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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
Public Bill CommitteeThursday 8 May 2008(Morning)[John Bercow in the Chair]Counter-Terrorism BillFurther written evidence to be reported to the HouseCTB 07
Rosalind McInnes
CTB
08 The Newspaper
Society
CTB
09 Police Commissioner Sir Ian Blair; Assistant Commissioner Bob
Quick—Supplementary
9
am
Mr.
Dominic Grieve (Beaconsfield) (Con): On a point of order,
Mr. Bercow. You will recall that the Committee debated
earlier the apparent errors made by the Metropolitan Police
Commissioner and Mr. Quick, the assistant commissioner, when
they gave evidence, and the fact that the errors were communicated
apparently to the press but not to the Committee, except by a phone
call to the Clerk, which was regarded as insufficient. I see that the
Committee has now received a memorandum from the commissioner and
assistant commissioner, which members of the Committee should have in
front of them. In four lines it purports to deal with what appears to
be a serious error in the evidence, but does not contain an apology or
an explanation as to why the error was made. It simply claims to
clarify that 15 plots have been foiled or have failed since 2000, and
not 2005. It is astonishingly discourteous for a supplementary
memorandum in those terms to be supplied to a Public Bill
Committee.
Patrick
Mercer (Newark) (Con): Further to that point of order,
Mr. Bercow. That four-line explanation is inadequate. If
indeed it was a mistake, there is little doubt that it was deeply
misleading. If it was deliberately misleading, I find that
extraordinary. If it was an omission, I find it incompetent. The way in
which the facts were presented was misleading, not just to us and to
subsequent sittings of the Committee, but also to the press, which
capitalised on it. To have a four-line apologia such as that is
inadequate, and I ask for your
guidance.
Mr.
David Heath (Somerton and Frome) (LD): Further to that
point of order, Mr. Bercow. We have to be careful not to be
overcome by our own pomposity on such matters. Having said that, those
witnesses were the Government’s principal advisers on
counter-terrorism. They were important witnesses who should have given
accurate information. That they did not, in that instance, is
regrettable in the extreme, but that they saw fit to communicate with
us without any sense of apology is discourteous to the Committee. That
should be recorded, and if possible brought, in the most strenuous
terms, to the attention of the Metropolitan Police Authority and the
Association of Chief Police Officers.
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
Further to that point of
order, Mr. Bercow. Let us be clear; the evidence was not
deliberately misleading. That was made clear by the witnesses.
Unfortunately for them and for our deliberations, it was made clear by
phone and e-mail, almost instantly after their appearance, but to the
scrutiny unit, rather than otherwise. It was made clear to them that
that was not appropriate and they were told clearly how they should
respond. I share the Committee’s view that this is at best a
less than satisfactory way of responding, and I will take the matter up
with them and demand something more substantial by way of a further
memorandum. There is no question that it was deliberately
misleading—it was not and they made that
clear.
Mr.
Grieve:
Further to that point of order, Mr.
Bercow. I certainly was not suggesting that the evidence was
deliberately misleading, but the Committee—without being
pompous—might wish to contrast the approach that appears to have
been adopted by the Metropolitan police in this case with that of
Mr. Rebello when he made a mistake in his
evidence.
The
Chairman:
If hon. Members will forgive me, I would like to
offer a response to the various points of order. My view is that
corrections issued to members of the Committee should be timely,
gracious and of good quality. This correction satisfies none of those
criteria. However, it is not of itself disorderly. The hon. Member for
Somerton and Frome was anxious that his concerns and those of other
hon. Members should be recorded and they have been: they will be in the
Official Report of the proceedings of this Committee. I hope
that Members will accept that I have given a very clear response. We
have pressures of time and important matters to consider. I would like
now to proceed with the further business of the Committee. I therefore
call the
Minister.
Mr.
McNulty:
I rise to move the motion, but let me just say in
passing, Mr. Bercow, that in the light of your comments
about timeliness, given that the four-line memo is dated May 2007, I
may take it back to the appropriate authorities.
I beg to
move,
That the
Order of the Committee [22nd April 2008] be amended as follows: In
paragraph (1)(e) leave out ‘1.00 p.m.’ and insert
‘2.00
p.m.’.
Members
will know that the late Gwyneth Dunwoody’s relationship with the
Government was tempestuous at best, but as a Transport Minister for two
years and with the stripes on my back to prove it, I regarded the lady
with both affection, and terror and fear, in equal measure. I should
like to pay my respects and I know that many other members of the
Committee would like to do so too.
Question
put and agreed
to.
Clause 23Post-charge
questioning: England and
Wales
Mr.
Grieve:
I beg to move amendment No. 90, in
page 16, line 21, leave out subsection (2)
and insert—
‘(2) Subject to
subsections (3) to (6), a constable may question a person about a
related terrorism offence where the person has already been charged
with, or been officially informed that they may be prosecuted for, a
terrorism offence.’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 125, in
page 16, line 21, leave out subsection (2)
and insert—
‘(2A) Subject to
subsections (2B) to (2E) a constable may question a person about a
related terrorism offence where the person has already been charged
with, or been officially informed that they may be prosecuted for, a
terrorism offence.
(2B) A
police officer of at least the rank of superintendent may make an
application to a judge of the High Court for permission to allow a
constable to question a person under subsection (2), if the police
officer reasonably believes that the person may be charged with a
related terrorism offence.
(2C)
A judge may grant permission for further questioning under subsection
(2) only if satisfied by evidence
that:
(a) there are reasonable
grounds for believing that the original charge was appropriate to
bring; and
(b) it is in the
interests of justice to allow further questioning in the
circumstances.
(2D) Where a
judge grants permission for further questioning under subsection (2C)
he shall make such directions as he considers appropriate with regard
to:
(a) the maximum permitted
period for further
questioning;
(b) the total
length of time over which further questioning is permitted;
or
(c) any other directions as
required in the interests of
justice.
(2E) A related
terrorism offence means a terrorism offence arising in whole or in part
from the same set of facts as the offence with which the person has
already been charged, or officially informed that they may be
prosecuted.’.
No.
91, in page 16, line 26, after
‘a’, insert
‘related’.
No.
17, in page 16, line 32, at end
insert—
‘(iii) has, after
satisfying himself that the original charge was appropriate and that
further questioning would be in the interests of justice, given
authority for the constable to question the
person.’.
No.
92, in page 16, line 32, at end
insert—
‘(3A) A police
officer of at least the rank of superintendent may make an application
to a judge of the High Court for permission to allow a constable to
question a person under subsections (2) and (3) above if the police
officer believes that the person may be charged with a related
terrorism offence.
(3B) A judge
may grant permission for further questioning under subsection (2) and
(3) only if he is satisfied by evidence
that—
(a) there are
reasonable grounds for believing that the original charge was
appropriate to bring;
(b) it is
in the interests of justice to allow further questioning in the
circumstances; and
(c) that
further questioning would not be
oppressive.
(3C) Where a judge
grants permission for further questioning under subsection (3B) he
shall make such directions as he considers appropriate with regard
to—
(a) the maximum
permitted period for further
questioning;
(b) the total
length of time over which further questioning is permitted;
or
(c) any other directions in
the interests of justice,
and
these directions shall be subject to variation on application by either
party to the same court.
