Annex B: Extract from Minutes of evidence
taken before the Committee on 19 May 2004
Witnesses: Mr Ken Macdonald QC, Director of Public
Prosecutions and Head of the Crown Prosecution Service, Mr Philip
Geering, Director of Policy, and Mr Chris Newell, Director of
Casework, Crown Prosecution Service, examined.
* * * * *
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 per cent 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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