Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 120-139)


31 OCTOBER 2005

  Q120  Lord Judd: If I could revert to my previous question, would you not feel therefore that a statement by the Home Secretary, that he can think of no situation in the world where it is possible to talk of any justification for terrorism today, is unrealistic in the context of some real political situations that exist in the world?

  Dr Metcalfe: I think it is highly unrealistic and I was surprised that the Home Secretary had made that statement. I think you only have to look, say, as an extreme example, at North Korea, one of the most totalitarian and draconian societies on the face of the planet. To suggest that no-one in the United Kingdom should be permitted to talk about armed resistance to the North Korean regime in the absence of the international community doing anything about it, that to talk about armed resistance against the North Korean regime should be made a criminal offence in this country, seems to me astounding. That is the most extreme example. I think there are many situations around the world on which reasonable people can disagree, of course, but you can legitimately talk about the merits or the morality of political violence against the state in situations where the countries involved are simply not democratic, where the governments or the regimes are repressive.

  Q121  Lord Judd: Would you go so far as to say that provisions of the kind envisaged are quite dangerous in terms of the resulting limitation on analysis of what is happening politically in the world?

  Dr Metcalfe: Profoundly. It is a profound impoverishment of free speech in this country. Think of how much of our political philosophy and political theory has been born of discussions around the legitimacy of political violence in general and then consider a law that prohibits such discussion. The chilling effect is a very simple point, that for fear of breaching this law people will not only say things which are contrary to this law but are also liable to be contrary to this law. Because it is so broadly defined it will inhibit a great many things that ought to be discussed.

  Mr Crossman: On Lord Lester's point could I make one other observation, and that is to agree with what he says. That is in the structure of the legislation that we have. The proscription offence is in Part 2 of this Bill. It is not a criminal offence in itself; it is a proscription. Therefore you would not have the safeguards that are in place for the prosecution to take place, so you would not need the agreement of the DPP to proscribe. This is a decision of the Home Secretary. It does not go through any criminal process. You can appeal against proscription, although I must say that I have always thought that the way in which you are going to appeal against an organisation being proscribed and then having anything to do with an organisation being a criminal offence, would be somewhat difficult. Given that this is a decision of the Home Secretary rather than involving due process of the court, I would say very much that proscription offences are in some ways more concerning than the offences under Part 1.

  Q122  Mary Creagh: None of you considers that the case has been made for the proposed extension of pre-charge detention. In your evidence you said that more appropriate and proportionate ways of meeting the police's concerns are available, including by providing the police with additional resources, relaxing the ban on the admissibility of intercept evidence and bringing lesser charges while continuing to investigate more serious allegations. I do not know how many of you were here last week to hear the police and the Home Secretary both refute that quite emphatically, particularly the issue of extra resources. You are also concerned that the justifications relied on by the police apply equally to other types of criminal investigation, and again last week the police were very clear in their evidence about the distinction they make between the need for these powers in terms of terrorism but not in terms of serious organised crime or other crimes. Amnesty, you make the additional point that judicial scrutiny of extensions is simply a review of the reasons adduced by the police of the need for such extension, and it is not onerous for the police to convince the judiciary of such a need. Are any of the justifications put forward by the police in support of extending the maximum period to three months in your view genuine operational difficulties faced by them when investigating international terrorism?

