 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
WitnessesShami
Chakrabarti, Director, Liberty
Gareth
Crossman, Policy Director, Liberty
Public Bill CommitteeThursday 24 April 2008(Morning)[John Bercow in the Chair]Counter-Terrorism BillFurther written evidence to be reported to the HouseCTB 04
Coroners’ Society of England and
Wales
9
am
The Committee
deliberated in
private.
9.6
am
On
resuming
—
The
Chairman:
Good morning, and welcome to our first witnesses
of the day and to all other interested observers. For the record, may I
ask our witnesses to formally introduce
themselves?
Shami
Chakrabarti:
Yes, I am Shami Chakrabarti, director of
Liberty, and this is my colleague—whom you know—Gareth
Crossman, policy director at
Liberty.
The
Chairman:
Thank you. My name is John Bercow. I am MP for
Buckingham and co-Chairman of this Committee. In agreement with members
of the Committee, we have decided to focus first, for up to half an
hour, on matters other than pre-charge detention without trial.
Thereafter, or as soon as questions on other matters have been
exhausted, we will move on to the important matter of pre-charge
detention without trial. Thank you for coming. We will go straight into
questions.
Q
261261
Mr.
Dominic Grieve (Beaconsfield) (Con):
Good morning. What is Liberty’s view on gathering and sharing
information? It is clear in the various clauses that one of the
purposes, at least, is to bring the security services within a
statutory framework. However, the powers are extensive, and include not
only the prevention of crime but the use of information for national
security purposes, or for the purposes of the security services
themselves. First, does Liberty have a view on that in principle?
Secondly, if there is anything that causes you anxiety, should
something be done about
it?
Gareth
Crossman:
The point of principle is that we would
much rather see any information-sharing system on a statutory rather
than a non-statutory basis, for various reasons including human rights
compliance. To be prescribed by law is an important step in something
that has the potential to be extremely invasive. We have no issue of
principle with the idea of information-sharing powers—including
the DNA-sharing powers that are contained in the Bill—being
placed on a statutory basis.
However, in a
way you have identified where our concerns might lie, particularly in
relation to DNA. The current national DNA database, which is operated
by the police, serves a single purpose, and that single purpose is
crime detection. By allowing the security services to have a broader
remit for national security purposes, the concept becomes rather more
nebulous. It includes crime detection, but is not limited to that. One
of our concerns is that when mass data retention has taken
place—at present the national DNA database has 4.5 million
samples—it is always possible that the uses of that database
will be extended beyond crime detection and prevention. This is the
first statutory instance where there will be the power for other
purposes to be in place. My suggestion would be to limit the security
services to the same role as that of the police in relation to
sample-sharing powers.
Q
262
Mr.
Grieve:
Thank you. Perhaps this cannot be answered now,
and we may have to tease it out at a later stage, but I wondered what
instances might exist where national security issues were not related
to the prevention of crime, if one wished to make use of
samples.
Gareth
Crossman:
Not being privy to all the methods employed
by the national security services, I am possibly not the best person to
answer that. I am aware that there is a statutory difference between
crime detection and prevention, and issues of national
security.
Q
263
Mr.
David Heath (Somerton and Frome) (LD): May I follow up
what is implied by that? It is something that has concerned me for some
time. Over recent years, various Acts of Parliament have conferred
considerable exceptional powers on the police and security services to
deal with an exceptional circumstance: terrorism. In your
organisation’s experience, have those powers been used within
the limits that Parliament expected?
Gareth
Crossman:
No. That is a significant problem. There
has been a tendency, not only in counter-terrorism, but across the
board in legislating over the last few years, to set the parameters of
the legislation quite wide, and then make a promise that it will not be
used in inappropriate ways. I will give a couple of examples: section
44 of the Terrorism Act 2000, which the legislation states was passed
specifically for anti-terrorism purposes, has been used as a general
stop-and-search tool. That is not the opinion only of Liberty; it is
the opinion expressed by the Metropolitan Police Authority. A week or
so ago, we heard that Poole council in Dorset had been using powers
under the Regulation of Investigatory Powers Act 2000—those are
very invasive powers—specifically to find out whether people
were operating within the catchment area of a local school. I suggest
that that purpose was not identified by Parliament at the
time.
The
Chairman:
Gareth, forgive me. We are trying to sort the
system out, but in my view the acoustics are not brilliant this
morning. Could you speak up a
little?
Gareth
Crossman:
I will endeavour to speak more
vocally.
Q
264
Patrick
Mercer (Newark) (Con): What are Liberty’s views, if
any, on plea bargaining or plea mitigation?
Gareth
Crossman:
As somebody who used to practise in the
criminal courts, I would say that on an informal basis it has been
happening for a very long time. I have no particular issue with that
being placed on a formal basis.
Shami
Chakrabarti:
The concerns are, on the one hand, the
potential danger of oppression to the accused
person—
Shami
Chakrabarti:
Yes. The idea of a bargain in the
English language is that behind that bargain, agreement or contract,
sits some kind of equity between the parties. As we know, from examples
coming from the United States, on occasion that bargain is far from
equitable. There is a suggestion that people may have bargained away
their liberty because they were advised that they had no hope against a
more serious charge, and they may perhaps have admitted things that
they would not freely have admitted. Just as important, if not more
important, in this context is justice to victims and their families.
Again, there is a suggestion that if deals are done and bargains are
struck with defendants, the victims are left out of the process. It is
a difficult issue. There is no doubt that the public can, on occasion,
be protected by deals being struck on a plea-bargaining basis with
someone who has done bad things but who will be of assistance to the
authorities. In that equation, one must also remember that individual
victims and their families need justice to ensure that they do not feel
that their rights and freedoms have been traded away for a greater
good.
Shami
Chakrabarti:
Perhaps I can set out the big picture
and Mr. Crossman, as always, will add flesh to the
bones.
There is an
important distinction to be made. There is questioning post-charge for
the offence with which you have already been charged, which is
essentially dealt with in the Bill as it is presented. For example, I
have charged you with possessing material for a terrorist purpose.
Presumably, I have charged you on evidence. Subsequent to that charge,
I want to question you again. That has often caused great anxiety to
the judiciary and to lawyers. Their legitimate fear—I do not
think that it is an objection in principle, but one of concern about
how the practice would work—is that you might charge too
lightly, and then in the long period between charge and trial, subject
somebody to repeated, oppressive questioning on the same matter until
they crack. No doubt one would have to work very hard to ensure that
appropriate safeguards are in place to stop that from happening. Also,
we hope, and believe, that people are charged on proper evidence in the
first place, so it is not often necessary to do extensive post-charge
questioning unless new material has genuinely come to light. It is in
the interests of justice that new material be put to an accused
person.
