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Amendment No. 49 would add two further conditions that a judge, as a result of the previous amendments, would need to be satisfied are met before they could authorise post-charge questioning. They would need to be satisfied that there were reasonable grounds for believing that the original charge was appropriate and that further questioning would not be oppressive. We do not consider that these amendments are necessary, as the rights of the suspect will be protected. If the questioning of a suspect after charge was deemed by a court during a subsequent trial to be oppressive, the court could refuse to admit any evidence obtained under provisions in Sections 76 and 78 of the Police and Criminal Evidence Act 1984. That is not in the interests of the prosecution.
Amendment No. 42 would mean that post-charge questioning would be possible only for a “serious terrorist offence”, which is defined in Clause 24(4). This would in effect mean that it would be possible to post-charge question an individual only for an offence where the maximum sentence was life; it would remove the ability to post-charge question about terrorism offences such as weapons training or terrorist finance offences. The Government do not believe that this should be the case.
Amendment No. 53 would remove Clause 34(7). The subsection means that Clause 34 does not prevent PACE codes of practice from making provision for other types of post-charge questioning. At present, PACE Code C makes provision for post-charge police interviews of defendants to clarify earlier statements where public safety is at risk or where new evidence comes to light and it is in the interests of justice. If this subsection were to be deleted, this would no longer be the case.
Amendment No. 68 would prevent post-charge questioning after the commencement of trial. The Government do not believe that the Bill should make express provision for this, as there may be situations when questioning after the commencement of a trial is unavoidable, such as to prevent the person from causing injury to others or, if a retrial were to occur—
The Earl of Onslow: How on earth is post-charge questioning to prevent a person from causing injuries to others when the chap is banged up in the dock with a policeman on either side?
Lord West of Spithead: As I understand it, information that he had could lead to someone being injured. However, I will have that clarified and get a note to explain it exactly.
In these cases, every effort would be made for discussions with the suspect, or his or her legal representatives, in order to minimise any disruption to the court process. Guidance on this is covered in the draft codes of practice, which make it absolutely clear that police and prosecutors should seek to avoid post-charge questioning that may limit or restrict the ability of the person, or his or her defence, to prepare adequately for court proceedings.
Amendment No. 68 would also require the presence of the defendant’s lawyer before questioning could take place. The Government accept that all those
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Amendment No. 68 would also confine the questioning to new evidence that had become available since the accused person was charged. The Government believe that it would not be appropriate or practical to confine post-charge questioning to new evidence that had become available following charge. To do so could make all post-charge questioning subject to challenge on the basis of whether the evidence was available at charge. We also consider that there may be circumstances in which it would be appropriate to question the suspect about evidence available pre-charge; for example, analysis of evidence collected after charge could cast a new light on evidence that was available pre-charge.
The amendment would limit post-charge questioning to a maximum of five days in total. The Government accept that the circumstances in which it would be necessary to post-charge question for a period of more than five days are limited. However, if the circumstances were to arise—for example, if there were to be an exceptionally complex plot—the Government believe that it should be possible to post-charge question for a period of more than five days. It should be noted that any questioning beyond a period of 24 hours would need to be authorised by a justice of the peace, on the basis that further questioning is necessary in the interest of justice and that the investigation is being conducted diligently and expeditiously. The amendment would also require all post-charge questioning to be video-recorded. The Government accept that this should be the case; indeed, Clause 37 of the Bill requires it.
Finally, we believe that judicial review of the transcripts of post-charge questioning is unnecessary, as the trial judge could refuse to allow prosecution evidence if they believed it to have been obtained by unfair questioning. This would include confessions obtained through the oppression of the suspect. It is also unclear what actions a judge reviewing a transcript would undertake should they find discrepancies.
We are satisfied that post-charge questioning complies with Article 6 of the European convention, in the same way that negative inference in pre-charge questioning has been held to be compatible.
