Examination of Witnesses (Questions 160-170)
PROFESSOR CLIVE
WALKER
31 OCTOBER 2005
Q160 Lord Judd: Chair, I would like
to put a last question which is a hypothesis but which I would
like to test the Professor's view on. Supposing there is a situation
in which there is the kind of brutal regime to which you are referring,
supposing some people are contemplating some kind of "terrorist
action" against that regime, suppose there are people who
do not believe in that situation—terrorism is the right
response—but the outside world refuses to acknowledge the
terrorism of the regime, is it arguable that the outside world
is actually provoking terrorism?
Professor Walker: It is arguable.
There are a lot of arguments going on there, and I would get back
to my universal anchors, which are the offences in international
law. It is a much steadier way of approaching this problem to
say that if these are offences in international law, then it really
does not matter what the inside or the outside world thinks about
them: these people have done wrong. We have examples, of course,
of applying this universal jurisdiction in this country. We attempted
to apply it against General Pinochet, for example, without entire
success in that case, but we did more recently apply it against
Faryadi Zardat, who was an Afghan War Lord, with great success.
So those who may be in difficult circumstances in their own countries
but nevertheless use unacceptable methods, and the unacceptable
methods in my definition are crimes which are universally against
international law, should be prosecuted—their conduct is
not acceptable—but we should hesitate in applying our own
concept of what is terrorism on a universal basis. I would suggest
that people like Tom Payne might turn in his grave if he felt
we could not speak out and glorify American revolutions, for example.
Q161 Lord Lester of Herne Hill: May
I say I should have declared an interest in asking my questions.
I represented once the People's Mujahideen of Iran, who I think
do and did regard the need to kill some of the regime people as
being a necessary inevitable way of overturning that regime. We
are not talking here about war crimes or international crimes
but just murder. Would you think that in an extreme situation,
to go back to Lord Judd's questions, that there would be a need
in a democracy like ours to allow an organisation like that to
be putting forward the need to kill, to commit acts of murder,
as the only way, as they see it, of changing the regime? I hope
I am not inflaming them by saying this, but you get my point.
Professor Walker: I do.
Q162 Lord Lester of Herne Hill: It
is an area you are not covering when you keep talking about international
crime. I am talking about just simple murder for political purposes?
Professor Walker: Simple murder
is not simple, in fact, because there are some provisions in the
Offences against the Person Act about inciting that particular
offence abroad, which might be covered. I was thinking more in
terms of the kind of activity that the Home Secretary has in mind,
which is more general than specific offences, and I certainly
think that for the organisation that you mention to say there
ought to be let us call it "armed resistance" to make
it a bit more vague is arguably justifiable. I am not too sure
whether it is or not—I am not an expert on Iran—but
what I am arguing is that British law should hesitate very strongly,
very hard, before it gets involved in that particular dispute.
We already have processes for dealing with such people, called
the extradition processes, in which these issues of political
justification can be ventilated.
Q163 Mary Creagh: You consider, Professor
Walker, the justifications offered for an increase in the maximum
period of pre-charge detention, and you say a proportion of cases
are made for this and you give us a set of different cases, one
of which is currently sub judice, so we cannot go into
that, but you say there is a lack of evidence that the problems
relied on by the police have prevented prosecution in any given
case. One of your questions is: does it take longer to obtain
communications data about terrorists than it does about drug dealers
in the Netherlands? I think that the police officers that we had
talking to us last week would say, yes, there was, not least because
of the difficulties in obtaining in interpreters. Do you think
any of the justifications put forward by the police—the
issue of the sequential nature, getting the data together, going
back and interviewing people, the difficulty of forensics—are
genuine operational difficulties when they are investigating international
terrorism?
Professor Walker: I do not wish
to traduce the police's evidence about what are genuine operational
difficulties. They are the experts on operational difficulties
and I am not. What I am claiming to be perhaps something an expert
on is what should be the legal implications of those operational
difficulties and whether their evidence actually justifies the
conclusions in law that they are seeking to produce. To go back
to the issues about the difficult cases, I do ask the question:
what has altered radically in qualitative terms since October
2003? I mention October 2003 because that is when section 306
of the Criminal Justice Act 2003 was debated in Parliament. It
is relatively recent, in other words, that the 14-day detention
period was viewed as appropriate for terrorist cases after considerable
debate and after considerable opposition, I recollect, by Lord
Lloyd inter alia. If you read the debate, you will find
all the reasons that the police now cite as reasons were then
considered—about forensic evidence, about sequence, about
interpretation, and so on. This was in the light of 9/11 and cases
since 9/11. I also note that Lord Carlile in his most recent review
of the Terrorism Act, which I think was published in May of this
year, did not say 14 days is wholly inadequate. So I tend to think
that the evidence that the police now have is evidence of a quantitative
nature that, of course, major bombings, a number of major bombings
at the same time, cause operational difficulties, but those difficulties,
I am suggesting, are quantitatively different from what they experienced
before, not qualitatively different, and I infer then that their
problems are often more to do with resources and the stretching
of manpower than creating new difficulties which require new laws.