  Mr Welch: We probably do accept that there may be circumstances where the police feel they need to act sooner against suspects because of the nature of the offences that they are dealing with, but our view is that there are other measures that could be introduced in order to try and deal with this problem and ought to be before you come to any consideration of extension of the 14-day time limit for detention of people on suspicion of planning or committing terrorism offences. With regard to those measures to which we think consideration ought to be given, first, the use or admission in criminal proceedings of intercept evidence. I do not think it is unreasonable to assume, in the circumstance that, if the police have somebody under suspicion and to feel constrained to take steps to arrest them at an early stage, it is probably on the basis of intercept evidence. So if intercept evidence could then be admissible on a subsequent criminal charge (and that may well be acts preparatory to terrorism which we have just been talking about), this problem is not as acute as the police seem to be suggesting that it is. Therefore, first, if you introduced intercept evidence into criminal proceedings that would be something which we think would go a long way towards dealing with the problems identified by the police. Secondly, we think that the Police and Criminal Evidence Act Codes could be amended to allow interviews to take place after charge. Currently they are not but we accept that there may be certain types of forensic evidence that it would take a while for the police to get. That is pretty standard in criminal proceedings. I have been a criminal practitioner and I know that you very often do not get your forensic evidence until after your client has been committed to the crown court and that may be two or three months even after charge. We accept that there may be an argument for saying that, where that new forensic evidence comes in and there are therefore some legitimate questions which the police can put to a suspect, there may well be justification for amending the law to allow people to be questioned at that point. The third thing is the obtaining of the keys to encrypted evidence, encryption being one of the problems that the police highlight. There already is a power under the Regulation of Investigatory Powers Act to compel somebody to produce an encryption key and it is a criminal offence to fail to do so, so if somebody is a suspect presumably they are going to be the person who would have the key if a computer has been seized from their address, so the proper authorities can make the request for disclosure of the key and if it is not produced that person commits a separate offence for which they could be charged. The fourth thing which the Government might want to consider is the possibility of introducing conditional bail when somebody is released on police bail to return at a later date. At the moment, when somebody has been arrested and the 24-hour period has come to a close they are released pending further police investigation to return at a future date. Under the present law there is no possibility of any conditions being imposed on that bail. We would not see a case for extending that to all criminal offences but we could see that there might be a case for introducing a system in relation to terrorism offences for somebody released in those circumstances to come back at a later date to be subject to quite stringent conditions. We would say that all those are alternative measures which could go some way collectively, we would say probably all the way, to deal with the problems highlighted by the police.

  Q123  Mary Creagh: It is very interesting to hear those potential changes that you have suggested but what would you say to the police evidence that, when they have just made an arrest where there are 750 gigabytes of information, a two-week period is simply not long enough? Similarly, if they are going to go and get the SIM cards from the phone service providers a two-week period is not long enough. Can you see any of those as reasons which are in your view capable in principle of justifying perhaps a shorter extension?

  Mr Welch: There is no rule that says the police have to have all their evidence in place at the point when somebody is charged. What they have to do is have sufficient evidence to charge someone and our view is that the types of measure we have suggested are likely, in almost all if not all offences, to allow the police to get sufficient evidence. We appreciate how difficult a task the police face when there is so much evidence to be gone through but unfortunately that is the nature of the beast and that is why we say that resources are relevant here. We accept that the threat we face now is real and that there may well be good grounds for giving the police extra resources so that when faced with these very difficult types of investigation they do have the personal power to deal with them.

  Q124  Mary Creagh: Could I turn to Amnesty? I was very interested to read in your evidence that you are worried about prolonged periods of pre-charge detention giving a context for abusive practices such as confessions and the conditions in which people would be held in police custody. It was very clear from the police's evidence last week that people who were held for more than two weeks would be held in a secure environment with perhaps other remand prisoners, for example in a prison environment. Their context was very much not about confession but more about co-operation where people might over a period of time co-operate with the police in order to face lesser charges. What do you say to the police evidence on that?

  Mr Zilli: I saw that and I thought it was very telling. I think the premise for Amnesty is that international human rights standards make ample provision for restrictions of the right to liberty and therefore people can be held, for example, in this country under terrorism legislation for up to 14 days without charge or trial. If the question is, are there any justifications that would warrant a further incursion into the right to liberty, no, it would be a further incursion into the right to liberty which is not permissible under human rights standards. You would be looking at a derogation context in which the right to liberty would clearly be violated because of the existence of a public emergency threatening the life of the nation, or whatever the requirement is in Article 15 of the Convention. I was interested in the evidence given to you, particularly about the fact that it was pointed out that people would be held as people on remand on a very serious criminal charge, so they would be held as category A, possibly in a special security unit at Belmarsh Prison, for up to three months. That is not an incursion into the right to liberty that it is possible to contemplate in a lawful manner unless, as I said, there would be a derogation from the right to liberty. I was also interested—and this has already been pointed out—in the remarks made to you which to Amnesty indicate that the person would be arrested on the basis of grounds which would justify arrest and then the investigation would commence at that point to go on to justify holding people for up to three months when there clearly would not be enough to hold them on a criminal charge. The standards, as I said, provide for ample restrictions but at the end of the day they are quite exact and there is a requirement to charge someone promptly. Fourteen days I think is long enough.