Then
there is a different animal, which is something that is not really
pursued and that we would like to see pursued. As the Metropolitan
Police Commissioner
outlined the other day, terrorism is special. It is special in the
complexity of some plots, in the gravity of potential consequences and,
in the words that he used, in the seriousness of the ambition. You are
dealing with something that has a disproportionate danger to the
public. In recent years, you and your colleagues have placed on to the
statute book a number of what we would call precursor offences, or
low-level terrorist offences. Let us make no mistake, those are serious
matters. Offences include being a member of a proscribed organisation,
funding and inciting terrorism, possessing material for a terrorist
purpose and so on. They are serious custodial offences in their own
right, but they are offences that are sometimes easier to prove than
the international complex conspiracy to
murder.
In
principle, there is no reason why, if someone is chargeable and
convictable for a precursor offence—do not get me wrong, some of
those offences in their day were quite controversial, but they are
proper offences that this House has passed—the authorities
should not get on and charge them at the earliest possible opportunity.
Even if the same set of facts and broadly the same allegation is later
capable of being charged as a conspiracy to murder as new evidence
emerges, there should be the possibility of continuing with the
investigation and potentially the subsequent questioning with judicial
safeguards. That would allow the police and prosecutors to charge
earlier for the original, lower level but serious offence and have the
opportunity to charge later on, with quite a long period between
charge, which we say should be done as quickly possible and within
hours or days, and trial. Realistically, in a complex terror case, that
period could be up to a year.
In England and Wales, the moment
of charge is really special and it should come as soon as possible, as
that is the first moment when somebody knows why they are detained and
they have the opportunity to start preparing their defence. The
post-charge questioning that we are advocating for the more grave,
conventional conspiracy to murder could actually be of great
assistance. When it was put to the commissioner, facetiously, that some
people think the police are not charging as soon as they should, that
they are faffing about, no one had suggested that the police were
faffing about. [Interruption.] I can only say that I certainly
do not think so and I do not think that there is any lack of good faith
on the part of the police, but the current arrangements create a
genuine and understandable incentive for the police not to charge with
a lower level offence until they are sure that they cannot charge
conspiracy to murder.
The
Chairman:
That is an extremely helpful answer and I think
the Committee appreciates it very much. I recognise that you are
setting the scene, but I gently make the point that as competition for
questions intensifies we shall need to have tight
answers.
Q
266
Tom
Brake (Carshalton and Wallington) (LD): Shami, you
mentioned the need for judicial safeguards if questioning on more
serious charges was going to take place. Can you expand on what those
should
be?
Gareth
Crossman:
Yes. I think it would be quite easy to set
out the grounds on which a court would need to be satisfied that it was
appropriate to allow further questioning: that the original charges
were appropriate;
that it was in the interest of justice to allow further questioning; and
that any further questioning would not be oppressive. Those are
relatively straightforward determinations for a court to
make.
Shami
Chakrabarti:
One might also make sure that the
current sorts of safeguards that apply under PACE codes, such as access
to a solicitor, breaks and all of the things that have become so
important in a police station, would apply. Remember, this person is
now not in the police station any more, but in prison custody. One of
the historical reasons why my profession and Gareth’s has been
concerned about the idea of post-charge questioning is that in a
pre-PACE world, people would be subject to lengthy, oppressive
questioning. We must ensure that the same physical, practical
safeguards such as access to lawyers, tape recording, video taping,
appropriate breaks all apply even though a person is no longer in the
police station, but on remand in custody for offence No.1, a lower
level offence.
Secondly, we would argue that
prosecutors apply to a judge for permission and that the judge grants
permission on the basis that charge No. 1 was not a trumped-up charge,
as has sometimes been suggested; it was a proper charge in the first
place, it justified custody in its own right—it was not stealing
a bicycle, for example, but possessing material for a terrorist
purpose—and that as Gareth said it is in the interests of
justice to put this further material to the
accused.
Q
268
Ms
Dari Taylor (Stockton, South) (Lab): I would be interested
in hearing your views on the use of intercept as evidence.
Shami
Chakrabarti:
People are less surprised by our answer
now than they were a little while ago. Quite rightly, people see
Liberty as an organisation with a great concern for people’s
personal privacy, and they are right to say that we care about personal
privacy, but privacy is not an absolute. It is an important value in
our society, but it is always subject to some balanced interference,
which must be necessary, proportionate and in accordance with the law.
Gareth is an expert on this subject. It is often necessary and
certainly proportionate, and can easily be in accordance with the law.
We would like to see judges more involved in authorising interception
rather than senior police officers or politicians, but it can well be
necessary, proportionate and lawful to intercept people’s
telephone calls, particularly when it is thought that they may be
involved in terrorism. Once you have made that interference for that
laudable objective, why on earth would you not find a way to use the
material in evidence in a courtroom, as they do in the United States,
and all over Europe and the democratic world? I understand that the
security services have historical and operational concerns that must be
met. However, our basic proposition is that with wit, wisdom and a
common enterprise to do this, people could work together to achieve
that outcome. The Privy Council report commissioned by the Prime
Minister is a helpful step in that
direction.
Finally, as
someone who used to work on the other side of the desk, so to speak,
and with the security services, part of their historical objection
comes from a
time when the security services’ job in this country was not
really aimed at bringing people to court. In the days of the cold war,
it was not really about Crown court trials, but about espionage between
states. It was a cold war between states. It was not about individuals
who owe loyalty to no particular state, and who, ultimately, must be
brought to justice in a criminal court, with which intercept evidence
could be incredibly
helpful.
Why
is it permissible to bug my bedroom with a listening device and use
that material in court, yet if I happen to be having the same
conversation on my telephone—it could be to my husband; we could
be plotting wicked things together—rather than discussing it in
the bedroom, the material could never be used, however valuable it
would be in convicting us? There is an absolute legal prohibition on
it. We must all do better, both on our side of the desk and the
security community, to work together to crack
this.
Q
269
Ms
Taylor:
That was a very interesting response, thank you
very much. A supplementary point to that is that the security agencies
have serious concerns about the matter. The concerns are not so much
about the intention to use the evidence to convict people, but that, by
using it, gaps in their knowledge would be shown. It would show where
there are weaknesses, as inevitably there are. Do you not recognise
that that could be a serious problem for the security
agencies?
Shami
Chakrabarti:
I do understand that they have concerns
about things that we should not even be talking about in open session,
and I have a hint of what some of those are, as you do. However, I
still believe that it is within our wit and wisdom to design a system
that balances the need to protect operational methods with the great
value that some of this material could provide in
court.
