HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
THE JOINT COMMITTEE ON HUMAN RIGHTS
Monday 24 October 2005
RT HON CHARLES CLARKE MP
USE OF THE TRANSCRIPT
Taken before the Joint Committee on Human Rights
on Monday 24 October 2005
Mr Andrew Dismore, in the Chair
Witness: Rt Hon Charles Clarke, a Member of the House of Commons, Secretary of State for the Home Department, examined.
Q1 Chairman: Good afternoon, ladies and gentlemen and thank you for coming to meet with us, Home Secretary. This is the first of two evidence sessions in the initial phase of our inquiry into counter-terrorism policy and human rights. We are examining the human rights implications of the legislative and non-legislative measures proposed by the government since the bombings of 7 July and the attempted bombings of 21 July in London. We are not investigating the events of those days or the shooting of Mr de Menezes the following day, 22 July. Nevertheless, for the avoidance of doubt, I should make clear at the outset to our witnesses and to the press and public that discussion of those events is in any event prevented by the sub judice rules of both Houses. These rules prevent discussion in Parliament of cases which are actually before the courts, including the Coroner's courts. The aim of the rules is to safeguard the right to a fair trial or a fair consideration of events at an inquest. It is also important that Parliament and the courts give mutual recognition to their respective roles and do not interfere in each other's affairs. In addition to the matters I have already mentioned, the sub judice rules apply to the actual case studies set out in the briefing note submitted by Assistant Commissioner Hayman to the Home Secretary on 6 October and other active criminal or civil proceedings. It follows that there should be no discussion of those cases and I will intervene if necessary to ensure the sub judice rules are not broken. I hope everybody understands why we cannot get into the detail of some of the things that have been particularly in the news. Perhaps I could start, Home Secretary, by asking you a general question and put the general point that we very clearly recognise that the state is under various positive obligations to take effective measures to protect the safety and security of people within the jurisdiction against the threat of terrorist attack and to bring the perpetrators to justice. We also welcome your statements that in taking such measures the government intends to comply with all of its international human rights obligations. Can we also proceed on the basis that you are in complete agreement with the declaration of the UN Security Council, echoed by the Committee of Ministers at the Council of Europe, that states must ensure that any measure taken to combat terrorism complies with all their obligations under international law, in particular, international human rights, refugee and humanitarian law?
Mr Clarke: Yes. I very much appreciate being invited to give evidence before the Committee and before your chairmanship. We have had a number of very good sessions and I am looking forward to continuing that in this session of Parliament. I think the role of the Committee is very important as we try and address these very difficult questions. The short answer to your question is yes. I think it is important that any legislation that we propose is consistent with both the European Convention of Human Rights and also human rights law in general. In terms of the United Nations, the declaration of the Security Council in September of this year on terrorism I think was a very powerful and important document which I subsequently discussed with Kofi Annan, the Secretary General of the United Nations, about how we could work to take it forward. I think the best way to protect our human rights in this country is by ensuring we take measures of the type that I am putting before Parliament.
Q2 Chairman: Can I go on to refer to your speech to the European Parliament when you made a number of proposals for countering the terrorist threat? You accepted it was incumbent on the government, because we are advocating change, to make the case that measures will in fact make a practical difference. Do you accept that the same onus rests on the government to demonstrate to the Parliament here that the necessity for the measures it is proposing, for example in relation to the creation of new criminal offences, by identifying the gaps in the law which exist and providing evidence to demonstrate that the law's protection against terrorism is inadequate?
Mr Clarke: I do accept that. In fact, much of the current law that is proposed and has had its first reading and will be debated in the Commons next Wednesday of this week is designed to make our law compliant with the Council of Europe proposals in relation to terrorism. The arguments, for example, are clearly that if we are going to get to prosecution of cases then offences such as acts preparatory to terrorism need to be brought within the remit of the law. I very much accept what you say. There is however quite an important qualification to put into that, which is that we are working all the time to prevent acts of terrorism and acts of terrorism succeeding, proving that a particular legislative measure or a particular clause in a Bill or a particular power is the single thing which has prevented a particular event or proposed attack taking place. It is not always easy and I do argue that there is a range of measures which are needed to make it more difficult for terrorists and more easy for us to protect our society. The basic test ought to be necessity, as you implied in your question. I should say in candour that proving necessity, which is a very strong word, in relation to any particular measure is never easy.
Q3 Chairman: Can I ask you what assessment you have made of the risk of tougher measures being counterproductive in terms of perhaps pushing people towards those who would evilly wish to recruit people for terrorist activities?
Mr Clarke: We have made a great deal of assessment of that particular question. We have worked closely with the Muslim community in particular in this context but more generally the faith communities in order to try and ensure that, in so far as we can achieve it, the measures that we propose could not lead to any generalised counter reaction. I believe that is true of the measures that we are proposing, that they do not lead to a counter reaction of any type which would make it more difficult for us to protect ourselves against terrorists and extremists who by definition are a very small minority within a wider community. The same applies when one is talking about a particular event or a particular situation. I answered the question first with reference to the generality of proposed legislation but of course, when you come to a specific measure as well, it is very important to have in mind precisely the balance of considerations that you have just stated. I have discussed in length with the police that particular qualification and both they and the prosecutors and others are exactly of the view that the balance that you set out in your question is something that has to be in mind at the time that any particular measure is proposed under this proposed legislation or indeed under current legislation as well.
Q4 Chairman: Earlier this month there was some speculation in the press that the government would consider departing from the Human Rights Act, either through an amendment to the Act or derogating, if it was found that the new proposals were not compliant. Would you like to comment on whether in fact that is what the government's intention is?
Mr Clarke: It is not what the government's intention is. What we are doing -- I said this in the speech to the European Parliament which you referred to a second ago as well -- is seeking to inquire whether the jurisprudence which has emerged, in particular the Chahal case, in the European Court, is the jurisprudence which reflects the modern situation in the best possible way. To that event, we have joined a case which is taking place between an Algerian and the Dutch Government in front of the European Court, with the agreement of the Dutch Government, to ask the European Court to look again at the Chahal judgment and how it would operate -- I emphasise not to withdraw from the Convention or to amend the Convention or any other legal step of that kind, but to ask the Court to reconsider its view on the Chahal judgment in the light of the current circumstances. I am delighted to say that a number of other European governments have also joined that case to make the same request so I hope that in the reasonably near future the European Court will consider whether the jurisprudence which took place and concluded with the Chahal judgment, you will recall by I think a 12:7 vote in the Court at that time on that particular case, should be relooked at in the current circumstances. I think that is the best way to proceed as far as the European Court is concerned. It is also the case that we are pursuing memoranda of understanding with a number of governments with a view to providing a secure return to a particular country without threat of violating Article 3 of the European Human Rights Convention. I think agreements have already been concluded. I hope more will be concluded. I hope the courts in this country and ultimately the European Court will give due weight to such agreements when they are made in looking at any particular case, but of course the judges must independently make their own decision in relation to that. The only generalised observation I would make is that it seems to me important that when everybody, whether it is politicians, lawyers, the media, whoever, looks at these appalling cases and decisions that have to be made they also look at it taking regard of the strong commitment of citizens throughout this country that human rights apply also to the person travelling on the underground to work, as they do to a person charged in relation to a legal process. All those rights need to be taken into account. I believe that the courts understand that very well and will operate accordingly.
Q5 Lord Campbell of Alloway: I wholly approve, if I may say so, and accept what you said about the actions of government to the European Court. It does not seem to me that there is very much alternative to that if one is going to have an effective development of the law but I wanted on that to try and ask you a very simple question which is: what is the essence of the gap which the clauses in this Bill are proposed to deal with? Leave aside internet evidence. Leave aside evidence obtained by torture which other Members of the Committee will no doubt speak about. What is the essence of the need, on the assumption that the measures taken are broadly compliant with the human rights requirements?
Mr Clarke: The core of the Bill from the point of view at which you ask the question is in clauses five to eight, those dealing with preparation of terrorist acts, training for terrorism, powers of forfeiture, attendance at places for terrorist training. Those are the kind of measures which we have not had explicitly in the law before that allow us to address the circumstances which we face in certain other regards. In addition, the proposed offences around encouragement of terrorism, effectively clauses one and two of the Bill, make it an offence essentially to incite terrorism in a variety of different circumstances. The reason for carrying that through is again to protect human rights rather than to attack them, I would maintain. I may not have understood your question precisely but that would be the answer as I understood the question. Did I miss the point that you were trying to make?
Q6 Lord Campbell of Alloway: No, that is fair enough, Secretary of State, and I understand what you are saying. In what way is our extant law deficient in that regard? Is it seriously deficient?
Mr Clarke: We are in a difficulty of judgment here and it is this: it does not take very many people working together or very many plots, if I can put it like that, to create a very real threat for all of us, so we need where there is a plot or a plan to commit a terrorist act to have whatever plans we can to deal with that particular threat when it comes. There have been occasions before 7 July and indeed after where there have been potential attacks being prepared which we have been able to stop, I am glad to say. It is not an enormous number of such attacks but even a small number of such attacks is a very material threat to our whole civilisation, as we saw on 7 July and, to a lesser extent, 21 July. I do not wish to imply that there is an enormous number of such cases, but I do wish to imply that that such cases exist and we need to strengthen our law to deal with them. We are not attacking the human rights, if this is your question, of a very large number of people; we are talking about a very small number of cases. The evidence we have demonstrated, for example, on the controversial aspect of the 14 days before charge, is of a very small number of cases being involved at that point.
Q7 Lord Campbell of Alloway: What I find it difficult to identify is where the extant law is deficient and would be substantially improved by the proposals in this Bill. We have a conspiracy law. I will not go through the panoply of the laws but the extant law broadly speaking, properly applied, is said to be -- it seems to me to be so -- broadly satisfactory, apart from the concessions I have made.
Mr Clarke: I understand the concessions you have made. I have tried to answer. I obviously have not answered to your satisfaction. When we talk about preparing terrorist acts, that is quite explicitly an offence which we name, which is not included in the current legislation. Training for terrorism, clause six of the Bill: a person commits an offence if he provides instruction or training in any of the skills mentioned in subsection (3) and so on. There is a whole set of issues. These are things which are not in the current law which we are proposing be included in the current law. I may not have you completely correctly. If you then ask is this a substantial group of people caught in this -- let us give another example -- attendance at a place used for terrorist training. If somebody goes to a place used for terrorist training, at the moment that is not of itself a breach of the law of this country. We are proposing that it should be a breach of the law of this country.
