My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
We are moving to the part of the Bill dealing with post-charge questioning, which allows a person to be questioned about an offence after he or she has been charged. The purpose of this set of amendments is probing, to elicit what might happen when questioning involves a potentially different charge but, nevertheless, one arising from the same set of facts and circumstances.
Although I was not present in your Lordships' House at the time, I understand that during debates in 2005, when the issue was extending pre-charge detention to 90 days, among the correspondence cited was a letter from Andy Hayman—whose articles in the Times were extensively cited in our debates on Monday—to the Home Secretary about why extension was necessary. Among the reasons given was particular stress on the difficulty that the police faced in gathering sufficient evidence to bring an appropriate charge.
It is only fair to point out that, as in many cases, not exclusively terrorism cases, much evidence is gathered after charging. It was argued, therefore, that there is no reason why properly authorised re-questioning could not take place under existing law if a continuing investigation suggested that someone charged with a lesser terrorism offence—for reasons debated on Monday, often a lesser charge is brought, such as acts preparatory to terrorism—may not be questioned again about a more serious offence.
As I understand the situation—I confess that I am not an English lawyer—the codes of practice under the Police and Criminal Evidence Act set out the limited grounds for permitting questioning when someone has already been charged and might be questioned further about the same offence. These grounds include preventing or minimising harm or loss to some other person or to the public, clearing up ambiguity in a previous answer or statement, or, if it is in the interests of justice, commenting on information that has come to light since they were charged.
Clause 34 allows a general ability to question someone about terrorism offences after they have been charged. The Government's position, as I think it has been explained in the past, is that there is no need to address questioning for different offences as that is already permitted. Outwith the terrorism cases, if someone is charged with burglary, there is no difficulty with post-charge questioning if the offence that the person is being questioned about is, for example, a separate assault.
We tabled the amendment to seek clarity about post-charge questioning that involves a potentially different charge but one that arises out of the same set of facts. As I have already indicated, someone may have been charged with a lesser terrorism offence but the same facts and circumstances may give rise to a more serious terrorism offence. It could be argued that it is not clear what questioning is permitted under the Police and Criminal Evidence Act when that questioning relates to different offences but is based on the same facts. As I have already said, the use of the precursor offence is increasingly relied on.
I hope that the Minister will explain in his response the situation where the subject of the post-charge questioning relates to offences arising out of the same facts. That is why our amendments define related offences as those where the facts are wholly or substantively the same as those pertaining to the terrorism offence for which the person has already been charged or informed that they may be prosecuted. The Minister might find this a surprise, but it is intended to be helpful so that there is no dubiety about post-charge questioning being permitted in circumstances where the facts were basically the same but the charge may be more serious. I beg to move.
I do not know whether the noble Lord intends to speak to his other amendments at this stage, but it might be convenient if I spoke to my amendments, which cover much of the same ground as his, although in some respects we have a different approach. I am happy to continue if that is in order and is convenient to the Committee. My amendments are in a separate group, but it might be helpful to clear the ground at this stage. They go wider than those of the Liberal Democrats, because they are not confined to related offences.
I am now in an even bigger muddle. The JCHR has tabled an amendment on exactly the point with which the noble and learned Lord, Lord Lloyd, is dealing. Are we discussing the first two groups of amendments together, or are we discussing the Liberal Democrat ones alone? I know that the Government do not like telling me things because they say that they will not give answers to questions, but they may like to answer this one.
I think that I have the most up-to-date grouping of amendments. My amendments are preparatory, but they all relate to the issues that I have already addressed.
To assist the Committee, I should point out that we are dealing only with the group in the name of the noble Lord from the Liberal Democrat Benches. Although I recognise that the amendments tabled in the name of the noble and learned Lord, Lord Lloyd of Berwick, are very much related, they are in a different grouping, so I sense around the Committee that it might be easier to keep the debate in order if we concentrate on the first group. However, obviously, that is in the hands of the Committee.
If we simply are discussing Amendment No. 37 and not the others in that group, perhaps I may say that I do not find it easy to understand the purpose of the amendment. As I understand it, and as the noble Lord has made clear, it is always open to police officers to continue their investigation after a suspect has been charged. If in the course of that investigation they discover other matters which would warrant a separate charge, it has always, as I understand it, been open to police officers to question that man in respect of those matters. To confine the subject to related offences seems to me, in a sense, to be beating the air because there is no need for that amendment. I shall listen with interest to what the Minister has to say on that subject.
I shall speak to the first group of amendments and will try to clarify the point raised by the noble Lord, Lord Wallace. As I understand it, this is a probing amendment. First, for the record, it might be worth outlining the purpose of the clause. Since 2001, experience of terrorism cases has clearly demonstrated that they have grown in scale and complexity, leading to an increase in the volume and complexity of evidence, about which we have heard a lot over the past few weeks.
As the Director of Public Prosecutions has made clear, this means that a great deal of evidence comes to light following the charge of a terrorism suspect, either as a result of decryption or translation of material or as a result of additional investigation by the police. At present, it is not possible to compel a suspect to be questioned on such evidence following their charge, which is obviously not in the interests of justice. Therefore, this clause enables questioning of suspects about terrorism offences for which they have already been charged or informed that they would be prosecuted for in England and Wales.
This questioning would be possible not only for the terrorism offences listed in this clause, but also where a Crown Court judge makes an order for a preparatory hearing to be held under Section 29 of the Criminal Procedure and Investigations Act 1996 on the basis that an offence was connected to terrorism and carries a maximum sentence of at least 10 years. For example, that could allow post-charge questioning about conspiracy to murder if it was connected to terrorism. The clause would also enable adverse inferences to be drawn from an accused's silence in post-charge questioning; otherwise a suspect could simply choose to refuse to answer any questions with impunity.
The amendments seek to allow post-charge questioning about a "related terrorism offence" where the related offence is connected to the same set of facts on which the person subject to post-charge questioning was charged. These amendments arise because there is a belief that it is not possible to question a suspect about an offence arising out of the same set of facts as those relating to an offence for which they have already been charged.
The Government do not believe that this is correct. If a person has been charged with a terrorist offence, and if new evidence shows that the offence with which they are charged is insufficient to capture all the offending behaviour—for example, conspiracy to murder turns out to have led to an actual murder—the person can be re-arrested and interviewed for that new offence. That is not post-charge questioning but is normal pre-charge questioning for the new offence. A problem could also arise if amendments to this effect were passed. Any such provision could undermine the police in their questioning of suspects in non-terrorism cases, as at present there are no statutory restrictions on their ability to question about other offences.
Finally, the effect of these amendments could be to prevent questioning about the offence for which a person has been charged because of the insertion of the word "related" before the words "terrorism offence" in Clause 34(2). I hope that that explains why we do not believe that these amendments are necessary.
The Minister has given a clear response to these probing amendments. He indicated that doubt had been expressed about whether, under both this clause and existing law, it was possible where the facts and circumstances were the same that they could give rise to different charges. It is because of that dubiety that I think the noble and learned Lord, Lord Lloyd, intervened. If it is a matter of a different offence, of course there is no problem, but that there might be some dubiety was raised with us. The amendments were tabled because we do not feel that such dubiety should exist. The Minister has said that he is satisfied that there is no grey area as such. In the circumstances, it is not my intention to press the matter, and I beg leave to withdraw the amendment.
I am glad that that problem has been resolved.
I should like to speak to all the amendments tabled in my name in this group, with the exception of Amendment No. 53A, a probing amendment to which I do not expect an answer from the noble Lord. It is certainly something I do not know the answer to, but we will come to that amendment later on. On the amendments in this group, I should like to make it clear at the start that I am in no way opposed to post-charge questioning as such. As we all know, it already happens. Nor would I, as I thought the Liberal Democrats intended, confine post-charge questioning to related offences. For the reasons I have explained, I would allow such questioning in respect of offences for which the defendant has already been charged, but only in very limited circumstances. My great objection, therefore, is not to post-charge questioning as such, but to what is proposed in Clauses 34 to 36. I have no objection in principle, but I object to the way it is proposed to be carried out.
In particular, I object to the proposal that post-charge questioning could be authorised by the police for a period of 24 hours, and I do so for two reasons. First, there is the obvious risk of oppression. The very idea that a suspect can be questioned for 28 days, can be charged and then questioned again by the same police officers over many days comprising the 24-hour period, even up to the very door of the court, would strike most people as oppressive or at least capable of becoming oppressive. On that ground alone, I urge the Committee to be cautious.
Secondly, the provisions as they stand show, not for the first time, that the Government have failed to grasp one of the basic features of our criminal procedure. Once a suspect has been charged, he is no longer in the hands of the police. He has been handed over to the independent Crown Prosecution Service. In truth, he is no longer a suspect at all, but has become a party to proceedings launched by the Crown Prosecution Service in which the defendant—for he is by then a defendant—may well give evidence on his own behalf and sometimes will be the only witness on his own behalf. If the police, on their own authority, are to be entitled to ask the defendant further questions in order to test his evidence before the trial, surely it must follow that the defendant should himself be allowed to test the prosecution evidence before trial, otherwise the prosecution would have had a clearly unfair advantage and the defendant would not have a fair trial. Just as the extension of detention to 42 days, which we discussed on Monday, would be a clear infringement of his right under Article 5 of the convention, so post-charge questioning would clearly be an infringement of his rights to a fair trial under Article 6 of the convention if the clauses were to stand as drafted. That is the view which I believe our courts and Strasbourg would take if the matter were eventually tested there.
What is to be done about these clauses? As authorisation by the police, for however short a time, is not acceptable for the reasons I have mentioned, and as it is clearly not a job for justices of the peace—they would not welcome it—the answer must be that the authorisation should come from a judge. That is the view of the Liberal Democrats, as one can see from Amendment No. 48; it is the view of the Scots lawyers, as one can see from Amendments Nos. 54A and 55, except that they refer to a sheriff rather than a judge; and it is also, of course, my view.
If the authorisation is to be by a judge, it should be by a judge sitting in the Crown Court and not a High Court judge. This would have the great advantage that the Crown Court judge could go into all the facts at a preparatory hearing under Section 29 of the Criminal Procedure and Investigations Act 1996, the Act which is referred to in the Bill. The purpose of Amendment No. 43 is to enable that to be done. At such a hearing, the judge could give directions as to the scope, the subject matter of the questions and the timing of the further questioning. Surely that is much better than having artificial limits placed upon the further questioning of 24 hours and five days, which would mean very little in such circumstances. I do not know what it would mean.
So our judges, who are well used to dealing with such matters every day, would be dealing with the authorisation. It would surely be much better to rely on them to make sensible decisions in the light of the facts of a particular case; do not let us try to do the judges' work for them. That is the purpose of Amendment No. 50 and, for those reasons, I would invite the House to accept the amendments in due course.
Let me turn now to my other amendments in the group. First, although, as I have said, I am in favour of expanding the scope of post-charge questioning, it should be confined to serious terrorist offences—as, indeed, the Government propose under Clauses 22 to 33. One finds that in Clause 24(3) and the definition in Clause 24(4). Finally, I can see no reason at all to include subsection (7). I beg to move.
I support the amendments tabled by the noble and learned Lord, Lord Lloyd. The amendments tabled by the noble Lord, Lord Wallace, and my noble friend Lord Onslow share the same spirit and objectives, but the view of these Benches is that the drafting of the amendments tabled by the noble and learned Lord, Lord Lloyd, is preferable.
It is fair to say that there is considerable support in this Committee for post-charge questioning, but there is also a desire to ensure that it does not become oppressive and that there can be no accusation of impropriety in the investigation process. Many of the amendments before us endeavour to put in place judicial supervision of post-charge questioning. In another place, the Government made concessions on this and on the supervisory regime, but like the noble and learned Lord, Lord Lloyd, and other noble Lords, we do not think they are sufficient. I echo the sentiment that has been expressed that if judicial authority is required to extend pre-charge detention, it must similarly apply in the case of post-charge questioning. We do not think it is right that the police should, on their own authority, be able to go on questioning a defendant, even for 24 hours only. There is a question about the meaning of 24 hours.
In this context, the amendments before us are concerned with what constitutes a sufficient level of judicial authority. Like the noble and learned Lord, Lord Lloyd, we do not think that a justice of the peace is sufficient. It would be right for it to be a judge of the Crown Court. It seems desirable that a judge who is likely to try the case should authorise and supervise the post-charge questioning. That is likely to be a Crown Court judge. Our reasons for thinking that is right are identical to those set out by the noble and learned Lord, Lord Lloyd.
There are other questions that, depending on the Minister's response, we would like to ask about the time periods and what triggers them. Like the noble and learned Lord, Lord Lloyd, our preference is to put the supervision in the hands of the supervising judge and allow him discretion about how long it should continue and in what manner, rather than the time periods being set out in the legislation. I say that because there are questions about their meaning. Depending on what the Minister says, I might want to revert to that if he is not inclined to accept the procedure suggested by the noble and learned Lord, Lord Lloyd.
On a more general point, I do not think that this legislation is the place to set out the detail of the safeguards. On the next amendment, I will speak to the question of how they might be set out in the PACE codes.
I am not a lawyer, but I was somewhat impressed by the evidence that Professor Ed Cape gave to the Joint Committee on Human Rights. The noble and learned Lord, Lord Lloyd of Berwick, said that he does not object in principle to post-charge questioning. I should be grateful if he could explain to the Committee what his response is to the arguments put forward by Professor Cape and if the Minister would also do so. Professor Cape's proposition was that with post-charge questioning the person who is charged is placed at a severe disadvantage, particularly if a negative inference would be drawn from him exercising his right to silence. Professor Cape made the point that a defendant cross-examined at trial has the benefit of legal representation and will have received prior disclosure of the evidence on which the prosecution intends to rely and of unused material. He suggests that post-charge questioning is in breach of Article 6 of the ECHR, to which the noble and learned Lord referred just now, under which a defendant is entitled to know the case against him.
My concern would be that with the extension of post-charge questioning that is proposed in the Bill, the balance of justice may be tilted too far towards the prosecution. I do not understand why the noble and learned Lord, Lord Lloyd of Berwick, is satisfied that this would be acceptable if it was authorised by a judge. It still seems to me that there is a risk—indeed, a probability—that the balance of justice at a subsequent trial would have been tilted adversely and unfairly.
When this was last discussed, I remember being very moved by what the noble and learned Lord, Lord Lloyd of Berwick, said. I remember that, as a result of his speech, the Joint Committee on Human Rights heard quite a lot of evidence on this. As a result of that evidence, we have put down our own amendment, which is included in this group. I am already seeing a slight flaw in this new clause, which says in proposed subsection (2):
"Post-charge questioning must be judicially authorised in advance".
It should specify by whom; I completely agree with the noble and learned Lord that it should be done by a Crown Court judge, as I think "judicially" could mean a magistrate. I am not totally sure about that, but the wording does not seem as clear as it ought to be.
The new clause states that post-charge questioning shall relate only to terrorism offences. It also says—and this is very important—that such questioning should apply only to new evidence that has come to light and not to the rehashing of old evidence, and that five days is quite enough. I am obviously not speaking on behalf of the Joint Committee on Human Rights when I say that I was influenced by what the noble and learned Lord, Lord Lloyd, has just said; it seemed to have considerable validity.
The proposed new clause also says:
"Post-charge questioning may only take place in the presence of the defendant's lawyer".
We suggest that the post-charge questioning should be video-recorded and that the judge who authorised it,
"shall review the transcript of the questioning after it has taken place, to ensure that it remained within the scope of questioning under subsection (2) and was completed within the time allowed under subsection (3)".
That seems to make complete sense. If the judge allows questioning on evidence which is brand new, it must be very tempting sometimes for an interrogating offer to move to the edges and to bring something up and try it. That is an important judicial safeguard.
We also propose that post-charge questioning should not be allowed before the beginning of the trial. I remember the noble and learned Lord speaking about the possibility of somebody being interrogated on the steps of the court. That is obviously totally unsatisfactory.
I am not completely wedded to the exact wording of the amendment proposed by members of the Joint Committee on Human Rights, but I am certainly wedded to the principles which it encompasses.
