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The drafting of the amendments is necessarily complicated. Clause 2 repeals part 7 of the 2000 Act and I seek to add a further section of that Act to those that are to be repealed. It may help the Committee if I read out section 75(6), to which my amendments refer. It states:
“Without prejudice to subsection (2), where the court trying a scheduled offence on indictment—
(a)is not satisfied that the accused is guilty of the offence, but
(b)is satisfied that he is guilty of a non-scheduled offence of which a jury could have found him guilty on a trial for the scheduled offence, the court may convict him of the non-scheduled offence.”
This is a probing amendment, the spirit of which is important because the legislation contains a series of scheduled offences that can be tried without a jury and by a judge sitting alone. That is unsatisfactory and should be limited to offences where it is necessary. I am a little concerned about this part of the legislation; it would be possible to go through the whole of part 7 of the 2000 Act and pull it to pieces, but that is not why we are here. However, I was concerned to see that a judge sitting alone can try a non-scheduled offence in certain circumstances. Can the Minister say how often that happens? I accept, as he glares at his officials, of whom we do not have the benefit, that he may not have the information immediately to hand, but I should like him to accept the spirit of the amendment and to write to me and members of the Committee. That is what lies behind the amendments. I believe that it is a reasonable question, given that we are all striving for normality, and I look forward to the Minister’s response.
Unlike the previous debates, no great principle is at stake here, but I believe that there is a small principle. The hon. Gentleman is right to probe why, through accidents of circumstance, an individual could be tried for a non-scheduled offence in an environment set up specifically to deal with scheduled ones. The Minister may have a response to that. Alternatively, the Government may not have considered the point. As I said, there is no great principle at stake, but it might be helpful if the Minister provided us with his perspective on whether the Government would consider the matter now or on Report.
The amendment would repeal section 75(6) of the 2000 Act, which allows a Diplock court to convict a person of an alternative non-scheduled offence where the defendant is found not guilty of a scheduled offence in that case. That would remove the court’s ability to convict a person of any alternative non-scheduled offences, so no conviction would ever be possible for an alternative non-scheduled offence, however clear the person’s guilt. Under the rule of double jeopardy, no subsequent proceedings could be brought against that person for an alternative offence.
I do not believe that that is what the hon. Member for Tewkesbury wanted to achieve with his amendment. Cases to which section 75(6) apply would have been tried in a Diplock court because the Attorney-General had decided that the offence was connected with the emergency in Northern Ireland. Even if the rule of double jeopardy were overcome and a subsequent jury trial for an alternative non-scheduled offence were possible, there would still be a risk of intimidation of jurors, which Diplock was brought in to counter. If intimidation were to occur, the case could collapse, making a conviction unattainable. Requiring a subsequent trial by jury for an alternative non-scheduled offence would also add significant delay to the criminal justice system. Although jury trial remains our ideal, Diplock courts provide a high quality of justice. I do not believe that jury trial would be worth the significant extra delay, when the issues in the case would already have been fully aired and debated.
The hon. Gentleman asked for a specific detail. I undertake to write to him. I looked to my officials with desperation. As desperation has not brought them quickly to my aid and as I do not intend to waffle and delay the Committee, I shall of course undertake to write to him.
I look forward to receiving the Minister’s written response to the specific question. He mentioned that the non-scheduled offence might be connected to the security situation. I have some difficulty with that explanation, which I address on a later amendment. If it is not a scheduled offence, should it not be tried separately, with a jury? I think the Minister will take my point.
I take the point. None the less, I believe that the explanation that I have given the hon. Gentleman stands.
As the hon. Gentleman knows, I was coming to the end of my remarks. I simply urge the Committee to reject the amendment. I hope that the explanation that I will provide for the hon. Gentleman in writing will suffice. None the less, I undertake to explore, also in my response to him, which I will make available to other members of the Committee, the issue that he raised.
I accept the Minister’s serious response, but it is important that we explore the issue. The Bill sets out the Minister’s ability to schedule an offence, so that it is then tried in a certain way. If other offences are to be tried in that way, surely that should be stated in the Bill, so that we know exactly what is going on. However, the Minister’s response has been very reasonable. I look forward to receiving a letter from him and we may look at the issue again on Report. I beg to ask leave to withdraw the amendment.
The amendment arises out of the recommendations contained in Lord Carlile’s report on the operation in 2004 of part 7 of the Terrorism Act 2000. I am sure hon. Members will recollect that section 108 was originally introduced in the Criminal Justice (Terrorism and Conspiracy) Act 1998, following the Omagh bombing. The provision remained on the statute book in the new guise of section 108 of the 2000 Act. It makes provision for the evidence that may lead a court to conclude that a section 11 offence has been committed.
Subsections (2) and (3) of section 108 render admissible under a section 11 charge hearsay evidence that would otherwise not be admissible. The evidence must be given orally by
“a police officer of at least the rank of superintendent”.
If it is his opinion that the accused
“belongs to an organisation which is specified” or
“belonged to an organisation at a time when it was specified”,
that statement shall be admissible as evidence of the matter stated. However,
“the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the statement.”