  Q125  Mary Creagh: Can I finally ask the Law Society, Ms Marks, do you think Lord Falconer's proposal that a more senior judge, such as a High Court judge, be given the power to veto further pre-charge detention of a terrorist suspect answers your concerns? Can I also ask if you are happy with the fact that the police officer level that would be able to apply for this extension is the office of superintendent?

  Ms Marks: It would not entirely answer our concerns and the Law Society, along with the other panel members, is opposed to any extension of the period of pre-charge detention, but if there is to be any judicial oversight at all then we entirely agree with the police evidence which was given to this committee last week, which was that there should be robust judicial oversight and that there should be as much transparency as is possible with this kind of offence. It is welcomed that if there is to be judicial oversight then it should be with a senior judge, a High Court judge, rather than a district judge. That does not meet our concerns about the extension of pre-charge detention, but it does go some way to allaying our concerns. However, there is no proposal at all about the grounds on which this judicial oversight is to be undertaken and we do have concerns that if there is nothing on which the judge is required to make this decision then it is merely a rubber-stamping exercise, or could be perceived as such, and there would need to be some indication of the basis on which that judicial oversight is to be conducted. There is no indication of that at all at the moment. I would just like to reinforce what has been said by Liberty about the period of detention and in particular about PACE because it seems to the Law Society that the existing Codes under the Police and Criminal Evidence Act allow there to be further questioning once charges have been laid in certain circumstances which would seem to apply precisely to terrorist cases, for example, where it is necessary to prevent or minimise harm or loss to some other person or to the public, which seems to be right on point. There are other situations as well, for example, to clear up ambiguities in previous answers or to give the individual an opportunity to comment on further information that has come to light. It seems to us that the reluctance to charge at all for fear that that would prevent further questioning of the suspects is somewhat misplaced even under the existing Codes.

  Q126  Mr Shepherd: The point was made to us that the normal advice of a barrister or the counsel to the accused is not to enter into any discussion with the police or the authorities at that point. The advice of counsel would be no co-operation. Is that a reasonable fear?

  Ms Marks: I think that fear may be somewhat overstated now, of course, that "no comment" interviews can be commented upon adversely at trial, so I am afraid I do think that that concern is overstated.

  Mr Welch: Certainly the experience in the case of Irish terrorism was that that was very much the practice of people arrested. Whether that will be the case in relation to a different type of terrorism we do not know. It is going to depend on the advice of an individual solicitor on an individual occasion, I should imagine.

  Q127  Chairman: The evidence the police gave last week anyway was that that was the practice. Can I put a couple of additional points to you that have come out of a letter dated 31 October from the Home Secretary today to the Liberal Democrat spokesman on this point about lesser offences being charged? There are two additional points which I would like you to comment on. First, and I think this is a point for Mr Welch, you could end up with having less protection for the subject if you charged them with a lesser offence than any continued detention on the basis that that lesser offence would not be subject to the judicial oversight that the Bill now proposes, and we can argue about how that should be done. The second point is that there is some integrity about the suggestion that if you bring lesser charges effectively as a ruse it is abusing the system because the real reason you are bringing a lesser charge is not to deal with that charge there and then but to use that as a holding charge whilst you go on and continue your investigations somewhere else. You are effectively abusing the system in that way.

  Mr Welch: That is a type of abuse that already happens. For somebody who has been a criminal practitioner I know that I have had clients who have been charged with a lesser offence.

  Q128  Chairman: Do you not encourage it by suggesting that—

  Mr Welch: No, I am not trying to encourage it but I do not think it is somehow dishonest as the Home Secretary might appear to be suggesting. Secondly, there is a form of judicial oversight because once somebody is charged, of course, they have to be brought before a magistrates court and it is then the magistrates that decide in relation to that charge whether bail should be granted or not, so there is judicial oversight that comes into play.

