Examination of Witness (Questions 80-89)
MR PETER
CLARKE CVO QPM, AND
MR KEN
JONES QPM
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 posturingand I am not going to name
names herethat 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 beand indeed perhaps has to be seen to beadequate
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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