
day about the number of cases that have been prosecuted and the number
of people who have pleaded guilty demonstrates that. It is a testament
to our prosecutors, our intelligence services and the police and I pay
tribute to them in relation to that. However, in none of those cases
would it have been of help to have a longer period than 28 days. I
looked hard at those cases personally when I was in
government.
As
I say, you come to a point where you have to ask yourself what is the
purpose of keeping someone in detention any longer. Are you going to
get a sudden admission from them? No, you are not. Are you going to get
any more information from them? Well, 28 days is four weeks. It is a
long period in which to investigate. Is it simply that you want to
protect yourself against the chance that you might find something
later? If you find
something later, you can still charge them. If you charge them with a
lesser offence, and if you allow post-charge questioning, which I
believe is right, you can ask them about that as well. Or are you
simply concerned that they may be a threat? We have legislation to deal
with people against whom you cannot prove enough to prosecute them when
there is a threat—control orders. I regret to say that I do not
think that the proposal is
right.
In
principle, it is enormously important that something as significant as
individual liberty, which is such an important part of this
country’s background, should not be undermined or removed unless
you can show that that is necessary, not just that it might be
desirable at some future stage. The test of necessity is important
here, and it is not met. I am also concerned that the proposal is
counter-productive, because it sends a message to people, particularly
to Muslim communities, that we are down on them and that this is
another attack on them. The worry is that misguided young men may take
that as a justification for taking up arms, as they see it, against us.
The proposal needs to be necessary, and I do not believe that it is.
That is why I seriously, but respectfully, disagree with ACPO’s
conclusion.
Q
177
Ms
Taylor:
These are the people who are investigating. These
are the people who are out there day and night. These are the people
who are not sitting behind comfortable desks. They are saying to all of
us that it is extraordinarily difficult for all of us to understand the
position that they are defining. I am finding it extraordinarily
difficult, if I am dead straight with you, to understand where you are
coming
from.
Lord
Goldsmith:
Let me clear about this, because it is not
the police who decide what the period of detention should be. Under the
legislation, quite rightly, whether or not the police would like to
continue to detain someone, it is for the prosecutor to decide whether
it is appropriate to continue, and for a judge to
decide.
Lord
Goldsmith:
I did not sit in on the evidence session
that you have just had, but having been responsible for the Crown
Prosecution Service and having considered the matter in considerable
detail with the director and Sue Hemming, whom I respect significantly,
and having been involved in detailed investigations, not all of them
from behind a comfortable desk, I know that they as prosecutors do not
see this need. It seems to be an important consideration, but that is
for you to decide and for Parliament to
rule.
Q
179
Mr.
Adam Holloway (Gravesham) (Con): Do you agree with Sir Ian
Blair that it is better to get the extra days in the armoury now,
rather than to get them in an emergency after some sort of attack? What
do you think his motivation might be and, more widely, what do you
think the Government’s motivation might be? What they are trying
to do is pretty unpopular. Is their motivation something beyond
thinking that it will help them in the fight against
terror?
Lord
Goldsmith:
It is not for me to challenge—I am
not going to—anyone’s good faith in putting this forward,
or Ian Blair’s views. I respect him also. I just think that the
test is wrong. During my time I had to deal extensively with the
difficult balance between civil liberties, the
fundamental freedoms on which this country is based and national
security. For me, one of the principles is that, yes, things have
changed and you must adjust the way in which we did things in the past,
but you should only do that if it is necessary and proportionate. Doing
it just because you might need it in the future does not, in my
judgment, meet that
test.
Q
180
Martin
Salter:
Lord Goldsmith, will you remind the Committee of
the period that you spent in
government?
Lord
Goldsmith:
Six years, from 2001 to
2007.
Q
181
Martin
Salter:
So during your time in government, or slightly
before you were in government, but during your time in the House of
Lords, we saw the Terrorism Act 2000 extend the maximum period of
detention for terrorist suspects from 48 hours to seven days. We saw
the Criminal Justice Act 2003 extend the period of pre-charge detention
from seven days to 14 days. While you were still in government, we saw
terrorism legislation extend the period of pre-charge detention,
admittedly only after an application by the CPS, not the police, from
14 days to 28 days.
You are now
uncomfortable. You made it clear in your evidence to the Home Affairs
Committee that you were uncomfortable with 90 days, and you are on
record as paying tribute to the more emollient approach of Jacqui
Smith, compared with her predecessor. Did you not feel uncomfortable
about any of the extensions to pre-charge detention that took place on
your
watch?
Lord
Goldsmith:
I think that the extension to 14 days just
took place when I was in office, and the extension to 28 days certainly
did. I looked very hard at the evidence and I was persuaded. I started
from a position of scepticism, given that the period had just been
extended, and I was persuaded that the increase in the methods that
terrorists were using, particularly with communication, computers,
encryption and the overseas element, justified some extension to the 14
days. Obviously, I looked hard at that issue with prosecutors and
looked hard at the evidence that the police put forward—I was
part of the group that considered the matter—and I did not
believe that it justified an extension beyond, perhaps, 28 days. It
certainly did not justify an extension to 90 days. I was very
uncomfortable about that and would not have been able to support it had
it come to my House to vote on. It is very important that we look at
these matters enormously carefully. I have set out the principles that
I think should be adopted, as well as my personal judgment on where we
are on those principles and that issue at the
moment.
Q
182
Martin
Salter:
May I press you on that point? Your answer is very
interesting: you say that you started from a position of scepticism but
were prepared to accept the extension from 14 days to 28 days under the
2006 Act on the basis of the increasing sophistication of terrorist
networks in relation to computer technology, sophisticated
communication and encryption. We can understand that, and you are well
known for your defence of civil liberties, but do you see an essential
contradiction between that position and your position now? You are
effectively saying that the sophistication of the technology that
terrorist networks use is now set in aspic and cannot possibly have
moved on from 2006.
Do you not accept that terrorist networks are becoming ever more complex
and sophisticated and that our legislation must therefore be ever more
flexible? Or has there been no improvement in terrorist technology
since
2006?
Lord
Goldsmith:
When I was in government, we repeatedly
asked those hard questions of the police. We said, “Show us what
the need is. Show us what the evidence is,” but no one ever came
forward and said, “There have been these changes, and they have
resulted in a different position.” I have not seen the ACPO
statement, and I thank Dari Taylor for reading it to me, but I do not
read it as saying, “This has happened.” Neither do I take
the remark that Sir Ian Blair is reported to have said to mean that. It
might happen in the future, but the test that I apply is this: the fact
that something might happen in the future is not a justification for
doing something
now.
Q
183
Martin
Salter:
May I put it to you that that was precisely the
justification that you used when in government to extend pre-charge
detention from 14 days to 28
days?
Lord
Goldsmith:
No, because we knew at that stage, from
the evidence that was being put forward of the increased sophistication
and the increased use of encrypted
computers—
Lord
Goldsmith:
Forgive me, but the police are not saying
that—
Lord
Goldsmith:
That is not the way that I read the
statement. That will be for Parliament to decide and for this Committee
to consider, but I repeat that this is such an important issue to the
fundamental freedoms that we in this country regard as being important
that you do it where you are satisfied on the evidence that it is so.
The evidence that has been put forward is speculative, not at all hard
and, I am afraid, does not persuade
me.
Q
186
Martin
Salter:
I have one last question. The current Home
Secretary consulted on four options: legislation to extend the 28-day
period as a blanket extension; the same option being implemented only
after a parliamentary vote and for a temporary period—that is
basically what is in the Bill; the proposal from Liberty that part 2 of
the Civil Contingencies Act 2004 could be used to deal with the
exceptional circumstances that were acknowledged by the Home Affairs
Committee and by many other Members; or that we move to a system of
judge-managed investigations similar to those in France and Spain.
Which of those options were you most attracted to when you were
examining this
issue?
Lord
Goldsmith:
I am not attracted to any of them.
Judge-managed investigations are an interesting idea but would be
difficult under our system for much broader reasons. We have moved
towards that, to some extent, by giving more power to the prosecutors,
which was a big part of the agenda that I was following. With respect,
they all seem to have been ways of finding a compromise between not
having an extension and having some extension. I am not attracted to
any of them
because I take the rather straightforward position that where we are at
the moment there does not need to be an extension and therefore we
should not have one.
Q
187
Martin
Salter:
So you do not think that the use of the Civil
Contingencies Act, with its 58 days’ detention, is appropriate
either?
Lord
Goldsmith:
No. I have not thought that appropriate
either.
The
Chairman:
At least four, possibly five, people are seeking
to catch my eye. We have just under 10 minutes left and so I really do
need pithy questions and pithy
answers.
Q
188
Mr.
Blunt:
I understand that we are entitled to believe that
you would have resigned as Attorney-General had the House of Commons
not voted against 90 days in the Terrorism Act 2006 and that should the
Bill come to your House in its present form you would vote against the
42-days provision. What is your assessment of the chances of this Bill,
if it arrived in its current form, surviving in the House of Lords
without the 42 days being taken
out?
