Examination of Witnesses (Questions 460-479)
SIR ALASDAIR
FRASER AND
MR JAMES
SCHOLES
13 MAY 2008
Q460 Chairman: Good afternoon, it is
nice to see you. Sir Alasdair, could I welcome you and Mr Scholes.
Thank you both very much indeed for coming. We are particularly
delighted to see you, Sir Alasdair. You have met the Committee
before.
Sir Alasdair Fraser: Yes.
Q461 Chairman: We appreciate your
coming to give evidence in this inquiry. We will have roughly
half an hour of evidence which is public, on the record, and then
we will have a brief session in private, which I understand you
have willingly agreed to, with you and your colleague. Thank you
very much indeed. First of all, is there anything you want to
put on the record before we ask any questions?
Sir Alasdair Fraser: I am very
happy to be here with my colleague and I hope that we can be of
some assistance to you.
Q462 Chairman: I am sure you can,
and we are very grateful. What do you see at the moment, Sir Alasdair,
as being the key challenges facing the Public Prosecution Service?
Sir Alasdair Fraser: We are at
quite an unusual stage. As a service we have finally rolled out
and have taken responsibility for all of the work which PSNI was
doing, therefore we are providing our services across Northern
Ireland. I think the challenge is to raise our profile in the
community. We are a regionally based organisation which historically
was somewhat shy with a very low public profile, but I think that
is a challenge that we will have to meet and we will have to be
seen to be more responsive in the community.
Q463 Chairman: Thank you very much
indeed. Moving towards our own specific concerns at the moment,
what has been the extent of your involvement with HET?
Sir Alasdair Fraser: We have been
involved with them since 2005 when we had to make a business case
for additional staff. We were successful in that application and
we have access to about £1.8 million of the ring-fenced budget
and have employed a number of senior lawyers to take this work
forward. However, it has been slow. We have had one case referred
for a decision, which has been taken. We have been asked on eight
occasions for advice, which we have given, but, apart from that,
we have had little contact with them. Of course, for historical
reasons our own records are of a very high standard and we have
been able to assist them in rebuilding cases that are 30-35 years
old and to explain to them upon what basis the decisions that
were taken then were reached. In a somewhat unusual manner, we
still have people in the office who took those decisions despite
the passage of time, including James and myself, so we can give
them a pretty informed view as to what has taken place.
Q464 Chairman: Do you find that they
are co-operative and receptive? Is the relationship a thoroughly
constructive and amicable one?
Sir Alasdair Fraser: I think they
are very well led by Mr Cox and Mr James. I had the advantage
of working very closely with them when they were dealing on behalf
of Lord Stevens, so I have known them both for ten years.
Chairman: We would certainly concur with
your remarks, having recently visited and met Mr Cox and his colleagues
and associates. Can I bring in my colleague, Mr Murphy.
Q465 Mr Murphy: Thank you, Sir Patrick.
Sir Alasdair, we had the opportunity the last time we visited
here some months ago to meet with and discuss the work of the
Historical Enquiries Team. We understand from speaking to them
that to date there has been only one case referred to you from
them. First of all, would you by now have expected more cases
to have been referred? Do you feel as they move on to more recent
cases that you will get more referrals?
Sir Alasdair Fraser: I think you
have put your finger on it. I am not surprised that, given the
period they are examining, they have found it difficult to secure
evidence. In most of the cases we have considered what evidence
was put before us and have come to a view and it has proved difficult
for them to gather fresh evidence. I understand there are about
1,000 cases open, of which 500 have been completed. I think when
we move from the 1970s into the 1980s then perhaps there will
be an increase in the rate at which cases are referred to us.
Although only one has been sent to us, it is not a criticism of
their professionalism.
Q466 Mr Murphy: I must say that we
were very impressed with the people we met there and with the
work they were doing. I understand that your organisation has
been allocated £488,000 as a contribution to the work you
will need to do on that. Do you consider that to be adequate?