I know that some people refuse to be represented by lawyers, but it is surely right to have a lawyer present. If the defendant says that he does not want a lawyer present, I suspect that there is nothing that anybody can do about it, and I do not think that you can force lawyers on people. Here, I am thinking on my feet and hoping that the answers that I am giving to the noble Lord are accurate. However, the defendant must have the right to have a lawyer present while he is being interrogated after he has been charged.
I associate myself with the remarks of the noble Lord, Lord Howarth, about the risks involved in post-charge questioning. It is recognition of that which requires some action to be taken to ensure that if post-charge questioning is to be used, it is done under circumstances in which those disadvantages do not arise. That is why I find the general trend of the amendments of the noble and learned Lord, Lord Lloyd of Berwick, to be entirely satisfactory. If the case were to come before a Crown Court judge, he would have an opportunity to consider that in deciding whether it should be allowed in the first place, and if it were to be allowed, under what conditions, including such things as are suggested in the amendment put forward by the Joint Committee on Human Rights. Those are all possibilities that the judge could have in mind.
While I accept that risks are sometimes involved, I think that there are also sometimes advantages, so long as there are adequate safeguards for the fairness of the ultimate trial. The judge would have a degree of control over what kind of approach could be made to the prosecution in relation to disclosure of the Crown case before questioning of that kind was allowed in some circumstances. To have a police superintendent in charge at the stage of post charge is wrong in principle, for the reasons that the noble and learned Lord, Lord Lloyd of Berwick, explained. A Crown Court judge would have sufficient power, authority and, generally speaking, experience to be able to decide whether the risks involved in a particular case were too great, in which case he would think that they should not be allowed. If, on the other hand, he thought that there were adequate safeguards to secure a proper trial, he would make the necessary arrangements to ensure that that should happen. I therefore generally support the amendment of the noble and learned Lord, Lord Lloyd of Berwick, and I hope that the Minister will feel inclined to move in that direction.
In rising to speak to the amendments in my name and that of my noble friend Lord Thomas of Gresford, I indicate my general support for the amendment moved and the amendments spoken to by the noble and learned Lord, Lord Lloyd of Berwick. I share the concerns and caution expressed by the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Mackay of Clashfern. In going down the road of post-charge questioning, one must proceed with caution, which is why it is important that, in accepting the principle, as we do from these Benches, we should make sure that adequate and proper safeguards are in place. That is why our amendments cover very much the same ground as those of the noble and learned Lord, Lord Lloyd of Berwick, in, first, trying to ensure that the initial authorisation is judicial and not from the police. It is my understanding of the position—it may be where the Government are coming from on this—that the first 24 hours after arrest allow questioning without judicial authorisation, but it is stating the obvious that there is a world of a difference between the position of someone who has just been arrested and someone who has been charged. Therefore, there is no necessity for the initial authorisation to be by a police officer, not least given the fact that, if the questioning is to continue after 24 hours, a presentation and a case would have to be made to a judicial authority in any event. That would not in any way compromise or harm the questioning and the investigation taking place.
The other amendments, specifically Amendment No. 49, add two issues which would have to be taken into account by the judicial authority before authorisation was given. In addition to the ones set out in the Bill, we propose that the judge must be satisfied that in the case of questioning under subsection (2) there are reasonable grounds for believing that it was appropriate to bring the original charge. That might be thought to be stating the obvious, but it reflects concerns that allowing post-charge questioning could allow for an inappropriate charge to enable detention on remand during an ongoing investigation into more serious terrorist activity. It may be that the lesser charge is wholly appropriate, but it is not an unreasonable requirement that the judge should be satisfied that the original charges were, in the circumstances of the case, appropriate.
Secondly, the judge must also be satisfied that further questioning would not be oppressive. It might again be argued that that would be unnecessary, due to the requirement that the questioning must be in the interests of justice; but the fact that it might be in the interests of justice to question does not mean that, perhaps cumulatively, it could not add up to oppression of the person who was to be questioned. There should be robust judicial safeguards importing considerations of oppressiveness if we are to go down the route of allowing post-charge questioning. In those circumstances, we would support the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick. I have already indicated the grounds underlying the amendments standing in my name and in the name of my noble friend Lord Thomas of Gresford.
The Advocate-General is not in his place, unfortunately; it would be very convenient if he was. In his absence, I ask my noble and learned friend Lord Mackay of Clashfern whether I am right in thinking that Clause 35, which applies to Scotland and which shows that the sheriff is responsible for supervising post-charge questioning in Scotland, does not meet the point made by the noble and learned Lord, Lord Lloyd. I think that he mentioned that, but I am not absolutely sure whether I followed him correctly. The sheriff is, of course, a judge—the equivalent of a Crown Court judge, as I understand it. So I believe that the point being made by the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Wallace of Tankerness, is met in Clause 35. Will my noble and learned friend put me right if I am wrong on that?
It is not normal for me to have to respond to such a generous invitation. Certainly, the clause applying to Scotland involves judicial intervention at a particular stage—the sheriff being the nearest Scottish equivalent to a Crown Court judge. Of course, the superintendent comes into it as well. The amendment proposed by the noble and learned Lord, Lord Lloyd, deals with that in a way that is not quite consistent with what is in this Bill for Scotland. However, although I await with interest what the Minister says, it is a little difficult for the Government to say that in Scotland there should be judicial intervention in this process when in England that is said to be unnecessary. In a way that could be defended by saying that a justice of the peace will be taken into account, as if he or she were a professional judge. I support the magistrates very much, but there is some question whether that would be an appropriate cross-over.
I hope Members of the Committee will accept my apology, but I had to be in two places at once. I was particularly anxious to say something about Amendment No. 68, which I support as long as the business is wholly within the remit of the judiciary and not in any way interfered with by a Secretary of State or dealt with other than by the judiciary. This is judicial business, which lies within the remit of the judiciary.
I hope that the Committee will also excuse me for not being in my place when the amendment was moved. I, too, was delayed unavoidably. I shall be brief, but it might be useful to put the point of view of someone who at one stage was responsible for managing some major investigations when the law on post-charge questioning was often quite opaque. I fully support what the noble and learned Lord, Lord Lloyd of Berwick, has put before us today for offences that are concerned only with terrorism, involve new evidence, are authorised by a judge and have the safeguards of the accused paramount. I need say no more because everything that I would have said has already been covered, but I fully support the amendment.
I support the amendments tabled by the noble and learned Lord, Lord Lloyd, because the same principles should apply in each of the three separate jurisdictions involved in post-charge questioning. As has been pointed out, the professional judge is involved in Scotland, so it is strange that that necessity is not to be found in each of the clauses dealing with post-charge questioning in England and Northern Ireland. No doubt the Minister can explain that dynamic. However, in general I give my full support to what has been proposed in the amendments by the noble and learned Lord with regard to England and Wales, observing that they have some support elsewhere in the Bill as it stands.
I will summarise where we stand because noble Lords have jumped on to some amendments that are not in this first batch. I will deal with the first batch first rather than moving straight to Amendment No. 60 and talking about legal support and such things.
The majority of these amendments alter the mechanism for authorisation for post-charge questioning. Amendments Nos. 46 and 45 would remove the ability of a police superintendent to authorise the first 24 hours in England and Wales. Amendments Nos. 47, 50, 52, 43, 45, 48 and 68 would require a judge to authorise post-charge questioning rather than a justice of the peace as the Bill states at present.
We believe that the police should authorise the first 24-hour period of post-charge questioning because such questioning may need to take place urgently—for example, if someone had just been arrested and charged and the police believed that the suspect had information relevant to potential further terrorist activity. It should also be noted that at present judicial authorisation is not required for other forms of post-charge questioning or if a suspect is interviewed in connection with another offence.
We also consider that it would be more appropriate for a justice of the peace, rather than a judge, to decide whether to grant further periods of post-charge questioning. We believe that for two reasons. First, a justice of the peace, unlike a judge, is available at all times and so can be asked to authorise questioning urgently, which may be important for the reason previously explained. Secondly, a requirement for a judge to authorise questioning could lead to lengthy proceedings, which could be tantamount to the trial for the offence.
There are differences between jurisdictions. Sometimes the differences in Scotland compared with us are not easy to explain in a large number of areas.
"could significantly slow down the process".—[Official Report, Commons, Counter-Terrorism Bill Committee, 22/4/08; col. 45.]
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—
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 subject to post-charge questioning in England and Wales should have access to legal representation; indeed, we have made explicit provision for this in the draft codes of practice. However, we are concerned that the text of the proposed new clause would allow a suspect to veto questioning, as they could simply refuse to allow a lawyer to represent their interests.
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.
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.
I shall come back to the noble Baroness on that, as I am afraid that I do not know the exact specification.
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?
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.
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.
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.
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.
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.
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?
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.
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.
With that encouragement, all I need to do is to beg leave to withdraw the amendment.
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 would render a lot of my questions unnecessary. I had hoped that we would hear that the PACE codes would be redrafted in the light of a new framework. Given that the Minister has resisted the possibility of accepting these amendments for the moment, I should raise the issues that arise out of the latest PACE codes that have been placed in the Library of the House.
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
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
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 the contents of the parts of the Bill on post-charge questioning. It is likely that we will revert to this issue on Report. I beg to move.
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.
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.
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.
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.
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 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.
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.
We now move to the clause on post-charge questioning for Scotland. As the Minister indicated in the previous amendment, there are important differences, and the history of post-charge questioning differs between the two jurisdictions. In an earlier debate on the subject, we agreed that we must be cautious about it, but perhaps we should be even more cautious as we are drafting a—not exactly novel but—different procedure for the law of Scotland.
I start with the quote from the then Lord Justice General, Lord Normand, in the case of Stark and Smith v His Majesty's Advocate in 1938 when he said:
"When an accused person has been committed, he comes under the protection of the court and it is the court's duty to see that nothing is done by the police that will prejudice his trial".
It is a well established principle, and I say that with some trepidation as I note that there are three distinguished former Lord Advocates in the Chamber and we had a distinguished former Solicitor-General. It is a tradition and well established principle of Scots law. I quote in aid the present Lord Advocate Elish Angiolini QC when she gave evidence to the Public Bill Committee in another place. To be fair, she expressed some degree of scepticism with regard to the effect and benefit of this clause in Scotland.
In accepting the Minister's point that no inference from silence can be drawn north of the border, the Lord Advocate said that,
"the existence of post-charge questioning without an adverse inference from silence, which, of course, we do not have in Scotland either, is somewhat less valuable in Scotland than it would be in England and Wales".—[Official Report, Commons, Counter-Terrorism Bill Committee, 22/4/08; col. 90.]
That distinction is important.
Another important difference between the two jurisdictions, highlighted by the Lord Advocate, was that post-charge disclosure could be counter-productive. She said that there is a danger of questioning too much. It may be the same south of the border; certainly by post-charge questioning there will have been disclosure by the Crown. The Lord Advocate said that, if it is post-petition, there will have been post-charge disclosure of the statements that form the basis of the Crown case. If you approach the accused with questioning, he will be able at that stage more intricately to link his answers to what he knows to be the state of evidence. Therefore, he may well be able to give answers that exculpate him rather than incriminate him.
There are differences between the two jurisdictions and the benefits of post-charge questioning in Scotland are perhaps more doubtful. It is very important that the structure of post-charge questioning must take into account the varying tradition and structure of Scottish law.
Amendment No. 54A would delete subsection (4), which states:
"A constable may question a person under subsection (2) or (3) at any time up to the commencement of the trial".
When we dealt with amendments about the position in England and Wales, we mentioned that allowing questioning right up to the door of the court is itself highly questionable. I know that that particular subsection does not appear in the provisions for England and Wales, or in those for Northern Ireland. It may be in other provisions or in the PACE codes, but we are entitled to know why that provision is present in the Scottish clause but does not appear in the clause that relates to England and Wales, Clause 34, or to Northern Ireland, Clause 36. The Minister's elucidation of that point would be very welcome.
I may have misheard the Minister, but perhaps he will confirm whether he said when we were debating an earlier amendment that there might even be the possibility of post-charge questioning between trial and retrial. The subsection may give a safeguard to the accused person, but we require some explanation.
Amendment No. 55 deletes the authorisation by the police superintendent for the first 24 hours of questioning. I shall not rehearse the arguments produced when we discussed the similar position in England and Wales, other than to say that, standing on what I said about where the person who is being committed is under the protection of the court, it is the court's duty to see that nothing is done by the police that will prejudice his trial. We are going one step too far by allowing a police superintendent, off his or her own bat—no doubt with cause in his or her eyes—to seek that authorisation when a person is already under the protection of the court. If the person is under the protection of the court, the proper person from whom that authority should be sought is the court.
The point has already been made that in Scotland that will be done by a sheriff, a professional judge. I do not think that the House was satisfied by the Minister's answer about why that was to be done in England and Wales by a lay magistrate. We have lay magistrates in Scotland. If the Minister has had an opportunity to get an explanation of why a professional judge is required in Scotland but not in England and Wales, it would be very interesting to hear from him when he replies.
Another point—former Lords Advocate present may want to comment on this—is that criminal investigation in Scotland is ultimately under the direction of the Lord Advocate or the Procurator Fiscal, who is the Lord Advocate's appointee. It is unusual, to say the least, for a police officer, albeit a very senior police officer, to authorise questioning when, by that stage, the responsibility for the direction of the investigation rests on the shoulders of the Lord Advocate. It gives rise to the suspicion that full account was not taken of the structure of criminal justice in Scotland when the clause was put together. At the very least we should have an explanation of why it was thought appropriate to cut the Lord Advocate out of the process set out in the clause. Our primary position is that it is not a matter for the police. From the very beginning, authorisation should be sought from the court. I beg to move.
I support Amendment No. 54A. I, like the noble Lord, was surprised to find the reference to questioning up to the commencement of the trial in this part of the Bill and not in relation to England. I put two large question marks against subsection (4) when I read it. It shows how extreme the proposals are that are now being put before the Committee, but it is enough to say that I entirely support the deletion of that subsection.
I also support Amendments Nos. 55 and 56, for all the reasons that have been mentioned. I do not support Amendments Nos. 57 and 59 so strongly because I still do not like the idea of a time limit on questioning. I would much prefer to leave that to the discretion of the judge in the Crown Court.
I have considerable sympathy with the amendments in the name of the noble Lord, Lord Wallace of Tankerness. In Scotland, the accused is under the protection of the court, as he has said, and interference in the rights of the accused may be manifest at the point of questioning. In particular, Amendment No. 55, which would remove the role of the constable and the superintendent, is appropriate, because it would place the whole duty to protect the accused on to the shoulders of the sheriff, where it should properly reside, and not on to those of the police officer.
The noble Lord is also right to point out the role of the Lord Advocate in Scotland and the fact that the criminal investigation of the offence is under her and the procurator fiscal acting on her commission. Have any discussions been held with the Lord Advocate on the way in which the clause will operate, and will any guidance or instructions be issued by the Lord Advocate to police officers on the operation of Clause 35(5)(a)? In other words, will it be incumbent on the superintendent to seek the authority of the Lord Advocate before authorising the officer conducting the questioning? I might be more comfortable if it is, although full protection should still be there, but I am very uneasy about the position in which this leaves the accused in Scotland.
Moreover, allowing the questioning of a person right up to the commencement of the trial is invidious. As the trial gets nearer, the pressure on the accused, and on those advising and representing him, becomes even more acute. If that preparation for the trial, both mentally and in terms of advising and consulting with legal advisers, is to be interrupted by questions from police officers about the matters that are going to trial, that is to be deplored.
I hope that the Minister will be able to give some reassurance on those points and will be able to take them away to look at the implications of the Government's position on these important matters.
I support what the noble and learned Lord, Lord Boyd of Duncansby, has already said in supporting these amendments. I come back to the point which I endeavoured to make in a previous intervention in relation to post-charge questioning in England. The rights of a person charged are the same in whichever of the three jurisdictions that arise here. One would therefore expect to look at each of the clauses dealing with the rights of the charged person and find that they have been dealt with, as far as procedure is concerned, in precisely the same way and are protected in precisely the same way.
I have already made the point that in the Scottish provisions there is reference to the judge. There is no such provision in England or Northern Ireland. In Scotland there is a right, apparently, to question up to the commencement of trial, but not in England and Northern Ireland. These three clauses seem to have been drafted under completely different circumstances without any regard for the underlying rights of the individual who is subject to post-charge questioning. No doubt, because of the different procedures in each of the three jurisdictions, these matters have to be dealt with separately, but the effect should be the same throughout. Therefore, I support entirely the thrust of these amendments so far as they affect Scotland, but on a much more general basis.