4.30 pm
Baroness Hanham: I hope that I may unpick the justice of the peace issue. I declare an interest as a sitting magistrate. Will the relevant justice of the peace or district judge—formerly called a stipendiary—be legally qualified, or is it assumed that in a very unusual circumstance a lay magistrate would be asked to make this decision? It is an important definition and I would be grateful if the Minister could elaborate on what is proposed here, because to ask a single lay magistrate to make a decision, other than on a search warrant, is not a normal procedure.
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Lord West of Spithead: I shall come back to the noble Baroness on that, as I am afraid that I do not know the exact specification.
Lord Howarth of Newport: My noble friend gave us an assurance that post-charge questioning as proposed by the Government in the Bill would not run counter to Article 6 of the European Convention on Human Rights. Will he help the Committee by explaining rather more fully how the difficulties arising from post-charge questioning envisaged by Professor Cape, as regards damaging the balance of equity and the processes of justice, are met? What is his answer to the problems that Professor Cape described?
Lord West of Spithead: I am afraid that I cannot answer my noble friend’s question because I do not know the exact detail of what was said. However, I shall come back to that.
Lord Campbell of Alloway: I apologise; I stood up about five minutes ago but I did not wish to interrupt. I have a simple point. Let us leave aside for a moment judicial review—I understand the point made by the noble Lord. As regards Amendment No. 68, provided that it is made totally plain that the matter is within the total discretion of the judiciary, there is no problem. However, it is not good enough to say that on the Floor of the House; it has to be made clear in the Bill that the judiciary has total discretion in that matter.
Lord West of Spithead: I take the noble Lord’s point, but for the reasons that I have given I do not believe that these amendments should be pressed. As regards what damage could be caused, I say to the noble Earl, Lord Onslow, that the sort of thing about which we are thinking, which is picked up in PACE Code C, is if an arrested person has information about the location of a bomb. On that basis, I ask that the amendments not be pressed.
Lord Lloyd of Berwick: I do not think that it will surprise the Committee to hear that I found that answer profoundly unsatisfactory. Rather than detailing the respects in which I found it particularly unsatisfactory, however, I say only that I am not sure that the noble Lord appreciates quite how serious the proposed measures are. He has made no attempt to explain to the Committee how authorisation by the police to go on questioning up to the door of the court could possibly be reconciled with a fair trial and could possibly therefore be consistent with Article 6 of the convention. No doubt he will consider that point before the next stage, but I will certainly bring the matter back then.
The noble Lord, Lord Howarth, referred to the professor’s evidence, which I am afraid I have not seen. I shall certainly look at it. Of course, I am aware that there is a risk of tilting the balance too far against the defendant. I would be the last person to want to do that. Ensuring that post-charge questioning is controlled by the judge, as I believe it should be, is the best way of ensuring justice, both for the prosecution, when it wants to bring back other matters, and for the defendant.
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Many of the things in the amendment tabled by the noble Earl are already covered one way or another. I entirely agree with him that post-charge questioning must be judicially authorised in advance and that it is not judicially authorised in that sense if it is authorised only by a magistrate. I do not agree with him that it should be limited to a certain number of days; it is much better to leave that to the judge. I half agree with him about limiting the matters on which the defendant can be questioned to new evidence that has come to light, but I am sure that the judge will have that matter very much in mind, whether authorising that further line of questioning or not.
Lord Clinton-Davis: I am impressed by the argument that the noble and learned Lord has broached. In the mean time, before the next stage of the Bill, does he not think that it would be of advantage if this important issue, which is not a political issue, could be broached between him, Members of the Opposition and the Government?
Lord Lloyd of Berwick: I entirely agree with that observation, which is why I was slightly disappointed with the reply that we received from the noble Lord, which seemed to show no signs of wanting to discuss the matter either with me or with others who obviously regard this as a more serious matter than he does.