Lord
Goldsmith:
I have not taken any soundings, so I am
not sure how reliable my view would be, but I would have thought it
would have a very rough
passage.
The
Chairman:
Our witness does not have to be in any way
self-effacing about it. With the greatest respect to Mr.
Blunt, that is a matter of politics. It has absolutely nothing to do
with the issues about which witnesses are being
interrogated.
The
Chairman:
Order. If you want to ask one further question
you may do so briefly and then we will move
on.
The
Chairman:
I think, frankly, that when the witness has less
than 10 minutes left, it is self-indulgent in the extreme and arguably
an abuse of the process of the Committee to ask questions which are
fundamentally about political calculation and not about the merits of
the individual issues. If you want to ask another question ask it now,
otherwise forever hold your peace and we will move
on.
Q
189
Mr.
Wallace:
Before I ask my question I should just like to
make the point that consistently Government Members have pointed out
the significant technological advances of the terrorist threat without
in any way alluding to the fact that our police forces have not stood
still in their technical ability. I should not like it to lie on the
record that our policemen are sitting there with just a truncheon
whereas al-Qaeda are moving ahead with
everything else. Our police forces have tremendous technologies at their
disposal and it is wrong to pretend
otherwise.
I
want to bring you back, Lord Goldsmith, to the issue of the
parliamentary oversight of the detention period without charge. As you
rightly point out, paragraph 44 says that the Secretary of State would
notify the House of someone effectively going into an extended period
of detention. But we would not be allowed to know their name. We would
not be allowed to know any details of the case and so on. What do you
think we are supposed to be considering if that is put before either
House? Is it a realistic proposition that we should make a decision
based on almost zero
information?
Lord
Goldsmith:
Can I put this way? If you are making a
decision on an individual basis whether someone should continue to be
detained further you need to consider a number of features. Is there a
reasonable suspicion that that person has committed an offence? What
evidence have you obtained so far? Is there a reasonable prospect that
with a further period of time you will obtain further evidence that may
lead to a charge? Fourthly, has the investigation been carried out with
due expedition? Those are the issues that one needs to consider and I
am not sure how Parliament would be able to consider any of them
without considerable detail about the case being put before
it.
Q
190
Mr.
Bailey:
You said earlier that, in effect, legislation has
to be proportionate. I think that that was one of the phrases you used.
I find it odd as a layperson that you should be so adamantly opposed to
the extension of the 28 days. First, I hope you would accept that it is
the role of the Government to provide a framework of legislation that
will do its utmost to protect the public from the sort of atrocities
that are perpetrated by terrorists. Secondly, within the framework,
there is a process that is initiated, monitored and exercised by the
judiciary to protect the human rights that you quite rightly say that
we have to balance. Do you not find that a reasonable and proportionate
response?
Lord
Goldsmith:
We have taken the view—rightly, I
believe—that there needs to be a stated finite limit on the
period of detention before charge, and that is for practical, pragmatic
and, if you like, political with a small “p” reasons to
say that that is what we do in this country. As it is, our period of
pre-trial detention is far longer than that of many other comparable
countries. Therefore, it is important to understand why it is necessary
to extend the 28-day
period.
My
judgment, which I hope is based on a mature consideration of all the
evidence that I saw when I was in Government and on my experience of
dealing with prosecutions in such cases, is that the case has not been
made for an extension, and therefore I cannot personally support
it.
Q
191
Mr.
Grieve:
I thought that this would be an opportunity to go
back to the first question that I asked you, which was about
post-charge questioning. We discussed the question of judicial
oversight, and I suggested that one possibility would be for Liberty to
apply to the court if there were anxieties about it. You said that
there were other ideas, but we did not have a chance to develop the
point. Was there anything further that you wanted to say on
it?
Lord
Goldsmith:
Simply that you could consider different
models of the moment at which oversight takes place. Do you apply, as
it were, as somebody is being questioned, after the event, or only
during a subsequent review period? There may be practical answers about
which of those is
acceptable.
Q
192
Mr.
Llwyd:
In your evidence earlier, you rightly
commended the security services, the prosecution and the police on the
work that they have been doing over the past couple of years.
Obviously, we all appreciate that they have been very busy over that
time: several prosecutions, many guilty pleas—a comparatively
large number in relation to the actual prosecutions. I dare say that it
would not surprise you to hear that there have been only three
applications for extension beyond 14 days since the law was changed,
and none whatsoever in the past 10
months.
Lord
Goldsmith:
I know that there have been very few.
[
Interruption.
]
Q
193
Mr.
Holloway:
Lord Goldsmith, you have experience at the heart
of this Government. I am sorry to come back to you a second time. Why
do you think that the Government are coming back to this issue a second
time? This question is really important, and you are uniquely placed to
answer
it.
Lord
Goldsmith:
I am not. I have not spoken to the Prime
Minister or the Home Secretary about this, and I do not think that it
is for me to speculate, other than to say that I do not believe that
either of them would want to do things for reasons other than because
they thought that they were the right things to do for the
country.
Q
194
Ms
Taylor:
I wondered whether you might indulge me and
acknowledge a concern that I have. The proportionality argument, which
you expressed brilliantly, is acceptable when we are at a point such as
this one, when acts of terrorism have been stopped. After 7/7, there
was a significant appetite to act and to react, perhaps appropriately,
perhaps
inappropriately.
My
concern is that we are at a period in which we have seen a sustained
involvement of intelligence that has achieved a reasonably successful
reduction in terrorist behaviour. Is it not appropriate at this
moment—is this not the right time—to look back at what we
have had to face up to, and to say that in exceptional cases only we
could require an extension of 28
days?
Lord
Goldsmith:
But it is not just after
7/7.
Ms
Taylor:
I did not say that it was. I said that there has
been a gap. We are not up to that point, are
we?
Lord
Goldsmith:
If a compelling case had been put forward
that this was necessary to protect the country and not just that it
might help in the future, I would want very carefully to consider it.
Right-minded and responsible people might differ on what the right
solution is, but my conclusion is that that case has not been made and
therefore I cannot personally support this proposed
change.
The
Chairman:
Lord Goldsmith, thank you for your time and
expertise, which the Committee greatly appreciates. I thank colleagues
for all of the questions that led to those responses. Let us have a
quick turn around and hear from Lord Dear
next.
For
the record, will our next witness, whom we warmly welcome, introduce
himself.
Lord
Dear:
I am Lord Dear, and I have been a Cross Bencher
in the House of Lords for the last couple of
years.
The
Chairman:
Thank you. I do not propose to divide this part
of our proceedings, for which there is quite a lot of time, into
pre-charge detention without trial and other matters: it is going to be
open house. However, by way of guidance at the outset, I shall say that
although I am keen to facilitate everyone getting in and asking the
questions that they want to ask, we need to operate within some basic
rules. Questions about parliamentary calculation on whether this or
that is likely to result in a majority being cobbled together are
frankly, and I would have thought fairly obviously, not in order.
Similarly, questions about people’s motives, which impugn or
might be thought to impugn the integrity of people in public life, are
singularly inappropriate, so let us stick to the issues. I want to be
fair to everyone, but the Chair sometimes has to rule, and it would be
helpful in those circumstances if colleagues would recognise
that.
Q
195
Mr.
Grieve:
Good afternoon, Lord Dear. I refer you to your
position on 42-day pre-charge detention, as I understand it, and in
particular to an article that you wrote in The Guardian on 31
March, which might be as good a starting point as any. In that article,
quite apart from indicating that you do not favour such as
extension—you gave some extensive reasons concerning civil
liberties and the attitude of minorities that would be
affected—you also stated your view
that
“many
of the chief constables I speak to privately agree that they do not
need the power to hold terror suspects for 42
days”.
I
wonder whether you are in a position, while obviously respecting
confidences, to amplify on that in any way.
We certainly
had evidence earlier today from Sir Ian Blair and from Mr.
Quick, whom—I hope I get this right—while acknowledging
that it would be quite wrong to say that ACPO was unanimous on this
subject, nevertheless appeared to give or sought to give the impression
to the Committee that chief constables were eager to have this
extension of power, and I wonder whether you could help the Committee
on that point.
Lord
Dear:
Perhaps not very much. I meant what I said, and
it was accurately reflected in that article. I have been away from the
police service since 1997—I served for well over 30
years—but as a matter of practice I have since kept as close to
the service as I can. Without having a head count, the article is
correct. I ask the chief constables whom I meet—in an
environment that is not so much social as semi-professional—a
number of questions on topical issues, one of which is the issue that
you are addressing today. In reply to my question, “Do you need
an extension beyond 28 days?” I cannot remember one who has
said, “Yes, categorically we do.” Some have said,
“Well, it is getting pretty close” in terms of some
investigations that they know of where the clock seemed to be running
out on them. However, when pressed—I
have not gone into the level of detail that you are going into with
colleagues today—some said, “No, I don’t think we
need it”. That is what I said in the article and that is the
position as I understand it. That does not reflect the ACPO
view—you might want to talk about that—but, rather, it is
my own litmus test of the chief constables that I have
met.
