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I begin by warmly welcoming colleagues, our expert witnesses and external observers. For the next session we have up to 50 minutes but not a moment longer. I begin by asking our witnesses, for the record, formally to introduce themselves.
Thank you very much indeed. Based on our experience in the second evidence session this morning, I have suggested to colleagues that we start with questions on matters other than pre-charge detention without trial. When those questions are exhausted, we will naturally move on to that very important matter. Without further ado, let us get the questions underway.
Good afternoon. May I turn first to the issue of post-charge questioning? I notice, Sir Ken, that when you gave evidence before the Home Affairs Committee back in November, there was a general agreement on the desirability of post-charge questioning, but you highlighted the issue of safeguards on how it operates. If one looks at the Bill, one sees that there is no judicial authorisation for post-charge questioning. Although it is suggested that there should be amendments to a new PACE code—we obviously do not have that at the moment—in order to regulate it, no judicial element is introduced. From your point of view as prosecutors, do you think that that is a satisfactory state of affairs? Would it be better if there were a degree of judicial authorisation to ensure that there are not subsequent arguments in court about whether behaviour has been oppressive in any way to those who are being interviewed, over what could of course be a prolonged period between charge and trial?
Sir Ken Macdonald: I do not believe that judicial oversight is necessary, although that is a matter for Parliament. A difficulty with judicial oversight of the sort that you are suggesting is that it could significantly slow down the process. I imagine that the judge would be relatively reluctant to make an order of that sort until he was well seized of the case. We are envisaging here questioning that takes place fairly swiftly after charge. However, I do believe that some element of supervision would be desirable. It seems natural that the police should consult the prosecutor in the case, so that a decision can be taken on whether post-charge questioning in the circumstances of that case is appropriate. An element of supervision is desirable, but judicial supervision could slow the process down too much.
May I turn briefly to data sharing, before we move on to what is probably the main issue? Are you happy with the provisions for extensive data sharing? While acknowledging that there is an obvious need to be able to share data, particularly to prevent terrorism, does the scope provided for in the legislation go further than is necessary simply to deal with terrorist cases? It seems to extend into a wider area, particularly when it comes to material that might have been collected by the security services.
Sir Ken Macdonald: This is a matter on which there are strong opinions, both inside and outside Parliament. Data sharing is a hugely useful investigative tool and source of evidence for prosecutors. We have seen the enormous use that we have been able to make of the DNA database—I am thinking particularly of cold case reviews, but material of that sort is increasing deployed by prosecutors to great effect in our Crown courts. Data sharing is a valuable tool, and one that we would encourage.
May I ask a third question, this time on aggravated offences? When you gave evidence back in November, there was agreement that aggravated offences had a role, but you had some slight reservations about the extent to which they could sometimes complicate matters, particularly because they require areas of proof that might not otherwise be required. Having seen the Bill, are you happy with the way in which that measure has been formulated?
Sir Ken Macdonald: I said that I thought that it needed careful examination, and the reason for that answer was that normally, if a case is terrorist connected or terrorist aggravated, it will be charged as a form of terrorist offence—for example, terrorist financing, encouragement of terrorism, or another of the many new offences that we have at our disposal. I think Miss Hemming and I both struggle a little to imagine a situation in which we would be prosecuting a case in the Crown court and only tangentially, perhaps at sentencing, suddenly revealing our view that it is a terrorist-aggravated offence. We would then have to prove that beyond reasonable doubt, which would suggest that it should have been sensible to prosecute it as a terrorist offence in the first place. The measure can work, if that is what Parliament wants. I was expressing some hesitation about the extent to which it might be useful, but that is a matter for Parliament.
Sir Ken and Sue Hemming, I am pleased that you were able to join us today. I want to ask you about the use of intercept evidence. I note, Sir Ken, that you have been a strong proponent of that. We heard from the Metropolitan Police Commissioner this morning that in his view, even if progress were to be made in that area, it is inconceivable that arrangements could be brought into practical effect for a period of some years, and that it is not therefore a relevant consideration for this Committee? Do you agree with that assessment?
Sir Ken Macdonald: It sounds a little pessimistic. The matter is not straightforward and there are good arguments on both sides. The Chilcot review indicated that that is something that we should do if we can, although it set a number of tests that need to be met. They are being worked on, and we are contributing enthusiastically to that work. As you said, we have long believed that the material would be valuable and that we should find a way of using it.
I would not say that it is something that should take years, and as far as I am aware, it is not the Government’s intention that the process of completing Chilcot ought to take years. The imperative is to get the work done as soon as possible.
This is a general question, and will have a bearing on what we discuss later in terms of pre-charge detention. Again in the evidence from the police this morning, Mr. Quick, who gave evidence on behalf of ACPO, gave the impression—I do not want to put words into his mouth—that he felt that the prosecuting authorities were involved only at a late stage in the investigation process, and might not be aware of the complexities that the investigating officers had to face in trying to produce sufficient evidence to put before a court. Do you, as prosecutors involved from the early stages, share that characterisation?
Sir Ken Macdonald: No, it is not a characterisation that I share. We created the counter-terrorism division in 2006 to create a centre of world expertise in prosecuting this work. We have achieved that, and we have a 92 to 93 per cent. conviction rate. We have more experience than any other public prosecutors in the world with this sort of work, and we do it to an exceptionally high standard. We have an extremely close relationship with the counter-terrorism command at Scotland Yard. Miss Hemming and her colleagues work daily with officers from the very earliest stages of investigation, often well before arrest and sometimes at the stage when operations are being designed. The model that we now follow in our relationship with the police, which we refer to as the prosecution team, is for prosecutors and investigators to work together at the earliest stages, as they have traditionally done in other jurisdictions, so that we can obtain the best evidence in admissible form at the earliest possible stage, and present the strongest case at trial. We have a close and enduring relationship with the police, which involves early working on cases.
It would have screwed up my questions completely if it was the other way round, so thank you for clarifying that.
“We found the DPP’s clarification of the problems surrounding disclosure very helpful: if the Crown Prosecution Service has already rowed back from a misinterpretation of the extent of disclosure required under 1996 legislation, then it should be possible to cope with the amount of transcription that the defence could legally require.”
The obstacles that the police appear to be putting in the way of, or the arguments that they are advancing against, the use of intercept evidence appear to be twofold: first, the potential disclosure of intelligence sources and, secondly, the bureaucracy involved in transcription. You clarified that for the Home Affairs Committee, and it would be very helpful to us if you could clarify your view about why that transcription is logistically possible and, indeed, how it works to the advantage of your counterparts in other jurisdictions.
Sir Ken Macdonald: Certainly, in other jurisdictions, they regard that material as absolutely indispensable. The Americans told me that they could not remember an organised crime prosecution in the United States that last proceeded without intercept material. The Australians told me that people who did not use this material were not “serious” about prosecuting organised crime.
On the other hand, I recognise that there are arguments on both sides. One is certainly the bureaucracy involved. It is essential that we find a system that does not place undue burden on the police or agencies and cause them to divert resources from the front line. Under our law, what is disclosable is any material that we intend to rely upon in evidence. In addition, we must disclose any material that we possess that, in our judgment—nobody else’s—undermines our case or assists the defence’s case.
In recent years, a practice has grown up of the prosecution simply opening the keys to the warehouse and handing over everything so that the defence could make the determination for itself. That practice was never in accordance with the law. When I became DPP, I was determined that we ought to return to the statutory basics in order to restrict unnecessary disclosure in criminal cases, which was being used to derail trials by swamping them with a mass of irrelevant materials. We are now much more focused in what we disclose.
As far as transcripts are concerned, we have to disclose those upon which we intend to rely. We also have to disclose those that seem to undermine our case or assist the defence’s case. Beyond that, we have no duty. Lord Bingham, the senior Law Lord in the case of H and C, has decried the practice of defence fishing expeditions, which derail the trial process in the vain hope of turning up something that might be useful. We are much more careful about disclosure now. The judiciary is much clearer as well about what should be disclosed. My view is that general principles of common law and statutory disclosure in English law can be relied upon to make the disclosure of transcripts in organised crime and terrorist cases both appropriate and manageable.
I want to ask two questions. The first follows on from the previous question about interception. When you say that you are a proponent of interception and the use of intercepts, is that as defined under the Terrorism Act 2000, covering post, e-mail and telephone, but not surveillance? There is often a misconception that bugs in rooms, listening devices or cameras are in fact not considered intercept as defined in previous law. Or are you saying that both surveillance and intercept should be admissible?
Sir Ken Macdonald: It should all be admissible, subject to the normal rules of evidence and subject to us not disclosing material that would compromise national security or the capability of the agencies. Currently, mail intercepts are perfectly admissible, as too are bugs in rooms and in telephone handsets. In essence, what is not admissible is material that is tapped in a more sophisticated way. Everything else is currently admissible, and we rely on it. We also rely on intercept material from abroad, which we use to very good effect. Recently, we got a string of convictions in people trafficking cases and guilty pleas as a result of intercepts sent to us by the German police, I think—certainly, it came from continental police. That happens quite frequently. They are always surprised when we tell them that we can use their intercept, but not ours.
Secondly, on the post-charge interview, in your experience, in how many cases has a lot of the evidence hinged on forensic evidence rather than cross-examinations of suspects? We heard from the police this morning that in 90 per cent. of the interviews that they conduct, the suspect does not say anything.