(3D) A
“related terrorism offence” means a terrorism offence
arising in whole or in part from the same set of facts as the offence
with which the person has already been charged, or officially informed
that they may be prosecuted.’.
No. 93, in
clause 25, page 17, line 29, after
second ‘a’, insert
‘related’.
No.
97, in page 17, line 29, leave out
subsection (2) and
insert—
‘(2) Subject to
subsections (3) to (6), a constable may question a person about a
related terrorism offence where the person has already been charged
with, or been officially informed that they may be prosecuted for, a
terrorism
offence.’.
No.
98, in page 17, line 32, at end
insert—
‘(2A) A police
officer of at least the rank of superintendent may make an application
to a judge of the High Court for permission to allow a constable to
question a person under subsection (2) above if the police officer
believes that the person may be charged with a related terrorism
offence.
(2B) A judge may grant
permission for further questioning under subsection (2) only if he is
satisfied by evidence
that—
(a) there are
reasonable grounds for believing that the original charge was
appropriate to bring;
(b) it is
in the interests of justice to allow further questioning in the
circumstances; and
(c) that
further questioning would not be
oppressive.
(2C) Where a judge
grants permission for further questioning under subsection (2B) he
shall make such directions as he considers appropriate with regard
to—
(a) the maximum
permitted period for further
questioning;
(b) the total
length of time over which further questioning is permitted;
or
(c) any other directions in
the interests of justice,
and
these directions shall be subject to variation on application by either
party to the same court.
(2D) A
“related terrorism offence” means a terrorism offence
arising in whole or in part from the same set of facts as the offence
with which the person has already been charged, or officially informed
that they may be
prosecuted.’.
No.
22, in page 17, line 32, at end insert
‘, and
(c) a judge of the Crown
Court has, after satisfying himself that the original charge was
appropriate and that further questioning would be in the interests of
justice, given authority for the constable to question the
person.’.
Mr.
Grieve:
As the Minister will be aware, there is across the
Committee and, I suspect, across the House, a fairly universal view
that extending the scope of post-charge questioning is desirable. There
are, however, a number of points that need to be borne in mind. The
Minister himself has acknowledged that post-charge questioning will not
in itself be a panacea. Indeed, as terrorist suspects frequently say
nothing at all in interview, there is no reason to suppose that they
will say much more post-charge than they did pre-charge. From that
point of view, it probably will not add very much. But one of the
things that we have discussed is the fact that investigations continue
post-charge. It is certainly fair both to a defendant and to the trial
process if a defendant can have put to him any new information or
evidence that may come forward post-charge.
That said,
the way in which the Government have set about providing for these
changes gives me, perhaps wrongly, the very slightest cause for
concern. Post-charge questioning is potentially or theoretically open
to abuse. A person may spend many months on remand in custody between
charge and trial. If the police are being given a blanket right to
remove the person from the prison where he is being detained and taken
down to a police
station to start interviewing him again, that could become oppressive. I
am sure that that is the last thing that the Minister or anybody would
want because it would then be used when the trial process starts to
argue that there has been impropriety in the way the investigation has
been carried out.
It seemed to
us, and this is the thrust of the amendments, that there might be some
merit in requiring a constable wishing to interview a defendant to make
an application to the court to explain why further interviewing and
questioning needs to take place. The nub of that is in amendment No.
125, which
states:
“A
police officer of at least the rank of superintendent may make an
application to a judge of the High Court for permission to allow a
constable to question a person...if the police officer reasonably
believes that the person may be charged with a related terrorism
offence...A judge may grant permission for further
questioning...only if satisfied by evidence that: (a) there are
reasonable grounds for believing that the original charge was
appropriate to bring; and (b) it is in the interests of justice to
allow further questioning in the
circumstances.”
The
judge can then lay down some parameters:
“(a) the maximum
permitted period for further questioning;
(b) the total length of
time over which further questioning is permitted; or
(c) any other
directions as required in the interests of
justice.”
One
thing that is clear is that once a person has been charged, they are in
practical terms in the hands of the court. They are first in the hands
of the magistrates court, but because modern proceedings lead rapidly
to committal to the Crown court, the time between charge and the first
Crown court appearance is now relatively short. Once a person is in the
Crown court, judges can give directions for further applications to be
made. It could be argued—although against my
amendment—that the High Court might not be the best place to go
and that it might in fact be better to go to the Crown court judge
dealing with the matter. That is an issue of detail, so I do not think
that it undermines the broad thrust of the argument.
It would be
better if there was a mechanism—if not this one, then some
other—by which the court exercises a supervisory role over what
is happening. The Government’s approach seems to be based on the
notion that as long as we can put together some new PACE rules, which
will undoubtedly be required, that in itself will be sufficient.
Although we will certainly need PACE rules, I urge the Minister to
consider carefully whether the extra safeguard of the ability to go in
front of the judge would be desirable. During the Committee’s
evidence sessions, Lord Goldsmith and others showed a willingness to
consider the idea that at least a liberty to apply or some supervisory
court role might be desirable. These are probing amendments, so I would
be interested to hear the Minister’s view on that
matter.
Another issue
that arises in the amendments concerns the definitions under which the
Government are seeking to allow post-charge questioning to take place.
Clause 23 states:
“A
constable may question a person about a terrorism offence where the
person has been sent for trial for the offence if...the offence is
a terrorism
offence”.
We
are talking about further interviewing for the same matter on which the
person has been charged. The
Government have said there is no requirement for legislation to sanction
interviewing of defendants in circumstances where they were being
interviewed for another offence and not for the offence under which the
original charge was brought, and the Committee has received some
correspondence on that. The Minister might be right about that, but I
have heard many voices within the legal profession express doubt about
that, if the questioning that is taking place on the further charge is
based on facts that are identical to those relating to the original
charge. I hope that the Minister might be able to address that issue
when he deals with these amendments, because the last thing that we
want is to end up with legal challenges because we have not covered
that matter satisfactorily in the
Bill.
9.15
am
Mr.
Heath:
I do not think that I wished you good
morning on my earlier intervention, Mr. Bercow, so I do so
now. I rise to speak to two amendments that my hon. Friend the Member
for Carshalton and Wallington and I have tabled. As the hon. and
learned Member for Beaconsfield has already said, post-charge
questioning is seen by many Committee members as a matter of some
importance in providing an addition to the armoury of tools that is
available to the investigating and prosecuting authorities when looking
at terrorist offences. I do not think anybody has suggested that it
will necessarily provide for a huge increase in the number of
successful prosecutions because, as was pointed out by some of our
witnesses, there is a strong suspicion that in many cases there would
be further questions, but less in the way of answers being forthcoming
from the person who has been charged and is held in
custody.
We
think that post-charge questioning is important and we are interested
in exploring not only the process by which it would take place, but the
safeguards that are in place to ensure that whatever emerges from it is
admissible in court and is not in any way contaminated by the process.
We would like to ensure as far as possible that the process is in good
order and in accordance with previous
practice.
