Joint Committee On Human Rights Ninth Report

3  Post-charge Questioning

The provision in the Bill

22. The Bill includes a new power for a constable to question a person about a terrorism offence[18] after they have been charged with the offence or been officially informed that they may be prosecuted for it.[19] The Bill also provides for adverse inferences to be drawn from the accused's silence in the face of such post-charge questioning.[20]

23. The Explanatory Notes to the Bill merely assert that since the European Court of Human Rights has held that the drawing of negative inferences from silence is not, of itself, a breach of the privilege against self-incrimination in Article 6(2) ECHR, it is therefore considered by the Secretary of State that these provisions are compatible with Article 6(2).[21]

The range of views about post-charge questioning

24. In our Report on Prosecution and Pre-Charge Detention in July 2006, we took the view that human rights law presents no obstacle in principle to the relaxation of the current restriction on post-charge questioning, nor to the drawing of adverse inferences from a defendant's refusal to answer questions at such post-charge interviews. We said that such a measure would not necessarily breach the privilege against self-incrimination, provided it is accompanied by adequate and effective safeguards (including some additional to those that exist for pre-charge questioning), such as access to legal advice, a requirement that the prosecution have already established a prima facie case, and limits to the inferences that would be proper.[22]

25. We therefore recommended that the Government amend the PACE Codes to permit post-charge questioning and the drawing of adverse inferences, as a measure which would significantly reduce the need for a further extension of pre-charge detention, but we made clear that we expected an opportunity to scrutinise the adequacy of the safeguards proposed.[23] We repeated the recommendation in our more recent report on 28 days, intercept and post-charge questioning (July 2007), again emphasising the critical importance of the accompanying safeguards.[24] In the interests of introducing the change as soon as possible, we questioned whether it was necessary to make the change by legislation rather than amending the PACE Codes of Practice. We now accept that the important safeguards against oppressive use of the power should be spelt out in primary legislation.[25]

26. The Home Affairs Committee, in its recent report on The Government's Counter-Terrorism Proposals, concluded on post-charge questioning:[26]

We support allowing the use as evidence of information obtained in post-charge questioning of terrorist suspects, including the ability to draw an adverse inference against an individual who refuses to answer, subject to the same safeguards as apply to pre-charge questioning: the right to legal advice, the right against self-incrimination and freedom from oppressive questioning.

27. Lord Carlile of Berriew QC, the reviewer of terrorism legislation, in his report on the Government's proposed measures for inclusion in a Counter Terrorism Bill, expressed some words of caution about post-charge questioning.[27]

Whilst it is my view that it is sensible that provision should be made for suspects to be questioned further after charge in terrorism cases, it is right that I should utter a word of caution. Historically, the prohibition on post-charge questioning has existed to protect the rights of accused persons, by forcing the police to charge only where there is sufficient evidence to justify doing so, and in a timely fashion. If they are unable to do this then the suspect must be released. An unfettered ability to question after charge might give rise to at least two possible situations, each of which is wholly foreseeable and, equally, each of which is wholly unacceptable. First, a suspect could be charged with a minor offence (such as criminal damage). He or she could then be held pending trial, with virtually no judicial scrutiny or protection, whilst the police investigated the offences in which they were really interested, with the intention of adding more serious charges at a later stage. Alternatively, a suspect could be charged with a serious offence for which the police had strong suspicion but scant evidence, hoping that the pre-trial period would permit them to discover the evidence to justify the charge. As ever, I am concerned that the effort to protect the right to safety of the law-abiding public should not remove provisions designed to protect a wrongly-accused individual. I wish to make it plain that the ability to question after charge is not of itself a panacea for the ills of extended periods of pre-charge detention. However, with proper safeguards in place, it may be a practical and effective way of balancing the two competing principles referred to above.

For these reasons, this innovation would require careful amendment to the current Police and Criminal Evidence Act 1984 Codes of Practice, or an additional and specific Code. It would be necessary to provide clarity for the particular threshold for such questioning, limitations on its extent, and other provisions to ensure protection of the suspect from arbitrariness. The Government should consider judicial supervision of the exercise of the power, perhaps making provision for judicial examination at an early stage of the evidence said to be sufficient to justify charge. However, judicial supervision should not extend to judicial presence at the questioning itself.

My early reaction to this proposal included misgivings about the availability in court of an adverse inference against a defendant in the event of a failure to answer questions asked in post-charge police interviews. I have some doubts, founded on experience of court cases, of the efficacy of the adverse inference provisions. On reflection I have concluded that where post-charge questioning takes place on matters to which a defendant, properly advised by lawyers, could reasonably be expected to reply, an adverse inference should be available where there is a refusal. However, the new or amended Code must include protection against repetitive or oppressive questioning.