Q164 Chairman: Did you have an opportunity
see the list they gave us last week?
Professor Walker: I did, yes.
Q165 Mary Creagh: They were emphatic
about the fact that it was not about more resources, it was much
more about the timescales needed. Both the Home Secretary and
the police were specifically asked that question. Do you accept
the basis of the police's case, which is that, given the tactic
of suicide bombing, the police are required to arrest and intervene
at an earlier stage than they would be in other perhaps more conventional
crimes where you could wait almost until the point the money is
handed over or until the aircraft hanger at Heathrow is rammed?
Those things are relatively low risk. They were talking to us
about the massively high risks of dealing with what we now know
are suicide bombers and the fact that they would need to leave
the accumulation and analysis of evidence until after arrest.
Can you not see that that might be what has changed, to answer
to your question?
Professor Walker: Has it changed?
How has it changed? We already have section 41 of the Terrorism
Act which allows arrest on reasonable suspicion that somebody
is involved in terrorism. Why do not we rely on normal police
powers? What are the necessary features of section 41? There are
a number of things. It allows, for example, arrest on suspicion
of terrorism. Terrorism is not an offence. It allows a much broader
form of suspicion to be available to the police than would apply
under the Police and Criminal Evidence Act. So we have already
granted those powers. We grant powers to detain for 14 days to
allow the police to accumulate the evidence. Normally the limit
is four days. So we have already allowed significant differences.
Suicide bombers, of course, are not new. The concrete blocks appeared
outside Parliament not in July 2005 but after 9/11. The possibilities
of suicide bombers were brought home by attacks in Israel by British
suicide bombers incidentally in 2003 at the time the Criminal
Justice Act 2003 was being passed. So I am afraid I accept there
are operational difficulties, but again I come back to the point,
I do not see qualitatively that things have really changed.
Q166 Mary Creagh: Would you be comforted
in any way by Lord Falconer's proposal that a High Court judge
could be given the power to veto further pre-charge detention
of a terrorist suspect?
Professor Walker: There are probably
more important safeguards that one could imagine. I have high
regard for district judges, so I do not wish to disparage their
efforts in this regard. The more important safeguards that I would
have in mind are really to do with, first of all, the training
of judges, because this is a rather strange jurisdiction that
they are getting involved in here, different from the usual cases
that they cover. There are issues around the provision of information
to the judges as well: the extent to which they can investigate
the case. Aside from having a set piece hearing where the CPS
and the police present the case to them, the ability to actually
read papers for themselves might be useful. Aside from those issues,
there are a whole range of other things you could do. I think,
for example, having authorisation from a higher level of police
officer might also be helpful. I accept the superintendent is
likely to be the person in charge, but it would sharpen up their
act if their had, say, a deputy chief constable or assistant chief
commissioner, looking over their shoulder being required to sign
on dotted line beneath where the superintendent signs. A number
of things are important. I would not see the difference between
a high court and a district judge as being perhaps the most important.
Q167 Baroness Stern: You made a proposal
to us, and you are not only one—this has been said by other
witnesses—that suspects be remanded on lesser charges to
enable questioning to continue in relation to more serious charges.
The Home Secretary told us last week that this is under active
consideration but he said that it has serious implications for
other aspects of the criminal process. Do you agree with him and
do you see legal obstacles to adopting your proposal of remanding
on lesser charges?
Professor Walker: First of all,
I would say there are quite a range of lesser charges which are
available, some of which I have already mentioned, such as section
57. Earlier today offences like social security fraud, immigration
fraud, were also mentioned. The question is when the Home Secretary
raises the question of obstacles or difficulties, which obstacles
and difficulties is he talking about? There are probably two he
has in mind. The first danger is that the person is released back
into the public, and what are we doing to safeguard against that?
A number of things could be mentioned at that point. First, when
we talk about lesser offences, that is a fairly inaccurate term.
For example, section 57—the possession of materials—carries
with it a maximum of 10 years' imprisonment. It is not so much
of a lesser charge at all; it is quite a serious charge for which
most suspects are remanded in custody and not released into the
public. That issue is to some extent taken care of by looking
more carefully at what these so-called lesser charges actually
are. There may be a point in looking at the bail provisions. In
Northern Ireland, for example, there is a reverse presumption
applied. Instead of having a presumption for bail, in terrorist
cases there is a presumption against bail in Northern Ireland,
and looking in that direction may help. Of course in the background
there are still control orders which might be used in these cases.