Q8 Lord Lester of Herne Hill: I want to cover some specifics on the glorifying of terrorism. I think we quite understand what you have said about the parts dealing with acts preparatory to terrorism and the need for new offences. I appreciate that you have improved the position since the draft Bill by making glorification of terrorism dependent upon direct or indirect incitement to terrorism. I think the Committee still has some concerns, first of all, about the necessity for Clause 1 and the related clauses about proscription. So far as the existing criminal offences are concerned, they seem to us to be very wide. I will not go through them now. It may be not convenient for you to answer my question right now but perhaps you could write to us. We cannot see exactly what the gap is on glorification that needs to be filled by the new offences.
Mr Clarke: I am happy to write if my answer is not satisfactory to the question you put, but my understanding is very clear. It is that at the moment the law outlaws incitement to commit a particular terrorist act. If you say, "Please will you go and blow up a tube train on 7 July in London?" I believe the current law deals with that particular situation. If however the law simply says, "We think blowing up tube trains is a good thing" for the sake of argument, or, "We encourage everybody to go and blow up tube trains" or, "We encourage a particular group of people to go and blow up tube trains", that is not of itself currently incitement in terms of the current legislation, as I understand it. The purpose of Clause 1 of the Bill is to outlaw and make illegal that generalised incitement to terrorist acts of that type. I think that is a very reasonable thing to do. Why? Because I think that there are forces that exist who seek to draw people, like some of the people who committed those acts on 7 July, into their web, as it were, by inciting or glorifying terrorism in general rather than by inciting people to commit a particular act. It is that difference between the general incitement and/or glorification rather than the specific act which I believe this clause of the Bill is designed to address.
Q9 Lord Lester of Herne Hill: Could I then ask how on earth we can secure reasonable legal certainty in the definition? The definition at the moment is, I am sure you will agree, extraordinarily broad because it talks about glorifying the commission or preparation, whether in the past, in the future or generally, of the offences and then glorification includes any form of praise or celebration. If you take the old ANC problem, for example, if I were to make a speech publicly saying, "I admire the ANC for the armed struggle during apartheid and I would now say that there are other situations in the world where democracy has completely failed and where the only alternative is the armed struggle", as I read it, I would be committing a serious criminal offence punishable by seven years' imprisonment. How do we enable the citizen to know with reasonable certainty what statements of that kind are or are not criminal?
Mr Clarke: It was put to me by somebody the other day that arguing for change was of itself a breach of the legislation. I do not think that can possibly be the case. There is no intention that that should be the case. I do not believe the current wording allows that to be the case in any respect whatsoever. You then come to what are the means of change which are advanced. I will not bore the Committee with this now but I have a view about how the world has developed in these situations over the past 30 years which means that we can talk about this in a slightly different way than we could 30 years ago, simply because democracy is so much more widespread around the world and because most of the democratic changes which have taken place have taken place as a result of political action rather than any kind of "military" action. If one were to say to me, "Is blowing up a tube train, a bus or whatever in order to achieve this change, whatever it might be, something that is acceptable to advocate?" I would say no.
Q10 Lord Lester of Herne Hill: I am sure we would all agree with that but my question really is narrower than that. Would you agree with me that with serious criminal offences there needs to be reasonable legal certainty about what acts do or do not constitute crimes? Is it not important therefore, if you do agree, to have a definition in Clause 1 read with the other bits of the Bill that gives reasonable legal certainty?
Mr Clarke: In principle I certainly agree with you. I do not mean this in a cavilling or a debating way but there are a very wide number of legal opinions even in these Houses of Parliament on what would or would not be a particular offence in a whole variety of types of circumstance. There are a whole range of legal arguments which comes in on all sides of that argument. Would I would acknowledge to you, Lord Lester, is that if the argument is that we can achieve greater legal certainty by amending the legislation in a way which took us towards greater certainty I would look at any proposals of that type. The argument that says we somehow should not bother ourselves if people are inciting terrorism in general and it is not really a matter which we can define clearly enough in law; therefore we had better leave it alone I could not associate myself with. I think it is necessary to try and address that.
Q11 Lord Lester of Herne Hill: Can I finally ask a question which is related to this? We are also talking about proscribing organisations for glorifying terrorism. Are there really quite serious free speech implications when you close down an organisation which has a political mission that may include an armed struggle in an evil and unspeakable country? I do not mean bombing civilians but let us say killing members of the military using their own guerrillas to do so, whether in Latin America or Iran.
Mr Clarke: If the argument were to be that it is acceptable somehow to blow up a bus in Tehran or blow up a military post in Tehran, for the sake of argument, I simply do not accept that. I do not think that is the way in which change comes. If you look at a wide range of different circumstances I can substantiate that in reality. If it is argued that glorification or incitement to terror is a necessary concomitant of the ability of somebody to speak freely about the process of political change in a given part of the world, I would need that to be proved because I do not think it is the case. I think it is perfectly possible to argue for change in Iran without saying that terrorist acts are the way to do it.
Q12 Baroness Stern: Can I ask you about the definition of terrorism in the Terrorism Act 2000 which is very wide ranging? Any violence, including damage to property, designed to influence the policy of any government anywhere in the world. That being the definition, is it your view that anybody who advocates political violence in any state, no matter how brutal or repressive, will be committing the offence of encouraging terrorism? For example, if somebody in Uzbekistan, for example, said, "Let's go and pull down the posters of the repressive president" that is presumably damage to property. In your view, is that advocating political violence?
Mr Clarke: No. I do not think pulling down posters is political violence. Blowing up a bus, to give that example again, is political violence. I agree with you -- this is where I concede a point to Lord Lester in the question he asked -- that the question of where on this spectrum between tearing down a poster and blowing up a bus a particular act falls can in some circumstances be difficult. I do not think it is as difficult as it seems. To suggest that tearing down a poster is terrorism simply would not be substantiated by anybody in any circumstances. To suggest that blowing up a bus is not terrorism, on the other hand, would also be very difficult to argue. Though I agree it is possible in this great range of potential acts that one could conceivably describe to say there are some in the middle of this range where there could be an area of difficulty of judgment, I do not think most acts would have any difficulty of definition at all.
Q13 Baroness Stern: Do you consider that the broadness of this offence -- it may not be tearing down posters but suppose it is breaking the windows in the Ministry of the Interior -- is going to stop people discussing and debating what to do about trying to restore democracy in oppressive regimes?
Mr Clarke: In most cases it is a question of establishing rather than restoring democracy in the world at the moment because the striking feature of the world over my lifetime has been that, over whole swathes of the world, eastern and central Europe, southern Europe, South Africa, southern Africa, Latin America, central America, a democratic regime is now far more commonplace than was the case 35 years ago. I certainly think it is perfectly reasonable to have discussions about the right way to make change in any given circumstance but then you say to me what is my attitude to inciting changes in terrorist methods and my attitude is against it. I think the law should be against it.
Q14 Lord Judd: You have an onerous responsibility to protect the people of Britain against terrorism and that is a human rights obligation. In doing that you must not inadvertently, it seems to me, aggravate the danger. If there is somebody in Britain saying that the daily experience of people in Chechnya for example is harassment, torture, brutality, disappearances, there is plenty of evidence that this is done by state agents -- you can say acting without authority but who knows? -- and who will in that situation say, "Look, there really is no alternative; we have to be able to do something to combat what is happening to our people", is not the dividing line here a bit difficult?
Mr Clarke: We always find ourselves in very difficult language about this. The language you used in your question just now was, "do something to combat" the evils that you describe by hypothesis and perhaps in reality in Chechnya. There is absolutely nothing in this legislation of any description which says that people should not do something to combat an ill of that kind. If however you then say that it is not just doing something to combat; it is blowing up a school in Chechnya, for example, which is not so far from reality; do I think that is an acceptable way for people to advocate change in relation to Chechnya, no, I do not. I do not think blowing up that school Bezna, whatever you say about the Russian relationship with Chechnya, was an acceptable way for people to proceed. I think that advocating terrorism in those circumstances, killing children and so on, is not an acceptable way to proceed and I think it should be outlawed.
Q15 Lord Judd: We would all agree that to blow up a school is despicable, heinous and also politically misguided because it is totally counterproductive in terms of the cause which people may claim justifies it; but there are lots of other things that people in desperation may feel they have to do against, for example, organs of the state because of what the organs of the state are doing to them. This is where it seems to me you have to be very careful that you are not actually aggravating frustration, aggravating the desperation of these people into situations in which they can be manipulated by extremists.
Mr Clarke: I 100 per cent agree with that and that is why I answered Mr Dismore's question in the first tranche of questions in the way that I did. Extreme care has to be taken using the proposed powers in this legislation both in general -- i.e., the passage of legislation itself, the way it is passed and the way it is discussed -- and also in particular when it comes to any particular proposition I agree with you very much indeed. One of the most damaging things would be to have any growth of frustration, alienation or whatever word one cares to use, as a result of the application of the legislation. I just want to make one further point, perhaps particularly for you, Lord Judd, with your distinguished record of fighting for democracy over many years in relation to many parts of the globe. I do think we are dealing with a terrorism here that is qualitatively different from the anticolonial, the freedom struggles, which were in a sense the characteristic of the 20th century and were the children of enlightenment thinking; compared to the kind of terrorism we are now trying to address, for example, on 7/7 and elsewhere which is not about some kind of liberation struggle, where there has been an argument about what the appropriate tactic might be, but is actually about the destruction of every part of our democracy and to destroy all the advances since the enlightenment. It is to destroy a free Parliament, a free economy, a free society and so on.
Q16 Lord Judd: This legislation is about action anywhere in the world.
Mr Clarke: Indeed. I simply give the context that I think we should bear in mind the particular form of terrorism which we are particularly trying to address at this time.
