Examination of Witness (Questions 1-19)
16 JUNE 2004
RT HON
LORD CARLILE
OF BERRIEW
QC
Q1 Chairman: Lord Carlile, thank you
very much for appearing before us today. You will be aware that
as part of the Home Office consultation on what measures should
replace the Anti-Terrorism Crime and Security Act 2001 when it
comes up to 2006, we have been looking at the issues which arise
in relation to that and we are particularly keen to talk to you
about your remit in reviewing the operation of the provisions
in Part 4. I understand that you have concluded recently in your
report that Part 4 is, and I quote I hope correctly, "both
workable and working reasonably well". Is it right that you
have seen the intelligence information in relation to each person
certified and detained under Part 4 and are you confident that
each of the individuals detained did indeed pose a real threat
to the safety of the public and, therefore, should not be permitted
to be at liberty?
Lord Carlile of Berriew: The answer
to your first question is that I see exactly what the Home Secretary
sees first before I make any other judgment. My job is to review
the working of that Part of the Act and I have taken it upon myself
that the starting point is to see exactly what the Home Secretary
has. I then have the opportunity, if I want to, to look at intelligence
material. I do not actually see the raw material, for example,
the records of intercepts which might be obtained by GCHQ, and
they would not make much sense to me if I did see them, but I
see the summaries of such material. I have not been refused sight
of anything which I have asked to see whether specifically or
in general terms. If I were the Home Secretary, therefore, to
take the first part of my role, I would have ordered the detention
of each person who has been detained, and I think he was right
to do that, on the basis of the information he was given. There
is of course a further test of that information in front of SIAC.
I hope that answers the question. If I can take it one stage further,
having read the judgments of SIAC, then I would agree with those
judgments, namely that in all cases, except the case of "M"
and the rather unusual case of "G", the bail case, I
think that detention was justified. The material which I saw certainly
provided detailed information that the persons detained posed
a threat to the security of the United Kingdom. I would commend
to you the first generic judgment of SIAC in which these very
complicated factual issues about the connections of the detainees
with al-Qaeda and its agencies, if that is the right word, were
set out in very great detail by Mr Justice Collins and Mr Justice
Ouseley.
Q2 Chairman: You referred just then to
SIAC and obviously SIAC have allowed one of the substantive appeals.
I wonder whether this has caused you to reassess the reliability
of the intelligence material to which you have just referred in
the light of the decision that "M" should be released,
and that indeed the material relied upon by the Secretary of State
did not cross what they deemed to be the necessary threshold?
Lord Carlile of Berriew: I think
there are two parts to that answer too. The first is that in the
criminal law, the quasi-criminal law, nothing is ever quite what
you expect. I have yet to discover a criminal case, and I have
done thousands of them, in which the prosecution evidence was
quite as strong as it seemed and the defence evidence was quite
as strong or weak as it seemed, according to the circumstances.
The way in which evidence comes out does change the emphasis which
the tribunal of fact gives to it and that is certainly true with
SIAC. I have read, I think, all the closed material of the SIAC
hearings, or certainly tried to, and it is very typical of court
hearings in criminal cases in general. As to the case of "M",
I would, with great respect, question your premise. The rationale,
as I understand it, behind the decision in "M" was that
"M" was a person who posed a terrorist threat, but he
was a member of a Libyan terrorist organisation. The Libyan terrorist
organisation in question is not part of al-Qaeda, so SIAC found,
and, as a result, it is outwith the derogation because the derogation
has been carefully circumscribed to refer only to al-Qaeda connections.
The result is that in answer to your question I would say that
the "M" decision does not undermine my confidence in
the quality of the intelligence material. It does confirm, however,
that SIAC is a very rigorous and sophisticated legal tribunal
which is able to make the fine distinctions which are necessary
in extremely complex factual territory.
Q3 Lord Lester of Herne Hill: Lord Carlile,
obviously your remit is looking at the system as it is largely
rather than some different way of approaching it. Given that the
SIAC procedure is a compromise between a completely open and normal
criminal trial and something not at all like that and given that
it is quasi-criminal, as you have said, are there any procedural
improvements which you would like to suggest which would bring
the SIAC procedure closer to meeting basic criminal law standards
without compromising its essential purpose? In other words, within
the system are there ways which you could envisage of improving
it in that way?
