Clause 23

Counter-Terrorism Bill – in a Public Bill Committee at 9:00 am on 8th May 2008.

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Post-charge questioning: England and Wales

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 90, in page 16, line 21, leave out subsection (2) and insert—

‘(2) Subject to subsections (3) to (6), a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 125, in page 16, line 21, leave out subsection (2) and insert—

‘(2A) Subject to subsections (2B) to (2E) a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.

(2B) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsection (2), if the police officer reasonably believes that the person may be charged with a related terrorism offence.

(2C) A judge may grant permission for further questioning under subsection (2) only if satisfied by evidence that:

(a) there are reasonable grounds for believing that the original charge was appropriate to bring; and

(b) it is in the interests of justice to allow further questioning in the circumstances.

(2D) Where a judge grants permission for further questioning under subsection (2C) he shall make such directions as he considers appropriate with regard to:

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions as required in the interests of justice.

(2E) A related terrorism offence means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

No. 91, in page 16, line 26, after ‘a’, insert ‘related’.

No. 17, in page 16, line 32, at end insert—

‘(iii) has, after satisfying himself that the original charge was appropriate and that further questioning would be in the interests of justice, given authority for the constable to question the person.’.

No. 92, in page 16, line 32, at end insert—

‘(3A) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsections (2) and (3) above if the police officer believes that the person may be charged with a related terrorism offence.

(3B) A judge may grant permission for further questioning under subsection (2) and (3) only if he is satisfied by evidence that—

(a) there are reasonable grounds for believing that the original charge was appropriate to bring;

(b) it is in the interests of justice to allow further questioning in the circumstances; and

(c) that further questioning would not be oppressive.

(3C) Where a judge grants permission for further questioning under subsection (3B) he shall make such directions as he considers appropriate with regard to—

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions in the interests of justice, and these directions shall be subject to variation on application by either party to the same court.

(3D) A “related terrorism offence” means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

No. 93, in clause 25, page 17, line 29, after second ‘a’, insert ‘related’.

No. 97, in page 17, line 29, leave out subsection (2) and insert—

‘(2) Subject to subsections (3) to (6), a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.’.

No. 98, in page 17, line 32, at end insert—

‘(2A) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsection (2) above if the police officer believes that the person may be charged with a related terrorism offence.

(2B) A judge may grant permission for further questioning under subsection (2) only if he is satisfied by evidence that—

(a) there are reasonable grounds for believing that the original charge was appropriate to bring;

(b) it is in the interests of justice to allow further questioning in the circumstances; and

(c) that further questioning would not be oppressive.

(2C) Where a judge grants permission for further questioning under subsection (2B) he shall make such directions as he considers appropriate with regard to—

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions in the interests of justice, and these directions shall be subject to variation on application by either party to the same court.

(2D) A “related terrorism offence” means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

No. 22, in page 17, line 32, at end insert ‘, and

(c) a judge of the Crown Court has, after satisfying himself that the original charge was appropriate and that further questioning would be in the interests of justice, given authority for the constable to question the person.’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As the Minister will be aware, there is across the Committee and, I suspect, across the House, a fairly universal view that extending the scope of post-charge questioning is desirable. There are, however, a number of points that need to be borne in mind. The Minister himself has acknowledged that post-charge questioning will not in itself be a panacea. Indeed, as terrorist suspects frequently say nothing at all in interview, there is no reason to suppose that they will say much more post-charge than they did pre-charge. From that point of view, it probably will not add very much. But one of the things that we have discussed is the fact that investigations continue post-charge. It is certainly fair both to a defendant and to the trial process if a defendant can have put to him any new information or evidence that may come forward post-charge.

That said, the way in which the Government have set about providing for these changes gives me, perhaps wrongly, the very slightest cause for concern. Post-charge questioning is potentially or theoretically open to abuse. A person may spend many months on remand in custody between charge and trial. If the police are being given a blanket right to remove the person from the prison where he is being detained and taken down to a police  station to start interviewing him again, that could become oppressive. I am sure that that is the last thing that the Minister or anybody would want because it would then be used when the trial process starts to argue that there has been impropriety in the way the investigation has been carried out.

It seemed to us, and this is the thrust of the amendments, that there might be some merit in requiring a constable wishing to interview a defendant to make an application to the court to explain why further interviewing and questioning needs to take place. The nub of that is in amendment No. 125, which states:

“A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person...if the police officer reasonably believes that the person may be charged with a related terrorism offence...A judge may grant permission for further questioning...only if satisfied by evidence that: (a) there are reasonable grounds for believing that the original charge was appropriate to bring; and (b) it is in the interests of justice to allow further questioning in the circumstances.”

The judge can then lay down some parameters:

“(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions as required in the interests of justice.”