It is clearly a complicated matter for the Minister when we talk about the jurisdictions. I am not a lawyer and I find the discussion on the precise procedures difficult. But I am clear on what the noble and learned Lord, Lord Cameron of Lochbroom, has just said. The rights of people wherever they are are the same, wherever they are charged, and they should be respected in the Bill. Will the Minister consider these matters and consult his colleagues in Scotland, as well as in England, Wales and Northern Ireland, and perhaps write in some detail to those of us who have taken part in this matter? How do the Government justify the differences in the way in which people are treated, not in the procedures or on how the traditions in the different parts of the country are manifest, but on rights? How do the Government justify that those rights should be different in Scotland from those in England, Wales and Northern Ireland? Will the Minister agree to do that?
It is probably right that the third of the former Lord Advocates should join those who have already spoken in support of these amendments. What is the position with regard to subsections (8) and (9) of Clause 34, which apply in England, but are omitted in relation to Scotland? That may be a very good thing, but it might affect to some extent the usefulness of post-charge questioning in Scotland if it is intended that the position should be different in that respect.
I appreciate that the noble Lord cannot be expected to be familiar with the detail of the Scottish procedure and therefore it is sufficient so far as I am concerned if he is able to communicate with us later on these matters.
I have already said to the noble and learned Lord, Lord Lloyd, that I will take away the issue about using judges or justices of the peace. What is clear is that the inconsistencies are not appropriate. I accept that although at times there are huge differences between Scottish and English law, in this case we should be looking for something similar. I will take away the issue to be looked at and decide whether we should come back in writing or consider it for the next stage, which might be better.
On Amendments Nos. 55, 56 and 58 concerning the police, I think that this applies in England, Wales and Scotland. Letting a police superintendent authorise the first 24-hour period of post-charge questioning, as I discussed on the amendments concerning England and Wales, is important. It is important that questioning should proceed quickly and with urgency once the charges have been laid. We do not need authorisation for other forms of post-charge questioning and we do not need to do it if we have other evidence or it is in connection with another offence. I would prefer to leave those provisions in the Bill and for the amendments to be withdrawn. We discussed this with the Lord Advocate, but I do not know the full details. My noble and learned friend Lord Boyd asked whether the superintendent would get approval from the Lord Advocate, and I shall come back to him on the next occasion. I also take to heart the points made by the noble and learned Lord, Lord Cameron, and the noble Baroness, Lady Carnegy. Some inconsistencies here need to be resolved.
The issue of the Lord Advocate occupies an important place in my mind. I would be very grateful if the noble Lord could check, first, what discussions have taken place with the Lord Advocate, and secondly—this is most important—whether she intends to issue instructions on how this is to operate. That would influence the way I looked at this provision when it came back.
A couple of times, the Minister has mentioned delays in finding a judge to make a decision about post-charge questioning. I can see that it is quicker if the superintendent simply has to walk down the corridor into a police cell, but is there any experience of people having to seek the approval of a judge for other procedures within the court where the delay is so monumental that it would not allow for questioning in the first 24 hours?
All I can say is that this is not a question of monumental delays, but being able to get on with questioning straightaway if one has made a charge and has a real concern about evidence that might affect other people's lives. That is the basis on which to get moving quickly.
That is what I find so difficult to understand. We are talking about post-charge questioning. Are we not assuming that the suspect has by this time become a defendant and will almost certainly be in custody? What is the point about delay?
As I understand it, if someone is charged on a Friday afternoon, I am not sure that one is always able to find a judge who is immediately available. That is how I have been briefed. If it can always be done, clearly this may not be a correct argument. I will ask my team to look at it, but I assume that this provision is based on the fact that the police have had trouble with this in the past. I cannot imagine that they have just made it up out of the air, so I will look into it. Generally, however, I do not think that our authorities do things on the basis of "Gosh, let's make this difficult for people". They are asking for this because they have had difficulties in the past.
Will the Minister reflect on the justification he gave for retaining the right of a police officer to carry out post-charge questioning in the first 24 hours? He said that it was not in the interests of the prosecution or the police to allow that to happen in oppressive circumstances because the court, ultimately, would have an opportunity to identify that and to disallow the evidence that it produced. Will he reflect on that because it is by no means certain that a court would be able accurately to identify whether or not the circumstances of the questioning were oppressive? As the noble and learned Lord, Lord Lloyd of Berwick, said, it is readily foreseeable that oppression will occur in those circumstances when a police officer is doing it. It would be much better to avoid the risk of something as readily foreseeable in our procedure as a whole. That is a rather powerful answer to the justification put forward by the Minister. Will he reflect on it in the general context of our discussions today?
I shall certainly reflect on what the noble and learned Lord has said.
I am grateful for the general support which the amendments have attracted from noble Lords, noble and learned Lords and the noble Baroness, Lady Carnegy, who have highlighted important points. I welcome what the Minister said about the importance of securing consistency across the jurisdictions in dealing with this matter. However, I make the point already made by the present Lord Advocate that because of the different circumstances and different laws in Scotland—not least with regard to not being able to draw an inference from silence—there inevitably will be a difference in the value to the prosecuting authorities of post-charge questioning.
I say to the noble and learned Lord, Lord Boyd of Duncansby, that Amendment No. 61 seeks guidance from the Lord Advocate to the police on this and I look forward to the noble and learned Lord's support for the amendment. He makes an important point and I am not persuaded that the Minister's response with regard to the role of the police vis-à-vis the Lord Advocate was satisfactory. We have not yet had an assurance that the role of the Lord Advocate in the Scottish criminal justice structure is properly reflected in the clause.
The Minister indicated in his response that he will write or deal with these matters at the next stage. It would be helpful if he wrote to us so that when we come to the next stage we will have a better understanding of the issues and perhaps not have to go over new ground when it is getting late in the day to do something about it.
Picking up on a point made on an earlier amendment by my noble friend Lady Miller—this is not a criticism of the Minister—perhaps the assistance on the Front Bench of the Advocate General, the noble and learned Lord, Lord Davidson, would have been useful given that we are talking about important issues with regard to the criminal law of Scotland. Perhaps that suggestion will be taken on board for the further stages.
It has been a useful debate in highlighting important issues. The Minister indicated that he would inquire as to whether it might be possible in Scotland's case for sheriffs to deal with this from the first stage rather than a police superintendent or police officer of higher rank. I am sure that the Sheriffs' Association would willingly engage with the Government and I have no reason to believe, given the geographic spread of sheriffs across Scotland, that it would be difficult to find a sheriff on a Friday afternoon.
It is clear from the comments made that this is an important point for Members of the Committee. However, I do not wish to press the matter at the moment and I beg leave to withdraw the amendment.
This is a brief amendment to raise the question of why the extension to five days is in the Bill. This amendment makes the period three days. I confess that a period of three days is as arbitrary as one of five days, but when something impinges upon the position of someone who has been charged with an offence and is awaiting trial, right up to the door of the court, we should hold the Government to account about why they want the longer period. This is a probing amendment to find out why this period was chosen as opposed to a shorter one. I beg to move.
The noble Lord is right about the precision of picking three days or five days. Normally the sheriff would grant another 24 hours. We felt that if a case were really complex—and we have had a number of debates about how complex some of these terrorist cases can be—more days would be required. That is why we arrived at five days, which we think is about right. The period would normally be extended in 24-hour blocks. Five days is only an estimate by the professionals of the time that would be required in a very complex case. On that basis, I ask the noble Lord to withdraw the amendment.
This amendment inserts into Clause 35 a requirement that a person subject to post-charge questioning has access to legal advice throughout the questioning. The Government may argue that that would happen anyway, but I do not see any harm in having that in the Bill. This amendment takes account of Article 6(3)(c) of the European Convention on Human Rights, which provides that everyone charged with a criminal offence has the right,
"to defend himself ... through legal assistance of his own choosing".
When we are dealing with post-charge questioning, it is important to ensure that it is fully compliant with the ECHR. In this clause, we are talking about someone who has been charged and is entitled to the continuation of the court's protection. We believe that the best way of achieving those policy objectives is to ensure that there is adequate access to legal advice. I beg to move.
We do not believe that this amendment is necessary because the Terrorism (Interviews) (Scotland) Order 2001 provides that when a person detained under Section 41 of the Terrorism Act 2000 has been permitted to consult a solicitor, the solicitor shall be allowed to be present at any interview carried out in connection with a terrorist investigation. That is subject to the condition that the solicitor's behaviour during the interview will not interfere with, or obstruct, the conduct of the interview. A suspect subject to post-charge questioning would have access to legal representation, subject to the previous condition.
Any decision to carry out a post-charge interview in Scotland would be taken by the police in consultation with and under the direction of the procurator fiscal and in accordance with any guidelines issued by the Lord Advocate, which I understand will include a right to legal access during post-charge questioning. On that basis, I ask the noble Lord to withdraw his amendment.
The purpose of this amendment is for the Lord Advocate to issue guidelines about the questioning of a person by a constable under this section. Going back to the theme of earlier amendments that tried to ensure some consistency across the jurisdictions, noble Lords will note that in the case of England and Wales Clause 34(6) states that:
"Codes of practice under section 66 of the Police and Criminal Evidence Act 1984 (c. 60) must make provision about the questioning of a person by a constable in accordance with this section".
There is a parallel provision for Northern Ireland in Clause 36(5).
There does not appear to be any comparable provision with regard to post-charge questioning in Scotland, partly, of course, because we do not have the Police and Criminal Evidence Act 1984. Nevertheless, I strongly believe that guidance should be issued, a matter referred to by the noble and learned Lord, Lord Boyd of Duncansby, in an earlier debate. I have raised the issue with the present Lord Advocate, who confirmed in a letter of
"The guidance being considered in relation to the post-charge questioning provisions of the Bill will be developed to reflect the legislation once it is enacted. Given that there may yet be more amendments to the provisions of the Bill, in my view it would be premature to consider publishing guidance at this stage but I can again confirm that such guidance will be developed and issued to the police. I do not anticipate placing the guidance before Parliament".
That is a welcome assurance from the Lord Advocate, but given that there is a comparable requirement in law on how post-charge questioning will take place in England and Wales on the one hand and Northern Ireland on the other, it would be helpful for similar statutory provision to be made for that guidance in Scotland. It is my understanding—no doubt I will be readily corrected if I am wrong—that codes of guidance under the Police and Criminal Evidence Act are promulgated by way of statutory instrument. I am not seeking that, but it would be very helpful to have guidance issued by the Lord Advocate to reflect some of the concerns that have been raised in our debates on this clause and very helpful indeed if that were enshrined in statute. I beg to move.
We do not believe that it is necessary to do that. The Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning. It should be noted that the Lord Advocate has issued guidelines on detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act 2000, despite the lack of a statutory requirement to do so. The Government would prefer it if the amendment were withdrawn.
I still do not think that the fundamental question of consistency has been answered. Why are these issues subject to codes of guidance, which have a proper grounding in statute in England and Wales, yet when it comes to Scotland the Government are prepared to leave it? I do not for one moment doubt the good will of the Lord Advocate but there is no statutory grounding for this. I shall not press this for the moment but I ask the Minister to discuss it further with the Scottish law officers. What is sauce for the English, Welsh and Northern Irish geese is sauce for the Scottish gander, if I am not getting too carried away with my metaphors. For the moment, I beg leave to withdraw the amendment.
The amendments in this group represent minor technical changes to the Bill in order to reflect the law in Northern Ireland. The amendments to Clause 36 talk of the authorisation of post-charge questioning, which will be the responsibility of a district judge, and raises again the point about unequal treatment. I will take that issue away and get back to noble Lords about it. This reflects the different judicial tiers in Northern Ireland.
The amendments to Clause 56 take into account Northern Ireland's sentencing regime and the different language used in legislation. The amendments to Clause 64 ensure that the Bill is in line with legislation in Northern Ireland, specifically the Criminal Justice (Northern Ireland) Order 2008, which received Royal Assent during the passage of the Bill. I beg to move.
As I said in speaking to Amendment No. 62, this is an area where there are inconsistencies which we will look at.
moved Amendments Nos. 64 and 65:
Clause 36, page 24, line 43, leave out "justice of the peace" and insert "district judge (magistrates' courts)"
Clause 36, page 25, line 14, leave out "sent" and insert "committed"
On Question, amendments agreed to.
Clause 36, as amended, agreed to.
Clause 37 [Recording of interviews]:
This amendment would simply leave out the words "except as provided by order of the Secretary of State" in Clause 37(2). Clearly, the interviews must be video-recorded. Clearly, the interviews taking place after charge must be not only video-recorded but recorded with sound. I can see no reason at all for providing the Secretary of State with a power to exclude those provisions. I beg to move.
The Government would ideally like all post-charge questioning to be video-recorded with sound. However, in some areas—for example, in Scotland—where facilities for video-recording with sound are not yet available, that cannot be done. There is therefore a power for the Secretary of State to disapply the compulsory requirement. The power is subject to the affirmative resolution procedure, so Parliament would have an opportunity to discuss it before the requirements were disapplied. On that basis, I ask the noble and learned Lord to withdraw the amendment.
I see no reason to withdraw the amendment so far as England is concerned, where video-recording with sound is possible. Again, I do not find the answer very satisfactory, but I suppose that I must beg leave to withdraw the amendment.
These are minor and technical amendments that would ensure that ancillary offences are dealt with appropriately throughout the Bill. Ancillary offences relate to conduct which fall short of carrying out the main offence but are linked to it—for example conspiracy, incitement or aiding and abetting. There are various lists of terrorism offences in the Bill, and in each case the associated ancillary offences are also included. These lists of offences relate to post-charge questioning, aggravated sentences, forfeiture and notification. The amendments ensure that the references to ancillary offences work for each jurisdiction of the UK. There is also an amendment which ensures that the extended jurisdiction given to terrorism offences in the Bill applies correctly to their ancillary offences. The position under the general law is that jurisdiction for trying the ancillary offence follows the jurisdiction for the substantive offence. This will be the case in relation to jurisdiction provided by Clause 40.
There are no policy changes in these amendments; they are minor and technical and merely tidy up and make more accurate the drafting. I beg to move.
Clause 40 deals with the universal jurisdiction, allowing a prosecution to take place in any part of the United Kingdom notwithstanding the locus of the offence. As I said at Second Reading, I do not necessarily object to that in principle, as it could in some cases make good sense. However, if we are going to do it, it is important that we examine the measure carefully—and an amendment to which I shall speak later makes provision for guidance on it to be issued by the respective law officers. A number of important consequences can arise from the choice of jurisdiction.
Sometimes there is a mantra—I notice that it was used by the Lord Advocate when she appeared before the Public Bill Committee that dealt with the Bill in another place—that this is just doing what was done by the Explosive Substances Act 1883. I think that we now have four distinguished former Lord Advocates in the Chamber, and I will bow to them, but I have looked at this and there is certainly no section in that Act comparable to what we find in this clause. Section 7 of the 1883 Act says:
"If any person is charged before a justice with any crime under this Act, no further proceeding shall be taken against such person without the consent of the Attorney General, except such as the justice may think necessary by remand, or otherwise, to secure the safe custody of such person".
Section 9(2) of the Act says:
"In the application of this Act to Scotland the following modifications shall be made ... The expression 'Attorney General' shall be deemed to mean the Lord Advocate, and in the case of his inability or a vacancy in the office, Her Majesty's Solicitor General for Scotland".
Far from bestowing a universal jurisdiction, it is arguable that it made very clear the distinction between the two jurisdictions.
I understand that the Customs and Excise Management Act 1979 has provision for universal jurisdiction but, while no one minimises for a moment the importance or seriousness of VAT fraud, there is a difference between that and the serious terrorism offences that we are discussing in the context of this Bill. Certainly, it would not be possible to lock up a company for 140 days or longer under the Customs and Excise Management Act.