Sir Alasdair Fraser: At the moment
we have a ring-fenced budget of £1.8 million covering 2005-10.
We have spent £322,000 of that. I am informed that they anticipate
that they will be sending cases to us, not in the immediate future
but in the middle term. At the moment I cannot but say that we
are sufficiently funded.
Chairman: That is reassuring. That is
very good. Lady Hermon.
Q467 Lady Hermon: Thank you, Sir
Patrick. It is delightful to see you here this afternoon, Sir
Alasdair. I wonder if we could look at an issue that I know has
certainly concerned the present Chief Constable and it does concern
the Committee as well, and that is how one protects intelligence
and how one protects human sources. The Chief Constable has actually
indicated to the Committee that he and the police now find there
are difficulties in bringing cases to the court with the human
rights implications, obviously the right to life, and there is
a risk of compromising sources. Presumably you are aware of this.
How does the Prosecution Service deal with this?
Sir Alasdair Fraser: There is
a very clear pathway that we have to follow. The Chief Constable
is, of course, right in saying that meeting one's duties can affect
whether or not a person is to be prosecuted. As you know, there
is a duty on the prosecution to disclose evidence, material, information
which will assist the defendant in the conduct of his defence
or will undermine the prosecution's case. We, as prosecutors,
have to have an arrangement with police to ensure that we are
briefed with that information and we have to have arrangements
with the Security and Intelligence Services. Then we are under
a duty to examine that material. In the case of a trial without
a jury then we move to a disclosure judge for a ruling. If we
think the material ought to be disclosed, we either disclose it
or stop the case. If we think there is an argument which a judge
could properly determine that we do not disclose the material
and a fair trial can be obtained for the defendant then we move
to a disclosure judge. In the circumstances that you described,
it inevitably will be an ex parte application with or without
notice to the defence. If the judge says, "Well, I do not
think you need disclose" then we, as prosecutors, are under
a continuing duty during a trial to act as a minister for justice
and if an issue arises during the trial which we consider may
affect a defendant then we must go back to the disclosure judge
and inform him of what has taken place and seek a further ruling.
You have quite a sophisticated, complex mechanism. The disclosure
judge is not the trier of fact and has the disadvantage, of course,
that he is not in the arena of the trial.
Q468 Lady Hermon: Could I just ask
you to give some indication of how influential the human rights
legislation has been and, as I say, the right to life. Have cases
actually been dropped? Perhaps you could give us some examples.
The one that does come to mind is where the reference to right
of life and protection of that person's life might well have indicated
that, in fact, he was an intelligence source.
Sir Alasdair Fraser: The police,
the Prosecution Service and the courts are subject to the European
Convention on Human Rights, now the Human Rights Act. Clearly
circumstances have arisen where one would be mindful of one's
duties under Article 2, and that has occurred. As a prosecutor
you either can find a way, perhaps with the disclosure judge,
to continue a prosecution fairly or, if that cannot be achieved,
then you stop.
Q469 Lady Hermon: Are you duty bound
as the Director to refer to the Attorney General for a decision
like that, Sir Alasdair, or is that a decision that, in fact,
remains here in Northern Ireland with you?
Sir Alasdair Fraser: The Attorney,
of course, would be receptive to any approach which I would make
and if I asked her for advice she would give it, but as Director
I am responsible for the conduct of prosecutions and the Attorney
would look to me to meet my duties.
Q470 Lady Hermon: Yes. That has been
very helpful so far. Do you think that, in fact, the legislation
in Northern Ireland is adequate for the protection of witnesses
who may find themselves under intimidation or in fear for their
lives or, indeed, their families in fear for their lives? Is the
protection adequate at the present or could more be done for witnesses?
Sir Alasdair Fraser: I think you
will find that there are a number of cases decided in the Appellate
Court, particularly in the House of Lords, which permit witnesses
to be protected, for example by screening, by anonymity and the
like. In addition to that, there is legislation which permits
a witness to give evidence by video link rather than be present
in court. There is a range of measures which will protect an individual,
but we live in a small community.