The Earl of Onslow: I was shocked to see the noble Lord reading from his text and saying that he could accept that there should be post-charge questioning during the trial. To my mind, that is horrendous. I say with the greatest respect to the noble Lord, who is certainly a light to this House, that I thought it depressing seeing him just reading a brief. He did not give the impression of having listened to a single word that anyone said on this important issue.
This issue is not a party-political one, as support comes from all parts of the Committee. It is a question of justice and fairness; it has been identified and it ought to be looked at. The noble Lord ought to say that people such as the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Dear, are not fourth-formers; they are people of intelligence, ability and gravitas and they ought to be listened to. The Government ought to take this away and say that what these people say has some sense in it.
Lord Lloyd of Berwick: With that encouragement, all I need to do is to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 50 not moved.]
Baroness Neville-Jones moved Amendment No. 51:
The noble Baroness said: This is a probing amendment to allow the Committee to assess the draft amendments to the PACE codes that will apply to post-charge questioning. I had hoped not to have to cover much of this ground, because I had hoped that the Minister’s answer on the framework for post-charge questioning
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I want briefly to focus on four issues that relate to the draft amendments to the codes for authorising post-charge questioning. First, do the PACE codes make, or need to make, provision for post-charge questioning on a further offence when that questioning is based on the same evidence, not new evidence? The codes are not clear on this point—an issue that remains active in the light of our previous discussion.
Secondly, are the provisions in paragraph 15.12 of PACE code H, which is concerned with the dates for attending court and court hearings, strong enough to ensure a fair trial? The code states that police and prosecutors should seek to avoid post-charge questioning taking place which may limit or restrict the ability for the person or his or her defence to prepare adequately for court proceedings. The code continues on the point that has just been referred to by my noble friend Lord Onslow, and states that there may be situations when this is unavoidable, and in those cases every effort should be made to discuss with the suspect or his or her legal representatives in order to minimise any disruption to the court process.
Can the Minister tell us why the practice of post-charge questioning should not cease before the trial? Can it really go on during the trial? The PACE codes clearly reflect that possibility, which is not right. There is a broader point, raised in Amendment No. 68 by my noble friend Lord Onslow on the potential oppressiveness of post-charge questioning.
Finally, what are the differences between the texts that the Government have laid in each House? One was placed in the Library of the other place on 3 June by the then Minister of State for policing, crime and security, and the other was placed in the Library of this House on 8 October. There are discrepancies which, given that we do not know where we might end up on post-charge questioning, remain live issues.
Why is it no longer the case that the authorisation of post-charge questioning by a superintendent must be made in conjunction with the prosecutor? Why, unlike the version of 3 June, do the draft amendments make no mention of how to treat any break in detention periods? This is a troubling issue which I have not raised previously. What is the definition of 24 hours? We will have to revert to that issue if we cannot reach agreement on judicial supervision. Finally, why, unlike the version of 3 June, do the draft amendments before this House make no mention of how detention periods relate to a person released on bail or on remand pending attendance at a court?
This is a probing amendment. Whatever the outcome of these issues, we need a single draft text from the Government on the relevant provisions of the PACE codes, instead of two texts that have discrepancies between them. This House should be satisfied as to
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4.45 pm
Baroness Miller of Chilthorne Domer: I support this probing amendment moved by the noble Baroness, Lady Neville-Jones. However, it seems that the Minister is in a difficult position here because at the same time he is dealing with the arrest and subsequent questioning of a suspect and with what I would have thought would be the Ministry of Justice’s brief on how justice should be applied. Perhaps that explained his difficulty in answering the questions about JPs and judges. If a Minister from the Ministry of Justice is not here to answer some of these questions, it seems that the Home Office will be in the position of being both prosecutor and judge.
Lord West of Spithead: I shall deal first with the point raised by the noble Baroness, Lady Neville-Jones. A number of the issues that she mentioned went back to amendments that we dealt with earlier. This amendment concerns the removal of subsection (6). I take her point about two versions of the codes having been placed in the Libraries. I have to say that I was not aware of the difference between the two, so perhaps I may come back to her on that. I assume that the later version is the current one but I will make absolutely certain of that.
