APPENDIX 3: CORRESPONDENCE WITH THE
DIRECTOR OF PUBLIC PROSECUTIONS FOR ENGLAND AND WALES AND THE
DIRECTOR OF PUBLIC PROSECUTIONS FOR NORTHERN IRELAND
Letter from the Chairman to Kier Starmer QC, Director
of Public Prosecutions for England and Wales, 11 February 2009
The Constitution Committee, which I chair, is conducting
an inquiry into bills that are 'fast-tracked' through the legislative
process. As part of the inquiry, the Committee is looking in detail
at some particular bills. The Committee would be grateful for
the assistance of your office in relation to the use of a power
contained in the Criminal Justice (Terrorism and Conspiracy) Act
1998 (which, you will recall, was passed when Parliament was recalled
after the Omagh bomb).
Section 1 of the 1998 Act inserted a new section
2A into the Prevention of Terrorism (Temporary Provisions) Act
1989 under which a police officer may give admissible oral evidence
as to his opinion that an accused person belongs or belonged to
a 'specified organisation'.
The Committee would be interested to have an assessment
of how this particular provision has operated in practice, including
(if possible) an indication of how many times it has been relied
on in courts in Great Britain.
I am writing in similar terms to the Director of
Public Prosecutions for Northern Ireland about the comparable
provision inserted by the 1998 Act into the Northern Ireland (Emergency
Provisions) Act 1996.
The Committee may in due course choose to publish
your response as part of their report.
Response from Kier Starmer, 20 February 2009
Thank you for your letter of 11 February 2009. I
have now received a report from Susan Hemming, the Head of my
Counter Terrorism Division.
As far as we can ascertain, this piece of legislation
has not been used in the prosecution of any offence in England
and Wales. We can say that is has not been used in any prosecution
since September 2002 and are unable to find any evidence of its
use prior to that.
Letter from the Chairman to Sir Alasdair Fraser QC,
Director of Public Prosecutions for Northern Ireland, 11 February
2009
The Constitution Committee, which I chair, is conducting
an inquiry into bills that are 'fast-tracked' through the legislative
process. As part of the inquiry, the Committee is looking in detail
at some particular bills. The Committee would be grateful for
the assistance of your office in relation to the use of a power
contained in the Criminal Justice (Terrorism and Conspiracy) Act
1998 (which, you will recall, was passed when Parliament was recalled
after the Omagh bomb).
Section 1 of the 1998 Act inserted a new section
30A into the Northern Ireland (Emergency Provisions) Act 1996,
under which a police officer may give admissible oral evidence
as to his opinion that an accused person belongs or belonged to
a 'specified organisation'.
The Committee would be interested to have an assessment
of how this particular provision has operated in practice, including
(if possible) an indication of how many times it has been relied
on in courts in Northern Ireland.
I am writing in similar terms to Kier Starmer QC
about the comparable provision inserted by the 1998 Act in relation
to Great Britain.
The Committee may in due course choose to publish
your response as part of their report.
Response from Sir Alasdair Fraser QC, 18 March 2009
1. Section 30A of the Northern Ireland (Emergency
Provisions) Act 1996 provides that the statement of a police officer
of at least the rank of Superintendent given in oral evidence
of his opinion that an accused person belongs to an organisation
which is specified or belonged to an organisation at a time when
it was specified shall be admissible as evidence of the matter
stated. The Section also provides that an accused person should
not be committed for trial or found to have a case to answer or
be convicted solely on the basis of that statement.
2. Section 1 of the Criminal Justice (Terrorism
and Conspiracy) Act 1998 inserted Section 30A into the Northern
Ireland (Emergency Provisions) Act 1996. A similar provision was
inserted as Section 2A into the Prevention of Terrorism (Temporary
Provisions) Act 1989.
3. The Terrorism Act 2000 replaced the Northern
Ireland (Emergency Provisions) Act 1996. However, a similar statutory
provision was included by way of Section 108 of that Act.
