UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE

UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 619-i

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

THE JOINT COMMITTEE ON HUMAN RIGHTS

PROSECUTION POLICY

Wednesday 19 May 2004

MR KEN MACDONALD QC, MR PHILIP GEERING and MR CHRIS NEWELL

Evidence heard in Public Questions 1 - 60

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Wednesday 19 May 2004

Members present:

Jean Corston, in the Chair

Campbell of Alloway, L.

Judd, L.

Lester of Herne Hill, L.

Prashar, B.

Mr Kevin McNamara

Mr Paul Stinchcombe

________________

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.

Q1 Chairman: Mr Macdonald, welcome. I am pleased to see that you are accompanied by Mr Phillip Geering who is the Director of Policy at the CPS and Chris Newell who is the Director of Casework at the CPS. Thank you for coming to appear before the Joint Committee on Human Rights today as part of several of our inquiries: first of all in relation to the defence of "reasonable chastisement", where we are currently looking at issues in relation to the Children Bill; deaths in custody, which is one of the inquiries we are currently conducting; and also the Committee's response to the Home Office consultation on counter-terrorism powers, particularly in relation to difficulties encountered in prosecuting such cases. If I may start with the issue of the possible abolition of the defence of reasonable chastisement, you must be aware that this is likely to surface in connection with the Children Bill which is currently going through Parliament and, as I have just said, we ourselves will be reporting on this Bill in the near future. We would be very interested to know from your perspective, from a prosecuting perspective, what difficulties there might be if the current defence of reasonable chastisement were to be abolished. I focus particularly on problems in relation to the evidential test and the public interest test because I think the last thing most people would want would be a situation where adults were going to be prosecuted for mild smacking of their children.

Mr Macdonald: I have seen a proposed amendment which I think was drafted by Peter Carter which abolishes the defence of reasonable chastisement and, quite clearly, this outlaws batteries and assaults in all but very exceptional circumstances - to prevent crime, for safety reasons and so on and so forth. My view is that that amendment criminalises all batteries against children except those which are excluded within the terms of the amendment. What we are being asked to say is whether if that were the situation we would develop a policy which meant that adults who simply smacked children in the way that you describe would not be prosecuted. Our response is that Parliament needs to frame its legislation to achieve the result it wants to achieve and it needs to understand that if it approves that amendment it will be criminalising battery against children, that will be the reality. We have some difficulty with Parliament expecting us to determine through our Code for Crown Prosecutors what public policy ought to be. We think the legislation should be sufficiently certain. The reality is that we would have to have some sort of policy about this but I think it would be inconceivable for us to draft a policy that would be so wide as to say that minor assaults on children would never be prosecuted because there clearly could be circumstances where they would be. One might posit an example of a child who was mentally handicapped or a child who was subjected to sexual abuse or other forms of assault. So we would not and could not draft guidance which would absolve all minor acts of battery against children from criminal prosecution. That said, the reality is that, just as most minor assaults against adults are not prosecuted, I suspect most minor assaults against children would not be either, although it is not an entirely accurate analogy because children are much more vulnerable than adults so the fact that adults are not regularly prosecuted for minor assaults where the victim is an adult does not mean there would not be prosecution more frequently when the victim is a child. So far as the tests are concerned removing the defence of reasonable chastisement clearly means that the evidential test can be passed more easily because one of the things Crown prosecutors have to factor in when considering whether the evidential test is met is possible defences and how compelling they are likely to be. If that defence goes, then the test so far as minor assaults is concerned might be passed more easily and prosecution in appropriate circumstances could be more likely. So far as the public interest test is concerned, I think we are hesitant about a proposal which would invite us to say that the public interest test can do this job for Parliament rather than Parliament doing the job itself. One solution to this, of course, would be to abolish the defence of reasonable chastisement in all offences except common assaults. That is a possibility and that would have the merit, it seems to us, of the legislation being more certain. I do not want to repeat myself but I think we are a little uneasy at the idea that Parliament can fudge this issue and expect us to sort it out.

