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Video links are often used for the suspect’s appearance as both the security risks and resource implications justify such an approach; in any event, video link is routinely used in other judicial hearings. The judge may order the suspect to be present in person if there is reason. He or she does not always do that: it is often to do with security or movement of people. Such hearings without special advocates comply with human rights, but should in a particular case the judge consider that fairness requires a special advocate to be appointed, he or she could do so.

In relation to the point that the existing grounds for issuing a warrant for the further detention of a suspect beyond 14 days should be amended to include a requirement that there are reasonable grounds for believing that the person has been involved in the commission, preparation or instigation of a terrorist offence, it is implicit in any successful application for a warrant that the initial arrest was lawful and that there are reasonable grounds for suspecting the person has committed a terrorist offence.

The test for a lawful arrest under Section 41 of the Terrorism Act 2000 is that the constable reasonably suspects that the individual is a terrorist as defined in Section 40 of that Act. This reasonable suspicion is an implicit prerequisite for the test which is currently required to extend pre-charge detention. If a court is to be satisfied that there are reasonable grounds for believing that further detention is necessary for the purposes of obtaining relevant evidence, there must inevitably be a reasonable suspicion that the person committed the offence. The minimum standard that the prosecution or police must demonstrate is that there are reasonable grounds on which to suspect that person. Conversely, without reasonable grounds to suspect that person, the prosecution or police could not even commence an application for further detention on grounds of securing relevant evidence.

Therefore, it would not be possible for a court to authorise detention of a person under Schedule 8—or indeed under PACE, which also does not expressly require the court to consider the issue of reasonable

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suspicion—for any period without the reasonable suspicion required by Article 5.1(c). The extension of the maximum period to 42 days—if we were going that way—does not change this position as the test for continued detention remains the same.

Finally, I point out that, in relation to legal aid, the arrested person is entitled to be legally represented at the application—and the person certainly was when I was there—and is entitled to legal aid for representation by a solicitor in the case of hearings relating to detention up to and including 14 days, or counsel in the case of hearings relating to detention for more than 14 days. I therefore resist that amendment.

The purpose of Amendment No. 35 is threefold: to replace the independent reviewer of terrorism legislation with a panel of reviewers; to provide that the Motion approving the order for annual renewal of the 28-day limit cannot be made until a minimum of one month after the annual report on the operation of the Terrorism Act 2000, and Part 1 of the Terrorism Act 2006, has been published; and to provide that the Secretary of State cannot appoint the independent reviewer unless he or she lays a report on the appointment process before Parliament and it is agreed by affirmative procedure.

In our response to the JCHR on 6 June, we made it clear that we do not consider it necessary to replace the independent reviewer with a panel of reviewers and that the noble Lord, Lord Carlile, has done, and continues to do, an excellent job. We do not accept that his post is too heavily loaded for one person. The appointment of the noble Lord, Lord Carlile, was renewed for a further three years in October 2007. We do not believe that it is necessary for Parliament to agree a report on the appointment process, as this is unnecessarily bureaucratic. Having a statutory requirement to publish the annual reports a month in advance of the renewal debates would be difficult. Where possible, we ensure that the report made by the independent reviewer is available in advance of the annual renewal debates, but this cannot be guaranteed. I therefore resist this amendment

I am unable to accept Amendment No. 36. It seeks to put the threshold test used by the Crown Prosecution Service on a statutory footing, but only for cases with a terrorist connection. It would also require that defendants be informed which test had been used; the courts to set timetables regarding evidence; and annual reports by Her Majesty’s Crown Prosecution Service Inspectorate on the operation of the threshold test for cases with a terrorist connection.

In rejecting this amendment, I have taken into account the fact that there is already a statutory requirement for the Director of Public Prosecutions to issue formal published guidance on charging under the Prosecution of Offences Act 1985 and the Criminal Justice Act 2003. This statutory framework emphasises the independence of the Crown Prosecution Service and recognises the need for regular revision by the Director of Public Prosecutions to take into account changes to the law or circumstances. Both those factors make the charging test unsuitable for primary legislation. It would be particularly inappropriate to enshrine only one of the charging standards in statute and only

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in relation to terrorism offences, when the threshold test is available for other offences.

