Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 60-79)


24 OCTOBER 2005

  Q60 Chairman: We are now joined by Deputy Assistant Commissioner Peter Clarke of the Metropolitan Police and Ken Jones of the Association of Chief Police Officers for the second evidence session this afternoon in our inquiry into counter-terrorism. Thank you both for coming. Is there anything you would like to say to start or shall we get straight off?

  Mr Clarke: We are entirely in your hands, Chairman.

  Q61  Chairman: Perhaps I can ask Mr Jones first of all how different is the threat we now face from international terrorism compared to the terrorist threat of the past?

  Mr Jones: I think the fundamental difference is that we now have people prepared to use suicide as a weapon and as an ideological motivation rather than as a purely political motivation which we have seen in other forms of terrorism. The other thing that has changed is that the organisation is different. It is shapeless, it is amorphous and it is constantly changing and that is not inside our recent experience. That is a fundamental difference, the suicide issue and the ideological motivation.

  Q62  Mary Creagh: The committee always aims to ensure that its scrutiny of the human rights compatibility of government proposals is both rigorous and even-handed. To assist it in this it wants to ensure that it fully understands the "operational" reasons behind your request for the extension to the maximum period of pre-charge detention. Are there any additional operational reasons that you would like to add to those that are summarised for us in the briefing from Assistant Commissioner Hayman?

  Mr Clarke: I think most of the operational reasons are broadly touched on in that paper, but obviously all of them are capable of expansion should the committee so wish. I think the broad heads under which we came to the conclusion that this was a reasonable way forward are contained within the paper.

  Q63  Mary Creagh: Statistics show that only 36 people in total have been held between seven and 14 days between the beginning of January 2004 and 4 September 2005 under the Terrorism Act and that of the 21 held for more than ten days only two were released without charge. These figures do not support the case that the police are having to release without charge after 14 days significant numbers of suspects. How do you say that the statistics showing the use and outcomes of extended pre-charge detention for 14 days support the case that you are making for extending that period?

  Mr Clarke: The first thing the statistics show is that we use the existing powers very sparingly and only in the most serious or complex cases, and we only apply for warrants of further detention after consultation with the Crown Prosecution Service, as I say, only in the most serious cases. That is why the numbers are comparatively low. The reason we are saying that there is a need for change is based partly upon experience and partly upon our perception of the way in which the nature of terrorist groups is changing. Mr Jones has touched on this already. The fact is that the groups we are now looking at, because they operate a regime of no warnings, unlike Irish terrorism in the past, and with a determination, it appears, to cause as many casualties as possible means that we cannot operate in the way we used to, which was to try to arrest terrorists at or near the point of attack, to catch them with the bomb or the gun, if you like, when the evidence was likely to be the strongest to put before the court. The reality now is that our perception is that the threat to public safety is simply so great and our difficulties in penetrating and gaining, if you like, control up to the point of arrest are such that on public safety grounds we have to intervene earlier. This means that when we arrest people we frequently have grounds to arrest, as required by the law, but the evidence in terms of admissible evidence to put before a court is lacking. That means that the admissible evidence-gathering phase begins after the point of arrest and it is that which leads us to say that we need more time. What we are seeing is that the increased use of high technology, of computers, of the internet and of mobile telephony as a means of communication between members of these global, loosely-knit networks, is such that in order to gain a picture of what we are dealing with and to gain the evidence we need much more time than we had in the past. Every investigation seems to push this trend forward. If I may, and I have to be very careful because there are sub judice issues, only this weekend we arrested three individuals who are currently in detention and I am told by my officers that we have recovered some 750 gigabytes of data. I do not know what that looks like. I asked what it looks like and they said, "If we printed it out this would be a pile of paper 66,000 feet high". Obviously, we are not going to be able to go through all of that but we have to investigate as much of that as possible and this we have found repeatedly is where our evidence comes from.

  Q64  Mary Creagh: In the Bill, clause 23, paragraph 2(1) the extension of the period of detention by judicial authority can be made in any part of the United Kingdom by a police officer of at least the rank of superintendent. Given the rarity and sparing nature of these powers that you have just described, why is it only the rank of superintendent? It seems to a lay person quite a low grade of officer that can make this application.