Q2 Chairman: What you are saying is if there is to be some public interest test, it is for Parliament to determine what the parameters of it are?

Mr Macdonald: It is for Parliament to determine whether minor slaps to children are criminal assaults or not. That is the bottom line and if the Peter Carter amendment is adopted it does that; it says that even minor assaults against children - although we can allow for de minimus smacking - are criminal acts by that amendment. We cannot say now before the legislation is even passed that we would never prosecute those kind of assaults. There clearly would be circumstances in which we would although, as I said earlier, they would probably be very rare.

Q3 Chairman: You seem to be saying that assaults on adults can be dealt with in terms of severity because, as you said, there are many occasions when an adult would effectively assault another and it would not result in a prosecution and it is possible for the CPS to deal with those kind of issues but not to deal with them when they relate to children because children are more likely to be smacked. Is that what you are saying?

Mr Macdonald: No, you can have a situation where one adult smacks another and there is clearly no public interest in prosecution, there is no injury, the person who is slapped is not really bothered about it, and there is no public interest in taking a case like that through the courts. That might often be the case with children but it equally might not be because children are much more vulnerable and there are all sorts of situations in which children who are smacked might be damaged by it (psychologically if not physically) and there might be cases of that sort where Crown prosecutors will say, "This was just a smack but I am going to prosecute because there is public interest in prosecuting." What I am saying to you is that we could not devise a policy which would mean that minor slaps were never prosecuted; we simply could not do it.

Q4 Lord Lester of Herne Hill: As I understand what you are saying, Mr Macdonald, what you are saying is if the amendments were made more sophisticated in the way that you have suggested, and in fairness it was available for common assaults, that in your view would achieve reasonable legal certainty and in terms of policy it would go a long way to meet the objectives of Mr Carter?

Mr Macdonald: That is right. Can I explain why I say that? So far as we have been able to discover through a trawl, in the year ending May 2003, there were nine cases of assault on children in which the defence of reasonable chastisement was raised and there were four acquittals. These are cases where the violence was, in our view, strong enough to require a prosecution, in some cases quite bad violence. If a Crown prosecutor was looking at a minor slap or smack of the sort we are talking about and there was available to the defendant the defence of reasonable chastisement, because it was permitted still by the amendment, the chance of that case being prosecuted once that defence had been factored in would be very, very low indeed because the overwhelming likelihood is in the light of that defence and in the light of the minor nature of the assault there would an acquittal, so you would not get past the evidential test because there would be no realistic prospect of conviction. If you take away reasonable chastisement there is a slightly stronger bias in favour of prosecution or a slightly stronger likelihood that the evidential test is passed.

Q5 Lord Campbell of Alloway: Mr Macdonald, you are saying, are you not really, that you retain the discretion that you always had in all cases on a de minimus affair? That is a question of discretion and that must always remain with the prosecuting authorities; it always has done.

Mr Macdonald: Yes.

Q6 Lord Campbell of Alloway: But if you retain that discretion there is no reasonable cause to do away with what they call reasonable chastisement?

Mr Macdonald: That is a matter for Parliament; it is not a matter for us.

Q7 Lord Campbell of Alloway: And that is for Parliament to decide.

Mr Macdonald: I am being asked what I think the effect would be in terms of prosecution practice if the defence were abolished. I am not expressing any view about whether it should be or not.

Q8 Chairman: Do you find the least bit persuasive the Scottish Parliament solution which I gather specifies particular implements or body parts or age thresholds in determining these issues?

Mr Macdonald: We already have guidance from the Court of Appeal in the case of H about the circumstances in which reasonable chastisement could work. I think it is a mistake to be overly prescriptive actually. It is quite difficult to think of circumstances in which a weapon is used against a child and the appropriate offence would be common assault. I suppose you could strike a child with a weapon and cause no injury at all, but I think all of our experiences would be that where an adult uses a weapon against a child that is conduct which most people believe should be criminal under all circumstances.

