Examination of Witness (Question Numbers
140-159)
SIR KEN
MACDONALD QC
10 NOVEMBER 2009
Q140 Chairman: Sir Ken, welcome back
to the Select Committee. Thank you very much for coming to give
evidence to this inquiry into counter-terrorism that we are currently
conducting. We have been told that interception is most used as
a tool for gathering information rather than evidence. Do you
think that is correct?
Sir Ken Macdonald: No. I think
it is fundamentally incorrect.
Q141 Chairman: Why?
Sir Ken Macdonald: In 2004 I was
asked by Lord Goldsmith, who was then the Attorney General, to
conduct an investigation in a number of jurisdictions which used
intercept evidence. I travelled on that occasion to the United
States and then to Australia and on other occasions to Canada.
In the United States I met with the National Security Agency,
the Drugs Enforcement Agency and a number of other representatives
of agencies involved in law enforcement. Their experience of intercept
is that it is an absolutely critical forensic tool in criminal
trials. As they informed the Chilcot Review, and as is repeated
in the report, they regard it as quite invaluable. The Australians
and Canadians take the same view. I am not sure what it is about
British criminals which means that if we are here and intercept
their conversations, somehow this material will be of less use
to us than the recording of American, Australian or Canadian criminals
prove to be in those jurisdiction. I think it is a lack of imagination
that fuels the view which you have cited, Chairman. If we had
intercept available as an evidential tool and if we were directing
intercept capability towards the gathering of evidence, I am absolutely
confident that our experience would mirror the experience of other
jurisdictions where it is used very frequently to great effect,
and results in the saving of considerable expense because more
expensive investigative tools, such as, for example, surveillance,
are not required.
Chairman: Mrs Dean will want to explore
further with you the practice in other countries.
Q142 Mrs Dean: As you have said intercept
evidence is acceptable in other countries. Do you know why the
UK does not allow prosecutors this option?
Sir Ken Macdonald: It never has.
The UK and Ireland are the only countries I am aware of that forbid
this practice. There are numerous cultural reasons why we do not.
There are numerous other reasons that I do not want to go into
if you do not mind. It is largely a cultural response on our part.
We have never allowed it. The NSA in the United States said to
me, frankly, that if they had no intercept regime there, they
would probably oppose it too—because what organisation involved
in that sort of work wants to be involved in criminal trials?
But having had it instituted there, it works perfectly well for
them. It is largely a cultural response. It is a powerful cultural
response. There is serious concern within the agencies in particular
that the use of intercept as an evidential tool would result in
significant bureaucratic burdens upon them in terms of having
to retain material and examine material for potential exculpatory
effect and so on. One of their concerns is that they would have
to divert some resource from frontline spying, if you like, into
backroom retention and consideration of material. And that is
true. It is really for us to decide whether we think that extra
investment in this area is worth it. I am sure it is. One of the
primary effects of intercept evidence in prior jurisdictions is
to drive an increase in the guilty plea rate so that we have less
contested trials. Contested trials in serious cases consume an
enormous amount of public resource. The costs—and I gave
this in evidence to the Chilcot Committee—would more or
less balance themselves out. There would be some upfront costs
of course. That is not a terribly precise answer but I do not
think there is a single precise answer to your question.
Q143 Patrick Mercer: Is it instructive
that the two jurisdictions you have mentioned who are reluctant
about this are Southern Ireland and the UK—in other words,
Northern Ireland. Is this a legacy of the intercept difficulties
that we had with principally Republican terrorism?
Sir Ken Macdonald: That may certainly
feed into it. It is also true that our intelligence agencies have
played a role in intelligence gathering for law enforcement, and
so there has been a relationship between our agencies and law
enforcement has not historically existed in other jurisdictions
and they are concerned about that being disruptive. I am sure,
as you will be aware more than most, the Irish experience has
had many legacies for us and that may well be one of them.
Q144 Patrick Mercer: What benefits
would admitting intercept material have in court?
Sir Ken Macdonald: It increases
the guilty plea rate. It has the potential to make trials swifter
because the evidence is so compelling. I am sure it would develop
the conviction rate. The conviction rate is already high in serious
criminal cases but we have a very high contested trial rate in
our jurisdiction and lowering the contested trial rate is a significant
prize here.
Q145 Patrick Mercer: My memory goes
back at least 20 years on the use of intercept material. We have
constantly been struggling with this matter. Why is it taking
so long to reach a conclusion?
Sir Ken Macdonald: There were
three separate reviews while I was DPP, and they always started
with a firm indication from the Prime Minister or the Government
that they wanted to do this. During the course of the review problems
were always thrown up. I have said before, Mr Mercer—and
I am not casting aspersions on anyone here—that if you want
to achieve a change as fundamental as this, it is absolutely essential
that all parties come to the discussions and the negotiations
willing them to succeed. I am not sure we have been in that territory.
Q146 Chairman: I know you are not
casting aspersions on anyone in this room, quite rightly, but
who do you think is holding it up?
Sir Ken Macdonald: I have already
said the agencies have significant perfectly plausible concerns.
Q147 Chairman: When you say the agencies,
do you mean the security services?