Q
270
Ms
Taylor:
The fact is that, in our communities today,
Muslims as well as non-Muslims are part of the security agencies. We
could be showing not only gaps, but a trace to those people. Is that
not a serious
concern?
Shami
Chakrabarti:
I do not think that that is the serious
concern because those human intelligence sources whom you rightly
describe—it is important that you have highlighted that
contribution in this sitting—could arise in the context of
bugging, as I have just described. That is not protected in the current
system. We have mechanisms of public interest immunity that could be
adapted. The problem, of putting lives at risk because people are
involved or are informants or agents, arises well outside the concept
of intercept, and we do find our way, and our judges are sensible, and
our courts have been doing that for many
years.
Is it not the
case that the technology is becoming so complex—it is six
words—that tracing will become a near
impossibility?
Shami
Chakrabarti:
I think that I am subject to the same
problem with the Chair as Ms Taylor. Do you want to deal with
that?
Gareth
Crossman:
I will make a general point in reply. All
of the concerns that have been raised were identified by the Chilcot
report. Each issue was one of either practice or logistics. It said
that every single one of them was surmountable, but we must start
looking at them now. Do not just say, “Oh, here are our
problems. They make it a bit difficult.” Chilcot was quite clear
that they could be dealt with, but that it may take a little while so
we should start dealing with them
now.
Q
272
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I think that
Lord Carlile has been mooting this idea for two or three years. It is
not something that has come upon us all of a sudden. We are still
talking about intercept. No doubt you have observed the evidence of Sir
Ian Blair earlier this week. He was quite dismissive of intercept
evidence, saying that there were numerous legislative and
administrative problems and all manner of other problems with it.
Roughly, what he said was it is not going to happen in the next few
years. What do you think is the real objection? If the United States is
able to do it without compromising the sources or giving secrets away
about their technology, am I being simplistic in saying that we should
be looking at it
immediately?
Shami
Chakrabarti:
I think that you are right to say that
if it can be done in the United States and all over the free world, we
can do it. That is not to say that work does not need to be done to
meet some of the concerns of the security services. By the way, in my
experience the agencies have not always spoken with one voice on this
issue. Unsurprisingly, over the years it has often been the Security
Service, which was a bit closer to the criminal justice paradigm, that
has pushed for it. I may be out of date on
that.
As for Sir Ian, I
did not pick up on what you said. If he was dismissive of intercepts,
that is disappointing. It is also a change of mind on his part. I
remember vividly being telephoned by a journalist one Saturday morning
a couple of years ago because Sir Ian had said that we should have
intercept evidence in courts. They had called me, of course, because
they expected me to be outraged. Imagine their surprise when I said
that Liberty has been calling for that for some time. In my experience,
Sir Ian appreciated that it could be useful. It is very useful in the
United States, not only in terror trials, but in organised crime
trials. If he has changed his mind, I am disappointed about
that.
Q
273
Mr.
Llwyd:
To be absolutely fair to Sir Ian Blair, he said
that it would be very useful, but it is not likely to happen because of
problems. That is slightly different from what I said, to be fair to
him.
Shami
Chakrabarti:
Fine.
Q
274
David
T.C. Davies (Monmouth) (Con): Can Liberty comment on the
suggestion that there has been a tendency by some to hype things up in
the press and to use the media rather inappropriately prior to bringing
in controversial legislation? An example is the apparent thwarting of a
plot to hijack planes and fly them into Canary Wharf, which was
apparently leaked by the Security Service just before the
Queen’s Speech in 2004 and about which we did not hear anything
more. There is also the timing of this legislation. Is that a concern
of
yours?
Shami
Chakrabarti:
The first thing to say is that we do not
dispute the threat. We are not in a position to argue about the level
of the threat or about secret intelligence to which we are not privy. I
want to be clear to you, Mr. Bercow, and to the rest of the
Committee that we at Liberty never predicate any of our arguments on
the basis of whether the threat is at this or that level. We do not
question bad faith on the part of others. However, we have expressed
concerns about the practice of off-the-record briefings about
intelligence. There are moments when the public need to know what is
going on, partly to inform debate and partly because there is a public
information duty. When you see a police raid in your area, you cannot
keep that news quiet. People will be alarmed. It is important and right
for a senior police officer or someone else speak
up.
The
Chairman:
Shami, make your criticism, but do not allow
yourself to be diverted from the contents of the Bill by the question,
however well
intentioned.
Shami
Chakrabarti:
We have concerns about off-the-record
briefings, yes, and so do the public, I
think.
Q
275
Mr.
Ben Wallace (Lancaster and Wyre) (Con): Just to follow up
on intercepts, is it not rather odd that the Bill allows intercept
evidence in asset freezing? With all the concerns about technology
leaks and gaps, surely if that principle is strong and holds true, why
is it being ignored in the
Bill?
Gareth
Crossman:
It is a slightly unfortunate situation. I
think that there is a general acceptance of the use to which intercept
evidence can be put, but because there is that bar in the Regulation of
Investigatory Powers Act 2000 we do not just face things head on. You
acknowledge the use of the intercept material by selecting small areas
in which you think it could be put into operational use, such as asset
freezing proceedings, rather than taking the bull by the horns and
saying: we know that intercept material can be of use in a range of
proceedings, be it asset freezing or others, so why not just deal with
the issue as a
whole?
Shami
Chakrabarti:
But to be fair, this is probably coming
from a feeling on the part of those who advise the Government that it
cannot be made to work in the classic adversarial criminal justice
system. Therefore, you can do it with asset freezing, control orders
and those different quasi-judicial systems that are not Rolls-Royce
criminal due process. We disagree. We know that it is hard, but we say
that people like us would have to sit down with people in the security
and intelligence community and genuinely work together to make sure
that it can be done, that there can be proper Rolls-Royce criminal due
process for the accused, while technology and sources can still be
protected.
Q
276
Mr.
Grieve:
You may have seen what Sir Ian Blair said to the
Committee on Tuesday. I think there was an acknowledgement that there
had been no necessity for detention beyond 28 days—there seems
to be some dispute as to exactly what periods are in fact needed, but
we will leave that to one side—but he felt it was essential
because it was highly likely that the need was going to arise in the
not-too-distant future. Does that in any way affect your judgment on
the issue? You have taken a clear line that in your view more
than 28 days is not
required.