Q9 Chairman: How do you define a weapon?

Mr Macdonald: I am thinking in terms of a piece of wood or a bar and that it is a matter for people's judgment, it is a matter for Parliament's judgment as to whether it wants to criminalise that.

Q10 Lord Judd: I always say at this point I am not a lawyer, I am just a layman who looks to the law for protection and the rest. If the law is to work well does it not necessitate that there is a culture which the law is supporting, and whether or not appropriate wording was found in whatever form, if it were envisaged that in certain circumstances parents could slap a child, this sends a confusing message to the public? It is not saying that slapping or hitting children is wrong; it is saying there are certain circumstances in which it is permissible. Does that not, whatever the wording, make your task more difficult because of the knock-on effects?

Mr Macdonald: I think there are always uncertainties. Except in the most open and shut cases, whenever you try to apply the code test, the public interest test, there are often considerations and arguments on both sides. I really cannot express an opinion here about what I think Parliament should do. All I can say to you is that although I suspect prosecutions would be very rare, if the question is: could you issue guidance saying slaps are not to be prosecuted? the answer is we could not do that. Indeed, it would be fairly meaningless guidance and difficult for prosecutors individually to interpret exactly what was meant by it because it would have of course subsidiary questions.

Q11 Chairman: It might be helpful if for those of us who are not lawyers you could clarify the difference between common assault and battery.

Mr Macdonald: Assault is putting someone in fear of violence; battery is actually causing them violence. The technical legal definition of a common assault if it is battery is the laying of hands on someone without leaving an injury, so it is an application of force. Assault does not have to be an application of force; assault can simply be a threat of force. I hope that is clear.

Chairman: We move on now to the issue of deaths in custody. Paul Stinchcombe?

Q12 Mr Stinchcombe: I just wonder how concerned you are as the Director of Public Prosecutions that there have been so few prosecutions following deaths in custody even after coroners' verdicts of unlawful killing?

Mr Macdonald: Well, it is clear this is a litmus public confidence issue for us and for the state itself, it seems to me, and I understand why you ask the question. I want to try and contextualise this if I can and tell you something about my experience since I have been in this post, and I took up post at the beginning of November. It is clear that a disturbingly high number of people die in custody every year, there is no doubt about that and there is no doubt there are many and varied causes of death. Some people die from drug ingestion or alcohol poisoning, some die of natural causes, some commit suicide. The reality is that in a very significant number of cases the medical experts cannot agree about cause of death and that is a source of perennial problems for the prosecuting authorities. Undoubtedly, some people die in custody following a period of physical restraint by police officers. This is a particular issue of difficulty and it is particularly difficult because experts never seem to be able to agree on the terms of "restraint asphyxia" or what is called I believe "excited delirium" as to whether these syndromes exist or whether they apply in a given case. Sometimes it is possible to point to weaknesses in the system and to mistakes that were made and things not done as they should have been done, but that does not mean a criminal offence has been committed. It is the experience of the prosecuting authorities that it is very rare to discover evidence in these cases that a criminal offence has been committed. Sometimes it is possible to find evidence that a criminal offence might have been committed and then there are often very great difficulties of causation. The law presents a difficulty as well. Gross negligence manslaughter requires us to prove the defendant owed a duty of care, which is usually quite easy, that that duty was breached, which is usually quite easy, that the breach was more that a minimal cause of death, which can be quite difficult, particularly if the experts disagree, and the breach was so bad that it was grossly negligent such that it should be a crime, and that is always likely to be difficult when you are talking about the sort of individuals who are defendants in these cases. We do prosecute people for manslaughter, but the truth is we do not prosecute very many. From January 2002 to May 2004 there were 97 cases assembled by the prosecution authorities in which potential prosecutions were thought to be on the cards. Five of these were prosecuted. These were our strongest and best cases and every single one resulted in an acquittal. Since 1999 there have been four other defendants prosecuted by the prosecuting authorities following deaths in custody - three police officers and one doctor - all acquitted. I think when Judge Butler looked at decision-making in the CPS since 1994 he looked at 11 or 12 cases and he found in all bar two, I think, he was satisfied that the right decision had been made. I think he thought that one should have been prosecuted. It was and resulted in an acquittal. I absolutely understand the anxiety which this question expresses, which is how can so many people die without there being crime somewhere in the system, but we have to as prosecutors look at what the evidence is, apply the code tests, and prosecute where we think it is appropriate. The fact that we lose even our strongest cases suggests to me that there are some serious questions to be asked about whether there are as many criminal offences in these situations as people think.