One thing that is clear is that once a person has been charged, they are in practical terms in the hands of the court. They are first in the hands of the magistrates court, but because modern proceedings lead rapidly to committal to the Crown court, the time between charge and the first Crown court appearance is now relatively short. Once a person is in the Crown court, judges can give directions for further applications to be made. It could be argued—although against my amendment—that the High Court might not be the best place to go and that it might in fact be better to go to the Crown court judge dealing with the matter. That is an issue of detail, so I do not think that it undermines the broad thrust of the argument.

It would be better if there was a mechanism—if not this one, then some other—by which the court exercises a supervisory role over what is happening. The Government’s approach seems to be based on the notion that as long as we can put together some new PACE rules, which will undoubtedly be required, that in itself will be sufficient. Although we will certainly need PACE rules, I urge the Minister to consider carefully whether the extra safeguard of the ability to go in front of the judge would be desirable. During the Committee’s evidence sessions, Lord Goldsmith and others showed a willingness to consider the idea that at least a liberty to apply or some supervisory court role might be desirable. These are probing amendments, so I would be interested to hear the Minister’s view on that matter.

Another issue that arises in the amendments concerns the definitions under which the Government are seeking to allow post-charge questioning to take place. Clause 23 states:

“A constable may question a person about a terrorism offence where the person has been sent for trial for the offence if...the offence is a terrorism offence”.

We are talking about further interviewing for the same matter on which the person has been charged. The  Government have said there is no requirement for legislation to sanction interviewing of defendants in circumstances where they were being interviewed for another offence and not for the offence under which the original charge was brought, and the Committee has received some correspondence on that. The Minister might be right about that, but I have heard many voices within the legal profession express doubt about that, if the questioning that is taking place on the further charge is based on facts that are identical to those relating to the original charge. I hope that the Minister might be able to address that issue when he deals with these amendments, because the last thing that we want is to end up with legal challenges because we have not covered that matter satisfactorily in the Bill.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome 9:15 am, 8th May 2008

I do not think that I wished you good morning on my earlier intervention, Mr. Bercow, so I do so now. I rise to speak to two amendments that my hon. Friend the Member for Carshalton and Wallington and I have tabled. As the hon. and learned Member for Beaconsfield has already said, post-charge questioning is seen by many Committee members as a matter of some importance in providing an addition to the armoury of tools that is available to the investigating and prosecuting authorities when looking at terrorist offences. I do not think anybody has suggested that it will necessarily provide for a huge increase in the number of successful prosecutions because, as was pointed out by some of our witnesses, there is a strong suspicion that in many cases there would be further questions, but less in the way of answers being forthcoming from the person who has been charged and is held in custody.

We think that post-charge questioning is important and we are interested in exploring not only the process by which it would take place, but the safeguards that are in place to ensure that whatever emerges from it is admissible in court and is not in any way contaminated by the process. We would like to ensure as far as possible that the process is in good order and in accordance with previous practice.

The hon. and learned Gentleman raised the important point about whether it is possible to question on further charges. The Minister must be absolutely clear on that question when we are talking about further charges on the same facts. It is quite clear that it is possible to re-arrest, re-question and re-charge on new offences if further evidence is brought to light. It is not clear that it would be permissible to question further on the same facts and proceed to further charges. The Government have to be absolutely clear about that and if there is any doubt, they must adjust the legislation to ensure that it is not outwith this part of the Bill.

The second issue, which is common to the hon. and learned Gentleman’s amendments and my own, is judicial supervision. In Scotland, the position is clearer. Once the accused has been charged, he is under the protection of the court. That is implicit in the English and Welsh jurisdiction, but not explicit. Particularly in the circumstances that we are discussing, it is sensible to ensure that there is judicial supervision. I agree with the hon. and learned Gentleman that whether it is a judge of the High Court or of the Crown court is neither here, nor there. There is a principle that some judges at any level will be appropriate and some judges will be less  appropriate. This is not a question of the seniority of the judge, but of the level of supervision that can be applied.

The amendments that I have tabled raise the same issue that forms part of the amendments tabled by the hon. and learned Gentleman and I look forward to the Minister’s response.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I support the remarks of my hon. and learned Friend the Member for Beaconsfield and the hon. Member for Somerton and Frome on the need for some judicial intervention to permit post-charge detention questioning to continue. However, I would adopt the point that my hon. and learned Friend made about the status of the judge. I am by no means persuaded that it needs to be a High Court judge. My preference would be for at least a Crown court judge or the judge who is likely to have charge of the case.