Shami
Chakrabarti:
No, it does not affect our view, partly
because we have heard Sir Ian’s views on many occasions. He has
been very straight about the fact that there is no current evidence, no
current case and no current necessity, but he talks about a pragmatic
assumption—I think that was the phrase—that at some
point, because of the trends that he sees and the complexity and
international nature of plots, with lots of computer discs and so on,
which are all real points, he may run out of time. He does not want to
run out of time, which is understandable, given his responsibilities.
So, we say, rather than keep ratcheting up the number of days for
pre-charge detention, let us take on board the problems that Sir Ian
and others identify and find more proportionate alternatives, better
alternative policies, rather than, every time there is a difficult
case, every time there we are worried about the international and
complex nature of plots, adding another 10 or 14
days, until we end up with an outcome in terms of due
process in this country that is alien to our traditions, is an
international embarrassment, is counter-productive to fighting
terrorism and undermines the Government’s own laudable prevent
strategy. Let us deal with the problems that Sir Ian presents in ways
other than constant extension of pre-charge detention
periods.
Q
277
Mr.
Adrian Bailey (West Bromwich, West) (Lab/Co-op): In a
document produced by Liberty in February 2008, you
said:
“The
proposal would certainly lead to innocent people being detained for 42
days and then released without
charge.”
Given that any
extension from 28 to 42 days would need the DPP’s support and
that there are seven-day applications to a High Court judge, do you not
accept that that is a reasonable safeguard to ensure that human
liberties are not compromised by this?
Shami
Chakrabarti:
No, Mr. Bailey, I do not. The
reason why we completely stand by the comment that, inevitably during
any period of pre-charge detention, whether it is three, 30 or 100
days, some innocents will be detained, is because that is how due
process works in a free society that is trying to deal with
criminality. The way our system works is that you arrest on reasonable
suspicion. You charge when you have evidence and a belief that you will
be able to convict, and you convict when you are certain beyond all
reasonable doubt.
So, inevitably
you arrest more people than you charge and you charge more people than
you convict, although the DPP has an astonishingly good record in not
over-charging, notwithstanding his changed threshold, because he has a
92 per cent. conviction rate, so good for him.
But you are bound to arrest more people than you charge. You have to.
That is not wickedness or error on the part of the police. If I was a
policeman I would arrest more people than I charged, because you arrest
on suspicion. You have to, because you are trying to prevent terrorist
atrocities. That is how it works in a free
society.
As for judicial authorisation at
seven-day intervals, although that is a laudable attempt to try to
ensure that this is not used gratuitously and is not used all the time,
there is very little that a judge can really do to referee a process
that has not actually begun. Why we make such a fuss about this, by the
way, and why it is charge and not trial that we are talking
about—pre-charge detention, not pre-trial detention, as
journalists sometimes report—is that in our adversarial system
the moment of charge is the moment when you know what you are accused
of and you can start answering back. That is when the ball goes into
play and that is when the judge, as referee, can start doing his
job.
Prior to that,
well you can make me the judge, Mr. Bailey. I am hardly
going to be a hanging judge am I? What am I going to referee? There is
no accusation. There is no fight. Frankly, even Shami is going to keep
authorising the detention because I am terrified of what will happen if
I do not. The police will be saying, “We suspect this person of
terrible things and we need more time to come up with more
evidence.” That is the test in the Bill. There have to be
reasonable grounds to believe that more time is needed to
investigate this person.
Q
278
Mr.
Bailey:
You said that it is inevitable that more people
are arrested than are charged. I accept that. What you are saying, in
fact, is that the enhanced thresholds of the likelihood of being
charged are not met in this process. Would you not agree that, because
there are enhanced thresholds, presided over by people, certainly on
the basis of the evidence that we had from the DPP, who are not even
convinced that they need them, to say that this would, in your words,
certainly lead to people being detained without trial, is a
disproportionate evaluation of the
process?
Shami
Chakrabarti:
I may get this wrong as I may not have
understood the question, but I shall do my best. Please stop me and
correct me if I have misunderstood. I think you are now alluding to the
DPP’s new threshold test for charging and asking me whether I am
not afraid that that could lead to injustice. My answer to that is that
charge is the moment where you put up or shut up. If the DPP says they
are now charging a bit more readily than previously, with anticipated
evidence to follow rather than having all the evidence in their hands,
does that cause me concern? Well, he has a 92 per cent. conviction
rate.
Q
279
Mr.
Bailey:
The point that I am making is that people will be
arrested and some of them will be released, but given the hoops that
frankly have to be jumped through to go over 28 days, the likelihood of
that happening is small, particularly because it is operated by people
who are sceptical about even the application of the rise. You are
saying that it would certainly lead to innocent people being
detained.
Shami
Chakrabarti:
I am saying
that.
Shami
Chakrabarti:
No, I do not accept that and I
completely stand by that statement. In a democracy that cares about
protecting people from crime and terrorism, you inevitably arrest more
people than you charge, and the hoops—as you described them,
Mr. Bailey—are not high enough. They cannot be. The
hoop that we need is charge. That is the hoop that we are all looking
for, because that is the moment when someone knows what they are
accused of and can start preparing their defence and when the judge can
start doing his job of being an adjudicator of that fair
process.
Gareth
Crossman:
The current position is that for detention
exceeding 14 days and going up to 28 days, the same judicial
safeguards—that is the word you used—are applied as would
be applied for extension from 28 to 42 days, but arrests have been made
where judicial involvement has taken place and where people have been
released without charge very close to the point at 28 days when they
have to be. We are not basing that comment only on supposition, but on
what has happened under the current
regime.
Q
281
Mr.
Llwyd:
The Government, from the Prime Minister down, have
alleged that Liberty is in favour of using the Civil Contingencies Act
2004 for this purpose. Indeed, we heard the Minister refer to that
yesterday. Will you explain your views on the 2004 Act in relation to
the subject now under
discussion?
Shami
Chakrabarti:
Yes. We have said at length that 28 days
is adequate. People are worried that there will come a time when it
will not be adequate, but for the vast majority of those theoretical
scenarios, we say that it is time to put all of the alternatives in
place, such as post-charge questioning, intercepts and so on, and some
of those alternatives are already in place.
However, there
is another scenario that was painted for us last summer before the new
Government came in, and that was subsequently described by
Mr. McNulty in a national newspaper as being something akin
to three 9/11s on one day. The argument is that there comes a time when
essentially there is an emergency in the land and, notwithstanding all
of those other brilliant ideas for operational policing that in our
view should apply day in, day out and year in, year out, the atrocity
would be such that the police and security services are for a time
literally overwhelmed.