Q17 Lord Plant of Highfield: I would like to ask you a couple of rather specific questions about the draft Bill. The first is to do with the role of intention and the second is to do with the idea of danger. You have said in the House of Commons on 20 July that you wanted to create an offence of indirect incitement to terrorism which will enable the UK to ratify the Council of Europe Convention on the Prevention of Terrorism. That seems to be your aim. You also said in the same statement on 20 July, "Indirect incitement, when it is done with the intention of inciting others to commit acts of terrorism -- that is an important qualification -- will become a criminal offence." Given that you want to sign the Convention and your own initial statement about the Bill that you were planning to introduce did insist on the idea of intention -- as you said yourself, it was an important qualification -- I am now rather puzzled why in Clause 1 of the Bill there is no specific reference to intention. As it is presently defined, the state of mind which must be proved by the prosecution is knowledge or belief that members of the public are likely to understand the statement as a direct or indirect encouragement or other inducement to an act of terrorism; but that falls far short of a requirement of a specific intention to incite the commission of a terrorist offence. I wonder if you could tell us exactly why this strong insistence on intention in your 20 July statement seems to have evaporated somewhat in the Bill. Perhaps it might be useful if I outline the second question. In the Council of Europe Convention there is a reference to not only intention to incite but also "causes a danger that one or more such terrorist offences might be committed." There is a problem I think in the sense that the idea of danger has also ebbed away in the Bill. I wonder, firstly, why this is so in both the intention and the danger case and, secondly, what implications those circumstances will have for signing the Council of Europe Convention.
Mr Clarke: That is a very interesting pair of questions. Our assessment is that we have drawn up the clauses in a way which enables us to implement the Convention correctly. It is a qualification I always make and will do so in the House as well: if there is a better wording either in the Commons or Lords which makes this point, we are certainly happy to look at it. There is no intent to use that word on my part to shift the ground between 20 July when I made that statement in the Commons to which you refer and the publication of the Bill. As far as the requirement to show intent, our analysis is that an absolute requirement for intent could render the encouragement or glorification offence virtually useless, since proving that somebody has intent, if he or she denied it, would be almost impossible. The efficacy of the clause in those circumstances would be very difficult. That is why we have set out the requirement that the person publishing the statement or causing another to publish it knows or believes or has reasonable grounds for believing that the statement is likely to be understood as encouraging terrorism. If there were a concern and if you are articulating a concern that the way we have done it leads to a doubt as to whether we could sign the Convention, I would be concerned about that but our view is that that is not the case. I am sure that is one of the matters we will discuss; similarly in the case of the danger issue. It is exactly the same issue. If the court takes the view that this test is met -- that, is that the public to whom it is addressed reasonably could have understood as an encouragement that acknowledges that the statement has contributed to creating a climate where such acts may be considered as legitimate to carry out and therefore has caused a danger to the public -- in those circumstances, the question of whether or not the statements have actually encouraged others to commit, prepare or instigate a specific act is not relevant. It may be that distinguished lawyers might say we have not framed this in the right way to meet the signing of the Convention but there is absolutely no intention to do that. The intention is to try and create a law which can be enacted and which is consistent with the European Convention.
Q18 Lord Plant of Highfield: It is a jolly good thing in life generally to change your mind when you think you are wrong. Would it be fair to say that your 20 July statement saying that intention was an important qualification was an error in a sense and that your thinking has evolved since then; or do you think Clause 1 somehow embodies what you said on 20 July?
Mr Clarke: In the light of your question I shall certainly re-examine the wording of what I said on that occasion. As I speak now, I do not feel inclined to acknowledge any change in line because I do not think there has been but I will certainly look at my wording carefully to see if that interpretation could legitimately be made.
Q19 Dr Harris: Returning to Baroness Stern's question about the breadth of the offence, given that the definition of terrorism includes serious damage to property and indeed the threat of such, is it the case in your view that the sort of domestic terrorism or actions that we see from animal rights extremists would very firmly come under the ambit of this Bill and indeed that definition?
Mr Clarke: It is not targeted specifically at that type of terrorism but I certainly think animal rights terrorism is something that has to be attacked. I do think it was a terrorist act to burn down the buildings in Oxford which the animal rights organisations did, if that is what you are referring to. In the case of "domestic terrorism" the blowing up of the Nat West Tower in London was a terrorist act against property.
Q20 Dr Harris: I think I am agreeing with you. We should not have any qualms about using the term "terrorism" where it meets those definitions, even if it is not international.
Mr Clarke: Not in my opinion, no.
Q21 Dr Harris: On that basis, would you say that those who have I believe in the past sought to condone the actions of animal rights terrorists by saying that violence begets violence and therefore it is justified violence against animals would very much fall under the ambit of this Bill; it is intended to and they should know that?
Mr Clarke: I would put it slightly the other way round. I would say that those who argue that committing violent acts or terrorist acts to promote the cause of "animal rights" and justify it by reference to a phrase such as "violence begets violence" are illegitimate and would be excluded by this legislation, as I understand it.
Q22 Lord Lester of Herne Hill: I am sure you know that the Bill makes a rather serious departure from the general rule which is that, where there is a series of events, it is a necessary part of the prosecution case to prove intention. The Bill as it stands not only does not do that but has reasonable grounds for believing instead with an offence punishable by seven years' imprisonment, but does not even say, as for example the Racial and Religious Incitement Bill does, that the defendant may disprove intent and that will be a complete defence. I just wonder why you think that what you said in July about the need for intention no longer obtains, because it seems to me what you are doing here is a pretty great departure from what any criminal justice system would normally require.
Mr Clarke: I have tried to set out earlier the reason why I think that an absolute requirement of intent as such would render these clauses virtually useless. I will go back and check my own language as politicians should do as a matter of course, in terms of 20 July, but there certainly has been no desire on my part to shift significantly over that period. In fact, you putting the points to me today is the first time that particular point has been put to me in that way, but I will double check it as a result of what Lord Plant has asked me. The reasons why we have not gone down the course of an absolute requirement for intent are those which I set out earlier, which I think are completely sustainable.
Q23 Mr Shepherd: I am not quite clear, from what you say what is the distinction between an act of war and an act of terrorism. You are not happy with the concept of terrorism in the modern world if you say that most advances towards democracy have been made by internal measures that do not go over that line. I think of the Partigianni, initially, trying to overthrow a government that was lawfully constituted and recognised. I think of the free French or the free Italians in London trying to restore what they saw as legitimate government but which the world, in the case of Mussolini, recognised as legitimate government. This worries me in the context of the ground statement that the rules of the game have changed. I am familiar with offences in terms of soliciting an offence which is clear in English law. Our brief gives us the case of R v Most 1881, where it says, "The largest words possible have been used, 'solicit' that is defined to be to importune, to entreat, to implore, to ask, to attempt to try to obtain; 'encourage', which is to intimidate, to incite to anything, to give courage to, to inspirit, to embolden, to raise confidence, to make confident; 'persuade' which is to bring any particular opinion, to influence by argument or expostulation, to inculcate by argument; 'endeavour' and then, as if there might be some class of cases that would not come within those words, the remarkable words are used 'or shall propose to'." That looks to me almost like a catch all bag. It comes back to the very first questions that were asked on Clause 1. Why is it that these words -- incitement to murder in some form or another -- are not caught by existing law?
Mr Clarke: I have obviously failed, at least to your satisfaction Mr Shepherd, to answer the question satisfactorily but I do not think I have a lot to add to what I said earlier. Let me make, first of all, an historical point. If one goes back to the Second World War and to the time even before the Second World War, where you had a relatively small number of democracies fighting great totalitarian regimes of a variety of different descriptions, to the period where we are now -- I have just come immediately now from a service at St Paul's on the 60th anniversary of the United Nations; you were there as well, which has been about, over the whole of that time, spreading democracy and trying to weaken dictatorship and totalitarianism -- there is a massive change of circumstances from the middle of the Second World War to now. One can say that our law should pay no account to that process but I do not think that is right. I think our law has to deal with the circumstance that we face today. In the circumstance that we face today we face a particular form of threat or series of threats from terrorism which we have to find our best possible means of defending ourselves against. It can be argued that we do not need Clause 1 to help us do that. I argue that the clause that deals with encouragement of terrorism, with all the issues around glorification and so on is an absolutely critical necessity in a world where there are people trying to draw young men in particular into acts of the kind we have seen in London just this year, which we have to do our very best to stop, in my opinion. Why do I think that is? Because we have to try and protect our security against people who behave in that way. The counter argument that argues that Clause 1, for example, is not necessary simply states that people who encourage terrorism, who incite it, who operate in that way are people to whom the law should pay no account.
Q24 Mr Shepherd: That was not the point I was trying to establish. In existing English law they are caught. That was the point I was trying to make. I gave you what we were cited here, which is murder, R v Most, 1881, and there was the definition given by the Law Lords. Within that context I was trying to ascertain why it is necessary for this line to be drawn.
Mr Clarke: I will look at the particular 1881 reference that you have given me.
Q25 Mr Shepherd: R v El-Faisal, for instance.
Mr Clarke: I will obviously look at it now that you have given it to me. I will write to you on it if you wish me to do so. There are distinguished lawyers in the room here but I do not think the view that says there is no need for change in the law in this area is one that would be substantiated by most lawyers.
Q26 Mr Shepherd: The rules of the game have changed. What does that mean?
Mr Clarke: The reason the Prime Minister used that phrase was because he was arguing quite clearly that we had for the first time in this country an example of suicide bombers prepared to blow up tube trains and public transport in the way that we know that they did, not for any motive other than one of destruction of every aspect of our democracy that we live in. They were prepared to come to these acts, they committed these acts and they killed people and we therefore need to pay account to that.
Q27 Lord Campbell of Alloway: Yes, but then we go straight back to the fundamental question, surely, where we started. What happened on those tube trains and the bus could have been dealt with perfectly well under extant law. Why is it necessary to spell out examples of where the extant law would apply? We have a law of conspiracy. We have a law of murder. We have all sorts of other aspects which I would not dream of boring you with. You probably know more about them than I. The issue is why is it necessary? I am with Richard Shepherd on this, probably for slightly different reasons, but in principle I cannot see the fundamental case for specifying acts related to terrorism which are in fact covered by our extant law. That is the issue.
Mr Clarke: I understand it is the issue you have raised with me and I have done my very best to answer it. Obviously I have not answered it to your satisfaction or to Mr Shepherd's satisfaction. I understand that, but what I am trying to say is that we are in a state of affairs where we are seeking to extend the law to outlaw those and those organisations who seek to glorify, to encourage, to promote terrorism in general rather than a particular act.