Q
196
Mr.
Grieve:
As far as ACPO was concerned—I hope that I
recall this correctly—we discussed with Mr. Quick the
composition of the ACPO terrorism and allied matters committee, which
numbers about 70, and, as I understood his evidence, he acknowledged
that it would be quite wrong to describe the committee as having a
unanimous view on the subject.
From your
point of view as a retired police officer, how have you come to the
view that you expressed forcefully in the
article?
Lord
Dear:
In no order of priority, I do not think that we
need the extension of the 28 days—this is not a good place to
start—partly because a lot of people oppose it. They are people
of weight whom I respect, and they are experienced—one, Lord
Goldsmith, has just left the room, but I could parade many others. More
to the point, one needs to look at what other countries are doing.
Forgive me for going into the detail that you may already have heard,
but if one looks at comparable, or even at non-comparable, countries
around the world, one will find that we are far ahead of them on 28
days: Turkey is seven and a half, Russia is five, and Spain is five.
Critics could say that some of those countries are not common law
countries, which is true, but it is interesting that they are a way
short of 28 days.
If you look at
common law countries with an accusatorial criminal law system, you will
find that Canada has one day, America has two days, and that Australia,
with 12 days, comes nearest to us. We already outstrip comparable
countries, which leads me to my next point, which is also in the
article. The moment that you put yourself that far ahead, without very
strong supporting evidence, I believe that you become a propaganda coup
for al-Qaeda and others, which already points to us, in my
understanding, because we are at 28 days. I sure that it would be
delighted if we were to move to 42 days—perhaps I do not need to
go into the reasons for that because the way in which such a move would
be handled is fairly obvious. My understanding of the theory of
terrorism, as has been said for many years—I think it is
true—is that many terrorist groups, historically in the past 40
or 50 years, have declared that all you need to do to seriously damage
a western democracy is to push it and create a ratchet effect that
causes it to erode essential freedoms and legal liberties until you get
to the point at which you can point to it and say, “There you
are. I told you so. We are fighting a totalitarian regime”. That
is fairly obvious, but it is important. If you go past 28 days, you
play into that milieu rather more
readily.
I
also believe that there are alternatives. I sat in for only the last 10
minutes of Lord Goldsmith’s evidence, but I heard him being
questioned on post-charge questioning, which I introduced in that
article. I believe that that is an alternative. I need to say—I
may be pressed on this point—that I have the highest regard for
the police and other security organisations as they are presently
co-operating. They do a very good job for us. They are dealing with a
problem the like of which I did
not see. I was brought up with the IRA and other quite dangerous
terrorist groups, but they were not suicide bombers. The suicide bomber
has changed the landscape of counter-terrorism for obvious reasons. It
makes the police’s life much more difficult. As Lord Goldsmith
was saying before I began my evidence, I do not know of a case in which
we have been pushed up against the 25, 26 or 27-day mark. In fact, most
cases have been dealt with well short of that time. I understand that
the bid for an extension to 28 days is a just-in-case bid, but I think
that there are alternatives that do not fall into the trap of giving a
propaganda coup to al-Qaeda, as I believe it
would.
Q
197
Mr.
McNulty:
You have discussed the difference between the
current and the IRA threats. Will you remind me when you were last
operational as a police officer.
Lord
Dear:
1997.
Q
198
Mr.
McNulty:
In recent times, apart from what we could
describe as your semi-professional encounters with chief constables,
have you heard any recent intelligence assessments on the nature of the
current threat?
Lord
Dear:
Of course not, as you would well expect me to
say. In fact, for them to have done so would have been a breach of
security on their
part.
Lord
Dear:
No. It was before my
time.
Lord
Dear:
No, I do not think that I would have done; for
the same reasons. We were on four days, as I am sure you are aware, for
standard criminality. It has already gone from four to seven, and from
seven to 14. My view would have been that it should not have gone past
14.
Lord
Dear:
It is hypothetical, because I was not there. I
think that the further you go beyond the four days, the more dangerous
the ground
becomes—
Lord
Dear:
The propaganda coup clearly becomes greater the
further you extend the
period.
Q
203
Mr.
McNulty:
You would contend that shifting from 14 to 28
days represented, in your terms, a propaganda coup for our
enemies?
Lord
Dear:
It could well be seen to be so, yes; although
of a lesser nature than 28 to 42, or 42 to wherever
else.
Q
204
Mr.
McNulty:
And you would regard the actual model in the Bill
as mere frippery? The notion of going beyond 28 days in any
circumstance, albeit in emergency or utterly exceptional
circumstances—those are minor matters in your terms. Would
anything beyond 28 days, in any context, be
wrong?
Lord
Dear:
I will try to answer you by addressing a
different point. I do not think that it is a question of levels of
culpability—of wrongness, to coin a phrase of my own. The
further you go down the road of extending detention without charge, the
further you go into the argument that you are eroding civil liberties.
Perhaps that becomes
obvious.
With
regard to whether I would have voted for the change from 14 to 28 days,
I do not know because I was not there. But I was uncomfortable with it,
reading about it, purely as an observer then, outside the House. If
your question is whether I would, willy-nilly, say no to any extension
and not underpin that with some other legislation, I have already said
in the article and answered your colleague that I believe that there
are ways in which one can address the security services’
problems without an extension to 28
days.
Q
205
Mr.
McNulty:
And your view is that, regardless of where we go
with intercept as evidence, or what we have done already in terms of
acts preparatory, or the provisions in the Bill for post-charge
questioning as you indicate in your article, you can see no
circumstances whatever, given the nature of the current threat, in
which we should go beyond 28 days, or afford the police the ability to
go to a judge to ask for an extension beyond 28 days?
Lord
Dear:
That is not quite the point. If you came to a
doomsday scenario, which is what you are
painting—
Lord
Dear:
With respect, I think that you are. You are
pushing me to say that there are no circumstances at all, which is a
doomsday scenario to me. If you get to a doomsday scenario, clearly you
would have to revisit
it.
As
I understand the situation at the moment, we have not yet been pushed
up against the 28-day barrier. I understand the arguments, which are
well made, that it is there just in case you need it. The just-in-case
argument goes along the lines of the growing sophistication of
terrorism and counter-terrorism. I do not understand the detail, for
reasons that I have already explained to you, but I can understand the
principles. There is a race between the two. That frequently means, not
only because you are being pushed to counter terrorism with more
sophisticated means, but because of suicide bombing, that you have to
interpose earlier. If you have not heard that evidence already, I give
it to you now. You are driven to interpose earlier than you would
normally in standard crime or even in the old IRA-type crime, which
means that you do not have the evidence that you might have had had you
delayed. You cannot afford to delay. I understand that. We are going
around and around on the point.
I am saying
that there are ways of not going past the 28-day barrier, not giving a
propaganda coup to al-Qaeda, and still handling that problem. You have
mentioned, for example, acts preparatory to terrorism. I would find it
amazing if somebody was in custody at 27 days and there was no evidence
at all that one could adduce. I would be very surprised to hear that,
and quite alarmed because one would have expected evidence to have been
accrued on the minor offences—the preparatory offences of which
there are several—and one could then charge on post-charge
questioning, with all the paraphernalia that we know about that, in
order to hold that person in custody under the current legal
structure.
Q
207
Mr.
McNulty:
We certainly have not had any evidence from the
prosecution authorities that things happen quite as conveniently as
that. The evidence might drop out of the process at day 27 or 28. We
heard very clearly earlier that the aspersion cast by some, that in the
most recent case the evidence was there at 14 and 18 days and they were
just polishing the teacups for 10 or 14 days, was not true. On what
prosecutorial experience do you base the notion that if you cannot get
a lesser charge by day 27 you will never need an extension? I do not
follow that at
all.
Lord
Dear:
I am sorry, but that is my view and I have
given it to you as honestly as I can. Are you asking me what my
experience is of
that?
Q
208
Mr.
McNulty:
Your prosecutorial experience, in terms of the
prosecuting authorities, not your investigatory experience. You make
the assertion based on what one would assume was some experience as a
prosecutor.
Lord
Dear:
With the greatest possible respect, what I said
was not that. I said that, as I understand it, “I would be very
surprised”, and then I tried to answer your question. I am not
saying that this has happened. All I know is that I have
read—and indeed heard only half an hour ago or less—that
the ex-Attorney-General said that to his knowledge there have been
three cases, I think, that have gone past 14 days. That to me is quite
significant. We are not yet bumping up regularly against 25, 26 or 27
days. I accept that as a fact from those who I believe would know what
they were talking about, but I am being asked by you to hypothesise and
what I am saying is that I would be very surprised if you get to the
25, 26 or 27-day point without something that you can charge in the
terrorism world—acts preparatory, or membership of, would come
to
mind.