Lord Carlile of Berriew: Within
the system there are ways of improving it. For example, I would
prefer to see the, if I can use the legal slang, "wingmen",
the two people who sit with the judge, who is the chairman, coming
from a broader and more transparent range of people and my own
view is that there is absolutely no reason why lay people should
not sit on SIAC. I have not yet drafted, other than in my head,
my response to the consultation paper; I have deliberately left
it to as near the end of June as possible. In my head there is
a pattern which involves a tribunal like SIAC, but which has very
significant lay involvement, something between a jury system and
SIAC. I do not myself believe in the Holy Grail of the jury system
and I think you might share that view, Lord Lester—
Q4 Lord Lester of Herne Hill: I do, yes.
Lord Carlile of Berriew:—
that the jury system is not sacrosanct in itself. There may be
better ways of reaching a correct decision on issues of fact and
I think that with a little bit of imagination and a little bit
of conceptual thinking, there may be ways of either moving SIAC
into that more transparent context or something to replace SIAC
which is in that more transparent context. If I can give you an
analogy, in the Caroline Dickinson case in France there have been
jurors. I have witnessed cases in emerging countries, and Hungary
is a very good example, where there are lay people who sit as
jurors for a fairly extended period, one or two years, but they
bring their ordinary citizens' views to the facts of a case.
Q5 Lord Lester of Herne Hill: I suppose
it enhances the appearance of independence and impartiality if
you do not have people from the intelligence community as members
or as automatic members.
Lord Carlile of Berriew: It does,
yes, and there are examples within the United Kingdom, in the
Channel Islands, of jurats who sit as the tribunal of fact, according
to the seriousness of the case, an inferior number or a superior
number. They are something between jurors and magistrates and
I think there is room for that. I also think there are two other
improvements which could readily be made. The procedure could
be speeded up by the appointment of more special advocates. Perfectly
understandably, the special advocates have come so far from the
esoteric area in which, with great respect, you, Lord Lester,
are an expert. They have been mostly highly respected judicial-review
practitioners. That is no longer necessary; the issues of principle
have largely been got out of the way now. What they need as special
advocates are a large number of people of an appropriately secure
kind who are used to the analysis of criminal evidence and there
are hundreds of barristers and solicitors around who would fall
within that broad context and if there were more special advocates.
These briefs are unreturnable and it is very difficult for someone
to do more than one such case at a time. It would be quicker too
and also of course things could be speeded up if there was more
than one division of SIAC.
Q6 Lord Lester of Herne Hill: There seems
to be some difference of opinion between you and Newton about
discovery rules. It may be simply a question of nuance, but they
recommend that there should be a more structured series of disclosure
rules about the discovery process in order to strike a better
balance between the needs of national security and the rights
of the accused to a fair trial. Now, it may just be a difference
of emphasis, but I think you have suggested that there should
be a published protocol, a rather different approach, but is that
just a difference of emphasis?
Lord Carlile of Berriew: I am
absolutely certain that that is merely a difference of nuance.
I enquired both of SIAC, of the judges who chair SIAC and of the
people in the Home Office who deal with the cases as to how they
deal with disclosure. The way they deal with disclosure is in
fact according to the fundamental principle of criminal disclosure,
which is that you must disclose anything which may either undermine
the prosecution case materially or assist the defence case materially,
subject to PII on individual issues, including potential redaction
of documents. That is in fact what occurs. Now, I do not think
that the Newton recommendation is deliverable because it involves
open hearings, as I understand it. My view is that the publication
of a protocol which would be policed by SIAC in its directions
hearings would be sufficient unto the event and would ensure that
the right disciplines are followed. The analogy would be up to
now the Attorney General's guidelines on disclosure, and now the
new rules introduced by the Criminal Justice Act 2003 which are
not yet in force, but will be in force in most criminal cases
within a very short time, one expects.
Q7 Lord Campbell of Alloway: You referred
to this procedure which of course is in a context where the court
has access to very sensitive security information and only in
that context. What is your attitude to a system rather akin to
the Continental system where the judge has all the material, there
is a preliminary investigation before the judge and he makes a
decision? It is called the juge d'instruction system in
France, but it is used in other countries too. What is your approach
to that?
Lord Carlile of Berriew: This
is the issue on which I have more of a difference with the Newton
Committee than any other. Monsieur de Brugie"re, the well-known
terrorist juge d'instruction in France, is extremely persuasive
and argues a good case for a juge d'instruction system
in relation to terrorism matters. I do not think it bears detailed
examination first of all. If you look at recent articles in French
domestic newspapers about ordinary serious criminal cases, the
newspapers are baying in their leaders over there for the Anglo-Saxon
procedure because it is more efficient, it is quicker and cross-examination
is more rigorous, so there is undoubtedly a difference of opinion
based on "the grass is greener on the other side of the Channel",
I suppose, about whether a juge d'instruction system, inquisitorial
system or an adversarial system works well. I certainly think
that the argument for the juge d'instruction is unproven,
but delays, for example, in bringing people to a hearing, a SIAC-type
hearing, under the juge d'instruction system are at least
as extreme as anything which has been experienced in SIAC and
in most cases far, far longer.