The current version of the code for Crown prosecutors was issued in 2004 and is the fifth edition. The code is laid before Parliament whenever it is revised, but the contents of the code are not statutory, although it is binding on prosecutors. The code was the subject of public consultation when it was last revised in 2004 and sets out two tests—the full code test and the threshold test. Both these tests have two stages—the evidential stage and the public interest stage. Interestingly, the amendments laid here do not mention the public interest test. Only if the evidential stage is met does the prosecutor go on to consider whether it is in the public interest to prosecute the case.

Under the full code test, a suspect can be charged where there is a realistic prospect of conviction and it is in the public interest to charge that suspect. By contrast, the threshold test requires Crown prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence and, if there is, whether it is in the public interest to charge. In deciding whether there is a reasonable suspicion, prosecutors must also make a clear evidential decision. They are directed under the code to consider the evidence already available and the reasonableness for believing that further relevant evidence will become available within a reasonable period sufficient to meet the full code test.

Under the code, the threshold test is applied only to those cases in which it is not appropriate to release a suspect on bail after charge but the evidence to apply the full code test is not yet available. Obviously such circumstances may apply not just in terrorism cases but in other serious criminal cases as well.

The threshold test is applied only for a limited period. The charging decision is kept under review by the prosecutor and the full code test must be met as soon as reasonably practicable. In addition, I should point out that Her Majesty’s Crown Prosecution Service Inspectorate already carries out thematic inspections of charging across criminal case work, and that includes the threshold test. A statutory requirement to inform the defendant which evidential test has been applied would not add value or safeguard the rights of the defendant.

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The criminal process already enables the defence to be informed of the evidential basis of the Crown’s case at the first court hearing. In most cases, the first hearing will take place within 24 hours of the charging decision. At that stage, there will be clear consideration of the evidence in relation to the bail application. The Bail Act 1976 specifically requires the strength of evidence justifying retention in custody to be considered. The legal process already allows the court to set time limits for the service of further material. It also permits applications to the court to be made for the case to be dismissed due to lack of evidence at an early stage in proceedings.

The Bail Act and the custody time limit regime further ensure that courts must consider the strength of the evidence against the defendant and the conduct

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of the prosecution when making a decision on whether the defendant should be bailed or remanded in custody. Advising the defence at the point of charge what test they have been charged under would not assist the defence or add any extra safeguards to the extensive ones that already exist. On the basis of what I have said I ask noble Lords to withdraw the amendment.

On Amendment No. 71, we have considered the option of allowing terrorist suspects to be released on bail and have consulted the police. They did not recommend making police bail available for terrorist suspects because of the risks to public safety that might be involved. There is also a risk, which we are unwilling to take—

The Earl of Onslow: The Minister says that there is a risk to public safety involved in giving bail to terrorist suspects. However, some terrorist charges are quite minor, and when we visited the police, they seemed to have no objection in relation to those. Surely there would be an objection to bail if there was any suspicion of danger to the public, and it would be completely reasonable for bail to be refused. But if there is no suspicion of danger to the public—the person may have turned Queen's evidence or been co-operating considerably with the police—I would have thought that bail would be perfectly reasonable.

Lord West of Spithead: All I can say to the noble Earl is that the police considered that making bail available to terrorist subjects would risk public safety. They were also concerned that there was a risk, which we were unwilling to take, that evidence could be tampered with or, worse still, destroyed.

Lord Lester of Herne Hill: The Minister has rightly stressed again today the independence of the judiciary, the value of the judicial process and the way in which one can trust judges to make wise judgments in the public interest. I enthusiastically agree with all of that. However, given that that is the Government's position, I do not understand why one should not at least empower the judiciary in exceptional cases to be able to grant bail. The Joint Committee recommended a provision,

Why can we not trust the judiciary with such a power to be able to protect the rights of liberty in those rare and exceptional cases referred to by the Joint Committee?

Lord West of Spithead: I have some sympathy with the noble Lord’s point. The necessary requirement test in paragraph 32 of Schedule 8 ensures that each case is assessed on its merits. If the test is not met, the court has the power to release the suspect rather than grant continued detention. I shall take this away and look at it, because there might be some room for flexibility. I would rather do that because, as I say, I respect the sense of our judiciary in some of these cases. However, in most terrorist cases, I would be very concerned about suspects being released on bail.

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The Earl of Onslow: Those of us on the JCHR are just as concerned. Nobody is saying that anybody whom anybody thinks is a risk to public safety should be released on bail. We are saying that if there is a risk it can be put in front of the judge, who will not give bail.

