Examination of Witnesses (Questions 40-60)
19 MAY 2004
MR KEN
MACDONALD QC, MR
PHILIP GEERING
AND MR
CHRIS NEWELL
Q40 Baroness Prashar: Are you planning
to?
Mr Macdonald: You having asked
this question it is certainly something we will consider very
carefully. We are very happy and willing to meet with anyone who
can assist us in this matter.
Q41 Baroness Prashar: I am interested
you have got a memorandum of understanding with the IPPC and I
wondered whether there was any wish to develop a similar dialogue
with him?
Mr Macdonald: I am certainly very
happy to meet with the Prisons and Probation Ombudsman to discuss
any issues that we might have in common. The reason we have developed
a protocol with the IPPC is that we are required positively to
work with the IPPC to carry out our functions and duties in this
area.
Lord Campbell of Alloway: The Ombudsman
is in exactly the same position as the CPS. We cross-examined
or asked questions of the Ombudsman and I remember asking him
was he satisfied with the manner in which the material came before
him and he was not but he had no suggestions and there is nothing
one can do, surely, unless the Home Office improves the system
of intelligence gathering at the time of the incident?
Q42 Chairman: If we may, we will move
on now to the review of counter-terrorism powers. Mr Macdonald,
you will be aware that in February of this year the Home Office
published its discussion paper Counter-Terrorism Powers: Reconciling
Security and Liberty in an Open Society calling for a debate
on whether there were any alternative measures available to replace
Part 4 of the 2001 Act, and of course the Newton Report has strongly
recommended the replacement of Part 4 with comprehensive, overarching
legislation to deal with terrorism. Given the breadth of terrorism
offences which already exist what would you say are the main obstacles
to bringing prosecution for existing criminal offences?
Mr Macdonald: We have had some
input into the legislation, the two most recent statutes in this
area, and I think we did quite a lot of work on those. As you
say, the criminal law covers a huge swathe of activity that could
be described as terrorist, and it is not just the terrorism statutes,
common law does it, and various other statutes do. Just as an
example, the Terrorism Act proscription offences include membership,
inviting support, addressing meetings, wearing clothing or displaying
items. Terrorist property is controlled by making it an offence
to fund raise or invite somebody else to use money or other property
for terrorist purposes, to enter in or be concerned in an arrangement
as a result of which money or property is made use of; money laundering;
the disclosure of material by the banks; interfering with information.
Then terrorist offences themselves include: providing or receiving
or inviting others to receive training or instruction in firearms;
directing a terrorist organisation; possession of arms for a terrorist
purpose; collecting or possessing a document or record likely
to be useful to a terrorist: inciting acts of terrorism overseas.
There is a jurisdiction section so that if you are involved in
terrorist activity outside the UK and if is justiciable here it
is an offence here, and added to by the Anti-Terrorism Crime and
Security Act is providing material information about acts of terrorism.
We also have the common law and a large range of other criminal
offences. There is an enormous amount of legislation that can
be used in the fight against terrorism. Our interest as prosecutors
is to prosecute criminal offences in the criminal arena according
to the code tests and according to normal criminal trial rules.
That is what we are paid to do and that is what we do.
Q43 Chairman: So you are effectively
saying there are not enough laws at all?
Mr Macdonald: No, what I am saying
is at the moment there is a great deal of legislation available
to us. If you are asking me whether there are changes that can
be made in the process, I think we may be getting into areas of
policy which it is difficult for me to comment upon. If you are
asking me whether, as I understand it, the legislation which exists
at the moment provides us with weapons to fight terrorism, it
certainly does. Whether Parliament thinks there are other weapons
which we ought to be given to use in the fight against terrorism,
if it is appropriate (as I am sure it is) to discuss it in the
context of the fight against terrorism, if Parliament wants to
do that then we will happily use any tools which we are given.
Q44 Chairman: There does seem to be quite
a considerable discrepancy between the number of people arrested
under the legislation and those who are ultimately convicted.