Mr. McNulty used the
example of there being three 9/11s on one day, which is a pretty
catastrophic scenario. That scenario was put to us at Liberty last
summer, and we were asked what we had to say about it and how the
current law of the land would deal with such a scenario. All that we
did was point out that Parliament had already looked at emergency
powers legislation in the very recent past and had come up with
something called the Civil Contingencies Act 2004. As you can imagine,
we at Liberty talk about these things with a slightly heavy heart and a
slight chill, but we none the less engage in these debates. My
colleague Gareth worked very hard with all of you to try to ensure that
that chilling piece of emergency powers legislation had at least some
safeguards. Even in a nightmare scenario such as three 9/11s in one
day, in our democracy there must be some safeguards.
That Act has three safeguards.
First and foremost, there has to be an emergency in the land. That is
not provided for in the current Bill, which will just relate to an
individual case in which more time is sought for investigative
purposes. Secondly, Parliament would have to vote on that issue and on
whether the regulations were necessary to meet an emergency. Parliament
can deal with that, because it would not be interfering in an
individual case, but discussing and debating the state of the
emergency. Finally, because what are made under the 2004 Act are
regulations, they are subject to judicial review. That is not our law;
that is the Government’s Civil Contingencies Act of
2004.
Chilling though
it may be, and perhaps should be, as all emergency powers Acts feel in
a democracy, at least it has those three safeguards. The first and most
important of those safeguards—that the powers are only for
genuine emergencies—is completely lacking from what is being
painted as a reserve power in the Bill. In substance and in law, it is
triggerable in individual cases whenever a chief constable, the DPP and
the Home Secretary agree that more time could reasonably be necessary
to investigate an individual case. In our view, those positions are
chalk and
cheese.
Q
282
Mr.
Llwyd:
You will be aware of the ninth report of the Joint
Committee on Human Rights, which says that the proposed extension would
amount to a breach of article 5. Do you have a view on
that?
Shami
Chakrabarti:
Yes, we wholeheartedly
agree.
Q
283
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
Let us go back to the Civil
Contingencies Act for a moment. It is not the case, is it, that there
is clear legal opinion that it could be used to extend pre-charge
detention in terms of whether pre-charge detention amounts to criminal
proceedings? You will know that criminal proceedings cannot be altered
by the CCA; do you accept at least that there is that debate, and that
the matter is not clear
cut?
Shami
Chakrabarti:
We have our view, with which
Mr. Pannick and many others agree, but you are right to say
that there is debate, Mr. McNulty. We are not wedded to the
CCA; it was your legislation, not ours. We have told you what the
crucial elements in the CCA are, the most important of which is that it
is used in an emergency and not an individual case. You asked whether
pre-charge detention amounts to criminal proceedings for the purposes
of the CCA. We think that criminal proceedings begin at the moment of
charge. If there is any doubt about that, there is no problem with
having a separate piece of legislation that is more specific than the
CCA and that deals only with emergency detention in a genuine
emergency. That would put the matter beyond doubt. I do not think that
anybody would have a problem with that. The substance is crucial. If
you are passing emergency powers legislation in a democracy, it should
be triggerable only in an emergency.
Q
284
Mr.
McNulty:
In your brief to the Committee, you describe
Mr. Pannick’s view as unequivocal. You say that
Liberty has obtained an unequivocal legal opinion from Pannick which
confirms
this.
Shami
Chakrabarti:
Yes.
Q
285
Mr.
McNulty:
But his judgment says simply that “the
better view” is that criminal proceedings might well come under
the CCA. That is hardly unequivocal is
it?
Shami
Chakrabarti:
Forgive me, Minister, the important
point for me to make here is that it is not my legislation—I am
not wedded to
it—
Q
286
Mr.
McNulty:
I take that point, but the characterisation of
Pannick’s advice as unequivocal is not really accurate is it, if
it is just “the better view” that criminal proceedings
are covered by the CCA? I am talking not about the wider point about
the legislation, but simply about the characterisation of his opinion,
which is hardly unequivocal when you read
it.
Shami
Chakrabarti:
I believe it to be unequivocal—I
have spoken to Mr. Pannick—and my view is
unequivocal. But this is not about my view, it is about whether this
House can come to what I hope will be a cross-party, cross-community
consensus on anti-terror laws that will end an arms race that has been
so damaging to community cohesion and national unity in the face of the
terrorist
threat.
Q
287
Mr.
McNulty:
What part of the move from 14 days to
28 do you regard as being so damaging? You have characterised it as an
arms race, so this is clearly the next phase of the arms race, and your
characterisation goes to prior extensions. Are you seriously saying
that we have gained nothing of substance by going from 14 to 28 days,
as was this House’s
will?
Shami
Chakrabarti:
When you are the director of Liberty,
you expect sometimes to have to take an unpopular position as part of
your job. But, occasionally, you think that you would be a more
effective campaigner if you tried to understand where the public are
coming from. We do not have your burden and responsibility of facing
constituents—constituents who might be blown up by a terrorist
atrocity or who might be detained for more than a month without ever
knowing the charges against them. To try better to understand your
predicament, Minister, and that of your constituents, we did a little
polling recently and I was absolutely gobsmacked to find that more than
half of the people polled believed that the Government’s
principal motive in the policy was to look tough on
terror.
Q
288
Mr.
McNulty:
With respect, I am asking about your negative
characterisation of what has prevailed since we have gone from 14 to 28
days. I do not want a potted history of Liberty’s angst over its
views. My question is specific. You made a very negative
characterisation of the shift from 14 to 28 days. You described it as
an arms race, with the clear implication that nothing of substance,
judicially or otherwise, has accrued from that shift, and that the
world was a much better place when the period was 14 days. Are you
seriously suggesting that it has not been shown that 28 days
is necessary? I do not want the potted history of Liberty; I just want
an answer on that point
please.
Shami
Chakrabarti:
I think that an arms race is a very
well-chosen categorisation. In an arms race there is plenty of
substance that is achieved by the escalation. The arms are considered
to be weapons for meeting a
threat. An arms race is a useful categorisation in that the arms race
potentially can go on for ever, and can potentially be
counter-productive and damaging to those on both sides of that race. In
political
debates—
Q
289
Mr.
McNulty:
Let us be clear. You say that 28 days
is not counter-productive. Is that right? You just said that 28 days
was
adequate.
Shami
Chakrabarti:
As you know, Minister, in addition to
public polling we have done some comparative legal research around the
globe. We were also surprised by that. That shows that 28 days is
already a very long time in a
democracy.
