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Baroness Scotland of Asthal: We strongly believe that the ordinary constructs should apply for the rules. The noble Lord knows that my noble and learned friend the Lord Chancellor has debated these issues long and hard during the constitutional debate. If I could foreshadow what is coming, and say to the noble Lord that we think that that tried and tested method, namely the Lord Chancellor acting in consultation with the Lord Chief Justice, would probably be the best way. I do not want to pre-empt the delight awaiting the House when the schedule is debated.

Lord Kingsland: I have deliberately sought only to foreshadow that debate telegraphically. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
 
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[Amendments Nos. 118 and 119 not moved.]

Lord Thomas of Gresford moved Amendment No. 120:

On Question, amendment agreed to.

Lord Kingsland moved Amendment No. 121:

On Question, amendment agreed to.

[Amendment No. 122 not moved.]

Baroness Scotland of Asthal moved Amendment No. 123:


(b) the notice must set out the time from which the revocation or modification takes effect."

On Question, amendment agreed to.

Lord Thomas of Gresford moved Amendment No. 124:

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 125:

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Baroness Scotland of Asthal moved Amendment No. 126:


"CRIMINAL INVESTIGATIONS AFTER MAKING OF CONTROL ORDER
(1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—
(a) that the involvement in terrorism-related activity of which that individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence would fall to be investigated by a police force.
(2) The Secretary of State must inform the chief officer of the police force that the control order has been made and that this section applies.
(3) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.
(4) Where he considers it appropriate to do so in performing his duty under subsection (3), the chief officer must consult the relevant prosecuting authority.
(5) In this section—
"chief officer"—
(a) in relation to a police force maintained for a police area in England and Wales, means the chief officer of police of that force;
(b) in relation to a police force maintained under the Police (Scotland) Act 1967 (c. 77), means the chief constable of that force;
(c) in relation to the Police Service of Northern Ireland, means the Chief Constable of that Service;
 
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(d) in relation to the Serious Organised Crime Agency, means the Director General of that Agency; and
(e) in relation to the Scottish Drug Enforcement Agency, means the Director of that Agency;
"police force" means—
(a) a police force maintained for a police area in England and Wales;
(b) a police force maintained under the Police (Scotland) Act 1967 (c. 77);
(c) the Police Service of Northern Ireland;
(d) the Serious Organised Crime Agency; or
(e) the Scottish Drug Enforcement Agency;
"relevant prosecuting authority"—
(a) in relation to offences that would be likely to be prosecuted in England and Wales, means the Director of Public Prosecutions;
(b) in relation to offences that would be likely to be prosecuted in Scotland, means the appropriate procurator fiscal;
(c) in relation to offences that would be likely to be prosecuted in Northern Ireland, means the Director of Public Prosecutions for Northern Ireland.
(6) In relation to times before the Serious Organised Crime Agency begins to carry out its functions, this section is to have effect as if—
(a) the National Crime Squad were a police force; and
(b) references, in relation to that Squad, to its chief officer were references to its Director General.
(7) In subsection (5)—
(a) "the Scottish Drug Enforcement Agency" means the organisation known by that name and established under section 36(1)(a)(ii) of the Police (Scotland) Act 1967 (c. 77); and
(b) "the Director" of that Agency means the person engaged on central service (as defined by section 38(5) of that Act) and for the time being appointed by the Scottish Ministers to exercise control in relation to the activities carried out in the exercise of the Agency's functions."

The noble Baroness said: The amendment relates to criminal investigations after the making of a control order. Earlier today we had a shortened debate on the appropriate involvement of the DPP. We accept that that provision has been passed, although I should make it plain that we do not necessarily accept that that is the best or proper way forward.

The amendment deals with what happens after the making of a control order. As the Government have repeatedly made clear, our preferred option will remain always to prosecute suspected terrorists wherever possible. However, for the reasons that we explained earlier, it is often difficult to mount a case in court in such circumstances because of the sensitivity and inadmissibility of the evidence.

The Government recognise that after an order is made there will still be a need to review the situation. Amendment No. 126 seeks to allay the concerns that have been expressed that the issue of prosecution will still be reviewed even after a control order has been made. The amendment places a duty on the relevant chief officer to keep under review the investigation of individuals who are subject to control orders during the duration of the order, with a view to their possible
 
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prosecution for any terrorist-related offence. The chief officer must consult the relevant prosecution authorities where appropriate.

These provisions will ensure that there continues to be active review of the scope for prosecuting an individual throughout the life of any control order. The amendment reflects existing practice. There is already a regular assessment of whether there is any prospect of prosecution. This assessment is carried out by the law enforcement agencies in consultation with the prosecution authorities as appropriate. I should emphasise that decisions on prosecution are for the relevant prosecution authorities.

Anticipating questions that may be raised by the noble Duke, the Duke of Montrose, in relation to Scotland, I should make it plain that we have consulted the Scottish authorities. For Scotland, the relevant prosecution authority is currently defined as the Lord Advocate. However, we have been advised by the authorities in Scotland that the correct person is the procurator fiscal who has operational responsibility for investigating and prosecuting crimes occurring in his or her jurisdiction.

The relationship between the police and the prosecutor in Scotland is well established. It is an appropriate and common practice for the police to consult the relevant procurator fiscal in such cases, and particularly in cases of serious crime. Thus the operational position in Scotland is more accurately and appropriately reflected in legislation by a reference to the procurator fiscal.

I hope that I have pre-empted the question that the noble Duke might have asked. I beg to move.


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