Q471 Lady Hermon: Precisely.
Sir Alasdair Fraser: When we live
in a community of this size it is very difficult for police to
protect an individual, if that be necessary.
Q472 Lady Hermon: Could I sum that
up by saying they are good as far as they go but not entirely
adequate. Would that be fair?
Sir Alasdair Fraser: What I would
say is I think they are reasonable and proportionate and I cannot
identify additional means that I would favour.
Lady Hermon: Gosh, that is very interesting.
Q473 Chairman: So you have no recommendations
that you would like this Committee to make in that regard?
Sir Alasdair Fraser: Not in regard
to anonymity, screening or special measures. I think both Parliament
and the courts have addressed those issues in a very thorough
way.
Chairman: That is very clear, thank you
very much indeed. Obviously we will be much influenced by those
comments when we come to draft our report. Thank you very much.
Lady Hermon: Thank you so much.
Chairman: Could I move on, please, to
Mr Hepburn.
Q474 Mr Hepburn: Thank you. Just
some questions on the relationship between yourselves and the
police. How is the protocol working that you had jointly drawn
up?
Sir Alasdair Fraser: It has worked
well. We have a very good, professional relationship with the
police. The problems that we faced, perhaps, in the 1990s are
no longer there. We have very effective arrangements in relation
to the disclosure of sensitive information. We have sophisticated
reporting arrangements which, because of Causeway, are by and
large electronic and very advanced. We are involved from time
to time in police training, as they are with us. It is a very
productive and professional relationship where each of us recognises
and respects our different roles and our independence.
Q475 Mr Hepburn: At what stage would
you expect to be called in to give advice to the police in a criminal
investigation?
Sir Alasdair Fraser: Since the
2002 Justice Act we are under a statutory duty to provide advice.
Increasingly, the police are coming to us earlier and earlier
in the course of an investigation and, on occasions, before anyone
is arrested. We encourage that. We encourage them preparing papers
for that consultation. We ask that colleagues formalise the advice
in a written manner and I hope that is of assistance to police
and is moving in the right direction in the particular sense that
if there is a problem, a problem, for example, about perhaps the
presence of intelligence, that problem should be identified as
soon as possible by the two agencies.
Q476 Mr Hepburn: You say with the
protocol there is a very professional relationship between yourselves
and the police, but just generally in those relationships with
the police are there any tensions, Sir Alasdair, any frictions?
Sir Alasdair Fraser: It would
be foolish to say there were not. There are no tensions or frictions
at my level and Mr Scholes' level. What I see is an invigorated
Police Service, young, at times inexperienced, committed, and
impressive, and it will improve with time, as my own service will
do so.
Q477 Chairman: Sir Alasdair, one
of the things that Sir Hugh has expressed concern about, and indeed
one of the reasons why we are conducting our present inquiry,
is that he feels there is increasingly perhaps an imbalance between
his responsibilities for the day-to-day policing of Northern Ireland,
which is his supreme duty, and dealing with the historic past.
Coming from where you are coming from, do you have any comments
on that?
Sir Alasdair Fraser: The starting
point is one of sympathy and perhaps a recognition of similar
pressures and concerns within my own service. I think the Chief
Constable is principally concerned about the haemorrhaging from
the past into the present and one can fully understand that, but
the past must be addressed by the responsible agencies in a thorough
and professional way.
Q478 Chairman: Do you think that
in respect of its recent past Northern Ireland should have its
own statute of limitations?
Sir Alasdair Fraser: It is certainly
a possibility and is not a unique instrument, it is relatively
common in common law jurisdictions.
Q479 Chairman: Yes, that is why I
ask the question. Would you favour it?
Sir Alasdair Fraser: I am happy
to say, Chairman, if Parliament considered it appropriate I would
be quite content, but I do not think as Director I should be contending
for it as such.
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