In his report, Lord Carlile states that, as far as he is aware, section 108 has never been used. The report was published some time ago, so I want to ask the Minister whether section 108 has been used in the past year. It is difficult to understand the merits of keeping on the statute book a provision that has never been used in its seven years of existence. It is also difficult to envisage a situation in which a court would find itself able to attach the significant weight to evidence given under section 108.
Section 108 does not appear to be necessary. In his report, Lord Carlile states:
“I am totally unpersuaded by the arguments for its retention ... Section 108 could be repealed without any measurable disadvantage to the cause of public protection from terrorism. It is a provision that lies uncomfortably in the broader context of normalisation and the Good Friday Agreement.”
Why do the Government want to keep the section in force?
The hon. Lady raises an important issue. As I made clear on Second Reading, I want to put on the record the Government’s thanks to Lord Carlile for all his work. He has been exceptionally important in helping us to keep a balance in terrorism legislation and in ensuring that what we do is measured, appropriate and proportionate. However, that does not necessarily mean that we agree with everything he says. The hon. Lady will know, given her perceptive remarks, that we have taken issue with what he says in this one specific instance: he wants section 108 repealed, but we have resisted that.
The hon. Lady asked whether section 108 has been used. With the indulgence of the Committee, I will explore the background to the section and say why we believe that it is right to keep it on the statute book, even though we note her remarks. The amendments would permanently repeal section 108. That would mean that that provision—this is the crucial point—could never be brought into force again.
As I have made clear, I understand Lord Carlile’s remarks and his views on the provision. It is important to note—the hon. Lady referred to this—that, for various reasons, section 108 has yet to be tested in the courts. However, it may be worth reminding Committee members of a case involving section 108 statements which was taken against individuals believed to be responsible for attacking Coalisland PSNI station.
Section 108 evidence was intended to be entered to prove that the defendants were members of the Real IRA. The case collapsed because the judge decided that the Real IRA was not a proscribed organisation. That ruling was, I am pleased to say, overturned on appeal, but it meant that section 108 evidence that might have been used was not used or tested and the individuals walked away unpunished. I am aware that there have been convictions of Real IRA members in the Irish Republic with the assistance of a similar provision. In the current climate, it seems to me that the provision still has some utility.
Section 108 is designed to help achieve convictions for the offence of membership of a proscribed organisation. That is a difficult offence to prove to the criminal standard of beyond reasonable doubt because such organisations by their nature are covert and membership cannot be evidenced by conventional means. Section 108 evidence should help to overcome that hurdle. As paramilitary activities overlap further with acquisitive crime, it will remain important to have the option of proving that, for instance, a robbery was committed by a person who was a member of a proscribed organisation. In the absence of section 108, such membership will be very difficult to prove.
It would be hasty to repeal the provision permanently until it has been tested in the courts, particularly in the light of the way in which a similar provision has been used in the Republic. Only when it has been tested will we know whether Lord Carlile’s concerns are justified.
The provision may be used in five cases currently in the system in which the police are willing to make statements in court under section 108. Those cases could provide the necessary test of the provision. If they are successful and section 108 helps to achieve convictions for membership of a proscribed organisation, it will ensure that individuals are punished for the crimes they have committed and it will have a disruptive effect, helping to prevent future acts of terrorism.
Without section 108 it is possible that some of those prosecutions could not go ahead. Individuals would go unpunished, which would leave the people of Northern Ireland vulnerable to terrorist acts specifically as a consequence of removing the section 108 provision. Although I hear the hon. Lady’s comments and appreciate the weight of feeling from Lord Carlile, we believe for that reason alone that it is right to continue to resist his request that we repeal section 108. We recognise that the tests in those five cases may be extremely important.
It is appropriate to keep the provision on the statute book. There are five instances of where it is very probable that section 108 will be essential. If it were removed from the statute book and we could not use it, we are conscious of the effect that that may have on those five cases. That raises the prospect of five individuals, who we believe may also be guilty of terrorist action in the future, not being appropriately punished and put away.
I thank the Minister for his response. I feel rather more anxious than I did before. He makes two points. First, although section 108 has never been used in seven years, we will only know whether it works or not when it is tested. His second point linked paramilitary activities and acquisitive crime. He thinks that section 108 will assist in dealing with that, which concerns me deeply. Although it is clear that a number of paramilitary groups have been involved in acquisitive crime, using an additional lever to attack the criminal aspect of such groups’ activities in Northern Ireland fills me with concern because it seeks to address the criminal aspect.
When we make those decisions, we do not do so lightly. It would be our ambition to repeal section 108 were it not needed, but the advice and the request that we have received from our security advisors, which in the case of Northern Ireland is the Chief Constable, is that the provision is necessary. As with the remarks by the hon. Member for Montgomeryshire about the need for 90 days in the context of the other Terrorism Bill, and in the context of section 108, our decision is based on the advice of those who have to deal with terrorists. Our advice is that the provisions are needed and that the need for them continues.
The hon. Lady asks us to ignore that advice, but we maintain our view that we need section 108, because that is the view of our security advisors, the Chief Constable and those who wish to put away the terrorists and prevent them from carrying out the atrocities that they would otherwise carry out. This provision, like the 90-day provision, is to protect the general public.