Lord Lester of Herne Hill: I do not think,
with respect, that your all-or-nothing approach quite meets the
Newton argument. The argument is not to go over to a fully French
juge d'instruction system. The argument, I think, goes
like this, but we will hear about this later: that given that
SIAC is a compromise, it does not secure the normal fair trial,
would it not be sensible to have a vetted judge who acts, if you
like, like the DPP, who is completely independent, looks at all
the evidence at the outset and provides some greater safeguard
of fairness than simply relying upon a special advocate who cannot
talk to the accused at all? It is another kind of quality safeguard
which does not undercut the idea of a quasi-adversarial process
later, so it is a compromise. Your answer suggests that you think
it is either the French system or what we now have and I doubt
whether that is what Newton meant.
Lord Campbell of Alloway: Anthony has
put it how I should have put it really. You went 100% for the
French system.
Lord Lester of Herne Hill: Against.
Q8 Lord Campbell of Alloway: It is an
adaptation of that system which we would adapt for our own purposes
and as to the cross-examination, we would develop a procedure
where the Bar would cross-examine in exactly the same way and
if they wished to intervene, the judge would allow them to intervene.
You see, in France the judge will not allow at times the advocates
to intervene, but that would not operate under our system. I think
what I am asking you is whether you have got an open mind to this
particular type of procedure adapted to our own fashion or whether
it is closed?
Lord Carlile of Berriew: The first
thing I would say is that I had a great deal of contact with the
Newton Committee while it was preparing its report and indeed
gave evidence to the Newton Committee. My understanding of the
report is not quite as Lord Lester says. The second thing I would
say is that yes, of course I have got an open mind. I would happily
welcome anything which would make for a more effective procedure
and a fairer result than can be achieved at the moment and from
that viewpoint, you are pushing at an open door. However, I am
dubious, seriously dubious that with the kind of case management
which is being operated by very experienced administrative judges
in SIAC you are going to get much of an improvement if you place
somebody else into the equation. I think too you have to look
at the performance of the special advocates and it has been patchy,
to be fair. In one case, for example, the special advocate, having
heard that the detainee's solicitor and instructed silk were not
going to address SIAC, decided it would be inappropriate for himself
or his junior, as special advocates, to address SIAC, and Mr Justice
Collins plainly was extremely frustrated by what occurred. There
was an exchange of correspondence with the Solicitor General who
formally instructs the special advocates and that was the end
of that. In another case where the solicitor for the detainee
and the detainee's silk reached exactly the same decision, the
case of "M", the special advocate, and I emphasise that
I have read all the closed material, took a different view and
put up an absolutely magnificent performance on behalf of "M"
and won the case. As it happens, this particular special advocate
was not the most famous judicial review lawyer in the country.
What it demonstrated to me was that if the system which we have
created, albeit subject to whatever fine-tuning can be created
which would be very welcome, can be made to work, it would be
foolish to do what I understood Newton to be recommending which
is to chuck out this system and try something completely different
which might be founded on an inquisitorial approach. It ain't
broke. I think it may need some improvement and sophistication
in the way that, just like a car, one can improve one's sense
of direction with a global-positioning system and maybe SIAC could
do with a few adjustments of that kind, but the basic system,
in my view, has been shown to work well. I regretted the fact
that the Home Secretary seemed to imply in one of his recent comments
that SIAC was not working well. I think he should have said that
the cases of "M" and "G" are examples of the
system of law which we have created working extremely well and
not accepting what either Home Secretary has said in every case.
Q9 Mr Stinchcombe: I wonder if I could
ask you about two possible adjustments which might be made to
the SIAC system. Firstly, you have suggested that there should
be some more special advocates. Is it necessary that they all
be appointed by the Attorney General?
Lord Carlile of Berriew: Somebody
has got to appoint them and I think this is a jolly difficult
question to answer and a very well taken one, if I may say. The
current system is, as I understand it, that the instructions to
special advocates are not given by the Attorney General in individual
cases, but they are given by the Solicitor General with a sort
of Chinese wall erected between them. Now, I am merely repeating
what I have been told and it is a matter for the Committee to
judge whether that is a satisfactory system.