Sir Ken Macdonald: That is certainly true. In terrorism cases, including the old IRA cases and cases involving the newer form of terrorism, it is comparatively unusual—very unusual, I would say—for suspects to answer questions. What is important, however, is that if they do not answer questions, the jury can be directed by the judge that they may draw an adverse inference against the defendant for his failure to answer a question.
The importance of that in post-charge questioning is as you indicated in your question. An awful lot of evidence comes to light after charge. At present, we have no way of putting it to a suspect to obtain an adverse inference if he refuses to answer questions about it, and we do not think that that is fair. We think that it should be open to the prosecution to place before a suspect the fruits of the investigation, even if they come about after charge. If the defendant wants to answer, fine—his answers can be given in evidence. If he does not want to answer, why should the Crown not be allowed to have an inference drawn from his failure? If that can be done if the defendant refuses to answer questions pre-charge, why not post-charge?
If the Bill were passed and you were in a situation where you had a post-charge questioning facility, would you be more likely to allow a charge against a suspect to go ahead, given that you had the new power? This is going slightly into the pre-trial detention issue, but you could lay a charge. I suppose that the threshold would not be as high with the new power.
Sir Ken Macdonald: I do not think that the power would make any appreciable difference. The reason is that, as I said, suspects rarely answer questions in terrorism, or indeed organised crime cases. I am not sure that the possibility of an inference from silence would be likely to tip consideration of whether a threshold charge exists from “no” to “yes”. My own view is that the difference would be marginal. I do not know whether you share that view.
Sue Hemming: Yes, I do share that view. Obviously, it makes a difference if the jury can draw an inference if the judge allows it to do so, but the key issue is that a lot of important evidence comes to light after charge, and those issues should be put to the defendant, as he will be at that stage, in the same way as anything would be put to him before the charge is put. He can be given an opportunity to give an explanation if he wishes to do so. If he does not, he will be subject to the same powers that exist before charge; that is, we can ask the judge to draw an adverse inference. The difference in the charge will be marginal, but obviously there will be a difference. Otherwise, there would be no point in having the inference.
This question is on an entirely different part of the Bill and is about territorial extent. From lessons from around the world, we know that specialist prosecutors are more successful in dealing with this type of crime. I suppose that that is why you invested in your specialist unit. The argument that is proposed by the Scottish Law Society is to keep a separation, or at least to have a requirement for a certain number of hurdles to be overcome before you could take control of a case that may have implications in Scotland. In your experience, would the Bill make things easier? Does it remove some of the barriers that existed in the recent case of the London and Glasgow bomb plots? Does the Bill remove barriers or unnecessary bureaucracy?
Sir Ken Macdonald: If you do not mind, it would be awkward to talk about that case, which is presently before the courts. What I can say is that we have invested a good deal of time and effort over the past two or three years in developing our relations with the Crown Office and the Procurator Fiscal Service in Scotland. Indeed, I was in Glasgow only yesterday meeting with colleagues from the PFS, and we speak frequently with people in Edinburgh. We have a very good and co-operative relationship, and I do not at present see barriers to our doing our work as we wish to. The proposals in the Bill will certainly assist.
Sir Ken, I omitted this point earlier, but I know that clause 60 will amend section 18 of the Regulation of Investigatory Powers Act 2000 to enable the disclosure of intercepted communications in asset freezing proceedings. Does not it strike you as slightly strange—in my view it is slightly barmy—that the Bill proposes the use of intercept evidence to freeze a suspect’s assets but not to secure a conviction in a terrorist case? Could you clarify that for me?
Although I do not wish to conflate the two, were the period of pre-charge detention to be extended beyond 28 days, there might be certain parallels with what happened during internment in Northern Ireland. I would like to hear your views on that. First, what would be the reaction of the vulnerable communities to an extension beyond 28 days, most particularly the Muslim community? Secondly, what would be the effect on intelligence sources who are currently talking to us? Thirdly, what do you feel would be the effect on terrorist recruiting?
Sir Ken Macdonald: I do not think that one ought to confuse internment with pre-charge detention. Pre-charge detention is not internment. My view about the time period is quite well known, but I would not confuse pre-charge detention with internment. Internment without trial is an executive act designed to take people off the streets and incarcerate them without much process of law. I am not an expert on what happened in Northern Ireland, but broadly that would be internment. Pre-charge detention means holding people in the expectation that sufficient material will be forthcoming to charge them with a criminal offence and put them into the court system. It is a procedure that is entirely controlled by the judiciary.
Sir Ken Macdonald: Certainly, in the debate that is currently raging, a lot of people are confusing pre-charge detention and internment. I hope that we have not done that, as I think that the two are distinct. It is certainly true that people will wish to do so for propaganda purposes, and perhaps people are doing so.
I am not sure that I am best qualified to answer the other questions that you asked, Mr. Mercer. We spend quite a lot of time looking at that issue and Miss Hemming goes around the country addressing Muslim community groups to try to reassure them about how we do our work, why we do it and how we try to be fair. I find that to be a useful process, and it is certainly something that we will continue to do. We see it as an important part of our work to win public confidence and engage with communities that might feel that they are being marginalised or discriminated against. We do not discriminate against any communities in how we do our work. I think that issues about the effect that this will have on particular communities is beyond my expertise.
I certainly was not an expert on internment, but I was definitely a witness to it and saw the damaging effect. I return to the point that whatever we say rationally about it here, our enemies will use it none the less. To take this a stage further, when we extended the period of detention from 14 days to 28 days, did any of you get a feel that our enemies had seized upon that as a propaganda tool that they could already use? I appreciate that there might not be an answer to hand.
Sue Hemming: There is probably discomfort among certain communities about extended detention, but a lot of that relates to a lack of understanding of exactly what its purpose is, how it is operated and what the safeguards are. As Sir Ken has said, a lot of it is about confusion with internment. There are quite a few safeguards, in that the police, the prosecutor and then the judge have to look at it on a regular basis. Making an application for a warrant for further detention is not an easy process, nor should it be. The decision about whether to make an application in the first place is not one that is taken readily. From the community point of view it is as much about explaining what it is, how it works and why we need it, as it is about the length of time; however, there may come a length of time when it becomes more uncomfortable.
May I pay tribute to the work that is being done? Certainly coming back from the Muslim community, with whom I mix frequently, I think that the message is being put across effectively. However, are more resources needed to help?
May I gently point out to colleagues that at this stage we are supposed to be covering matters other than pre-charge detention without trial, in which context a number of people are still seeking to catch my eye?
I am not confident that you will respond to this, but I should like to put this question to you in case you feel that it is appropriate. There is concern that using intercept evidence could define agencies’ weaknesses in their investigations into terrorism. Do you have a sense that that could be the case, or are there sufficient safeguards to ensure that that does not happen?
Sir Ken Macdonald: Obviously, that is a danger that has to be avoided and obviously it is one of the concerns that has been raised. I can only say that other jurisdictions that are very similar to ours, such as the Australian jurisdiction, the Canadian jurisdiction and the United States jurisdiction—we all understand that the Americans have considerable capacities in this area—manage to develop systems for the admission of this material that are consistent with fair trial and which protect the matters to which you have alluded. My own view is that we can deal with all of this. We have to be careful and there are respectable arguments on both sides, but I personally believe that as colleagues in other jurisdictions have managed to find a way through it, so can we.
Is there in your answer a sense that you are acknowledging something that ACPO states, which is that developing trends have pushed investigating officers to the limits, and that there is so much for them to investigate and to attempt to understand that intercept could be one part of the toolkit and could be very productive in securing and understanding, and possibly enabling a charge?
Sir Ken Macdonald: Certainly, if we can rely on the intercept material in court it is very useful in founding charging decisions. My sense of it is that if we started to use this material in criminal trials, most of the intercept material that we would use would be police intercept, not agency intercept. My feeling is that once we started to use it, it would become fairly prominent in our armoury. The Australians say that it is so cheap and so effective, the danger is that they use it too much and neglect other areas of investigation. That is obviously something that one would have to guard against.
My question relates to comments that Sir Ken made earlier in clarification. Would that be in order? I was at the Home Affairs Committee when you expressed your view about the extension beyond 28 days which I thought was very important. On Second Reading of the Bill, the Home Secretary and other Ministers characterised your view as being almost identical to the Government’s in that you were quite happy to support the Government position that there should be no extension without strong judicial and parliamentary oversight. The implication was that you supported the Government’s position. That was not my recollection of your evidence to the Home Affairs Committee. Could you clarify? Would it be fair to say that you support the Government’s position, or would you say that, respectfully, you differ from it?
Sir Ken Macdonald: First, it is Parliament’s decision, not mine. I have expressed my professional view, which is derived from our operational experience, on whether 28 days is sufficient and is likely to remain so, and our conclusion is that it is. I have read Hansard, whichdid not seem to catch all the debate. I heard Members calling out at one point, but, for some reason, that was not in Hansard. The Home Secretary said that I had never said that I did not want this legislation, and some Members called out, “He did.” I think that the Home Secretary was saying that I had been perfectly plain that if the legislation is enacted, we will use it if it becomes appropriate to do so. It is not for us to say whether we do or do not want legislation, and I am not prepared to express a view about that—that is not my job. What I can say—I have said this on a number of occasions—is that for our part, as prosecutors, we do not perceive any need for the period of 28 days to be increased. Of course, people have argued to the contrary, and you have heard some evidence to the contrary. Various scenarios have been put up, and anything is possible, but the question is whether it is remotely likely.
