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Nevertheless, there are important issues to which we should address ourselves, probably in Committee, regarding the implications of this measure. What would the criteria be for transferring an accused person from one jurisdiction to the other? If proceedings start in one jurisdiction, can a trial take place in another? These are not simply academic points. In Scotland, there are time limits under the Criminal Procedure (Amendment) (Scotland) Act 2004: 80 days for serving indictments; the commencement of a trial of a person in custody must take place within 140 days unless the court grants an extension; and a preliminary hearing must occur within 110 days unless the court grants an extension. If someone who was originally charged in Scotland was sent to stand trial in England, would those time limits apply? Conversely, if someone originally arrested in England were sent for trial in Scotland, would these time limits apply to that person and, if so, when would they kick in?
As I said, those are not academic points; they are fundamental. In Scottish criminal law, great pride is taken in the safeguard provided by the time limits for bringing people in custody to trial, and we should not let that go by without any reference being made to it in the Bill. I looked at the Bill in great detail but did not see anything that covered that kind of situation; nor, indeed, did I see what the criteria would be for transferring an accused person or deciding in which jurisdiction that person should be tried.
The other point that I wish to raise concerns post-charge questioning. As my noble friend Lord Thomas indicated, such questioning is not unprecedented in England and Wales, and the Bill has separate provisions for Scotland. It is fair to say that until now in Scotland it has been an established and fundamental common-law principle that the police are prevented from questioning a suspect after he or she has been charged. There is no doubt that the legislature can change that but, if it does, it is only fair for us to take the argument to the Government and ask what account was taken of the
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“When an accused person has been committed, he comes under the protection of the court and it is the court’s duty to see that nothing is done by the police that will prejudice his trial”.
If someone is under the protection of the court, we should expect more than we see in the Bill if that protection is to be interfered with somehow or another. Should that protection be interfered with in the first instance simply on the authority of a superintendent? The questioning can take place right up to the trial. If the trial is to take place in the High Court, is it right that the sheriff should have to give authority for the questioning to go beyond 24 hours? What is the role of the Lord Advocate in this? In Scotland, not only is the Lord Advocate a prosecutor but he has responsibility for directing the police in their investigations of a crime. Therefore, does the Lord Advocate have a locus if a superintendent intends to give the authority for post-charge questioning, as is proposed in Clause 35?
I raise those points because they are important. We are not necessarily saying that we are opposed to the measure but we should expect more in the Bill if a fundamental change is to take place. There is the impression that it has not been properly thought through. If, as I think is appropriate in cases of terrorism, matters are reserved to the Westminster Parliament, the least that we can expect of it so far as concerns Scots law is that it does things properly.
8.48 pm
Lord Mackenzie of Framwellgate: My Lords, it is with a sense of trepidation that I address your Lordships’ House this evening, as I sense that my view is a minority one. My contribution to the debate will be, again, on the controversial subject of the detention of suspects, of which I have some 35 years’ experience at the sharp end of policing as a working detective up to the rank of chief superintendent. Noble Lords will be pleased to hear that it is not my intention to detain your Lordships for too long this evening.
During my service, I arrested all types of suspect in cases ranging from theft to murder. The law is quite clear that the police have a right to detain a suspect on reasonable suspicion of his having committed the offence and, at that stage, evidence is not required. It is sufficient reasonably to suspect. It could be on the basis of what the officers have been told by the victim, or indeed the actions of the suspect himself, or perhaps scientific evidence linking him to the crime. Any of these could be grounds to detain the suspect. One thing is certain: the suspect is entitled to be told of the grounds upon which he is being detained as soon as possible after the arrest.
No one should be detained without knowing why. The law used to be governed by the common-law judges rules until procedures were eventually developed under the Police and Criminal Evidence Act of which we have talked this afternoon. This sets out the time limits for detention and the procedures for extending it in certain circumstances. The law is equally clear about charging a suspect. Generally speaking, he should
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Terrorism is a completely separate matter and of course different rules have been developed over recent years under new legislation. Today we are discussing the period of detention before charging to enable police in these very complex cases in which there are international connotations, often involving conspiracies between continents, and with thousands of mobile phone records to be checked, hundreds of hours of CCTV images to be examined, and encrypted computer records to be deciphered in what can be the most complex and time-consuming investigations. It is said that there are currently 30 known plots, over 200 groups or networks and some 2,000 individuals being investigated. This takes time and investigating officers should be allowed sufficient time to complete these inquiries within a reasonable time.