  Q129  Chairman: Supposing bail is refused.

  Mr Welch: In which the person ends up on remand in the way that a lot of people charged with criminal offences end up being remanded in custody.

  Q130  Chairman: But without the protection provided by the Bill for the judicial oversight of continued detention?

  Dr Metcalfe: If I may jump in at this point, that is because you have a judge who has already made the bail decision. That is the judicial guarantee. I do not really understand how post-charge detention can be compared as on a par with pre-charge detention where there has not yet been any effective judicial oversight.

  Ms Marks: Can I also make the point that I think it is slightly misleading to describe it as a ruse. It is actually a charge which is substantiated by the evidence. The point that we have made repeatedly is that already the police have to have reasonable grounds for making the arrest and it is simply a question of how long it takes to substantiate those reasonable grounds for suspicion to be able to lay a charge and they will presumably do so on the basis of the slightly higher evidential burden that is required to lay a charge and then a further evidential burden for trial. I do not think to describe it as a ruse is fair to the process.

  Mr Welch: I may be wrong because I am talking from memory now as it is a while since I practised as a criminal solicitor, but I think it would also be the case that if somebody were remanded into custody in a remand prison and then the police wished to interview them again, they would have to go to the magistrates and get them remanded into police custody in order that they could be interviewed at a police station. There would again at that stage be an element of judicial oversight as well.

  Q131  Chairman: That is what you are saying would happen under this process.

  Dr Metcalfe: Let us be absolutely clear about it. If you have someone who is remanded in custody that is because a judge has intervened and taken an independent judicial decision. That is entirely in the hands of the court, okay? Nothing of the kind of judicial oversight that has been proposed in relation to this legislation allows the judge that kind of decision. The question would be, if you are going to put a judge in that kind of position to assess all the evidence, why not charge them? If you are able to satisfy a judge that there is a reasonable case to go forward, in essence why not charge them?

  Q132  Chairman: There may be a reasonable case for a lesser offence like benefit fraud, for example, but not for the more serious offences for which they were originally held.

  Dr Metcalfe: However, if the judge takes the decision in relation to that and decides, even in relation to the lesser offence, that bail should not be granted, then surely the police have all the public protection concerns alleviated at that point. If you have remanded the person in custody, as I understand it the main justification put forward by the police is met, their evidence-gathering can go forward and all the forensic tests can come back as and when they like. The police concern is that a dangerous suspect is no longer a threat to the public.

  Q133  Chairman: There is also the risk that if they are given bail they are then potentially a risk to the public.

  Dr Metcalfe: I am sorry, I do not understand.

  Q134  Chairman: If somebody is charged with a lesser offence, like benefit fraud, and they are given bail, then there is a risk to the public if they are suspected of terrorism.

  Mr Crossman: There are three grounds for refusing people bail. One is that they are going to abscond, next that they are going to commit further offences and last is they might interfere with the course of justice through, for example, interfering with witnesses. If a court decides that there is not a significant risk of any of those things happening they will grant bail or they might grant bail with conditions. If they decide there is a risk of those things happening they will make a decision to remand in custody. That is the process which we have in criminal law. If the prosecution want to remand in custody, if they do believe that one of those things will happen, they will make their application to the court and the court will make their decision on the basis of what they have heard. That is the nature of the system.

  Dr Metcalfe: If you said to a judge, "This person has been arrested in relation to an ongoing terrorist investigation and we are bringing them up on charges in relation to credit card fraud that we suspect are related to an ongoing terrorist investigation of a much larger nature", I would be very surprised if a judge did not have regard to the larger aspects of that investigation when taking a bail decision.

  Q135  Lord Lester of Herne Hill: When we were asking the Home Secretary about pre-charge and post-charge detention, he said from the point of view of the bloke being detained it does not make much difference. This was in the context of continental countries which do not allow more than a few days' pre-charge detention. He was saying, "But they can bang them up for three or four years before trial so what is the difference?". Can you try to explain to me, because I am not a criminal practitioner, what is the essential difference between pre-charge and post-charge detention in terms of safeguards?