Q28 Lord Campbell of Alloway: But you are extending it without the requirement for intent which is fundamental to criminal law. There is the fundamental extension. There is the fly in the ointment, if I can put it that way.
Mr Clarke: I have given the answer to Lord Plant and then to Lord Lester about why we have not put the explicit reference to the absolute requirement for intent in the legislation in the way that you have just suggested. As far as the question that it is a rather too woolly form of legislation or a definition which is too woolly, I do not accept that. I think it is very clear what we are talking about and I think legal action is what is needed to deal with it.
Q29 Mary Creagh: You are currently consulting on a possible new power whereby those controlling a place of worship can be required by a court order to take steps to stop certain extremist behaviour. How will the police demonstrate to a court's satisfaction that a place of worship is being used to foment extremism, given the difficulties that we know about in terms of phone tap evidence and also the dangers of revealing people who are acting as agents? What do you see are the practical advantages or are there any practical advantages in applying for a court order in these cases rather than prosecuting the individuals concerned?
Mr Clarke: As you say, we have a consultation document and I do not want to prejudge the outcome of that. The reason why we have put the option of orders rather than specific prosecutions is because the point has been put to us by a number of faiths, not simply the Muslim community, that it would be better to try in the case of a particular place of worship where issues of this kind arise to get it onto a path which did not foster extremism rather than seek simply to punish in any given circumstance. That is why the kind of order regime that we have talked about is being discussed in that context. This is why we are out to consultation, of course. The overall issue is to find a mechanism of dealing with the extremism which is there in some cases and has notably been there in some cases in the past, while not violating the right to worship and the ability of faiths of all kinds to have a place of worship which they can operate in the most effective way. That is why we have the structure and framework that we have. We will look carefully at what people have to say in response to the consultation that we have before drawing up particular proposals for legislation but that is where we are at the moment. Our overall desire is to work with the mainstream communities to ensure that worship takes place in the right way rather than not. One of the most striking things about the ideas that came from the Muslim community in particular, which I discussed them with shortly before the end of September, was the view that preaching should always be in English as well as in another language. That was an idea from them, not from me, precisely to try and deal with some of the concerns that there might be a secretive approach to worship rather than an open approach to worship. It is that kind of thing which is the best approach to try and tackle this.
Q30 Mary Creagh: Do you think that these proposals are likely to be workable given the difficulty of defining a place of worship? I can think of examples where London mosques have been shut down and people have moved out to worship in the street. In that case would the street by defined as a place of worship?
Mr Clarke: There are difficulties of this kind. Perhaps, as an easier example, it is relatively common at the moment for people to move from a mosque to creating a place of worship in somebody's room in a house, not in the street though it could be there too. There could be issues of that type certainly. That is one of the things that we have asked people to comment on in the consultation document that we have.
Q31 Dan Norris: My question goes back to the Terrorism Bill, particularly the pre-charge detention aspect of it. The police have put forward a number of justifications for extending for extending the period from a maximum seven days to a possible maximum of three months. I accept that there are weekly reviews by judges to check that that is okay and needs to continue. One of the justifications is that suspected terrorists will use very sophisticated encryption on data. For example, someone could walk into a shop today and buy a hard drive that would have 192 bit encryption. I do not know how many years it would take to unscramble all that information but is that not an argument for the security services and our police having similar technologies to counter the technologies they are having to face; and therefore requiring resources from government rather than extending the period that suspected terrorists can be detained?
Mr Clarke: There are always arguments for extending the amount of resources that there are. Indeed, there has already been a substantial increase in the amount of resources going to both the police and the security services in these areas. They do not argue -- and I do not believe it is true -- that lack of resources is what leads to the time taken, for example, in de-encrypting hard discs or the time taken in dealing with overseas intelligence services where it can take time to deal with something; or the time taken for trying to go through literally tens of thousands of CCTV films, as arose after 7 July, to try and get to the basis upon which a charge can be made. It is true in theory I suppose that in each of those cases an argument could be made that resources alone would resolve the problem. I am quite sceptical about that. I think some of them are very complicated and difficult to deal with. If one is following up leads in a wide variety of different ways, I am not sure that resources will resolve the problem. I accept the argument for more resources but I do not think it is any shortage of resources which has led to the proposals we put before the House in this area.
Q32 Chairman: I want to look at the international issue here. You gave evidence to the Home Affairs Committee that the three months that you were suggesting as a maximum compared quite favourably with some other continental European countries like France and Spain. Are we comparing apples and oranges here because there is a question whether we are comparing a pre-trial or a pre-charge period; also, whether and to what extent in continental countries people can still be interrogated after they have been charged, which is normally not what happens here. Are we comparing the same things here?
Mr Clarke: You are right in that we are comparing apples and oranges. We are comparing completely different legal systems, the adversarial system or the inquisitorial system. One is an apple and one is an orange. I am not entirely convinced that from the point of view of the person who is being questioned it does not feel pretty much the same. I can quite see that somebody detained in a French prison might say, "Thank Christ I have the inquisitorial system rather than that horrible British adversarial system" or vice versa, but I am not convinced it feels that different. That is why I made the comparison I did because the fact is that, though the legal basis of the detention is different in both cases -- and it is quite right to say apples and oranges -- the reality is that people who are suspected of these kinds of offences are detained for really very substantial periods of time under other jurisdictions, albeit on a different legal base to that which happens in this country.
Q33 Chairman: That brings me on to the investigating judge system which has been a consideration generally in this area for some time now and goes back to recommendations by Lord Carlile and also the Newton Committee. I also raised it myself during one of the debates several years ago. Has the government given any more thought to trying to bring in an investigating judge system into the review of the pre-trial detention period? For example, I know there is the suggestion in the Bill that the detention period should be reviewed on a seven day basis by a district judge but has any consideration been given to a rather more senior judge being involved with more directive powers in terms of the investigation itself, being able to see and check the evidence even if it is secret intelligence?
Mr Clarke: On the second point first, we are very sympathetic to the point made by Lord Carlile that the judicial scrutiny of the period of detention should be supervised by a higher level judge than that currently proposed in the Bill. We are looking at that very closely to see how we could do that to try and meet what his proposals are. During the passage of the Bill I would be surprised if we were not to table amendments to give effect to that. On the more general point, there is consideration being given in government but to be candid there is also disagreement in government and across the whole of public life about the idea of extending the inquisitorial system or the investigating judge regime, whatever one wants to call it, even narrowly to terrorist cases, let alone more generally, as some would argue, into other areas of life. It would be a very major reform which we are considering but have not yet decided to bring forward proposals on because there is not any consensus across the legal world that that is what we should do. Speaking completely as an individual and with the disbenefit of not being a lawyer myself and therefore understanding little of these things, I think there is a lot to be said about an investigating judge regime rather than the current adversarial system. Just about every lawyer I know thinks I am wrong about that. I cite it as an aside but amongst the lawyers who think I am wrong about that are some good colleagues in the government.
Chairman: This is a lawyer who does not necessarily think you are wrong, although there are some around the table who would disagree.
Q34 Lord Lester of Herne Hill: I am one of those lawyers who thinks there is a lot more in the continental system that we should think about. Therefore, I am probably in the minority but I put that to Lord Carlile once when we were taking evidence. On the apples and oranges again, although obviously you are right in saying that continental systems are different from our system, the point that worries me is that in continental systems, even though someone could be banged up for three or four years awaiting trial, the period before you have to charge them is really quite brief. I do not know enough about what happens in France or Germany or Spain to answer this question but I thought the whole point was that you had to charge them within a reasonable time and if you then hold them awaiting trial you are not allowed to use the detention period in order to accumulate more evidence for more charges. I may be wrong about that but is that not a worry? A three month detention period will be before you have even charged the person, which is much longer than happens in continental systems?
Mr Clarke: Again, I hesitate to try and give any authoritative legal opinion on it, but I thought you were wrong. I thought the whole point about the investigating judge system was that you were being held while an investigation was taking place by this investigating judge who would be continuing to investigate the case and therefore put more evidence questioning you over that period and so on, over a lengthy period of time as you say, up to three or four years.
Q35 Lord Lester of Herne Hill: We are told in our brief that the pre-charge detention period is 96 hours in France and 120 hours in Spain. I thought that we were extending that up to three months for pre-charge.
Mr Clarke: We certainly are extending that up to three months potentially in this tiny number of cases for pre-charge but the point I am trying to get at is that I am not at all sure that the concept of a charge in our system is the same as the concept of a charge in the French or German system. I may be wrong and it is an area in which I certainly would not speak with authority on it. Maybe it is another good example of the Home Office spending large amounts of money on research to set out a clearer research paper with answers on this question. My only point about apples and oranges was that, from the point of view of the individual, it may not look very different.
Q36 Chairman: This is an issue we want to look into, in more detail, ourselves. What is the bar in the existing law to charging somebody with a lesser offence and, as more evidence comes to light, bringing more serious charges later? Is it simply that they cannot then be interrogated which is the problem or are there other problems as well?
Mr Clarke: We are very, very active in looking at this particular point in the current circumstances. As an individual, I was quite taken aback when I realised how the current law works, though that is not uncommon when I look at the way the current law works. We are looking at it very actively. It is not simply a question of questioning it; it is also a question of looking at other issues as well. Again, it has significant implications across the whole of the legal system, not just in relation to terrorism. The idea that we can solve this particular issue by that route I do not think is possible in the timescale we are talking about. We are nevertheless very actively looking at the matter. The Attorney General has pressed us to look at this very closely and we are doing that actively. The views of the Committee would be very interesting on that.