It is important that we make it clear what the structure is and what the arrangements are if this universal jurisdiction is to be invoked. Of course, there are significant differences, depending on whether a person has to face trial north or south of the border. We have just discussed post-charge questioning, and it was obvious that there are differences in the procedures to be followed for post-charge questioning north and south of the border. In spite of the Minister's saying that he wishes to see consistency, as the Bill stands it is inconsistent; yet a person has some right to know whether and at what stage that jurisdiction is being transferred, either to the north or to the south, so they know what regime would apply with regard to post-charge questioning—and that is why we need a written agreement.
Once a person is committed in Scotland the indictment has to be served within 80 days, and the trial has to commence within 140 days. There is no such provision in England and Wales. But if there is to be a transfer of jurisdiction, surely the person committed is entitled to know which safeguards of the Scottish criminal law with regard to days in custody before the trial commences will apply. I shall be very careful in my remarks about a current trial regarding events in Glasgow on
There is a working assumption, although it is never expressed, that the flow will be one way—that a person committing an offence in Scotland will be taken south and tried south of the border. Perhaps your Lordships would like to consider the possibility of the flow being in the other direction. If an offence were committed in England and the person was arrested, charged and sent to Scotland for trial, the right of habeas corpus would not apply. On Monday the Committee heard much about the importance of Magna Carta, and I am sure that the safeguards available to the subject in 1688 or 1689 resonate just as much with your Lordships today. Yet we appear to be willing to concede without anything other than a handshake between the Lord Advocate and the Attorney-General that a person's right to the protection of habeas corpus can be dismissed when a person is sent north to Scotland for trial.
These are important issues of principle here. As I say, it may be in the best interests of justice that a universal jurisdiction should apply. However, if we are going to establish one, then we must be very clear that it has the concurrence of both law officers, and the accused should know when that happens. If a written consent is given, then there will be a moment in time when that happens. The Government may be reluctant to hedge round the provision with criteria, as the ends of justice could be thwarted if someone sought a judicial review, but neither this amendment nor a later one to which I shall speak seeks to do that. Rather, the amendment would ensure that there is some structure about transferring jurisdiction.
Amendments Nos. 72 and 78 are all-embracing for the United Kingdom of Great Britain and Northern Ireland, whereas Amendment No. 77 simply deals with transfer from Scotland to another part of the United Kingdom requiring the consent of the Lord Advocate, who is responsible for prosecutions in Scotland. In some respects the amendments are alternatives. The one that is all-embracing as a matter of principle is probably better but the point is made by both. I beg to move.
There are three distinguished Lord Advocates in this Committee as well as myself. I agree with the noble Lord, Lord Wallace, in some respects but would like to question some points of detail. I would be grateful if the Government could indicate the principles.
The noble Lord, Lord Wallace, is absolutely correct when he says that this clause introduces into our law a universality of jurisdiction within the United Kingdom. As he also correctly says, that is not unprecedented; it goes back for more than 100 years. However, Clause 40(1) indicates that:
"Where an offence to which this section applies is committed in the United Kingdom ... proceedings for the offence may be taken at any place in the United Kingdom".
We then discover in Clause 40(2) the offences to which this provision applies. Helpfully, in Section 51 of the Terrorism Act 2000, we find that parking a vehicle in contravention of a restriction is such that it could be tried in, say, England. Let us say that there is a difficult granny in Wick who parks her car in contravention of a restriction at the harbour. As I understand the provision, she could find herself subjected to prosecution in Bristol. If I have misunderstood that, I would be grateful if someone could explain it to me.
The more difficult point which the noble Lord raised remains unclear. What is a "law officer"? It may seem a rather obvious point but, as I understand it, the Government are proposing—although the Select Committee has rejected the notion—that the law officer of the day in England should be a non-political person. That is certainly the direction of movement in England. What is troubling me is that if the Government accept the proposal—I do not know if they will—that the Attorney-General of the day should remain a political law officer, and in Scotland, for example, the Lord Advocate becomes someone who is simply the senior and best lawyer in the Civil Service, then I cannot envisage circumstances in which that senior civil servant lawyer will not defer to the political law officer, the Attorney-General in England. That would seem to be absolutely in line with all the precedents that we have seen. I am afraid that the noble Lord is absolutely correct. It is likely in such circumstances that any offence committed in Scotland could in fact be tried in England. That seems to open up a can of worms, particularly at a time of jurisdictional and devolutionary issues.
That is unconscionable at the present time. It would be bad enough if the law officer in Scotland was, as now, of a different political persuasion from the law officer in England. Everything seems to have been posited on the basis that they are both of the same political persuasion. They are not at present and it is unlikely that they will be so in the future. In such circumstances we have a real can of worms that we have to examine very carefully. This may not be an opportune moment to do so, but I certainly want to warn the Minister that it is something to which I will want to return on another occasion.
I strongly support Clause 40. When I was Lord Advocate, I pressed for universal jurisdiction on the basis of my experience in examining the evidence put before me to support a terrorism offence. It rapidly became clear that the lack of universal jurisdiction might hamper a prosecution. Such was the nature of terrorism offences that it seemed that that should be remedied. I am pleased that the Government have taken this on board with this clause.
As the noble and learned Lord, Lord Fraser, has just pointed out, it is not without precedent. I am afraid that I have not looked at the Explosive Substances Act 1883 in the detail that the noble Lord, Lord Wallace, has done—at least, not for the past couple of years—so I cannot answer his point on that issue. However, it has certainly been accepted that there is universal jurisdiction under that Act, and other Acts as well; he also mentioned the Customs and Excise Management Act.
We should not put on one side the fact that offences brought to light in one jurisdiction may well have jurisdiction elsewhere. Nowadays, there are arrangements between countries and jurisdictions to agree where the best place to bring individuals to trial would be. That happens particularly through the operations of Eurojust, the European body that represents prosecutors from each of the member states. These issues will arise increasingly as international commerce, trade and travel grow.
The noble and learned Lords, Lord Fraser and Lord Cameron of Lochbroom, and I had an interest in the Lockerbie trial, where there was jurisdiction both in the United States and in Scotland. These situations are not unusual and prosecutors have dealt with them on the basis of agreement and consensus. I, of course, recognise the dangers that might flow from universal jurisdiction, but those have always been present. I say to the noble and learned Lord, Lord Fraser, that in relation to the poor granny in Wick—I am not entirely clear why he chose Wick—we are talking about an offence under the Terrorism Act. One presumes that the offence that he discussed exists to prevent car bombs from being set off; it is not simply a parking offence but rather an offence under the Terrorism Act.
One accepts that there may be occasions when jurisdictions disagree about where an accused person should stand trial. I hope that the arrangement that has existed hitherto, whereby the relevant jurisdictions have discussed these issues and reached agreement on them, will continue. I very much hope that the noble Lord will be able to say that when he replies.
I take issue with what the noble and learned Lord, Lord Fraser, said in relation to the possibility of the Lord Advocate becoming a civil servant. The Lord Advocate holds an ancient office recognised in the Scotland Act and is not only a Scottish Minister but head of the systems of prosecution. I do not think that it matters one whit what the politics of individual law officers are; it certainly should not matter. The discussion should concern the evidence and which trial location best serves the interests of justice. The interests of justice comprise a number of factors. For example, where is the evidence? Is it mostly in England or mostly in Scotland? Where was the effect of the offence felt? If a loss of life occurred in one jurisdiction or another, that might indicate which jurisdiction would be the best and most proper place for the person to be brought to trial. There may be issues in relation to the accused that affect consideration of where might be the best place for someone to face trial.
I sympathise with the points made by the noble Lord, Lord Wallace, but I do not believe that what he suggested is the right way to go about this. It seems to me that the arrangements that have been in place for a long time between the Attorney-General, the Lord Advocate and the Director of Public Prosecutions in Northern Ireland should continue. The sensitivities should be recognised on all sides. I very much hope that the noble Lord will be able to say that there will be full discussion and agreement between the relevant law officers before a decision is taken about where someone ought to be brought to justice.
We have difficulty with the amendments. I follow on very much from the noble and learned Lord, Lord Boyd, whom I hesitate to speak after, since his experience is so great. I draw attention to the evidence given in the second day of Commons Committee, when the Lord Advocate gave evidence. She made it clear that the current arrangements work extremely well and do not require any shoring up. There are regular discussions on these matters between the senior law officers in both countries and the question of universality, which is now interposed in the Bill, I think came at her suggestion. It seems to us that the changes should not be made and that the clause should be left as it stands.
I want to ask the Minister a question to help me to understand something. We start off with the premise that an offence has been committed in a particular place in the United Kingdom, as a result of which the police have taken action and have charged an individual, who, from that moment onwards, is at least initially committed to the care of the courts of that jurisdiction. I want to be clear at what point it is suggested that the words,
"proceedings for the offence", come into play. Is it at the point where an individual is committed for trial in England, Northern Ireland or Scotland? In Scotland, it would be on petition; I presume that it would be on indictment in either England or Northern Ireland, in the instance of the Director of Public Prosecutions. Perhaps the Minister could help me with that, because I have a slight difficulty for the moment on the question of universality of jurisdiction at the point when there are in fact some proceedings being taken that fall within the jurisdiction of a particular court.
This has been a very interesting debate between many people who know a great deal about Scottish law. First, the issue raised by the noble and learned Lord, Lord Fraser, about car parking relates to a car being parked for a car bomb or the like, as my noble and learned friend Lord Boyd said. I was passed a note by the Box saying that apparently the Explosive Substances Act 1883 does not provide UK-wide jurisdiction, but I certainly do not want to get into that battle when there seem to be differing views in all directions. Clearly, the issue relating to customs is there, but that does not include a legislative requirement for law officer consent working on some of those difficulties.
The principles of common law mean that, for a court to take jurisdiction over an offence, a substantial measure of the criminal activity must have taken place in that part of the United Kingdom. That common law rule has been established for sensible reasons and, in the vast majority of cases, it creates the right result in terms of the court being best placed to deal with the offences having jurisdiction. However, where there are cross-border situations, the rule might result in linked offences that happen in two different parts of the United Kingdom having to be tried in separate trials in different parts of the United Kingdom. That is obviously inefficient and a waste of resources. It is almost certainly less effective than if the cases could be tried by the same court, which is why the clause has been introduced.
Amendment No. 77 would make it a legal requirement for the Lord Advocate to consent to the transfer of cases from Scotland to another part of the UK for prosecution under the jurisdiction provided by this clause. Amendments Nos. 72 and 78 would require the written consent of the law officer for the jurisdiction in which the offence was committed before any proceedings could be transferred under the provisions of this clause.
The decision on whether to prosecute in one jurisdiction or another is properly a matter for the independent prosecuting authorities and will, of course, depend on the facts of each case. Where there is concurrent jurisdiction, investigators and prosecutors already liaise from the outset of the investigation to decide how best to proceed in the circumstances of the case. Cross-border crime occurs frequently and our prosecutors have a wealth of experience in handling cases on their merits in the overall public interest.
As the noble Baroness, Lady Hanham, mentioned, the Lord Advocate, Elish Angiolini, gave evidence at the Commons Committee stage about the excellent relationship between the offices of the law officers. That experience shows that she and the Attorney-General would engage immediately in discussions about the appropriate jurisdiction in which the offence should be tried. It was the Lord Advocate's clearly expressed view that she and the Attorney-General, as chief prosecutors acting in the public interest, will inevitably consult on the decision as to the most appropriate place for the prosecution to take place and that this practice, which is already in place, provides sufficient protection. I also understand that the Lord Advocate and the Attorney-General propose to articulate the general principles that will be relevant to such decisions when the legislation comes into force.
Decisions on how to pursue effective investigations are likely to be taken very early when evidence is being gathered. Knowledge of what has happened and where is likely to be swift-moving and not apt to be overtaken by bureaucratic requirements such as written consent or compliance. The decision on where an investigation should take place has to be left to the exercise of discretion by investigators and prosecutors in the interests of a successful overall investigation in the heat of what may be a major attack on the UK or wider.
I reiterate that this clause does not undermine the Scottish legal system. It does not weaken the constitutional independence of the Scottish legal system, change the role of the Lord Advocate or remove any powers from the devolved Administration. As the Lord Advocate made clear in the evidence session, this provision appears in the Bill at her request. The provision would be applied only in cases where terrorist activity took place in more than one UK jurisdiction, which occurs infrequently. We would not expect prosecutions to occur in a jurisdiction to which neither the offence nor the offenders were connected. On that basis, I ask that the amendment be withdrawn.
This useful debate has flagged up a number of important issues. There is a general acceptance, for the most part, of the merit of our universal jurisdiction; no one sought to challenge that and, indeed, no noble Lord or noble and learned Lord raised any question as to the undermining of the Scottish legal system or the robust independence of the Lord Advocate. That is not at issue.
Rather, in the exercise of the universal jurisdiction, a number of practical issues arise. The opposition Front Bench's argument was based on the fact that the Lord Advocate and the present Attorney-General have an excellent relationship—the Minister referred to that when he cited the evidence given by the Lord Advocate. In my view, that is always one of the weakest arguments to make. The next set of law officers may not have an excellent relationship. We cannot have a system of criminal law based on the fact that at a given time the Attorney-General gets on well with the Lord Advocate. It does not matter whether they are of different parties or the same party. I am always wary of leaving these matters to good chance.
This relates to the point made by the noble and learned Lord, Lord Fraser of Carmyllie. I share the view of the noble and learned Lord, Lord Boyd of Duncansby: heaven forbid that the Lord Advocate should ever be a senior civil servant. Even if there were to be a division of responsibilities between the head of the prosecution service in Scotland and whoever is the Scottish Executive's principal legal adviser, the historic, important and independent role of the Lord Advocate should continue to be filled by someone who recognises the importance of that role and who, therefore, would be willing, if circumstances demanded, to engage and negotiate with the Attorney-General or, indeed, the Director of Public Prosecutions for Northern Ireland on equal terms. It would not be, as the noble and learned Lord, Lord Fraser, suggested, a rollover.
The noble and learned Lord, Lord Cameron of Lochbroom, raised a practical issue when he asked when proceedings should start. At which point of the process are they to be triggered, because consequences would flow from that? We may pick this issue up in the next amendment, but the absence of any given point that would be established by a written agreement between law officers gives rise to uncertainty. It may not have happened yet, but some desperate people looking for a defence may well start legal challenges because of the uncertainty. There is a common ground in the Committee that we should try not to allow loopholes to emerge. If uncertainty gives rise to a loophole, I hope that the Government will look at that.
I shall return in the next group of amendments to what the Minister said about an agreement between the Lord Advocate and the Attorney-General on how this might operate in practice. That might also be an opportunity to take forward some of the other issues that have been raised but not yet answered. For the time being, I beg leave to withdraw the amendment.
moved Amendment No. 74:
Clause 40, page 28, line 24, at end insert—
"(3A) The Attorney General, the Lord Advocate and the Director of Public Prosecutions for Northern Ireland shall issue jointly, and from time to time revise, a code of practice in relation to the exercise of this section.
(3B) Any person making a determination of jurisdiction under this section is bound by the code in determining any general policy or principles by reference to which the person exercises the function.
(3C) The duty in subsection (3B) is subject to any other requirement affecting the exercise of the investigative or prosecutorial function.
(3D) When the Attorney General, the Lord Advocate and the Director of Public Prosecutions for Northern Ireland issue or revise a code of practice under this section, they shall prepare a draft code (or revised code).
(3E) The Attorney General, Lord Advocate and the Director of Public Prosecutions shall consult about the draft—
(a) persons appearing to them to be representative of persons exercising investigative or prosecutorial functions;(b) such other persons as they consider appropriate.
(3F) The draft code shall be laid before Parliament for approval by resolution of each House of Parliament and if approved the Attorney General, Lord Advocate and Director of Public Prosecutions shall issue the code (or revised code)."
The amendment relates to a draft code to be laid before Parliament—indeed, it seeks approval by a resolution of each House—which would be agreed between the respective law officers. It would be revised from time to time. The amendment does not seek to lay down specific criteria as to the circumstances in which a jurisdiction might be transferred, because that could open opportunities for unreasonable challenge. It picks up some of the points that have already been rehearsed and I shall not detain your Lordships further, other than to give an important example, which perhaps the Minister could address.