As my hon. and learned Friend has pointed out, committal proceedings are now very rapid and case-management powers are much more fully developed than they were. It seems desirable in principle that the judge who will try the case, and who might already have made procedural orders in the context of the case, should also be asked to allow and regulate post-detention questioning. I adopt the principle of my hon. and learned Friend, but I think that a High Court judge is probably not required. At any rate, a Crown court judge is likely to be in charge of the trial.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I support amendment No. 125 and the right hon. and learned Member for Sleaford and North Hykeham, the hon. and learned Member for Beaconsfield and the hon. Member for Somerton and Frome. As you will have seen, Mr. Bercow, I am the only one, I think, who is without any form of legal training. Therefore, I ask the Minister for some clarification on one point, which has been touched on in legalese, but a bit of plain English would be welcome.

Currently, there is legal ambiguity over issues of repeat questioning for different terrorist offences. With straightforward offences, which I was taught to call ODC—ordinary decent crime—such as burglary, it is simple to have additional questioning on a separate charge, such as assault. With terrorism the picture is less clear, as the same facts are likely to be used to investigate a separate charge. I hope that the Minister can clear that up for me. For instance, a person charged with the preparation of terrorist acts might then be charged with conspiracy to murder—a much more serious offence. Would re-questioning over the same facts be permitted? PACE codes governing police conduct do not mention this area, so is it legal or not? I would be grateful for clarity from the Minister on that. I have talked to what I could best term “the legal community” and there is some ambiguity on the matter. I simply ask the Minister to address and to explain it.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I think that I am required to say good morning to you, Mr. Bercow, in case I am not called again.

I support the amendments already referred to, in particular amendment No. 125, which seems to crystallise neatly the position of the Home Affairs Committee and  the Joint Committee on Human Rights. Liberty has come out in favour of further safeguards. There is a possibility of repetitive and oppressive questioning, which we must all guard against. The reasoning behind the PACE code of practice in ordinary criminal matters is to ensure that oppressive and repetitive questioning does not happen, thereby bringing forward false confessions. The concerns are legitimate.

I believe that the amendment would strengthen the Bill. It would address the necessary balance that we keep referring to between ensuring that an individual is accorded his or her rights and ensuring that the police are not hampered in their investigative duties. It is a very sensible amendment. In fact, I remind members of this Committee that, as I have said, both those Committees recommended such provision. There is also a lengthy document from Liberty, which some might say is expected from it, but it is a sensible document. I pray in aid the report of Lord Carlile, who says:

“The Government should consider judicial supervision of the exercise of the power”.

He goes on:

“I have concluded that where post-charge questioning takes place on matters to which a defendant, properly advised by lawyers, could reasonably be expected to reply, an adverse inference should be available where there is a refusal. However, the new or amended Code must include protection against repetitive or oppressive questioning.”

The amendment would deal with that in large measure, together with an amendment to the code, because it refers to judicial intervention or supervision. New subsection (2D) refers to the length of time, the maximum period of questioning and so on.

The amendment would make the Bill far stronger, more human rights-compatible and would stand the test of time. I see no reason to believe that it would hamper investigation in any way. No one in this Committee would seek to do that. It really does improve the Bill. If the Minister cannot accept the precise wording or perhaps the designation of a High Court judge—he may prefer a senior Crown court judge or whatever—I hope that he accepts that judicial supervision is an important part of the amendment and the Bill. I hope that in due course the Minister will give consideration to, if not the precise wording, the precise reasoning of this important amendment.

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

May I first say good morning, Mr. Bercow? Having admonished the hon. Member for Somerton and Frome for not saying good morning to you, the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling kindly pointed out that I did not do so either, so good morning to one and all.

This is an interesting clause and an interesting group of amendments because we all agree that it is quite proper that post-charge questioning is in the Bill and that it could be useful. Many of us agree that its utility has probably been oversold. It is not the silver bullet or panacea that people think it is, but it is none the less a useful weapon in the armoury. On that, we are all agreed.

I think that we also all agree that there should be oversight. The distinction between our views is on what form that should take. In an earlier sitting, I said that where amendments were forthcoming to codes or anything  else, I would seek to ensure that the Committee has them before Report and I shall do that. Whatever measures we pass on oversight, as hon. Members have indicated, there will have to be changes to the PACE code and those will quite properly be made.

I am fairly agnostic on oversight, save for the notion that there should be some. I will pray in aid the evidence of Ken Macdonald—I hope that he will not be offended—who described roughly the position that I hold. He said that he saw the need for oversight, but was very clear that he did not think judicial oversight was necessary. To be entirely fair to him, I quote him in full:

“I do not believe that judicial oversight is necessary, although that is a matter for Parliament.”

He quite properly stated that caveat throughout his evidence on pre-charge, post-charge and everything else. He went on:

“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.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 45-46, Q118.]

I say quite candidly that that is the part on which I am relatively agnostic, if one can be relatively agnostic. I do not dismiss the amendments entirely. Through additions and amendments to the PACE codes, we can deal with matters of repetitious questioning, oppressive questioning and overburdening questioning. As I have said, I will bring forth those changes as soon as I can.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the Minister accept that his arguments would be more persuasive if the obligation to lay further PACE codes was mandatory? The Bill merely makes it permissible. Would he not be in a stronger position if it was mandatory?