Q13 Mr Stinchcombe: You have just mentioned the evidence upon which you have to make these decisions. Are there any particular inhibitions to the gathering of evidence when there is a death in custody? If so, what are those inhibitions and what might be done to remove them?

Mr Macdonald: We work closely with the police; and when we are discussing terrorism I would like to say something about the charging initiative which means us taking over responsibility from the police for selecting charges in criminal cases and indeed working with them and advising them at the early stages. Of course we are not in at the beginning of these investigations and it is in the nature of them that when the incident occurs the scene is not always immediately secured. There is a concept in criminal investigation of a "golden hour", which is the first hour after the incident, when evidence is most easily and effectively gathered. So far as investigations are concerned, I think we welcome very much the setting up of the IPPC and, as you know, the IPPC will have within its ranks a body of investigators so that it will be conducting investigations itself into these sorts of incidents, and we welcome that and we have already negotiated and virtually signed a protocol with them about our initiative. I have met with Nick Hardwick and John Wadham on two or three occasions, as has Chris Newell, to discuss this initiative. That is an advantage. If you are asking me about how we see investigations at the moment I think we are broadly satisfied with the way in which investigations are carried out. That is not to say investigations carried out by one police force on another will necessarily command as much public confidence as investigations carried out by the IPPC, and I have no doubt that was what informed public policy and guidance.

Q14 Mr Stinchcombe: Are you satisfied with the willingness of officers to give evidence as to what has happened?

Mr Macdonald: Since I have been in post I have reviewed four or five cases of death in custody in which the decision has been taken not to prosecute (and there are a number pending which I have not reviewed) and I have seen no signs in those that there was any reluctance on the part of the police officers to give evidence. Indeed, these were cases that were pretty clear-cut. I do not know if Mr Newell has something he would like to add to that?

Mr Newell: Can I just add to that, Chairman, if the question is aimed at the reluctance of officers who are under suspicion being interviewed, then I am sure that it is our regular experience that they would decline to answer questions, which of course is their right, and that may mean we are unable to get one side of the story, but of course that is a right which is afforded to any suspect being questioned in relation to any offence and if that frustrates or is thought to frustrate or is seen to frustrate an investigation that is a logical consequence of the right to silence.

Chairman: It is the only side of the story because the other side of the story is dead.

Q15 Mr Stinchcombe: Just one final matter for my part, you have mentioned already problems in securing public confidence given the failure to prosecute in so many of these cases and you have also mentioned the closeness of the working between the Crown Prosecution Service and the police. Do you think that there is a problem with that closeness of the relationship whereby people do not have confidence that it is completely independent?

Mr Macdonald: No I do not and the fact that the Prosecution Service has been given by Parliament in the Criminal Justice Act the responsibility (taken over from the police) for selecting charges in criminal cases and is required to work more and more closely with the police is a sign that Parliament has confidence in us to act independently. I would like to say this: the independence of the prosecution service is absolutely fundamental to public confidence in it. The prosecution service has to be an independent prosecuting service and certainly so long as I am DPP it will be; it will be fiercely independent. The fact that we work with the police and advise them on investigations does not mean that we direct them, it does not mean we control investigations, and it does not mean they control us, and I stress over and over again to my prosecutors that the advice they give the police will be firm and independent advice. If it is advice that is unpopular to the police then so be it. I accept the thrust of what you are saying, which is if we are not independent we will not command public confidence, so that is why we are going to be independent.