Q10 Mr Stinchcombe: But what is your
view? Why should the Attorney General, who represents one part
of these proceedings, appoint the special advocate who represents
another?
Lord Carlile of Berriew: Well,
I think it is part of our political tradition, is it not? The
Home Secretary or the Crown appoints the independent Inspector
of Prisons, the Home Secretary appointed me, and there are all
kinds of appointments which somebody has to make. It may be that
a system could be devised in which some independent body appointed
the special advocate, but here we come to the arguments which
have infected discussions on the Judicial Appointments Commission,
that somebody has got to appoint the commissioners. Who appoints
the appointers who appoint the appointees? That is always going
to be a question. I think at the end of the day there have been
very few complaints from the service-users, if we can call them
that, about the appointment system and very few justifiable complaints
about the performance of those special advocates who have been
able to engage with the process and do well. I have recommended
repeatedly, and I hope something is going to be done about this,
that just as the Judicial Studies Board trains judges at all levels,
nobody sits for one second as a judge of any kind without going
through a JSB training course, there ought to be a proper system
of training created for special advocates and at the moment, as
I understand it, there is not.
Q11 Mr Stinchcombe: I wonder if I could
just push you on another possible adjustment. Bearing in mind
that these special advocates are all appointed by the Attorney
General, is it necessary that we prohibit all contact between
the special advocate and the detainee once that special advocate
has seen the closed material?
Lord Carlile of Berriew: No, I
think that special advocates should be given the discretion, subject
to approval, I suppose, to see the detainees or at least to correspond
and communicate with the detainees and their lawyers so that they
can be better informed as to the way in which to deal with SIAC.
I suspect, however, that what the special advocates would say
would be of greater assistance to the private lawyers for the
detainees than what the detainees would say to the special advocates.
If I can give you a simple example, a detainee may assert that
he had absolutely no contact with a particular group of people
and, completely unknown to the detainee and heard in closed session,
there may be evidence to show that that is completely untrue.
There may be intercepts which show he had contact with those people,
but people sometimes tell lies for reasons which are not quite
as bad as they seem. Here I refer to the classic Lucas direction
given in criminal cases where people may tell lies to hide something
embarrassing which has happened in their lives and so on and I
think that more contact with the special advocates would help
to deal with issues of that kind. Having said that, I do understand
the sensitivity of the security services. Some, not all, but some
of the detainees may well be extremely sophisticated terrorists,
very well trained and well versed in counter-terrorism techniques
and it may be possible for them to glean information which they
would not otherwise obtain were they to have close contact with
the special advocates who are mere lawyers, not trained in terrorist
and counter-terrorist techniques. I do understand that worry;
I think it is more than illusory. The recipe I would offer, therefore,
is that if a special advocate feels that there would be an advantage
in contact with the detainee or his lawyers, he should apply to
SIAC for leave, for permission, to make that contact and explain
why and SIAC should determine whether that contact should occur.
Q12 Lord Lester of Herne Hill: Did you
take evidence from the special advocates about what they think
of the system?
Lord Carlile of Berriew: Yes,
I have spoken to special advocates and, I hope, a reasonable cross-section
of them. I did not take formal evidence, but I meet with people
and necessarily some of it is anecdotal, but I am talking to people
who do the same for a living as myself, so I understand a little
bit of how they operate. I think the special advocates feel first
of all that they could have more help in the preparation of cases.
I have seen the boxes of papers given to special advocates and
they are daunting and sometimes unstructured. That has been addressed
up to a point already by the appointment of MI5 employees who
are there to assist the special advocates in assembling the case,
but there may be more which can be done on that. I think that
the special advocates would agree that there are circumstances
in which the inference behind Mr Stinchcombe's question would
be shown to be justified, that they should have some contact,
and I think that they would all support the view that they should
be given some training and be given a collegiate atmosphere in
which to work. Even being a member of your Chambers, Lord Lester,
is insufficiently collegiate.
Q13 Lord Judd: Lord Carlile, the UN Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 1984 came into force in 1987 and the UK ratified
it without any reservations on 8 December 1998. I am sure it is
not really necessary, but perhaps I may for the record just remind
you that it states absolutely uncompromisingly that, "Each
State party shall ensure that any statement which is established
to have been made as a result of torture shall not be invoked
as evidence in any proceedings, except against a person accused
of torture as evidence that the statement was made". How
do you reconcile that with the current procedure whereby SIAC
is permitted to rely on evidence which it knows has been, or may
have been, obtained by torture elsewhere, not in the United Kingdom,
in support of its factual findings?