As the noble and learned Lord, Lord Boyd, indicated, such cases often involve multiple jurisdictions. For example, a multiparty conspiracy to explode a car bomb at Waverley Station in Edinburgh might involve perpetrators in Glasgow, Motherwell and Manchester. However, the explosives might be procured in Leeds and the ringleader might be in Lincoln. En route to Edinburgh, the car is intercepted on the M8 by police and the perpetrators explode the vehicle, resulting in serious injury to two police officers. Heaven forbid that it should ever happen, but it is the kind of scenario that we are dealing with in the Bill. Given that the explosives and perhaps the car were procured in England and the ringleader was in England, it might be thought that the sensible place to hold the trial would be in England. There is an agreement between the Lord Advocate and the Attorney-General that the proceedings should go ahead in England. When the case comes to trial, the Attorney-General accepts a plea or obtains a guilty verdict on conspiracy to murder or procurement of explosive substances, but has not heard a plea on the charge relating to the severe injury to the police officers. If she chose to drop the prosecution on that charge, there would be legitimate concern in Scotland because police officers had been injured. Yet the Attorney-General, perhaps in her view properly exercising her discretion, did not seek a prosecution. Would it be open to the Lord Advocate to prosecute in Scotland on that charge? I simply do not know the answer to that by looking at this clause. I hope that the Minister and other noble Lords agree that this is an important issue. It should not be left open but should perhaps be agreed in a protocol between the law officers.
I pick up a point that the Minister made in answering the previous debate. In a letter to me of
"to work with the Attorney General's officials to ensure that a protocol is prepared on how this will operate in practice"— in other words, the decision to transfer—
"and to be in place prior to the provisions coming into force".
If it is indeed the case that the law officers are preparing a protocol, it may be pushing it too far to say that it should be subject to parliamentary approval. However, it would be very useful and in the interests of everyone—not just those who are accused, who have a right to know under which system they are being prosecuted, but also, for example, if there is a decision not to proceed with a particular charge—to know what the agreement is between the law officers. Therefore, my plea is that, if a protocol is being prepared, it should at least be made public, even if it is not subject to parliamentary approval. Some assurance on that from the Minister would be very welcome. I beg to move.
I thank the noble Lord, Lord Wallace, for this amendment. It has certainly made me think about this issue a little more deeply. As I said, we have gone down this route very much because the Lord Advocate was keen that we should do so, and it makes absolute sense in terms of universal jurisdiction. It had been said that the general principles would be articulated with the Attorney-General and Lord Advocate, and, as I said in my letter, there has been mention of a protocol. Having thought about it, I believe it would be absolutely correct for a protocol to be seen by people, because there are technicalities that could cause problems and those little things can make quite a difference sometimes. If I may, I should like to go away and confirm when that is to be done. As I said, the Lord Advocate very much pushed for it to be done and I think that it makes sense to go down the route of a universal jurisdiction. I should prefer the amendment to be withdrawn at the moment on the basis that I will look at the issue of the protocol.
moved Amendments Nos. 75 and 76:
Clause 40, page 28, line 25, leave out "or (3)"
Clause 40, page 28, line 28, leave out "or (3)"
On Question, amendments agreed to.
[Amendments Nos. 77 and 78 not moved.]
Clause 40, as amended, agreed to.
Clause 41 agreed to.
Clause 42 [Sentences for offences with a terrorist connection: England and Wales]:
This amendment stands in my name and that of my noble friend Lord Thomas of Gresford. Clause 42 relates to sentences for offences with a terrorist connection in England and Wales. Under the amendment, the question of whether an offence had a terrorist connection would be a matter for the jury to determine rather than the judge. The impact of such a determination on the sentence would, however, remain a matter for the court.
As noble Lords will be aware, Clause 42 contains a provision aggravating certain offences if they have a terrorism connection. Schedule 3 lists the offences covered and includes common law offences, such as murder and manslaughter, as well as a range of statutory offences relating to explosives, hostage-taking and others. The conviction for any of these offences will now be accompanied by a requirement for the court to determine whether there is a terrorism connection. In making that determination, the court can hear evidence and must take into account any defence or prosecution representations which are relevant for the purposes of sentencing. If an offence has a terrorism connection, it must be treated as an aggravating factor for sentencing, and other legal consequences will follow from that.
There is no dispute on these Benches with the principle; namely, that a connection with terrorism should be seen as an aggravating factor in sentencing. However, we have a concern with regard to the manner in which the determination of a terrorism connection will be made. Clause 42(2) states:
"If ... it appears to the court that the offence has or may have a terrorist connection, the court must determine whether that is the case".
In other words, the determination will be a matter solely for the judge, as opposed to one of evidential consideration by the jury. I think that traditionally and historically matters of fact are determined by a jury, while matters of law are determined by a judge. To have such a determination made by the judge, as opposed to the jury, is a departure from the traditional criminal court procedure and one which has not, in our view, been justified to date. It is quite a serious matter to have an offence aggravated by terrorism; it is not something that would be done lightly. Therefore, it should be based on the facts and determined by a jury which has heard the facts.
Furthermore, a finding by the court that an offence had a terrorist connection could lead to the making of a notification order under a later part of the Bill. Notification requirements involve onerous obligations involving notification and restrictions on travel for those subject to them. Again, if one is going down the road of such onerous obligations potentially being put on someone, it is not unreasonable, in accord with our traditions, that these matters of fact should be determined by a jury. Against that background, I beg to move.
I have great sympathy for this amendment. As the noble Lord has just said, considerable consequences flow from a finding, whether by judge or jury, that an offence has a terrorist connection. If an offence is regarded and treated in law as an aggravated offence in the context of terrorism, that has enormously serious consequences, with potential sentences of 30 or more years. The principle that we have always followed is that matters of fact are for the jury, matters of law are for the judge and matters of sentencing are for the judge. This is essentially a matter of fact, and the jury will of course have heard all the evidence. It seems to me that the amendment raises a very important question and I look forward with great interest to hearing what the Government are minded to say in response.
I always have difficulty in intervening when my noble and learned friend has spoken, and I am always very hesitant when I have so many lawyers around me. However, I should like clarification on the clause. As I understand it, the court is the judge and jury, and in this case it will inevitably be a Crown Court or a High Court; we are not talking about a magistrates' court here.
In the magistrates' court, there is what is called a Newton hearing, when a specific aspect of evidence is tested. It is a completely separate hearing. As I read this clause, there is effectively a Newton hearing here. Subsection (3) states:
"For that purpose the court may hear evidence".
As it has been hearing evidence all day and has presumably come to a conclusion on one aspect, this looks to me like a completely separate hearing to decide whether there was a terrorism influence. It would presumably take the form of a Newton hearing. The judge could not be excluded from that and the jury would of course make the decision as in any other case. I am not certain what the objections are to this clause when I think that we have a separate procedure here carried out by the court, which seems a perfectly sensible way of going about it. My noble and learned friend has leapt up in support, so perhaps I am worrying slightly over this, but I might as well ask for the explanation.
There is a problem with regard to the procedural requirements that need to be met if this were to be decided by a jury. As my noble friend on the Front Bench said, the English procedure in respect of guilty pleas involves the possibility of a Newton-type trial in which there may be an investigation of the facts by a judge to decide the sentence when there is a difference between the accused on the one hand and the prosecution on the other on the content of the offence to which the accused has pled guilty. To some of us it is a rather anomalous procedure but it is well established and has been going for a long time. I suspect that that is what is envisaged here as the time at which that decision should be made.
If, on the other hand—I can see the importance of it—it is to be decided by a jury, procedural requirements will need to be met in relation to the formulation of the indictment so that the jury can have an opportunity to decide the issue.
The determination of a terrorist connection is part of the sentencing function that is traditionally a role for the judge in England and Wales. Indeed, judges currently make such decisions in sentencing when an offence is aggravated by virtue of motivation related to race, religion, disability or sexual orientation. Of course the courts—judges—already aggravate sentences for offences with a terrorist connection. These provisions merely formalise existing practice.
We did consider whether the determination should be made by the jury—in effect by creating a new category of terrorist aggravated offences as part of the consultation on the Bill. This included discussing the option with experienced prosecutors in this area. There are, however, practical issues in going down the jury route. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Contesting the terrorist element could therefore significantly lengthen terrorism trials which are already comparatively long and would divert the prosecution from its primary aim, which is to secure the conviction or free the person being tried.
I do not quite see how a terrorist trial could be lengthened by this procedure as the question would be established by definition that there was a connection with terrorism.
I understand that it would be the defence of the person being charged with terrorism that the action of the accused did not fall within the definition of terrorism. I understand that the defence would make that a separate issue and say that it did not think that it came within the definition of terrorism. That would add to the time before the start of the trial proper. That is how I understand it but I am sure the Box will correct me if I am wrong.
The jury will of course decide whether the defendant is guilty of the relevant offence. After that, it is entirely right and proper that the judge should make the determination as to a terrorist connection as part of his sentencing function—as indeed he decides any other aggravating or mitigating factor. Further, under our proposals—this is the point raised by the noble Baroness, Lady Hanham—where a person pleads guilty to an offence but disputes that it was connected to terrorism there would be a Newton hearing, which is when the judge hears evidence on the facts disputed between the prosecution and the defence when these affect the appropriate sentence in the case. If the jury were to be responsible for determining whether there was a terrorist connection, it would have to be summoned to make such a determination following a guilty plea. This would be an unnecessary and inappropriate procedure. Sentencing is, quite properly, a function for the judge. We therefore think that the amendment is unnecessary.
The purpose of Amendment No. 82 is to require a court considering a connection to terrorism to be "satisfied beyond reasonable doubt" that the offence has a terrorist connection. This is already the case; a court must determine the connection beyond reasonable doubt, which is the criminal standard of proof. This is the case for all such sentencing matters, including the requirement to increase sentences in Sections 145 and 146 of the Criminal Justice Act 2003 where the offence is aggravated by factors concerning race, religion, disability and sexual orientation. There is no provision in the Act to spell out that the standard is beyond reasonable doubt and similarly I do not believe that it needs to be spelt out in this Bill. It is already the case that the court will apply the criminal standard. The amendment is therefore unnecessary.
Perhaps I am being naïve but my interpretation of "the court" is a judge and jury. My noble and learned friend may leap up and down in agitation behind me over what I am saying but I do not understand that for "the court" you can read "judge". Equally, the amendment tabled by the noble Lord, Lord Wallace, inserts "jury", which is only part of the court as I see it.
We need to establish first what is meant by "the court". The Minister keeps talking about the judge and the noble Lord, Lord Wallace, talks about a jury. As I understand it, we have the composite in the clause—"the court". If the court is indeed the judge and jury, presumably it is a separate entity in Clause 42(3), which refers to
"that purpose"— which is the purpose of determining whether there is a terrorist element—
"the court may hear evidence".
I read that as a separate aspect of what is going on, and it takes me back to the Newton hearing, which again presumably would be done by the court—the judge and jury. We are back to the situation where the jury makes the decision on the facts and the judge gives the guidance.
We need to be really clear what we are talking about in terms of normal procedures and our understanding of the wording.
It is absolutely plain that Clause 42 deals with the sentencing part of the court procedure and the sentence is a matter for the judge, as the noble Lord has already said. My understanding of the Newton hearing system, to which reference has been made, is that the judge and not the jury decides questions of fact that are raised in the Newton hearing. A trial is not necessary apparently because the accused has pled guilty but there is a dispute between the accused and the Crown—the prosecutor—about what the offence involved to which he has pled guilty. That is somewhat illogical to my way of thinking, but as a matter of practice for long established in England and Wales, it is decided by the judge on evidence from both sides. I assume that the clause deals with that kind of hearing in relation to whether or not the offence was connected with terrorism.
The offences in Schedule 3 on the face of it are ordinary offences which do not include a reference to terrorism in their definition. The question of whether the circumstances were connected with terrorism is involved in the evidence as it emerges. The jury is not required to determine that; it is required to determine guilt or innocence of the offences charged.
The noble and learned Lord is absolutely right and put it far better than I could. I was going to say that the jury would determine innocence or guilt; the judge would determine the connection to terrorism as part of the sentencing; and in a Newton hearing, as I understand it, the person has already pleaded guilty, so exactly the procedure that the noble and learned Lord described is undertaken. That is how I understand it. For those reasons—judges have been doing this—we would not want to have a jury or to lose the provision, so I ask for the amendment to be withdrawn.
First, I apologise for the fact that I did not address Amendment No. 82 earlier and I fully acknowledge what the Minister said. It was intended to be a probing amendment, and I take his point that the standard of proof would already be satisfaction beyond reasonable doubt. I am grateful for his clarification.
It has been an interesting debate. The noble Baroness, Lady Hanham, put her finger on it when she asked what we mean by a court. When I tabled the amendment, I had the distinction in my mind between the judge and the jury. The sentencing function is very much for the judge. I was arguing about the basis on which the judge passes sentence. We have been asked to accept that if there is an aggravation by a connection to terrorism, that should be reflected in the sentence. The issue is how to re-establish whether there has been a connection to terrorism.
I hear the strength of the point made by the noble and learned Lord, Lord Mackay of Clashfern, echoing the noble Baroness, Lady Hanham, about the Newton hearings, but the clause makes no distinction between where an accused person has pleaded guilty and where a case has proceeded to trial after a not guilty plea. It was evident from the Minister's reply that he was dealing with situations both where there had been a full hearing on the evidence after a not guilty plea, leading to conviction, and where there had been a hearing after a guilty plea. I can see that there is a distinction between the two—perhaps, although I want to reflect on this, it may not be appropriate to have a jury where there had been a guilty plea—but that distinction is not made in the clause at the moment. If I am going to think about it again, perhaps the Minister may want to think whether greater clarification is needed with regard to those two separate issues.
I was equally confused, as was the noble and learned Lord, Lord Mayhew, about how what the Minister described as a terrorism trial would take time to establish that there was terrorism. I thought that that might be at the heart of the trial, especially if some of the charges involved statutory terrorism offences. Where a person has pleaded not guilty and, as a matter of fact—whether or not there is a connection to terrorism—it may be established that the person is guilty of murder, all the facts having been put before the court, surely the jury can make up its mind as to whether that murder had a connection to terrorism. Therefore, I am not wholly satisfied that the matter should be left to a judge when the jury has heard the case.
I hope that the Minister will reflect on the points that I made about guilty and not guilty pleas. I want to reflect on what has been said in the debate. In those circumstances, I beg leave to withdraw the amendment.
moved Amendment No. 83A:
After Clause 43, insert the following new Clause—
"Sentences for offences with a terrorist connection: armed forces
(1) This section applies where a service court is considering for the purposes of sentence the seriousness of a service offence as respects which the corresponding civil offence is an offence specified in Schedule 3.
(2) If having regard to the material before it for the purposes of sentencing it appears to the court that the offence has or may have a terrorist connection, the court must determine whether that is the case.
(3) For that purpose the court may hear evidence, and must take account of any representations made by the prosecution and the defence, as in the case of any other matter relevant for the purposes of sentence.
(4) If the court determines that the offence has a terrorist connection, the court—
(a) must treat that fact as an aggravating factor, and(b) must state in open court that the offence was so aggravated.
(5) This section has effect in relation only to offences committed on or after the day it comes into force."
The purpose of the amendments is twofold. First, they require a service court—the court martial, for example—to determine whether an offence under Armed Forces legislation which is equivalent to a criminal offence specified in Schedule 3 is connected to terrorism. Secondly, they make the notification requirements apply to someone dealt with by a service court in equivalent circumstances to those which will trigger the notification requirements in civilian courts.
We consider that prosecutions for terrorism and terrorist-related offences will rarely be brought in service courts, rather than civilian courts, against members of the Armed Forces and certain civilians who are subject to Armed Forces legislation when they are abroad—family members and contractors, for example—so had previously exempted service courts from a requirement to determine whether certain offences are connected to terrorism cases, and from the imposition of notification requirements.
However, on further reflection we believe that it is possible that service courts may hear such cases. Therefore, these amendments change the sentencing provisions in Clauses 42 to 44, which provide that a terrorist connection is an aggravating factor for sentencing purposes, to ensure that they apply to service courts in the same way as they will apply to civil courts.
The amendments also ensure that notification requirements provided for in Part 4 will be triggered where an offender is dealt with by a service court. I beg to move.
moved Amendments Nos. 84 and 85:
Clause 46, page 31, leave out lines 33 to 40 and insert—
"(3) This section applies to any ancillary offence (as defined in section (Meaning of "ancillary offence") of the Counter-Terrorism Act 2008) in relation to an offence listed in subsection (2)."