The
hon. and learned Gentleman raised the important point about whether it
is possible to question on further charges. The Minister must be
absolutely clear on that question when we are talking about further
charges on the same facts. It is quite clear that it is possible to
re-arrest, re-question and re-charge on new offences if further
evidence is brought to light. It is not clear that it would be
permissible to question further on the same facts and proceed to
further charges. The Government have to be absolutely clear about that
and if there is any doubt, they must adjust the legislation to ensure
that it is not outwith this part of the
Bill.
The
second issue, which is common to the hon. and learned
Gentleman’s amendments and my own, is judicial supervision. In
Scotland, the position is clearer. Once the accused has been charged,
he is under the protection of the court. That is implicit in the
English and Welsh jurisdiction, but not explicit. Particularly in the
circumstances that we are discussing, it is sensible to ensure that
there is judicial supervision. I agree with the hon. and learned
Gentleman that whether it is a judge of the High Court or of the Crown
court is neither here, nor there. There is a principle that some judges
at any level will be appropriate and some judges will be less
appropriate. This is not a question of the seniority of the judge, but
of the level of supervision that can be
applied.
The
amendments that I have tabled raise the same issue that forms part of
the amendments tabled by the hon. and learned Gentleman and I look
forward to the Minister’s
response.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I support
the remarks of my hon. and learned Friend the Member for Beaconsfield
and the hon. Member for Somerton and Frome on the need for some
judicial intervention to permit post-charge detention questioning to
continue. However, I would adopt the point that my hon. and learned
Friend made about the status of the judge. I am by no means persuaded
that it needs to be a High Court judge. My preference would be for at
least a Crown court judge or the judge who is likely to have charge of
the case.
As my hon.
and learned Friend has pointed out, committal proceedings are now very
rapid and case-management powers are much more fully developed than
they were. It seems desirable in principle that the judge who will try
the case, and who might already have made procedural orders in the
context of the case, should also be asked to allow and regulate
post-detention questioning. I adopt the principle of my hon. and
learned Friend, but I think that a High Court judge is probably not
required. At any rate, a Crown court judge is likely to be in charge of
the
trial.
Patrick
Mercer:
I support amendment No. 125 and the right hon. and
learned Member for Sleaford and North Hykeham, the hon. and learned
Member for Beaconsfield and the hon. Member for Somerton and Frome. As
you will have seen, Mr. Bercow, I am the only one, I think,
who is without any form of legal training. Therefore, I ask the
Minister for some clarification on one point, which has been touched on
in legalese, but a bit of plain English would be welcome.
Currently,
there is legal ambiguity over issues of repeat questioning for
different terrorist offences. With straightforward offences, which I
was taught to call ODC—ordinary decent crime—such as
burglary, it is simple to have additional questioning on a separate
charge, such as assault. With terrorism the picture is less clear, as
the same facts are likely to be used to investigate a separate charge.
I hope that the Minister can clear that up for me. For instance, a
person charged with the preparation of terrorist acts might then be
charged with conspiracy to murder—a much more serious offence.
Would re-questioning over the same facts be permitted? PACE codes
governing police conduct do not mention this area, so is it legal or
not? I would be grateful for clarity from the Minister on that. I have
talked to what I could best term “the legal community”
and there is some ambiguity on the matter. I simply ask the Minister to
address and to explain it.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I think that I
am required to say good morning to you, Mr. Bercow, in case
I am not called
again.
I
support the amendments already referred to, in particular amendment No.
125, which seems to crystallise neatly the position of the Home Affairs
Committee and
the Joint Committee on Human Rights. Liberty has come out in favour of
further safeguards. There is a possibility of repetitive and oppressive
questioning, which we must all guard against. The reasoning behind the
PACE code of practice in ordinary criminal matters is to ensure that
oppressive and repetitive questioning does not happen, thereby bringing
forward false confessions. The concerns are
legitimate.
I
believe that the amendment would strengthen the Bill. It would address
the necessary balance that we keep referring to between ensuring that
an individual is accorded his or her rights and ensuring that the
police are not hampered in their investigative duties. It is a very
sensible amendment. In fact, I remind members of this Committee that,
as I have said, both those Committees recommended such provision. There
is also a lengthy document from Liberty, which some might say is
expected from it, but it is a sensible document. I pray in aid the
report of Lord Carlile, who says:
“The
Government should consider judicial supervision of the exercise of the
power”.
He
goes
on:
“I
have concluded that where post-charge questioning takes place on
matters to which a defendant, properly advised by lawyers, could
reasonably be expected to reply, an adverse inference should be
available where there is a refusal. However, the new or amended Code
must include protection against repetitive or oppressive
questioning.”
The
amendment would deal with that in large measure, together with an
amendment to the code, because it refers to judicial intervention or
supervision. New subsection (2D) refers to the length of time, the
maximum period of questioning and so
on.
The
amendment would make the Bill far stronger, more human
rights-compatible and would stand the test of time. I see no reason to
believe that it would hamper investigation in any way. No one in this
Committee would seek to do that. It really does improve the Bill. If
the Minister cannot accept the precise wording or perhaps the
designation of a High Court judge—he may prefer a senior Crown
court judge or whatever—I hope that he accepts that judicial
supervision is an important part of the amendment and the Bill. I hope
that in due course the Minister will give consideration to, if not the
precise wording, the precise reasoning of this important
amendment.
Mr.
McNulty:
May I first say good morning, Mr.
Bercow? Having admonished the hon. Member for Somerton and Frome for
not saying good morning to you, the Under-Secretary of State for the
Home Department, my hon. Friend the Member for Gedling kindly pointed
out that I did not do so either, so good morning to one and
all.
This
is an interesting clause and an interesting group of amendments because
we all agree that it is quite proper that post-charge questioning is in
the Bill and that it could be useful. Many of us agree that its utility
has probably been oversold. It is not the silver bullet or panacea that
people think it is, but it is none the less a useful weapon in the
armoury. On that, we are all
agreed.
I
think that we also all agree that there should be oversight. The
distinction between our views is on what form that should take. In an
earlier sitting, I said that where amendments were forthcoming to codes
or anything
else, I would seek to ensure that the Committee has them before Report
and I shall do that. Whatever measures we pass on oversight, as hon.
Members have indicated, there will have to be changes to the PACE code
and those will quite properly be
made.
I
am fairly agnostic on oversight, save for the notion that there should
be some. I will pray in aid the evidence of Ken Macdonald—I hope
that he will not be offended—who described roughly the position
that I hold. He said that he saw the need for oversight, but was very
clear that he did not think judicial oversight was necessary. To be
entirely fair to him, I quote him in
full:
“I
do not believe that judicial oversight is necessary, although that is a
matter for
Parliament.”
He
quite properly stated that caveat throughout her evidence on
pre-charge, post-charge and everything else. He went
on:
“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.”——[Official Report,
Counter-Terrorism Public Bill Committee, 22 April 2008; c. 45-46,
Q118.]
I say
quite candidly that that is the part on which I am relatively agnostic,
if one can be relatively agnostic. I do not dismiss the amendments
entirely. Through additions and amendments to the PACE codes, we can
deal with matters of repetitious questioning, oppressive questioning
and overburdening questioning. As I have said, I will bring forth those
changes as soon as I
can.