If no further evidence was found during that extended period, would the fact that someone had been detained for longer than 28 days not make it harder to prosecute them than if they had been detained for only 28 days or less?
Sir Ken Macdonald: If we had the same evidence before 28 days, and it was sufficient to cross the threshold, we would charge them; if it was not, we would not, and if the situation did not change, we still would not. It would simply mean that they had been in custody for longer without being charged.
Thank you, David. We have clearly elided naturally into the subject of pre-charge detention without trial. I simply note that we have 18 minutes left. It is open house, and if colleagues could help me to help them by indicating that they want to come in, that would be great.
I am very pleased that we got on to pre-charge detention—I was not sure whether we had for a moment. I want to go back momentarily to intercept evidence. You were saying—I hope that this is not an ungenerous characterisation—that we had set the bar a little too high with Chilcot in terms of how to go from where we are to implementation.
Sir Ken Macdonald: No. Chilcot set a number of tests that we have to meet. It was a very high-level inquiry, and I am perfectly content to accept those tests as set out. They have to be met; otherwise, Chilcot recommends that nothing can happen. Work is going on at the moment to see whether those tests can be met.
Equally, as you have just said, and as you said at the Home Affairs Committee, any extension or change to the law is a matter for Parliament first, rather than yourself, and that is an entirely fair point. It has been said during the debate on this issue—I am aware of the sub judice side of things—and it was said again by one witness this morning that in the three cases that went to charge after 27 or 28 days, you more or less had the evidence and the substance by day 14 and, in one case, by day 18. The clear inference was that the prosecution service and the police just sat around and did not do a whole lot for the remaining 10 to 14 days because they had it in the bag already. That has been said very seriously by some senior Members of Parliament, and I just wonder what your reaction was.
Sir Ken Macdonald: May I say something about this first, before asking Miss Hemming to deal with it? This is a completely misconceived assertion. During periods of detention, the police and prosecutors work extremely hard, at all hours. Miss Hemming and her colleagues will leave Scotland Yard when they need to sleep, but apart from that they are there. When the material is sufficient, and the prosecutor, within his or her discretion, believes that a charge should be laid, it will be laid. The idea that we have sufficient evidence after 14 days, but, for some reason best known to ourselves, wait until 26 or 27 days to charge is wrong. I am going to ask Miss Hemming, who has direct experience of how this process works, to answer you, Mr. McNulty.
Sue Hemming: May I begin by talking about the cases in which we have not gone past 14 days? With the last 35 people we have charged, in 40 per cent. of cases, we have charged them on the threshold test. If we were going to make applications for warrants of further detention and keep people in unnecessarily, we would have used the 14-to-28-day period a lot more often than we have. We have used it in only three cases, and we have not used it once since the London-Glasgow bombings. That probably says something about our attitude towards warrants of further detention and pre-charge detention.
I was the prosecutor who spent 28 days in the police station with the police officers on one of those cases—the largest—and made the charging decisions. We certainly did not keep people in unnecessarily. There has to be a certain amount of time for the police to investigate. If you arrest people, the police have to look at what the plot is, who is involved and what the evidence is. As with any case, the pre-charge detention time has to allow a certain amount of time for the police to investigate and question. I seriously dispute any allegation that we kept people in any longer than we had to. As I have said to others who have asked me that question, I wanted to go to bed a long time before the 28th day, and I certainly was not going to sit in the police station for hours and hours and days and days with people being unnecessarily and unfairly locked up.
Why do you think that senior politicians and serious organisations such as Justice carry on with those claims?
No; to be perfectly fair, I do not.
We were also told this morning that the only ground on which the court must be satisfied to extend pre-charge detention is that the investigation is being conducted diligently. The clear impression given was that as long as the judge is satisfied that you were diligent, along with the police, that is all that would be necessary to jump through that hoop and get a rather simplistic, “Off you go, and have another seven days.”
Sue Hemming: That is the second requirement in a warrant of further detention. The first is that it is necessary. The judge must first be satisfied that it is necessary for investigation to continue—three different grounds are given. It certainly is not the case that only diligence and expeditiousness must be shown; they are an “as well”. I have seen the notes and work put into warrants of further detention by my lawyers, but I have not personally conducted one. I have also spoken to a number of people who have done them. The judge certainly expects the first ground to be made out in detail before he will look at how diligently and expeditiously the investigation has been handled. He needs to be satisfied of both those grounds, without a doubt.
We were also told this morning that suspects do not know the evidence against them and can be excluded from the entire application for extended detention—again, as though that were the norm for the process. Is that the case?
Sue Hemming: Again, no; it is not the case. The notice that is served on the suspect before the hearing takes place is not particularly detailed, but suspects’ solicitors are given, as a matter of practice rather than law, a summary of the evidence so far and an overview of the investigation so far. The actual application is generally very detailed, and the ex parte part of any application will depend on each individual case. Our experience is that, as time goes on, the ex parte applications become less and shorter. Clearly, at the very beginning of an investigation you are in a very different situation than at 14 or 21 days. In only one of the applications that have been made by prosecutors against 17 individuals was there any form of ex parte application and that was a tiny part of it.
The clear impression this morning was that ex parte was the norm. I think that we were sold rather a pig in a poke this morning.
I have one last question, if I may? Perhaps for lay people around the table you could elaborate on what the threshold test entails. Secondly, can you come up with a charge after the threshold test purely on an intelligence basis? Thirdly, there seems to be a view abroad that the threshold test is this magic bullet and that when all else fails, have a look at the threshold test and charge them with something or other.
Sir Ken Macdonald: The normal full test for prosecution is a judgment by the prosecutor that the material before him provides a realistic prospect of conviction. That means that there is a better than evens chance that the verdict will be guilty. The prosecution must also be in the public interest. If the prosecutor is considering a case that is sufficiently serious that a remand in custody would be appropriate in the event of a charge, he may charge on the threshold test, which is a lower test.
The threshold test says that a prosecutor can charge on the basis of reasonable suspicion that the offence was committed, coupled with it being in the public interest to prosecute. That reasonable suspicion at the charging stage must be based upon material that is already admissible or which the prosecutor believes can be rendered admissible for trial. Currently, it could not be based on intercept evidence or any other material that is clearly inadmissible, such as intelligence material that could not be rendered admissible. There must be a reasonable suspicion on the basis of material that is either presently admissible or is capable of becoming admissible, plus it being in the public interest to prosecute. That is obviously a lower test than the full test.
We have just under eight minutes left and there are no fewer than six colleagues seeking to catch my eye so I appeal to colleagues to pose short questions and to our witnesses to offer short answers.
Miss Hemming, you described the close relationship that you have with the police somewhat graphically in that you leave the police station just to sleep, which sounds rather onerous. You also made the point that there has not been an application for an extension to 28 days since the Scottish airport bombing incident. Is that right? That is nine months or so, is it not?
So you have been working within the confines of 14 days quite adequately for the past nine months or so.
A quick question to Sir Ken. As a founder member of Matrix chambers, a chambers acclaimed for human rights work, if this change in the law were to come about and 42 days was granted, what is your opinion on possible breaches of article 5 of the European convention on human rights?
Sir Ken Macdonald: My view is that this provision would be lawful if sufficiently controlled by the judiciary, which it would be. It would be compatible with the European convention on human rights and I think that it would be Strasbourg-compliant. I suppose the issue is that if you are considering a provision that fundamentally affects civil liberties, as this one does, you wish to be sure that the problem that it is directed against is real. I am quite satisfied that this provision would be lawful. As I have said, if it was in law, we would use it if we ever found it necessary to do so.
Two things. The first is about the difference between you and the police as put by Sir Ian Blair and Mr. Quick this morning. It is curious that you are working in tandem. In effect, the investigative process has you almost identically enmeshed because of the new rules on the Crown Prosecution Service. You are working to solve the same problems, yet at the end, Sir Ian’s reaction was to say that if we lived in a different world with intercept evidence and American-style plea bargaining, he would be more comfortable, but he feels the need for 42 days. You explained, and you have repeated this afternoon, that from the CPS point of view, 28 days appears to be entirely adequate for the task that you have to perform. You may not wish to answer this question, but will you give an explanation to the Committee for that divergence of view?
Sir Ken Macdonald: It just shows that there can be honest opinions on both sides, Mr. Grieve. I looked at Sir Ian’s evidence this morning and I think that he suggested that the police were better placed to make the judgment because they are involved in the investigation. In fact, prosecutors must determine when the investigation has turned up sufficient evidence to create a charge, and I should have thought that we were very well placed to make that judgment. I respect Sir Ian’s view and the police view, and those of everyone on the other side, but our experience is that we have managed comfortably with 28 days, and have therefore not asked for an increase. It is possible to set up hypothetical situations in which you might have nothing after 28 days but suddenly get evidence after that time. I repeat: anything is possible; the question is whether it is remotely likely.
If I may briefly follow on that last comment, you said that the discrepancy in views between yourself and ACPO is based on your assessment of the evidence and the chargeability of that evidence. The police view is that, because they are responsible for gathering the evidence, in effect, they have a different perspective. Would it not seem fair to you that, although you sit in judgment of the evidence that has been gathered—it is perfectly legitimate for you to have a view on that—the police view on the legitimacy of extending the period, which is based on the fact that they continue to pursue areas of investigation, should prevail?