Clause 46, page 32, line 3, leave out "or (3)"
On Question, amendments agreed to.
Clause 46 introduces a new Section 23A into the Terrorism Act 2000, and extends the powers of the court to order the forfeiture of assets in the possession or under the control of the convicted person on conviction of certain terrorist offences, and offences with a terrorist connection.
Amendment No. 86 is offered in response to the report from the Delegated Powers and Regulatory Reform Committee. We are grateful to the Committee for their detailed report, and, in particular, for its assessment that the delegated powers in the Bill are appropriate. This was the one exception to that assessment and thus, in line with its recommendation, we have brought forward the amendment. It means that should the Secretary of State make an order amending the list of offences to which these provisions apply—the power that will be conferred by Section 23A(5)—its effects will apply only to offences committed after such an order comes into force. That will ensure that the provision will have no retrospective effect. I beg to move.
moved Amendment No. 86A:
Clause 51, page 36, line 35, at end insert—
"(3) Schedule (Notification requirements: application to service offences) provides for the application of this Part to service offences and related matters."
On Question, amendment agreed to.
Clause 51, as amended, agreed to.
Clause 52 [Offences to which this Part applies: terrorism offences]:
moved Amendments Nos. 87 to 88A:
Clause 52, page 37, line 27, leave out subsection (2) and insert—
"(2) This Part also applies to any ancillary offence in relation to an offence listed in subsection (1)."
Clause 52, page 37, line 35, leave out "or (2)"
Clause 52, page 37, line 41, leave out subsection (7) and insert—
"(7) Where an offence is removed from the list, a person subject to the notification requirements by reason of that offence being listed (and who is not otherwise subject to those requirements) ceases to be subject to them when the order comes into force."
On Question, amendments agreed to.
Clause 52, as amended, agreed to.
Clause 53 [Offences to which this Part applies: offences having a terrorist connection]:
The amendments seek to address a technical issue in the Bill. There are various references in Part 4, on the notification scheme, to a person being "dealt with" in respect of an offence. The amendments clarify what is meant by the phrase each time it is used, and do not alter the policy in the Bill.
As noble Lords will be aware, the notification requirements apply only when a person is sentenced to 12 months' imprisonment or more or, in certain circumstances, when a person is made subject to a hospital order. This is generally what is meant by "dealt with". However, the court's original sentence may be altered on appeal or otherwise, so the amendments make it clear that where, for example, an appeal court substitutes a sentence of less than 12 months for one that was originally 12 months or more, the notification requirements are to be treated as never having applied to that person.
Similarly, where the sentence is adjusted across the five-year threshold, which affects the period for which the notification requirements apply, the amendments ensure that the notification period is adjusted accordingly. As I say, there is no policy change in the amendments. They are purely technical, drafting clarifications. I beg to move.
moved Amendment No. 88D:
Clause 53, page 38, line 11, leave out subsection (3) and insert—
"(3) Where an order is made under section 44 removing an offence from the list in Schedule 3, a person subject to the notification requirements by reason of that offence being so listed (and who is not otherwise subject to those requirements) ceases to be subject to them when the order comes into force."
On Question, amendment agreed to.
Clause 53, as amended, agreed to.
Clause 54 negatived.
Clause 55 [Offences dealt with before commencement]:
The amendments address a minor technical problem with the current draft of the Bill; they do not alter the policy on notification requirements. There are two references to,
"released on licence, having served the whole or part of a sentence", in the Bill. However, a person may be on licence only after the custodial part of a sentence, not at the end of a sentence, as the period on licence forms part of the sentence. The amendments rectify this technical issue. I beg to move.
These are minor and technical amendments, which simply clarify references to types of sentences in Clause 56, on sentences triggering notification, and in Clause 64, on the period for which notification applies. They do not alter the policy on the notification requirements, but they will be helpful because they give certainty about which type of sentences will lead to the application of the notification requirements.
The amendments ensure that the provisions on notification requirements apply to young offenders who are sentenced to detention for life under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, and ensure that the correct references are specified in the definition of the phrase,
"an offence carrying a maximum term of imprisonment of 12 months or more".
I beg to move.
Amendments Nos. 89 to 92, in my name and that of my noble friend Lady Miller, deal with two issues: first, how we deal with juveniles and the insane; and, secondly, whether it is appropriate to use the notification procedure for those two classes of offenders, or whether there are more appropriate ways of dealing with them.
We accept that the simple fact that someone is young does not make them any less dangerous if they have a propensity to terrorism. We also accept that if someone is insane and has a propensity to terrorist offences, that might also render them extremely dangerous. However, there may be more appropriate regimes for dealing with these two classes of offenders than the notification process.
In the case of juveniles, one must hope that a young person who develops terrorist connections and is accused and convicted of terrorist offences is capable of rehabilitation and education, and has the opportunity not to pursue that course in their future life following any sentence that they might serve. It may be more difficult for rehabilitation to work in the case of an adult, but we have always based our legal system on a clear principle of rehabilitation of young offenders, particularly when they have idealism. The noble Lord, Lord West, and I know all about younger and younger people being groomed, and know that this idealism might be misplaced, particularly where they come under the influence of others, and might be inappropriately expressed in the form of support for terrorist activities. I in no way wish to trivialise the offence; I am merely trying to explain that young people may be more vulnerable than adults might be to certain kinds of exploitation. There may also be a coercive element where a young person is in contact with people who are conspiring to commit terrorist offences. This applies particularly to information communication technologies and other methods.
The Bill seeks to ensure that notification is applied to only the most serious terrorist-related matters by applying notification requirements to persons convicted of terrorist-related offences only if they have received a trigger sentence. However, we are concerned that this is not a fail-safe way to gauge the gravity of a terrorist-related offence and that it precludes a proper individual assessment of the risks posed by the person on release. In a case involving a young person, the trigger sentence will be one year or more in a juvenile justice centre or young offender centre. It is possible to envisage a young person aged 15 with a history of non-terrorist related convictions having served one or more custodial sentences. While not wishing to detract from the serious nature of the terrorist-related offences, it is possible that if this young person is convicted of encouraging terrorism, he may receive a custodial term of one year or more, not due only to the terrorist nature of the offence, but also because of any prior criminal record. On release, the young person is subject to notification requirements for 10 years without any assessment of risk or any opportunity in the intervening period to appeal, to review or to discharge of the notification requirements.
We further argue that notification for children is not in keeping with the ethos and principles of reintegration in the UN Convention on the Rights of the Child. Paragraph 15 of the committee's General Comment No. 10 states:
"The Committee reminds State Parties that, pursuant to Article 40(1) CRC, reintegration requires that no actions may be taken that can hamper the child's full participation in his/her community, such as stigmatisation, social isolation".
We believe that those requirements as they stand would stigmatise that very young person.
Furthermore, the UN Committee on the Rights of the Child, in its report on the United Kingdom, published only a few days ago, recommended that the Government review the application of this Bill to children suspected of or charged with terrorism offences, including notification requirements. I look forward to hearing the Minister's observation. I beg to move.
I have considerable sympathy with the points raised by the noble Baroness, Lady Falkner. However, we believe that notification requirements should apply to all terrorist offenders provided they meet the necessary conditions as to how they are dealt with by the courts. By doing this, we are enabling the police to properly and effectively manage the risk terrorist offenders pose.
Amendments Nos. 89, 91 and 95 seek to remove the application across the United Kingdom for those who were under 18. Amendments Nos. 90, 92 and 96 aim to disapply the notification requirements in relation to those found not guilty by reason of insanity, or found to have been under a disability and to have done the act charged, and made subject to a hospital order.
We must remember that young terrorist offenders, who will have been convicted and sentenced for serious terrorist offences, could pose the same risk to the community on their release from custody as older terrorist offenders sentenced to imprisonment. It is right that notification requirements apply to these individuals to manage that risk. It is also reasonable for notification requirements to apply to those who were found not guilty due to insanity or were found to be under a disability at the time of trial because such persons will have been found to have carried out the act constituting the offence, albeit lacking the mental element by virtue of their condition, so they could still pose a risk to the community on their release. These are the same provisions as apply in the sex offender notification scheme.
In addition, it should be remembered that the notification provisions impose minimal requirements on offenders—merely notifying the fact that they have moved address, for example, to the police and keeping that sort of information up to date. It is not disproportionate to require convicted terrorists, even those who were under the age of 18 or with a mental disability at the time of the offence, to comply with these minimal requirements. For that reason, I resist these amendments, although I have considerable sympathy, particularly with the youngsters. I might want to just think a little about that—not for those aged 18, but perhaps another age group.
Amendment No. 104 would remove Clause 64(5). Subsection (5) sets out what happens to a person who has been found to be under a disability and to have done the act charged against them in respect of a terrorism or terrorism-related offence if they are subsequently tried for the offence. That might happen where the person recovers from their mental disorder and the Secretary of State decides that they should face prosecution for the offence. If they are acquitted, the notification requirements would no longer apply. If they are convicted, their notification requirements apply anew from the date of their conviction. Removing the subsection would mean that notification requirements would continue to apply to someone who has been found to be under a disability and to have done the act charged against them even if they were subsequently acquitted of the offence. On this basis, I ask the noble Baroness to withdraw her amendment.
I am only mildly encouraged by the Minister's reply. I am saddened, particularly, that in his response he has not disaggregated the qualifications for juvenile offenders/children versus those who are insane or mentally diminished. Were he prepared to go some way in the case of one group, I would have been further encouraged, particularly if he were to go further in the way of children. However, we will consider his response. Should he wish to discuss this further, we are always here at his disposal. On that basis, I beg leave to withdraw the amendment.
moved Amendments Nos. 93 and 94:
Clause 56, page 40, line 34, after "indeterminate" insert "or extended"
Clause 56, page 40, line 34, leave out "13(3) and (4)" and insert "13 or 14"
On Question, amendments agreed to.
[Amendments Nos. 95 and 96 not moved.]
moved Amendments Nos. 97 and 97A:
Clause 56, page 40, line 48, leave out "under a disability" and insert "unfit to be tried"
Clause 56, page 41, line 1, leave out subsection (5) and insert—
"(5) The references in this section to an offence carrying a maximum term of imprisonment of 12 months or more—
(a) are to an offence carrying such a maximum term in the case of a person who has attained the age of 21 (18 in relation to England and Wales), and(b) include an offence carrying in the case of such a person a maximum term of life imprisonment and an offence for which in the case of such a person the sentence is fixed by law as life imprisonment.
(6) In relation to any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (c.43) subsection (5)(a) above has effect with the omission of the words "(18 in relation to England and Wales)"."
On Question, amendments agreed to.
Clause 56, as amended, agreed to.
Clause 57 agreed to.
Clause 58 [Initial notification]:
These amendments seek to resolve a technical problem with the notification provisions in the Bill. At present, the Bill does not address the issue of those subject to the notification requirements who are subject to immigration detention. The policy is that where a person is in detention, for example serving a prison sentence or a hospital order, the notification requirements are suspended. Clearly, the person cannot, and should not, leave prison to report to the police. Immigration detention is another form of detention, not currently mentioned in the Bill, which needs to be added to the list of types of detention during which the notification requirements will be suspended.
These amendments would add a reference to immigration detention in each instance where these other forms of detention are mentioned in the context of the notification scheme. These are where the periods for the initial notification, notification of change or periodic notification are suspended when the person is in detention, and the notification period—that is, the length of time the person is subject to the notification requirements—is suspended for such periods. The amendments also require a person to notify the police on their release from immigration detention under Clause 59(4), just as a person is required to notify them on their release from other forms of detention. I beg to move.
I have no objection to these technical amendments, which seem perfectly sensible. However, I should like to mildly observe that very nearly half the amendments—probably more than that today—are government amendments to their own legislation. It seems to me that either this legislation has been produced in the most slapdash way, which is not unusual for terrorist legislation, or they have arisen from—I hope that this is the case—discussions in the other place. This is a remarkable number of government amendments on one day, without the Minister referring to the fact that this is an unusual or exceptional situation. He might afford an apology to the Committee.
I am a little anxious about the question of the notification requirement again coming into effect when a person is released from a form of detention. Is there any provision to remind him that this notification obligation will arise, because if he has been held in detention for some time, it may have originated a good while previously. Moreover, he might have other things on his mind. It might be wise to ensure that someone does not fall into neglect of a notification requirement through forgetfulness.
The noble and learned Lord makes a good point and I will make sure that that is the case; it could easily happen.
In response to the noble Baroness, Lady Hanham, I can only say mea culpa. I believe that there are too many amendments. It is not very clever and I will be talking to the team about it. This is quite a lot to throw at people, and indeed it is quite a lot to go through. It is not good and I will look closely at it.
moved Amendments Nos. 97C and 97D:
Clause 58, page 42, line 12, leave out "has been released" and insert "is"
Clause 58, page 42, line 12, leave out "whole or" and insert "custodial"
On Question, amendments agreed to.
Clause 58, as amended, agreed to.
Clause 59 [Notification of changes]:
These are amendments to the notification scheme in Part 4. They make provision in relation to circumstances where someone subject to the notification requirements is abroad, voluntarily on holiday or on business for example, or following a removal, such as having been deported or extradited from the United Kingdom.
Under the Bill, a person subject to the notification requirements who is abroad when they are due to notify technically commits an offence if they fail to return to the UK to notify any changes to notified information or to make their annual re-notification. We do not think this is appropriate; these amendments rectify that by effectively suspending the requirement to notify while a person subject to the requirements is abroad. They would then be required to notify their details, if notification was due, within three days of their return to the UK. The amendments also tighten up the rules so that a person who voluntarily goes abroad must notify of any details due to be notified before they go, even if this shortens the normal three-day period a person has to notify such information.
The new clause suspends the requirement for a person to make an initial notification where a person is removed from the UK within three days of the end of their detention. Where a person is deported immediately following their period in custody for the terrorism offence or immigration detention, they will not have to make their initial notification, but where a person leaves the country voluntarily because, for example, they want to go to France immediately they come out of prison, they will have to make their initial notification before they go, even if they go less than three days after their release. Such a person will also need to inform the police of the details of their intended travel plans because of the provisions in Clause 63 which allow the Secretary of State to require those subject to the notification requirements to provide such information. I beg to move.
These amendments simply seek to improve the drafting of Clause 60. They do not change the policy or the operational use of notification requirements. I beg to move.
moved Amendments Nos. 97K and 97L:
Clause 60, page 43, line 20, leave out "subsection (1)" and insert "that subsection"
Clause 60, page 43, line 24, at end insert ", or
(d) detained under the Immigration Acts."
On Question, amendments agreed to.
Clause 60, as amended, agreed to.
Clause 61 [Method of notification and related matters]:
moved Amendments Nos. 97N and 97P:
Clause 62, page 44, line 17, leave out from "court" to end of line 19 and insert "of trial was situated."
Clause 62, page 44, line 19, at end insert—
"(1A) In subsection (1)(c) "the court of trial" means—
(a) the court by or before which the conviction or finding was made by virtue of which the notification requirements apply to the person, or(b) if that conviction or finding was one substituted on an appeal or reference, the court by or before which the proceedings were taken from which the appeal or reference was brought."
On Question, amendments agreed to.
Clause 62, as amended, agreed to.
Clause 63 agreed to.
Clause 64 [Period for which notification requirements apply]:
These amendments are also in the name of my noble friend Lady Miller. Before I go to the specifics of this clause—and I am having a second bite of the cherry—I want to say a few words by way of background briefing to these amendments. The noble Lord knows that situations will arise where the court and indeed the authorities accept that a person convicted of a serious terrorist offence in the past has genuinely and permanently renounced violence. A notable feature of the Northern Ireland peace process has been the involvement of those previously associated with sectarian violence. The notification requirements are not intended to be a punishment. If they were, they would be in breach of the bar on retrospective punishment contained in Article 7 of the Human Rights Act. Instead, they are intended to allow details of those convicted of terrorist offences to be kept for public safety purposes. It would serve no purpose and would be a questionable use of police resources not to allow scope within the Bill to review the notification requirements for those who, at some future assessment, are found to present no risk to public safety.
