Joint Committee On Human Rights Nineteenth Report

5  Post-charge questioning and other alternatives to extending pre-charge detention

Post-charge questioning

163. In our report on Prosecution and Pre-Charge Detention we recommended the introduction of post-charge questioning and that it be possible to draw adverse inferences from a refusal to answer such post-charge questions, subject to appropriate safeguards.[121] We considered that this would go some way towards reducing the need for any further extension of the period of pre-charge detention.

164. In its response to our report the Government indicated that it would shortly be publishing a public consultation document on a range of proposals about modernizing police powers, including proposals to provide for questioning after charge where considered necessary.[122]

165. The Home Office Consultation Paper, Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE) 1984 was published in March 2007 and asked for views on the questioning of the detainee/suspect from the decision to refer the case to the prosecutor for a charging decision up to the decision by the prosecutor to charge; and from following the decision to charge up to the trial hearing. It is envisaged that such post-charge questioning would take place in a police station and the person would remain entitled to the full range of safeguards under PACE. We welcome the Government's positive response and the relative speed with which it has consulted on the introduction of this change.

166. The Commissioner of the Metropolitan Police has described the ability to draw adverse inferences from a failure to answer post-charge questions as "a welcome amendment", though he also stated that it is the Metropolitan Police's view that post-charge questioning alone would not be sufficient to replace extended pre-charge detention but would be a useful addition.[123] The Minister of State for Policing, Security and Community Safety, in oral evidence to us, described post-charge questioning as[124]

"another useful device to obviate the need to go elsewhere … in terms of departures from normality in terms of law and the rule of law. … it will not obviate them entirely, but certainly, if it helps more and more people charged within the framework of the terrorism law going through due process rather than pre-charge detention …, then I am all for it."

167. We encountered a similar acceptance amongst the police at Paddington Green police station. We welcome the Minister's implicit acceptance that such a measure should in principle lessen the need for extending pre-charge detention.

168. In the former Home Secretary's oral statement to the House of Commons about the Government's approach to counter-terrorism laws, on 7 June 2007, he said that the Government is planning to legislate so that in terrorist cases suspects can be questioned after charge "on any aspect of the offence for which they have been charged." With regard to adverse inferences, he proposed to apply the same rules for post-charge questioning that currently apply to pre-charge questioning.

169. We welcome the Government's announcement that it is planning to introduce post-charge questioning along with the possibility of adverse inferences from silence in the face of such questions. We question, however, whether it is necessary for this to be done by legislation rather than amending the relevant PACE Code of Practice, which would enable the change to take effect more quickly. Given the obvious relevance of post-charge questioning to the need for any further extension of the period of pre-charge detention, we regard it as important to introduce this change sooner rather than later.

170. We also question why the proposal appears to be restricted to post-charge questioning "on any aspect of the offence for which they have been charged". This seems to us to be unnecessarily restrictive. It may be necessary to interview a person who has already been charged with one offence about fresh evidence which has come to light which may warrant slightly different or even additional charges.

171. We would point out that the introduction of this power would need to be accompanied by certain minimum safeguards to ensure that its use is not oppressive, including, for example, access to legal advice, a requirement that the prosecution have already established a prima facie case, and guidance as to how judges should direct juries about the inferences that could be properly drawn from silence in response to such questioning.

172. We recommend that post-charge questioning with adverse inferences be introduced by amending the relevant PACE Code, along with specific safeguards against its abuse, and without the restriction that questioning be confined to aspects of the offence with which the suspect has already been charged. We look forward to an opportunity to scrutinise the safeguards which the Government proposes should accompany this power in due course.

Bail for Terrorism Act offences

173. During our visit to Paddington Green the police indicated that they would often prefer to bail a person who is being detained in respect of a less serious terrorism offence rather than keep them in lengthy pre-charge detention. At present, however, this option is not available as police bail is not available in respect of any Terrorism Act offence.

174. Introducing the possibility of bail for the less serious terrorism offences would enable the police to continue their investigation of the person while at the same time maintaining some control over them through bail conditions.

175. We agree that this seems in principle a very sensible proposal and we recommend that the Government give it serious consideration.

GPS tagging

176. Also during our visit to Paddington Green, the suggestion was made that GPS technology might be used for tagging both individuals who are the subject of control orders and as a condition of Terrorism Act bail if this were to be made available.

177. Recent developments in tagging using the Global Positioning System ("GPS") may make it possible to tag a suspect in such a way that their precise physical location would always be ascertainable. This may be less intrusive than many of the control orders currently in force and could potentially mean that suspects could not "disappear" in the way that a number of subjects of control orders have recently disappeared.

178. On the other hand, we are aware of the existence of studies which call into question the effectiveness of this technology and raise practical questions such as whether it is available in a form which cannot be physically removed by a person sufficiently determined.

179. We recommend that the Home Office make a formal assessment of the feasibility of GPS tagging for terrorism suspects and provide us with the results of its assessment.

The "threshold test" for charging

180. In our report on Prosecution and Pre-charge Detention we welcomed the introduction of the lower charging standard ("the threshold test") by the CPS because it appeared to us to introduce greater flexibility in the investigation of terrorism cases[125].

181. The Government in its response,[126] however, said that this was not a relevant factor in considering the appropriate time limit for pre-charge detention. It also said that it could apply only in some terrorism cases, whereas the DPP told us at an informal meeting that it is used in most terrorism cases.

182. We remain of the view that the use of the threshold test should lessen the need for a further extension of the period of pre-charge detention. In our view, however, more information is required about the operation of the threshold test in practice. We recommend that an appropriate body, such as the CPS Inspectorate, conduct a a review and report on the operation of the threshold test in terrorism cases.

121   JCHR Report on Prosecution and Pre-charge Detention (2006) at paras 132-135. Back

122   Government Response to JCHR Report on Prosecution and Pre-charge Detention at p. 9. Back

123   Letter from Metropolitan Police Commissioner to the Committee, received 2 Februrary 2007, Ev 49. Back

124   Oral evidence, 18 April 2007, Q164. Back

125   JCHR Report on Prosecution and pre-Charge Detention, at paras 132-135.  Back

126   Government Response to JCHR Report on Prosecution and Pre-charge Detention at p. 9. Back

previous page contents next page

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

© Parliamentary copyright 2007
Prepared 30 July 2007