Q16 Lord Campbell of Alloway: Could I take this a little further, Mr Macdonald. Rightly, you are stressing the independence of the IPPC in this context to seize documents or enter premises. They will have, no doubt, the confidence of the public but would it be acceptable to you that they should be given responsibilities for making recommendations as to whether to prosecute or not? Not the decision, the decision being of course elsewhere, but that they should, having collected documents and having assessed the position to make a recommendation?

Mr Macdonald: I do not think that would work because of the nature of the relationship between us which is going to be determined by the protocol. We are going to be working with the IPPC in the closest way from the start of these investigations. We are going to be a team working together and I think it is inimical to that team concept if one side makes an independent recommendation of its beliefs to another. Parliament has decided that the prosecuting authority should acquire this new power and it is important that it is prosecuting lawyers who determine what charges should be in the criminal justice system, and that is going to bring enormous process benefits. It has already shown in the pilot areas in which we run it an increase in convictions of 15 per cent, an increase in guilty pleas of 30 per cent, and a decrease in discontinuances of some 59 per cent. The reason is we select the right charges, they are professionally selected, and those cases are more professionally progressed. I think it would send out quite the wrong signal to say that in the case of a particular type of offence that system should not apply, and indeed this was a matter which was considered by the Attorney General in his review and firmly rejected. I do not think it is something Liberty wants to progress either.

Q17 Lord Campbell of Alloway: Could one not turn it the other way round, Mr Macdonald? It would be very unlikely, would it not, that the CPS would prosecute unless the IPPC were in agreement with them?

Mr Macdonald: I think it is almost inconceivable that we would be prosecuting in a situation where the IPPC thought that we should not.

Q18 Lord Campbell of Alloway: That is what I am saying.

Mr Macdonald: I think it is going to be a close working relationship and I have spoken at length with the Director and Deputy Director of the IPPC and I am quite sure we are going to have a very close working relationship.

Q19 Lord Campbell of Alloway: Could consideration be given to what I am suggesting? I need not repeat it, but I think it could be formalised and if you were to formalise it, it could only attract even more respect from the public.

Mr Macdonald: Of course.

Chairman: I am sorry to have to say to you, Mr Macdonald, if you could just hold the answer to Lord Campbell's question in your head, there is a division in the Commons and I shall have to suspend the Committee for ten minutes to enable us to vote.

The Committee suspended from 5.01 pm to 5.10 pm for a division in the House.

Q20 Chairman: Mr Macdonald?

Mr Macdonald: Could I just return to the answer I gave to Lord Campbell because I think I may have misunderstood him. If the suggestion is that we would welcome a recommendation from the IPPC in the sense that they have expressed what their view is of a situation, of course we would be delighted to receive that, and indeed we already receive views from people during the course of investigations. I should also make clear that where there has been a criminal offence, where we feel that the code tests are passed, the evidential test and the public interest test, we use our best people and we use the best barristers because we do recognise the importance of this litigation, and once the code tests are passed we are absolutely and will be absolutely resolute in prosecuting those cases. I am sorry, I am speaking rather than answering questions but we also are very much planning to expand the pool of counsel which we use both to advise and to prosecute these cases, and I think that may make a difference.

Q21 Chairman: Can I just follow up with a couple of supplementary points. You referred just now to protocol between you and the IPPC. Is it possible for us to see that protocol?

Mr Macdonald: It has not been signed yet.

Mr Newell: It will be signed very shortly. I do not think there will be any problem whatsoever with letting you have a copy, with that caveat, that it has not yet been signed. I sincerely believe that any amendments made to it at this stage will be quite peripheral.

Mr Macdonald: We will send you a copy.