Mr.
Hogg:
Does the Minister accept that his arguments would be
more persuasive if the obligation to lay further PACE codes was
mandatory? The Bill merely makes it permissible. Would he not be in a
stronger position if it was
mandatory?
Mr.
McNulty:
As ever, the right hon. and learned Gentleman is
way ahead of his time, although it is probably by accident rather than
by design. We are coming to a clutch of Liberal Democrat amendments
about which I shall be even more emollient: although I do not like the
form of words, they include a matter that we can and should look at. I
will promise the Committee faithfully at that time—I shall not
do so now because I do not want to provoke you, Mr.
Bercow—that we should consider putting a requirement in the Bill
for the PACE codes to be
amended.
Collectively,
members of the Committee want post-charge questioning to be as robust a
tool as possible. Quite fairly, hon. Members have said that to aid
that, judicial oversight is preferable. I do not want to go down the
road of discussing what level of judge that should
involve.
9.30
am
Mr.
Llwyd:
I am listening carefully to what the Minister says.
He said that it ought to be possible to amend the PACE codes to provide
for precisely what would be
oppressive and repetitive questioning. That will cause a difficulty, as
every case will turn on its own facts. That is where, with respect,
judicial supervision would be preferable. Yes, we could make it
mandatory to follow the code to the letter, but it will be difficult to
set out precisely what is oppressive in the
circumstances.
Mr.
McNulty:
Surely, any number of our enlightened legal
colleagues on the Committee will know that. They make some of their
money, at least, precisely on the notion that every case turns on its
facts.
Mr.
McNulty:
Precisely. Therefore, some dispute about the
nature of post-charge questioning will be inevitable. How oppressive or
otherwise the questioning might have been—despite what we have
done to the code—might be discussed at the start of the trial,
given any further evidence or no comment at all from the individual, or
when someone goes to the judge to ask. None of that pre-empts some
little dance, at least, in court proceedings about the nature of the
post-charge questioning. That is an inevitable result of broadening the
notion of post-charge questioning, and we cannot avoid that by judicial
oversight. That is partly my difficulty, rather like Ken Macdonald. I
think that the delay point can be overcome, although no judge would
want simply to say yea or nay without being seized of the facts of the
case, and that is fair too. If we are saying—and I do not know
that we are—that judicial oversight pre-empts further discussion
and debate about the nature of post-charge questioning in court, that
is not the case.
Mr.
Llwyd:
I am not suggesting that, but it would limit the
scope for such challenge. That is the point—it will probably
never do away with it.
Mr.
McNulty:
In substance, I think that we can do that through
the codes, but I say with all candour to the Committee, that I am happy
to explore the matter further. In that sense, I am a
Macdonaldite—not in relation to ’29 to ’31
MacDonald, but the Director of Public Prosecutions. I am confident
that, given where we might get to with the next set of amendments, we
can, in the Bill or otherwise, mandate changes to the code and ensure
that our concerns are dealt with properly. I do not entirely dismiss
judicial oversight and all the detail; I simply ask the Committee to
lay those matters to one side for now. Let us go away, have a further
look, and re-examine the clauses once amended. I am happy to return to
the matter with further answers on Report. I am not throwing the baby
out with the bath water; I am saying that I am not convinced, although
I see the argument. I am convinced that we could do it better with the
code rather than otherwise, but I am happy to continue to explore the
matter. In that very emollient
context—
Mr.
Heath:
I do not think that the right hon. Gentleman has
entirely addressed the issue of further offences or questioning on the
same offence, which is a key point.
Mr.
McNulty:
I did not think that this would be the end
of our deliberations on the matter; I was saving that issue for other
occasions. I take the hon. Gentleman’s point, and I will look at
that too. I start from the premise that, if there is a more substantial
charge during the course of an investigation that can be laid with the
defendant, it is perfectly reasonable for him to be re-cautioned in
that context. I take the point about the debate going on with our legal
brethren, but I am currently convinced that that is appropriate. I also
take the point—and this should be explored further to get us to
the post-charge questioning regime that we all want—that given
the nature of the offences, it is often the same material and evidence,
in part or in substance, that forms the further charge or an adjustment
to the same charge. Between what we already have with the PACE code on
further charges, and the provision that we are setting up here with
regard to further questioning, the hon. Gentleman’s point will
be covered. I know that that is difficult because of what we say about
the PACE code in the next group of amendments, but I am fairly
comfortable with that.
Mr.
Grieve:
On the ability to interview somebody for a
separate offence, there has been an exchange of correspondence and the
Government have stated their case and advised that that is no problem.
The use of the word “related” in our amendments would
meet the possible problem. However, my colleagues at the Bar who
practise in this area differ slightly from the Government in their
assessment of when it is permissible to interview at present. It might
be a belt-and-braces job, but it would be better to get it right now,
than to have a problem later which defeats part of the intention of the
Committee and the
House.
Mr.
McNulty:
I accept that. Even if my agnosticism turns into
outright hostility to the thrust of the amendments, I think, although I
am not 100 per cent sure, that I will nick the word
“related” at the very least. There is no distinction
between us about the principle, but about practicalities, which is why
I am trying to be as helpful and responsive as possible. In that
context, I ask the hon. and learned Gentleman to withdraw the
amendment, perhaps pending further discussion before Report to see
whether we can clear these matters up and get to where we all want to
be.
Mr.
Grieve:
I am most grateful to the Minister for his
comments. These amendments were tabled as probing amendments so that we
could look at the two key issues. The first relates to judicial
supervision, and the second concerns definitions, what constitutes the
same offence or a separate offence, and ensuring that both types can be
interviewed after charge if necessary. I am greatly reassured by what
the Minister said about going away and looking at these issues afresh.
Clearly, if only to avoid time-consuming activity on all our parts, it
is important for the Government to maintain the channels of
communication with us so that we know well before Report whether there
is a meeting of minds on the matter. We might wish to return to it on
Report if the
Government disagree with us. At the same time, I have no desire whatever
to disagree with the Government on this
issue.
Mr.
McNulty:
I am happy to give that assurance. That is
perfectly reasonable: if there is not the unity that we want, the hon.
and learned Gentleman should have the time to marshal his resources
appropriately for
Report.
Amendment,
by leave,
withdrawn.
‘, at any
time up to the commencement of the
trial,’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 21, in
clause 25, page 17, line 32, at
end insert
‘, at any time up to the
commencement of the
trial,’.
Mr.
Heath:
We are having a very useful discussion this
morning. For once, all parties are on exactly the same wavelength in
what we are trying to achieve. We are simply trying to make sure that
the legislation fits the circumstances that we see developing. These
are probing amendments in support of an observation by the Joint
Committee on Human Rights in response to the evidence that it heard on
this matter. I hope that the Minister can reassure me.
Our amendment
simply seeks to ensure that post-charge questioning does not continue
once the trial has commenced. Common sense suggests that that would be
the case. After all, once a trial has commenced the proper place for
questioning is in the context of the trial, with the direct supervision
of the judge for the case, rather than in a police cell, with that
evidence being given second-hand to the court.