Shami
Chakrabarti:
Australia, which is the nearest
comparable perhaps, settled on 12 days after a big parliamentary
debate. But this House has passed 28 days. I simply say that
the public are becoming sceptical about the wisdom and efficacy of
tougher and tougher and tougher anti-terror laws. They are now becoming
sceptical about motives, which is particularly worrying for national
unity, community cohesion and the intelligence that is so vital to
meeting this threat. We need to look at proportionate alternatives
before we escalate
further.
Gareth
Crossman:
The Minister and the Government will of
course portray the positive aspects that they say arise from pre-charge
detention. What we will try to do, if we believe that a policy might be
counter-productive, is draw attention to where this might be
problematic. If we are saying, “What might the consequences of
extension to 28 days be?”, it is worth drawing attention to the
Home Office’s equality impact statement, which
says:
“There are
strong concerns expressed by representatives of the Muslim community
that they are being targeted as a religious
group”—
Gareth
Crossman:
Okay. The statement also
says:
“Muslim
groups say that pre charge detention may risk information being
forthcoming from members of the community in the
future.”
That will be
counter-productive. You are asking what the consequences of your
legislation might be—that is from your own equality impact
assessment.
Q
290
Mr.
McNulty:
Yes, at this point, and perhaps if we come back
to that we will get some
answers.
I want to
touch on the international comparisons. You made great
play—quite rightly—of how special the
notion of charge is in UK jurisdiction. However, whoever has done your
international research has used that charge equivalent in the most
erroneous fashion possible, producing research that bears no scrutiny
at all. If you look even at Justice’s summary of the Kercher
case in Italy, you do not see anywhere in their deliberations—in
paragraph 58 of the document that
they presented to us on Tuesday—the definition of charge as you
describe it in paragraph 9 of your
document:
“Before
charge a person is not formally accused of any criminal
offence.”
The
three defendants in the Kercher case have not been accused of or
charged with anything yet, but they have been in custody for six
months. Do you stand by your pretty little graph—however
misleading—of international
comparisons?
Shami
Chakrabarti:
I am glad that you find it pretty,
Minister.
Shami
Chakrabarti:
You are quite right that the more
difficult comparators are European civil law regimes and the easier
ones are common law regimes, such as the United States, Canada and New
Zealand. It is one day for Canada, two days for the USA and New Zealand
and seven days for Ireland. Those are the easy ones. The more difficult
comparators are the European countries. All I can say to you, Minister,
is that we are not French, Italian or continental lawyers so we
commissioned lawyers qualified in those jurisdictions to tell us what
they believed to be equivalent to the moment of charge in the English
and Welsh system. They came up with those figures, such as it being
four days for Italy. In the Kercher case, all I can say is that an
elision is made between charge and trial that cannot
stand.
Shami
Chakrabarti:
These European countries are all
signatories to the European convention on human rights. States have
fallen foul of the Strasbourg jurisdiction for detention periods of 10
and 15 days, so the idea that you can not charge someone for six months
and not fall foul of the European Court of Human Rights is, to me,
quite fanciful. I am not qualified in these jurisdictions. The research
has been published and the lawyers who gave us the advice are all named
and their credentials set out in the report. I can say no fairer than
that.
The
Chairman:
We now have under 25 minutes. Several colleagues
are seeking to catch my eye. As always, I want to get you all in, but a
certain self-denying ordinance is
required.
Q
291
Mr.
Wallace:
Do you not think it very spurious and somewhat
naive for the Government to try to connect days to risk solutions? For
example, “If we had 14 days, we would get most of the terror
plots. If we had 28, we would get nearly all of them.” They want
to go further and further. It shows a complete naivety about good
counter-terrorism practice, which is not just about days. You can never
rule out the risk. There would be incidents even if you had 120 days of
detention.
Shami
Chakrabarti:
You could present it as naivety. Sadly,
the public that we polled did not find it naive at all—far from
it. They thought that it was spin. I find it really worrying that
levels of public trust in these
debates are where they are. However, I agree with you that increasing
the number of days again and again is not effective. There are better
alternatives that are more proportionate, which would be less
counter-productive. The issue is about that balance between
counter-productivity and giving yourself more time. We want to find
ways to give the police more time without the counter-productivity of
the injustice that comes from longer and longer periods without
charge.
Q
292
Mr.
Wallace:
When people refute the claim that there is a
similarity to internment, would you say that they are missing the
point? Internment has the same naivety as the detention of a group of
people who are high-risk or have certain links based on intelligence
rather than evidence, as Sir Ian Blair himself said in evidence. Are we
in danger of going back into the same naivety
again?
Shami
Chakrabarti:
You and others on the Committee are
better qualified to talk about the troubles in Northern Ireland than I,
but I have been looking back at Hansard from 2005 and the last
great pre-charge detention debate. One of the most important
interventions was from Mr. Robinson, who is now the leader
of the Democratic Unionist party. In his intervention, he was not
saying that 90 days was the same as internment, but that there were
strong similarities between the two policies. The counter-productive
effect was one such similarity. All I can say is that I agree with
him.
Q
293
Andrew
Gwynne (Denton and Reddish) (Lab): To
Mr. Llwyd you said that you thought the
existing 28 days was adequate. However, both Sir Ian Blair
and ACPO said that they have convincing evidence of the mounting
complexity and global nature of investigations. They said that they
were already pushing on 28 days and felt that very soon they would need
to exceed that limit and have to come back to us. Do you accept that
that scenario is near, and do you not agree with Sir Ian that it would
be much better to introduce well-thought out legislation now rather
than as a knee-jerk
reaction?
Shami
Chakrabarti:
I certainly agree that legislation
should be well thought out. I note, like everyone, the apparent
disagreement between the DPP, Mr. Macdonald, who brings
charges and has to make them stick in court, and the investigator, Sir
Ian. I am neither a prosecutor nor a policeman, so I will not doubt
their categorisation of the problems that they face. All that I would
say is that Sir Ian, understandably, wants more time and is worried
about the complex nature of plots. We think that a lot more can be done
to assist him and his colleagues without further extending pre-charge
detention with all the counter-productive and unjust effects of that. I
do not need to doubt his fears about complexity and gravity of ambition
and consequence. I can just take all of that and try to work with him
and others to come up with more proportionate alternatives to the
profound and counter-productive and internationally embarrassing
injustice of 42 days.
Q
294
Andrew
Gwynne:
To come back to the basics, you were quite right
when you said that you do not have the burden and responsibilities of
representing constituents, and we do. Given that we have the duty to
frame legislation in a way that strikes a balance between rights and
responsibilities, do you accept that
the civil liberties of the public who travel on public transport are
equal to, and are worth protecting as much as, those in pre-charge
detention?