Q22 Chairman: Thank you very much. The other thing is do you as the DPP personally review every death in custody case?

Mr Macdonald: I have an idea what the practice was before but now I get notification of every decision and a file containing the material which the decision-maker thinks I need to see in order to satisfy myself that the review has been appropriately conducted, and there is a right for me to call for any additional material so I can satisfy myself as to that. On that basis I have reviewed four or five cases since November and I have been satisfied that they have been conducted appropriately. It is not possible for the DPP to review every case in terms of all the evidence in every case because, as I said at the outset, unhappily there are so many of them.

Q23 Lord Judd: We of course are committed to the European Convention on Human Rights. It is absolutely specific on this point that the state has a responsibility and a duty to ensure adequate investigation of deaths in custody. What do you see as the obligations this places upon your office and your staff?

Mr Macdonald: I think we need to recognise that amongst the most important obligations the state has is that of protecting those in its custody, and when people die in the custody of the state that is something that needs the most thorough investigation. Our duty is to give all the advice that we can to the police to ensure that they have the benefit of the best legal advice in conducting investigations. Our enhanced role in advising police and selecting appropriate charges and determining who should be charged and who should not has a role to play in this. We do work closely with the police now in these investigations and our responsibility is to play a part in seeing that those investigations are properly serviced legally. We do not carry out the investigations and we do not have the power to direct the police but we do have the ability to advise them and we do have the power now to decide whether someone should be charged and if they are charged what the charge should be.

Q24 Lord Judd: In effect are you saying that it is not just a matter of the outcome in terms of if there is a court case people are proved guilty or innocent but it is a cultural process that in the course of your work alongside the police hopefully you are strengthening their commitment to that obligation?

Mr Macdonald: You cannot investigate these cases properly without proper legal advice. These are complicated cases involving issues of causation, which is one of the most complicated issues in criminal law, and issues of complex medical evidence. You cannot expect the police to conduct these investigations without the clearest legal advice and comprehensive legal advice so our role in this - and I suppose we are part of the state although we are independent in many ways, we are a semi-detached department - is to ensure that the state's investigators have all the legal assistance and advice which they require and then our duty is to make the appropriate decisions according to the code as to who should be charged, if anyone, and what the charges would be. So it is obviously an important role.

Q25 Lord Judd: What if you came to the conclusion that the police investigation or inquest investigation was unsatisfactory or inadequate; how would you respond to that and how would you follow it up? What would you do?

Mr Macdonald: Again I have to stress that we do not carry out investigations and we do not have the power to direct the police, but as the lawyers involved in advising the police I dare say the reality of the situation is that if a prosecutor felt that something had not been done that should have been done he or she would say to the police, "This is the reality of it on the ground, perhaps you should do this or you should do that," but that is, if you like, somewhat ultra vires to our function. Our function is to provide legal advice. Sometimes the omission might be an omission which has a legal impact and therefore one would say as a lawyer advising the police, "This evidence is not going to work without that evidence," or, "This case is not going to proceed adequately without that evidence," or, "In law you are going to require this if you want to prove that, or if we are to prove that." So there obviously are occasions where although we do not direct the police we offer them the strongest advice about what they should do. I cannot imagine a case of the gravity that these cases represent where if the prosecutor felt there was an omission that had some legal implications he or she would not point it out. In fact, they would be under a duty to point it out and would do so.

Q26 Lord Judd: You say you cannot imagine a case in which, if the prosecutor came to that conclusion, advice would not be offered. I find your words interesting. You say you "cannot imagine" that; is there a policy in that respect?

Mr Macdonald: The policy is when we give charging advice to the police and when we advise the police on the building of cases, we give them all the advice they need to build a case strong enough first of all to prosecute and secondly to achieve conviction. It is incumbent in the role of the prosecutor to provide the police with that sort of advice. That is the job.