Between 11 September 2001 and 31 January this year, as I understand
it, 544 people were arrested under the 2000 Act, 98 of them were
charged with offences, and six were convicted. Now, this does
suggest there may be problems. I wondered whether this was due
to evidential or any other problems you may wish to highlight?
Mr Macdonald: I think these are
figures from the Home Office. As far as the six convictions are
concerned that is six convicted so far. There are a large number
of outstanding cases so it could potentially be misleading to
be talking about 500 arrested, 98 prosecuted and only six convicted.
There are a pretty large number of cases pending and, indeed,
there are one or two cases going on at the Old Bailey at the moment.
So far as the discrepancy between the number of people arrested
and the number of people charged is concerned, as a prosecutor
that does not surprise me at all. The test for arresting someone
is reasonable suspicion on the part of the police officer. We
are always consulted by the police as to what the charge should
be. The test we apply to prosecute is the code test which is a
much higher test. There is always going to be some wastage at
that point. Indeed, one of the reasons we were given powers to
select charges was to ensure that only the right cases were prosecuted.
There is an additional factor as well. Quite often people who
are arrested for terrorist offences are then prosecuted under
other legislation. I am thinking in particular of a fairly large
number of cases which have occurred throughout the jurisdiction
in recent years of individuals who are arrested for terrorist
offences, the terrorist aspect cannot be demonstrated to the satisfaction
of the code tests but they are then prosecuted for various false
document offences or credit card frauds and other related offences
of fraud and theft and so on. So I am just urging you to treat
with caution both the figures of 98 prosecuted because there will
be many others prosecuted who were arrested for terrorist offences
and prosecuted for something else, and particularly to treat with
caution the figure of the six convicted because there are many
people currently awaiting trial.
Q45 Chairman: Okay. You referred just
now to the police responding to reasonable suspicion. How would
you say this could apply in the case of a legitimate public protest
like somebody wanting to demonstrate against an arms exhibition
and then being arrested under the terrorism legislation?
Mr Macdonald: We do not tell the
police who to arrest and who not to arrest. In the case that you
are talking about the divisional court, the higher court, the
administrative court indicated that the use of the arrest power
was appropriate in that case. I do not think it is for me to comment
on whether it is appropriate for the police to arrest or not arrest
particular people. Once the police arrest people and bring the
case to us we will then make a decision about whether it is appropriate
to charge individuals and we will advise the police about what
steps they might take to secure evidence, but I would be very
reluctant to answer questions about whether it is appropriate
for the police to arrest people in particular circumstances.
Q46 Chairman: And could you just tell
us what you would say were the obstacles to prosecuting these
offences, given the scope that you have just talked about?
Mr Macdonald: There are one or
two areas one could look at. Custody time limits are difficult
in terrorist cases because, as you know, custody time limits require
someone to be brought to trial within a period of time unless
that is extended. We have lost cases from time to time when we
have not been able to prepare them within what the court tells
us is reasonable time because of the sheer bulk of work involved.
Some of these are massive, massive investigations. I have been
in these cases myself when I was at the bar and these are huge
cases and they are very complex. The new sort of terrorist cases
are much more complex than the old IRA cases. They contain a lot
of evidence from abroad, a lot of evidence of card transactions,
and a lot more circumstantial evidence. They are more complicated
to investigate and they are more complicated to prosecute so the
custody time limits are things we sometimes find difficult to
meet in these cases. I think the use of video evidence from abroad
would be something that if it were available—and it is not
for me to say whether it should be available—prosecutors
would be perfectly content to use. A lot of these cases have international
links and you will have a group of people prosecuted in this country
who have links with people all over Europe and sometimes in North
America, and sometimes there are people in custody in other jurisdictions
who could potentially be witnesses in our cases, and sometimes
we cannot get them into this country. I think the real answer
to your question is that the sort of new powers which are proposed
in serious crime cases in the SOCA White Paper, One Step Ahead:
21st Century Strategies to Defeat Organised Crime. Terrorism
is organised crime and amongst the powers—which again it
is not for me to say whether they should be introduced or not
but which we would be content to use if they were—would
be powers to interview under compulsion, by which I mean powers
such as the Serious Fraud Office have to interview individuals
and to have them produce documents on the Strasbourg principles
so that the material cannot be used against that individual but
can be used to gain evidence against others. That sort of power
would certainly, if Parliament thought it appropriate to enact
it, be used by prosecutors. I think we need to think much more
about plea bargaining in these sorts of cases. I think we need
to think more about the possibilities of immunising accomplices,
offering immunity in exchange for evidence. I think these sorts
of process changes—and again it is not for me to say whether
they should be enacted—if Parliament were persuaded they
should be enacted, in my judgment as a prosecutor, they would
be things we would be content to use in these cases.
