Clause 2

Counter-Terrorism Bill – in a Public Bill Committee at 11:00 am on 29th April 2008.

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Offence of obstruction

Question proposed, That the clause stand part of the Bill.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

In the context that I have described, the five clauses hang together. Clause 2 creates a new offence of wilfully obstructing a constable when he is exercising the power under clause 1 to remove documents for examination, pending lawful seizure or otherwise. That will help to ensure that the power can be used efficiently and effectively by deterring potential obstruction of the constable. It is a summary offence, punishable by up to 51 weeks’ imprisonment in England and Wales, 12 months in Scotland and six months in Northern Ireland. The sentence limit in England and Wales will be six months until section 281(5) of the Criminal Justice Act 2003 comes into force, when it will be 51 weeks. The purpose of the sentence is to act as a deterrent to obstructing the constable. The penalty for the offence is no less than that for similar offences of obstruction, for example, under section 47 of the Terrorism Act 2000 and section 26 of the Immigration Act 1971. Imposing a sentence of any longer than that would be disproportionate to the nature of the offence. It is difficult to conceive of circumstances where simply obstructing an officer removing a document could justify, say, three years or more in prison.

If the individual were involved in terrorist activity he would be charged with a terrorist offence, and if convicted dealt with appropriately for that offence. It is unlikely that a person would be charged with the lesser offence of obstructing a constable were he guilty of the more serious behaviour. If it is clear that there is no terrorist involvement, there is no reason for the  individual to be treated differently from any other non-terrorist suspect. Interlocking with all the other elements of this part of the Bill, that is appropriate and proportionate.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister. I do not disagree with anything that he said. However, I wish to raise a more general point, which probably does not require to be touched on in this Bill but which I think has some bearing on the matter. The Minister has, I understand, confined obstruction to physical obstruction or attempting, I suppose, to chuck a document in the dustbin. One of the issues that we have had to consider on a number of occasions—as he is aware—is encryption keys and encrypted material. Some of the material that we are concerned with here is, or could be, encrypted material that is downloaded from a computer. I would be grateful if the Minister could tell the Committee how the law stands on that. My recollection from past debates on the subject is that there has been anxiety as to whether the penalties are stiff enough in respect of non-co-operation of that kind. That is why I tabled some amendments to the clause, although I am aware that they are totally deficient because they would require Crown court and not magistrates court procedure. While the Minister has reassured me completely regarding what I would call the old-fashioned offence of obstruction—as I think it is generally understood—I continue to be anxious that we have a proper regime in place, which provides a sufficient deterrent for somebody thinking that an easy way out is not to provide encryption keys when encrypted material has been seized.

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

I want to follow on from my hon. and learned Friend the Member for Beaconsfield and ask the Minister whether he is satisfied by the severity in the clause. The consequences of obstruction during a search can be quite severe, especially the obstruction of forensic evidence. A vast proportion of terrorist cases obtain convictions on the basis of forensics, rather than other types of evidence. There are also many cases where forensic evidence fails because the evidence has been corrupted by contamination. A suspect could damage the evidence and so opt for the lesser offence of obstructing evidence, rather than that which could be proven by the forensics that they disrupt.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome 11:15 am, 29th April 2008

I do not think that I have welcomed you to the Committee, Mr. O’Hara. I have intervened, but not spoken to any proposals. The hon. and learned Member for Beaconsfield has rather elegantly interpolated an entirely spurious debate in terms of the Bill, but one that it is very important to have on counter-terrorism. As he is in order, we must be too.

The hon. and learned Gentleman asked whether the arrangements for ensuring that a key to encryption is provided are adequate. An anxiety was expressed in our evidence sessions by the Metropolitan Police Commissioner that the tariff was insufficiently high to allow for remanding a suspect in custody, rather than bail being given by a lower court. That is a genuine concern because some of us see custody as an answer if it is impossible to interpret encrypted material in the period allowed for pre-charge detention. I would be grateful for the Minister’s  view on whether we are right about the ability of a court to detain somebody who wilfully withholds the key to encrypted material that might be of evidential value in a terrorism case.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

The bail point should be pursued. I am aware that Sir Ian made those remarks. As I understand it, under section 49 of the Regulation of Investigatory Powers Act 2000, five years is the maximum tariff for such an offence. We can explore elsewhere whether that is appropriate. For our purposes, there is no power under the Bill for the police to demand the key to un-encrypt a document. That is partly because we have the RIPA powers.

I am grateful for what the hon. Member for Somerton and Frome said about the reasonableness of a charge of obstruction. I do not entirely agree with the hon. Member for Lancaster and Wyre because if the obstruction becomes more serious than is described by the hon. and learned Member for Beaconsfield, other charges may kick in. If the offence turns into wilful assault or something else, the relevant charges will prevail.

The hon. Member for Lancaster and Wyre is right in his broad point about the ability to utilise forensics in terrorism cases and that is dealt with elsewhere in the Bill. In the narrow field of clause 1 and the temporary seizure to establish the legality of formal seizure, obstruction as outlined is entirely right. As I think I said last week, we have finalised, produced and have in place the statutory instruments and codes of practice necessary for the part of RIPA that deals with encryption so that it works effectively. We agreed quite rightly with the industry that that had to be done in a practical way for it to be effective, rather than on a whim or exhortation from the Palace of Westminster, which would cause enormous difficulties in the practicability of establishing the charge.

The Lord knows that I do not want to challenge an established QC, rather than a more recent one and I congratulate the hon. and learned Member for Beaconsfield again for attaining silk. I use the term “Friend” loosely, but my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) said on Second Reading that in effect, under common law and the rule of law, the Government have indefinite detention powers on encryption because if a judge in a trial instructs an individual to give the key to un-encrypt a database, it is contempt if he fails to do so, and he can be imprisoned for contempt for ever. The judge will call him up every now and then to ask whether he is able to behave. If the answer is no, the judge will say, “Well off you go.” My hon. and learned Friend alluded to the fact that that was entirely indefinite and that that was the way to deal with such cases.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. and learned Member for Medway is absolutely right. The only problem is that that is on the basis that the case comes before a court. If the only basis on which the prosecution is likely to be brought is contained in the encrypted material, the judge will not have the opportunity to coerce the defendant in that fashion.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Entirely right. Far be it for me to accuse my hon. and learned Friend of spuriousness and obscurantism, when the hon. and learned Gentleman does it so eloquently. None the less, because encryption  is dealt with elsewhere, I think that the obstruction offence under the clause is appropriate and proportionate. I repeat that I accept some of the concerns that hon. Members have. However, clauses 1 to 5 hang together for the limited period in question and I think that they are appropriate. Hon. Members can see how they will assist searches related to terrorism.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.