28. Considerable concern, however, has also been expressed about the emergence of an apparent consensus about the desirability of allowing post-charge questioning with adverse inferences. Lord Lloyd of Berwick, for example, in the debate on the Queen's Speech, said:[28]

First, there is the issue of post-charge questioning. I knew that as soon as ever that idea was floated everyone would jump on the bandwagon and even claim that they had thought of it first. It seems to be such an easy and in a sense obvious solution to what everyone agrees is a difficult problem.

But it will not do. Why not? For the simple reason that if post-charge questioning is allowed, there is a very real risk that the suspect will not get a fair trial. That needs some explanation, along these lines. The courts have always made it their primary function to ensure that trials are fair. That applies not only to the conduct of the trial itself but to what happens before the trial starts. Let me give a recent example. Not long ago, a defendant was brought to stand trial in England by being forcibly placed on an aircraft in South Africa without any judicial process of any kind. The Court of Appeal, to its shame, held that he could still have a fair trial here, even though the manner in which he had been brought here was so obviously unjust. That decision was unanimously reversed by the House of Lords. I could give other examples.

So judges are very much concerned with not only what happens at the trial but what happens in the process by which suspects are brought to trial. It is for that reason that over the years they have formulated certain rules that have always been known as the "judges' rules". Two of the best known of those rules are that as soon as there is enough evidence to charge a suspect he must be charged forthwith. The second rule is like unto it and is obviously a corollary of it; that once he has been charged no further questioning is permissible in relation to that offence. The reason for both those fundamental rules is the need to protect a suspect from oppressive questioning. The rules have a long history and they have long had the force of statute. They are currently to be found in Code C of the codes made under PACE—the Police and Criminal Evidence Act 1984. The current code took effect as recently as July 2006. Paragraph 16.4 provides:

"A detainee may not be interviewed about an offence after they have been charged".

It is not very good grammar, but the meaning is perfectly clear. There are some very limited exceptions, which only go to prove how important the rule is.

Those are just two of the rules that underpin our concept of a fair trial. Yet it is now proposed to abrogate the second of those rules in relation to terrorism. But a terrorist suspect is entitled to a fair trial, the same as any other suspect. Our notion of what constitutes a fair trial surely cannot depend on what the suspect is supposed to have done. Post-charge questioning is not the easy way out and we should resist it as vigorously as we should resist any extension beyond 28 days.

Even if it were to be allowed, where would it stop—at the door of the court? To allow a defendant to be questioned by the police up to the moment that he goes into the dock would be quite intolerable. No one would seek to defend that; but where else is the line to be drawn, once post-charge questioning is allowed? Of course the police can continue their investigation. Of course the suspect can be re-arrested and questioned in relation to some other offence. But once he has been charged and the case handed over to the Crown Prosecution Service, questioning in relation to that offence must stop.

The need for adequate and effective safeguards

29. When we were given sight of the draft clauses prior to the publication of the Counter-Terrorism Bill, we noted that no safeguards were included on the face of the draft clauses themselves. Instead, the draft clauses provide that the PACE Codes of Practice may make provision about post-charge questioning. Since, in our view, the crucial human rights issue in relation to post-charge questioning is the adequacy of the accompanying safeguards against the abuse of what is potentially an oppressive power, we wrote to the Home Secretary[29] asking her to provide more detail about precisely what safeguards are intended, and in particular whether any form of judicial control is envisaged, such as prior judicial authorisation of questioning or even judicial supervision of such questioning, as suggested by Professor Clive Walker.

30. The Home Secretary's response contained, for the first time, a little detail about the safeguards being contemplated:[30]

The proposed measures will only allow an individual to be questioned in relation to the offence for which they have been charged. … An initial period of 24 hours to question a person after charge can be authorised by a senior police officer, thereafter any questioning after charge would be limited to a maximum period of 5 days and would have to be authorised by a Magistrate's Court. If there is a need for any subsequent post charge questioning, the police must return to the Magistrate's Court for further authorisation. The safeguards in the PACE codes will apply as they do pre charge as regards the conditions of custody, questioning, etc.

31. Professor Clive Walker and Professor Ed Cape both submitted evidence to us in which they expressed strong concern about the introduction of post-charge questioning, and suggest a number of detailed safeguards which they say should accompany any such measure if it were introduced.[31]

32. Like Lord Lloyd, we have been concerned about whether the apparent consensus about the desirability of post-charge questioning has led to a neglect of the question of the appropriate safeguards.[32] We therefore took oral evidence on this subject from Professor Clive Walker.