Sir Ken Macdonald: Of course, investigations always continue in such cases, and huge amounts of evidence come to light after charge. Our judgment is that the threshold test is sufficient to allow us scope to charge appropriately, even in the most extraordinarily complex terrorism offences. It is a question for Parliament whether the provision is directed against a real problem.
What is your attitude to using what are effectively holding charges—acts preparatory to, or offences of that kind—to maintain a person in remand? In the case of encryption, does the refusal to provide the key to encryption provide an adequate initial offence for charge for those purposes?
Sir Ken Macdonald: We do not use holding charges in our jurisdiction; our culture is to try to get the right charge at the beginning. They use holding charges in the United States—I discussed this with the US Attorney General recently—and can therefore charge a person quickly. However, they overcharge to persuade people to accept a lesser plea in a somewhat one-sided plea bargain. We do not do any of those things. Our view is that we should proceed on the basis of the correct charge at the beginning of the process.
On comparisons with other jurisdictions, the research that I have seen on France shows that there is up to two years pre-trial detention and four years pre-trial detention for crimes punishable by more than 10 years. In Germany, people are being held for six months, and in Spain for up to two years. It is very difficult to make comparisons between different legal systems, but will you comment on how we are placed in the league table?
Sir Ken Macdonald: I do not find comparisons with other jurisdictions terribly helpful, particularly those with European jurisdictions that have a different concept of charge to us—I have already mentioned that they can charge early because they use holding charges. We have enough problems analysing our own jurisdiction, and I think that we should stick to it and discover what works for us and how to apply it.
Sue Hemming, if you cannot give the answer off the top of your head, will you inform the Committee in writing how many arrests have been made that have resulted in convictions, as opposed to those arrested under terrorism legislation and then released, and how many have been charged? Apart from the post-7/7 or post-Glasgow incidents, in those precautionary cases in which people were arrested before they carried out an attack, how many times did you have to hold people beyond 14 days or thought that you needed to do so?
Sir Ken, Sue Hemming, thank you very much indeed for your time and expertise, of which the Committee is extremely appreciative. We would like to have a quick turnaround and move to the next witnesses. I am mindful of people who did not get in and they will be high up on the list when we hear our next witnesses.
Welcome to our next witness. I probably should have introduced myself to our previous witness. My name is John Bercow. I am the Member of Parliament for Buckingham and I am co-chairing this Public Bill Committee. Just for the record, perhaps you would be good enough formally to introduce yourself.
Thank you. Following the model of each of the last two witness sessions, I am suggesting to colleagues that we take questions first on matters other than pre-charge detention without trial. For this sitting, so that colleagues are clear, we have until 5.40 pm, but no later. I look first to Dominic Grieve.
Good afternoon, Lord Goldsmith. I will turn first to post-charge questioning. When you gave evidence in front of the Home Affairs Committee on 21 November, you indicated that you were in favour of it, subject to the right safeguards. Indeed, that seems to be an almost universal view on a cross-party basis in the Commons. Do you feel able to comment on the Bill as it has been published and do you consider that the safeguards in respect of post-charge questioning are adequate? In particular, do you consider that a layer of judicial oversight ought to be provided, or do you think that it is merely sufficient that we should have revised PACE codes to cover the system that ought to be adopted?
Lord Goldsmith: That is an important question. Plainly, the safeguards will depend in the first instance on what the contents of the code of practice will be. I am unaware of whether there is a draft in existence, but if there is, I am afraid that I have not seen it.
In answer to your question, given that the likelihood is that in many circumstances, the judges will have some oversight in relation to post-charge questioning—I would have thought that if anyone comes to trial and there has been questioning post charge, it would be up to the defence to complain about how it had taken place, if it was contrary to the codes of practice. I would have thought that would provide a degree of judicial supervision in that case. I suppose that it might not do so in circumstances where the defendant was not charge, or for some reason the issue was not raised. I would prefer to see some degree of judicial supervision in all cases, however that came about; not for the judges to be asked to approve questioning, perhaps before it took place, which might put them in an invidious position, but to have an oversight as to how code was operated and how people exercised the powers in practice.
This morning we were told by Sir Ian Blair that the use of intercept evidence would not happen for a long time—I think he said two or three years—due to some legislative blockages and possible problems with administration and so on. Other witnesses expressed a contrary view. Some commentators hold the view that it would be useful to look at it now, and that it might just as well have been in the Bill. What is your view on the usefulness of intercept evidence, and do you perceive any insurmountable problems that might delay its use for two or three years?
Do you agree that the Bill could have been a vehicle for such a change in the law?
Again, I hope that this is not too left field a question. During your time in office, did you have any difficulties in your dealings with the Lord Advocate or the Scottish jurisdiction, and were there any areas of the relationship between the two jurisdictions in terms of terrorist offences that caused you concern?
Lord Goldsmith: No, I did not have any difficulties with the Lord Advocate. During my period of office there were two Lord Advocates, Lord Boyd and then Elish Angiolini, and I had no difficulties with them at all. If it is not inappropriate to say, for most of that time the fundamental complexion of the Governments in both places was the same.
Lord Goldsmith: We had good arrangements. It is important that prosecutors have good arrangements for co-ordinating between themselves, not just within the United Kingdom but also overseas. I tried to have such arrangements with, for example, the United States as well. But we certainly had arrangements with Scotland, so that discussions could take place about where the most appropriate place to start proceedings would be, when there was shared evidence or shared defendants. The co-operation seemed to work—in my time at least it worked very well.
I want to put to you, Lord Goldsmith, the issue of the use of intercept evidence. As you know, the Home Affairs Committee has recommended that it be allowed. What is your general view on the use of intercept evidence, given that what we have heard about experiences in other jurisdictions seems to indicate that it has been immensely useful in securing terrorist convictions?
Lord Goldsmith: We are out on a limb in relation to this. I looked very hard at it during my time in office, and particularly wanted to talk to those countries that had highly sophisticated intelligence-gathering capabilities. I can understand that if a country does not have the same level of capability as we have, their experience may not be the same. I was told by very senior officials, at the highest level in the US justice system for example, that they regarded intercept evidence as highly important and did not understand how we managed without it. We heard similar views from other jurisdictions. I am quite clear that in the field of serious crime, at least—I recognise that the Committee is looking rather specifically at terrorism, to which I shall come—intercept evidence could be highly valuable. To deny prosecutors that very important tool runs the risk that very serious criminals will not be properly pursued.
As far as terrorism is concerned, from cases that I have seen, I am also confident that there are cases in which intercept evidence would be valuable. There would need to be safeguards. I believe that the model referred to in the report of the Chilcott review, which I have worked on a lot, could provide the necessary safeguards, with a little more work. I very much hope—to speak liberated outside the Government—that we will get on with that, because I think that it is important for the protection of the people in this country.
In respect of getting on with that, have you had a chance to look at clause 60? It is very short. To remind you, it will amend the Regulation of Investigatory Powers Act 2000 to enable the disclosure of intercepted communications in asset-freezing proceedings. I was told off when questioning a previous witness for calling that slightly barmy. Do you not think that it is slightly strange that we are proposing to legislate to use intercept evidence to freeze assets, but not to secure terrorist convictions? The answer is yes, by the way.
Lord Goldsmith: I would like to understand the justification for making that separation. If you are going to use intercept evidence, if makes sense to look at it across the board and not just in one important, but isolated area. This does not help in circumstances where prosecutors know that there is intercept evidence that would help them to secure a conviction, because they will still not be able to use it.
Lord Goldsmith: It concerns me because they are precisely the legitimate concerns would need to be dealt with in any model. The first principal legitimate concern is about the risk that they will be required to disclose information that could undermine their capabilities by revealing an ability to do something, which could be damaging. In my view, that could be dealt with in part by not making it obligatory for the prosecution to use intercept evidence, so that it would be used only if it is inculpatory—when it tends to prove the guilt of the defendant—and when the state wants to use it. That means that if you have good intercept evidence, but the security agencies say, “You cannot reveal this”, you do not use it.
Ultimately, the other way of dealing with that, as happens in other cases, is to find other ways of ensuring disclosure, if you are required to disclose something that tends to show that the defendant is innocent—exculpatory evidence—which RIPA sort of covers. There are ways in which to deal with that, but the ultimate sanction is that the prosecution simply does not continue with the case. Very occasionally, that happens, for example, when a court requires an informant’s identity to be disclosed. In that case, you just do not continue. That is the protection.
The agencies’ second legitimate concern is that they might be required to spend a significant part of their resources on what they would regard as fishing expeditions—people say, “Please transcribe every tape that you have intercepted in relation to this person over the past five years and translate it.” That is a legitimate concern. I believe that the way in which to deal with it is to have a system under which the court closely supervises, and is required by Parliament to supervise, the way in which such disclosure applications are made and met, so that the court will only order that disclosure where it is satisfied that it is necessary to do so in the interests of justice. That is not straightforward to do. One way of doing it is to have codes of practice as to the way that intercept operations are run, which are no doubt laid before Parliament for its consideration, if not approval, and have that as a part of the structure. So it is quite complicated. I believe that although there are legitimate concerns, they can be met, which is why I answered the first question by saying yes, there are problems. But I do not regard them as insurmountable.
