Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 80-89)


24 OCTOBER 2005

  Q80  Chairman: Earlier on, Mr Clarke, you said that you welcomed the judicial role in looking at these extensions and I am very pleased to hear that but could I ask you about the existing practice? Have any applications under the existing rules been refused by judges at any stage to your knowledge?

  Mr Clarke: I have been thinking about this. I cannot bring to mind a case where an application has been totally refused. It is very often the case that we will ask for perhaps four or five days and the district judge will say, "No, 48 hours and then I want to hear the case again". That is frequently the case, so the answer to your question is simply that. I cannot bring to mind one where they have said no. I think that is a reflection of the fact that before we go to court and ask for a warrant of further detention we do think very carefully about it and we do consult with the Crown Prosecution Service as to whether it is an appropriate course of action. If it is not we do not make the application.

  Mr Jones: There is a great amount of filtering that goes on before we get to the district judge stage and we certainly like to think that we put in the checks and balances to make sure that unwise applications are never and will never be made.

  Q81  Chairman: In the context of the role of judges, certainly Mr Clarke was here when we were asking the Home Secretary about the question of the investigating judge system as in continental Europe. What do you think of that suggestion in terms of those inquiries from your point of view?

  Mr Clarke: Yes, I heard the discussion about apples and oranges and all of that. I frequently discuss this with Judge Bruguie"re from France, who is a lively interlocutor on these subjects. He finds it difficult to comprehend the British system at times where there is not earlier judicial involvement in the direction of the investigation. My only fear about greater involvement is that we are talking about extending detention here with a view to enabling the investigation to be driven forward and if we construct something which looks like the police briefing and putting reports to the CPS, the CPS then briefing and putting reports to a special advocate and then to the district judge, and then perhaps a high court judge becoming involved at a later stage or some other judicial involvement in the actual investigation itself, we may get to a stage where there is so much report writing and briefing that we lose what we are looking for, which is giving us time to focus on the business of investigations so that we can get it done as quickly as possible so that the person can either be charged or released. In principle, and it is obviously a matter for others, I have no difficulty whatsoever with judicial involvement.

  Mr Jones: Chairman, can I offer a broader point, and I differ from Peter slightly here? I think that positions judges in a fundamentally different role within our judicial system than they currently have as adjudicators, to becoming inquisitors and I think it poses some pretty direct challenges to the way we do things now, including commissioners' and chief constables' accountability, and there are issues about competence as well. I understand why these debates are taking place but at the end of the day we are here to keep people safe and to bring people to book. That may be the right way but I think there may be some unintended consequences of going down that route.

  Q82  Chairman: Certainly this is an issue that the committee may well return to before too long, so if there are any more considered views that you would like to put forward on behalf of the association in writing, I am sure we would be very pleased to receive them.

  Mr Jones: We are hoping we have got two views here.

  Q83  Lord Judd: You are putting your case in a very balanced way. Would you say that one of the difficulties you are grappling with is that it is being put to the public as a sort of point of principle as distinct from a pragmatic, dispassionate case to do what you have been describing?

  Mr Jones: Fundamentally I think some of the megaphone posturing—and I am not going to name names here—that has gone on in the last few months has been deeply unhelpful and it has allowed the media then to distil from that odd words and phrases like "internment" and unfair and unwise comparisons drawn with practices elsewhere in the world. I think this has thoroughly confused the public and has become a bit of a talisman and it never should have. I agree entirely with that point.

  Q84  Lord Judd: And you would want us to go away with the overall conviction that your determination is that this should not normally happen; it should only happen in the most exceptional circumstances?

  Mr Jones: Yes, and also, my Lord, it is about professional advice. There is nothing in this for us other than to do our duty to keep the people of this country safe. We are determined to do that and bring people to book. The way it has become dramatised, if you like, in the media has been very unhelpful and I have been to lots of public meetings where I have tried to cut through that, without much success.

  Q85  Lord Judd: Is it not the case that to do your job well, as with all policing, you need maximum public goodwill and maximum access to intelligence, and the problem you are confronted with is that you may have a hard core of manipulative people but there are a lot of very genuine people who get very anxious that this is in fact internment by another name, or who can be persuaded that that is what is happening? It seems to me that the pragmatic approach has to be terribly strongly advocated.

  Mr Jones: Peter and I have discussed this and it is about transparency, it is about judicial oversight and it is about the public seeing that the judicial checks and balances hold sway, not the investigators, and it is about us constantly repeating our messages publicly and to various groups and organisations, and we are determined to carry on doing that.

Lord Judd: It might help if you could put them up in the Savoy!

  Q86  Dr Harris: Your last answer in that discussion leads me on quite usefully to talking about public confidence, transparency and oversight. Without getting into the sub judice case on the question of legal force, is this not an area above all others where to maintain public confidence. There has to be—and indeed perhaps has to be seen to be—adequate scrutiny, oversight, parliamentary scrutiny, for example, of the operational matters and the policy in respect of lethal force?

  Mr Jones: I can make a general point there but I would obviously be inhibited by the IPCC investigation. Police officers' actions in this country are currently measured against section 3 of the Criminal Law Act. That is the ultimate arbiter of the use of reasonable force. Each and every action we take where we are called to account is measured against that, so I would say that there is already public scrutiny, be it through court processes or inquest.

  Q87  Dr Harris: Yes, but there are guidelines, are there not? I am not asking you to get into the IPCC investigation. There are guidelines, they exist, and they can have oversight over them without requiring a specific case with which to go post facto to a court. Would you have any objection in the interests of transparency and oversight to there being a parliamentary process of oversight of those guidelines and the implementation of them prospectively?

  Mr Jones: I think we have to accept that there is a demand now for some examination of those tactics, but I also would say that those who oppose us, who are intent on mass murder, would also see benefit in having access to those tactics. Post the IPCC report emerging, post the inquest, we will then have to look very seriously at how we can move further towards greater transparency. The only thing I want to do is stop the opposition getting access to our tactics.

  Q88  Dr Harris: Maybe I was wrong to imply that transparency automatically followed from scrutiny because we have ways in this House of providing scrutiny without doing it in a public way.

  Mr Jones: I agree with that and that is somewhere we will have to go, I think, once the judicial processes I mentioned have been completed. However, I would say that whatever policy we have is bracketed with the European convention. We have seen Treasury counsel advice on that. It is within section 3 of the Criminal Law Act, so we will do our utmost to make sure that whatever processes and procedures we have are in fact lawful and will withstand those scrutinies that we are about to undertake.

  Q89  Chairman: Thank you very much. Are there any points you would like to put to us in conclusion or do you think we have covered everything of relevance?

  Mr Clarke: No, thank you. We are grateful to the committee for the opportunity to explain our position on some of these issues.

  Mr Jones: Likewise. It has been really welcome that we are allowed to say what we feel we need to say to you decision-takers as professionals without the sort of distillation that has gone on in the last few months. It has been very helpful; thank you.

  Chairman: Thank you both for coming. I think you have put your case very effectively. We will be producing a report very soon. Thank you for spending time with us at what must be a very busy period, particularly for Mr Clarke.

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