Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 560 - 579)



  Q560  Mr Winnick: But of the large number who have been released without charge?

  Sir Ken Macdonald: In which period?

  Q561  Mr Winnick: Well, in the last two to three years?

  Sir Ken Macdonald: Perhaps I could just check with Ms Hemming. We do not believe that anyone who has been released without charge who has been arrested for a terrorist offence has ever subsequently been charged with the offence in respect of which they were released. We do not believe so, but we cannot be absolutely sure.

  Q562  Chairman: Would you check and write to us, if that is not the case?

  Sir Ken Macdonald: I think we can certainly interrogate our computer system, but I am not sure that all terrorism offences are flagged. If I can just say what the problem is, many people who are charged as being terrorists, if you like, are not charged with terrorism offences, but they can be charged with conspiracy to cause explosions, with conspiracy to murder, so it might be quite difficult for us to do that piece of research exhaustively, but we can certainly go back to the Counter-Terrorism Division and ask people to rack their brains and come up with any examples they can recall of people who have been released and subsequently charged. My strong feeling is that, if it had happened, we would remember it because it would be a fairly startling thing.

  Q563  Mr Winnick: We could save you a lot of trouble, Sir Ken, by putting it down, if necessary, in a parliamentary question.

  Sir Ken Macdonald: We will do our best to remember.

  Chairman: That would be very helpful, thank you.

  Q564  Mr Winnick: Sir Ken, what I found extremely interesting and informative in the evidence which you gave was the earlier remark you made about reasonable suspicion. Now, the fact that someone has been released after being held, released from detention, and not charged and, say, that person has been held, as in some cases has been the position, for 15, 20 or 22 days and no charge has been made regarding reasonable suspicion, would that not indicate that, having been investigated, really there was no evidence to support any charge?

  Sir Ken Macdonald: Well, it certainly would indicate there was no evidence to support a charge, otherwise the charge would be made, but people are arrested for different reasons. Some people are arrested as a result of intelligence material which cannot be deployed in criminal courts and possibly it might be intercept material, it might be informant material, it might purely be intelligence material, so sometimes people are arrested on suspicion on the basis of material which cannot be deployed in court. After they are arrested on suspicion on that basis, an attempt is made to see if there is any evidence which can be deployed in court and sometimes when that fails, in spite of suspicions which are not evidence-based, they might have to be released.

  Q565  Mr Winnick: Can I put it to you as a layman, Sir Ken, that, if someone is being held within the 28-day period and the argument of the police and the Government is that 28 days is not sufficient because of all the reasons that you are familiar with which the Government and the police have advanced, having been held for a lengthy period of time, up to 28 days, and there is a pretty strong feeling and more amongst the police that this person should be charged, but the evidence is not there at the moment, are you telling us that a charge of reasonable suspicion can be made?

  Sir Ken Macdonald: And has been.

  Q566  Mr Winnick: Has been made?

  Sir Ken Macdonald: What the test says is that the threshold test is applied to those cases in which it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the full code test, which is the realistic prospect of conviction, is not yet available. The threshold test requires Crown prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence. In those circumstances, he can be charged, but the prosecutor has to consider the likelihood of further evidence being obtained, the time it would take to gather the further evidence and the charges that that further evidence is likely to support. If the further evidence is not forthcoming and the full code test cannot be passed, then the prisoner will have to be released. Our experience has been that in every case where a terrorist suspect has been charged on the threshold test, the evidence to justify the full test being passed has arrived, the full test has been applied and the matter has proceeded to trial.

  Q567  Mr Winnick: Does that not tend to undermine the case for extending the 28 days? The very fact that there are these provisions and the likelihood, and the police are pretty strongly of the view, that evidence will be forthcoming, they cannot be certain obviously, but there is this provision which you have just explained again to the Committee, does that not rather undermine the view that 28 days is totally inadequate and we need more to protect our country?

  Sir Ken Macdonald: First of all, it is not the police view which counts at this time, it is the prosecutor's view because it is the prosecutor who makes the charging decision, and whether it undermines the case is really a matter for your judgment rather than mine. I do repeat, there are respectable arguments for an extension and I respect those arguments. Our experience has been that 28 days has suited us quite nicely.