So you do not think that by using intercept in this way—you are choosing when and when not to do so—you are actually defining for anybody, particularly terrorists, what the weaknesses of investigatory process are, which is the agencies’ suggestion.
Lord Goldsmith: I do not think it would follow that the discussion about when to use intercept would be on the basis of our saying, “If people know we can do this, use it, but if they don’t, don’t.” Obviously, there is a field for disinformation in the sense of keeping people guessing as to what they can do. That would be one of the considerations in what is done. But everybody knows that certain forms of communication can be intercepted. We see it when foreign Governments produce evidence that we ourselves use in our courts. We prosecuted a very significant trafficking case that we could not otherwise have done, as I recall, without using intercept evidence from Holland. There may be more esoteric areas where you do not want to let people know you can or can’t, but I do not regard that as a reason for not using intercept evidence where it is probative and it will help to secure the ends of justice, where, frankly, everyone will know that that is a capability that you have got already.
I just want to pursue this point. In answering Ms Taylor’s questions you have identified two areas of concern for the services, both of which appear to have an answer. First, the prosecuting, or the state, authorities can decide how much intercept evidence to disclose and, if it is a risk, not disclose it. Secondly, if the agencies are receiving end of fishing expedition requests, as you describe it, it would seem merely to be an operational decision as to whether they have the resources to respond positively to those, as well as a decision about its appropriateness; and its appropriateness would be covered, as you suggest, by a code of practice. If I have summarised those two areas correctly, what is your conclusion as to why proposals from the Government are not included in this Bill?
Lord Goldsmith: I shall come back in a moment, if I may, and make a couple of qualifications about the way that you summarised what I said, just for completeness.
My conclusion in relation to that matter is not to suggest any bad faith or anything of that sort on the part of anybody. I am sure that the reason lies in a genuine concern as to how the system would operate and to be sure that it would operate. I am concerned that there are ways of dealing with these problems. It is important that, if there is a decision in principle that intercept evidence should be made available under the right conditions, everyone, including the agencies, which have a legitimate interest in this, can work together to ensure that the safeguards, codes of practice or whatever actually do the job.
Are you aware of any other reasons, other than the two areas that you outlined, that would be operating on the Government's mind in respect of not bringing proposals forward? Is it reasonable for us to interpret these two areas of concern as the ones that lead to the reluctance to bring proposals forward in the Bill?
Lord Goldsmith: There is a third issue, which is to do with the impact of this on the providers of telecommunications. I would not want to go much more into the detail of that; I believe that that can be dealt with as well. So that is my reason.
If I may, I should just like to make a slight qualification. The disclosure of evidence is not simply dealt with by way of the prosecution deciding, because there is evidence that is incriminating, where the prosecution can decide, and evidence that tends to exonerate, where that needs to be revealed in some form in the interest of a fair trial. That has to happen anyway, under section 18 of RIPA. You have to find a way of disclosing at least the substance of the matter, and you need to do something along those lines. Out of fairness to the agencies, the resources issue is not just operational; there are some areas in which the availability of resources, such as the translation of scarce languages, might be quite limited. I understand the concern about people not being able to listen to live conversations that may affect security today because they are engaged in the fruitless exercise of transcribing conversations from the past, which, ultimately, are not going to be relevant to the trial. Forgive me for the long answer, but I wanted to clarify the issue.
Are there any further questions from colleagues on matters other than pre-charge detention without trial. No? If not, I am equally happy to move on to the subject of pre-charge detention without trial.
My lord, if a threshold test, post-charge questioning, the use of intercepts and the more contentious area of plea bargaining were allowed, do you think that that would change the need for a longer period of pre-charge detention?
May I return to the plea bargaining point? This morning in evidence involving Mr. Ian Blair and Mr. Quick, the emphasis was made that one reason why the extension was required was that apart from the inability to secure intercept evidence, we do not have US-style plea bargaining. I was a little surprised at that, because we have made some, and indeed could make further, provisions on plea bargaining, but do you consider it to be a major issue?
Lord Goldsmith: I happen to be in favour of extending the ability for plea bargaining—or plea negotiation, as I prefer to call it—generally. I would be in favour of that, and the fraud review, which I established, dealt with it. Currently, you can ask a judge for an indication of the sentence, but you cannot involve the prosecution very much, and I would be in favour of doing that. However, I am not sure why it would justify the extension of the period of pre-trial detention. Pre-trial detention should be necessary for the purpose of identifying whether that person needs to be charged. There comes a period when you will get no more useful information out of them.
Lord Goldsmith: I am not sure. As I said, the purpose of a period of detention before charge is to allow the police an adequate opportunity to investigate whether the person is guilty of an offence and then to charge them. Post-charge questioning would enable you to charge them if they passed the threshold test and if you had enough evidence but still thought that there may be something else. There comes a moment when you are not going to get anything more and you ought to make up your mind about whether you will charge.
Lord Goldsmith, you have been commendably frank in your view that you do not see a need for the extension of pre-charge detention timing. I agree, as you know, but let us set that aside for the moment. If there were an extension, what is your view of the Government’s suggested mechanism in terms of judicial oversight and parliamentary scrutiny of the decision?
Lord Goldsmith: I have one or two points of detail, but I think that you have identified the fundamental points. Judicial oversight is critical; it is absolutely essential. Indeed, the proposal would not be ECHR-compatible and it certainly would not be right in principle unless the decision about whether somebody should continue to be detained was subject to judicial supervision.
On parliamentary scrutiny, I confess to being rather troubled. I am not troubled about the concept of parliamentary scrutiny because one of the great things about our democracy is that we have a high level of it. However, I am worried that there is a constitutional confusion between the position of Parliament, which looks at things across the board, and the position of judges, who adjudicate on the liberty of individuals.
I do not understand quite how the system will work. Under the scheme, the Secretary of State will make a decision and it will come before Parliament at some stage. Parliament will not be told anything that would be prejudicial to prosecution. That is plainly right, but I do not understand on what basis Parliament could decide whether it is right to extend the period. I would be very worried if questions of individual liberty were determined on party lines. Strong supporter that I am of parliamentary scrutiny, I do not see the value of it in this context.
In the circumstances that Parliament was used as this kind of quasi-grand jury, your advice as Attorney-General would have been that it would be quite wrong for Ministers to provide evidence to put before the House for fear of jeopardising any future conviction.
Lord Goldsmith: I would have asked, “How are you going to do that? How are you going to give Parliament enough information that it can make a decision?” I do not think that Parliament has sat in private since the second world war. I would have asked, “What will you be asking Parliament to do? Will you just tell it to trust the Secretary of State?” Frankly, that would not give a terribly great safeguard.
“convincing evidence of the mounting complexity and global nature of terrorist investigations.”
It states that
“developing trends have already pushed investigating officers to the limit.”
A very carefully worded section says:
“Accordingly we conclude that it is possible to foresee circumstances arising in the future in which the current upper limit for pre-charge detention should prove inadequate to ensure a full and expeditious investigation.”
Are you seriously sitting there and denying the efficacy of what the police are saying, and saying that you do not see the need, in exceptional cases, for an extension of the 28 days?
Lord Goldsmith: I am sorry, but I am seriously sitting here and saying that, for two reasons. The police have had significant plots and concurrent plots that they have had to investigate and they have done enormously well. Jacqui Smith’s statement the other day about the number of cases that have been prosecuted and the number of people who have pleaded guilty demonstrates that. It is a testament to our prosecutors, our intelligence services and the police and I pay tribute to them in relation to that. However, in none of those cases would it have been of help to have a longer period than 28 days. I looked hard at those cases personally when I was in government.
As I say, you come to a point where you have to ask yourself what is the purpose of keeping someone in detention any longer. Are you going to get a sudden admission from them? No, you are not. Are you going to get any more information from them? Well, 28 days is four weeks. It is a long period in which to investigate. Is it simply that you want to protect yourself against the chance that you might find something later? If you find something later, you can still charge them. If you charge them with a lesser offence, and if you allow post-charge questioning, which I believe is right, you can ask them about that as well. Or are you simply concerned that they may be a threat? We have legislation to deal with people against whom you cannot prove enough to prosecute them when there is a threat—control orders. I regret to say that I do not think that the proposal is right.
In principle, it is enormously important that something as significant as individual liberty, which is such an important part of this country’s background, should not be undermined or removed unless you can show that that is necessary, not just that it might be desirable at some future stage. The test of necessity is important here, and it is not met. I am also concerned that the proposal is counter-productive, because it sends a message to people, particularly to Muslim communities, that we are down on them and that this is another attack on them. The worry is that misguided young men may take that as a justification for taking up arms, as they see it, against us. The proposal needs to be necessary, and I do not believe that it is. That is why I seriously, but respectfully, disagree with ACPO’s conclusion.
These are the people who are investigating. These are the people who are out there day and night. These are the people who are not sitting behind comfortable desks. They are saying to all of us that it is extraordinarily difficult for all of us to understand the position that they are defining. I am finding it extraordinarily difficult, if I am dead straight with you, to understand where you are coming from.
Lord Goldsmith: Let me clear about this, because it is not the police who decide what the period of detention should be. Under the legislation, quite rightly, whether or not the police would like to continue to detain someone, it is for the prosecutor to decide whether it is appropriate to continue, and for a judge to decide.