Q47 Lord Judd: Intercepted communications
obviously play a major part in this action against terrorism.
Would a relaxation of the current absolute ban on the use of intercept
material enable more prosecutions to be brought successfully for
terrorism offences?
Mr Macdonald: There is a review
going on at the moment. There is review to which the Home Office
is contributing, various agencies are contributing, we are contributing,
and other interested parties are as well, and we will obviously
await the results of that review with interest. I think what I
can say is if there is in existence probative and admissible evidence
prosecutors always want to use it. Whether that evidence which
you describe ought to be admissible is a matter on which Parliament
will have to decide. We recognise as prosecutors that there are
genuine competing interests on both sides of this argument and
there are strong arguments on both sides. Prosecutors of course
will always use probative, admissible evidence if it is available.
Q48 Lord Judd: Is there a problem about
reliability of evidence of this kind and is there an issue of
the protection of sources?
Mr Macdonald: I think there are
various arguments being deployed. Obviously protection of sources
is an argument being deployed. There is a policy review going
on into this at the moment and we are contributing to it so I
am reluctant to get, if I can avoid it, too much into this debate.
All I can really say is where there is probative and admissible
evidence we use it.
Q49 Lord Judd: You do.
Mr Macdonald: Well.
Q50 Lord Judd: My first question was
do you think if we move forward in this area this would bring
more cases to a satisfactory and positive conclusion?
Mr Macdonald: I would have to
analyse intelligence data to answer that question and give you
an answer based upon that, and I do not think it would be proper
to do that.
Q51 Lord Judd: Right. Do you think looking
at how this might be done it would be possible to modify the rules
governing disclosure of evidence so that the prosecution would
not be obliged to disclose intercept evidence or its existence
unless they chose to rely on it, or would this be an insuperable
obstacle to relaxing the absolute ban?
Mr Macdonald: The way the system
works at the moment under the Criminal Procedure and Investigations
Act (CPIA) is that we disclose to the defence all the material
upon which we intend to rely in the trial. We also disclose to
them any material which, in our judgment, undermines our case
or supports their case. So if we have material that we do not
intend to rely on but which does not undermine our case or support
their case, it is not discloseable under statute. The reality
of the situation is that one would be considering material which
was material that we would be intending to rely on, I suppose,
otherwise it is of no interest to us. Equally, if we are not intending
to rely on it and it does not help the defence or undermine our
case, it is of no interest to the defence either. It is simply
irrelevant to any issue in the case.
Q52 Lord Judd: I understand the embarrassment
with which you are faced and I use that word in the technical
sense of embarrassment, but would it be right to say that there
is a sense of frustration sometimes because you are fairly convinced
that successful prosecution is possible but under the rules as
they obtain at the moment you cannot reach that successful prosecution?
Mr Macdonald: All I can say is
that we are contributing to this review as an independent prosecuting
authority and expressing our views as persuasively as we can.
Q53 Lord Judd: What about hearsay evidence
in this context?
Mr Macdonald: The rules relating
to hearsay evidence have been relaxed by the Criminal Justice
Act 2003 and I think the clauses which deal with that will be
implemented next year. I cannot remember which clause it is but
effectively the judge is going to be given much more power to
introduce hearsay evidence in circumstances where the maker of
the statement which is sought to be introduced is not available
for a variety of reasons and where the judge thinks it is appropriate
and fair to do so. As prosecutors we feel that this will broaden
the extent to which hearsay evidence can be used in criminal trials
and I think what we want to do is to see the effect of that before
we rush out and make statements about further reform. I think
you will find the rules relating to hearsay are relaxed to quite
a degree by the statutory change. As I say, I do not think it
is going to be implemented until next year but I think it will
make a change and of course that will give us the possibility
of introducing pieces of evidence which we would not—
Q54 Lord Judd: It sounds to me as if
you as a lawyer have certain anxieties about this?
