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Lord Mackie of Benshie: My Lords, I understood the noble Baroness to say that the troops who have made such an enormous difference and who have started the whole improvement are to be withdrawn next week. Surely this is perhaps a little unwise. Can the noble Baroness say what better job they could be doing than the one they have done there?

Baroness Scotland of Asthal: My Lords, they have done an absolutely superb job and we are immensely proud of them. However, the job that they have done is now complete. We said that they would go in to help to secure the airport so that those who wished to leave could do so. We also said that they would be there to help and support the UN troops so that the UN could get the proper numbers on the ground to carry out its duties. They have done those things. By the time they leave we hope that there will be at least 13,500 UN troops on the ground.

We also reasonably expect that those UN troops will be able to keep the airport safe and secure to enable further UN troops and other supplies to come in as necessary. Although I join wholeheartedly in praise of our troops, I would not like anything we have said here today to be seen as deprecating the commitment that has been made by the 13,500 UN troops who have been drawn from all over the world and who have come together to support the UN initiative to bring security and safety back to the people of Sierra Leone. They too are worthy of our plaudits and our congratulations: they too are worthy of our support.

Lord Marlesford: My Lords, however much we may congratulate them and applaud them, how can we, following up what the noble Lord, Lord Craig of Radley, has said, frankly have confidence that the UN troops will be able to hold the airport when they have not even been able to protect themselves? They have ended up being captured, and apparently the Indians too have been captured--and, as the noble Baroness has said, they are probably among the best in Sierra Leone.

Baroness Scotland of Asthal: My Lords, we have done much since the British troops arrived. One of the most important contributions we have been able to make is in relation to building and creating an effective strategy to assist the UN troops in their deployment and in taking the initiative forward. The training and technical assistance that we are making available are given not only to those on the ground in Sierra Leone, but technical assistance is being given by our British experts on military affairs in the UN in New York also. We shall continue to be closely involved in the strategy that has been so effectively deployed by our troops.

I do not say that there are not challenges ahead; clearly there are. However, we must not undermine what has been achieved in conjunction with those same

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UN troops within a very short compass. The British input has been very effective and it has been effective because it has been accepted willingly by those with whom we have worked.

Viscount Waverley: My Lords, an international position in regard to diamonds is long overdue and ought to be encouraged. More specifically, following on the point made by the noble Lord, Lord Marlesford, what provision is being made to protect our forces who are training the Sierra Leone army? What medical facilities and provision have been made for our forces, given that I understand a large number of malaria cases have now been reported?

Baroness Scotland of Asthal: My Lords, the troops who are being left behind will include those who will in effect protect the trainers and so it is likely that there will be 80 or 90 people specifically doing the training. Other troops will be there also to protect those who are involved in the training. That is the first point.

On the second point in relation to malaria, I can confirm that there have been a small number of reported cases of malaria among the British forces deployed in Sierra Leone during the current operation. We are at present seeking to establish the circumstances in which the personnel concerned have contracted this disease, but we know that all the personnel who have been infected are responding well to treatment. The malaria outbreak is small, it is contained and it is being effectively dealt with.

Terrorism Bill

5.6 p.m.

House again in Committee.

Clause 108 [Evidence]:

On Question, Whether Clause 108 shall stand part of the Bill?

Lord Goodhart: This clause replaces a section to a similar effect which was enacted in the Criminal Justice (Terrorism and Conspiracy) Act 1998. That Act was passed after a two-day debate in your Lordships' House at the beginning of September 1998 in the aftermath of the Omagh atrocity, obviously as emergency legislation. That special section has so far never been relied on in a court in the United Kingdom; and I have to say I believe that this Bill, as its successor, probably never will be, even if it is enacted. This clause, or rather its predecessor, was subjected to a devastating analysis in September 1998 during the debate of the noble and learned Lord, Lord Lloyd of Berwick, who I am glad to see in his place. I hope that he will repeat that analysis.

Therefore I shall try to be brief in speaking about this. On these Benches we believe that this clause is both improper as a matter of law and useless in practice. It is improper because it is surely for the court to decide whether an accused belongs to a proscribed organisation on the basis of the evidence before it.