Q
209
Mr.
McNulty:
Those who are currently charged with protecting
us in terms of counter-terrorism would hopefully be among those who
“would know what they were talking about”, as you
describe it, and they all—certainly the leaders of the
country’s three counter-terrorism units, the Metropolitan
police, and the ACPO cabinet and council—agree that this is a
contingency provision that they require. What are they missing that you
get and they do not, given all their experience, including that of your
successor chief constable Paul Scott-Lee, who runs West Midlands
counter-terrorism? Why do they say that this can be seen as necessary,
to use Goldsmith’s
words?
Lord
Dear:
You must ask them why they say that. You are
asking me, and I am giving you a view as fairly, honestly and calmly as
I can. You could ask Lord Condon—ex-Commissioner of the
Metropolitan police—who I was talking to only today, and who
agrees pretty well implicitly with what I have already told
you.
Lord
Dear:
Of course they do, and that is the very reason
that we are in this room. All I can do is give you an answer to your
question.
The
Chairman:
Lord Dear, I am most grateful. I do think that
sometimes there is something to be said for knowing the point at which
all of the juice has been extracted from the
orange.
Q
211
David
T.C. Davies:
Lord Dear, you have quite accurately
expressed a concern that I think many people have, but have also
accepted that there could be a doomsday scenario, with which I think we
would also all agree. Would you therefore support the use of the Civil
Contingencies Act 2004 if such a doomsday scenario, which has not yet
happened but might happen at some point, were to come to
pass?
Lord
Dear:
The short answer is yes. None of us can quite
foresee what would happen. I suppose we could all construct a doomsday
scenario for ourselves. At that point we would have to revisit the
situation we are in, and we do have that facility. I am not an expert
on the detail but I do understand the principle and invoke
it.
Q
212
David
T.C. Davies:
Given your long experience as a senior police
officer, in your opinion would that be a practical course of action to
take if such a scenario were to take place? If not a practical course
of action, would it be an achievable one? Would it
work?
Lord
Dear:
In parliamentary terms, as I understand it,
yes, it would work. In terms of what it would do on the ground to the
existing problem, presumably the problem would either be of such a
magnitude that you would be reeling from its impact, or it would be a
continuing problem and you would be running to catch up, either of
which is less than perfect. However, if you are asking, “Could
it be invoked, would that help and what could you bring in its
place?”, clearly the answer has to be
yes.
Mr.
Bailey:
In the summer of 2006, I was on a police liaison
scheme and spent 25 days with the West Midlands police
force—your former force. I was in the gold command room on the
day of an operation to raid and arrest a number of terrorists who
subsequently were charged and found guilty. During those 25 days, I
asked virtually every police officer whom I came across whether they
thought that the time limit should be extended, and without dissent
they were unanimous that it should be extended. Were they
unrepresentative of the rest of their police force, or is West Midlands
police force unrepresentative of the police service as a whole? Or are
you out of step with the West Midlands police
force?
Lord
Dear:
I think
that—[Interruption.]
Lord
Dear:
I missed whether you said that they did or did
not
agree.
Lord
Dear:
I was interested in the way that you posed your
question, because you were trying to answer it yourself. I do not know
whether I am out of step with the police force; I am simply giving you
a fair view. As I said at the beginning of my evidence, chief
constables tell me, for no reason other than to be frank—so it
occurs to me—that they do not need it. Let me put it to you in
another
way—[Interruption.]
The
Chairman:
Order. I apologise, Lord Dear, for interrupting,
but I wish to tell Members that it is fundamentally bad manners to
chatter to each other—
whatever side of the House you might be on—when we have a witness
in front of us giving us his time and expertise. I do not want to see
it happen; it is plain rude and will not be tolerated by me in this
Committee.
Lord
Dear:
Thank you very much. I was about to say that
anyone faced with the problems with which I guess that West Midlands
police were faced on that occasion—other forces have also been
faced with them and will continue to be—and offered the chance
for legal tools to make their lives easier, would say, “Yes, we
could do with more.” I would be surprised if operational
detectives were to turn down the offer of more time to make inquiries.
However, from a different perspective—my perspective—one
needs to stand back and weigh that very understandable reaction against
essential questions of civil liberties, legal process and all the rest
of it—the Chairman is nodding and I am sure that others agree
too.
We are sitting
here in order to find that balance. We could throw everything into law
and enforcement mode, but if you pursue that view, I might say,
“Why not have no limit at all? Why not simply hold people on
indefinite detention until you find out whether you have the
evidence?” But that is a road to ruin. The essential balance
must be between how long you do that for and how much you value civil
liberties and all that goes with that side of the argument, which is
why Parliament has pitched at 28 days and why it is debating 42.
However, I am not surprised to hear that people at the sharp end say,
“As far as we are concerned, we could do with longer,”
which essentially is what you are
saying.
Mr.
Bailey:
Obviously, there must be a balance with civil
liberties, but I return to this proposed legislation, which provides
for a fail-safe process—if you like—determined by the
judiciary and acknowledged by Lord Goldsmith as being compatible with
human rights. Do you not think that that fail-safe or reserve process
is useful in supporting our law enforcement and intelligence community
in doing something that we would all recognise as being absolutely
vital—the preservation of people in this country and their right
to live without
terror?
Lord
Dear:
Which process are you saying is a
fail-safe?
Mr.
Bailey:
I am talking about the extension, when appropriate
and determined by the judiciary, to more than 28
days.
Lord
Dear:
I think that I have already said, and I say
again, that if you need more time to investigate the attendant case, a
device has to be found to do that. I am not for one minute saying that
when 28 days comes, you simply tip them out on the street no matter
what. I am not saying that at all. I am saying that I do not think it
sensible to go past 28 days without
charge.
All
the evidence that I have heard to date does not cause me to change my
view that it would be possible, as you run close to the 28 days, to go
for post-charge questioning. The moment you prefer the lower charge,
with judicial approval and overview of the following questioning, 28
days goes off the slate altogether. You are not talking about detention
any more because you have a charge under the normal judicial process of
appearances at court and applications for
bail.
Q
213
Mr.
Bailey:
We had a discussion on post-charge questioning and
the consensus of a number of eminent lawyers is that it is not very
effective. I will leave my questioning there.
Lord
Dear:
If I may respond to that, the lawyers that I
have spoken to in the House of Lords would agree that mine is probably
a very tenable position so I do not know where you are getting your
information
from.
Q
214
Mr.
Llwyd:
It is a tenable position, but it is not a magic
bullet. You will know that serious criminals and terrorists alike do
not like answering questions or are trained not to answer questions. It
may be helpful in some peripheral
cases.
Before
I put my question, may I correct one misconception that has been thrown
at you? Lord Goldsmith said that if there was no judicial oversight,
the proposal for extension to 42 days would certainly fall foul of
human rights legislation. That is slightly different from what has been
said and it is more than just a
nuance.
May
I ask your opinion on the efficacy of intercept evidence? It is not
new. It was around when you were active on the front line, as it were.
What is your opinion of intercept evidence in the anti-terrorism
scenario?
Lord
Dear:
I have always felt that intercept evidence,
following pretty well every other country of a comparable nature,
should be admitted into evidence. That is on one side of the coin. It
is probably just as important or more important in terrorism cases.
But—there is a very large “but” to this—the
opposition to it comes quite understandably from those who collect the
evidence. I do not want to say in a public forum where that is but
unless you push me, but you can guess
where.
I
mentioned earlier in answer to another point the technological race
between the terrorists and the counter-terrorist officers. Although I
do not know the detail, I know enough about it from those who are
prepared to talk to me to understand that it is now very highly
sophisticated indeed. The security authorities, including the police,
are understandably very unwilling to disclose, by adducing the
evidence, the way in which they gather that evidence, such as the
technology, the means and so on. I can understand
that.
This
is a rather facile example, but if it is a straightforward telephone or
mobile phone tap, it is no problem. If it is something a good deal more
sophisticated, perhaps involving hacking into e-mail traffic or
something more sophisticated than that, the security authorities would
have to weigh up whether to risk exposing their techniques to the
world. They could lose that one case or run with it and put the
evidence in. It would be a very finely balanced
judgment.
The
latest position, as I understand it, is that if the safeguards can be
found and the prosecuting authorities are able to adduce the evidence
and protect the way in which it was gathered, they might have a case
for using it. I do not underestimate the difficulty of that in the sort
of examples that we are looking at in counter-terrorism. In the end, I
think that, generally, the security forces would prefer not—I am
guessing—to put the evidence in, for fear of compromising their
techniques, and that they would prefer to use the information as
intelligence rather than as evidence. There is a big difference, as you
will understand.
Q
215
Mr.