I present
Lord Lloyd of Berwick in support of my case with some difficulty,
because he is wholly opposed to post-charge questioning and made that
abundantly clear. Although I so often agree with him, in this instance
I do not. In the debate on the Queen’s Speech in 2007, he
said:
“Even
if it were to be allowed, where would it stop—at the door of the
court? To allow a defendant to be questioned by the police up to the
moment that he goes into the dock would be quite intolerable. No one
would seek to defend that; but where else is the line to be drawn, once
post-charge questioning is allowed?”—[Official Report,
House of Lords, 12 November 2007; Vol. 696, c.
264.]
My
response is that a clear line can be drawn at the trial’s
commencement. That is when I would expect an absolute prohibition on
further post-charge questioning.
I hope that
the Minister will reassure me that that is exactly what will be
contained in any future PACE codes on the matter, and that it will be
clear that once the prisoner appears in court, that is the end of the
investigative process, and the beginning of the judicial
process.
Mr.
Hogg:
I have two observations. First, I agree with the
hon. Gentleman that it would be quite wrong for questioning to take
place during the currency of the trial. That is so clear that the point
need not be argued. Secondly, I am bound to say that I am cautious
about the suggestion that post-charge questioning should take place
close to the trial. As a matter of general principle, the prosecution
should achieve some finality in its case at least in good time before
the trial. It is probably a matter for the PACE codes or perhaps
judicial supervision to determine exactly when the post-charge
questioning must cease but, as a proposition, one is entitled to say
that the Crown must get its tackle in order in good time before the
trial, so that the defendant knows the exact nature of the case that he
or she must face, and that the ground cannot shift under his or her
feet.
Those are my
two observations on the principle. I have a nasty feeling that the
amendment might encourage the police to suppose that they are entitled
to question right up until the date of the trial. That is not the hon.
Gentleman’s intention, but I have a nasty feeling that it might
have that effect. However, I understand his thinking and I support it.
I hope that we will get reassurance on that point from the
Minister.
Mr.
McNulty:
I think that the right hon. and learned Member
for Sleaford and North Hykeham can have that reassurance. If nothing
else, the amendment is a useful hook on which to put the notion that
the codes of practice on commencement of post-charge questioning would
make it clear, notwithstanding his point, that post-charge questioning
relating to offences about to be tried should cease before the trial. I
actually think—I repeat that I am no lawyer—that, as has
been implied, the judge would rule all evidence obtained as a result of
questioning a suspect about the offence after the trial has started as
unfair and therefore inadmissible. That will be made clear in the
amendments to codes, regardless of where we end up with the last
discussion.
More
explicit reference to what will be in the codes might be put in the
Bill—I have agreed to look at that proposal. I undertake to
consider the general point on offering at least a draft of amendments
to the code so that we can see what they might look like before Report,
as I have said. However, I cannot accept the amendment because there
are some problems with it. It makes no mention of pre-existing forms of
post-charge questioning, limited though they are, and its impact on
them. Nor does it refer to intelligence interviews that have nothing to
do with the immediate offence but which might be pressing, nor
retrials. I do not like the amendments, although I appreciate the
spirit in which they have been tabled.
The code of
amendments will make clear, as the Committee has, that post-charge
questioning is probably not terribly useful or fair beyond the start of
a trial or in the preparation for a trial. In that context, I ask that
the amendments be
withdrawn.
Mr.
Llwyd:
Although I agree with the Minister, I have one
further thought. In any Crown court proceeding there is a preliminary
hearing before a judge, who will look at the state of the case. Surely
there would be reference then to whether post-charge questioning was
needed, therefore negating the rush to trial and then suddenly aborting
it because of an argument about some questioning the day before. That
could be dealt with at the preliminary
hearing.
Mr.
McNulty:
Potentially so. I hear what people say about the
speediness of committal these days, but “rush to trial”
and “the English legal system” are two phrases that do
not necessarily run together—more is the pity in some cases. The
point applies equally to what we mean by the start of a
trial.
9.45
am
Mr.
Hogg:
I am glad that the right hon. Gentleman is being
helpful on that point. Might I make a suggestion that he might ponder,
that any application made to a judge with regard to post-charge
questioning must be an inter parte application? That is to say that the
statute or the rules should provide that the defendant or the detained
person is always present and/or represented at any such
application.
Mr.
McNulty:
The right hon. and learned Gentleman seeks to
provoke me gently, because there is no judicial oversight for
post-charge questioning in the Bill. Were there to be, I would be with
him in that regard, purely because, should there be post-charge
questioning or otherwise, I cannot see the fairness of, or the
requirement on the part of the state for, ex parte proceedings. The
point is entirely fair. None the less, I take the serious point made in
the amendments and in the spirit of my response I ask that the
amendment be
withdrawn.
Mr.
Heath:
I thank the Minister for his response. I believe
that there is no difference between us in the outcome that we seek.
This is not an attempt to provoke the Minister further, but I again
make the point that were judicial supervision to be in place it would
be self-limiting because the judge would rightly say, “No, the
trial is to commence next week. You are not going to have a further
period of post-charge questioning because that might prove inadmissible
in the trial.” There is a self-regulating structure available if
we have judicial oversight of post-charge questioning. The Minister
has, however, given me the sort of assurances that I sought. I never
intended to press the amendment to a Division at this stage, but it is
an important area and should be contained in any forthcoming codes of
practice. There must be clearly defined good practice in that area to
avoid inappropriate use of what is a considerable extension of existing
powers, which we all want to see, but properly regulated. I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 18, in
page 16, line 35, at end
insert—
‘(4A) Codes of
practice made under subsection (4) must include provision
for—
(a) questioning to
take place only in the presence of a lawyer representing the interests
of the accused person;
(b) a
transcript to be made available to the judge authorising the
questioning under subsection
(3);
(c) the questioning to be
subject to a video
recording;
(d) for the purpose
of the questioning to be confined to questioning about new evidence
which has become available since the accused person was charged;
and
(e) preventing oppressive questioning by specifying
appropriate time limits.
(4B)
Prior to the commencement of the trial the judge must review any
transcripts made available to him under subsection (4A)(b) having
regard to subsections (4A)(d) and
(e).’.
No.
20, in
clause 90, page 59, line 33, at
end insert—
‘( ) The
provisions of Part 2 (detention and questioning of terrorist suspects)
come into force—
(a) in
England and Wales on the day after the revised codes of practice under
section 23(4) have effect,
and
(b) in Northern Ireland on
the day after the revised codes of practice under section 25(3) have
effect.’.
No.
23, in
clause 25, page 17, line 34, leave
out ‘may’ and insert
‘must’.
No.
24, in page 17, line 36, at end
insert—
‘(3A) Codes of
practice made under subsection (3) must include provision
for—
(a) questioning to
take place only in the presence of a lawyer representing the interests
of the accused person;
(b) a
transcript to be made available to the judge authorising the
questioning under subsection
(3);
(c) the questioning to be
subject to a video
recording;
(d) for the purpose
of the questioning to be confined to questioning about new evidence
which has become available since the accused person was charged;
and
(e) preventing oppressive
questioning by specifying appropriate time
limits.