What is to be done? The Government’s independent reviewer of terrorism, the noble Lord, Lord Carlile of Berriew, of the liberal Benches, a champion of human rights throughout his life, has clearly indicated that he believes that there is a case for increased powers to detain before charging. Like me, he hoped that a consensus could be reached between the various parties. I had hoped that, with judicial oversight, a way forward could be agreed to extend detention in extreme circumstances.
Having looked at all the circumstances and the evidence, I part company with colleagues—former police officers—in this House, because in my view a maximum 42 days, with all the safeguards, is not unreasonable if the alternative is to release the suspect, who may well then go on to thwart the investigation.
The Director of Public Prosecutions, Sir Ken Macdonald, agrees that long periods to investigate are required. His remedy is to charge sooner than normal by lowering the bar, without having the evidence that would normally be required. The police would then have to secure the proof within the period before charging, after charging, and appearing before the court. At first I found this quite an attractive argument, but on further examination it seems to be very subjective. What if the next DPP does not agree with that particular level of the bar? What if the police are unable to get the evidence required, or more evidence, after charging? Would the charges be dropped after months, or perhaps even over a year, on remand? Would that not be a greater infringement than 42 days?
That is what happens in other jurisdictions. But because of differing judicial systems, comparisons between them are fatuous. For example, on 19 January, 14 Asians were arrested in Barcelona on suspicion of plotting an attack. They were held in preventive detention until indicted some four and a half months later. I understand that the detention could have been for four years. Comparisons between the systems are not realistic. In my view, this Bill is far more transparent and sets out clearly the required judicial safeguards.
Like the noble and learned Lord, Lord Boyd, I am unhappy with the parliamentary and ministerial oversight. But, on balance, the measures to extend up to 42 days
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8.54 pm
Lord Joffe: My Lords, I will focus only on the proposed extension of the maximum period of detention by a further 14 days.
I naturally do not question the seriousness of the threat of terrorism or the view that, consistent with their duty to protect their citizens, the Government must take all necessary powers to protect people from death or injury by terrorism. However, in so doing, the Government also have the duty to protect the human rights of their citizens and the rule of law, which are the cornerstones of our democracy. When the proposal is to allow the police to deprive citizens of their right to liberty, that is so serious a breach of the principles of habeas corpus that a compelling evidence-based case must be made by the Government in respect of each of the following four issues: first, that the existing powers of the police and intelligence agencies are effectively used at present; secondly, that there is an increased threat, for which the existing powers are inadequate; thirdly, that the additional powers will be likely to meet the increased threat; and, fourthly, that no other powers would meet the threat without further eroding human rights. I will deal briefly with those issues.
I understand that, in the last year, the police have not found it necessary to detain any suspect for more than 14 days before charging them. We also know from the speech of my noble friend Lord West in the debate last week on the renewal of 28 days’ detention under the Terrorism Act 2006 that he was of the opinion that, although the threat level is still severe, we are safer now than we were 12 months ago. He also told us:
“In 2007, 36 individuals were convicted in 14 significant terrorist cases, of whom 21 pleaded guilty. That is really quite an achievement”.—[Official Report, 1/7/08; cols. 203-04.]
I agree: the police should be congratulated on that achievement—achieved, as it happened, with the quiver full of arrows that they already have. The fine record of the police and our improved safety are strong evidence that they have all the arrows that they need to protect the public, unless the threat has significantly increased.
When we are considering the request for 42 days’ detention, it is also important to remember that we moved in 2000 to detention for seven days, in 2002 for 14 days and in 2006 for 28 days. That is a worrying trend line for a democracy once regarded as the bastion of freedom. If we carry on regularly increasing detention limits by 50 per cent at a time, as is now proposed, it will not be too long before we reach 90 days and more.
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Against that background, I have attempted to find evidence justifying an increase in the maximum period of detention. There is evidence of ever increasing complication, but that cannot be sufficient justification for depriving suspects of their liberty without charge for another 14 days. Many other powers, including control orders, post-charge questioning, the threshold test, surveillance and additional resources, together should have the potential to solve the problems of complexity at least as well as an extra 14 days’ detention, without in the process further eroding our rights to freedom.