As the Bill is constructed, there is an indefinite period for serious cases and a 10-year period for less serious ones. The amendments would effectively put break clauses in those periods every five years. The initial notification period would be five years, and in the case of serious offences it could be renewed on a five-yearly basis to the point of being an indefinite notification. For less serious offences the period would be five years in the first instance but could be renewed to apply for a further five years, thereby making the period of 10 years that the Government are requesting in the Bill. In effect, we are asking, not to change the outcome, but for reviews at certain points to see whether we need this fairly onerous and bureaucratic process to achieve an end that may not be necessary.
The most important thing is to allow the courts to consider the individual's circumstances, the environment in which the order is made, and to ensure that the notification orders are still appropriate. They may be inappropriate because the person has changed their views and conduct entirely, and can demonstrate that to the satisfaction of the courts—so the bar remains the same in terms of demonstrating that. People who have engaged in terrorist activities can sometimes make quite substantial changes to their lifestyles to the point where they become part of society here in the UK and abroad. Those would be cases where I assume it would be inappropriate to retain a notification procedure.
The circumstances of the individual and their propensity to be a danger to the public may well change. It is appropriate for a court to consider all the matters before it and to decide in a quinquennial review whether the notification procedure is still required. If necessary, the courts can renew it; if not, onerous requirements on the individual will be lifted at the point where they cease to have an effect in protecting the public rather than being a burden on the individual. That is a punitive burden rather than one for the wider good. On that basis, I hope the Minister will consider reviewing the requirement and accept the amendments. I beg to move.
We have some sympathy with the amendments. There are many objections to people being put on a register forever without any kind of break time or reconsideration. I accept that it will be for serious charges and offences, but there will be gradations, and it seems only sensible that the registration period should be looked at again.
I have some sympathy with the amendment but the thresholds for the periods of application are set at a level proportionate to the risk posed by convicted terrorists on their release into the community. Where the individual is sentenced for five years or more for a terrorism or terrorism-related offence then, given the evident seriousness of the offence, an indefinite notification period is appropriate. Where a person is sentenced to between one and five years, a period of 10 years is appropriate.
Amendments Nos. 101 and 103 would give the court discretion as to whether the notification requirements should continue to apply beyond the five-year period proposed in the previous amendment. They would allow the notification requirements to be renewed by a court if it considered it necessary for protecting members of the public from the risk of terrorism. However, it is not clear to us on what basis an assessment would be conducted of whether the offender is considered to present a continued terrorist risk to the public. It would involve difficult decisions. The fact that a person has not reoffended is not sufficient to establish the absence of such a risk.
It must be remembered that the notification requirement will apply only to convicted terrorists—that is, those who have been involved in supporting, organising or plotting the most serious of crimes, where often the ultimate purpose is to terrorise and harm large numbers of the public. It is right that the police should have the tools to help monitor those who have been involved in such crimes.
Secondly—this is important—the notification requirements are not onerous; they do not stop the person from doing anything. All they require them to do is to provide the police with information such as where they live, where they are staying for periods if they are not at their home address, if they change their name and if they intend to go overseas. That is all that is required and represents a proportionate interference with a person's right to a private life given the serious crimes in which they have been involved; they do not stop the person from doing anything.
The notification requirements we are proposing are less onerous than those applied to sex offenders. Terrorism is surely as serious in many ways—if not more so—as the sexual offending that triggers sex offender notification. So, although I have some sympathy with the amendment—I like to think that people can look at something and see whether they can shorten it—in this case we should stay as we are. I ask the noble Baroness to withdraw the amendment.
I am disappointed with the Minister's reply for a number of reasons. First, he keeps reminding us that the offences would be serious ones and that is why it is necessary to have an indefinite requirement to notify the authorities. Of course, the sum of the measures in the amendments is not necessarily to reduce the term for which the person would be required to notify the authorities. We are seeking to put in place a periodic review so that it can be seen whether or not the person still posed a risk. In the cases I outlined and the examples I gave, the net effect for the different tiers of offences would still be exactly what the Government want in the legislation. But the amendment would provide an opportunity to decide that public safety was no longer threatened at some point in the person's life.
There is another reason why I am disappointed. I do not go in for cultural relativism and, as noble Lords will remember from Second Reading, when I reassured the House on this matter, I do not go in for special pleading for communities or religious groups, particularly not those that I belong to. However, the repetition that we have had throughout the course of the Bill, comparing terrorist offences, particularly in the area of notification, to sex offences, sex offenders' registers and so on is unhelpful. The Minister knows the community I am talking about extremely well—I am full of admiration for his knowledge in that regard—and he knows that for this particular religious group there is enormous stigma attached to being associated with or compared in any way to people who might be on a sex offenders' register. Perhaps we might move away from those kinds of analogies.
The requirements may not be onerous but they can affect periods of a person's life, particularly when they last decades. We know from demographics how long people live and we know from the profiles that we have built up of terrorist offenders that, on the whole, they tend to be extremely young. So we are talking of someone who may well still be subject to notification requirements some 60 or 70 years after the terrorist act was committed. Surely it would not be sensible so much later—if only because of the cost and bureaucracy—to still ask that person to notify the authorities of when he is going to leave the UK borders to go on a channel ferry, on the Eurostar to France, or to Ireland.
I am trying to inject a degree of pragmatism while recognising that people change, which is the whole basis of our belief in rehabilitation. On that basis I feel a little frustrated.
I am moved and my view has shifted as a result of the noble Baroness's words. I will take this away and look at what pragmatically can be done. There is a real difficulty in making these assessments at certain stages but there should be some break points. If I take this away and look at it, it is to be hoped that that will meet the requirement.
After listening to the noble Baroness, perhaps I might make a suggestion. Her basic idea is that a person may have changed fundamentally—as happened, for example, in Northern Ireland. One way of dealing with that would be for the person who is the subject of a notification requirement to be able to apply to the court to have it lifted on satisfying the court that there is no longer any danger. Something of that kind might meet the point rather than having a quinquennial review. Different people may not be affected at all during the five years whereas an individual may have a good case. It would limit the amount of bureaucracy required by a quinquennial review.
I thank the noble and learned Lord for his suggestion. I shall look at it as a possibility.
Sometimes it is advantageous to have fewer people in the Committee because we can shift positions and reach a consensus more easily when we are lonelier. I thank the noble and learned Lord for his interesting suggestion. I am extremely grateful to the Minister for his emollience in this matter. I look forward to working with him to see whether we can get anywhere. On that basis, I beg leave to withdraw the amendment.
moved Amendments Nos. 98A to 100:
Clause 64, page 45, line 11, after "detention" insert "for life or"
Clause 64, page 45, line 35, at end insert—
"(iia) an indeterminate custodial sentence under Article 13 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1),(iib) an extended custodial sentence under Article 14 of that Order for a term of 5 years or more,"
Clause 64, page 45, line 41, leave out from "Order" to end of line 44
On Question, amendments agreed to.
[Amendments Nos. 101 to 104 not moved.]
moved Amendments Nos. 104C to 104E:
Clause 65, page 46, line 44, after "Kingdom)," insert "or section (Notification on return after absence from UK) (notification on return after absence from UK),"
Clause 65, page 47, line 18, after "Kingdom)," insert "or section (Notification on return after absence from UK) (notification on return after absence from UK),"
On Question, amendments agreed to.
Clause 65, as amended, agreed to.
moved Amendments Nos. 104F and 104G:
After Clause 65, insert the following new Clause—
"Effect of absence abroad
(1) If a person to whom the notification requirements apply is absent from the United Kingdom for any period the following provisions apply.
(2) During the period of absence the period for which the notification requirements apply continues to run.
(3) The period of absence does not affect the obligation under section 58 (initial notification).
This is subject to subsection (4).
(4) Section 58 does not apply if—
(a) the period of absence begins before the end of the period within which notification must be made under that section, and(b) the person's absence results from the person's removal from the United Kingdom.
(5) Section 59 (notification of changes)—
(a) applies in relation to an event that occurs before the period of absence, but(b) does not apply in relation to an event that occurs during the period of absence.
Paragraph (a) is subject to subsection (6).
(6) Section 59 does not apply in relation to an event that occurs before the period of absence if—
(a) the period of absence begins before the end of the period within which notification must be made under that section, and(b) the person's absence results from the person's removal from the United Kingdom.
(7) Section 60 (periodic re-notification) does not apply if the period referred to in subsection (1) of that section ends during the period of absence.
(8) Section 64(7) (disregard of period of custody etc) applies in relation to the period of absence as if it referred to any period when the person was—
(a) remanded in or committed to custody by an order of a court outside the United Kingdom,(b) serving a sentence of imprisonment or detention imposed by such a court,(c) detained in a hospital pursuant to an order of such a court that is equivalent to a hospital order, or(d) subject to a form of detention outside the United Kingdom that is equivalent to detention under the Immigration Acts.
(9) References in this section and section (Notification on return after absence from the United Kingdom) to a person's removal from the United Kingdom include—
(a) the person's removal from the United Kingdom in accordance with the Immigration Acts,(b) the person's extradition from the United Kingdom, or(c) the person's transfer from the United Kingdom to another country pursuant to a warrant under section 1 of the Repatriation of Prisoners Act 1984 (c. 47)."
After Clause 65, insert the following new Clause—
"Notification on return after absence from UK
(1) This section applies if, before the end of the period for which the notification requirements apply, a person to whom the requirements apply returns to the United Kingdom after a period of absence and—
(a) the person was not required to make a notification under section 58 (initial notification),(b) there has been a change to any of the information last notified to the police in accordance with—(i) section 58,(ii) section 59 (notification of changes),(iii) section 60 (periodic re-notification), or(iv) this section, or(c) the period referred to in section 60(1) (period after which re-notification required) ended during the period of absence.
(2) The person must notify or (as the case may be) re-notify to the police the information mentioned in section 58(2) within the period of three days beginning with the day of return.
(3) In determining the period within which notification is to be made under this section, there shall be disregarded any time when the person is—
(a) remanded in or committed to custody by an order of a court,(b) serving a sentence of imprisonment or detention,(c) detained in a hospital, or(d) detained under the Immigration Acts.
(4) This section does not apply if—
(a) the person subsequently leaves the United Kingdom,(b) the period of absence begins before the end of the period within which notification must be made under this section, and(c) the person's absence results from the person's removal from the United Kingdom.
(5) The obligation under this section does not affect any obligation to notify information under section 63(3) (regulations requiring notification of return etc)."
On Question, amendments agreed to.
Clause 66 agreed to.
Schedule 5 [Notification orders]:
moved Amendment No. 105:
Schedule 5, page 85, line 43, at end insert ", and
(c) the court exercising jurisdiction under that law has not, in respect of the corresponding foreign offence, relied on evidence or information obtained through torture, duress or other means that would render such evidence or information inadmissible in a court in the United Kingdom."
In speaking to this amendment, I speak also on behalf of my noble friend Lady Miller. The purpose of this amendment is to enable the Minister to give assurances in respect of the schedule and conditions for making a notification order concerning an offence that is tried under law enforced in a country other than the United Kingdom. All we are seeking to do is to insert some additional safeguards. We believe that the spirit of our treaty obligations requires us not to make such an order in respect of an offence that was tried using evidence that would be inadmissible in this country by reason of being obtained under duress or by torture.
We think that there is an obligation in any country with which we have dealings, and under this provision within the Council of Europe or the European Union, but we would like an assurance that that will be the case in any jurisdiction in the world. We do not want people who have been tortured in, for example, Uzbekistan or, indeed, in Pakistan, and found guilty of an offence using evidence obtained by torture to find themselves subject to further penalties, even of this kind, in this country as a consequence. I look forward to the Minister's reply. I beg to move.
My Lords, I have considerable sympathy for this amendment and the reasons why it has been tabled. This issue concerning notification orders arose in Committee in the other place, and Tony McNulty agreed to consider the possible ways forward. Officials have since been looking at this issue, but I am afraid that we are still working on the final drafting of the amendment that we will be bringing forward as the solution. However, it will be ready for Report.
The issue, put quite simply, is this. The notification orders provided for in Schedule 5 enable those convicted of terrorist offences overseas to be made subject to the terrorist notification requirements if they come to the UK. This might cover, for example, a British citizen who has been convicted of a terrorism offence overseas, who has served his sentence overseas and who is then deported to the UK when he is released from prison. It might also cover an EU national who has been convicted of a terrorism offence in another EU country who decides to come and live in Britain. It is clear that we would want such people to have to notify their personal details to the police, just as we would someone who is convicted of a terrorist offence in this country.
The police would apply to the court for a notification order. Since the notification requirements apply automatically to someone convicted of terrorist offences in this country—we have already discussed the reasons for that—the court would have to make a notification order provided certain tests are met. The main test is that the offence for which the person has been convicted overseas is equivalent to one that would trigger notification in this country.
The issue that arose in the other place was that the provisions as drafted could mean that a court would be required to make an order even if the overseas conviction was based on torture evidence. We acknowledge that that would not be right, and it is not our intention that an order be made in such circumstances. We therefore all start from the same place on this issue. We believe that notification orders will be useful, but we do not want them to be based on an overseas conviction that was obtained on the basis of evidence obtained through torture.
The problem with the amendment is that it goes too wide. It covers not only convictions based on torture evidence, but also other evidence obtained by any means that would render it inadmissible in a court in the UK. The reference to "other means" is too uncertain and imprecise in its scope. We accept that there may be cases other than those involving torture evidence where the foreign trial was so unfair that it would not be appropriate for a notification order to be imposed on the individual, but we do not believe that this amendment has got it quite right in drafting terms.
We accept absolutely that we need to find a way of ensuring that notification orders are never made on the basis of convictions overseas that are likely to have involved torture. However, we need to do that in a way that does not undermine the fundamental nature of the terrorist notification regime and does not impose completely impractical obligations on the courts or create huge resource issues.
My officials are still working on an answer to these issues today, but I give the noble Baroness a commitment that I will consider this very carefully before Report with a view to coming back with an appropriate government amendment that will remove the possibility that a notification order could be made on the basis of torture evidence. I hope with that commitment the noble Baroness will withdraw her amendment.
The evening is becoming more and more satisfactory as we progress. I heard what the Minister said about the wide interpretation. If I were a lawyer, I would no doubt have seen the red lights myself. I am extremely pleased to hear that we will be returning to this. Might I suggest to him that when his legal counsel has drafted a revised amendment, he might wish to send us an explanatory note with examples of where this might apply? I beg leave to withdraw the amendment.
moved Amendments Nos. 105A and 105B:
Schedule 5, page 87, line 22, leave out from beginning to end of line 26 and insert—
"Adaptation of provisions of this Part in relation to foreign proceedings
11 The provisions of this Part have effect with the following adaptations in relation to foreign proceedings and cases where the notification requirements apply because a notification order has been made—
(a) in section (References to a person being "dealt with" for an offence)(1) (references to dealing with an offence) for "being sentenced, or made subject to a hospital order" substitute "being made subject by the foreign court to a sentence or order within paragraph 3(2)(a) or (b) of Schedule 5";(b) in section (References to a person being "dealt with" for an offence)(2) (references to time when person dealt with for an offence) for paragraphs (a) to (c) substitute "by the foreign court of first instance";"
Schedule 5, page 87, line 30, leave out from "reference" to "shall" in line 32 and insert "in subsection (1)(c) to the court of trial"
On Question, amendments agreed to.
Schedule 5, as amended, agreed to.
On Question, Whether Clause 67 shall stand part of the Bill?
I shall speak briefly on this to test foreign travel restriction orders a little further. Restricting travel is a serious matter. I presume that these orders would apply to people who have been released from prison and are still under notification as part of the notification procedures. I am a bit worried about paragraph 6(2) of Schedule 6, which states:
"The order must only impose such prohibitions as are necessary for the purpose of preventing the person from taking part in terrorism activity outside the United Kingdom".
If we know that someone is going to take part in terrorist activity outside the United Kingdom, would it not be a requirement that we did rather more than place travel restrictions on him? It seems an unusual position. There must be other reasons, of course, for travel restrictions to be put on. I presume these people are still under the eye of the police. Passports are often removed from people prior to charge while they are on remand, but this is post that, as I understand it. If it is while they are on remand, that is a different matter. Are these people subject to notification? If they are, then that is post-sentence. If they are still considered likely to go abroad to carry out terrorist activities, is that really all we are going to do?
