Judgments -

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23.  Para 34 of Schedule 8 enables the officer who has made an application for a warrant of further detention or for an extension to apply to the judicial authority for an order that specified information on which he intends to rely be withheld from the person to whom the application relates and anyone representing him. Details of evidence that he wishes to obtain otherwise than by questioning that person or of evidence that he wishes to preserve, and of the reasons why the continued detention of the person to whom the application relates is necessary for that purpose, is information that will fall within the ambit of this paragraph. The grounds for withholding it that are listed in para 34(2) are exactly those that one would expect to find in that context. They include such risks to the public interest as interfering with or harming evidence, making more difficult the apprehension, prosecution or conviction of a person suspected of terrorism and making prevention of the prevention of an act of terrorism more difficult as a result of a person being alerted. The person to whom the application relates has the right under para 33(1)(a) to be given the opportunity to make oral or written representations to the judicial authority about the application. It follows that an application under para 34 should ordinarily be made before the hearing begins, so that the amount of the information that the detained person is to receive is settled before it starts.

24.  Mr O'Donoghue QC submitted that the list in para 34(2) included information the disclosure of which would make more difficult the prosecution and conviction of the person to whom the application related, such as questions that the police wished to put to him at interview. This information, he said, was included within para (d) of that subparagraph, which contemplates that if the information were disclosed to the detained person

“the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted.”

So if the police wanted to withhold from Mr Ward details of the topics that were to be put to him when he was interviewed they should have made an application to that effect under para 34. As this procedure could have been but was not followed, it was not open to Judge Gibson to withhold this information from Mr Ward and his solicitor by excluding them from the hearing while this issue was being discussed or to withhold it from them when they returned.

25.  In the opinion of the Committee para 34(2)(d) does not bear this construction, for three reasons. First, the application for a warrant of further detention assumes the person to whom the application relates is already in detention. As it has already taken place, his apprehension cannot be made more difficult by disclosing information that the police wish to be withheld. This excludes him from the opening part of para (d). For the purposes of that part the words “a person” must mean someone other than the person who is in detention. As there is nothing in its wording that indicates the contrary, those words must be taken to have the same meaning for the remainder of the subparagraph. Secondly, there is the contrast between the words “a person” in para 34(2)(d), “the detained person” in para 34(3) and para 34(4), which refers to “the person to whom the application …relates". This usage has been adopted assiduously throughout the Schedule. It suggests that, if para 34(2)(d) had been intended to include the detained person or the person to whom the application relates, it would have included words to make this clear. Thirdly, para 34(3) refers expressly to reasons for withholding the information that relate to the detained person and to the risk that, if the information were to be released to him, this would hinder the recovery of a benefit that he had obtained from an offence that he has committed. This shows that this is the place where one would have expected reference to be made to information the release of which might make his prosecution and conviction more difficult, if it had been the intention to include this among the grounds on which specified information could be withheld. As it is, no mention of it is made in this subparagraph. Accordingly none of the grounds listed in para 34 were relevant to the question whether information about the topics on which Mr Ward was still to be interviewed should be withheld from him and his solicitor.

26.  Para 33(3) of Schedule 8 confers a discretion on the judicial authority to exclude the person to whom the application relates and anyone representing him from the hearing which is unqualified. Reference is made in an earlier part of the Schedule to particular circumstances when exclusion may be desirable. Para 28(3) provides that a review officer may make his record as to whether or not to authorise further detention in the absence of the detained person if he is incapable of understanding what is said to him, is violent or likely to become violent or is in urgent need of medical attention. No such list appears in para 33(3). The power that it gives is not limited to the situations of that kind. On the face of its wording, given the absence of a reference to this situation in para 34, Judge Gibson’s decision to exclude Mr Ward and his solicitor so that information about the topics on which he was still to be interviewed could be withheld from him was within the powers given to him by this subparagraph. The question is whether this provision should be read more narrowly so as to preclude the use of the power to prevent this happening.

27.  The answer to this question is that the procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.

28.  As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. As Hart J said in his ex tempore judgment, that person’s safeguard is the judge, whose function it is rigorously and comprehensively to examine the basis on which the application is being made.

29.  There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. In the present case the decision that Judge Gibson made is not open to that criticism. A less careful and diligent judge might have taken what the police said at face value. He might have accepted their refusal to disclose the topics that were outstanding in advance of the interview. The fact that Judge Gibson did not do so was due to his wish to be absolutely certain that these were new topics. This was an inquiry which he was carrying out for the benefit of Mr Ward. So Mr Ward’s interests were best served by excluding him and his solicitor from that part of the hearing so that the judge could deal with the point that he wanted to investigate on his behalf. It was submitted that Judge Gibson should have told them what he had heard when they returned. But it is obvious that to do this would have undermined his decision entirely. The power to exclude, if properly exercised, carries with it the power not to disclose what took place during the period of the exclusion.

Conclusion

30.  The Committee declines to answer the certified questions as the propositions which they contain are expressed too broadly. The power in para 33(3) is available where the judicial authority wishes to be satisfied that further detention is necessary to obtain relevant evidence by questioning the person to whom the application relates. It enables the judicial authority, in the detained person’s absence, to examine the topics are that are to be the subject of that exercise. But it must be read subject to para 34. So where the power to order that specified information be withheld from that person under that paragraph is available, an order to withhold it must be sought under that paragraph. As this is not that case, the appeal must be dismissed.

 
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Prepared 21 November 2007