Q37 Lord Judd: You have the power both to exclude and deport from the United Kingdom non-UK nationals on the grounds that their presence here is not conducive to the public good. On 20 July you announced that these powers -- I think I am quoting accurately -- "need to be applied more widely and systematically." On 23 August, you announced the outcome of the consultations which you had been having and published the final list of unacceptable behaviours. It is relevant to note that it is proposed by the government in amendments to the Immigration, Asylum and Nationality Bill that the same list of unacceptable behaviours will be used by you when exercising your proposed power to deprive a person with dual nationality of their British citizenship on the ground that such deprivation is conducive to the public good. The behaviours listed all concern the expression of views and therefore are very central to Article 10 of the European Convention which takes the freedom of expression extremely seriously. Are you satisfied that the phrase "fomenting, justifying or glorifying terrorist violence in furtherance of particular beliefs" is sufficiently precisely defined, bearing in mind the likely impact on legitimate public debate about the causes of terrorism and therefore on freedom of expression? In putting that question, I believe you when you say that you are deeply committed to the principles of democracy and open society. These are immense issues we are dealing with in this discussion with you. They are bound in any healthy democracy to be issues that people want to debate and discuss. Are you really satisfied that this kind of generalised wording draws a distinction between that debate and discussion and what is unacceptable?
Mr Clarke: I am. I very strongly, passionately believe that we should as a society debate these questions. I have been very ready to discuss these in a wide variety of different fora and will continue to do so. I think that is the right way to proceed. Let me take you, if I may, through the history of these events. The Home Secretary has always had -- I do not know when it started but well before my time certainly -- the power to ban people from the country on the grounds that their presence was not conducive to the public good. It has been used in a whole variety of circumstances, often controversial, because it is a judgment of the Home Secretary at any given time. The events of 7 July led me to wonder whether or not we should extend that power which exists -- it does not require a change in law -- to a wider range of "unacceptable behaviours". As I said in my statement to the Commons on 20 July, we have hitherto been very careful and not gone over the line into areas which might be construed as attacks on freedom of speech for the reasons that you very clearly set out. However, as I also set out in that statement of 20 July, I believe there is a set of behaviours about identifying and dealing with those who foster hatred and positively, as a matter of their intent -- I use the word "intent" in this context -- seek to create the environment where terrorist violence can flourish, who positively go down that course as a matter of judgment that they make. I have to decide in those circumstances whether foreign nationals of this type ought to be just entitled to come into this country under those circumstances or whether I ought to exercise the rights that I have to protect us in any regard from those. I decided we should extend it because I think the events and implications of 7 July carried a wide variety of very deep implications that required us to think about this. I think the language that I talk about -- i.e., identifying and dealing with those who foster hatred and seek to create the environment where terrorist violence can flourish -- accurately identifies the activities we are seeking to address: fomenting, justifying and glorifying. I think it is very clear. We are not talking about any British citizen; we are talking about people who are overseas nationals. I agree within the context of the Immigration Bill we are talking about depriving citizenship to people who have dual citizenship in such circumstances, again, I think perfectly reasonably. It is perfectly reasonable to argue that what I say on this is completely wrong and we should simply say, okay, it does not matter how you argue, what you do, what kinds of argument you wish to spread, whatever mischief you may be about, however you are trying to seduce or bring young men to engage in terrible acts, it should not be a matter of concern to the Home Secretary. I just cannot accept it and that is why I dealt with the list in the way that I did.
Q38 Lord Judd: You used the words "completely wrong". Forgive me, but that is a good debating technique. It is not that they are completely wrong; it is that these matters are extraordinarily complicated. There are balances to be struck and it might be just possible that you do not have the balance where it should be but the consequences of that could be crucially significant. You referred to intent and of course the Convention on the Prevention of Terrorism also refers to intent. It says that an offence glorifying or condoning terrorism was done with the intention of inciting others to terrorism and the result of provocation must be to cause a danger that such a terrorist offence might be committed. Why do you not spell that out in your proposed legislation? Why leave it in the generalised form?
Mr Clarke: There are two completely different questions here. The first is the question about the list of unacceptable behaviours and the way that operates. I do not think I was making a debating point. I simply think people will have to make their judgment about where it falls. I have been at great pains myself to point out as fully as I can that this is, as you say, an issue of balance and judgment on each occasion between particular rights and the overall rights of society as a whole, and that is a balance which is there all the time in every consideration. Am I vain enough to think I have got the judgment on each of these balances correct at every single juncture? I do not think so necessarily. Do I think I am in the right place? Yes, I am. Do I think Parliament, when it looks at it in detail, will go right through it and come to a view? Certainly it will. It will have this debate at each stage as we go through in a very full debate. As far as the issues of intent in Clause 1 of the Bill are concerned, which you mentioned just now, I have got not a great deal to add to what I said to earlier questions on precisely this point, and I have said I will go back to 20 July and look again at what I said there. I have not got anything much further to say on what we have already gone through on this.
Q39 Lord Judd: But you do agree, Home Secretary, that the more specific you can be in terms of existing conventions and the rest the stronger your position will be?
Mr Clarke: Of course, and I think the point that Lord Lester made earlier in the conversation about the principle of legal certainty is also a good one.
Q40 Lord Judd: Would a non-national who publishes critical views seeking to explain why people resort to terrorist violence but who has no intention whatsoever of inciting the commission of a terrorist offence, and where the publication does not give rise to any danger that such an act will be committed, be liable to deportation?
Mr Clarke: I think one would have to look at the detailed circumstances but as you have described it I doubt it. Explanation is not encouragement, and that was the word you used right at the beginning. As I say, one cannot judge in every circumstance but, as you put the question, I doubt it.
Lord Lester of Herne Hill: Can I just express dissent from what Lord Judd said?
Q41 Lord Judd: My last question is this. There is a retrospective dimension to the proposed legislation but Article 10 requires the applicable law to have the qualities of accessibility, foreseeability and predictability to enable individuals to know the consequences for them of their behaving in particular ways. Does the retrospective application of the new list of unacceptable behaviours mean that somebody can be deported for views expressed before the publication of the new list and in circumstances in which the power has never previously been exercised?
Mr Clarke: In looking at any individual case any Home Secretary would take into account all the available information, including the timing and frequency of any comments or actions as well as any indication of changes of opinion, but fundamentally the issue is the opinion and expression of that opinion by the individuals concerned, wherever that was made.
Q42 Lord Campbell of Alloway: Listening to the noble Lord Lord Judd perhaps I could make in the irenic spirit a compromise proposal which deals with the question of intent, deals with the problem of glorification and provides a tight form of definition. If you knock out "glorification" and say that somebody who, in the old test, "aids, abets, counsels or procures an act of terrorism", then "intends to procure" means that he intends to do it. Surely you could tighten up the definition in some way and under extant law it would be an addition, if you like, but it would not be wholly deviant from the extant law because a conspiracy to aid and abet terrorism would be criminal in any event because terrorism in the form in which we are dealing with it involves serious injury, death, damage to property and all the rest of it. I only put it forward as a way perhaps of dealing with one of the points - I am not dealing with the others; there is no time - that Lord Judd made.
Mr Clarke: I will certainly take advice from my lawyers on the particular proposal that you have made and look at it, as I have tried to do all the way throughout, in a flexible manner.
Q43 Dr Harris: Aside from the issue of intent and danger, which I think we have already covered, you could have chosen in your list of unacceptable behaviours to use the same words as you use in the Bill around the encouragement/glorification offence: incitement, encouragement, glorification, but you have chosen, looking at the bullet points, to use the words "foment, foster" - in terms of "foster hatred" - and "justify". "Justify" in particular strays arguably into Jenny Tonge/Cherie Blair territory. Why could you not just stick to the words in the Bill? Is it not widening it?
Mr Clarke: Personally I do not think that "justify" does fall into the territory you describe. Secondly, it may be helpful to give some guidance to the timing on this. We published a proposed list of unacceptable practices at the beginning of August. We then consulted and I said in my statement in late August when we had finalised the list that we would look again at that list of unacceptable behaviours when Parliament finally concluded the legislation for this process. We acknowledged that they might not be in the same area and at that stage we had not yet written to the Opposition parties to discuss the position with them. I think the best thing I can say is that there is a case for consistency but I think with consistency, which should be supreme, if I can put it like that, is the wording that is finally resolved by Parliament in this legislation. Once we get to Royal Assent we will look at the relationship between that wording and the unacceptable behaviours wording.
Q44 Lord Lester of Herne Hill: Can it not be said in your favour that your unfettered, undefined power to get rid of someone on "non-conducive to the public good" grounds has now been spelt out by you for the first time in a public document so that there is greater certainty than there was before in that sense, and can it not also be said that you must not mix up the definition of crimes, which is under the convention and so on, and the use of this power, which are two different things?
Mr Clarke: I agree. I am always keen for people to say things in my favour by whatever means and yes, I do think it can be said in my favour that I, unusually by the sums of history, made a statement to the House of Commons about the use of the powers that I have to deal with unconducive behaviours, set out a process for consulting on it (albeit rather brief) and then came back with a public statement about where we would go. I think that is a superior form of doing it rather than simply exercising the power without any public expression of what one is doing. Of course I agree with you that the list of unacceptable behaviours is not the same thing as the legislation, but the point that Dr Harris has just made raised the question for me of whether there could be any beneficial relationship between the two, and the answer is yes but we will look at that once we have got to the point of this legislation being enacted.
Q45 Dr Harris: As it was mentioned I would like to follow up that point, which was the point I wanted to follow up originally. I take the point you make about having defined what you mean creates greater clarity, but in your letter to the Opposition you state that in respect of the Bill and the powers to remove citizenship this new clause is "designed to enable the Secretary of State to take away British citizenship from someone who has committed one of the unacceptable behaviours set out in the list which we published on 24 August". The list on 24 August says, and this is the problem, "This list is indicative and not exhaustive". Is that assurance in that letter meaningful, that it will be restricted to that list when you say that it is "indicative and not exhaustive", and therefore it is really not, in the way that Lord Lester was implying, restricting, if anything, your discretion?
Mr Clarke: The use of the phrase "indicative and not exhaustive" does not mean it is meaningless. There is meaning in the sense that I have set out in that list a list of events and activities which are clearly defined, which provides some kind of guidance at any rate, I think quite a lot actually, as to any Home Secretary would act in those circumstances.
Q46 Lord Lester of Herne Hill: On the question of torture, the prohibition against torture is absolute. The torture convention says that you cannot send to a country where you believe that there is a substantial risk of their facing torture. Given that it is absolute, I do not understand how there can possibly be a balance between the absolute prohibition against torture on the one hand and national security or other considerations on the other. Surely, if it is an absolute prohibition, you cannot send someone to a country where you believe there is a risk of torture and there is not an earthly chance in hell or heaven of persuading the European court, in the light especially of what is in the torture convention, to come to a different conclusion?