4. By virtue of Section 1(2)(b) of the Terrorism
(Northern Ireland) Act 2006, Section 108 of the Terrorism Act
2000 ceased to have effect as from 31st July 2007.
5. The provision that evidence of opinion of
a police officer is admissible to prove membership is contrary
to the general rule of common law that the opinions, beliefs and
inferences of a witness are inadmissible to prove the truth of
the matters believed or inferred if such matters are in issue
or relevant to facts in issue in the case, subject to three important
exceptions:
(a) general reputation to prove the good or bad
character of a person; pedigree or the existence of a marriage;
and certain matters of public concern
(b) expert opinion to prove matters of specialised
knowledge
(c) non expert evidence on matters within the
competence and experience of lay persons generally.
6. No case has been identified in which consideration
was given to reliance upon Section 30A of the Northern Ireland
(Emergency Provisions) Act 1996 or Section 2A of the Prevention
of Terrorism (Temporary Provisions) Act 1989.
7. Consideration has been given to reliance upon
Section 108 of the Terrorism Act 2000 in a number of cases in
Northern Ireland. The information available to police in forming
an opinion can derive from a range of sources including the circumstances
giving rise to the arrest of an accused, the possession of items
associated with paramilitary organisations and intelligence. It
is unlikely that a court would attach significant weight to the
opinion of a senior officer based on the circumstances of the
accused's arrest beyond what the court could infer from the same
evidence. Similarly, the possession of items is often equally
consistent with support for, as distinct from membership of, the
organisation in question.
8. Particular issues arise from the use of intelligence
to support the opinion of a senior police officer. In seeking
to rely upon intelligence information as a basis for the opinion
that a person belongs to a specified organisation police must
take account of the need not to compromise the safety of the informant
and the need not to undermine the continued use of CHIS as an
effective investigative tool. In deciding whether it is in the
public interest to rely upon such information police and the Public
Prosecution Service must have regard to the right to life of the
informant enshrined under Article 2 of the European Convention
on Human Rights as well as the accused's right to a fair trial.
Whereas the existence of such information would normally be protected,
it is likely that a certain amount of material will require disclosure
in order to ensure a fair trial and to permit the court to assess
the appropriate weight to be given to the evidence of opinion.
9. The protection of intelligence material was
considered in Northern Ireland in a bail application made by Dennis
Donaldson. In a written judgment delivered in 2002 Mr Justice
Shiel ruled that the prosecution may rely upon intelligence when
opposing bail only where the defence are in a position to challenge
it through the disclosure of sufficient information. In this case
bail had previously been refused by a different judge who had
heard evidence from a senior officer who had referred to an intelligence
document shown to the court but not to defence or prosecution
counsel. Mr Justice Shiel found that reliance upon the evidence
of the senior officer, insofar as he relied on the contents of
the document disclosure of which was denied to the defence, was
not compatible with the applicant's rights under Article 5.4 of
the European Convention on Human Rights. He did not consider that
the fact that the previous judge had read the contents of the
document, valuable though that safeguard was, was sufficient to
satisfy the requirements of Article 5.4 in the present case. Having
regard to the decisions of the European Court of Human Rights
in Garcia Alba v Germany and Lanz v Austria Mr Justice
Shiel ruled that if the Crown intends to rely on intelligence
material in a bail application and the defence seeks disclosure
thereof, that material must be disclosed. The material could however
be edited so as not to disclose directly or indirectly the identity
of informants or other sensitive material upon which no reliance
was being placed by the Crown in the bail application. In the
event of a dispute as to disclosure, or the extent thereof, the
judge would play an important role in ensuring equality of arms
and fairness as between the parties.
10. The court must be satisfied that the intelligence
upon which an opinion is based is reliable. In order to satisfy
a court as to reliability it may be necessary to disclose details
about the source of the information, including, for example, whether
other information provided by the same source has in the past
proved reliable in the sense that police have acted upon it and
have recovered weapons or explosives or been able to take steps
to frustrate a terrorist attack. The greater the degree of detail
disclosed, the greater the risk that the source may be identified
and his or her security compromised.