  Mr Clarke: A superintendent, I would suggest, is quite a senior officer. The point is that it is at superintendent level that we have the senior investigating officers who are in day-to-day command of investigations. That applies not only to terrorist investigations but also right across the board of serious crime. Those officers at that level of seniority are the people with the most complete and detailed knowledge of the development of the case. They are driving the investigation and they are in the best position to put before the court precisely the situation in the investigation and to explain, most importantly, what is happening and why further detention is needed. It is their job in those circumstances to persuade the district judge that they are doing everything as quickly as they can, applying the maximum amount of resources so that the whole procedure can take place as quickly as possible.

  Q65  Mary Creagh: Where will you hold suspects who are detained for up to three months and do you think that there is a risk in such a lengthy period of custody that it could amount to inhuman or degrading treatment?

  Mr Clarke: I would say straightaway that the facilities available to the police are not suitable for periods of detention of that period. It is probably being envisaged that any detention beyond the 14 days should be in prison and the regime obviously will be a matter for the Prison Service or the Home Office to discuss, but I would envisage that it would be similar to that which is applied to unconvicted prisoners at the moment. Then, in the normal way which we do at the moment, if there is a requirement for further interviews to be conducted we would ask for a production order for them to be placed into police custody for as long as it takes to conduct any further interviews before a return to the prison facilities.

  Q66  Mary Creagh: Is there any risk that statements obtained from suspects who have been detained for interrogation for a period much longer than the current maximum of 14 days may be regarded as unreliable by the courts and therefore excluded under PACE?

  Mr Clarke: I think there is always that risk. Obviously, the longer a person has been in custody arguably the more that risk increases and that is why all the safeguards that we would wish to be contained within the legislation in our view are terribly important. It is important to recognise as well that we are not asking for this period of further detention solely to be able to question people, if you like, to put the same question again and again. I very much subscribe to the view put forward by Lord Carlile in his report that extending the period of detention solely for questioning is not appropriate. What we feel it is very important for is to investigate the totality of what we are looking at, both here and internationally, so that we can have a picture of what we are dealing with, put together a sensible interview strategy and make better quality decisions about charging in collaboration with the CPS, obviously. This is a discussion I frequently have with them. They want to be in the best position to make high quality charging decisions and the discussions I have with them are very much along the lines that within the current time constraints that is very difficult indeed.

  Q67  Chairman: Mr Clarke, you gave one example of the problems you face. Without offending the sub judice rules, which obviously we do not want to do, can you give one or two other examples of where you felt particularly under pressure after the two-week period and would have liked longer and, if so, how much longer would you have liked in those cases? I was going to ask Mr Jones then to comment on where the three months has come from. Why not six months, why not one month, why three months?

  Mr Clarke: There are numerous cases, many dealing with the decryption of data and the exploitation of computer material, where we would have liked to have longer. Sometimes—and I have to be extraordinarily careful here—it can go something like this. We might have a number of people in custody whom we suspect of conspiring together to commit a terrorist act. We might not be sure exactly what the terrorist act is but we might have recovered or gathered enough material to show that yes, there is some form of conspiracy here. We might get to the stage where we are able to lay charges. What we are very often not in a position to do is understand the roles of individuals within that conspiracy. Quite rightly, defendants are usually advised that they should not answer questions whilst in custody and so we do not have an opportunity at that stage to gain from the suspects' own mouths their role in it. However, there are cases where we have been aware of the fact that some members of these conspiracies, particularly those perhaps who had a lesser role, would like the opportunity to speak to us, to explain their role and in that way not find themselves in the position of being charged as prime conspirators. It is my belief that in several cases, had we had longer to gain a proper understanding, as we subsequently have, of the respective roles of individuals within these networks, and if we had been able to put that to them, that we understood that they were playing a lesser role, some of these people would have spoken to us, would have explained their role, would have explained the role played by others and maybe even given evidence of that. There is obviously a degree of speculation in this but I can only rely on my own experience of what I have seen, what I have heard. My belief is that public safety might well have been well served had that been available to us and had that happened. I accept that is to a degree speculative. I wish I could go into more detail here but I am afraid I cannot.