Mr Macdonald: About what?
Q55 Lord Judd: About the relaxation.
Mr Macdonald: I did not say that.
Q56 Lord Judd: You did not say that;
you said something that made me feel that. You do not?
Mr Macdonald: No.
Q57 Lord Lester of Herne Hill: As you
know, the Newton Committee of Privy Councillors looked into this
on the part of Parliament and faced the same dilemma as the Home
Secretary as to how one could possibly avoid detaining people
indefinitely without trial derogating under the European human
rights legislation rather than modifying our procedures in order
to be able to bring effective prosecutions using sensitive intelligence
material of a kind that could not be shown to the accused. The
recommendation that the Newton Committee made unanimously was
that we should be a bit less common law minded and think more
about an inquisitorial approach, at any rate at the initial stages.
Although they did not say this there were two options that we
have been thinking about, and I am hoping I can coax out of you
something other than it is a matter for Parliament because I think
in this area your expertise, both as a distinguished member of
the Bar in your past incarnation and now would be really helpful.
The first of the two options that were being suggested was French—I
hope none the worse for that—where there would be an independent
security-cleared judge as the investigator, the juge d'instruction
(which happens not only in France but elsewhere on the Continent)
and the second is the Scottish model of a more proactive investigation-led
role for the procurator fiscal or your own office. Do you consider
first of all either option would somehow be incompatible with
the glory of the English common law system or could it be grafted
upon our system without tearing the fabric of it? The next question
I will ask is which of those two options, if you were asked by
Parliament to choose, would you think was the more compatible
with the traditional role of the English prosecutor, the idea
of a juge d'instruction or the idea that you would be more
like the procurator fiscal in Scotland?
Mr Macdonald: As I have said,
we are moving to a system of giving prosecutors more power in
the system to the extent they do in other jurisdictions. When
I say prosecutors I mean the prosecuting authority, not barristers.
Traditionally we have given the prosecuting authority a very passive
role since its creation in 1986. The initial idea was that the
police would investigate a case, charge the suspect, pass the
file to the CPS, the CPS would review it, and if there was a more
than 50% chance of conviction pass it to a barrister. We have
moved on a lot from there and we are going to move much more quickly
in a fundamental way to giving prosecutors more power to be making
the decisions which lawyers ought to make. I do not think there
is anything inconsistent between that and an adversarial system;
indeed it is perfectly consistent with it. Some of what you may
be looking for will come out of that. If we get the powers to
be a bit more involved in plea bargaining, to immunise witnesses,
to conduct interviews under compulsion, the power to interview
witnesses pre-trial, all these directions in which we are moving
will have, if we get that process, some benefit. So far as the
juge d'instruction is concerned I am not an expert on French
law. I have to say I do not understand how that system would protect
from disclosure the material which it is intended to. As I understand
the idea of this it is to protect sensitive material from disclosure
to the defence. As I understand the French system, and I am not
an expert, the defendant in the French system is entitled to see
the file, the dossier, and it is difficult to imagine a system
in which you could have a dossier that simply did not contain
sensitive material but which then went to a trial judge and he
or she saw it without the defendant ever seeing it. I have to
say it is a matter for Parliament, Lord Lester, but I am not sure
I understand how this model solves the problem which it is designed
to solve, that of protecting sensitive material from disclosure.
Q58 Lord Lester of Herne Hill: I think
the notion is that it should be a two-part process, that an investigating
judge, who is entirely independent and therefore commands public
confidence, should see the entire dossier including material that
may not be able to be used in a criminal process and, having done
that, should then pass it to the second stage of the trial and
that would provide greater confidence in the ability of the prosecution
to go forward. Then there would be the problems about public interest
immunity and what the accused could see and whether there could
be a SIAC-type procedure and so on. That is the notion—that
one way of making it a bit easier and to command confidence would
be to have that ability, either in your office or with an independent
judge at that stage.