Lord Goldsmith: I did not sit in on the evidence session that you have just had, but having been responsible for the Crown Prosecution Service and having considered the matter in considerable detail with the director and Sue Hemming, whom I respect significantly, and having been involved in detailed investigations, not all of them from behind a comfortable desk, I know that they as prosecutors do not see this need. It seems to be an important consideration, but that is for you to decide and for Parliament to rule.
Do you agree with Sir Ian Blair that it is better to get the extra days in the armoury now, rather than to get them in an emergency after some sort of attack? What do you think his motivation might be and, more widely, what do you think the Government’s motivation might be? What they are trying to do is pretty unpopular. Is their motivation something beyond thinking that it will help them in the fight against terror?
Lord Goldsmith: It is not for me to challenge—I am not going to—anyone’s good faith in putting this forward, or Ian Blair’s views. I respect him also. I just think that the test is wrong. During my time I had to deal extensively with the difficult balance between civil liberties, the fundamental freedoms on which this country is based and national security. For me, one of the principles is that, yes, things have changed and you must adjust the way in which we did things in the past, but you should only do that if it is necessary and proportionate. Doing it just because you might need it in the future does not, in my judgment, meet that test.
So during your time in government, or slightly before you were in government, but during your time in the House of Lords, we saw the Terrorism Act 2000 extend the maximum period of detention for terrorist suspects from 48 hours to seven days. We saw the Criminal Justice Act 2003 extend the period of pre-charge detention from seven days to 14 days. While you were still in government, we saw terrorism legislation extend the period of pre-charge detention, admittedly only after an application by the CPS, not the police, from 14 days to 28 days.
You are now uncomfortable. You made it clear in your evidence to the Home Affairs Committee that you were uncomfortable with 90 days, and you are on record as paying tribute to the more emollient approach of Jacqui Smith, compared with her predecessor. Did you not feel uncomfortable about any of the extensions to pre-charge detention that took place on your watch?
Lord Goldsmith: I think that the extension to 14 days just took place when I was in office, and the extension to 28 days certainly did. I looked very hard at the evidence and I was persuaded. I started from a position of scepticism, given that the period had just been extended, and I was persuaded that the increase in the methods that terrorists were using, particularly with communication, computers, encryption and the overseas element, justified some extension to the 14 days. Obviously, I looked hard at that issue with prosecutors and looked hard at the evidence that the police put forward—I was part of the group that considered the matter—and I did not believe that it justified an extension beyond, perhaps, 28 days. It certainly did not justify an extension to 90 days. I was very uncomfortable about that and would not have been able to support it had it come to my House to vote on. It is very important that we look at these matters enormously carefully. I have set out the principles that I think should be adopted, as well as my personal judgment on where we are on those principles and that issue at the moment.
May I press you on that point? Your answer is very interesting: you say that you started from a position of scepticism but were prepared to accept the extension from 14 days to 28 days under the 2006 Act on the basis of the increasing sophistication of terrorist networks in relation to computer technology, sophisticated communication and encryption. We can understand that, and you are well known for your defence of civil liberties, but do you see an essential contradiction between that position and your position now? You are effectively saying that the sophistication of the technology that terrorist networks use is now set in aspic and cannot possibly have moved on from 2006. Do you not accept that terrorist networks are becoming ever more complex and sophisticated and that our legislation must therefore be ever more flexible? Or has there been no improvement in terrorist technology since 2006?
Lord Goldsmith: When I was in government, we repeatedly asked those hard questions of the police. We said, “Show us what the need is. Show us what the evidence is,” but no one ever came forward and said, “There have been these changes, and they have resulted in a different position.” I have not seen the ACPO statement, and I thank Dari Taylor for reading it to me, but I do not read it as saying, “This has happened.” Neither do I take the remark that Sir Ian Blair is reported to have said to mean that. It might happen in the future, but the test that I apply is this: the fact that something might happen in the future is not a justification for doing something now.
Lord Goldsmith: That is not the way that I read the statement. That will be for Parliament to decide and for this Committee to consider, but I repeat that this is such an important issue to the fundamental freedoms that we in this country regard as being important that you do it where you are satisfied on the evidence that it is so. The evidence that has been put forward is speculative, not at all hard and, I am afraid, does not persuade me.
I have one last question. The current Home Secretary consulted on four options: legislation to extend the 28-day period as a blanket extension; the same option being implemented only after a parliamentary vote and for a temporary period—that is basically what is in the Bill; the proposal from Liberty that part 2 of the Civil Contingencies Act 2004 could be used to deal with the exceptional circumstances that were acknowledged by the Home Affairs Committee and by many other Members; or that we move to a system of judge-managed investigations similar to those in France and Spain. Which of those options were you most attracted to when you were examining this issue?
Lord Goldsmith: I am not attracted to any of them. Judge-managed investigations are an interesting idea but would be difficult under our system for much broader reasons. We have moved towards that, to some extent, by giving more power to the prosecutors, which was a big part of the agenda that I was following. With respect, they all seem to have been ways of finding a compromise between not having an extension and having some extension. I am not attracted to any of them because I take the rather straightforward position that where we are at the moment there does not need to be an extension and therefore we should not have one.
I understand that we are entitled to believe that you would have resigned as Attorney-General had the House of Commons not voted against 90 days in the Terrorism Act 2006 and that should the Bill come to your House in its present form you would vote against the 42-days provision. What is your assessment of the chances of this Bill, if it arrived in its current form, surviving in the House of Lords without the 42 days being taken out?
Our witness does not have to be in any way self-effacing about it. With the greatest respect to Mr. Blunt, that is a matter of politics. It has absolutely nothing to do with the issues about which witnesses are being interrogated.
I think, frankly, that when the witness has less than 10 minutes left, it is self-indulgent in the extreme and arguably an abuse of the process of the Committee to ask questions which are fundamentally about political calculation and not about the merits of the individual issues. If you want to ask another question ask it now, otherwise forever hold your peace and we will move on.
Before I ask my question I should just like to make the point that consistently Government Members have pointed out the significant technological advances of the terrorist threat without in any way alluding to the fact that our police forces have not stood still in their technical ability. I should not like it to lie on the record that our policemen are sitting there with just a truncheon whereas al-Qaeda are moving ahead with everything else. Our police forces have tremendous technologies at their disposal and it is wrong to pretend otherwise.
I want to bring you back, Lord Goldsmith, to the issue of the parliamentary oversight of the detention period without charge. As you rightly point out, paragraph 44 says that the Secretary of State would notify the House of someone effectively going into an extended period of detention. But we would not be allowed to know their name. We would not be allowed to know any details of the case and so on. What do you think we are supposed to be considering if that is put before either House? Is it a realistic proposition that we should make a decision based on almost zero information?
Lord Goldsmith: Can I put this way? If you are making a decision on an individual basis whether someone should continue to be detained further you need to consider a number of features. Is there a reasonable suspicion that that person has committed an offence? What evidence have you obtained so far? Is there a reasonable prospect that with a further period of time you will obtain further evidence that may lead to a charge? Fourthly, has the investigation been carried out with due expedition? Those are the issues that one needs to consider and I am not sure how Parliament would be able to consider any of them without considerable detail about the case being put before it.
You said earlier that, in effect, legislation has to be proportionate. I think that that was one of the phrases you used. I find it odd as a layperson that you should be so adamantly opposed to the extension of the 28 days. First, I hope you would accept that it is the role of the Government to provide a framework of legislation that will do its utmost to protect the public from the sort of atrocities that are perpetrated by terrorists. Secondly, within the framework, there is a process that is initiated, monitored and exercised by the judiciary to protect the human rights that you quite rightly say that we have to balance. Do you not find that a reasonable and proportionate response?
Lord Goldsmith: We have taken the view—rightly, I believe—that there needs to be a stated finite limit on the period of detention before charge, and that is for practical, pragmatic and, if you like, political with a small “p” reasons to say that that is what we do in this country. As it is, our period of pre-trial detention is far longer than that of many other comparable countries. Therefore, it is important to understand why it is necessary to extend the 28-day period.
My judgment, which I hope is based on a mature consideration of all the evidence that I saw when I was in Government and on my experience of dealing with prosecutions in such cases, is that the case has not been made for an extension, and therefore I cannot personally support it.
I thought that this would be an opportunity to go back to the first question that I asked you, which was about post-charge questioning. We discussed the question of judicial oversight, and I suggested that one possibility would be for Liberty to apply to the court if there were anxieties about it. You said that there were other ideas, but we did not have a chance to develop the point. Was there anything further that you wanted to say on it?
In your evidence earlier, you rightly commended the security services, the prosecution and the police on the work that they have been doing over the past couple of years. Obviously, we all appreciate that they have been very busy over that time: several prosecutions, many guilty pleas—a comparatively large number in relation to the actual prosecutions. I dare say that it would not surprise you to hear that there have been only three applications for extension beyond 14 days since the law was changed, and none whatsoever in the past 10 months.
Lord Goldsmith, you have experience at the heart of this Government. I am sorry to come back to you a second time. Why do you think that the Government are coming back to this issue a second time? This question is really important, and you are uniquely placed to answer it.