33. Professor Walker told us that in his view human rights law does not impose any absolute prohibition on post-charge questioning, rather the issue is how to devise a process which is likely to be fair to the person who has been charged. However, he disagreed with the Home Affairs Committee that it was enough simply to apply pre-charge protections which mainly exist under PACE Code C. The situation is different after charge, because the accused is in a particularly vulnerable position, the police and the prosecution are building a case, and in our traditional adversarial process it is for the judge, acting as a sort of umpire, to ensure that what is being done is fair in all the circumstances.[33]

34. In Professor Walker's view, many of the physical conditions of questioning post-charge could be dealt with in the PACE Codes, but it is important to establish in primary legislation many of the other parameters of post-charge questioning, such as the purposes of such questioning, and the limitation that it must be about new evidence rather than about the same issues that were the subject of questioning pre-charge. Careful judicial oversight is also needed to ensure that the police do not use post-charge questioning as a way round the process of disclosure of evidence pre-trial. Professor Walker also advocates judicial control of post-charge questioning after the event, to enable the court to supervise the purposes and length of time for which questioning has taken place, and taping of such interviews to facilitate such supervision.

35. Professor Walker said that, provided there is appropriate judicial umpiring of post-charge questioning, "it is difficult to argue that it is necessarily wrong to draw adverse inferences".[34] However, he would like to see a special warning to the jury to do with post-charge questioning, to remind them that, post-charge, the reliability of silences or statements might be questionable because of the particularly fraught stage of being a suspect.

36. We found Professor Walker's evidence compelling on the question of the detailed safeguards which should accompany post-charge questioning. We support the introduction of post-charge questioning as a measure which reduces the pressure for an extension of pre-charge detention, but we agree that it should be accompanied by a number of detailed safeguards on the face of the Bill, to ensure that this potentially oppressive power is not used oppressively in practice.

37. We recommend that the Bill should be amended to include the following safeguards on the face of the legislation:

(1) that there should be a requirement that post-charge questioning be judicially authorised;

(2) that the purpose of post-charge questioning be confined to questioning about new evidence which has come to light since the accused person was charged;

(3) that the total period of post-charge questioning last for no more than 5 days in aggregate;

(4) that post-charge questioning always take place in the presence of the defendant's lawyer;

(5) that post-charge questioning always be DVD- or video-recorded;

(6) that the judge which authorised post-charge questioning review the transcript of the questioning after it has taken place, to ensure that it remained within the permitted scope of questioning and was completed within the time allowed; and

(7) that there should be no post-charge questioning after the beginning of the trial.

38. The overriding requirement must be to ensure that a fair trial is possible and judicial oversight should be geared towards this end. For example, particular attention should be paid to the gap between the end of post-charge questioning and the beginning of the trial to ensure that the defendant's rights are respected.

18   A "terrorism offence" for this purpose is defined by clause 26 to include most of the offences under the Terrorism Act 2000 and the Terrorism Act 2006, as well as conspiracy, attempt and incitement to commit such offences. Back

19   Clause 23(2). Post-charge questioning is also allowed where a person has been sent for trial for a terrorism offence or a judge of the Crown Court has made an order for a preparatory hearing to be held in the case (under s. 29 of the Criminal Procedure and Investigations Act 1996) and did so on the basis that the offence has a terrorism connection: clause 23(3). Clauses 24 and 25 make equivalent provision for Scotland and Northern Ireland. Back

20   Clause 23(6), amending s. 34(1) of the Criminal Justice and Public Order Act 1994. Back

21   EN para. 275. Back

22   Twenty-fourth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HL Paper 240/HC 1576 (hereafter "Report on Prosecution and Pre-charge Detention"), at paras 132-135. Back

23   Ibid. at para. 135. Back

24   Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL Paper 157/HC 394 (hereafter "Report on 28 days"), paras 163-172.  Back

25   Ibid., para. 169. Back

26   First Report of Session 2007-08, The Government's Counter-Terrorism Proposals, Volume I, HC 43-I, at para. 92. Back

27   Report on Proposed Measures for Inclusion in a Counter Terrorism Bill, Cm 7262, December 2007, at paras 22-24. Back

28   HL Deb 12 November 2007 col. 263. Back

29   Letter from the Chair to the Home Secretary, 12 November 2007, Appendix 3. Back

30   Letter from the Home Secretary to the Chair, 5 December 2007, Appendix 4. Back

31   Appendices 5 and 6. Back

32   In our Report on 28 days, for example, at paras 171-172, we pointed to the need for post-charge questioning to be accompanied by certain minimum safeguards to ensure that its use is not oppressive. Back

33   Oral evidence, 17 December 2007, Q2, Ev 1. Back

34   Q6, Ev3. Back

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