Even if there were evidence of an increased threat, the Government would have to produce further evidence that those extra 14 days would be essential to meet it. The Government have not even attempted to do this, and I think that it is almost impossible to produce that evidence. Having carefully studied the reports of the Joint Committee on Human Rights, I agree with its conclusion that the Government have failed to make a case for further extending the maximum period of detention. I am fortified in arriving at that conclusion by having had the benefit of listening to the eloquent speeches of so many illustrious Peers in this House. It is clear that the Home Secretary has done her best, with the raft of provisions occupying five pages of this Bill, to meet many of the concerns expressed about the proposed extension of 14 days. However, the provisions are not a substitute for the lack of evidence in support of the proposed extension. They would only need to be considered if there was such evidence, which I do not believe there is.
It is important, when considering proportionality, to remember the plight of innocent detainees. Detention for long periods, plus ongoing interrogation, is akin to torture for some individuals. It is particularly agonising and dangerous for those who are innocent. The evidence from psychiatrists in South Africa is that some detainees eventually become receptive to continued suggestions by their interrogators that they had participated in terrorist activities, to the extent that they believed that they were guilty and confessed to crimes that they had not committed. I admire and greatly respect the Prime Minister, who has done more than any other politician in the world to attack poverty and injustice in the developing world, but I very much regret that I cannot support him in increasing detention and will oppose this Bill.
9.02 pm
Lord Lyell: My Lords, we keep hearing the figure of 42 days for detention. I take your Lordships back 36 years, when I sat where the noble Baroness, Lady Mallalieu, and the noble Baroness, Lady Ramsay, sit now. I shall sharpen your Lordships’ memories: that was the year of the Munich Olympics, when Israeli athletes were kidnapped and done to death. It is fresh in my mind that at that time, 36 years ago, we were discussing aspects of legislation in the United Kingdom—more precisely, Northern Ireland. We discussed a process similar to the 42-day proposal in this Bill that we are discussing today. I think that it was known as internment, or perhaps one calls it detention. Nevertheless, the
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In another Olympic year, 1984, I was asked to serve in Northern Ireland. My noble and learned friend in front of me will know that I am a young Scot. I am not a lawyer; I am a chartered accountant. I was asked to carry out various duties in Northern Ireland. These ranged further than the duties that I had to deal with as, say, Minister for Agriculture, let alone in your Lordships’ House. Ministers in your Lordships’ House and Ministers in Northern Ireland have to get their knees brown or their toes wet with the matters that we are discussing in this Bill. I had always to remember to try to get it right. One would cover everything. I am not a lawyer, but I had to see that no mistakes at all were made. If a Minister—someone in my position of not being a lawyer—made mistakes, they could bring to absolutely nothing or to destruction all the hard work of the security forces and the police. We have heard tonight about the excellent work that they have done all over the United Kingdom. I hope that I began to learn there. I learned that Ministers perhaps have some knowledge of the aspects of security that we are discussing this evening.
Noble Lords are lucky that most of my speech has been made by my noble friend Lady Neville-Jones. Her outstanding opening speech covered everything, and I look forward to her contributions in the stages of the Bill that will bring it to fruition. The other half of what I might have wanted to say was covered by the noble and learned Lord, Lord Lloyd of Berwick, who is not in his place. He is another Member of your Lordships' House who covers security. He is the essential link man between everything we are discussing tonight to bring suspected terrorists to justice before the courts and, above all, to get all the evidence and the details right. The speech made by the noble and learned Lord was an example to us all.
Virtually all the speeches have been made on the subject of 42 days’ pre-charge detention. I understand that there will be quite a lengthy wait before we come to the next stages of the Bill. I ask the Minister to be kind enough to take the warning, which is customary at Second Readings of Bills before your Lordships' House, that I will be particularly following some Scottish aspects of the Bill. I shall be guided by my noble and learned friend, the noble and learned Lord, Lord Boyd, and perhaps even the noble Lord, Lord Wallace of Tankerness. The particular clauses that I might want to look at are Clauses 11, 17, 18, 19, 35 and 41 and Clauses 89 and 90 when we come to the definition of cash.