Sir Ken Macdonald: Yes. They have
entirely plausible and understandable concerns.
Q148 Chairman: Is it the security
services that have stopped this happening?
Sir Ken Macdonald: I do not want
to put it that crudely. It is much more complex than that. There
is a feeling that this is a reform that would be burdensome and
might impact on the relationship between the agencies and law
enforcement in a way which is unattractive. I understand those
concerns. I am not in any sense suggesting that they are real
and sincerely held concerns. We need to approach this problem
in problem-solving mode, if I might put it that way, rather than
intent to throw up difficulties the whole time.
Q149 Chairman: When you were told
of these concerns, did you try to persuade either the Government—which
would be the Attorney General—or indeed the security services
that they were wrong?
Sir Ken Macdonald: Of course.
Lord Goldsmith was the Attorney General during the time that this
was relevant. To me as the DPP he was well known as a strong supporter
of this reform. I did not need to persuade him.
Q150 Mr Winnick: The view has sometimes
been expressed that those who are not very keen on anti-terrorism
measures of a certain kind—and it is not my view, but nevertheless
it is a view that is held—use interception evidence as a
sort of panacea: that we need not do this or do that in combating
terrorism but interception would provide the answer.
Sir Ken Macdonald: No, there is
no such thing as a panacea in this area. The field is much too
complex. I hate to slip into this sort of managerial jargon, but
we need a toolbox that has a variety of tools in it and intercept,
it seems to me, is a crucial tool. On its own, it will not achieve
what it is capable of achieving if it is placed within the right
environment. We need a much more developed system of co-operating
witnesses in serious crime, we need to develop concepts of plea
bargaining, we need to move into a territory which encourages
minor players in a conspiracy who have been intercepted to co-operate
with state prosecutions on the basis of their interception evidence
in exchange for lower sentences. We need a whole suite of measures,
it seems to me, to crack our high contested trial rate. Intercept
is a vital part of that but it is not a panacea on its own.
Q151 Mr Winnick: You would not overestimate
interception evidence as being the cure-all for dealing with the
obvious dangers that this country faces.
Sir Ken Macdonald: No. Nothing
on its own is a cure-all. Along with another suite of powers,
in the right criminal justice environment—as the Americans
have found, as the Australians have found and as the Canadians
have found—it becomes critically important and critically
useful.
Q152 Mr Winnick: The Chilcot Review
said that: "The limited evidence available suggests that
there would be a modest increase in successful prosecutions, at
different levels of seriousness, as a result of the use of intercept
as evidence." Clearly as far as they see it, there will be
more successful prosecutions but on a pretty modest level.
Sir Ken Macdonald: As my opening
remarks indicated, I challenge that. I do not think it is the
experience overseas. The problem is that we are trying to look
at cases that we prosecute at the moment without intercept. Look
at the numbers of cases in that category that contain intelligence
intercept and then ask yourselves in how many of those cases could
that intelligence intercept be converted to evidentiary intercept.
The point is that if you have intercept as an evidentiary tool,
you start to use it, and you start to target people with that
tool. Inevitably, it seems to me, the use of intercept evidence
increases. It is very well known in the United States that the
bulk of their serious crime cases proceed on the basis of intercept.
I am quite confident if we had it as a tool in our jurisdiction
it would be used more and more frequently. I have huge respect
obviously for the Chilcot team and for the work they did, but
on that conclusion I have to say I take issue. It is not my experience
of what is happening overseas. If you look at what overseas agencies
told the Chilcot Review, it does not seem to gel with their own
view about what is happening in their countries.
Q153 Mr Streeter: Sir Ken, turning
to control orders, you have apparently said that they are a "small
gasp of defeat" and a "hopeless device in the modern
democracy"—from which I discern that you are not really
in favour of them. Could you expand on how you think they fit
into the system and why you do not like them?
Sir Ken Macdonald: We need to
acknowledge when we are discussing this—as I usually do
when I discuss it—that the Government faces a genuine dilemma.
When it is confronted with people it feels are a threat to security
but it cannot prosecute them because it does not have enough evidence
and it cannot deport them because of Article 3 of the European
Convention (which prevents us from deporting people to countries
where they might face mistreatment), what is it to do? My answer—and
this may be a counsel of perfection, but I am afraid sometimes
due process requires counsels of perfection—that you have
to develop investigative tools to try to acquire evidence that
can be deployed in a due process environment—as I say, in
a court of law in a trial—against individuals, if you want
to interfere with their rights and take away their liberty in
any way. No other jurisdiction that I am aware of has thought
it necessary to go down the control order route. The Americans
do not, the Canadians do not, certainly no other common law country
does. I think we made a mistake in doing so. The reality of the
control order regime as it exists at the moment is that it does
not work. A number of these men disappear. The others are confined
to their homes to a greater or lesser extent. I am quite sure
that the degree of surveillance that is required to ensure they
stay that way is pretty immense. Intercept is something which
could have a role to play in this area. But not just intercept:
other investigative techniques, trying to turn witnesses, trying
to obtain co-operating statements and so on and so forth. Sometimes,
if you are going to be loyal to a constitutional due process system,
you have to accept that that comes with an element of risk; otherwise
we would lock up people without trial on suspicion in a wholesale
fashion. We do not do that because we recognise that there is
a trade-off here between risk and constitutionality. I do not
like control orders. I do not think they have worked. I think,
frankly, they have brought our system of government into disrepute.