  Mr Jones: If I might elaborate on some of those points, because I am not directly connected with investigations, the knowledge I have of other agencies' activities around the world also tells me that the sequential nature of investigations is now a key feature of these global investigations. It is not just a question of resources. In other words, you go from A to B. B might be in Pakistan. That then spawns five or six inquiries in other parts of the world which indeed lead to others. This is putting huge pressure on investigators like Peter to bring these cases to justice. This gathering of information nature of an inquiry is now becoming quite common. Seeking to resolve them in the time that we currently have, which was designed, I think, for more conventional criminal justice processes, is proving difficult. On the point about three months, there is nothing magical about that. It is looking at the series of investigations, looking at the scope of the task that we now face, looking at the sequential nature of investigations and the experience to date, not just in our country but also in others, which suggests that it is around that sort of period where some of the most complex have been resolved. We desperately hope to resolve them inside the seven days, never mind the 14 days or beyond. There is no intention on the part of the Police Service to exploit any new flexibility to coast, take our time or what-have-you. That is not good for those who are suspected of being involved in police activities, or for the public of this country. That is why we are determined to use this new extension, if indeed we are granted it by Parliament, very selectively indeed and very carefully. A long rambling answer, Chairman, but the three months is based on our experience and looking at other jurisdictions and on the technical complexity of some of the inquiries that we are faced with now.

  Q68  Lord Lester of Herne Hill: I just wonder why, if these points are correct, it does not apply to all forms of serious organised crime, so that if Parliament were to give you this extension would not the next thing be to extend it to all serious organised crime?

  Mr Jones: I would argue not, based on some of the discussions I heard earlier about human rights. We are faced with a completely different threat. The threat from organised criminality does corrode our way of life and our democracy but not in the way that suicide terrorism seeks to kill and maim dozens, if not hundreds, of people. That is the difference. The proportionality test would not be met by me sitting here and saying that for organised criminality we want you to extend the period for which we can detain people up to three months. The argument would not hold water.

  Q69  Lord Lester of Herne Hill: Even for very serious conspiracies about drugs or other forms of murder that do not involve terrorism? Do you say that there is some distinction between terrorist purposes and these other forms of serious organised crime, such as money laundering?

  Mr Jones: That would be more about convenience for us as investigators. This is a grave, current and enduring threat that the country faces and this is why we are looking for this extension to our capability but in a very narrow way, only around particular suspects. I did read that into the documentation, would not the Police Service seek to push out the boundaries elsewhere? Absolutely not. I personally would be against that.

  Q70  Dan Norris: Mr Clarke, you talked about the problems of time and how there is a huge demand on the time of you and your officers. You also painted this vivid picture of a computer hard disk, if it were printed on paper, creating this mountain of paperwork. Is that not really an argument that you need more officers working harder on that paperwork or whatever task you need to be undertaking rather than extending the period from seven days to three months?

  Mr Clarke: If I may say so, no, it is not. It is not about resources, as is frequently put to me, "If you had more officers doing this could you not get through it more quickly?". It is about sequencing. If I could give an example, we often seize large numbers of mobile phones and SIM cards in a search. To conduct a search of an average domestic dwelling to the standards demanded by terrorist investigations takes two to three days on average. We frequently find SIM cards and very often, obviously because of their size, they are easily concealable, so we retrieve them. They are then sent to the laboratory where they are downloaded and the data is drawn off them. From the service providers we then have to get the subscriber details and the billing details. Quite often that information is held abroad and so it takes time to get that material back. Once we have received that material we have to analyse it and that involves a lot of charting and cross-checking, going through databases and then trying to make sense of the connections that evolve from this. The relevant parts of that then have to be put into a form of interview strategy to be put to the suspects who are being held in custody. At the same time the material that we hold, the parts that we intend to interview people about, have to be disclosed to the defence. The defence then have to consult with their clients and take instructions and at the end of that process we can get round to asking the questions. That, understandably, takes a particularly long time. Then, as a result of the answers to those questions or not, we have to start the whole process over again. That is just one example. The same applies to all sorts of other data. Quite often material has to be translated as well. It is not simply about resources. Obviously, I would not sit here in front of you and say that we do not want more resources; of course we do, but it is not simply a matter of resources. It is very much about the sequencing of the activity.