Llwyd:
I thank you for that detailed answer, but may I
follow up with a runner? Such evidence is routinely used in courts in
Australia and in the United
States, for example, where they have highly developed security and
information services. They are able to do it without compromising
themselves. Why is it so different over
here?
Lord
Dear:
It is attitudinal. In general, I am very much
supportive; I have already spoken in the House of Lords, supporting the
introduction of the use of intercept evidence across the
board—not just in terrorism cases. However, I am trying to
explain to you that I can understand the reluctance of people who have
highly sophisticated means at their disposal and do not want to
compromise those in ways that I need not explain again. You are quite
right: Australia, Canada and other countries have used it for a long
time. To be the devil’s advocate, however, they do not
have—they do not investigate—nearly as much terrorism as
is investigated here. That may well be true, so they are not tested to
destruction as we might be. You have already outlined the principle,
and I have nothing against
it.
Q
216
Martin
Salter:
Did you say at the start of your evidence that you
felt that if we were to increase pre-charge detention—even for a
temporary period—beyond 28 days, it would effectively be a
victory for the terrorists, and that as a result, they would be more
likely to target the UK?
Lord
Dear:
I think that that would be the case,
yes.
Q
217
Martin
Salter:
May I put it to you that that demonstrates a
fundamental misunderstanding of the nature of al-Qaeda, which does not
put itself forward as the champion of democracy but stands for an
Islamic caliphate in which women would be denied the right to vote and
non-believers would be summarily executed? Do you seriously think that
al-Qaeda mines a well of people committed to democratic principles and
the principles of universal suffrage?
Lord
Dear:
We have all seen the products of second and
third generation Muslims in this country who have gone down the
terrorist route. If one could aggregate what they say, they do not like
what they see in our society, in American society and in western
society as a whole. They parade a number of reasons why, some of which
are nothing to do with what we are considering today, but to do with
materialism, sexual exploitation and so on—the way in which
women are used in our society as opposed to in their’s. All that
is a question of fundamental cultural differences, but I have no doubt
that if you feed to such people an extension from 28 to 42 days, they
will use it, too, to justify what they do. It beggars
belief to protest that they would simply ride the increase from 28 to
42 days and not make capital out of
it.
Q
218
Martin
Salter:
I am sorry, Lord Dear, but we really are going to
have disagree on that, because, frankly, your argument does not hold
even a droplet of water. I cite you different jurisdictions where
al-Qaeda atrocities have occurred: Afghanistan, Bali in Indonesia,
Pakistan, none of which is a liberal democracy where the rule of law is
sacrosanct, the USA and the UK. There is no common thread, is there,
between the jurisdictions in any of those states where terrorist
activity has taken place? No way can we put together a coherent
argument that the period of pre-charge detention is the prime
motivation for an al-Qaeda atrocity.
Lord
Dear:
That is a quite remarkable
statement—
Lord
Dear:
—
not a question, if I may
say so, Chairman, and I disagree with the premise. If you are also
looking for examples of terrorism, you could look in Madrid, at the
twin towers on 9/11, one very sophisticated series of explosions in
London on 7/7, a series of attempts on 21/7, Glasgow airport and so on.
All of that has its roots somewhere in what we generically call
al-Qaeda. Other people here would probably explore in greater detail
what is meant by Islamic terrorism, but al-Qaeda, in the terms that I,
and perhaps most of us, use it, is a generic term for all of that
fundamental Islamic-based terrorism against the western democracies. If
you are telling me that you disagree, that is fine, but I shall
certainly not withdraw the statement that an increase in
detention—as they would see it—without trial would be
used to their advantage.
Q
219
Martin
Salter:
In that case, would you think that those
jurisdictions with larger pre-charge or pre-trial detention periods are
higher targets than the UK? I would cite Germany where detention can
take place for up to six months, Spain where it can take place for up
to two years or France where pre-trial detention can take place for up
to four years. Do you seriously think that these jurisdictions are
higher terrorist targets for al-Qaeda than the
UK?
Lord
Dear:
Could you give me those figures
again?
Q
220
Martin
Salter:
Certainly if the Chairman allows, I am happy to
repeat them. For France it is up to two years’ pre-trial
detention for crimes punishable by 10 years’ imprisonment or
less, or up to four years for crimes punishable by more than 10
years’ imprisonment. It is six months in Germany and preventive
detention for an offence carrying up to three years’
imprisonment may last for up to two years in Spain. My point to you,
Lord Dear, is: are you seriously expecting us to believe that these
jurisdictions are now higher targets as a result of their pre-charge
detention arrangements?
Lord
Dear:
No. My point to you is that I would check the
source of your information.
Lord
Dear:
For a start, you are comparing inquisitorial
and accusatorial systems. In Germany you have to prefer a charge in
their terms within two days. In France it is within five days. The fact
that it goes into a wholly different system in which you are—I
use the words loosely because we all understand them—guilty
until proved innocent is another matter altogether. In terms of
pre-trial detention time limits, I give it to you as a matter of fact
that in Germany it is two days, in France it is six days, and in Russia
it is five days. One could go on. We are confusing inquisitorial and
accusatorial systems; in other words common law systems against the
Napoleonic
code.
Q
221
Martin
Salter:
I accept and I take issue with Liberty and others
who have sought to make onerous comparisons, but I do not think that
al-Qaeda will reflect on the finer points. Can I draw your attention to
the memorandum from Justice, which is on your side of the argument on
this. I would welcome your comments on paragraph 43, which
states:
“However,
there is no evidence to show that the incidence of false identities,
the number of languages involved or the number of international links
in Al-Qaeda-related terrorism have significantly increased since the
9/11 attacks in 2001 (when the maximum period of pre-charge detention
in the UK was 7 days), the Madrid bombing in 2004 (when the maximum was
14 days) or 7/7 bombings in 2005 (following which the maximum was
increased to 28
days).”
So
even people on your side of the argument accept that there is no
read-across between the level of pre-trial detention and the likelihood
of the UK being a
target.
Lord
Dear:
I am not sure where the question was in that
lot.
Lord
Dear:
First, we are trying to compare chalk with
cheese in two totally different sets of regime—accusatorial and
inquisitorial. If the question is whether I believe that there would be
a propaganda coup by extending from 28 to 42 or whatever else, then
yes, I think there would be a risk of
that.
Q
223
Mr.
Wallace:
There is a danger that the argument is moved away
from whether this Bill is a good accessory or a good assistance to
counter-terrorism practices. Does it provide better tools for our law
enforcement agencies or does it hinder them? It is entirely fatuous to
talk about different aims of different terrorist organisations. Would
you agree with me that the ultimate goal of good counter-terrorism is
that the communities that terrorists come from communicate well with
the law enforcement agencies and are well penetrated by sources in
certain areas that are crucial? If you get to that position it is the
ultimate goal of good counter-terrorism. You get early warnings. You
get to know who is who and you catch people in the act and therefore
get convictions without overstepping the mark. Would you say that is
one of the ultimate
aims?
Lord
Dear:
Yes; the ultimate aim of counter-terrorism is
to have communities on side with you so that—this is almost a
facile remark—they do not see the need to commit acts of
terrorism at all. Having compatibility with groupings, whether they are
large or small, is clearly an objective. As you move towards
that—of course, you may never reach that point—the
greater the degree of harmony with those populations, the better and
easier counter-terrorism operations are, so the short answer is
yes.
Q
224
Mr.
Wallace:
Do you agree that, in Britain’s
experience, which has been particularly good with counter-terrorism, in
the past 50 years, those principles have been consistent no matter who
the terrorists have been—from Chinese communists in Malaya all
the way through to the IRA and to today? The principles of community
solving alongside enforcement do not change because the terrorists
change.
Lord
Dear:
Yes; they are sometimes called hearts and minds
campaigns. That is rather a crude expression, but I think we all
understand what it means: you will
conquer terrorism in the end with hearts and minds campaigns. I use
those words loosely. I am going with your
thread.
Q
225
Mr.
Wallace:
The reason why I asked that is because there is
always a conflict with counter-terrorism, is there not, between those
who seek to exploit and act on intelligence and those who would gather
it? In your discussions with your previous colleagues, and, indeed,
today, if we were to ask the source-running community—the old
SO12, for example, as opposed to the old
SO13—
Lord
Dear:
Running agents under
cover?
Q
226
Mr.
Wallace:
Yes, running agents and recruiting people. If you
were to ask them, do you think that they would have a different view of
detention without charge from the police officers who are in charge of
exploiting it, often in the precautionary way—you know, acting
on
something?