  Dr Metcalfe: One safeguard that I am aware of is that once you have been charged you can make an application to the court to assess the evidence against you. It is essentially like making a charge of no case to answer before the trial is begun. Forgive me: I am a barrister but not a criminal barrister and I cannot give you the technical term for it, but I am aware from having discussed it with my criminal law colleague that this is an available procedure, but generally speaking it is not very effective because courts are unwilling, unless the police have been able to show almost no evidence in relation to someone who has been charged, to dismiss charges at that point but there is a mechanism whereby you can, at least under the common law, challenge the evidence against you. I am not certain what the situation is in relation to continental law countries and I think that is more a problem with the terrorism debate in general.

  Q136  Mr Carswell: I have a couple of points on unacceptable behaviours. Do any of you think that the publication of a list of unacceptable behaviours is an improvement on the way in which the Secretary of State's broad discretion to exclude or deport has been exercised in the past?

  Dr Metcalfe: In principle it should have been. The Home Secretary's powers are extremely broad. Any foreign national whose deportation would be conducive to the public good he is able to deport, and therefore it would have been extremely welcome to have a clarification of the grounds upon which he will exclude. Case law over time has shown that he has adopted certain policies, that is to say, where he has reason to believe that a person is involved in criminal offences, but in fact what was put forward based on the consultation and finally released in August was incredibly disappointing. You had on the one hand, by reference to activity of fomenting or inciting terrorism, things which are already a criminal offence. It is not necessary for the Home Secretary to bring forward new criteria which simply say, "Where a person commits these criminal offences I will deport them". One would have thought that he would have done so anyway because he already has those powers in relation to public order. Where he went beyond merely listing criminal offences, however, he did so in such a way as to be very vague. He did not specify whether the people were intentionally inciting terrorism or merely misunderstood; he did not attempt to give any clarification as to the kind of context in which their statements might be understood, say, if someone was having that discussion as a teacher in a classroom or writing a novel or a play. He quite simply had no regard to the incredibly broad definition of terrorism which we have already adverted to, both foreign and domestic. It is one thing if someone is inciting acts of terrorism in the United Kingdom; that is fine, but someone having a discussion about the rights and wrongs of political violence in countries like Nepal or Sri Lanka could just as easily be subject to deportation on the grounds that the Home Secretary put forward.

  Mr Crossman: The new grounds go much further than much of the legislation that we have been talking about, even the legislation in the draft Bill when we have had discussions about glorification. The new grounds allow for justification of terrorism. That is really a step down. I am not going to start talking about the Cherie Blair/Jenny Tonge type of situation again but really that is where we are at if we are talking about justification of terrorism. There have been long discussions both in front of the Home Affairs Committee and in front of this committee about the types of activity which might be considered to fall into those different categories. There is no right for non-British nationals to remain in the United Kingdom. However, if we are going to be removing people who are not conducive to the public good something a bit more substantive than justification of terrorism, especially with such an incredibly broad definition of terrorism that we have, would be required. I would like to agree with Eric and say that in this case with justification it is going far further than anything else that we have been discussing previously.

  Q137  Dr Harris: Further to that point, and I see the gentleman from Amnesty wanted to come back, perhaps not on this but the Chairman might wish to bring you in, as I understand it, it is not just a plan to exclude or deport. There is a proposal being put before us in the statute in respect of the Immigration, Asylum and Nationality Bill, which was called new clause 4 and now is added to the Bill, which specifies in relation to the list of unacceptable behaviours, though not in the statute, that it will be the Government's policy or plan to have the ability to deprive someone of their citizenship on the basis of behaviour not conducive to the public good, lowering that from a threshold of conduct seriously prejudicial to the vital interests of the UK. I would be grateful if you could comment on that, especially in relation to this point about the vagueness of the terms.