As the noble Baroness said, a draft of amendments to PACE code H to provide for post-charge questioning has been laid in the Library, and I shall ascertain which is the correct version. As I said, I assume it is the later one but I hope that the Box will let me know shortly. It sets out significant safeguards for the rights of suspects subject to post-charge questioning, including the right to access to legal representation during questioning. Therefore, the Government think that it is important to maintain the subsection and we would ask the noble Baroness to withdraw her amendment.
The noble Baroness, Lady Miller, is correct to say that we should have someone here from the Ministry of Justice. I had hoped that my noble and learned friend Lady Scotland would be here, as that would have been quite useful. I think that she may be here a little later and that she has probably been held up somewhere.
I take this opportunity to say to the noble and learned Lord, Lord Lloyd, that in no way was I trying to ignore what he said. Certainly, I heard what he said and will think about it—clearly, the judge had a great weight of support. However, as was discussed, I think it was right that the amendment was withdrawn.
Baroness Neville-Jones: Clearly, the drafting of the PACE codes has to depend on the prior issue of the substance of the Bill. In the light of today’s discussion, in which it has been clear that Members of the Committee would like to see a different substance here, I am not sure whether we can usefully take the drafting of the PACE codes much further forward. Therefore, I think that we will need to revert to this issue on Report and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 and 53 not moved.]
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Lord Lloyd of Berwick moved Amendment No. 53A:
The noble and learned Lord said: This is, as I foreshadowed, a probing amendment, to which I do not expect a reasoned answer from the noble Lord this afternoon. It seems to me that it raises a very difficult point.
At present, when a person is questioned after charge, he must be given a fresh caution which does not include any reference to inferences which may be drawn from anything that he says or does not say. That is provided in code C, paragraph 16.4, with which I do not expect the noble Lord to be in any way familiar, but that is the law as it stands. The suspect does not have to be told that inferences may be drawn from what he says or does not say. That became the position following an amendment to the Criminal Justice and Public Order Act 1994 as a result of a decision of the European Court of Human Rights in a case called Murray in 1996. That is why we find code C, paragraph 16.4 in the form in which it is.
I am not at all clear what the Government are proposing in the clauses to which the amendment refers, nor am I clear whether it is consistent with the decision of the European Court of Human Rights in Murray. I do not expect an answer now but I would be grateful if the noble Lord would write to me before the next stage. I beg to move.
Lord West of Spithead: I have a part answer, but not the full one, so I shall come back to it. The Director of Public Prosecutions made it clear in his evidence to the Committee in another place that the ability to draw adverse inferences will be a key part of the effectiveness of post-charge questioning, and without it the suspect would simply refuse to answer questions with impunity. The subsections currently included in the Bill would mean that the position on drawing adverse inferences during post-charge questioning would be the same as for pre-charge questioning. The same right to silence will apply to post-charge questioning as it does in the case of questioning before charge.
With respect to Scotland, it will not be possible for adverse inferences to be drawn from the accused’s silence in post-charge questioning because this inference does not exist under Scots law which, as we know, is often different from ours. While it may limit the effectiveness of post-charge questioning in Scotland, we believe that there is still merit in being able to put evidence available following charge to suspects as their responses may clarify matters in relation not only to their case but that of others. I shall get back to the noble and learned Lord on the other points that he raised, but I hope that he will withdraw the amendment.
Lord Lloyd of Berwick: I am not sure that the noble Lord is right. In the case of pre-charge questioning, under the 1994 Act as I understand it, you can draw adverse inferences, and that caution must be given. In the case of post-charge questioning, you cannot. That is why the 1994 Act was amended. These are deep waters and I very much welcome enlightenment from the noble Lord in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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