Mr Macdonald: I certainly do not
take the view that because something comes from another jurisdiction
it cannot be fitted into ours. I am sorry to be unhelpful but
I am reluctant to express a view in a hearing like this about
this because we simply have not had enough time to think about
it and to tease out what the pros and cons are. As prosecutors
we are always open to process changes and, I repeat, just because
something comes from another jurisdiction does not mean it cannot
work here. We are open to all constructive debates. I agree with
what Roger Smith, the Director of Justice, said when the Home
Office announced this consultation that he thought debate was
a good thing. We as prosecutors think debate is a good thing,
too. The Home Office has announced, as I understand it, an inquiry
or review of international practice to see whether there are foreign
models which we could usefully employ here. We are not resistant
to that at all. If models can be found which help to ease this
situation, then so much the better.
Q59 Lord Campbell of Alloway: It is worth
considering. Your answers have been most interesting and helpful.
Going back to Lord Judd's problem with the intercept evidence,
which will not be admissible certainly because unless it was disclosed
to the accused he could not be cross-examined on it, at the initial
stage in France it would not be quite as we propose because the
judge would be security cleared. If you are going to have a first
stage rather akin to the French system you are going to have a
security-cleared judge who will see all the evidence and interrogate
the accused but perhaps not expressly referring to it. Then when
he has made his recommendation to proceed and if there is a case,
then it goes to another judge who does not see that evidence.
Therefore, it is a very complicated affair and it is very difficult
to deal with it unless one has a clear pattern as to what is to
happen because Lord Judd was on to something of some considerable
importance but does not know how it works in the public interest
applications and one thing and another, but you have got to take
that on board and you have to have (and you have in a sense) a
new procedure under the SIAC Trust.
Mr Macdonald: There is a complexity
arising in this respect, it is true. I think there are two things
to say. First of all, I stressed under CPIA we do not disclose
and we should not disclose to the defence material upon which
we do not intend to rely unless it undermines our case or helps
theirs. There can be a wealth of sensitive material which we simply
do not disclose. Prosecutors in making these decisions are making
quasi judicial decisions. They are independent of government,
they are not controlled by politicians, and they are making decisions
about what to give the defence and what not to give the defence
routinely. Thus not all sensitive material which is unearthed
in an investigation has to be given to the defence under our system;
it is only that which either proves the prosecution case and is
going to be relied upon or undermines it or assists the defence
case as set out in the defence case statement. So far as public
disclosure is concerned the House of Lords in H and
C has stressed again the golden thread of disclosure of material
to defendants. Lord Steyn said that the defendant's right to disclosure
is an inseparable part of his right to a fair trial. We are living
in very difficult times but we must not lose sight of that principle.
We as prosecutors are loyal to that principle in criminal trials
and we are rigidly loyal to due process in that sense, which is
why it is important for us to maintain our independence and important
for us to remember our independence and adhere to our principles
of impartiality and fairness when we are making all these new
legal decisions we are being called upon to make. We as prosecutors
are interested in safe convictions in which the public can have
confidence.
Q60 Chairman: Are there any other ways
in which you think there is scope for enhancing or developing
your role which might help overcome the obstacles to prosecuting
terrorist offences?
Mr Macdonald: I have already highlighted
the procedural changes which I think will help us to do that.
By that I mean the enhancement of the prosecutor's role and the
handing over to the prosecutor of all the legal decisions which
obviously should be made by lawyers and in the past have not been.
If Parliament decides to enact the sorts of powers which are thought
appropriate in the case of the fight against organised crime,
I think all of these are ways of giving prosecutors potentially
the ability to do their job better and more effectively and are
as relevant to terrorism as they are to other forms of serious
crime.
Chairman: Thank you very much for coming
before us today. Thank you, Mr Geering and Mr Newell. Order, order.
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