  Q71  Dan Norris: Thank you. You seemed to say two things there, first of all that it is not an issue about resources, and then you said it was partially (my word) resources.

  Mr Clarke: If the Commissioner were watching he would not thank me for saying we did not need more resources.

  Q72  Dan Norris: Is it fair to say that some increase in resources would help and therefore perhaps the three-month detention period is still too long?

  Mr Clarke: No, it would not. However many resources we had I do not think it would cut into the basic problem here, which is the sheer weight of material which we are routinely recovering in these cases. This has to be analysed at some point and then focused into an interview strategy and an investigation strategy set by the senior investigating officer. At some point one person has to be aware of what is emerging from all this data. It cannot just be a cavalry charge.

  Q73  Dan Norris: So it is a qualitative thing rather than just bodies doing it?

  Mr Clarke: At the end of it, yes. We need as much time as we can to gather and grab the data in the very beginning but then it has to be focused, analysed, understood and made sense of and that process gets narrower and narrower.

  Q74  Baroness Stern: Mr Clarke, the briefing from Assistant Commissioner Hayman was very helpful to us and the practical examples were also helpful and we were therefore able to understand the problem that you were setting out, but what he did not put in that very helpful document was any statistical evidence suggesting the problems that are caused by the failure to have a three-month limit, how many prosecutions could not be brought, any prosecutions that had to be abandoned or any prosecutions that went wrong because you had to make a wrong charging decision. Do you keep such information and, if you do, would it be possible to provide it to the committee?

  Mr Clarke: I cannot sit here and say X number of terrorists have evaded justice because of the lack of provision. I can point to a particular case as an example, if that would help, where, had we had this provision in 2002, the outcome of a recent court case, the so-called ricin trial, might have been very different. Mohamed Meguerba was one of the suspects in that case and it is likely that we would have held him or applied for his detention for sufficient time to find that his fingerprints were on the ricin recipe and he would have stood trial as a main conspirator in that case had he not fled the country. As it was, he was not available to stand trial and so the jury were not able to benefit from his presence in the court. I cannot say whether the jury would have come to a different decision but I think it would have been possible for the prosecution to present the case in a way which was easier for the jury to understand what that conspiracy was about. As much as anything—and I have pointed to other cases and I have to be very careful, as I said,—there have been cases where people might have had a different reaction to their period of detention and to the questions that were being asked of them, where we probably would have had a greater understanding and where possibly charges would have been laid. It is also as much about the changing nature of what we are facing, as Mr Jones alluded to earlier in our conversation. When we asked two years ago for the period of detention to be lifted from seven to 14 days we felt that that was reacting to the change we were beginning to perceive in the nature of these networks and what we needed in order to investigate them. Everything that has happened since then has confirmed in my mind the fact that the initial analysis was right. This changing nature of the threat did require a longer period, and the events of last year in particular, 2004, the cases which we examined then and which are waiting to come to trial, confirmed in my mind that 14 days is insufficient. In one particular case we got to the stage where it was almost by chance on the 13th day of detention that we found the crucial evidence on a computer which enabled the Director of Public Prosecutions to authorise charges. As I say, that case is awaiting trial so I cannot go too much further, but to get to that stage, and there was a comment earlier about do we have to get my officers to work harder, they were actually sleeping on the floor, not going home, just ploughing their way through this vast amount of data, and we would rather serious criminal investigations were conducted in a slightly calmer and more ordered atmosphere than that.

  Mr Jones: The other issue, and it is a good question and I tried to have some work done on this, is that it is such a small number of cases that we are talking about now, and Peter has difficulty with that and I understand why, and we are hopefully dealing with a tiny number of cases in the future, but the statistical rigour that might perhaps bolster this is pretty difficult to give you. We did try very hard to do that but without delving into some very difficult cases it is hard to explain. What I can say is that work we did looking at other investigations elsewhere did lead us inexorably towards this very guarded use of extended detention.