(3B) Prior to the
commencement of the trial the judge must review any transcripts made
available to him under subsection (3A)(b) having regard to subsections
(3A)(d) and
(e).’.
Mr.
Heath:
Amendment No. 16 deals with the codes of practice
and does two things. First, under subsection (4) it requires that the
changes in the codes of practice be made, in contrast to the permissive
power given there at present. Secondly and importantly, it sets out the
parameters for those changes to the codes of practice, to ensure that
there are proper protections against oppressive questioning. We all
recognise that whatever utility there is to post-charge
questioning—and we all hope that it has utility—the
person charged and in custody is potentially vulnerable, and it is
important to maintain the highest level of safeguards, not least to
ensure the efficacy of the process with respect to the admissibility of
the evidence in court. It is pointless to conduct a heavy-handed
interrogation that devalues the evidence in court, making it more
likely that there will not be a conviction. We must be explicit about
the protections for the individual being
questioned.
A
key area—on which we shall touch in the next group of
amendments, so I shall not deal with it extensively—is to ensure
that the purpose of the questioning is the collection of further
evidence, and not the achievement of a series of silences from the
witness, which can then be used under the adverse inference rules to
strengthen a case in court. That would be a misuse of the powers of
questioning.
Mr.
Hogg:
I think that the hon. Gentleman is speaking to his
amendment No. 18, and I am a little puzzled by paragraph (d) of the new
subsection (4A) that the amendment would insert into the clause. The
paragraph would confine questioning to new evidence. It is
far
from clear to me why the subsequent questioning should not be used to
clarify issues that arose in the previous interviews. I do not see why
it should be so
confined.
Mr.
Heath:
It is not my intention to lay down firm rules; I do
not say that what is in the amendment is necessarily what should go in
the Bill, and I look forward to the Minister’s response. My
purpose is to ensure that post-charge questioning would be used for a
proper purpose, relevant to the circumstances that we have been
exploring throughout our discussions on the Bill. It should not enable
the police or investigating officers to take short cuts in
charging.
Charges
should be properly based when they are made, but post-charge
questioning would then make it possible to explore either further
evidence that could not come to light in the normal detention
period—let us remember that many of us argue that the
questioning is part of the apparatus that makes the extension of
pre-charge detention unnecessary—or evidence of further
criminality, so that the investigating officers could properly come to
a conclusion about the full criminality of the accused person. That
seems to me to be the proper use of the process.
The right
hon. and learned Gentleman may be right; the exclusion may be
unnecessary. I included it because it was among the suggestions of the
Joint Committee on Human Rights. The Committee did extensive work on
the subject, and it struck me that putting forward the safeguards that
it felt necessary, on the basis of the evidence it received, would be
of value. The right hon. and learned Gentleman’s point is
arguable, and I accept that.
Mr.
McNulty:
To pursue the same point, my difficulty with the
amendment is that it rather presumes clarity of evidence at the point
of charge. It is perfectly right to suggest that there may be entirely
legitimate post-charge questioning in relation to that clarity. At the
extreme, a computer or hard disk may be offered in evidence at charge,
and not all of the hard disk may have been de-encrypted. The lawyers
will have another fine day in court, saying that it was registered as
evidence at charge and no further questions can be asked to seek
clarity as has been suggested. That is an extreme example, and we can
clearly deal with that, but there are difficulties about presuming that
there is absolute clarity as to the evidence that is offered at charge.
To lock it off entirely from further questioning would not be terribly
helpful.
Mr.
Heath:
I understand that point and I am prepared to
consider the matter further. I have to say, though, that what the
Minister suggested would constitute new evidence. If material that had
been encrypted at the point of charge was then de-encrypted and used in
questioning, that would constitute new evidence and would fall within
that definition. However, that is a matter that we can discuss further.
I do not want to fall out over the detail of the prescription when it
is the principle that is important. Given that the Minister has hinted
that he is open to suggestions, I would say that changes must be made
to the Police and Criminal Evidence Act 1984. We all accept that, and
he understands that perfectly well. The question is whether those
changes should be in the Bill or not. There is sufficient evidence from
those who have considered the matter in detail to
suggest that it would be of value to at least have the principles for
the amendments to PACE in the Bill. Some of them are self-evident and
cover a range of matters, including the prohibition on oppressive
questioning, the right to a lawyer, and the subject of the
recording.
The most
important thing is to provide the context in which post-charge
questioning takes place and to ensure that it is an orderly and
judicially based process. That is what I am trying to achieve. I hope
that the Minister will consider the matter further and bring back
amendments of his own if, having considered it, he feels that it is
appropriate to put the matter in the Bill. I hope that he will not
reject the principle behind my amendment even if he cannot accept the
precise wording. If he did that, that would be progress and it would
enable us to achieve clarity, and clear limitations on the process.
That will ensure that everybody knows what can and cannot be done, what
is and what is not appropriate, what would be admissible in court and
therefore of value in the evidential and judicial process and what will
undermine the case, which would be utterly pointless and something that
we would want to avoid.
Mr.
Grieve:
It is very helpful for the hon. Member for
Somerton and Frome and his colleagues to have tabled the amendments to
enable us to consider further what should or should not appear in PACE
codes. I hope that he will forgive me if I say that amendment No. 18 is
too prescriptive in the way in which it lays down how the system should
operate. My concern has always been to have judicial supervision over
the granting of permission, but I do not see any reason why, once that
permission is granted, it should not be covered by the ordinary PACE
codes and any extra PACE codes that are needed. It has been argued on
many occasions that we should video record all interviews in police
stations. However, such an idea has been shied away from because of the
prohibitive cost. It has been suggested that if we were to do it, it
would be an enormously helpful tool to the prosecution when it deals
with problems or allegations about what goes on in the setting of
interviews. I do not see why a special rule should be made for
post-charge questioning if there is not a rule already in place for
pre-charge questioning. I would be very surprised if the majority of
terrorist-related cases are not already videoed in the course of the
interviewing process. The same is true of the transcript. I agree with
the hon. Gentleman—although this is so obvious that it hardly
needs to be said—that we must have new PACE codes because the
existing ones do not cover this contingency. From that point of view,
whether it is “must” or “may”, this system
cannot properly get off the ground unless we produce acceptable codes
that cover this new area of
questioning.
10
am
Mr.
Hogg:
I want to make three points. First, I, too, agree
that the obligation to lay the PACE codes should be mandatory.
Secondly, it is my belief that the laying and making of new PACE codes
should be a condition precedent to the implementation of this part of
the Bill, and it is my intention to table an amendment relating to the
implementation and commencement of clauses to bring that
about.
I shall echo
what my hon. and learned Friend the Member for Beaconsfield said about
amendment No. 18. I entirely understand that the hon. Member for
Somerton and Frome is seeking to protect the interests of the detained
person, but like my hon. and learned Friend, I see no particular reason
why the ordinary PACE codes should not
apply.