That will come another day, but today we have been discussing a crucial aspect of the Bill: the right to liberty of every person in the United Kingdom. Nothing must be done that will bring their reputation and liberty to a halt. We must get it right. I am sure that the Minister will remember that. That is enough from a Scottish accountant. I look forward to the next stages of the Bill.
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9.08 pm
Lord Clinton-Davis: My Lords, the noble Lord, Lord Lyell, equated the situation that we now face with that in Northern Ireland. That is incorrect, as I hope to show. The noble and learned Lord, Lord Boyd, unlike others, put the issue fairly. He said that the issue of 28 days or 42 days is a matter of judgment. I disagree with noble Lords who argue that it is a question of sincerity. It is not. There is sincerity on both sides of the argument that we are now confronting. Arguing, as I do, for 42 days, I think that strong and workable safeguards have to be implemented. I do not think that they have been cobbled together or are irrelevant, as has been alleged.
My noble friend Lord Mackenzie of Framwellgate, a police officer of great experience, listed the difficulties confronting prosecutors, and I entirely agree. So, am I completely satisfied with the Government’s proposals? I certainly am not. In my view, it is necessary to pose the following questions. Do the risks which we now confront justify the extension to 42 days? Are the safeguards adequate? Is a fair trial possible? What, above all, is the alternative?
At the outset, I am concerned about civil liberties, with which I have been involved throughout my life as a politician and as a lawyer. They are precious to us. But the risk we now face from extremists is different in quality. It is unprecedented. Never have we been obliged to confront anything like this before, even in Northern Ireland. Never before have terrorists cared so little for their own lives or have they been prepared to make the sacrifices that these people are ready to contemplate. What are the safeguards? As I have said, they are of fundamental significance. The Home Secretary and the Government have listened carefully to the debates here and in another place. I believe that they have brokered a viable compromise. No one can rejoice in what is put before us as a solution. But, realistically, is there any other?
In his opening speech, my noble friend Lord West spelt out vividly the safeguards that the Government have proposed in this Bill. We are told by many in positions of authority that 28 days may be insufficient in some cases and, as we have heard, that the maximum period of 28 days has been reached in some instances. What is put before us is not only fair but justified. If the proponents of no change are justified, having to legislate in haste is not a prescription for accuracy or efficiency.
The need for a fair trial has been mentioned. It goes without saying that that is critical. Defence lawyers have to have faith in the sanctity of the legal process. But what evidence is being produced to argue that a fair trial is impossible? I do not believe that. On the alternative, how can people be so sure, so certain, that everything can be accomplished within 28 days when evidence has shown that we have already come close to violating that principle?
The Civil Contingencies Act, which has been mentioned, is quite wrong. It is said, rightly, that our liberties were hard fought for. No one can dissent from that proposition, but, today, regrettably, minorities threaten those freedoms. Accordingly we cannot be optimistic and hope that nothing too terrible will
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In conclusion, I will address the issue of our approach to the Muslim community. Ed Husain argued in the Evening Standard yesterday that we should have no truck with extremists. They do not speak the same language as moderate Muslims. They speak of destruction and ruination. They bring odium on all who seek a peaceful outcome to our problems worldwide. Husain is absolutely right to describe these elements as “fascist”, the equivalent of the BNP. Unlike the former Mayor of London, we should not appease them. In no way will that abate the hunger for human sacrifices made by others, rarely by themselves. These people, as Husain writes, are,
Their fanaticism, their terrorism and their calls for martyrdom inevitably result in the death of their fellow Muslims.
I have certain other proposals to make regarding the Bill but I think I have said enough.
9.16 pm
Lord Young of Norwood Green: My Lords, I congratulate the noble Baroness, Lady Manningham-Buller, on her maiden speech, which combined succinctness with analytical clarity—a winning combination. She applauded the decision to discuss this issue and encapsulated our dilemma, which is the right to life versus civil liberties. I trust she will forgive my paraphrasing her remarks. I hesitated to enter the List on this debate, given the array of legal talent that has been displayed today, but I felt that the metaphorical view of the man or woman on the Clapham omnibus would be relevant to the discussion, given that the majority of the public, according to the polls, support the Government’s view.
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