There is the issue of safety of the public, if you like, which
is one obstacle. The other obstacle is can the police continue
their investigation? Will only having 14 days prevent them continuing
and completing their investigation? I have not seen much evidence
to suggest that 14 days is not enough. I have seen a number of
comments, not least in the proceedings from last week, that say
that the main purposes of this extended detention is not to question
at all and that the police do not expect to get any answers to
any questions; and so I am not sure that opportunities to question
is an issue that we really should be terribly worried about. If
we are worried about it, I suggest there is an alternative procedure,
which I mentioned in my submission, which I think is much more
proportionate than leaving the person in the hands of the police
for three months.
Q168 Baroness Stern: Is that the
procedural mechanism for post-charge questioning, in the form
of a judicially managed investigation, which you did propose and
you distinguish from judicial investigation? Could you perhaps
explain to us how this would work in practice and what is the
difference between a judicially managed examination and a judicial
investigation, which I understand you are opposed to?
Professor Walker: `Judicial investigation'
I am taking to be some kind of variant of what goes on, say, in
France or Spain or the continental model. I am not fundamentally
opposed to it. It would require a lot of preparation and hard
work to bring it into being. I certainly think it would be wrong
simply to assign one of her Majesty's judges to this task without,
for example, giving a whole range of training in how to investigate
crimes, in terms of setting up support mechanisms for judges.
You would probably have to have a range of police seconded to
the judge's office; you would have to have all sorts of protocols
for the transfer of information between the police and the judge's
office. That would be a very ambitious scheme and, of course,
is not a scheme anything like we have at present; so it is a difficult
one. I was arguing for something a bit simpler, which is that
if the police continue their investigation after the time limit,
whether it is 14 days, which is my view, or whether it is three
months, which is their view, and further information, evidence,
comes to light—on the 99th computer they find the evidence
when they have de-encrypted it, or whatever it might be. I can
envisage that the police might like to get some kind of reaction
from the suspect at that point: "We found your fingerprints
on this piece of evidence. What have you got to say for yourself?"
It would be proper then to have a system which is akin to what
happens, for example in serious fraud cases, and allows suspects
to be brought before a court where the judge is not the investigator
but remains an umpire in terms of the questioning. So under my
system police remain police, prosecutors remain prosecutors and
judges remain judges and there is no mixing of functions between
them. That is what I recommend. It is not as radical as it seems.
It was invented in 1883; it is just that everybody has forgotten
about it. It is in the Explosive Substances Act 1883, section
six, which is still in force.
Q169 Lord Lester of Herne Hill: In
your written evidence you asked the question, but you did not
answer it, about intercept evidence. You said it should be explained
why the normal procedures for dealing with public interest immunity
cannot satisfactorily deal with any concerns. I think we could
be helped if you could explain to us whether you think that the
existing procedures on public interest immunity would adequately
cater for the Security Service's concerns about the use of intercept
evidence. Could you briefly tell us about that so that we can
take it up?
Professor Walker: I would say
it is an extremely complex and lengthy area of the law, so I hesitate
to try your patience and go into the kinds of details that I would
in a lecture.
Q170 Lord Lester of Herne Hill: You
will have to write to us about it?
Professor Walker: I certainly
could do. What I would say is that the courts are well used to
balancing the public interest in, for example, national security
and both the techniques of the security services and the police
and also the evidence that they find by those techniques as against
the public interest in the administration of justice, and they
manage to apply this to a wide range of what we might call sensitive
evidence at present, particularly evidence involving, for example,
informants where we may need to keep secret the fact either that
there is an informant or especially the identity of that informant;
and the same could apply here in terms of balancing. The courts
are able to judge whether the intercept evidence, first of all,
is material to the trial, and if it is not material they can put
it to one side; if it is material to the trial, they can then
make a judgment as to whether it would be fair to proceed with
the trial without disclosing it to the suspect; and, if they think
it is not fair to proceed, then the prosecution has a choice either
to proceed with the trial or not, as the case may be. Presumably
what we are saying at present is, even where the prosecution think
the material is relevant and they would want to use it, they are
not allowed to do so—the law forbids them to do so—which
I find both an odd, inefficient situation and also a situation
of potential unfairness, because if there is material which is
relevant to the trial, then it should be heard. At present it
is suppressed.
Chairman: Thank you very much Professor
Walker for coming. I am sorry we kept you waiting, but I think
it has been worthwhile from our point of view.
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