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The opinion of a police superintendent, or a higher police officer, is not evidence of the accused's membership, even if you call it so.

What is happening is not that the police superintendent is giving evidence but that we are transferring part of the court's power of decision-making--the power to decide whether the accused is a member of a proscribed organisation--from the court to a police officer. Of course it is not a transfer of the whole of that power of decision but it does transfer an important element of it. The opinion of a police officer may, and no doubt will, be based on the evidence as presented to him.

But that opinion is not itself evidence; and whether the evidence justifies the opinion is a matter for the court and not for the police officer.

Under this clause, the police officer's opinion would still be treated as evidence, and possibly a crucial piece of evidence, even if that opinion were based on a belief in the probability rather than the certainty of its truth. The opinion could, and perhaps in a number of cases would, be based on an inadmissible confession. Unquestionably, as a matter of legal procedure, it is plainly inappropriate. It would no doubt be regarded as inappropriate in Strasbourg; and, unquestionably, it would be regarded--quite apart from the European Convention on Human Rights--as a breach of the fundamental tradition of the British legal systems.

Furthermore, it is not only improper, it is useless. Let us consider what will happen at the trial. The first questions which counsel for the accused will ask the police officer is, "What is the evidence you base your opinion on?" If the police officer says, "I'm sorry, I cannot tell you because of risk to our intelligence sources", almost inevitably the court, the judge having been trained in the judicial traditions of this country, will disregard the evidence as being unreliable and untrustworthy. In the unlikely event of the police officer saying what the grounds of his opinion are, counsel for the accused is entitled to say, "We want to hear the primary evidence from people who can give it, not evidence second hand from you, the police officer".

The clause was introduced in haste and should be repented of at leisure. It should never have been included in the 1998 Act; and it surely should be removed from the statute book now. I believe that Clause 108 should not stand part.

5.15 p.m.

Lord Lloyd of Berwick: I support the noble Lord. I can be brief because he has covered most, if not all, the arguments and I am in the process of losing my voice.

When the criminal justice Bill was before the House in September 1998, I was opposed to Clauses 1 and 2, which are reproduced in Clauses 108 and 109 of the Bill currently before the Committee, on the ground that they would achieve nothing in practice. However, I voted in favour of the Bill because in the aftermath of the bombing at Omagh it seemed to me that something was needed then, even if it were only a gesture. The

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time for gestures has now passed. There has been time to think again about Clauses 108 and 109. I had hoped that Clause 108 would have quietly disappeared never to be heard of again.

I shall not repeat the arguments which I sought to advance on the last occasion. They came to this: that no judge in Northern Ireland--I am lucky enough to know most, if not all, of them--would take account of the opinion of a police office, however senior, as to whether an accused was a member of a specified organisation unless he could back up that opinion with some evidence. Without evidence it is mere opinion, and mere opinion is worthless in a court of law except when it is given on expert grounds; and on this a police officer is not an expert.

The only evidence which a police officer could use to back up his opinion of the membership of an accused of a specified organisation would almost certainly be the evidence of an informer or other evidence from some secret source which could not be given in court. Therefore there could be no effective, meaningful cross-examination of the police officer on the opinion he had expressed.

If, perchance, a judge were to take account of an opinion of a police officer in these circumstances in convicting a defendant--let us bear in mind that the provisions apply to the conviction of a defendant as well as the committal of an accused for trial--such a conviction would almost certainly be upset on appeal because it would have been in part based on evidence which had not been given in open court and therefore would be contrary to any number of provisions of the Human Rights Act.

To make the opinion admissible in court is, I have to suggest to the Committee, a complete waste of breath. Earlier today the noble and learned Lord, Lord Falconer, described these two provisions as being hard hitting, additional powers. If by that description he refers to Clause 108, I can only disagree, sadly, with him. It hits, and will hit, nothing.

I am not surprised that Clause 108 has apparently not been used in a criminal court since it was enacted. In this Chamber one is not allowed even to think, "I told you so". I shall not say that but only that I am not in the least surprised it has not been used.

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