Lord
Dear:
That is quite difficult to answer. Let me try
to answer you in parallel, and please tell me if I have not addressed
your point. This answer is partly the answer that I gave to one of your
colleague’s questions a while ago. If you ask most operatives
“What do you need?”, they will say that they need more of
whatever it is—time, information, powers and so on. You could
take that argument all the way through to saying that once you are into
counter-terrorism territory, anything goes. That would be very
dangerous, and I guess that none of us in this room would want that,
but that would be one extrapolation of one view. The more tools you
have, the better. As I have said, there is a balance, which one has to
strike, between civil liberties, due process and the history of this
country and everything else that goes with it. That is not just about
academic jurisprudence; part of it is about whether you disturb the
balance of society with everything you do. That is partly why I talk
about propaganda.
There is a
growing danger of some possible courses of action disturbing the
fragile relationship between communities and the way in which they
interact. That is important. It is all about balance. We are sitting in
this room talking about a balance between powers on the one hand and
responsibilities on the other. To come back to the question that I
think you asked, there will be those in the police who would vote 100
per cent. with what I am saying because they are facing outwards at the
community, and there will be those inside who are dealing with it,
probably around the operations room desk who will want more powers and
who would probably vote with some colleagues in this room who have
prosecuted an entirely different case. I do not need to remind you that
Parliament is acting as an umpire in this matter; it is a question of
balance. You will see those two views reflected within police forces
and security organisations—almost automatically, I always
think.
The
Chairman:
Thank you, Lord Dear. Four more colleagues seek
to get in and I want to get everybody in, but people will have to be
brief with their questions. I know that Lord Dear will be brief with
his answers.
Q
227
Ms
Taylor:
The popular tune from some time ago, “The
Times They Are a-Changin’”, references the reason why I
will support this Bill. The context is quite
simple for me. We know from the police and security agencies that they
are collecting evidence on more than 2,000 people whom they suspect
could be up to no good. We know from the descriptions of previous
terrorists that they were young men who sometimes had educational
qualifications. They were British and sometimes had young
families.
They
do not fall into any stereotypical understanding of what a terrorist
has been in the past. They are quite different, and they present the
police with extraordinary problems with identification and
investigation. It is because of that that they are asking us to support
the extension of pre-charge
detention.
Lord
Dear:
I think that I have already answered this in
another context. I sympathise with the problems, I recognise that the
problems and the whole landscape have changed for all sorts of reasons
that have been already adduced today. You know where I stand on the
balance, but I respect your
view.
There is a
difference between asking a question and seeking to persuade a witness
of one’s own
view.
Mr.
Heath:
I wanted to ask a series of questions of Lord Dear,
but I do not think I can do justice to them in the time
available.
Q
228
Mr.
Holloway:
Following on from what Mr. Salter
said, do you agree, Lord Dear, that the level of threat to a country is
determined by many factors, including, for example, the make-up of its
population and its foreign policy? Should we not, therefore, have laws
that are appropriate to those different sets of circumstances in those
different
countries?
Lord
Dear:
Are you saying that different countries should
have different legal
processes?
Q
229
Mr.
Holloway:
I am just following up Mr.
Salter’s point that he was trying to balance the pre-trial
issue. Do you agree that different countries should make things
relevant to their particular circumstances, and that you cannot make
comparisons?
Lord
Dear:
Clearly, we do not have one global legal
system. Different countries have broadly the same aims and objectives,
but differ in practice. I have already talked at some length about the
difference between accusatorial and inquisitorial systems. That is a
fundamental divide in Europe. America, Britain and the Commonwealth
countries are sometimes called the common law countries. There are
different legal processes, all seeking and declaring
that they are chasing justice, which is an ephemeral but desirable
objective. Yes, they are different, if that is the point that you are
making.
Q
230
Mr.
McNulty:
To return to the point about hearts and minds,
have you read the Government’s counter-terrorism strategy,
including the substantive section on prevent work, as well as pursue,
protect and
prepare?
Lord
Dear:
I have read it, but I cannot call to mind
exactly what you are
quoting.
Q
231
Mr.
McNulty:
Just that there is a substantial element of
prevent—the hearts and minds work—in the
counter-terrorism
strategy.
Lord
Dear:
Yes, I have read
it.
Q
232
Mr.
McNulty:
When you talk to your assorted police colleagues,
have they made you aware of the police’s prevent strategy? It is
a separate plan, and not the same as the counter-terrorism strategy.
The police themselves have devised a prevent plan. Have your colleagues
made you aware of
that?
Lord
Dear:
You are talking about work in the
community.
Q
233
Mr.
McNulty:
I am talking about a specific plan that was
formally adopted by ACPO with substantial resources behind it for
precisely the prevent and hearts and minds work. Have you read
that?
Lord
Dear:
Yes, I
have.
The
Chairman:
I am not keen, if you will forgive me Minister,
on pursuing that line of questioning
further.
Mr.
McNulty:
My point was purely that none of this was
mentioned in the article that invoked Che Guevara and Herbert Marcuse,
but did not mention the prevent
strategy.
The
Chairman:
I will stop that line of questioning. The
Minister has made his point, and it is on the record, which is
perfectly fair. We have less than a minute left, but if Dominic Grieve
would like to ask a brief question, Lord Dear could give a brief
answer.
Q
235
Mr.
Grieve:
To return to the hearts and minds issue and
particularly whether al-Qaeda would be influenced by whether there were
42 days’ or 28 days’ detention, perhaps that is the wrong
question. To what extent do the values of the society in which one
lives deter terrorists from recruiting within that society? In that
context, the liberty of the individual as a paramount characteristic of
western society is a tool that we should use, and not one that we
should
reduce.
Lord
Dear:
I agree entirely. You put it very much clearer
than me. I was trying to make that point at several junctures in this
session. It is about basic values in society. You are quite
right—I came close to using the words that you used—it is
about the perception of the society in which some of those groups live
that they fashion their views on whether they are for or
against.
The
Chairman:
Lord Dear, thank you very much indeed, both for
your time and your expertise. We now need a speedy changeover to the
last witness. For the record, may I ask you formally to introduce
yourself.
6.30
pm
Elish
Angiolini
:
I am the Lord
Advocate of Scotland.
The
Chairman:
Thank you for coming before the Committee this
afternoon. Given that you are who you are and your expertise, I would
like to suggest to members of the Committee that we begin with a focus
on clause 27, which is on the interaction of the English,
Scottish and Northern Irish legal systems and the issue of where
offences should appropriately be tried. We can then, of course,
perfectly properly, move on to other matters, but let us begin with
that subject.
Q
236
Mr.
Heath:
I am most grateful. I am very pleased to see you
here, Lord Advocate. In the absence of a Scottish Minister, we thought
that the Committee needed a little Scottish
advice.
We
heard evidence from Lord Goldsmith earlier. I asked him whether there
had ever been any jurisdictional problems between the Scottish and the
English and Welsh jurisdictions in prosecuting terrorism cases. He
could not recall any instances in which the relationship had not been
extremely good. Do you concur with that?
Elish
Angiolini
:
The
relationship has always been excellent. I was a Law Officer in the
previous Administration, and, curiously, I am a Law Officer in the new
Administration. There has been no difference in approach whatever
between the Law Officers over prosecutorial matters, which we approach
independently of any political dynamic. On that basis, we have good
communications, we see one another frequently and there are practical
and good relationships between our respective prosecutors across the
board. Possibly, they are as good as they have ever been—matters
such as terrorism lead to that
imperative.
Elish
Angiolini
:
In the past,
there have been some practical issues. One particular case resulted in
no proceedings because of the sufficiency of evidence in Scotland. It
was clear that there were common productions in England and Scotland,
which could have been conveniently prosecuted together. However, there
was no nexus between the two incidents, and the time scales of the
prosecutions were out of step—the English prosecution could have
taken place within 18 months, but the Scottish prosecution was required
to take place within 110 days. The lack of time scale and evidential
considerations would have created a difficulty had there been a
sufficiency, but we did not get to such a stage.
The recent
incident, which is sub judice at the moment—I shall refrain from
going into the circumstances for that reason—propelled us
quickly to look at the issue of universal jurisdiction. That move came
from Scots. It has been characterised as an infliction on us, but it is
far from that—I raised it with the Attorney-General to ensure
that there is no doubt that we have the flexibility and ability to deal
with such matters expeditiously, in a
quick time scale, without the security of knowing that there is a solid
basis on which we can prosecute such cases across the
board.
Mr.
Heath:
That is a critical point. We were unable to get an
answer on Second Reading on the problems with part 3 of the Bill. Are
you saying that it was at the request of the Scottish Law Officers that
action was taken, and therefore that any suggestion that there had not
been prior consultation is entirely erroneous?
Elish
Angiolini
:
It is
nonsense. I raised the matter with Baroness Scotland because of the
circumstances of the case and the time scales at that stage. There is
already universal jurisdiction in the Explosive Substances Act 1883 and
the Customs and Excise Management Act 1979, and it has worked very
well. We also have frequent experience of cross-border crime. Criminals
do not respect the border at Carlisle. Therefore, we have common
experience of having to look pragmatically at which jurisdiction should
have preference. We deal with that in discussions and, using our
expertise as prosecutors, make decisions in the public interest,
irrespective of any political pressure or dynamic there may be at the
time.