I would like
to make some specific comments about amendment No. 18. The hon. Member
for Somerton and Frome needs to keep in mind that, although it does not
happen frequently, sometimes detained people choose to be questioned in
the absence of solicitors, and it would be a bit perverse to prohibit
them from doing so if that is what they want. With regard to the
transcript of the questioning, the important thing is that it should be
available at trial. It is not self-evident to me why it should be made
available to the judge authorising the process. With regard to video
evidence, in principle it would be good to have video evidence of all
interviews. As a matter of fact, it is now rare for defendants to
assert that they have been ill-treated during interviews, because they
are all taped. However, it would be helpful in cases where a defendant
is extremely
contemptuous—[
Interruption.
]
The
Chairman:
Order. I apologise for interrupting the right
hon. and learned Gentleman, but there is a certain amount of chatter
taking place. I am sure that Members will want to listen with rapt
attention to the right hon. and learned
Gentleman.
Video
evidence can be helpful when a defendant is extremely contemptuous of
the questioning process. I remember that when I was doing the
Minister’s job many years ago, I once went to the Castlereagh
holding centre in Northern Ireland. At that time, the police did video
interviews of IRA and other terrorist suspects. I remember looking at
the process of the interview and seeing one of the detained people just
lolling back and really laughing at the questioning officer. Such
evidence is helpful for the prosecution to see how the interviewee is
responding, so there is merit in videoing.
I also think
that paragraph (d) in amendment No. 18 is too restrictive. The Minister
is right when he says that definitional questions will arise as to what
is new evidence. In any event, it seems rather perverse that further
questioning should not be allowed in respect of doubts that have arisen
in the previous questioning. Indeed, it can also work to the advantage
of the defendant. I will briefly cite the case that I have just
concluded. The defendant was asserting that he had made phone calls to
relevant parties. That was true, because it was reflected in the
billing records. It would be perverse if anything that we did prevented
a police officer from going back and saying, “You said in the
previous interview that you had made these phone calls. Would you be
good enough now to indicate where in the billing records they are to be
found?”
We should be
cautious about being unduly restrictive in the PACE code requirements
that we have in mind, although I am always on the libertarian side of
the argument. I hope that the hon. Member for Somerton and Frome will
recognise that although I entirely accept his good purpose in the
matter, I do not wish to see his amendments carried or pushed any
further forward.
Tom
Brake (Carshalton and Wallington) (LD): I rise in part to
wish you good morning before it is too late to do so, Mr.
Bercow. It is clear from the debate that has taken place so far that
the Minister has expressed some sympathy for some of our amendments,
but less so for amendment. No. 18. Indeed, we have heard expressions of
concern from the official Opposition on that score as well. However, I
hope that the Minister will be able to respond specifically to
paragraphs (a) to (e) in amendment No.18, to make clear his views on
those
points.
Mr.
McNulty:
It is a shame that our hon. Friend the Member for
Newark—I use the word advisedly—is not in his place,
because we have shared a number of Bill Committees and I think that he
has a little bingo card for striking through some of my more pompous
phraseology. “Canard” was Tuesday’s, after
something I said in reference to the identity cards legislation. The
term I have not used thus far, but which is appropriate for amendment
No. 18, is undue specificity, or in similar terms, over-prescription.
That is, putting measures on the face of the Bill that apparently guard
people’s liberty, but which are far too restrictive for what we
seek to achieve with post-charge questioning and defendants’
rights. I do not like amendment No. 18 at all and others have been
through some of the reasons. Why have a post-questioning regime at all
if either, as was being pointed out, the individual cannot be further
interviewed at his own request without a lawyer or, as set out at
paragraph (a), there is effectively a complete veto by the defendant on
post-charge questioning? All that they would have to do is say,
“I don’t want a lawyer.” That cannot be what the
hon. Member for Somerton and Frome was seeking to do.
The right
hon. and learned Member for Sleakeham—[Interruption.] I
apologise. The right hon. and learned Gentleman has made it clear that
a transcript should be available, but the notion that the judge should
review it at some stage before post-charge questioning seems entirely
irrelevant. On video recording we have made it clear, not least because
of requests from the police and the JCHR, that in future all terrorism
cases will have compulsory video recording, although I think that that
is pretty much the case already. We can certainly explore whether video
recording is suitable for post-charge questioning and it may well be,
for all sorts of reasons—not least our trip down memory lane to
Castlereagh. As I have already said, paragraph (d) in amendment No. 18
is not appropriate, but time limits, video and all such elements can
and should be dealt with in the changes to the police code.
I shall not
embarrass anybody, but I shall read out my brief on amendment No. 16.
The amendments would make it compulsory for codes of practice to be put
in place for post-charge questioning about the offence charged in
England, Wales and Northern Ireland. It has always been the
Government’s intention that the codes of practice governing
police questioning of a suspect will be revised to take account of
post-charge questioning. Indeed, it would not be possible, as the hon.
Gentleman inferred, for these clauses to work without such revisions,
so we believe that it would be unnecessary to make the requirement
compulsory. What we are saying is that these provisions for post-charge
questioning will not work without revisions to PACE. It is irrelevant,
therefore, to say that they should be compulsory on the face of the
Bill because if they are not compulsory,
the whole system will not happen. The Committee would be in a more
satisfactory position if, in this one instant, a little call my bluff
game was taken on board and the “may” became
“must”. The inference should be that we want the thing to
work, so it is purely a tidying up exercise to replace
“may” with “must” to include a compulsory
element, with my assurance that at least the principal heads of such
amendments to the code are available to the Committee before
Report.
Unaccustomed
as I am to accepting amendments, I accept with all due humility
amendment No. 16, making it mandatory rather than optional for
provisions to be made under the PACE codes, but I reject the others
with the contempt that I am more comfortable
with.
Mr.
Heath:
The contempt that the hon. Gentleman was expressing
is of course also a contempt for the JCHR, which was the author of the
provisions, and I am sure that that will be communicated to the
Chairman of that Committee in due course. In all seriousness, I am
grateful to the Minister for his response. I wanted us to have a
substantive debate on this issue and I think that we have had that. He
is very clear about some of the provisions that ought to be in the
revision of PACE, and that is good news.
I have spent
years of my life discussing amendments that either replace
“may” with “must” or “must”
with “may” and whatever I put down there is usually civil
service advice to say that the opposite has to apply, and at the end of
the day it very rarely amounts to any real difference in the effect of
the Bill, other than affecting the sort of mood music that surrounds
it, so I am grateful to the Minister for accepting amendment No. 16. In
that context, I assume that he also accepts amendment No. 23, as it is
identical and refers to the same thing.
Mr.
McNulty:
That is purely the clarification that I was going
to offer. That is entirely the case. I of course accept amendment No.
23 as well as amendment No. 16.
Mr.
Heath:
Two amendments in any sort of criminal justice Bill
Committee is good going. So I will rest on that, other than to say that
it would be obviously helpful to have the drafts of the revisions to
PACE before Report.
Furthermore,
I hope that the Minister will consider whether he wishes to put
anything in the Bill that gives the basic principles behind the PACE
revisions, not because of any pleading on my part but because of the
evidence of a lot of people who have examined this subject and believe
that that addition is necessary. That is the basis on which the JCHR
made its recommendation; it did not just pluck that recommendation out
of the air but made it on the basis of the evidence that it had
received. I think that that recommendation was echoed by my noble
Friend Lord Carlile of Berriew in the evidence that he gave; he
suggested that it would be better if there was a very clear provision
in the Bill in this respect. Certainly, he was strongly of the view
that there need to be very clear safeguards in
place.