  Q568  Margaret Moran: Obviously you have to deal within the rules as currently laid down. One of the issues that you raised, and I just want to clarify really, is that obviously the current legislation does not allow intercept evidence.

  Sir Ken Macdonald: Yes.

  Q569  Margaret Moran: Can I ask you to speculate on whether, if you were able to use intercept evidence, that would change your view as to whether you would need beyond 28 days?

  Sir Ken Macdonald: I do not think so. I think the likelihood is that, if we had intercept evidence, it would be quite a powerful tool and might lead to charging decisions occurring more swiftly rather than taking longer because obviously the material would be available to you from the moment of arrest because people are listening to it. The experience in other jurisdictions, it seems to us, has been that intercept evidence is an extremely valuable tool in criminal investigation and in criminal prosecution. The Americans regard it as indispensable, the Australians regard it as indispensable, everyone who uses it regards it as indispensable and we think it would swiftly become very useful in our jurisdiction and would probably, in our estimate, result in us being able to charge people more quickly, not less quickly.

  Q570  Chairman: Have you actually briefed the Home Secretary on your views? Has she sought your views on the extension?

  Sir Ken Macdonald: We have had communications with the Home Office, but not with her.

  Q571  Chairman: Have you met the Home Secretary herself and spoken to her about this?

  Sir Ken Macdonald: No.

  Q572  Chairman: Have you met the Prime Minister and spoken to the Prime Minister?

  Sir Ken Macdonald: No.

  Q573  Chairman: Have you met the Metropolitan Police Commissioner and spoken to him about this?

  Sir Ken Macdonald: Well, I know that Ms Hemming has conversations with—

  Q574  Chairman: But have you met Sir Ian?

  Sir Ken Macdonald: No.

  Q575  Chairman: So you have not met the Home Secretary, the Prime Minister or the Metropolitan Police Commissioner?

  Sir Ken Macdonald: No.

  Q576  Chairman: Is that surprising?

  Sir Ken Macdonald: I do not think so.

  Q577  Mrs Cryer: Sir Ken, could you comment on the implications of the proposal to allow suspects to be questioned in terror cases after charge? Further on from that, does the CPS foresee any difficulties at all if someone charged with a lesser offence was then held for questioning on a more serious offence, but subsequently not charged with that offence?

  Sir Ken Macdonald: Well, we strongly, and I strongly, support a power for the police to question individuals after charge. Of course they can do that anyway, so long as the individual consents, but what we want is a power to question individuals after charge in the associated context that, if the individual declines, an inference can be drawn against that individual by a subsequent jury. At present, if you decline to answer questions about a charge after you have been charged, the jury cannot draw any inferences, so we think that the same rule should apply to questions after charge as applies to questions before charge. It is quite important that there are not any misconceptions about this. It is always open to the police, if they charge someone, to go and question someone about a completely different offence that comes to light. What this power will allow the police to do is to question somebody about the very case that they have been charged with and for an inference to be drawn against that individual if they decline to answer, and I strongly support that reform; I think it would be very useful. Can I explain why? As we have established during this session, these are complex investigations in which evidence comes to light over a period of days, weeks and months. It seems to us obviously right that if important evidence against an individual comes to light after he has been charged, the police should have an opportunity to put that evidence to the individual to get his response to it, and if he refuses to give a response the jury should be entitled to draw an adverse inference against him for refusing to respond.

  Q578  Chairman: Do you think there is a consensus emerging about post-charge questioning?

  Sir Ken Macdonald: I think very few people oppose this, Chairman. I have personally supported it for years. I supported it when I was at the Bar; I always thought this rule was a bit Victorian in nature.

  Q579  Chairman: The worry for some is that it might be used in counter-terrorism cases but then it might be extended to the general criminal law and, therefore, what becomes a specific then becomes a general.

  Sir Ken Macdonald: I do not see why it should not be. I would support it being a general rule in our system, that it should be possible to question individuals after charge. Of course they have a lawyer present and of course they have the right to remain silent, but if they remain silent let the jury know about that and draw an adverse inference if the jury think it is right to do so.

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