Q27 Lord Campbell of Alloway: Is not the essence of the problem being raised, and we have had evidence - I put it very shortly - that what happens when somebody dies is that the drill, the investigation is wholly unsatisfactory and that even with the material provided to the coroner we have had evidence that that was unsatisfactory and when you ask what should be done we have never had, not that I have been sitting here, a really satisfactory answer. What on earth can the CPS do if fundamentally the source of information is unsatisfactory? That is a matter for the Home Office, is it not?

Mr Macdonald: It is a matter for the Home Office and of course if we are confronted with evidence which is unsatisfactory we cannot prosecute a case, we cannot make up evidence. Obviously that the investigation acquires that evidence which is probative to guilt is fundamental. We have to have a system which enables probative evidence to be secured at the earliest opportunity.

Q28 Lord Campbell of Alloway: Look what has happened to your best cases. It was the best you could do and it did not go. This is no criticism of your remit; it is a fundamental criticism really of the way in which evidence is initially gathered when it is fresh.

Mr Macdonald: I think Mr Newell wants to add something.

Mr Newell: I just wanted to add this. Mr Macdonald has stressed the importance of us giving appropriate advice to investigators. It is equally important that not only we give the right advice but we give it as early as possible, and the protocol that we are about to sign places very great emphasis on that. You will find when you have a copy that it is quite mechanical in terms of describing the stages at which we should be involved and should be offering advice, and the IPPC believe they are going to be able to investigate independently about 30 cases a year. One would assume that that number would include the majority of deaths in custody, certainly any death in custody which looked remotely as if it was going to found criminal proceedings, and so we would be looking to liaise with them at a very early stage to ensure they were not only getting the right advice but getting it as soon as possible.

Q29 Mr McNamara: Mr Macdonald, I want to raise with you the questions of offences applicable after death in custody and basically there are two: gross negligence manslaughter and misconduct in public office. It is that latter one to which I wish to refer. You will probably recall the case of Christopher Alder, which occurred in the city part of which I represent, when his death occurred in the presence of police officers after he had been placed face down on the ground in a police cell for 11 minutes and the inquest verdict was unlawful killing. The court held that a charge of misconduct in public office should not routinely be added to a charge of gross negligence manslaughter. Obviously I am not seeking for a moment to challenge what the court has said, but I am concerned about the narrowness of what has been involved in that sort of decision. My question therefore to you is: are prosecutions now or in the future going to be inhibited by the terms of the criminal law itself, for example by a very narrow construction of the offence of misconduct in public office, because certainly in terms of public perception within the city I represent they just could not understand how, given the circumstances which they knew about long before the TV presentation of it, there was no successful prosecution of what seemed to be gross negligence, and people just do not understand this whole question of it not being misconduct in public office?

Mr Macdonald: I think five defendants were acquitted on the direction of the judge before the case even got to the jury. We can only prosecute cases according to the law as it stands. Gross negligence manslaughter requires the element which I set out and you are right in saying that the Court of Appeal has given a particular interpretation of the offence of misconduct in public office. We as prosecutors have to live with those legislative and judicial restrictions, I am afraid.

Q30 Mr McNamara: Is this in fact going to narrow your opportunity to prosecute?

Mr Macdonald: We can only bring prosecutions which are in accordance with the law as set up by Parliament and the courts.

Q31 Mr McNamara: Looking at the three tests put down by the Court of Appeal --- I am not seeking to argue that case.

Mr Macdonald: You are asking me to say whether or not I agree with the Court of Appeal.

Q32 Mr McNamara: No, what I am asking you is how difficult or otherwise, if you had a future case where somebody died in similar circumstances, you would feel it was to meet those three criteria laid down by the Court of Appeal

Mr Macdonald: We would have to bring the case in accordance with those criteria. We would have to look at those criteria and see how the facts of the case fitted within them. If they did we would bring the case; if they did we could not. You have to draw your own conclusions, I am afraid.

Q33 Mr McNamara: That is very much a subjective test then?