Mr.
Heath:
Mr. Bercow, I would like to come back
later on post-charge questioning, but that is sufficient for
now.
Q
238
Mr.
Grieve:
May I touch on issues that come through in the
Bill, when one looks at it? There are different practices; in
particular, the length of retention of DNA or fingerprints from an
individual who is not convicted is quite different. Indeed, that is
reflected in how control orders are dealt with in the legislation. Just
to help the Committee, I assume from all your comments that there has
been absolutely no difficulty in identifying those Scottish practices
that you want to keep
distinct.
Elish
Angiolini
:
Yes, clause 11
recognises that there is a distinct approach to such matters, but it
secures the evidence so that it would be admissible in the context of
any English proceedings that were based on evidence that was obtained
in the Scottish context. It addresses those problems but recognises
that there are idiosyncrasies. In fact, I listened to the previous
witness, Lord Dear, talking about the inquisitorial and adversarial
systems. Of course, we in Scotland have a unique hybrid of an
inquisitorial and adversarial system. Therefore, we are very distinct,
and there are many differences between our legal
systems.
None
the less, we understand each other, and we recognise, as we would with
any other jurisdiction in Europe, that there is a need to be able to
co-operate and understand where the public interest truly is when it
comes to making a decision about the location of a prosecution and, as
a matter of convenience and public interest, how the evidence should be
gathered and by
whom.
Q
239
David
T.C. Davies:
May I ask the right hon. Elish Angiolini, as
she is here from Scotland, about clauses 77 to 81, which deal with
charges that will be levied on gas and, probably, oil facilities?
Clause 78 makes it clear that that could apply in Scotland, but it is
not clear whether it will, or whether the decision is for Westminster
or the Scottish Parliament. Could you just
clarify that and also say whether you have had any indications as to
whether the Scottish Parliament is likely to impose such
charges?
Elish
Angiolini
:
I have not
looked at that. I understand that, as a prosecutor, I am here to deal
with my prosecutorial role. The position would depend on whether the
purpose was a reserved purpose—dealing with
terrorism—which clearly would come within the power of
Westminster.
Elish
Angiolini
:
I would be
happy to have one of my colleagues respond to you on that basis in
writing.
The
Chairman:
Mr. Mercer, you can ask whatever you
wish at this point. It is, of course, for our witness to decide whether
she wishes to
answer.
The
Chairman:
There is a degree of flexibility. I am happy to
let you come in. You did not come in on the last session, so you are
welcome to come in
now.
Q
243
Patrick
Mercer:
Thank you, Mr. Bercow. Lord Advocate,
we spoke to several witnesses about the efficacy or otherwise of plea
bargaining. At present, it is not formally recognised in English or
Scottish law. Have you any views on
it?
Elish
Angiolini
:
We do not have
a concept of plea bargaining in Scotland. We have plea negotiation.
Plea bargaining is a distinct process that generally takes place in the
United States. The judge is involved in the process, and will give an
indication of the sentence before the accused commits himself to a
plea.
However,
it is very much a central part of the criminal justice system in
Scotland that, if there is a possibility of a plea of guilty, the
prosecutor gives serious consideration to it and continues to do so as
the case progresses. The earlier the plea, the better, in the sense
that it avoids huge deployment of resources by the force, particularly
in terrorist cases, as you can imagine, and also trauma and distress
for witnesses who anticipate coming to give evidence in court. It is
also an indication of
remorse.
In
Scotland, we have a system that recognises early pleas of guilty with a
discounted sentence, if the judge considers it appropriate. It is not
mandatory, but judges do afford discounts to pleas of guilty that are
given at an earlier stage. The prosecutor will consider any plea that
is tendered by the defence in the public interest when it is put
forward.
Q
244
Patrick
Mercer:
Can you make any recommendations for the wider
application of that in terrorist
cases?
Elish
Angiolini
:
I do not see
that there is any distinction. What motivates an accused person will
vary from one case to another. Obviously, experience in these terrorist
cases tends to be, certainly in Scotland, that they do go to trial. It
may be part of the process of having a public airing of the cause. The
motivation for what created the
crime is perpetuated in the publicity and the oxygen that is given
through the process of trial, rather than if there had been an early
plea.
Q
245
Mr.
Russell Brown (Dumfries and Galloway) (Lab): Lord
Advocate, you have already indicated that we do things slightly
differently north of the border. It has been suggested that there is a
conflict between the proposal to allow post-charge questioning and the
principle in Scottish common law that, once charged, a person is under
the protection of the court, and the court has a duty to ensure that
nothing is done to prejudice the trial. Do you have any concerns about
the proposal of post-charge
questioning?
Elish
Angiolini
:
This is an
example of where the different culture in England and Wales in the
judicial system is quite marked compared with that in Scotland. There
is a tradition that, after someone has been charged, anything that is
elicited by way of questioning would be inadmissible in evidence,
unless it is a spontaneous declaration or exhortation by the accused,
or a voluntary statement. Further questioning would be prohibited.
There is no absolute prohibition on visiting the accused about other
matters in that context. The general rule of our evidence, that is
devolved to the Scottish Parliament, is one of fairness.
Notwithstanding the existence of a provision that would allow the
evidence of post-charge questioning to be admitted into court, it would
still be subject to the general test of fairness in our law of evidence
in Scotland. The matter would come under judicial consideration of
whether or not it was
fair.
I
listened to Lord Dear and it resonated with me that the existence of
post-charge questioning without an adverse inference from silence,
which, of course, we do not have in Scotland either, is somewhat less
valuable in Scotland than it would be in England and Wales. That
distinction is important. Equally, my experience as a prosecutor over
25 years is that, even where adverse inferences may be available, where
we can take into account the failure of an accused person to establish
a defence or to make a comment, generally it will be accompanied by a
qualification from the accused or the suspect that, “On the
advice of my solicitor, I have been advised to say nothing.”
Given that a jury will thereafter hear that the solicitor provided that
advice, be it wrong, given the consequences, I am not sure what weight
a jury would attach to an inference from silence in those
circumstances. Therefore, limited benefit can be achieved evidentially
from that, even in a Scottish context, if we did have
it.
I
also think that there is a danger of questioning too much. Once you
have a sufficiency and it is good enough, if you go back to the accused
to question further, you often get an answer that you do not want. By
that time, in the context of post-charge questioning, there will have
been disclosure, if it is post-petition, of the statements that formed
the basis of the Crown case. If you approach the accused with
questioning, he will be able at that stage more intricately to link his
answers to what he knows to be the state of evidence. Therefore, he may
well be able to give answers that exculpate him, rather than
incriminate him. Certain tactical issues would have to be considered
about the value of that. Again, I would not be able to speak about the
English experience. I can only speak about my concerns about its
efficacy in
Scotland.
Q
246
Mr.
Wallace:
Lord Advocate, for my benefit as a layman in law,
because I do not know anything about it, can you tell me what the
current system is in Scotland that the Bill would seek to redress or
make
better?
Elish
Angiolini
:
From my
perspective, the universal jurisdiction is an overdue provision. It is
absolute common sense, and it will afford a flexibility and an
assurance with regard to one accused of committing a crime anywhere in
the United Kingdom. If we look at recent events, terrorism can happen
across the board in the UK, and the basis for jurisdiction will not be
snarled up in any way because of the absence of a specific crime in
that context.
Q
247
Mr.
Wallace:
I understand the sort of solution, but if a
terrorist attack happens involving some elements in England and one or
two incidents in Scotland, what happens at the
moment?
Elish
Angiolini
:
If there is a
conspiracy to carry out terrorist offences, there is a basis for
jurisdiction in either Scotland or England and Wales. Indeed, that is
certainly satisfactory where the evidence is quite patent at the
earlier stage as to what that is. If it is not clear that it is a
conspiracy and it might have been a number of isolated incidents from
the same accused, the basis would not be clear at that stage. You could
have two simultaneous events that are unrelated but for which there is
a common accused. That being the case, as a matter of certainty across
the board in all terrorist offences—including the financing of
terrorism, which could come from frauds that might not be patently
connected with terrorism but which we thereafter discover
are—the public interest would be served by the ability to
prosecute either in London or
Scotland.
Elish
Angiolini
:
We would have
to have separate trials with duplication of evidence, and witnesses
would have to come forward in both sets of
trials.
Q
249
Mr.
Wallace:
What is your answer to the critics who suggest
that that will have an impact on the Act of Union? I do not know
whether you have seen some of the challenges, but they relate to the
fact that the Act of Union safeguards the separate
jurisdictions.
Elish
Angiolini
:
I thought that
that was rather quaint when I read it, because we have had the Customs
and Excise Management Acts and the Explosive Substances Acts since the
late 19th century without anyone agitating in Scotland that they are
our terrorists and that they need to be prosecuted in a parochial way.