Lord Goldsmith: I am not. I have not spoken to the Prime Minister or the Home Secretary about this, and I do not think that it is for me to speculate, other than to say that I do not believe that either of them would want to do things for reasons other than because they thought that they were the right things to do for the country.
I wondered whether you might indulge me and acknowledge a concern that I have. The proportionality argument, which you expressed brilliantly, is acceptable when we are at a point such as this one, when acts of terrorism have been stopped. After 7/7, there was a significant appetite to act and to react, perhaps appropriately, perhaps inappropriately.
My concern is that we are at a period in which we have seen a sustained involvement of intelligence that has achieved a reasonably successful reduction in terrorist behaviour. Is it not appropriate at this moment—is this not the right time—to look back at what we have had to face up to, and to say that in exceptional cases only we could require an extension of 28 days?
Lord Goldsmith: If a compelling case had been put forward that this was necessary to protect the country and not just that it might help in the future, I would want very carefully to consider it. Right-minded and responsible people might differ on what the right solution is, but my conclusion is that that case has not been made and therefore I cannot personally support this proposed change.
Lord Goldsmith, thank you for your time and expertise, which the Committee greatly appreciates. I thank colleagues for all of the questions that led to those responses. Let us have a quick turn around and hear from Lord Dear next.
For the record, will our next witness, whom we warmly welcome, introduce himself.
Thank you. I do not propose to divide this part of our proceedings, for which there is quite a lot of time, into pre-charge detention without trial and other matters: it is going to be open house. However, by way of guidance at the outset, I shall say that although I am keen to facilitate everyone getting in and asking the questions that they want to ask, we need to operate within some basic rules. Questions about parliamentary calculation on whether this or that is likely to result in a majority being cobbled together are frankly, and I would have thought fairly obviously, not in order. Similarly, questions about people’s motives, which impugn or might be thought to impugn the integrity of people in public life, are singularly inappropriate, so let us stick to the issues. I want to be fair to everyone, but the Chair sometimes has to rule, and it would be helpful in those circumstances if colleagues would recognise that.
Good afternoon, Lord Dear. I refer you to your position on 42-day pre-charge detention, as I understand it, and in particular to an article that you wrote in The Guardian on 31 March, which might be as good a starting point as any. In that article, quite apart from indicating that you do not favour such as extension—you gave some extensive reasons concerning civil liberties and the attitude of minorities that would be affected—you also stated your view that
“many of the chief constables I speak to privately agree that they do not need the power to hold terror suspects for 42 days”.
I wonder whether you are in a position, while obviously respecting confidences, to amplify on that in any way.
We certainly had evidence earlier today from Sir Ian Blair and from Mr. Quick, whom—I hope I get this right—while acknowledging that it would be quite wrong to say that ACPO was unanimous on this subject, nevertheless appeared to give or sought to give the impression to the Committee that chief constables were eager to have this extension of power, and I wonder whether you could help the Committee on that point.
Lord Dear: Perhaps not very much. I meant what I said, and it was accurately reflected in that article. I have been away from the police service since 1997—I served for well over 30 years—but as a matter of practice I have since kept as close to the service as I can. Without having a head count, the article is correct. I ask the chief constables whom I meet—in an environment that is not so much social as semi-professional—a number of questions on topical issues, one of which is the issue that you are addressing today. In reply to my question, “Do you need an extension beyond 28 days?” I cannot remember one who has said, “Yes, categorically we do.” Some have said, “Well, it is getting pretty close” in terms of some investigations that they know of where the clock seemed to be running out on them. However, when pressed—I have not gone into the level of detail that you are going into with colleagues today—some said, “No, I don’t think we need it”. That is what I said in the article and that is the position as I understand it. That does not reflect the ACPO view—you might want to talk about that—but, rather, it is my own litmus test of the chief constables that I have met.
As far as ACPO was concerned—I hope that I recall this correctly—we discussed with Mr. Quick the composition of the ACPO terrorism and allied matters committee, which numbers about 70, and, as I understood his evidence, he acknowledged that it would be quite wrong to describe the committee as having a unanimous view on the subject.
From your point of view as a retired police officer, how have you come to the view that you expressed forcefully in the article?
Lord Dear: In no order of priority, I do not think that we need the extension of the 28 days—this is not a good place to start—partly because a lot of people oppose it. They are people of weight whom I respect, and they are experienced—one, Lord Goldsmith, has just left the room, but I could parade many others. More to the point, one needs to look at what other countries are doing. Forgive me for going into the detail that you may already have heard, but if one looks at comparable, or even at non-comparable, countries around the world, one will find that we are far ahead of them on 28 days: Turkey is seven and a half, Russia is five, and Spain is five. Critics could say that some of those countries are not common law countries, which is true, but it is interesting that they are a way short of 28 days.
If you look at common law countries with an accusatorial criminal law system, you will find that Canada has one day, America has two days, and that Australia, with 12 days, comes nearest to us. We already outstrip comparable countries, which leads me to my next point, which is also in the article. The moment that you put yourself that far ahead, without very strong supporting evidence, I believe that you become a propaganda coup for al-Qaeda and others, which already points to us, in my understanding, because we are at 28 days. I sure that it would be delighted if we were to move to 42 days—perhaps I do not need to go into the reasons for that because the way in which such a move would be handled is fairly obvious. My understanding of the theory of terrorism, as has been said for many years—I think it is true—is that many terrorist groups, historically in the past 40 or 50 years, have declared that all you need to do to seriously damage a western democracy is to push it and create a ratchet effect that causes it to erode essential freedoms and legal liberties until you get to the point at which you can point to it and say, “There you are. I told you so. We are fighting a totalitarian regime”. That is fairly obvious, but it is important. If you go past 28 days, you play into that milieu rather more readily.
I also believe that there are alternatives. I sat in for only the last 10 minutes of Lord Goldsmith’s evidence, but I heard him being questioned on post-charge questioning, which I introduced in that article. I believe that that is an alternative. I need to say—I may be pressed on this point—that I have the highest regard for the police and other security organisations as they are presently co-operating. They do a very good job for us. They are dealing with a problem the like of which I did not see. I was brought up with the IRA and other quite dangerous terrorist groups, but they were not suicide bombers. The suicide bomber has changed the landscape of counter-terrorism for obvious reasons. It makes the police’s life much more difficult. As Lord Goldsmith was saying before I began my evidence, I do not know of a case in which we have been pushed up against the 25, 26 or 27-day mark. In fact, most cases have been dealt with well short of that time. I understand that the bid for an extension to 28 days is a just-in-case bid, but I think that there are alternatives that do not fall into the trap of giving a propaganda coup to al-Qaeda, as I believe it would.
You have discussed the difference between the current and the IRA threats. Will you remind me when you were last operational as a police officer.
In recent times, apart from what we could describe as your semi-professional encounters with chief constables, have you heard any recent intelligence assessments on the nature of the current threat?
You would contend that shifting from 14 to 28 days represented, in your terms, a propaganda coup for our enemies?
And you would regard the actual model in the Bill as mere frippery? The notion of going beyond 28 days in any circumstance, albeit in emergency or utterly exceptional circumstances—those are minor matters in your terms. Would anything beyond 28 days, in any context, be wrong?
Lord Dear: I will try to answer you by addressing a different point. I do not think that it is a question of levels of culpability—of wrongness, to coin a phrase of my own. The further you go down the road of extending detention without charge, the further you go into the argument that you are eroding civil liberties. Perhaps that becomes obvious.
With regard to whether I would have voted for the change from 14 to 28 days, I do not know because I was not there. But I was uncomfortable with it, reading about it, purely as an observer then, outside the House. If your question is whether I would, willy-nilly, say no to any extension and not underpin that with some other legislation, I have already said in the article and answered your colleague that I believe that there are ways in which one can address the security services’ problems without an extension to 28 days.
And your view is that, regardless of where we go with intercept as evidence, or what we have done already in terms of acts preparatory, or the provisions in the Bill for post-charge questioning as you indicate in your article, you can see no circumstances whatever, given the nature of the current threat, in which we should go beyond 28 days, or afford the police the ability to go to a judge to ask for an extension beyond 28 days?
Lord Dear: With respect, I think that you are. You are pushing me to say that there are no circumstances at all, which is a doomsday scenario to me. If you get to a doomsday scenario, clearly you would have to revisit it.
As I understand the situation at the moment, we have not yet been pushed up against the 28-day barrier. I understand the arguments, which are well made, that it is there just in case you need it. The just-in-case argument goes along the lines of the growing sophistication of terrorism and counter-terrorism. I do not understand the detail, for reasons that I have already explained to you, but I can understand the principles. There is a race between the two. That frequently means, not only because you are being pushed to counter terrorism with more sophisticated means, but because of suicide bombing, that you have to interpose earlier. If you have not heard that evidence already, I give it to you now. You are driven to interpose earlier than you would normally in standard crime or even in the old IRA-type crime, which means that you do not have the evidence that you might have had had you delayed. You cannot afford to delay. I understand that. We are going around and around on the point.
I am saying that there are ways of not going past the 28-day barrier, not giving a propaganda coup to al-Qaeda, and still handling that problem. You have mentioned, for example, acts preparatory to terrorism. I would find it amazing if somebody was in custody at 27 days and there was no evidence at all that one could adduce. I would be very surprised to hear that, and quite alarmed because one would have expected evidence to have been accrued on the minor offences—the preparatory offences of which there are several—and one could then charge on post-charge questioning, with all the paraphernalia that we know about that, in order to hold that person in custody under the current legal structure.
