Joint Committee On Human Rights Minutes of Evidence


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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