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Lord Cope of Berkeley: My Lords, I am not an expert in the law. I accept the expertise of the noble Lord and of the noble and learned Lord, Lord Lloyd of Berwick, as regards the legal position. However, I still believe that the police, particularly in Northern Ireland, are the ones who know the terrorists best, in every sense of the word, and in the deepest sense. They have every reason, both professional and personal, to do so. I believe that without other evidence--this cannot be done on a policeman's word alone--a court would sometimes find it valuable to have a senior policeman, a superintendent, as is laid down, express what seems to me to be, even if not in the legal sense, an expert opinion on the matter. I therefore support the clause.

Lord Lester of Herne Hill: My Lords, perhaps I may explain briefly some additional reasons for supporting the amendment. I hope that in his reply the noble and learned Lord will be able to explain why the Government consider Clause 108, read with Clause 109, because they are inter-related, to be compatible with Article 6 of the European Convention on Human Rights. I say that because the Government committed themselves, when asked, to provide their reasons for considering a provision to be compatible.

The Government will know that the Northern Ireland Human Rights Commission gave a full briefing on this matter and expressed particular concern about Clause 108. The commission pointed out that Clause 108 permits a court to admit police opinion evidence, that is, hearsay evidence, into evidence in criminal proceedings, although recognising that a defendant cannot be convicted solely on the basis of that evidence.

The commission also pointed out that Clause 109 further permits a court to draw adverse inferences from a defendant's failure during questioning to,

Again, a defendant cannot be convicted solely on the basis of such evidence. However, the commission pointed out that it appears that a defendant may be

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convicted using a combination of evidence admitted under Clauses 108 and 109. That seems to be the position.

The existing equivalent power comes in Section 30A of the Emergency Powers Act, which to date does not seem to have been relied on according to the commission in Northern Ireland. The commission understands that the police in Northern Ireland are reluctant to use that section in court.

The relevant provision of the European convention is Article 6(3):

    "Everyone charged with a criminal offence has ... the right ... to examine or have examined witnesses against him".

In its briefing the commission points to a well-known line of judgments of the European Court of Human Rights in cases like Engel, Kostovski, Doorson and Van Mechelen, which essentially say that convictions should not be based solely or decisively on hearsay evidence. The safeguard in the Bill is that they should not be based "solely" on that evidence.

The commission points out that it holds the same view as that held by the noble and learned Lord, Lord Lloyd of Berwick, in the debate to which my noble friend Lord Goodhart referred on the Criminal Justice (Terrorism and Conspiracy) Bill 1998; that is, that a violation of Article 6 is likely to occur when a conviction is based not solely on police opinion evidence but decisively under Clause 108, or a combination of police opinion evidence and adverse influences under Clauses 108 and 109.

If the Minister has not seen the brief from the Northern Ireland Commission of Human Rights, and had those points drawn to his attention, I understand that he may wish to deal with this matter by way of letter or at Third Reading. But if he is ready to explain his answers to those points I shall be grateful. Otherwise, this may be another example where we are legislating in a way that will have to be put right afterwards in litigation, if ever the point arises.

As my noble friend Lord Goodhart said, it seems unlikely that Clause 108 will ever be able to be applied in practice. It will therefore be a provision written in water as regards the law. And although we may draw great satisfaction from such legislation, if that is the true position and it will not be enforced in practice by the courts, the House is entitled to know that.

Lord Beaumont of Whitley: My Lords, in his attempt to establish that senior police officers are experts, the noble Lord, Lord Cope, demolished his own case. One of his arguments was that they were experts because they had been on the receiving end of terrorism for so long. I hope that does not misconstrue what he said.

The last thing one wants in an expert is someone who is emotionally or personally involved. The reason one wants an expert in a court of law is that he is someone who will put forward the facts and the arguments as they exist without personal bias. The noble Lord, Lord Cope, shot himself in the foot, if I may say so, and I support the amendment as it stands.