We certainly have not had any evidence from the prosecution authorities that things happen quite as conveniently as that. The evidence might drop out of the process at day 27 or 28. We heard very clearly earlier that the aspersion cast by some, that in the most recent case the evidence was there at 14 and 18 days and they were just polishing the teacups for 10 or 14 days, was not true. On what prosecutorial experience do you base the notion that if you cannot get a lesser charge by day 27 you will never need an extension? I do not follow that at all.
Your prosecutorial experience, in terms of the prosecuting authorities, not your investigatory experience. You make the assertion based on what one would assume was some experience as a prosecutor.
Lord Dear: With the greatest possible respect, what I said was not that. I said that, as I understand it, “I would be very surprised”, and then I tried to answer your question. I am not saying that this has happened. All I know is that I have read—and indeed heard only half an hour ago or less—that the ex-Attorney-General said that to his knowledge there have been three cases, I think, that have gone past 14 days. That to me is quite significant. We are not yet bumping up regularly against 25, 26 or 27 days. I accept that as a fact from those who I believe would know what they were talking about, but I am being asked by you to hypothesise and what I am saying is that I would be very surprised if you get to the 25, 26 or 27-day point without something that you can charge in the terrorism world—acts preparatory, or membership of, would come to mind.
Those who are currently charged with protecting us in terms of counter-terrorism would hopefully be among those who “would know what they were talking about”, as you describe it, and they all—certainly the leaders of the country’s three counter-terrorism units, the Metropolitan police, and the ACPO cabinet and council—agree that this is a contingency provision that they require. What are they missing that you get and they do not, given all their experience, including that of your successor chief constable Paul Scott-Lee, who runs West Midlands counter-terrorism? Why do they say that this can be seen as necessary, to use Goldsmith’s words?
Lord Dear: You must ask them why they say that. You are asking me, and I am giving you a view as fairly, honestly and calmly as I can. You could ask Lord Condon—ex-Commissioner of the Metropolitan police—who I was talking to only today, and who agrees pretty well implicitly with what I have already told you.
Lord Dear, you have quite accurately expressed a concern that I think many people have, but have also accepted that there could be a doomsday scenario, with which I think we would also all agree. Would you therefore support the use of the Civil Contingencies Act 2004 if such a doomsday scenario, which has not yet happened but might happen at some point, were to come to pass?
Lord Dear: The short answer is yes. None of us can quite foresee what would happen. I suppose we could all construct a doomsday scenario for ourselves. At that point we would have to revisit the situation we are in, and we do have that facility. I am not an expert on the detail but I do understand the principle and invoke it.
Given your long experience as a senior police officer, in your opinion would that be a practical course of action to take if such a scenario were to take place? If not a practical course of action, would it be an achievable one? Would it work?
Lord Dear: In parliamentary terms, as I understand it, yes, it would work. In terms of what it would do on the ground to the existing problem, presumably the problem would either be of such a magnitude that you would be reeling from its impact, or it would be a continuing problem and you would be running to catch up, either of which is less than perfect. However, if you are asking, “Could it be invoked, would that help and what could you bring in its place?”, clearly the answer has to be yes.
In the summer of 2006, I was on a police liaison scheme and spent 25 days with the West Midlands police force—your former force. I was in the gold command room on the day of an operation to raid and arrest a number of terrorists who subsequently were charged and found guilty. During those 25 days, I asked virtually every police officer whom I came across whether they thought that the time limit should be extended, and without dissent they were unanimous that it should be extended. Were they unrepresentative of the rest of their police force, or is West Midlands police force unrepresentative of the police service as a whole? Or are you out of step with the West Midlands police force?
Lord Dear: I was interested in the way that you posed your question, because you were trying to answer it yourself. I do not know whether I am out of step with the police force; I am simply giving you a fair view. As I said at the beginning of my evidence, chief constables tell me, for no reason other than to be frank—so it occurs to me—that they do not need it. Let me put it to you in another way—[Interruption.]
Order. I apologise, Lord Dear, for interrupting, but I wish to tell Members that it is fundamentally bad manners to chatter to each other— whatever side of the House you might be on—when we have a witness in front of us giving us his time and expertise. I do not want to see it happen; it is plain rude and will not be tolerated by me in this Committee.
Lord Dear: Thank you very much. I was about to say that anyone faced with the problems with which I guess that West Midlands police were faced on that occasion—other forces have also been faced with them and will continue to be—and offered the chance for legal tools to make their lives easier, would say, “Yes, we could do with more.” I would be surprised if operational detectives were to turn down the offer of more time to make inquiries. However, from a different perspective—my perspective—one needs to stand back and weigh that very understandable reaction against essential questions of civil liberties, legal process and all the rest of it—the Chairman is nodding and I am sure that others agree too.
We are sitting here in order to find that balance. We could throw everything into law and enforcement mode, but if you pursue that view, I might say, “Why not have no limit at all? Why not simply hold people on indefinite detention until you find out whether you have the evidence?” But that is a road to ruin. The essential balance must be between how long you do that for and how much you value civil liberties and all that goes with that side of the argument, which is why Parliament has pitched at 28 days and why it is debating 42. However, I am not surprised to hear that people at the sharp end say, “As far as we are concerned, we could do with longer,” which essentially is what you are saying.
Obviously, there must be a balance with civil liberties, but I return to this proposed legislation, which provides for a fail-safe process—if you like—determined by the judiciary and acknowledged by Lord Goldsmith as being compatible with human rights. Do you not think that that fail-safe or reserve process is useful in supporting our law enforcement and intelligence community in doing something that we would all recognise as being absolutely vital—the preservation of people in this country and their right to live without terror?
Lord Dear: I think that I have already said, and I say again, that if you need more time to investigate the attendant case, a device has to be found to do that. I am not for one minute saying that when 28 days comes, you simply tip them out on the street no matter what. I am not saying that at all. I am saying that I do not think it sensible to go past 28 days without charge.
All the evidence that I have heard to date does not cause me to change my view that it would be possible, as you run close to the 28 days, to go for post-charge questioning. The moment you prefer the lower charge, with judicial approval and overview of the following questioning, 28 days goes off the slate altogether. You are not talking about detention any more because you have a charge under the normal judicial process of appearances at court and applications for bail.
We had a discussion on post-charge questioning and the consensus of a number of eminent lawyers is that it is not very effective. I will leave my questioning there.
It is a tenable position, but it is not a magic bullet. You will know that serious criminals and terrorists alike do not like answering questions or are trained not to answer questions. It may be helpful in some peripheral cases.
Before I put my question, may I correct one misconception that has been thrown at you? Lord Goldsmith said that if there was no judicial oversight, the proposal for extension to 42 days would certainly fall foul of human rights legislation. That is slightly different from what has been said and it is more than just a nuance.
May I ask your opinion on the efficacy of intercept evidence? It is not new. It was around when you were active on the front line, as it were. What is your opinion of intercept evidence in the anti-terrorism scenario?
Lord Dear: I have always felt that intercept evidence, following pretty well every other country of a comparable nature, should be admitted into evidence. That is on one side of the coin. It is probably just as important or more important in terrorism cases. But—there is a very large “but” to this—the opposition to it comes quite understandably from those who collect the evidence. I do not want to say in a public forum where that is but unless you push me, but you can guess where.
I mentioned earlier in answer to another point the technological race between the terrorists and the counter-terrorist officers. Although I do not know the detail, I know enough about it from those who are prepared to talk to me to understand that it is now very highly sophisticated indeed. The security authorities, including the police, are understandably very unwilling to disclose, by adducing the evidence, the way in which they gather that evidence, such as the technology, the means and so on. I can understand that.
This is a rather facile example, but if it is a straightforward telephone or mobile phone tap, it is no problem. If it is something a good deal more sophisticated, perhaps involving hacking into e-mail traffic or something more sophisticated than that, the security authorities would have to weigh up whether to risk exposing their techniques to the world. They could lose that one case or run with it and put the evidence in. It would be a very finely balanced judgment.
The latest position, as I understand it, is that if the safeguards can be found and the prosecuting authorities are able to adduce the evidence and protect the way in which it was gathered, they might have a case for using it. I do not underestimate the difficulty of that in the sort of examples that we are looking at in counter-terrorism. In the end, I think that, generally, the security forces would prefer not—I am guessing—to put the evidence in, for fear of compromising their techniques, and that they would prefer to use the information as intelligence rather than as evidence. There is a big difference, as you will understand.
I thank you for that detailed answer, but may I follow up with a runner? Such evidence is routinely used in courts in Australia and in the United States, for example, where they have highly developed security and information services. They are able to do it without compromising themselves. Why is it so different over here?
Lord Dear: It is attitudinal. In general, I am very much supportive; I have already spoken in the House of Lords, supporting the introduction of the use of intercept evidence across the board—not just in terrorism cases. However, I am trying to explain to you that I can understand the reluctance of people who have highly sophisticated means at their disposal and do not want to compromise those in ways that I need not explain again. You are quite right: Australia, Canada and other countries have used it for a long time. To be the devil’s advocate, however, they do not have—they do not investigate—nearly as much terrorism as is investigated here. That may well be true, so they are not tested to destruction as we might be. You have already outlined the principle, and I have nothing against it.