  Dr Metcalfe: In relation to deprivation of citizenship, we are talking about one of the strongest penalties which the law can apply. It might seem rather frivolous in relation to someone who is banged up in prison but, if you think about all the rights and privileges that come as a consequence of being a citizen, to be deprived of one's citizenship is an extremely harsh penalty. There is also a question about potential discrimination. It is interesting that it would only apply to dual nationals. Obviously there is no suggestion of someone who only has United Kingdom citizenship being deprived of their nationality. As a dual national myself I wonder why I should be subject to deprivation of citizenship simply because I was not born in the United Kingdom as opposed to someone who is. Leaving those points aside, yes, I share all the concerns that I raised in relation to the deportation or exclusion of a foreign national. Why should such vague grounds be levelled at dual nationals? Why should they too be put into the situation of uncertainty? It has a considerable chilling effect. I just wanted to say as a dual national that if I say anything that might go beyond the bounds of what the Home Secretary considers to be good public discussion he may level deprivation of citizenship charges against me on that basis.

  Q138  Lord Campbell of Alloway: It does not say this in question 27 but of course it arises directly on that interesting contribution of Ms Alexandra Marks. I must confess, yes, I do know a bit about criminal law. I used to prosecute in my younger days for the Attorney General on my circuit, but that was a long time ago. The question that I think arises in criminal law at the basis of this is about Lord Carlile's view. What is your view of Lord Carlile's recent recommendation that the judicial safeguards during any extended period of pre-charge detention for terrorism on suspicion should include an investigating role for a security-cleared judge? This comes to your point, where you were saying, and I was very interested in it, that there should be a form of judicial oversight. That form, I assume, in your mind would be a closed investigatory inquiry where submissions are made before a security-cleared judge. You then said it leads to this very interesting question, "Our concerns", I think you said, "would be largely met [but not met] if that were a High Court judge", and I wholly agree it would have to be a High Court judge. What I am very interested in is, what would meet your concerns? Supposing you have got this system that you suggested and you have concerns. Could you explain those concerns and how they could be met?

  Ms Marks: Yes, I think I would like to elaborate on my answer because the Law Society is not opposed to judges being more proactive, if I can put it that way, as regards case management but we do have very great concerns about the judiciary becoming more involved in the investigation, if that is what is being suggested. We think it is vital that judges retain their independence and we think there is a great danger if judges are drawn into the investigation, and if I seemed to imply in my earlier answer that robust judicial oversight meant that judges would be drawn into the investigation then I apologise because that is not what we intend. We have to accept, of course, that our legal system is quite different from that of many of our continental cousins in Europe where there is a much more investigative role for the judiciary and they are specifically trained for that purpose. It is not just an issue of training. Our whole adversarial system is quite different and we think there are enormous dangers in adopting a sort of pick-and-mix approach of various continental systems of criminal justice and saying, "We like this bit and we are going to bolt it onto our existing criminal justice system". What I had in mind was rather more, as my colleague from JUSTICE was saying, that there should be a proper use of the PACE codes because, as I indicated previously, it seems that the PACE codes already allow further questioning in certain circumstances which would seem to apply very clearly to these terrorist offences, but the real point is that an individual knows what they have been charged with and appears before a judge who decides what is the appropriate step to take as to bail, and that was the point that was made previously. There are already very clearly laid down grounds for deciding whether bail is appropriate or not while an investigation may be continuing; and I really just want to reiterate the point that I made earlier that if there is to be judicial oversight at all, then we believe that it should be at an appropriately senior level, but that is not at all to suggest that we think that an extension of either the judiciary's involvement in the investigation is appropriate or that there should be an extension in the period of pre-charge detention.

  Q139  Lord Campbell of Alloway: I see. You would not accept then what I assumed you had accepted, and I was quite wrong in my assumption. You would not accept, on this question of an extension of a period of detention, that that could be done by a judge who was cleared for security?

  Ms Marks: As I just said, I think there are real dangers. I think it would have to be a very clear procedure, and if it involved the judge being in any way involved in the investigation, no, the Law Society would not support that. What I had rather more in mind was that the grounds that were brought before the judge for the continuing pre-charge detention would have to be very clearly stated. There would have to be a very good reason why charges could not have been brought already or, if there was particular evidence that was being pursued and was not available for some very good reason, was not resource related, for example awaiting a response from international authorities, something of that nature.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2005
Prepared 5 December 2005