Shami
Chakrabarti:
The beauty of the post-world war 2 human
rights framework is that it is not just about freedom, but protection
as well. It imposes positive obligations on states to protect people as
well as not to interfere unduly with their freedom. I am a human rights
campaigner and not an elected politician. I do not have your burdens
and responsibilities. But as a human rights campaigner, I feel a
responsibility to protect life and liberty. Everything that Liberty is
proposing, the discussion that is going on and the consensus that has
been achieved between Members of this House—quite a
moving and inspiring parliamentary consensus has developed—and
people slightly to the left and right of politics, people of all the
great world religions and none, is compatible with human rights. It is
compatible both with protecting your constituents, who are at risk of
being blown up, and your constituents who risk being locked up for
42 days, losing their jobs and their livelihoods and being
branded terrorists. We can do better than we
are.
Q
295
Mr.
Heath:
You talk about consensus. One of the activities of
the past year or so has been an attempt to build a cross-party
consensus on the most appropriate tools for fighting terrorism
effectively. Components of that are in previous statutes and also in
this Bill. We are talking about the lower order, but serious offences
that can now be charged; the reduction in charging threshold; and
post-charge questioning with appropriate safeguards. Many of us would
have liked to see intercept as well. Could that package not achieve the
objective that we share, which is of early charge rather than detention
without
charge?
Shami
Chakrabarti:
Absolutely. That is what we believe. If
somebody says that there are still gaps, we will wholeheartedly look at
those gaps. We take this very seriously. We are not just sitting here
throwing stones at Government policy and at the concerns of the
Metropolitan police or others. We have been doing our very best to
engage with this, as I know parliamentarians on all sides of the House
have as well. We think that there is very strong package, some of which
was not present in 2005. That is important. Sometimes journalism will
deliberately present things in a certain way and all of sudden people
change their minds: Labour Members who voted for 90 days, but now do
not support 42 days. How can that possibly be justified? Well partly,
they have spoken in this House and justified their positions because
they have now seen the development of a range of alternatives that just
were not on offer back in the autumn of
2005.
Q
296
Mr.
Heath:
May I put to you, perhaps as a
devil’s advocate against both your case and mine, a point that
has been put to me? It is all very well having these arrangements that
enable an earlier charge to be pressed, post-preferment of that charge
and questioning on possibly more serious charges, but the holding
charge is alien to prosecutorial practice in this country and is
something that they rather preciously do not wish to engage
with.
Shami
Chakrabarti:
That is a very important and I
am glad that you put it. We should agonise about this. I am not talking
about a holding charge. I am talking about a proper and serious
terrorist offence, which in its own right justifies remand in custody
and a very serious custodial term on conviction. This is not stealing
the bicycle. This is a serious terrorist offence in its own right. But
these precursor terrorist offences were taken by this House because
they are so grave. So if you end up being convicted of possessing
material for a terrorist purpose and nothing else, you are a very
serious criminal who is going to prison for a long
time.
Q
297
Mr.
Heath:
May I give one other example which is critical to
the Government’s case? Very often they say that one of the
complexities is the difficulty of dealing with computer encryption and
finding the key. I am at a loss to understand why the legislation that
the House passed to require production of the key to encrypted material
has not been more often used. Sir Ian said on Tuesday that one of the
reasons was that because the tariff on it was so low, a court was
unlikely to hold someone on remand for refusing to produce the key to
suspected terrorist material. Have you any comments on
that?
Gareth
Crossman:
A more obvious reason why it has been so
infrequently used is that this legislation was passed in 2000 and has
remained inoperative. It has only very recently been brought into
force. If the law ain’t there, you can’t use it. Just to
supplement what Shami said, it is extremely unhelpful to talk of
holding charges. That is not the process you go through. You do not
charge somebody with an offence such as acts preparatory to terrorism,
with a view to bringing a charge at a later date. You charge him with
that offence because that is the appropriate charge to bring and it may
happen that there is further investigation at a future date. To
look at it from the end of what the final charge may be is the
inappropriate way of looking at it. That is why you get very unhelpful
language such as holding
charges.
The
Chairman:
Thank you. We have less than
12 minutes left. I do now need short questions and short
answers.
Q
298
Lord
Commissioner of Her Majesty's Treasury (Mr. Alan
Campbell):
You called earlier for more proportionate
measures rather than ratcheting up the days of pre-charge detention and
said, with a heavy heart, that you had considered the Civil
Contingencies Act. I served on the Bill in 2003-04 and I seem to recall
being told that it was precisely not about terrorism and being
reassured on that point because we would be bringing forward proposals
later. Liberty’s criticism of the Act is that it is
without an appropriate consideration of proportionality and that it
allows sweeping draconian powers. Is not the real attraction of those
who put forward the Civil Contingencies Act that that lack of
proportionality would make it easier to go to judicial review and to
stop any extension beyond 28 days and the introduction of 58
days under the Act?
Shami
Chakrabarti:
I must disagree. If
one looks at the definition of “emergency” in the Civil
Contingencies Act, terrorism is one of the grounds of emergency that is
expressly provided in that Act. I can only refer the Committee to the
definition of “emergency” in that Act. Terrorism is one
of the many potential triggers. I
am also delighted to say that, as a result of the work by many people
such as you, who tightened up that legislation between the first draft
and the final draft, proportionality is expressly built into the test
for making regulations under that Act. Do not get me wrong; I do not
want emergencies every day of the week. I am not Mr.
Rumsfeld, who wants a permanent state of emergency. This is chilling
stuff; emergency powers in democracies are chilling stuff. However,
necessity, proportionality and compatibility with human rights are all
now written into that Act.
Am I playing this game because I
know that, whenever Mr. McNulty’s three 9/11s
transpire—God forbid—and the authorities are flattened,
people such as myself will run off to court and the judges will quash
regulations? I am afraid, Sir, that that is just not my experience of
litigating in our courts. If you remember, even in the infamous or
famous—depending on which side of the argument you are
on—Belmarsh decision that the Law Lords passed a few years ago
on the question of whether there was an emergency, eight out of nine
Law
Lords—
Shami
Chakrabarti:
I am sorry,
Sir.
The
Chairman:
Sorry, Shami, but we are
running out of time. You have been extremely forthcoming witnesses and
I very much appreciate that, but we must have tight answers to tight
questions, otherwise people will not be able to pose their questions
and that would not be right. Please, Shami, give a brief
answer.
Shami
Chakrabarti:
The courts do not like
interfering with the Executive’s determination of whether there
is an emergency because, like me, they do not have access to secret
intelligence.
Q
299
Mr.