Lord Dubs: My Lords, it would be difficult to find anybody in Northern Ireland who was not emotionally

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involved in the tragic events at Omagh. That had a traumatic effect on everybody. I doubt it is possible to find any member of the RUC, professional and disciplined as they are, who was not involved in that event because it had such a cataclysmic impact on the whole community.

Having said that, we are all aware that there are many terrorists in Northern Ireland who are known to the RUC--or in southern Ireland known to the Garda--who are never brought to justice because there is insufficient evidence to convict them. In some instances they may not be guilty of the offence which the police believe they perpetrated. But I am fairly confident that in many instances both the Garda and the RUC know who the guilty people are and do not have the evidence to bring them before the court. With the exception of one person who was charged, to date none of the perpetrators of the Omagh atrocity has been charged, and yet there is reason to believe that many of them are known to the Garda and the RUC. Again, there is no evidence.

I say that simply as an introductory comment to this debate on Clause 108, given that I was involved as a Minister with the original Bill when it was brought before this House, along with my noble and learned friend the Attorney-General. When we are dealing with difficult matters and pushing democracy as far as it is safe so to do, the question is whether the response is proportionate to the evil we are trying to tackle. Although for many offences I would not want a Clause 108, in the case of terrorism as extreme as Omagh the response contained in that clause is proportionate to the evil done to society in Northern Ireland, given the safeguard.

The noble Lords, Lord Lester and Lord Goodhart, referred to the safeguard, but I feel that subsection (3)(b) is significant. It says,

    "the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the statement".

I have more faith in the discernment and objectivity of the judiciary in Northern Ireland than suggested by the speeches we have heard this evening.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Does he realise that we were not in any way disparaging the judiciary in Northern Ireland? On the contrary; we were attempting to explain that, such is the commitment of the Northern Ireland judiciary to the presumption of innocence and the right to a fair trial, it is highly improbable that Clause 108 as it stands will ever be able to be invoked. That is why I described it as a provision written in water and therefore one which ought not to be made part of our law.

Lord Dubs: My Lords, I appreciate that comment. In that case we are both agreed as to the high standards of the judiciary in Northern Ireland. I suggest that is an additional safeguard for those who have doubts about Clause 108.

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I repeat, of course we are not overenthusiastic about having to have such a clause on the statute book. But it is proportionate to the evil with which we are dealing and that is a justification for including it in the Bill.

Lord Avebury: My Lords, the noble Lord, Lord Dubs, took us back to the events of 1998 and the Bill which was introduced when he was still a Minister in the Northern Ireland Office. I remember the speed with which that legislation was rushed through your Lordships' House and I warned at the time how dangerous it was to enact far-reaching legislation of this kind in response to an event, however terrible, which caused tremendous concern among the public. But that was the wrong way in which to enact legislation.

The fact that we are adopting provisions contained in the Criminal Justice (Terrorism and Conspiracy) Act is not a convincing argument to those of us who objected to the process in the first place. Not only is my noble friend's example of the advice given to us by the Northern Ireland Human Rights Commission relevant in considering this matter, but so also is the similar briefing we received from Amnesty International, which I am sure the noble and learned Lord, Lord Falconer, must have seen.

I suspect that the noble and learned Lord will not need to make use of my noble friend's suggestion that he may wish to defer a definitive answer to these points until he has had an opportunity of writing. The department must have apprised him not only of what Professor Brice Dickson said but also of the opinions of Amnesty International; that is, that conviction could be obtained on the basis of the opinion of a police officer supported by inferences drawn from a failure to disclose material information under the provisions of Clause 109. They say that this is not only a violation of Article 6 of the European Convention, as my noble friend pointed out, but that it breaches Articles 14(2) and 14(3) of the International Covenant on Civil and Political Rights.

The noble Lord, Lord Dubs, said that in the circumstances we faced in Northern Ireland following the Omagh atrocity, we pushed democracy as far as it was safe to do so. That was a very telling and revealing phrase. In my opinion, we should always have a safety margin in defending democracy. Just as in designing a building so that it exceeds any load that might conceivably be placed on it by a factor of several orders of magnitude, so, in defending democracy, we must have a sufficient margin between the legislation that we enact and the limits to which democracy is fully tested--

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