Mr Clarke: First, you are quite right: we are bound, and even if we were not bound we would not want, to return to anybody to a country if there were a real risk of torture. It is not only that it is unlawful, which it is, but also we would not want as a country to be doing that. There are a lot of issues to be argued about what the extent of the real risk is and how that operates and so on, but that is for the court in any individual case to look at. We think that the Chahal judgment, which was narrowly carried in the European court, did not give sufficient account to some of the issues involved in this and that is why we are returning to the European court. We will see what happens in the process. I am not in a position to pre-judge where they are. They will make their judgment in the European court and we will see what emerges.
Q47 Chairman: Quite simply, Home Secretary, are you prepared to deport somebody where you are satisfied that there is a substantial risk of their being tortured in the receiving country?
Mr Clarke: No, and that is not just my position but also the government's position.
Q48 Lord Lester of Herne Hill: If you fail to persuade the court to change the Chahal judgment I assume that you are not going to require British judges not to follow the lead of the Strasbourg court, are you?
Mr Clarke: The only purpose of changing the law in this country in a way that was not compliant with the European Convention would be to ask the European court to return to that question. Otherwise the only choice we would have would be to leave the European Convention, which is not something the government wishes to do in any way. We will see how the judgments go in these cases and decide how to deal with those circumstances.
Q49 Dr Harris: With regard to this issue of deportation with diplomatic assurances, can I first ask you how many individuals are being detained with a view to deportation to countries with which a memorandum of understanding has not yet been agreed, and what then is the legal basis for their detention? Lord Carlile has himself questioned the legality of detaining individuals with a view to deporting them when these memoranda are concluded.
Mr Clarke: We have currently detained six people where we have actually signed memoranda of understanding with the country of nationality and 17 where such a memorandum of understanding has not yet been formally signed. The basis upon which the detention is happening is our assertion that we are imminently going to be able to sign such a memorandum of understanding with people in those cases. I am delighted that we have been successful with two countries and I am optimistic that we will be able to do that with other countries as well. We are at an advanced stage of negotiations and/or discussions.
Q50 Dr Harris: Can you tell us more about the progress you are making with regard to assuring us that there is this imminence around signing these memoranda? They are not the same thing.
Mr Clarke: I do not think I can give you the detailed answer you want except to say that there are substantial discussions taking place with a number of countries, which have taken place both in this country and in those other countries, but I do not think it would be right for me to pre-empt the agreement that is made in the form of joint signing of a memorandum of understanding without the agreement of the other country and so I shall not go into more detail.
Q51 Mr Shepherd: The courts do not share your view.
Mr Clarke: That will be an issue for them. It will be an issue for us too. I wrote a piece in the Evening Standard about this in August in which I said that if the courts were to say that a government-to-government agreement was essentially not worth the paper it was written on, which some lawyers have argued (not the generality of lawyers but some lawyers), that would be effectively neo-colonial in its approach and that is my view. I think it would be extraordinary if a British court were not to take serious account of a memorandum of understanding seriously entered into by this government and another government. I have heard the most appalling back-chat conversations of the type, "You cannot trust governments from North Africa", and so on, which I simply reject and I think are completely unacceptable.
Q52 Dr Harris: The fact that you are seeking a memorandum of understanding suggests that there is a reason to do that and that these are countries where torture happens. If that is the case how can you justify taking a wider ethical view in going unilateral or bilateral when the Convention against Torture is probably the most important (in terms of absoluteness) multilateral approach, in other words, seeking to worry about the human rights of these three people, if you are removing three people, while undermining attempts to protect other people in that country? Is that ethical?
Mr Clarke: I think the reverse is entirely the case and I think that liberals ought to welcome our conclusion of memoranda of understanding with these countries because what will happen as a result of this is a much stronger relationship on precisely the human rights agenda which is concerned. It is not my role here to comment on the particular human rights records of other countries but I will observe that signing the Convention against Torture is not of itself a guarantee that torture does not take place in a signatory country. I think a memorandum of understanding around particular cases is a stronger form of agreement.
Q53 Baroness Stern: Home Secretary, can I ask you a question about the post-return monitoring mechanisms? If I can start by saying something in your favour, you are clearly very against violence and I think all of us share that, but that spreads across the board. The Asylum and Immigration Tribunal, in the recent case concerning deportations to Zimbabwe, was very critical about the government's lack of post-return monitoring and the European Committee for the Prevention of Torture, the CPT, in its recent report said that it had an open mind about the possibility of devising effective mechanisms for post-return monitoring, and they do know quite a lot about monitoring. In the light of that what would you see as the minimum content of any post-return monitoring mechanism which the government intends to require in the memoranda of understanding in order to be satisfied yourself that nothing bad is happening to these people?
Mr Clarke: First, I do think it is important to say that there is a qualitative difference between the general immigration returns issues that you mention, for example, in Zimbabwe or indeed in other countries, and the particular type of memorandum of understanding we are talking about concluding in relation to the very small number of individuals we are talking about in these circumstances. I think they are qualitatively different cases, although obviously there are some common features. Secondly, the broad functions to be performed by any monitoring body, for example, practical arrangements for dealing with the situation immediately on arrival and for contacting the monitor will be dealt with in conjunction with the body selected and the government concerned to establish that it is there. The monitoring body would need to have available to it the expertise and experience necessary to effectively monitor the arrangements. That is what we will work to achieve. We would not sign memoranda of understanding unless we were confident that those memoranda would be maintained. There is a whole range of issues about risks of returns in the case of immigration policy to a number of countries about which there is a very substantial debate and significant Foreign Office advice, and there is a great deal of argument to take place about the risks that are involved in any given circumstance and I do not think we should confuse them for the purpose of this discussion with the cases that we are talking about in this context.
Q54 Mary Creagh: Home Secretary, when you have previously given evidence to this committee you have been asked whether you could confirm that none of the material obtained from the Belmarsh detainees had been obtained from sources abroad where there had been allegations of torture and prisoner abuse. What systems do you have in place personally and the Home Office corporately to ascertain whether intelligence information has been obtained by the use of torture?
Mr Clarke: I do not think I have a lot to add to what I said to the Human Rights Committee before. As you correctly say, I was asked that question before. We are clear that evidence obtained as a result of any acts of torture by British officials or with which British authorities were complicit would not be admissible either in criminal or civil proceedings in the UK, whether the evidence was obtained here or abroad. There is a serious issue about our ability to know about external evidence that comes in any given circumstance. We take the issue very seriously because our policy is unreservedly to condemn the use of torture and we have made it an important part of our foreign policy to pursue its eradication worldwide. However, by definition almost, we cannot, because we are not a world government, know in all circumstances exactly what the situation is. There is a case before the Law Lords on this particular issue as we are speaking where the issue is the extent to which we can know that. The case was heard on 17-20 October. Judgment was reserved and I do not think that before the Law Lords finally judge I want to say anything further. We take very seriously, Ms Creagh, this whole issue of torture. It is a very important issue to us. We do not collude with other governments that seek to do that in any way and it would be quite wrong if we were to do so.
Q55 Mary Creagh: Can we take assurances that prisoners have had access to water toilet facilities, food, etc? We are talking about very small numbers of cases, are we not? It is not world government. It is just six or ten or 20 people and specific evidence obtained. Can we not ask the governments how it was obtained?
Mr Clarke: We could ask for answers of those kinds and I am certainly prepared to consider that. The problem is one of knowability. The problem is what test could one conceivably have which would extend to every conceivable circumstance in which anybody is held to look at their position. The difficulty I have personally but the government has generally is to say that we know so much about the conditions under which anybody has been held in any circumstances that we can give an absolute assurance, whatever it may be, in relation to any given area. As I say, that specifically is the issue that has been before the Law Lords and that is why I would prefer, if you would allow me, to wait until after we get their judgment before elaborating on that. Sorry - hang on, hang on.
Q56 Mr Shepherd: Eliza Manningham-Buller has actually made some comments on that point, has she not, and they seem a little bit different from yours, that many regimes would take it as an impertinence if anyone were to query their methods and it might dry up the flow of information to British sources.
Mr Clarke: I do not read everything that she says. I do not recall her using the word "impertinence" in that way, and certainly I know for a fact that she takes this issue very seriously as well.
Mr Shepherd: I know she does.
Q57 Baroness Stern: Will the government be supporting Lord Lloyd's Interception of Communications Bill? If not, why not, and when will the government bring forward its own proposal relaxing the absolute prohibition on the use of intercept evidence? You could say "no" or "tomorrow".
Mr Clarke: I will say no to the first question. We will not be supporting Lord Lloyd's Bill. We are actively considering whether we can evolve our position on this but there are two big issues which the committee needs to understand. In terms of making our sources and methods of working available to the defence in any given case there is a massive issue about whether, by making that information available about how we operate, we make the ability to collect the intelligence upon which we rely more difficult to achieve. That is a widespread concern, one that will be influenced by the evolution of technology, one which we have not yet found an answer but one which we are actively investigating. The other one is one more for the lawyers. If there is a telephone conversation between you and me any defence lawyer could say, "What about every other phone conversation you have had? What about any conversation you have had with a friend about me?", and vice versa, in this regard, and would we be forced to collect enormous quantities of material to use any particular part of the information? The best way to deal with this is with some form of pre-trial scrutiny by some independent investigating judge and we are looking again at that as a means of dealing with it. The confidence in the defence not being able to get an enormous amount of work in this regard is not very great.
Q58 Chairman: Home Secretary, without straying into the case of Mr de Menezes, do you think that on such an issue so vital to public confidence as the use of lethal force by the police the guidelines to which the police are operating should be available in public and subject to parliamentary scrutiny?
Mr Clarke: There is a case for this. I will decide how to deal with it after the IPCC report into that particular incident. I think there is an important question again as to revealing our techniques for dealing with these situations. The issue of how we deal with a potential suicide bomber is a pretty serious one to be considered and is one that we will look following the IPCC report in this particular case.
Q59 Chairman: Thank you for your evidence today, Home Secretary. You have been very frank in the way you have answered all our questions. We look forward to seeing you on a future occasion on another subject.
Mr Clarke: Many, I am sure.