11. Having regard to the difficulties outlined
above there have not been any cases in which police have been
prepared to disclose intelligence in support of the opinion of
a senior officer. The Director in considering where the public
interest lies has agreed with police recommendations. Hence there
is no judicial authority touching upon the weight to be attached
to such evidence.
12. It should be noted that a different approach
to that articulated in Donaldson has been taken by the
Supreme Court in the Republic of Ireland when dealing with an
appeal arising from a conviction for an offence of membership
of a proscribed organisation based, in part, on the belief of
a senior police officer which was admitted in evidence pursuant
to a similar provision. In the case of DPP v Kelly (2006)
IESC20 the Supreme Court found that there had been no unfairness
in the trial of the appellant who had been prevented from cross
examining the senior officer as to the grounds for his belief
on the basis that such information was privileged.
13. In his judgment Mr Justice Geoghegan considered
the argument of the Director of Public Prosecutions that while
the legislation permitted evidence of belief it did not permit
evidence about the basis for the belief and that a contrary interpretation
would appear to defeat the purpose of the section partly on the
basis that it might defeat informer privilege and partly on the
basis that in practice it might involve the admission of hearsay
evidence. The judge preferred the alternative construction that
the section authorised the giving of evidence about the basis
for the officer's belief but not to the extent that it interfered
with or defeated a legitimate plea of privilege.
14. Mr Justice Fennelly found that the claim
of privilege made by the senior officer constituted an undoubted
infringement of the normal right of the accused to have access
to the material which underlay the belief expressed. To that extent,
it had constituted a restriction on the effectiveness of the right
of the appellant to cross examine his true accusers and it had,
for that reason, the potential for unfairness. The judge nevertheless
found a number of compelling circumstances to justify the course
of action which had been adopted. Firstly, the exceptional resort
to the evidence of the senior officer applied only in the case
of organisations which in their nature represented a threat not
only to the institutions of the State but to individuals who were
prepared quite properly to co-operate with the State in securing
the conviction of members of such organisations. Secondly the
legislation was confined to evidence to be given by members of
the Garda Siochana of particularly high rank. Thirdly the procedure
applied only where there was in force a declaration that the ordinary
courts were inadequate to secure the effective administration
of justice; that is to say cases involving such evidence would
be heard only by the Special Criminal Court. The judge found that
these circumstances constituted sufficient justification for the
restriction on the right to cross examine while at the same time
demonstrating a concern to respect such necessary limitations.
In the particular circumstances of the trial the judge found that
there was no overall unfairness. He observed however that the
matter might be quite different in a case where the evidence of
the police officer was the sole plank in the prosecution case.
15. The provision in Section 108 of the Terrorism
Act 2000 has been the subject of comment by Lord Carlile of Berriew
QC in his series of reports on the operation of the Terrorism
Act 2000. In his report on the operation of the Act in 2001 he
commented that his present opinion and recommendation was that
the provision remained proportionate and necessary. In his report
on the operation of the Act in 2002 he noted that he had received
no further representations opposed to the retention of the present
law and concluded and recommended as before. In his report on
the operation of the Act in 2003 he noted that Section 108 had
not been used so far as he was aware. He commented that he found
it difficult to envisage a situation in which a court would find
itself able to attach significant weight to evidence given under
Section 108. In this context weight, not admissibility, was the
true issue. He concluded that in his view Section 108 could be
repealed without any measurable disadvantage to the cause of public
protection from terrorism. He noted that it was a provision that
lay uncomfortably in the broader context of normalisation and
the Good Friday Agreement and recommended that very serious consideration
be given to its repeal. In his report on the operation of the
Act in 2005 Lord Carlile observed that Section 108 had not been
used and repeated his observation that he found it difficult to
impossible to envisage a situation in which a court would find
itself able to attach significant weight to evidence given under
Section 108 and that in this context weight, not admissibility
was the true issue. Similar observations appear in Lord Carlile's
report on the operation of the Act in 2007.
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