It is absolutely clear that the real priority here is the public
interest, and terrorism in that context demands that we act closely
together to ensure both the public interest and fairness for the
accused. The trial must take place coherently and expeditiously and
with witnesses and common evidence, ensuring that we do not have two
separate show trials in each jurisdiction simply because of the
difference in our
jurisdictions.
Q
250
Mr.
Wallace:
Quaint as it might be—I certainly did not
buy it—it did come from the Scottish Law Society. Are you
satisfied that there is no constitutional issue and that it is a
spurious
argument?
Elish
Angiolini
:
We have had
cross-border prosecutions for a number of years. We have had what are
known as either end offences. You might have a fraud, for instance,
where someone makes fake credit card purchases from a shop in Edinburgh
but also does so in Liverpool. Two years ago, I prosecuted a drugs
courier who was taking drugs from Liverpool to Edinburgh. You have a
crime in Liverpool and in Scotland, and we could have chosen to
prosecute in either location. Certainly, the jurisdiction of the High
Court is absolutely clear, but what is also clear is that we have an
ability to have prosecutions that recognise that there might be
continuity of action across the
border.
Q
251
Mr.
Heath:
With regard to this issue of post-charge
questioning, we have now established that clause 27 actually emanated
from the Scottish Law Officers, but I got the firm impression that
clause 24, which deals with post-charge questioning in Scotland, did
not. It seemed on the face of it to be incompatible with the
reservations that you expressed about how it would work. I am always
conscious of our profound ignorance in this House when legislating on
criminal matters in Scotland without the benefit of enough Members in a
Committee who have Scottish legal training. To come back to this, are
you satisfied that clause 24 is workable in Scots law? I am not clear
about what you said earlier about the relationship between this UK
legislation and its effect and the procedures that will be adopted
eventually in Scotland and the role of the Scottish Parliament in this
area. Could you perhaps just unpick that for
me?
Elish
Angiolini
:
I shall deal
with that last issue first. The fact that a statute allows evidence to
be admissible, or not to be inadmissible, which I think is what
clause 24 will do, does not thereby render it evidence that
would be put to proof by the court. The court will still determine
whether, generally, there is fairness in the way in which evidence is
extracted. If I had a provision that allowed post-charge questioning,
but in pursuing that I tortured the accused or threatened him with
assault, that would render that evidence inadmissible for the
underlying reasons of unfairness. That is why the law of evidence is
bolted on to any provision that, legislatively, may be allowed to admit
evidence in
court.
So
far as the usefulness of the provision is concerned, we do not have a
tradition of post-charge questioning. The point that Mr.
Brown made about the protection of the court being afforded to an
individual at the point where they have been charged is important in
Scottish evidence and Scottish procedure. In the Scottish context it
will have less value, but in the context of universal jurisdiction it
may be of use in cases that the English may have—because of
that. Again, it is limited, because if someone was cautioned and
charged in Scotland, they would not be cautioned about an adverse
inference, because we do not have them in
Scotland.
Elish
Angiolini
:
Officials in
the Crown Office were consulted. This is a reserved matter and for the
Westminster Parliament to determine. Therefore we have made our
observations about Scotland and about the limits, but ultimately it is
a matter for Westminster to
determine.
Q
253
Mr.
Heath:
Would it be reasonable for me to assume that the
observations made were in line with what you have just told the
Committee?
Elish
Angiolini
:
Yes.
Q
254
Mr.
Llwyd:
The Constitutional Commission often talks about
repatriating powers from Holyrood to Westminster. When asked about
examples, it frequently cites terrorism matters. What powers does
Scotland have on the issue of terrorism? What do you think UK Ministers
mean when they talk of returning terrorism powers to
Westminster?
Elish
Angiolini
:
I am not
intimate with the suggestion that it should be repatriated. Certainly,
my discussions with UK ministers have not involved that suggestion.
Terrorism legislation is quite clearly reserved. But the prosecution of
terrorist offences is devolved in its entirety in Scotland. The
investigation by the police is devolved. As Lord Advocate not only am I
the prosecutor, but I am in charge of directing the police in their
investigations in Scotland: they must comply with my lawful directions.
So mine is an inquisitorial role; it is quite distinct from that of the
Director of Public Prosecutions. Although the Crown Prosecution Service
now has the right to charge in England, that is a relatively new
development. In Scotland, it does not matter what charge the police
bring, because ultimately the charge that prevails is that applied by
the prosecutor, who can often depart entirely from the charge brought
by the police. So we have a different regime there
altogether.
So
far as the repatriation of powers is concerned, the prosecution in
terms of the Scotland Act 1998 remains the responsibility of the Lord
Advocate. Again, it is not something that the Scottish Parliament can
change: it cannot alter or adjust that. The Lord Advocate is duty bound
to act independently of any other person, including colleagues and
Ministers, as well as the UK Government or the police. So there is an
independent prosecution system. Therefore, the investigation of
terrorism and a terrorist incident at the coalface, where it arises,
involves the devolved entities. The local police, the Ministers who
deal with civil contingencies—for example, water and emergency
powers—and the Lord Advocate would be involved and an emergency
room would be set up. But we would be in direct communication with
Cobra, and we would be advising the Prime Minister, the Home Secretary
and other Ministers precisely what was going on at that level, with the
UK having an overall interest in
terrorism.
Q
255
Mr.
Llwyd:
Would you be happier if there was a clause in the
Bill saying plainly that, as the senior Law Officer in Scotland, your
consent would be required before a terrorist suspect would be
transferred out of the
jurisdiction?
Elish
Angiolini
:
I suspect that
I would only be happier if I was insecure about how matters would
progress. Experience to date is that we, as prosecutors—the
Attorney-General, with whom I have a very good relationship, and her
predecessor, Lord Goldsmith—would engage immediately in
discussions. There is no question of someone snatching a body from
Scotland simply because the English wanted that. Likewise, I assure you
that I would not snatch an English terrorist who happened to be found
in Glasgow, because it works two ways. I suspect that there has been
concern that somehow I would be alienated or that my independence would
be eroded—[Interruption.] Yes, for that matter, it might
be a Welsh
terrorist.
Q
256
Mr.
Llwyd:
I was not for one moment suggesting that anybody
was going to snatch anyone from England,
Wales, Scotland or anywhere else. However, there was a bit of a problem
last year with the Lockerbie case, was there
not?
Elish
Angiolini
:
Not last
year.
Elish
Angiolini
:
Lockerbie is
quite an elderly
case.
Q
258
Mr.
Llwyd:
Was there not a situation in which the Scottish
Parliament felt that it should have been consulted before a decision
was taken not to issue a second
prosecution?
Elish
Angiolini
:
No, there was
some utterly unrelated controversy over the transfer of prisoners, but
that does not relate to investigations or
prosecutions.
Elish
Angiolini
:
However,
concern has been expressed that the clause should contain an express
provision of consent, which might also raise the spectre and prospect
of judicial reviews at the point when the prosecutor, south or north of
the border, is about to transfer a prisoner. Investigations at a
crucial stage could, therefore, be snarled up in civil proceedings. A
very clean provision on the basis of a clear understanding that we
would not act without the consent of the other and that we would both
act in the public interest as prosecutors should provide a reassurance
sufficient for both
Parliaments.
Q
259
Mr.
Wallace:
I have a follow-up question. You mentioned the
devolution of the investigation and police inquiry, but in a recent
incident—I cannot reveal it because it is sub judice—the
Met specialist investigator went up to be part of, or to lead, a case.
Does this Bill allow for that to
continue?
Elish
Angiolini
:
Yes. Terrorism
expertise is very much with the Metropolitan police, who have
tremendous expertise and experience in dealing with such matters.
Unfortunately, we also have that expertise in Scotland, because of
Lockerbie, which remains the worst state-sponsored terrorist case in
the United Kingdom. We have also experienced Irish terrorism and more
recent cases of terrorism and acts preparatory to terrorism, which have
been prosecuted. Although we are a small country, it is not as though
we have no experience of it. However, undoubtedly, the expertise and
experience is with the Metropolitan police. The co-ordinator,
therefore, is extremely welcome when he comes to Scotland, but when he
does come the constitutional position changes, because thereafter he is
assisting the chief constable and so subject to the directions of the
Lord Advocate, as are all chief constables in Scotland. That is about
knowing each other’s jurisdiction intimately. I think that we
require protocols to support the
legislation—
Elish
Angiolini
:
I think that
there should be protocols to ensure that there is no ambiguity. I also
think that we require training so that those who come north of the
border do not simply see it as a very foreign alien jurisdiction. We
need to be familiar. We do that through joint table-top exercises,
which are very
useful.
Further
consideration adjourned.—[Mr.
Alan
Campbell.]
Adjourned
accordingly at two minutes to Seven o’clock til
l
Thursday
24 April
at Nine
o’clock.
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