Witnesses: Mr Peter Clarke, CVO, QPM, Deputy Assistant Commissioner, Head of the Metropolitan Police Anti-Terrorist Branch and National Co-ordinator of Terrorist Investigations, and Mr Ken Jones, QPM, Chief Constable of Sussex Police, Head of Business Area for Terrorism and Allied Matters, Association of Chief Police Officers, examined.
Q60 Chairman: We are now joined by Deputy Assistant Commissioner Peter Clarke of the Metropolitan Police and Ken Jones of the Association of Chief Police Officers for the second evidence session this afternoon in our inquiry into counter-terrorism. Thank you both for coming. Is there anything you would like to say to start or shall we get straight off?
Mr Clarke: We are entirely in your hands, Chairman.
Q61 Chairman: Perhaps I can ask Mr Jones first of all how different is the threat we now face from international terrorism compared to the terrorist threat of the past?
Mr Jones: I think the fundamental difference is that we now have people prepared to use suicide as a weapon and as an ideological motivation rather than as a purely political motivation which we have seen in other forms of terrorism. The other thing that has changed is that the organisation is different. It is shapeless, it is amorphous and it is constantly changing and that is not inside our recent experience. That is a fundamental difference, the suicide issue and the ideological motivation.
Q62 Mary Creagh: The committee always aims to ensure that its scrutiny of the human rights compatibility of government proposals is both rigorous and even-handed. To assist it in this it wants to ensure that it fully understands the "operational" reasons behind your request for the extension to the maximum period of pre-charge detention. Are there any additional operational reasons that you would like to add to those that are summarised for us in the briefing from Assistant Commissioner Hayman?
Mr Clarke: I think most of the operational reasons are broadly touched on in that paper, but obviously all of them are capable of expansion should the committee so wish. I think the broad heads under which we came to the conclusion that this was a reasonable way forward are contained within the paper.
Q63 Mary Creagh: Statistics show that only 36 people in total have been held between seven and 14 days between the beginning of January 2004 and 4 September 2005 under the Terrorism Act and that of the 21 held for more than ten days only two were released without charge. These figures do not support the case that the police are having to release without charge after 14 days significant numbers of suspects. How do you say that the statistics showing the use and outcomes of extended pre-charge detention for 14 days support the case that you are making for extending that period?
Mr Clarke: The first thing the statistics show is that we use the existing powers very sparingly and only in the most serious of complex cases, and we only apply for warrants of further detention after consultation with the Crown Prosecution Service, as I say, only in the most serious cases. That is why the numbers are comparatively low. The reason we are saying that there is a need for change is based partly upon experience and partly upon our perception of the way in which the nature of terrorist groups is changing. Mr Jones has touched on this already. The fact is that the groups we are now looking at, because they operate a regime of no warnings, unlike Irish terrorism in the past, and with a determination, it appears, to cause as many casualties as possible means that we cannot operate in the way we used to, which was to try to arrest terrorists at or near the point of attack, to catch them with the bomb or the gun, if you like, when the evidence was likely to be the strongest to put before the court. The reality now is that our perception is that the threat to public safety is simply so great and our difficulties in penetrating and gaining, if you like, control up to the point of arrest are such that on public safety grounds we have to intervene earlier. This means that when we arrest people we frequently have grounds to arrest, as required by the law, but the evidence in terms of admissible evidence to put before a court is lacking. That means that the admissible evidence-gathering phase begins after the point of arrest and it is that which leads us to say that we need more time. What we are seeing is that the increased use of high technology, of computers, of the internet and of mobile telephony as a means of communication between members of these global, loosely-knit networks, is such that in order to gain a picture of what we are dealing with and to gain the evidence we need much more time than we had in the past. Every investigation seems to push this trend forward. If I may, and I have to be very careful because there are sub judice issues, only this weekend we arrested three individuals who are currently in detention and I am told by my officers that we have recovered some 750 gigabytes of data. I do not know what that looks like. I asked what it looks like and they said, "If we printed it out this would be a pile of paper 66,000 feet high". Obviously, we are not going to be able to go through all of that but we have to investigate as much of that as possible and this we have found repeatedly is where our evidence comes from.
Q64 Mary Creagh: In the Bill, clause 23, paragraph 2(1) the extension of the period of detention by judicial authority can be made in any part of the United Kingdom by a police officer of at least the rank of superintendent. Given the rarity and sparing nature of these powers that you have just described, why is it only the rank of superintendent? It seems to a lay person quite a low grade of officer that can make this application.
Mr Clarke: A superintendent, I would suggest, is quite a senior officer. The point is that it is at superintendent level that we have the senior investigating officers who are in day-to-day command of investigations. That applies not only to terrorist investigations but also right across the board of serious crime. Those officers at that level of seniority are the people with the most complete and detailed knowledge of the development of the case. They are driving the investigation and they are in the best position to put before the court precisely the situation in the investigation and to explain, most importantly, what is happening and why further detention is needed. It is their job in those circumstances to persuade the district judge that they are doing everything as quickly as they can, applying the maximum amount of resources so that the whole procedure can take place as quickly as possible.
Q65 Mary Creagh: Where will you hold suspects who are detained for up to three months and do you think that there is a risk in such a lengthy period of custody that it could amount to inhuman or degrading treatment?
Mr Clarke: I would say straightaway that the facilities available to the police are not suitable for periods of detention of that period. It is probably being envisaged that any detention beyond the 14 days should be in prison and the regime obviously will be a matter for the Prison Service or the Home Office to discuss, but I would envisage that it would be similar to that which is applied to unconvicted prisoners at the moment. Then, in the normal way which we do at the moment, if there is a requirement for further interviews to be conducted we would ask for a production order for them to be placed into police custody for as long as it takes to conduct any further interviews before a return to the prison facilities.
Q66 Mary Creagh: Is there any risk that statements obtained from suspects who have been detained for interrogation for a period much longer than the current maximum of 14 days may be regarded as unreliable by the courts and therefore excluded under PACE?
Mr Clarke: I think there is always that risk. Obviously, the longer a person has been in custody arguably the more that risk increases and that is why all the safeguards that we would wish to be contained within the legislation in our view are terribly important. It is important to recognise as well that we are not asking for this period of further detention solely to be able to question people, if you like, to put the same question again and again. I very much subscribe to the view put forward by Lord Carlile in his report that extending the period of detention solely for questioning is not appropriate. What we feel it is very important for is to investigate the totality of what we are looking at, both here and internationally, so that we can have a picture of what we are dealing with, put together a sensible interview strategy and make better quality decisions about charging in collaboration with the CPS, obviously. This is a discussion I frequently have with them. They want to be in the best position to make high quality charging decisions and the discussions I have with them are very much along the lines that within the current time constraints that is very difficult indeed.
Q67 Chairman: Mr Clarke, you gave one example of the problems you face. Without offending the sub judice rules, which obviously we do not want to do, can you give one or two other examples of where you felt particularly under pressure after the two-week period and would have liked longer and, if so, how much longer would you have liked in those cases? I was going to ask Mr Jones then to comment on where the three months has come from. Why not six months, why not one month, why three months?
Mr Clarke: There are numerous cases, many dealing with the decryption of data and the exploitation of computer material, where we would have liked to have longer. Sometimes - and I have to be extraordinarily careful here - it can go something like this. We might have a number of people in custody whom we suspect of conspiring together to commit a terrorist act. We might not be sure exactly what the terrorist act is but we might have recovered or gathered enough material to show that yes, there is some form of conspiracy here. We might get to the stage where we are able to lay charges. What we are very often not in a position to do is understand the roles of individuals within that conspiracy. Quite rightly, defendants are usually advised that they should not answer questions whilst in custody and so we do not have an opportunity at that stage to gain from the suspects' own mouths their role in it. However, there are cases where we have been aware of the fact that some members of these conspiracies, particularly those perhaps who had a lesser role, would like the opportunity to speak to us, to explain their role and in that way not find themselves in the position of being charged as prime conspirators. It is my belief that in several cases, had we had longer to gain a proper understanding, as we subsequently have, of the respective roles of individuals within these networks, and if we had been able to put that to them, that we understood that they were playing a lesser role, some of these people would have spoken to us, would have explained their role, would have explained the role played by others and maybe even given evidence of that. There is obviously a degree of speculation in this but I can only rely on my own experience of what I have seen, what I have heard. My belief is that public safety might well have been well served had that been available to us and had that happened. I accept that is to a degree speculative. I wish I could go into more detail here but I am afraid I cannot.
Mr Jones: If I might elaborate on some of those points, because I am not directly connected with investigations, the knowledge I have of other agencies' activities around the world also tells me that the sequential nature of investigations is now a key feature of these global investigations. It is not just a question of resources. In other words, you go from A to B. B might be in Pakistan. That then spawns five or six inquiries in other parts of the world which indeed lead to others. This is putting huge pressure on investigators like Peter to bring these cases to justice. This gathering of information nature of an inquiry is now becoming quite common. Seeking to resolve them in the time that we currently have, which was designed, I think, for more conventional criminal justice processes, is proving difficult. On the point about three months, there is nothing magical about that. It is looking at the series of investigations, looking at the scope of the task that we now face, looking at the sequential nature of investigations and the experience to date, not just in our country but also in others, which suggests that it is around that sort of period where some of the most complex have been resolved. We desperately hope to resolve them inside the seven days, never mind the 14 days or beyond. There is no intention on the part of the Police Service to exploit any new flexibility to coast, take our time or what-have-you. That is not good for those who are suspected of being involved in police activities, or for the public of this country. That is why we are determined to use this new extension, if indeed we are granted it by Parliament, very selectively indeed and very carefully. A long rambling answer, Chairman, but the three months is based on our experience and looking at other jurisdictions and on the technical complexity of some of the inquiries that we are faced with now.
Q68 Lord Lester of Herne Hill: I just wonder why, if these points are correct, it does not apply to all forms of serious organised crime, so that if Parliament were to give you this extension would not the next thing be to extend it to all serious organised crime?
Mr Jones: I would argue not, based on some of the discussions I heard earlier about human rights. We are faced with a completely different threat. The threat from organised criminality does corrode our way of life and our democracy but not in the way that suicide terrorism seeks to kill and maim dozens, if not hundreds, of people. That is the difference. The proportionality test would not be met by me sitting here and saying that for organised criminality we want you to extend the period for which we can detain people up to three months. The argument would not hold water.
