Examination of Witness (Questions 20-30)
16 JUNE 2004
RT HON
LORD CARLILE
OF BERRIEW
QC
Q20 Lord Judd: I am very happy that my
good friend and colleague is suggesting that I want to hear things
in black and white, but I hope he will accept that I was not born
yesterday and that I too recognise that there are aspects of life
where that is just not possible, but what I am suggesting is that
in such a crucial area, in keeping everyone informed, and I put
this in all humility, it might be helpful if you could indicate
in your reports that there are areas in which judgments have to
be made in the sort of way you have very honestly described them
to the Committee. That does not seem to me to come across in the
positions you have reported, so I wonder, in view of our categorical
commitments under the Convention, whether that would not be helpful.
Lord Carlile of Berriew: Well,
I think that is a very good point, I take it on board and I am
grateful for it, yes.
Q21 Mr Stinchcombe: In the time available
I wonder if I might just seek your views on two further recommendations
of the Newton Report and one of your own recommendations. Firstly,
should we treat terrorism as an aggravating factor when sentencing?
Lord Carlile of Berriew: I think
it is an extremely interesting suggestion, but I think it is a
difficult one to construct into substantive law. We have racial
aggravation as an aggravating factor, but in racial aggravation
cases the instant offence is the main factor, say, 75-80%, and
the racial aggravation is the subsidiary factor which may add
to the sentence, say, 20% in ballpark figures. If you are going
to have terrorism as an aggravating factor, a lot of people who
are involved in terrorism commit, for example, small credit card
offences, but repeatedly, so you may be left with the proportionality
that 80% is the terrorism and 20% is the instant offence. I find
it difficult to deal with that because, in my view, it places
too much power in the hands of the judge and not enough power
in the legislation, and I have some reservation as to whether
such law could be drafted and administered in a way in which one
has total confidence, but I am certainly an open door and I would
be very happy to look at it if anybody can produce a draft. It
is a good suggestion, but I do not see a draft.
Q22 Mr Stinchcombe: Should we ban the
use of intercept evidence in court?
Lord Carlile of Berriew: No, I
think it is a nonsense. I think everybody now agrees, apart from
possibly GCHQ, though I do not know, you will have to ask them,
but there is a general view that GCHQ does not agree, and I am
not saying they have told me, but I am simply saying you should
ask them, but everybody else seems to agree, the police and MI5,
that intercept evidence should be used in courts. It is used in
courts, I believe, all over the world, apart from—
Q23 Lord Lester of Herne Hill: Ireland.
Lord Carlile of Berriew:—
Ireland, yes.
Q24 Mr Stinchcombe: Finally, in your
own report, you have suggested a broadly drawn offence of acts
preparatory to terrorism and suggested that that might remove
some of the need for executive detention. How would that operate
if the evidence which would be adduced to prove the offence is
evidence which cannot be adduced in open court?
Lord Carlile of Berriew: It would
totally remove the need for administrative detention and it would
totally remove the need for the derogation. It would create a
new offence of corporate acts preparatory to terrorism and I think
it might have to be at two levels. There might have to be an aggravated
offence so that you can clearly distinguish between the partner
who does the cooking for a group of terrorists and people who
are preparing to buy the items which are needed to make bombs,
for example. I do not think it would solve the problem of not
having jury trials; I still think you would need some kind of
tribunal and we come back to where I started. I think if one thinks
about it conceptually, it may be possible to derive a tribunal
which is more transparent and which involves a lay element, but
is not a conventional jury trial. I think we are very unimaginative
about such things. I think we could achieve it with an offence
of the kind I have described in very broad outline with such a
tribunal.
Q25 Lord Campbell of Alloway: Could I
enter another grey area as to what is information and what is
evidence and it relates of course, and you referred to it, the
intercept evidence. Surely in this area the court has to have
that information for a start?
Lord Carlile of Berriew: Yes.
Q26 Lord Campbell of Alloway: Secondly,
it has to use it, so it does not matter what you call it in this
area of law. In other areas of law, of course it matters, but
on the proportionality test with the desperate results which can
happen from the acts that these people do, is it right, do you
agree, that SIAC should not only have the intercept information,
but should use it in the sense that it is evidence?
Lord Carlile of Berriew: Well,
if it is relevant and it is served, yes, then it should be used
as evidence—
Q27 Lord Campbell of Alloway: Quite.
Lord Carlile of Berriew:—
in an appropriate and proportional way. I think my answer is that
it is evidence just like a photograph is evidence. It is a matter
of admissibility first and weight second.
Q28 Lord Campbell of Alloway: Where do
we stand with the different regimes in America and here on the
use of intercept information?
Lord Carlile of Berriew: I do
not know I am afraid.
Q29 Lord Campbell of Alloway: Because
they operate, I understand, treating all intercept material as
evidence not only in terrorist trials, but in other trials. Do
you know about that?
Lord Carlile of Berriew: I know
that it can be used in other trials and when I said to Americans
when I was there last year that we are not allowed to use it in
any circumstances or even ask questions as to whether it exists,
they looked rather surprised, but not half as surprised as I looked
when they told me of some of the things they do.
Q30 Chairman: Lord Carlile, can I thank
you very much for appearing before us today; it has been very
useful. I would just like to say that if you can think of any
ways in which you would like to elaborate on the issues which
we have discussed today or anything which we did not ask you which
you thought we should have asked you, we would be very pleased
to hear from you in writing.
Lord Carlile of Berriew: Thank
you very much.
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