Examination of Witness (Questions 60-79)
MR PETER
CLARKE CVO QPM, AND
MR KEN
JONES QPM
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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