  Q75  Baroness Stern: You were lucky and found the thing on the 13th day and that is very good news, but does that justify an extension to three months?

  Mr Clarke: What is envisaged is up to a maximum of three months. I certainly would not envisage the three months becoming the norm. If it is just two days past 14 days that gets us to the point of charge then the requirement is met. On the point about judicial oversight, I as a police officer would not want this power to sit in the hands of the police. I think it is absolutely crucial for community confidence in the process that there is robust judicial oversight and that there is as much transparency as is possible in this type of case.

  Mr Jones: And professionally we would not want to be coming back to Parliament to talk about an extension beyond, say, three weeks because we had suddenly discovered that the measures we are proposing were not up to the task. The way we see the threat changing and the compression of time from groups becoming interested to initiating an attack has shortened from years to now months. These are all changes that we are having to grapple with, so there is an element of trying to think strategically about this and about the future.

  Q76  Chairman: Mr Jones, what is the problem in the present law which would stop you bringing lesser charges against a suspect and then continuing to investigate and question in relation to more serious offences with a view to bringing possibly more serious charges later?

  Mr Jones: There are a number of problems with that. A less serious offence, whatever that may be, may or may not be disclosed and there are issues around bail and around the regime whereby offences can be investigated post-charge. It is not quite as simple as that. I know of some pretty complex investigations where there are no charges available, lesser or otherwise; they are just not there, although we have seen some cases where we have had financial offences where we have had to charge. In fact, I have some data in front of me which shows that quite a few people arrested under prevention of terrorism legislation are in fact dealt with for these lesser offences, so it has not provided for us the traction then to take those individuals forward and bring them to book for more serious offences.

  Q77  Lord Plant of Highfield: I have two questions. I am not sure who should answer which. First, since the Terrorism Act of 2005 there have been available to the authorities control orders. Prior to that there was a stark choice: charge or release after 14 days. Why, in the brief given to us, was no reference made to control orders because it looks as though control orders might have been the solvent of this particular dilemma of charge or release? The second question, and we were talking to the Home Secretary about it earlier, is, do you think allowing intercept evidence in the courts would help this process that you have been outlining and again possibly reduce the amount of time you would need to hold a suspect?

  Mr Jones: On the control orders, we see the control regime as a complement for pre-charge detention, not a substitute, so for appropriate cases it may indeed be the case that a form of control order may deliver what we require. There will be other suspects where to have effectively some sort of house arrest would I think be deeply unsatisfactory for a number of reasons which we discussed when control orders were first mooted. We do not see them in any way as a substitute but rather as a complement for the measures we are proposing. It is an omission on our part that we did not describe that in our submissions to you. Peter might be able to add to that. I am able to speak about the intercept one because I am here to speak for the association today. Let me just read out what the policy is: "The Association is minded to endorse the use of intercept material as evidence but not within the current legal landscape". We see, operationally, presently, the balance of advantage is to remain as we currently are, where we are not comfortable about intercept evidence going to trial. However, we are positively addressing the strictures and constraints which we feel need to be addressed before we can move totally into a situation where we will be adducing intercept as part of criminal trials. It is a positive exploration and it is quite active and vigorous. That is taking place as we speak. I think the Home Office too are looking at this and I would hope that by the end of the year we will have a more definitive statement on that. However, there are some difficulties. We are open to the suggestion, in fact more than that, but there are some risks.

  Q78  Dr Harris: I am a bit confused because you said that you accepted that but you did not explain why control orders would not work.

  Mr Jones: I did not say they would not work.

  Q79  Dr Harris: Sorry; you said they were not a substitute for extended detention. But then in response to Lord Plant you did not explain why. Clearly in some cases it would be a useful substitute since you are seeking to control someone while investigations continue.

  Mr Jones: I will defer to my investigator colleague.

  Mr Clarke: In some cases it is entirely feasible that it might be appropriate but it is important to remember that what we are suggesting is that extended detention would only be applied for in the most serious cases. The question to ask then is, is a control order an appropriate way of safeguarding the public from the people who, by definition, would be suspected of the most serious terrorist offences? I think the answer must be that the degree of control afforded by a control order might not always be appropriate.

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