Clause 23
Counter-Terrorism Bill
9:00 am
Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)
As the Minister will be aware, there is across the Committee and, I suspect, across the House, a fairly universal view that extending the scope of post-charge questioning is desirable. There are, however, a number of points that need to be borne in mind. The Minister himself has acknowledged that post-charge questioning will not in itself be a panacea. Indeed, as terrorist suspects frequently say nothing at all in interview, there is no reason to suppose that they will say much more post-charge than they did pre-charge. From that point of view, it probably will not add very much. But one of the things that we have discussed is the fact that investigations continue post-charge. It is certainly fair both to a defendant and to the trial process if a defendant can have put to him any new information or evidence that may come forward post-charge.
That said, the way in which the Government have set about providing for these changes gives me, perhaps wrongly, the very slightest cause for concern. Post-charge questioning is potentially or theoretically open to abuse. A person may spend many months on remand in custody between charge and trial. If the police are being given a blanket right to remove the person from the prison where he is being detained and taken down to a police station to start interviewing him again, that could become oppressive. I am sure that that is the last thing that the Minister or anybody would want because it would then be used when the trial process starts to argue that there has been impropriety in the way the investigation has been carried out.
It seemed to us, and this is the thrust of the amendments, that there might be some merit in requiring a constable wishing to interview a defendant to make an application to the court to explain why further interviewing and questioning needs to take place. The nub of that is in amendment No. 125, which states:
“A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person...if the police officer reasonably believes that the person may be charged with a related terrorism offence...A judge may grant permission for further questioning...only if satisfied by evidence that: (a) there are reasonable grounds for believing that the original charge was appropriate to bring; and (b) it is in the interests of justice to allow further questioning in the circumstances.”
The judge can then lay down some parameters:
“(a) the maximum permitted period for further questioning;
(b) the total length of time over which further questioning is permitted; or
(c) any other directions as required in the interests of justice.”
One thing that is clear is that once a person has been charged, they are in practical terms in the hands of the court. They are first in the hands of the magistrates court, but because modern proceedings lead rapidly to committal to the Crown court, the time between charge and the first Crown court appearance is now relatively short. Once a person is in the Crown court, judges can give directions for further applications to be made. It could be argued—although against my amendment—that the High Court might not be the best place to go and that it might in fact be better to go to the Crown court judge dealing with the matter. That is an issue of detail, so I do not think that it undermines the broad thrust of the argument.
It would be better if there was a mechanism—if not this one, then some other—by which the court exercises a supervisory role over what is happening. The Government’s approach seems to be based on the notion that as long as we can put together some new PACE rules, which will undoubtedly be required, that in itself will be sufficient. Although we will certainly need PACE rules, I urge the Minister to consider carefully whether the extra safeguard of the ability to go in front of the judge would be desirable. During the Committee’s evidence sessions, Lord Goldsmith and others showed a willingness to consider the idea that at least a liberty to apply or some supervisory court role might be desirable. These are probing amendments, so I would be interested to hear the Minister’s view on that matter.
Another issue that arises in the amendments concerns the definitions under which the Government are seeking to allow post-charge questioning to take place. Clause 23 states:
“A constable may question a person about a terrorism offence where the person has been sent for trial for the offence if...the offence is a terrorism offence”.
We are talking about further interviewing for the same matter on which the person has been charged. The Government have said there is no requirement for legislation to sanction interviewing of defendants in circumstances where they were being interviewed for another offence and not for the offence under which the original charge was brought, and the Committee has received some correspondence on that. The Minister might be right about that, but I have heard many voices within the legal profession express doubt about that, if the questioning that is taking place on the further charge is based on facts that are identical to those relating to the original charge. I hope that the Minister might be able to address that issue when he deals with these amendments, because the last thing that we want is to end up with legal challenges because we have not covered that matter satisfactorily in the Bill.