Lord West of Spithead: Then I think that we are probably on the same wavelength. I will take the amendment away and look at it, because I think that one can generally rely on the common sense of the judiciary in these areas. In the mean time, I ask that the amendment be withdrawn.

The noble and learned Lord, Lord Lloyd, mentioned the independent commissioner, and he is absolutely right. I thought that that seemed like a very good idea indeed, though I admit that I have not had the full answer from all of my officials on it yet. I know that they have said that they do not think that it is necessary; that the noble Lord, Lord Carlile, reviews it; and that independent visitors can visit—all of which are good points. However, I would like to pursue this a little further as well. There may be administrative or other reasons why it is impossible, but I would like to be certain that that is the case. I hope that I have answered the other questions. If so, I would be grateful if the amendment were withdrawn.

Lord Thomas of Gresford: I have listened to the Minister’s reply on Amendment No. 35 with some interest. I make it clear that, as my noble friend Lord Carlile mentioned in the earlier debate, he and I have been close friends and colleagues for 37 years. I do not for a moment doubt his integrity or—although I may disagree with him—the reasons why he puts forward the views that he has expressed today. However, I wonder whether it is appropriate that the independent reviewer should have an office within the Home Office itself and be serviced by Home Office officials, which is the current position. This does not just apply to my noble friend Lord Carlile but to anybody who may hold that office in the future. If we are to have an independent reviewer, he should be seen to be independent, have his own office and staff, and, when he comes to give his view to both your Lordships and to Parliament as a whole, we should know that it comes from somebody who is in no way influenced by the views circulating in the Home Office at any particular moment. It may not be my noble friend, but his successor.

On Amendment No. 36, there is a great deal of sense in having a statutory basis for the threshold charging. As I pointed out in my speech earlier today, the guidance issued by the Director of Public Prosecutions to his prosecutors was not published and did not come to light until February of this year. For a period of two to three years, the public were unaware of the nature of the threshold charging going on in terrorism cases. That involved not only a reasonable suspicion that a person had committed a terrorist offence but that there was a likelihood that more evidence would come to light. Further, that decision could be based on inadmissible evidence—intelligence or intercept evidence. It seems to me that we ought not to encourage the Director of Public Prosecutions to give guidance to public prosecutors that is not absolutely transparent

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and known to everybody concerned in this field. I respectfully suggest that the Minister takes that on board and returns to these issues at Report.

Lord Lester of Herne Hill: I hope I may make a couple of points that are pleasant for the Minister to hear. First, I pay tribute to the appointment of the new Director of Public Prosecutions, Keir Starmer QC, who is one of the most outstanding human rights lawyers at the English Bar. The fact that he succeeds Ken Macdonald, a most impressive holder of that office, is a most important safeguard. I always believe that people are more important than rules or legal structures and the fact that Keir Starmer QC will hold that office constitutes a confidence-building measure.

Secondly, I thank the Minister for his very full reply. I am sure that the Joint Committee on Human Rights will need to look with great care at everything that he has said this evening when deciding what response is called for. Thirdly, I personally am sympathetic to the use of the special advocate procedure, and indeed I have said so consistently. People forget that it originated in a case in Strasbourg and was a Canadian procedure recommended by Amnesty International which came to be used in the Special Immigration Appeals Commission. I well understand why that is a desirable compromise between full adversarial justice and inquisitorial justice. However, it is vital to think very carefully about any further safeguards against abuse that one can build into the system, always accepting that nothing should be done to enable a suspected terrorist to gain access to information which might then be leaked or used by terrorist organisations. Speaking for myself, I very much welcome the spirit in

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which the Minister has spoken. As I say, I am sure that we shall want to look with great care at what he said.

Baroness Stern: I thank everyone who has spoken to these amendments. I very much appreciate the well informed support that they have received. I also thank the Minister for his extremely helpful and thoughtful replies. It was good to hear that closed hearings are getting rarer, as we did not know that. It was encouraging to hear that the Minister sat through a hearing at Paddington Green and saw for himself what happened. That builds our confidence in discussing these matters with him as he knows exactly what issues are involved.

Matters have emerged in the debate that are worthy of further thought. We are all grateful to the Minister for agreeing to take away the point about bail. Some of the police with whom members of the Joint Committee spoke thought that it was a very sensible idea. I hope that some of the other points we raised about the clear and evident independence of the reviewer will be strengthened. However, as I said, these are probing amendments. We may wish to return to some of these matters on Report, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 and 36 not moved.]

Lord Brett: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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