Q69 Lord Lester of Herne Hill: Even for very serious conspiracies about drugs or other forms of murder that do not involve terrorism? Do you say that there is some distinction between terrorist purposes and these other forms of serious organised crime, such as money laundering?
Mr Jones: That would be more about convenience for us as investigators. This is a grave, current and enduring threat that the country faces and this is why we are looking for this extension to our capability but in a very narrow way, only around particular suspects. I did read that into the documentation, would not the Police Service seek to push out the boundaries elsewhere? Absolutely not. I personally would be against that.
Q70 Dan Norris: Mr Clarke, you talked about the problems of time and how there is a huge demand on the time of you and your officers. You also painted this vivid picture of a computer hard disk, if it were printed on paper, creating this mountain of paperwork. Is that not really an argument that you need more officers working harder on that paperwork or whatever task you need to be undertaking rather than extending the period from seven days to three months?
Mr Clarke: If I may say so, no, it is not. It is not about resources, as is frequently put to me, "If you had more officers doing this could you not get through it more quickly?". It is about sequencing. If I could give an example, we often seize large numbers of mobile phones and SIM cards in a search. To conduct a search of an average domestic dwelling to the standards demanded by terrorist investigations takes two to three days on average. We frequently find SIM cards and very often, obviously because of their size, they are easily concealable, so we retrieve them. They are then sent to the laboratory where they are downloaded and the data is drawn off them. From the service providers we then have to get the subscriber details and the billing details. Quite often that information is held abroad and so it takes time to get that material back. Once we have received that material we have to analyse it and that involves a lot of charting and cross-checking, going through databases and then trying to make sense of the connections that evolve from this. The relevant parts of that then have to be put into a form of interview strategy to be put to the suspects who are being held in custody. At the same time the material that we hold, the parts that we intend to interview people about, have to be disclosed to the defence. The defence then have to consult with their clients and take instructions and at the end of that process we can get round to asking the questions. That, understandably, takes a particularly long time. Then, as a result of the answers to those questions or not, we have to start the whole process over again. That is just one example. The same applies to all sorts of other data. Quite often material has to be translated as well. It is not simply about resources. Obviously, I would not sit here in front of you and say that we do not want more resources; of course we do, but it is not simply a matter of resources. It is very much about the sequencing of the activity.
Q71 Dan Norris: Thank you. You seemed to say two things there, first of all that it is not an issue about resources, and then you said it was partially (my word) resources.
Mr Clarke: If the Commissioner were watching he would not thank me for saying we did not need more resources.
Q72 Dan Norris: Is it fair to say that some increase in resources would help and therefore perhaps the three-month detention period is still too long?
Mr Clarke: No, it would not. However many resources we had I do not think it would cut into the basic problem here, which is the sheer weight of material which we are routinely recovering in these cases. This has to be analysed at some point and then focused into an interview strategy and an investigation strategy set by the senior investigating officer. At some point one person has to be aware of what is emerging from all this data. It cannot just be a cavalry charge.
Q73 Dan Norris: So it is a qualitative thing rather than just bodies doing it?
Mr Clarke: At the end of it, yes. We need as much time as we can to gather and grab the data in the very beginning but then it has to be focused, analysed, understood and made sense of and that process gets narrower and narrower.
Q74 Baroness Stern: Mr Clarke, the briefing from Assistant Commissioner Hayman was very helpful to us and the practical examples were also helpful and we were therefore able to understand the problem that you were setting out, but what he did not put in that very helpful document was any statistical evidence suggesting the problems that are caused by the failure to have a three-month limit, how many prosecutions could not be brought, any prosecutions that had to be abandoned or any prosecutions that went wrong because you had to make a wrong charging decision. Do you keep such information and, if you do, would it be possible to provide it to the committee?
Mr Clarke: I cannot sit here and say X number of terrorists have evaded justice because of the lack of provision. I can point to a particular case as an example, if that would help, where, had we had this provision in 2002, the outcome of a recent court case, the so-called ricin trial, might have been very different. Mohamed Meguerba was one of the suspects in that case and it is likely that we would have held him or applied for his detention for sufficient time to find that his fingerprints were on the ricin recipe and he would have stood trial as a main conspirator in that case had he not fled the country. As it was, he was not available to stand trial and so the jury were not able to benefit from his presence in the court. I cannot say whether the jury would have come to a different decision but I think it would have been possible for the prosecution to present the case in a way which was easier for the jury to understand what that conspiracy was about. As much as anything - and I have pointed to other cases and I have to be very careful, as I said, - there have been cases where people might have had a different reaction to their period of detention and to the questions that were being asked of them, where we probably would have had a greater understanding and where possibly charges would have been laid. It is also as much about the changing nature of what we are facing, as Mr Jones alluded to earlier in our conversation. When we asked two years ago for the period of detention to be lifted from seven to 14 days we felt that that was reacting to the change we were beginning to perceive in the nature of these networks and what we needed in order to investigate them. Everything that has happened since then has confirmed in my mind the fact that the initial analysis was right. This changing nature of the threat did require a longer period, and the events of last year in particular, 2004, the cases which we examined then and which are waiting to come to trial, confirmed in my mind that 14 days is insufficient. In one particular case we got to the stage where it was almost by chance on the 13th day of detention that we found the crucial evidence on a computer which enabled the Director of Public Prosecutions to authorise charges. As I say, that case is awaiting trial so I cannot go too much further, but to get to that stage, and there was a comment earlier about do we have to get my officers to work harder, they are actually sleeping on the floor, not going home, just ploughing their way through this vast amount of data, and we would rather serious criminal investigations were conducted in a slightly calmer and more ordered atmosphere than that.
Mr Jones: The other issue, and it is a good question and I tried to have some work done on this, is that it is such a small number of cases that we are talking about now, and Peter has difficulty with that and I understand why, and we are hopefully dealing with a tiny number of cases in the future, but the statistical rigour that might perhaps bolster this is pretty difficult to give you. We did try very hard to do that but without delving into some very difficult cases it is hard to explain. What I can say is that work we did looking at other investigations elsewhere did lead us inexorably towards this very guarded use of extended detention.
Q75 Baroness Stern: You were lucky and found the thing on the 13th day and that is very good news, but does that justify an extension to three months?
Mr Clarke: What is envisaged is up to a maximum of three months. I certainly would not envisage the three months becoming the norm. If it is just two days past 14 days that gets us to the point of charge then the requirement is met. On the point about judicial oversight, I as a police officer would not want this power to sit in the hands of the police. I think it is absolutely crucial for community confidence in the process that there is robust judicial oversight and that there is as much transparency as is possible in this type of case.
Mr Jones: And professionally we would not want to be coming back to Parliament to talk about an extension beyond, say, three weeks because we had suddenly discovered that the measures we are proposing were not up to the task. The way we see the threat changing and the compression of time from groups becoming interested to initiating an attack has shortened from years to now months. These are all changes that we are having to grapple with, so there is an element of trying to think strategically about this and about the future.
Q76 Chairman: Mr Jones, what is the problem in the present law which would stop you bringing lesser charges against a suspect and then continuing to investigate and question in relation to more serious offences with a view to bringing possibly more serious charges later?
Mr Jones: There are a number of problems with that. A less serious offence, whatever that may be, may or may not be disclosed and there are issues around bail and around the regime whereby offences can be investigated post-charge. It is not quite as simple as that. I know of some pretty complex investigations where there are no charges available, lesser or otherwise; they are just not there, although we have seen some cases where we have had financial offences where we have had to charge. In fact, I have some data in front of me which shows that quite a few people arrested under prevention of terrorism legislation are in fact dealt with for these lesser offences, so it has not provided for us the traction then to take those individuals forward and bring them to book for more serious offences.
Q77 Lord Plant of Highfield: I have two questions. I am not sure who should answer which. First, since the Terrorism Act of 2005 there have been available to the authorities control orders. Prior to that there was a stark choice: charge or release after 14 days. Why, in the brief given to us, was no reference made to control orders because it looks as though control orders might have been the solvent of this particular dilemma of charge or release? The second question, and we were talking to the Home Secretary about it earlier, is, do you think allowing intercept evidence in the courts would help this process that you have been outlining and again possibly reduce the amount of time you would need to hold a suspect?
Mr Jones: On the control orders, we see the control regime as a complement for pre-charge detention, not a substitute, so for appropriate cases it may indeed be the case that a form of control order may deliver what we require. There will be other suspects where to have effectively some sort of house arrest would I think be deeply unsatisfactory for a number of reasons which we discussed when control orders were first mooted. We do not see them in any way as a substitute but rather as a complement for the measures we are proposing. It is an omission on our part that we did not describe that in our submissions to you. Peter might be able to add to that. I am able to speak about the intercept one because I am here to speak for the association today. Let me just read out what the policy is: "The Association is minded to endorse the use of intercept material as evidence but not within the current legal landscape". We see operationally presently the balance of advantage is to remain as we currently are where we are not comfortable about intercept evidence going to trial. However, we are positively addressing the strictures and constraints which we feel need to be addressed before we can move totally into a situation where we will be adducing intercept as part of criminal trials. It is a positive exploration and it is quite active and vigorous. That is taking place as we speak. I think the Home Office too are looking at this and I would hope that by the end of the year we will have a more definitive statement on that. However, there are some difficulties. We are open to the suggestion, in fact more than that, but there are some risks.
Q78 Dr Harris: I am a bit confused because you said that you accepted that but you did not explain why control orders would not work.
Mr Jones: I did not say they would not work.
Q79 Dr Harris: Sorry; you said they were not a substitute for extended detention. But then in response to Lord Plant you did not explain why. Clearly in some cases it would be a useful substitute since you are seeking to control someone while investigations continue.
Mr Jones: I will defer to my investigator colleague.
Mr Clarke: In some cases it is entirely feasible that it might be appropriate but it is important to remember that what we are suggesting is that extended detention would only be applied for in the most serious cases. The question to ask then is, is a control order an appropriate way of safeguarding the public from the people who, by definition, would be suspected of the most serious terrorist offences? I think the answer must be that the degree of control afforded by a control order might not always be appropriate.
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 Bruguière 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: Because 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. Therefore 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 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, they can have oversight over them without requiring a case and a specific 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.