Grieve:
This question is turning away to another subject
that I do not think we have touched on, which is coroners’
inquests. There is a proposal in the Bill that is designed to remove
the need to have a jury in coroners’ inquests. The apparent
justification is that that is a necessity because intelligence material
or secret material might have to be placed before a coroner in such
circumstances. What is your opinion of that proposal and, in
particular, do you have a view about the difficulty of getting vetted
juries, which one can see from past experience in criminal trials of a
national security nature?
Gareth
Crossman:
My feeling is that these are excessive
measures. Liberty’s view is that there is, as in many other
parts of the legal system, a huge issue of public trust and confidence
in the inquest system. Allowing direct Executive input into the inquest
system, such as allowing a Government Minister directly to replace a
coroner or allowing a Government Minister to decide that juries shall
not be present at inquests, will have a massive impact upon public
confidence. I do not deny for a second that there may be national
security issues and other issues relating to the evidence that can be
heard, but the current system allows for public interest immunity, for
example, to allow for certain material not to go before the court or
for it to be dealt with in particular ways.
I was slightly
surprised that this very extreme measure was introduced so suddenly.
Often, when the Government are planning something, there will be quite
a long lead-up to it, but this was a case of the Government saying
suddenly, “We are going to take out juries and coroners”,
so it came as a bit of a surprise. As yet, there does not really seem
to be an
answer.
I
am aware of the time, but I would like to make one other point. There
is extensive domestic and European case law on human rights
compatibility relating to the inquest system, which includes
involvement of the family and transparency, and that is very clearly
set out. I have very strong concerns about whether these new measures
will be compliant with those
requirements.
Q
300
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
Do you believe that the
proposal to go beyond 28 days will be compatible with the
ECHR?
Shami
Chakrabarti:
No, we do
not.
Q
301
Mr.
Coaker:
You heard the evidence on Tuesday from the
Director of Public Prosecutions, who said that, whatever his views
about that proposal, he thought that it would be compatible with the
ECHR. You disagree with the DPP on this, do
you?
Shami
Chakrabarti:
I listened to the DPP and I heard that.
I do not know what the basis of that view is. I have not seen his
opinion, or any written advice to the DPP,
obviously.
Q
302
Mr.
Coaker:
He was asked if he thought that, if pre-charge
detention went beyond 28 days, that extension would be compatible with
the ECHR, and he said that, in his view, it would be compatible.
However, you are saying that, in your view, it would not be
compatible.
Shami
Chakrabarti:
All I can say is that
the convention requires that a charge is brought promptly—that
is the phrase that is used. I appreciate that people can have debates
about how many hours or days constitute promptly. All I can say is that
it would be pretty out of step with past case law of the Strasbourg
court. Ultimately, however, it is not my role to trade legal opinions
with the DPP.
Mr.
Coaker:
I just wanted your view on that. We have had your
view, and it is different from the DPP’s.
Shami
Chakrabarti:
More important than whether I think it
does or does not comply with the ECHR is my view that it is
counter-productive to national security and
wrong.
Q
303
Mr.
Coaker:
If Parliament agreed to the pre-charge detention
proposals, and the police and the DPP subsequently asked for the higher
limit, would you contest that?
Shami
Chakrabarti:
So
if—
Mr.
Coaker:
If the pre-charge detention proposals were passed
by Parliament, and the police and the DPP, as a consequence of that
change of the law, made representations to the Home Secretary and then
asked for the higher limit, would you accept that position or would you
challenge it?
Shami
Chakrabarti:
In Liberty’s
view—this is our view of the convention, but mostly it is our
view of what is right—the only circumstances in a democracy
where it should be permissible to detain people for 42 days would be
Mr. McNulty’s three 9/11s on one day scenario, where
the authorities are completely overwhelmed. I do not accept that the
test in the Bill—that there is not an emergency, but there is an
individual
case—
Shami
Chakrabarti:
Would I challenge it? If I were
detained, I would challenge it, but I cannot challenge it academically,
because that is not how the law works. There is no basis for me to
challenge it, unless I am detained.
Q
305
Mr.
Russell Brown (Dumfries and Galloway) (Lab): You have
given an indication that the response from the wider public in your
contacts with them is that all this is just the Government talking
tough. Would you be prepared to share with the Committee—not
now, but perhaps in writing—details of the questions that you
asked the wider public and, if possible, the kind of people involved.
Was it just Mr. and Mrs. Joe Public whom you
spoke to?
Shami
Chakrabarti:
Absolutely.
Shami
Chakrabarti:
How many days do I think it should
be?
Shami
Chakrabarti:
If I am honest, I regret that it went
beyond 14
days.
Shami
Chakrabarti:
I am not saying it should be. It is not
my place to say that.
Q
309
Phil
Wilson:
But it is your place to say, apparently, that it
should not go beyond 28 days, so why can it not be your place to say
that it should be 14 days or seven days? I just need to know what
Liberty’s position is on this.
Gareth
Crossman:
The way we have approached this is that
Parliament sets the limit. The limit that has been set by Parliament is
28 days. For any attempt to extend that, we would expect the Government
to make a very strong and convincing case that it was necessary. It has
been said by the Government and by others, such as Ian Blair, that
there is no evidence that an extension is
necessary.
Shami
Chakrabarti:
I think you make a useful point, Sir,
which is that the actual principle is one of prompt charging. That is
the principle that goes back to Magna Carta and which is now reflected
in article 5. So the word is prompt. As we have set out in the
comparative research, the different democracies that are all attempting
to implement the principle of promptness have come to slightly
different views.
Q
310
Phil
Wilson:
May I just make one point, because we are running
out of time? Ken Macdonald, the DPP,
said:
“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.”——[Official Report, Counter-Terrorism
Public Bill Committee, 22 April 2008; c. 59,
Q156.]
Sir Ian Blair was saying
that the police take people into pre-charge detention just on
intelligence because they are so scared that if they do not, something
terrible will happen. I think we need to give them the benefit of the
doubt if they need to do that, because they need to build up the
evidence.
Shami
Chakrabarti:
I absolutely agree with you, Sir, that
that is what makes terrorism special to some extent—the need to
intervene early. That is why, in recent years, you and your colleagues
have put on the statute book all these precursor offences, which are
not considered legitimate in other areas of criminal
activity.
The
Chairman:
Shami Chakrabarti and Gareth Crossman, thank you
very much for sparing your time and sharing your expertise with us this
morning.
It being
twenty-five minutes past Ten o’clock,
The
Chairman
adjourned the Committee without Question put,
pursuant to the Standing
Order.
Adjourned
ti
l
l this day at One
o’clock.
|
| |
| ©Parliamentary copyright 2008 | Prepared 25 April 2008 |