Mr Streeter: Thank you for that
excellent answer.
Q154 Chairman: Presumably you said
all this when you were DPP. You are not just saying it now because
you are the ex-DPP. You said this to the Attorney General and
to the Home Secretary.
Sir Ken Macdonald: When I was
DPP, I spoke publicly about issues which impacted upon prosecutors
where I thought it was necessary—often when you asked me
the question, Mr Vaz. You asked me the question about 42 days
and that was the first time I made my views plain. When issues
did not concern prosecutors, I did not address them. Control orders
are not a criminal justice issue. It is a part of the civil jurisdiction.
I do not think anyone would have been under any illusion about
what my views would be likely to be about control orders, but
whenever I was asked about them, and I think I was asked about
them in this Committee, I said that they were not an issue for
the DPP.
Q155 David Davies: Britain is the
only country with common law which has accepted the Human Rights
Act which incorporates Article 3. When you compared us just now
to other countries, it is not quite a straightforward comparison,
is it?
Sir Ken Macdonald: I take your
point, Mr Davies. The United States would certainly have difficulties
deporting individuals to countries where they would be likely
to suffer, in the American Constitutional term, "cruel or
unusual punishment". I think there is a similar provision
in the Canadian Charter. I am not sure about Australia.
Q156 David Davies: One has the feeling
that the Americans would not have allowed such people in in the
first place.
Sir Ken Macdonald: That is a different
point. You are quite right, they may have taken them to Guantanamo
Bay which was an institution precisely designed to—
Q157 David Davies: Or turned them
back at the airport.
Sir Ken Macdonald: Yes. It was
an institution which was precisely designed to be outside the
embrace of the US Constitution. I think they made a mistake. I
think they should have had more confidence in their Constitution
to protect them as well as to guarantee their rights. That is
my position on that. But you make a valid point, which is that
Article 3 of the European Convention prohibits us from doing that.
My own view is that the British state should not deport people
to countries where they might suffer torture or mistreatment.
I think that is an uncivilised thing to do.
Q158 Patrick Mercer: There are two
other devices we ought to look at on which I would be interested
to hear your views: questioning after charge and plea bargaining.
Sir Ken Macdonald: I have always
supported questioning after charge. When I was a defence barrister
at the Bar I could see no difficulty with it. It is one of the
rules that developed a long time ago when people in custody were
virtually unprotected. If you have questioning after charge of
a prisoner who is legally advised, who has all of the protections
which our constitution now offers prisoners, I see no difficulty
in it. There is a significant advantage to the prosecution—and
this is a fair advantage—that if we put questions to a defendant,
a prisoner, which he refuses to answer, we can, with the judge's
consent, invite the jury to draw an adverse inference from his
failure to answer those questions. If we discover evidence against
a man after he has been charged, under the current rules we cannot
put that to him to gain the inference if he refuses to answer.
I think that is unfair to the prosecution. I fully support questioning
after charge with appropriate safeguards. A man should be represented.
He should not be dragged from his cell. If he does not want to
come from his cell to be questioned, he should not, but if he
declines to be questioned, the prosecution should be entitled
to an adverse inference if the jury think it is right to draw
one. I support plea bargaining. I know it is a sensitive area,
but I have always supported plea bargaining.
Q159 Ms Buck: Lord West told us—it
is no secret—that he would much rather not have control
orders, but you have set out very clearly that it is a dilemma
and a very fine balancing act that governments have to deal with.
You have also explained to us a number of approaches that you
think might be effective in that context to allow us to go down
a different path. Why do you think that the Government does not
feel about to take those particular steps? What are the barriers
that prevent the Government going down the road that you have
now outlined for us which would perhaps provide a viable alternative
to control orders?
Sir Ken Macdonald: Partly the
Government got itself into a bind, into a sort of war of attrition
with the courts. The original scheme was to keep just foreign
nationals in detention. The courts said that was no good: "You
have to keep everyone in detention." Then the courts said,
"You can't keep people in detention anyway without a due
process trial. The Government is where it is. It is always difficult
to extricate yourself from a policy which has failed. I think
this policy has failed. I suppose if the Government was setting
out to try to deal with the situation now, it would not go down
the route of control orders, and we will have to see what happens
if there is a change of government. I think this is just a question
of it being difficult to extricate yourself from a failed policy.
I really do acknowledge the difficulty the Government are in.
When I was DPP and the July 7 bombs went off, I had a reaction
to it which was quite unexpected on my part, which was a sense
of failure and guilt that something like this had happened while
I was DPP—although there was nothing I could have done about
it, in essence. That must have been massively magnified for the
Prime Minister, the Home Secretary and everybody else. People
react sometimes to these events in a hyperactive way. Many Western
governments were guilty of that. I quite understand why it happened
and I think control orders are one example.
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