On
that basis, it is not my intention to seek a Division on amendments
Nos. 18 or 24. However, I wish to press amendment No. 16 and, in due
course, amendment No.
23.
Amendment
agreed
to.
The
Chairman:
With this, it will be convenient to discuss
amendment No. 25, in
clause 25, page 18, line 1, leave
out subsections (5) and
(6).
Mr.
Heath:
Thank you, Mr. Bercow. I think that we
can now rapidly complete our consideration of this issue of post-charge
questioning.
Amendment No.
19, which I move in my name and that of my hon. Friend the Member for
Carshalton and Wallington, deals with adverse inference. The Minister
knows that we are uncomfortable—I put it no more strongly than
that—with the principle of drawing adverse inference from
silence and the qualification that that gives to the right of silence.
Having said that, I am not deaf to the advice that we received in
evidence that this principle was a key part of the utility of
post-charge questioning.
I do not
intend to press these amendments to a vote in the Committee today.
However, where adverse inference is drawn in court proceedings from
silence on matters raised in post-charge questioning, the specific
circumstances of post-charge questioning in which that person remains
silent—we have all accepted that those circumstances are
different from those of normal questioning—should be drawn to
the attention of the court. As everybody who gave evidence said, the
defendant will almost certainly have been advised by their lawyer to
say absolutely nothing in response to post-charge questioning, even if
that advice is not always taken. However, the amendment does not say
that those circumstances should be brought to the attention of the
court; it would delete the provisions concerned, and that is why I
shall not press it.
10.15
am
Will
the Minister respond to the proposal that rules of court and advice to
judges trying a case should suggest that the matter be brought to the
court’s attention so that the jury is aware that, although it is
in order to draw an adverse inference from the silence, it should be
qualified by the circumstances of post-charge questioning, in which
someone was in a police cell and had been charged? That is a
complicated way of saying something that might or might not have value
in court proceedings, but it is a strong suggestion from those with
better legal training than I have, which is none. It was made to the
Joint Committee on Human Rights in written evidence, and it seems to be
an appropriate suggestion for the Minister to respond
to.
Mr.
Grieve:
I am not unsympathetic to the anxieties expressed
by the hon. Member for Somerton and Frome, and there is a long history
of arguing about whether we should be entitled to draw adverse
inference from silence. At one time, under our legal principles, that
was
prohibited.
My
experience in the days before adverse inference could be drawn was that
in certain cases juries had no difficulty drawing adverse inference
from silence, notwithstanding the fact that they were told specifically
by the judge that they should not do so. Equally, my impression in so
far as I have the seen the working of the adverse inference system
operating since—I have done so on a number of
occasions—is that it does not
seem to have made much difference the other way either. If the jury
believes that there is a good reason why someone might have decided to
remain silent, whatever adverse inference is suggested, it does not
make it. If, on the other hand, it cannot think of a reason why someone
did not say something at an earlier stage that they now put forward in
court, for example, it draws its own
conclusions.
For
those reasons, although I would be prepared to engage in a debate as to
whether we should restore the right to silence generally, I am not sure
that any special safeguard is required in this context. It seems to me
that post-charge questioning is post-charge questioning. It clearly
falls into a slightly different category, and counsel representing a
defendant would have no difficulty in pointing out that such matters
were put to the defendant at a later stage. Defendants can, as the hon.
Gentleman is aware, say that their legal advisers told them to say
nothing, and the jury can make of that exactly what it will. A special
protection is not required, as we agreed a long time ago, under a
previous Conservative Government, the principle of changing it. I had
some reservations at the time, but as so often happens with changes
that are introduced to try to make the criminal justice system more
efficient, they turn out not to make much difference.
Another
classic example is that of letting in previous convictions, which the
hon. and learned Member for Medway (Mr. Marshall-Andrews)
touched on so well. It was suggested that that would be a short cut to
convicting defendants, but it seems to have led to longer trials,
because everyone’s character is now thrown in left, right and
centre during the trial process, which previously did not
happen.
Mr.
Hogg:
I support very much what my hon. and learned Friend
said. In 1994, I had some doubts about whether it was desirable to
abrogate the right-of-silence rule. Such doubts were misplaced on the
whole because, first, I do not think that there was much damage.
Secondly, I think that my hon. and learned Friend was right when he
said that juries, in proper cases, did draw an adverse inference,
whatever the law might strictly have been at the time. It is extremely
difficult to make a distinction in principle between silence in
pre-charge questioning and silence in post-charge questioning. I do not
see how the distinction of principle can be sustained. In any event, it
is open to the defence counsel to make such points as he or she might
deem
desirable.
In
answer to the point made by the hon. Member for Somerton and Frome,
that the detained person is likely to answer no questions, I would
rather doubt that. Nor would that be the advice that I would give to a
detained person. My advice would be, first, to try and ensure that
there is full disclosure from the police—that is sometimes
pretty difficult. Once the detained person has some disclosure, they
should make a written statement. If the detained person asserts his or
her innocence, the sensible detained person would say in their written
statement, “I have limited disclosure from the police as to the
facts on which they rely. I now, however, wish to assert my
innocence.” Then they would make a few robust statements, and
sit down—which is what I propose to do
now.
Mr.
McNulty:
First, may I apologise to the right hon. and
learned Member for Sleaford and North Hykeham, for truncating the name
of his constituency to Sleakeham?
The substance
of the amendment has been adequately dismissed by the hon. Member for
Somerton and Frome. However, it seems to me that one can only make a
negative inference from post-charge questioning if the existence of the
post-charge questioning is recognised by the court. If there is any
doubt, as has been said, the circumstances of the questioning would be
made very clear, very rapidly, to the courts. There may well be some
larger debate about whether to restore the right to silence, with no
inference from that more broadly, but that is not a matter for this
part of the Bill. Nor is the introduction of a more explicit provision
for post-charge questioning appropriate. Although it is not the intent
of the hon. Member for Somerton and Frome, whatever value we might get
from post-charge questioning might be negated. I have seen—not
as a lawyer, but more generally—videos that show the manner in
which the silence is carried through by individuals. Whatever the
provisions, the jury will make their minds up one way or the
other.
I
do not think, therefore, that the amendments are useful, and I ask that
they be withdrawn. I look forward to the wider debate on the right to
silence in the English and Welsh criminal justice system at some other
stage—but not
now.
Mr.
Heath:
The Minister says not now, but that is something
that we ought to discuss at some stage. I listened to the hon. and
learned Member for Beaconsfield and to the right hon. and learned
Member for Sleaford and North Hykeham, whose constituency, in my
experience
in Committee, causes as much problem as my own, inexplicably in my
view—Somerset and Frome is a perfectly easy thing to say, but no
one can say
it.
I
am grateful for the opportunity of raising the issue. I listened to the
sapient advice of my colleagues on the Committee, and I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
23, as amended, ordered to stand part of the
Bill.
Clause
24 ordered to stand part of the
Bill.
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