Mr Macdonald: It is an analysis which the prosecutor has to make. The prosecutor has to look at the evidence in the case. He or she has to consider what the law is. He or she has to apply the law to the evidence and make a decision as to whether the code tests are passed. The law in that case would be what the Court of Appeal said and the terms of the statute.

Q34 Lord Lester of Herne Hill: Could I ask the question in a slightly different way: are you satisfied that the range of criminal sanctions available is sufficient, whether it is gross negligence manslaughter or misconduct in public office, to enable you to address the serious social evils of unjustifiable deaths in custody or do you think law reform should be considering changes in the definition of offences?

Mr Macdonald: I think one could imagine offences in which it would be easier for us to prosecute successfully.

Q35 Lord Lester of Herne Hill: For example?

Mr Macdonald: I do not want to go into too much detail on that but one can imagine offences of misconduct in public office which were couched in broader terms. That is a matter for Parliament. If Parliament brings in a law to that effect we will quite happily use it I am sure.

Q36 Baroness Prashar: I want to come to internal procedures because last year the Attorney General conducted a review of deaths in custody and some changes were recommended. How many of these changes have been implemented?

Mr Macdonald: All of them have either been implemented or are in the process of implementation. There were 12 recommendations. What I can do is either read them out now, which might take some time, or we can send you a note of the recommendations and their state of implementation. As I say, all 12 have either been implemented or are in the active process of implementation. I am very happy to go through them if the Committee want me to.

Q37 Baroness Prashar: In view of time I think it would be helpful if you can send them to us. Are you satisfied that these will ensure public confidence? What is your assessment?

Mr Macdonald: I think one of the keys to confidence is that the public trust that the investigations are comprehensive and effective and that the prosecutor's decision-making is transparent, and for us the emphasis is upon transparency. We need to be absolutely transparent about the decisions that we take and the way in which we take them. Sometimes there are legal reasons why some things cannot be disclosed but I think we always have to in the prosecuting authority have a strong presumption in favour of transparency. We now meet families from the early stages. We ask them for their views about what we should take into account before we come to decisions. We need to maintain a relationship with them and we even talk to them about the counsel we propose to instruct, although of course the final decision has to be ours. One of the keys of public confidence for us in an area where I am afraid there never are going to be a huge percentage of prosecutions because, as I have said, most cases do not evidence crime, that transparency is absolutely essential because unless people can see what we are doing we are not going to acquire the level of public confidence that we need in this area. So our watch word will have to be, in future, transparency.

Q38 Baroness Prashar: My next question really is the relationship that you have with the Prison and Probation Ombudsman because, as you know, Stephen Shaw has been made responsible for conducting investigations and inquiries without any statutory basis. Will that in any way have any effect on your ability to bring prosecutions in these cases?

Mr Macdonald: I do not think it will. I do not think the terms of reference of the Ombudsman would be particularly relevant to the work that we would be doing in a case of this sort. Obviously in prosecuting these cases and working with the police, we are always going to be happy to talk to anyone who can shed light on what happened and I would not say we would not talk to individuals but I think the view that we took when we looked at this - because we had notice of this question - is we could not see particularly how the work of the Ombudsman would be assisting us. It might be of assistance in context-setting and there might be some assistance that could be given in terms of the culture of particular prisons, for example, but I think the terms of reference of the Ombudsman and the sort of work we are undertaking when we are looking to prosecute deaths in custody are reasonably far apart.

Q39 Baroness Prashar: Have you had a meeting with him in the way you have met the IPPC?

Mr Macdonald: No, I do not think we have.

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 them?

Mr Macdonald: I am certainly very happy to meet with the Press 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 prescription of 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 arranging 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 offence 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 charged 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 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 are 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 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 made 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 SIAP-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 SIAP (?) 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 SIAP 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 help theirs. There can be a wealth of sensitive material which we simply do not disclose. Prosecutors in making these decisions are making 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 v 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 which 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.