Lord Carlile of Berriew: I think
the first thing one has to say in response to that extremely important
question is that there may be an issue about what is evidence.
There may be a difference between evidence and information. Let
me give you a simple example. Let us suppose that an interrogation
takes place in some unpleasant place in which a person is tortured
and, as a result of that, provides information that in Birmingham
there is an al-Qaeda cell which is preparing a bomb which will
go off at Villa Park on a Saturday afternoon, killing thousands
of people. Acting on that information which is passed to British
intelligence, the police go to a house in Birmingham and they
find a bomb or bomb-making equipment which could be used to carry
out that shocking plot and, acting on that information, they arrest
a large number of people and bring a case to the court. Now, one
is left with obvious questions arising from that set of circumstances.
How far can one adopt the ordinary British evidential principle,
and the leading case is Sang, in which one does not have
a total exclusionary rule? We have a partial exclusionary rule
which involves judicial discretion in the weighing of the evidence.
Now, I think that kind of example shows how difficult the issues
are. The direct answer to Lord Judd's question of course is that
we should adhere to our Treaty obligations and I would be the
first to say that I feel very uncomfortable about evidence being
used if it has been obtained by torture, but is it reasonable
to say that information which has been obtained which leads to
evidence should never be used? My understanding, having read the
SIAC cases, is that nothing obtained by torture has been used
as evidence. SIAC of course acts on information as well as what
would be described in a criminal court or a civil court as evidence.
Q14 Lord Judd: But in support of your
general contention about how the scheme is working, would you
be prepared to say categorically that it has not been used as
evidence? I do not want to be unfair, but you do choose your words,
it seems to me, rather carefully. You say that your understanding
is that.
Lord Carlile of Berriew: I have
read an awful lot of material, thousands and thousands of pages,
and I could not put my hand on my heart and say that nowhere has
information slipped into the area of evidence and I could not,
therefore, say for certain that no evidence obtained as a result
of torture has been used. However, I should say that Mr Justice
Collins dealt with this in the first major judgment of SIAC. Mr
Emerson QC took the point. It was argued extensively and judgment
was given on it and my understanding of the situation, and I am
sorry, I cannot put it higher than that because it would not be
absolutely honest of me to do so, is that such evidence has not
been relied upon as evidence against any of the detainees.
Q15 Lord Judd: I am bound to say that
I think you are being very direct with the Committee and personally
I appreciate that about a dilemma, but it does suggest to me that
there must be some qualification on your final conclusions about
how the scheme is working because it is a very important area
and you are saying that there could be a grey area.
Lord Carlile of Berriew: I think
this is all terribly difficult and this is why I find what I do
so interesting. On the one hand, the duty of the Government is
to protect the public of this country and if 1,000 people were
killed, in my example, on a Saturday afternoon at Villa Park and
the Government had information from the intelligence service of
some faraway land that this might happen and had not acted upon
it, you can imagine what would occur.
Q16 Lord Judd: But that is information.
You yourself made the point that that is information.
Lord Carlile of Berriew: Yes,
it is information.
Q17 Lord Judd: The grey area to which
I am referring is your unwillingness, which I think is a very
honest position, to be categorical about the dividing line between
information and evidence.
Lord Carlile of Berriew: Well,
I think that is a matter which can be determined in an individual
case in court and that is why I think that the partial exclusionary
rule, which we have in the criminal courts as a result of the
decision in DPP v Sang mainly, is actually quite practical.
I think you have to look at the circumstances. The general principle
must be that you never act on evidence obtained from torture,
the general principle, but there may be circumstances in which
one would say, "Well, just a moment. There was a plot to
kill 1,000 people at Villa Park".
Q18 Lord Campbell of Alloway: What Lord
Judd is saying, that there is a grey area, of course is right,
but what he would like to have is a black-and-white area and that
does not exist.
Lord Carlile of Berriew: No.
Q19 Lord Campbell of Alloway: It is because
of that that you have this partial exclusionary judicial rule
and you will never get better. The administration law is not an
exact and perfect science, so you will never get much better than
where we have got to, or could we?
Lord Carlile of Berriew: Yes,
I broadly agree. I have appeared in cases, nothing to do with
terrorism, where I have felt the rank sense of injustice as an
advocate because there was not an exclusionary rule and in other
cases where I have felt the rank sense of justice because there
was not an exclusionary rule. Now, the fact that one is left in
that tricky moral dilemma probably shows that the fulcrum is in
approximately the right place and we are back to the scales of
justice, are we not, really?
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