The individual would be subject to a notification requirement. That means, as the noble Baroness says, that they would have been convicted of a terrorism or terrorism-related offence and sentenced to 12 months or more. It would not be possible to apply for an order under these provisions for those who have not been convicted of an offence, even if the police had good reason to believe that they intended to travel overseas for a terrorist purpose. We are not able to do that, unfortunately. Secondly, the person must have acted following being dealt with for the offence that led to the notification requirements being imposed. The order can specify only prohibitions on travel that are necessary for preventing the person from taking part in terrorist activities; they are not, and cannot be used as, an additional punishment. We believe that this is a helpful tool. We are unable to do more at the moment; therefore, we would like Clause 67 to stand part of the Bill.
Can we go back to this question of believing? Presumably, evidence would have to be given to the magistrates' court that will impose this travel restriction. The evidence would have to be just a surmise that if the individual went to, say, Abu Dhabi, they intended to go on to another country where they might go to a madrassah to learn a bit more about terrorism. Will the restriction be imposed on the basis of suspicion that that might happen because they had been convicted of a terrorism offence? This is a very strange clause. Are we saying that the fact that police have a suspicion that people might go abroad to carry out terrorist activities is the only reason for restricting their travel? I can imagine a huge number of other reasons even after they have finished their sentence, but that seems to be the only reason given in this clause.
There is an issue that I am not sure the noble Lord has dealt with concerning people who hold dual nationality. Some 400,000 British citizens a year travel to Pakistan. Many of them hold dual nationality. Were they to wish to circumvent these restrictions, how practical would the restrictions be? They could simply book their ticket, travel and re-enter under their other passport, so these restrictions would be impractical in real terms.
It is difficult for us to keep track of people and stop them moving but, as we move towards the e-borders, with PNR data and better ways to check people out and in, we will be able to have much tighter control. As regards people going abroad, the noble Baroness, Lady Hanham, put her finger on one particular point. There are a number of people whom I would love to be able to stop in some way but there is no way in law to do that. Because these are civil rules of evidence, we can use hearsay evidence to stop these people travelling abroad. I would much rather stop some other people, but we must look at how to do that within our legal system. To enable us to capture those people, I would prefer Clause 67 to stand part of the Bill.
moved Amendment No. 105C:
After Clause 67, insert the following new Clause—
"Application of Part to service offences and related matters
Schedule (Notification requirements: application to service offences) makes provision for the application of this Part to service offences and related matters."
On Question, amendment agreed to.
Schedule 6 [Foreign travel restriction orders]:
I hope that this is the last one for tonight, after the comments of the noble Baroness, Lady Hanham. These are technical amendments on the provisions for foreign travel restriction orders. Amendment No. 105D seeks to correct a reference in Schedule 6. As it stands, paragraph 7(3) refers to a foreign travel order, when it should be a foreign travel restriction order. The amendment corrects this oversight.
Amendment No. 105E addresses another technical issue in Schedule 6 relating to foreign travel restriction orders. When a person is subject to such an order, it should be an offence if he does anything that the order prohibits him from doing—namely, travelling to a particular country. Alternatively, if he fails to comply with the requirement imposed by the order—namely, where a person is subject to a full travel ban—he will be required to surrender his passport. The schedule as drafted does not include the second of these offences and the amendment corrects this. I beg to move.
moved Amendment No. 105E:
Schedule 6, page 92, line 18, leave out from "excuse" to end of line 19 and insert "—
(a) does anything they are prohibited from doing by a foreign travel restriction order, or(b) fails to comply with a requirement imposed on them by such an order."
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
moved Amendment No. 105F:
After Schedule 6, insert the following new Schedule—
"Notification requirements: application to services offencesService offences to which this Part applies: terrorism offences
1 This Part applies to a service offence as respects which the corresponding civil offence is an offence within section 52(1) or (2) (offences to which this Part applies: terrorism offences).
Service offences to which this Part applies: offences having a terrorist connection
2 (1) This Part applies to a service offence as to which the service court dealing with the offence has determined in accordance with section (Sentences for offences with a terrorist connection: armed forces) that the offence has a terrorist connection.
(2) A person to whom the notification requirements apply by virtue of such a determination may appeal against it to the same court, and subject to the same conditions, as an appeal against sentence.
(3) If the determination is set aside on appeal, the notification requirements are treated as never having applied to that person in respect of the offence.
Service offences dealt with before commencement
3 (1) This Part applies to a person dealt with for a service offence before the commencement of this Part only if—
(a) the corresponding civil offence is on the commencement of this Part within section 52(1) or (2) (offences to which this Part applies: terrorism offences), and(b) immediately before the commencement of this Part the person—(i) is imprisoned or detained in pursuance of the sentence or other order made in respect of the offence,(ii) would be so imprisoned or detained but for being unlawfully at large, absent without leave, on temporary leave or leave of absence, or released from custody (or on bail) pending an appeal, or(iii) is on licence having served the custodial part of a sentence of imprisonment in respect of the offence.
(2) In relation to a person dealt with for a service offence before the commencement of this Part, any reference in this Schedule to a sentence, order or finding under a specified statutory provision includes a sentence or order under any corresponding earlier statutory provision.
Service offences: sentences or orders triggering notification requirements
4 (1) The notification requirements apply to a person who—
(a) has been convicted of a service offence to which this Part applies and sentenced in respect of the offence to—(i) imprisonment for life, (ii) imprisonment for a term of 12 months or more,(iii) imprisonment for public protection under section 225 of the Criminal Justice Act 2003 (c. 44),(iv) detention for life or for a period of 12 months or more under section 209 of the Armed Forces Act 2006 (c. 52),(v) detention and training (and supervision) under section 211 of that Act, where the term of the order under that section is 12 months or more,(vi) detention for public protection under section 226 of the Criminal Justice Act 2003 (c. 44), or(vii) detention during Her Majesty's pleasure; or(b) has been—(i) convicted of a service offence to which this Part applies carrying a maximum term of imprisonment of 12 months or more,(ii) found not guilty by reason of insanity of such an offence, or(iii) found to be unfit to stand trial and to have done the act charged against them in respect of such an offence,and made subject in respect of the offence to a hospital order.
(2) In relation to a sentence passed under (or by virtue of) the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53), sub-paragraph (1)(a) has effect with the following modifications—
(a) in sub-paragraph (i), after "imprisonment" insert "(or custody)";(b) in sub-paragraph (ii), after "imprisonment" insert "(or a custodial order)";(c) in sub-paragraph (iv), at the end insert "(or under section 71A(4) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 43A(4) of the Naval Discipline Act 1957 (c. 53))".
(3) The reference in sub-paragraph (1)(b)(i) to an offence carrying a maximum term of imprisonment of 12 months or more—
(a) is to an offence carrying such a maximum term in the case of a person who has attained the age of 18 (or 21, as respects any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (c. 43)), and(b) includes an offence carrying in the case of such a person a maximum term of life imprisonment and an offence for which in the case of such a person the sentence is fixed by law as life imprisonment.Service offences: power to amend specified terms or periods of imprisonment or detention
5 (1) The Secretary of State may by order amend the provisions of paragraph 4 referring to a specified term or period of imprisonment or detention.
(2) An order reducing a specified term or period has effect only in relation to persons dealt with after the order comes into force.
(3) Where an order increases a specified term or period—
(a) it has effect in relation to persons dealt with at any time, whether before or after the order comes into force, and(b) a person who would not have been subject to the notification requirements if the order had been in force when the offence was dealt with (and who is not otherwise subject to those requirements) ceases to be subject to the requirements when the order comes into force.
(4) An order under this paragraph is subject to affirmative resolution procedure.
Service offences: period for which notification requirements apply
6 (1) The period for which the notification requirements apply is an indefinite period in the case of a person who has been sentenced in respect of the service offence to—
(a) imprisonment for life,(b) imprisonment for a term of 5 years or more,(c) imprisonment for public protection under section 225 of the Criminal Justice Act 2003 (c. 44),(d) detention for life or for a period of 5 years or more under section 209 of the Armed Forces Act 2006 (c. 52),(e) detention for public protection under section 226 of the Criminal Justice Act 2003 (c. 44), or(f) detention during Her Majesty's pleasure.
(2) In relation to a sentence passed under (or by virtue of) the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53), sub-paragraph (1) has effect with the following modifications—
(a) in paragraph (a), after "imprisonment" insert "(or custody)";(b) in paragraph (b), after "imprisonment" insert "(or a custodial order)";(c) in paragraph (d), at the end insert "(or under section 71A(4) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 43A(4) of the Naval Discipline Act 1957 (c. 53))".
(3) In any other case involving a service offence, the period for which the notification requirements apply is 10 years.
(4) The period begins with the day on which the person is dealt with for the offence.
(5) If a person who is the subject of a finding within paragraph 4(1)(b)(iii) (finding of unfitness to stand trial etc) is subsequently tried for the offence, the period resulting from that finding ends—
(a) if the person is acquitted, at the conclusion of the trial;(b) if the person is convicted, when the person is again dealt with in respect of the offence.
(6) For the purposes of determining the length of the period—
(a) a person who has been sentenced in respect of two or more terrorism offences to consecutive terms of imprisonment is treated as if sentenced, in respect of each of the offences, to a term of imprisonment equal to the aggregate of the terms; and(b) a person who has been sentenced in respect of two or more such offences to concurrent terms of imprisonment (X and Y) that overlap for a period (Z) is treated as if sentenced, in respect of each of the offences, to a term of imprisonment equal to X plus Y minus Z.
(7) In determining whether the period has expired, there shall be disregarded any period when the person was—
(a) remanded in or committed to custody by an order of a court,(b) in service custody pursuant to a decision of a court or judge advocate (or an order of a commanding officer under section 110 of the Armed Forces Act 2006 (c. 52)),(c) serving a sentence of imprisonment or detention,(d) detained in a hospital, or(e) detained under the Immigration Acts.
(8) In sub-paragraph (7)(b)—
(a) "service custody" includes, in relation to times before the commencement of the relevant provisions of the Armed Forces Act 2006 (c. 52), military custody, air-force custody and naval custody;(b) "judge advocate" includes, in relation to such times, judicial officer;(c) the reference to section 110 of the Armed Forces Act 2006 (c. 52) includes, in relation to times before the commencement of that section, a reference to—(i) section 75K of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19); (ii) section 47L of the Naval Discipline Act 1957 (c. 53).Modifications in relation to service offences etc
7 (1) In the following provisions, references to a person committed to custody by an order of a court include a person in service custody pursuant to a decision of a court or judge advocate (or an order of a commanding officer under section 110 of the Armed Forces Act 2006 (c. 52))—
(a) section 58(4) (initial notification);(b) section 59(8) (notification of changes);(c) section 60(2) (periodic re-notification);(d) section 64(7) (period for which requirements apply);(e) section (Notification on return after absence from UK)(3) (notification on return after absence from UK).
(2) In section 59(4) (notification on release from custody etc) the reference to custody pursuant to an order of a court includes service custody pursuant to a decision of a court or judge advocate (or an order of a commanding officer under section 110 of the Armed Forces Act 2006 (c. 52)).
(3) Paragraph 6(8) (meaning of "service custody" and "judge advocate") applies for the purposes of this paragraph.
8 In the application of section 58(6) (initial notification: person dealt with before commencement) in relation to a service offence, the reference to a person being on bail pending an appeal includes a person released from custody pending an appeal.
9 Where in relation to a service offence the court of trial (as defined by subsection (1A) of section 62 (meaning of "local police area")) was situated outside the United Kingdom, that section has effect as if subsection (1)(c) were omitted.
10 References in this Part to a sentence of detention do not include—
(a) a sentence of service detention (as defined by section 374 of the Armed Forces Act 2006 (c. 52)), or(b) a corresponding sentence passed under (or by virtue of) the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53).
11 The following provisions do not apply in relation to service offences—
(a) section 55 (offences dealt with before commencement);(b) section 56 (sentences or orders triggering notification requirements);(c) section 64 (period for which requirements apply).Application of power to make transitional modifications etc
12 An order under subsection (4) of section 380 of the Armed Forces Act 2006 (c.52) (power to make transitional modifications etc) which makes provision of the kind mentioned in subsection (6) of that section may provide for paragraph 4(1)(a) or paragraph 6(2) above to have effect with such modifications (relating to custodial punishments specified in the order) as are so specified."
On Question, amendment agreed to.
Clause 68 [Minor definitions for Part 4]:
moved Amendment No. 105G:
Clause 68, page 48, line 14, leave out from "order"" to end of line 21 and insert "means—
(a) a hospital order within the meaning of the Mental Health Act 1983 (c. 20);(b) an order under Part 6 of the Criminal Procedure (Scotland) Act 1995 (c. 46); or(c) a hospital order within the meaning of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4));"
On Question, amendment agreed to.
Clause 68, as amended, agreed to.
moved Amendment No. 105H:
After Clause 68, insert the following new Clause—
"References to a person being "dealt with" for an offence
(1) References in this Part to a person being dealt with for or in respect of an offence are to their being sentenced, or made subject to a hospital order, in respect of the offence.
References in this Part to an offence being dealt with are to a person being dealt with in respect of the offence.
(2) Subject to the following provisions of this section, references in this Part to the time at which a person is dealt with for an offence are to the time at which they are first dealt with—
This is referred to below as "the original decision".
(3) Where the original decision is varied (on appeal or otherwise), then—
(a) if the result is that the conditions for application of the notification requirements to a person in respect of an offence cease to be met (and paragraph (c) below does not apply), the notification requirements are treated as never having applied to that person in respect of that offence;(b) if the result is that the conditions for application of the notification requirements to a person in respect of an offence are met where they were not previously met (and paragraph (c) below does not apply)—(i) the person is treated as dealt with for the offence when the variation takes place, and(ii) the notification requirements apply accordingly;(c) if—(i) a conviction of, or finding in relation to, a different offence is substituted, and(ii) the conditions for application of the notification requirements were met in respect of the original offence and are also met in respect of the substituted offence,the person is treated as if they had been dealt with for the substituted offence at the time of the original decision;(d) if the sentence is varied—(i) so as to become one by virtue of which the notification requirements apply for an indefinite period instead of for ten years, or(ii) so as to become one by virtue of which the notification requirements apply for ten years instead of for an indefinite period,the length of the period for which the notification requirements apply shall be determined as if the sentence as varied had been imposed at the time of the original decision;(e) in any other case, the variation is disregarded.
(4) For the purposes of—
(a) section 52(5) (effect of order adding offence to list of terrorism offences),(b) section 57(2) or paragraph 5(2) of Schedule (Notification requirements: application to service offences) (effect of order reducing term or period triggering notification requirements),(c) section 64(5)(b) or paragraph 6(5)(b) of Schedule (Notification requirements: application to service offences) (period for which notification requirements apply: ending of period resulting from finding of disability etc where person subsequently tried), and (d) paragraph 2(3) of Schedule 6 (conditions for making foreign travel restriction order: behaviour since offence dealt with), a person is treated as dealt with at the time of the original decision and any subsequent variation of the decision is disregarded.
(5) For the purposes of—
(a) section 55(1) and (2) or paragraph 3(1) and (2) of Schedule (Notification requirements: application to service offences) (application of Part to offences dealt with before commencement),(b) paragraph 2(4) of Schedule 6 (conditions for making foreign travel restriction order where offence dealt with before commencement), a person is dealt with for an offence before the commencement of this Part if the time of the original decision falls before the commencement of this Part.
Where in such a case subsection (3) above applies for the purposes of any provision of this Part, that subsection has effect as if the provisions of this Part had been in force at all material times.
(6) In section 58(6) (adaptation of initial notification requirements in case of offence dealt with before commencement)—
(a) the reference in the opening words to an offence dealt with before the commencement of this Part is to an offence where the time of the original decision falls before the commencement of this Part, and(b) the reference in the closing words to when the offence is dealt with has the same meaning as in subsection (1) of that section.
(7) References in this section to the variation of a decision include any proceedings by which the decision is altered, set aside or quashed, or in which a further decision is come to following the setting aside or quashing of the decision."
On Question, amendment agreed to.