Clause 34 — Post-charge questioning: England and Wales

Orders of the Day – in the House of Commons at 6:15 pm on 19th November 2008.

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Lords amendment: No. 16.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I beg to move amendment (a) to the Lords amendment.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss amendment (b) to the Lords amendment, Lords amendment No. 17 and Government amendments (a) and (b) thereto, Lords amendments Nos. 18 and 19, Lords amendment No. 20 and amendments (a) and (b) thereto, and Lords amendments Nos. 21 to 24.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The amendment deals with post-charge questioning, which has been one of the themes of many arguments advanced by Conservative Members about how terrorist outrages can be fought effectively. We have suggested—indeed, this constituted a significant part of the debate on whether people should be detained for 28 or 42 days—that other methods are available that could prove more effective, including post-charge questioning. The Government now agree that post-charge questioning should be authorised, and we are delighted that they listened to our arguments. They also agree with us that the questioning should be supervised by a Crown court judge, which we also welcome.

Our problem lies in the fact that the concession is limited in an important respect. Under the Lords amendment, a Crown court judge will not be able to impose conditions relating to the matters in respect of which the questioning is authorised. We think that that is a significant gap in the armoury. As I have said, we have argued for a long time that post-charge questioning would be useful, but we also believe that the process must have integrity, and must be accepted unquestioningly as fair by all who may find themselves being investigated. Obviously, that applies particularly to people who are entirely innocent.

We have all observed from the various actions of the police in recent years that mistakes are sometimes made, and the wrong people are sometimes identified. If it is felt that the system behind those mistakes is unfair, that may, at the margin, aid terrorists by providing them with a more sympathetic audience. We are determined to ensure that that does not happen, and we believe that judges who have authorised post-charge questioning need to be able to exercise proper judicial supervision. We fail to see how that they can do that if they have no authority in relation to the scope of the questioning.

Lady Butler-Sloss, a distinguished judge, said in another place that

"where the police wish to continue to question after arrest and charge" they will go to the judge and the judge will say "Yes." Under the Lords amendment, she said, the police

"are perfectly free to go back to ask any question they choose on any matter about which the judge" will not have been consulted. That, she said,

"drives a horse and cart through the whole idea of having protection for a defendant in a post-questioning period."—[ Hansard, House of Lords, 4 November 2008; Vol. 705, c. 175.]

I agree with that.

The amendment tabled in another place was a cross-Bench amendment. I think that it would be extremely useful if the Government accepted our amendment now, because they will know how close the vote was there. I cannot accept an argument that they may advance, namely that the world would be a safer place if this protection were taken away. Clearly any judges involved would be alive to the sort of questions that the police might ask, and I suspect that they would be sympathetic to any legitimate requests from the police.

This is a small but significant amendment. If we are to adopt post-charge questioning it must be seen as an acceptable form of law enforcement and police investigation, and I appeal to the Minister to accept our proposal.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I shall be brief, as we are pleased that progress has been made on this matter, and that the Government accept the case for post-charge questioning. Like the hon. Gentleman, we want this to be accepted as a part of English law that people can feel is making a genuine contribution and has the necessary checks and balances. That is why we would like this Cross-Bench amendment from the Lords to be incorporated into the Bill; it will allow the judge to identify the scope, and it will provide certain essential safeguards that will build this more fundamentally into English law in the long run. We will support the amendment, and I hope that, in light of what he has heard, the Minister will be able to do so as well.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

First, let me thank the hon. Members for Ashford (Damian Green) and for Eastleigh (Chris Huhne) for their appreciation of the changes we have made and the amendments we have accepted, and I would like to go through the group as a whole. I should inform the House that we agree with the Lords in respect of amendments Nos. 16 to 24, but we disagree with the amendments offered in lieu. I am sorry to disappoint the hon. Gentlemen on that, but I will explain our reasons.

Amendments Nos. 16 to 20 remove the ability of a police superintendent to authorise post-charge questioning about the offence charged. Rather than authorisation by the police, all questioning will need to be authorised by a Crown court judge in England and Wales, a sheriff in Scotland and a district judge in Northern Ireland.

The amendments limit the period for which post-charge questioning can be allowed to a maximum of 48 hours before further authorisation must be sought. This 48-hour period would run continuously from the commencement of questioning and would include time for meal breaks, sleep, and consultation with legal advisers. Questioning would be authorised only if the judge deemed that it would not interfere unduly with the preparation of the defendant's defence to the charge or any other criminal charge that he may be facing; in effect, this would prevent questioning close to, or during, a defendant's trial.

The amendments allow the judge to authorise questioning for an offence not specified in terrorism legislation if it appears that the offence the person has been charged with has a connection to terrorism. For example, a judge could authorise post-charge questioning for the offence of murder if it appeared that it was connected to terrorism. The amendments also allow the judge authorising questioning to impose such conditions on the questioning—the location or length of the questioning, for example—as he or she deems necessary in the interests of justice. They do not, however, specify that the judge could determine the scope of questioning, unlike the Opposition's amendments.

We had considered including in the Bill a provision that allowed the judge to impose conditions on the matters in respect of which questioning was authorised. However, we received representations and, following further consultation with the Crown Prosecution Service, the police and the Crown Office and Procurator Fiscal Service in Scotland, we do not believe that it would be appropriate to specify that a judge could determine the scope of police questions. We believe that to do so would, in effect, lead to the judge drawing up acceptable questions that could be put to the suspect from which the police would not be able to deviate. This has obvious practical problems. For example, what happens if the suspect mentions an alibi during questioning on which the police do not have authorisation to question? Do we really want the police to have to stop the interview and apply for further authorisation from a judge simply to ask further questions about that alibi?

We must remember that the judge may exclude any evidence unfairly obtained by means of making a ruling under section 78 of the Police and Criminal Evidence Act 1984. In addition, there are safeguards that apply to the suspect during questioning; for example, they have the right to legal representation.

The roles of the police and the judiciary are clear and well understood in our criminal law. Allowing interference in the scope of an investigation by limiting the questions that can be asked would be a blurring and complication of those well defined roles.

Amendment Nos. 22 to 24 remove the order-making power that allowed the Secretary of State to disapply the compulsory requirement for all post-charge questioning to be video recorded with sound. Under these provisions, all post-charge questioning will be video recorded with sound in all parts of the UK. With those brief remarks, I ask the House not to accept amendment (a).

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs) 6:30 pm, 19th November 2008

I rise briefly to say that the Minister set up an Aunt Sally in his opposition to the amendment. I was not convinced by the idea that questioning would be materially disadvantaged if the judge had to define

"the matters in respect of which the questioning is authorised", which is the wording of amendment (b). I therefore commend amendment (a) to the House.

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Question put, That the amendment be made:—

The House divided: Ayes 208, Noes 284.

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Division number 332 Orders of the Day — Clause 34 — Post-charge questioning: England and Wales

Aye: 208 MPs

No: 284 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

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Question accordingly disagreed to.

Lords amendment No. 16 agreed to.

Lords amendments Nos. 17 to 33 agreed to

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