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

As ever, the right hon. and learned Gentleman is way ahead of his time, although it is probably by accident rather than by design. We are coming to a clutch of Liberal Democrat amendments about which I shall be even more emollient: although I do not like the form of words, they include a matter that we can and should look at. I will promise the Committee faithfully at that time—I shall not do so now because I do not want to provoke you, Mr. Bercow—that we should consider putting a requirement in the Bill for the PACE codes to be amended.

Collectively, members of the Committee want post-charge questioning to be as robust a tool as possible. Quite fairly, hon. Members have said that to aid that, judicial oversight is preferable. I do not want to go down the road of discussing what level of judge that should involve.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice) 9:30 am, 8th May 2008

I am listening carefully to what the Minister says. He said that it ought to be possible to amend the PACE codes to provide for precisely what would be  oppressive and repetitive questioning. That will cause a difficulty, as every case will turn on its own facts. That is where, with respect, judicial supervision would be preferable. Yes, we could make it mandatory to follow the code to the letter, but it will be difficult to set out precisely what is oppressive in the circumstances.

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

Surely, any number of our enlightened legal colleagues on the Committee will know that. They make some of their money, at least, precisely on the notion that every case turns on its facts.

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

Precisely. Therefore, some dispute about the nature of post-charge questioning will be inevitable. How oppressive or otherwise the questioning might have been—despite what we have done to the code—might be discussed at the start of the trial, given any further evidence or no comment at all from the individual, or when someone goes to the judge to ask. None of that pre-empts some little dance, at least, in court proceedings about the nature of the post-charge questioning. That is an inevitable result of broadening the notion of post-charge questioning, and we cannot avoid that by judicial oversight. That is partly my difficulty, rather like Ken Macdonald. I think that the delay point can be overcome, although no judge would want simply to say yea or nay without being seized of the facts of the case, and that is fair too. If we are saying—and I do not know that we are—that judicial oversight pre-empts further discussion and debate about the nature of post-charge questioning in court, that is not the case.

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

In substance, I think that we can do that through the codes, but I say with all candour to the Committee, that I am happy to explore the matter further. In that sense, I am a Macdonaldite—not in relation to ’29 to ’31 MacDonald, but the Director of Public Prosecutions. I am confident that, given where we might get to with the next set of amendments, we can, in the Bill or otherwise, mandate changes to the code and ensure that our concerns are dealt with properly. I do not entirely dismiss judicial oversight and all the detail; I simply ask the Committee to lay those matters to one side for now. Let us go away, have a further look, and re-examine the clauses once amended. I am happy to return to the matter with further answers on Report. I am not throwing the baby out with the bath water; I am saying that I am not convinced, although I see the argument. I am convinced that we could do it better with the code rather than otherwise, but I am happy to continue to explore the matter. In that very emollient context—

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I do not think that the right hon. Gentleman has entirely addressed the issue of further offences or questioning on the same offence, which is a key point.

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

I did not think that this would be the end of our deliberations on the matter; I was saving that issue for other occasions. I take the hon. Gentleman’s point, and I will look at that too. I start from the premise that, if there is a more substantial charge during the course of an investigation that can be laid with the defendant, it is perfectly reasonable for him to be re-cautioned in that context. I take the point about the debate going on with our legal brethren, but I am currently convinced that that is appropriate. I also take the point—and this should be explored further to get us to the post-charge questioning regime that we all want—that given the nature of the offences, it is often the same material and evidence, in part or in substance, that forms the further charge or an adjustment to the same charge. Between what we already have with the PACE code on further charges, and the provision that we are setting up here with regard to further questioning, the hon. Gentleman’s point will be covered. I know that that is difficult because of what we say about the PACE code in the next group of amendments, but I am fairly comfortable with that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

On the ability to interview somebody for a separate offence, there has been an exchange of correspondence and the Government have stated their case and advised that that is no problem. The use of the word “related” in our amendments would meet the possible problem. However, my colleagues at the Bar who practise in this area differ slightly from the Government in their assessment of when it is permissible to interview at present. It might be a belt-and-braces job, but it would be better to get it right now, than to have a problem later which defeats part of the intention of the Committee and the House.

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

I accept that. Even if my agnosticism turns into outright hostility to the thrust of the amendments, I think, although I am not 100 per cent sure, that I will nick the word “related” at the very least. There is no distinction between us about the principle, but about practicalities, which is why I am trying to be as helpful and responsive as possible. In that context, I ask the hon. and learned Gentleman to withdraw the amendment, perhaps pending further discussion before Report to see whether we can clear these matters up and get to where we all want to be.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am most grateful to the Minister for his comments. These amendments were tabled as probing amendments so that we could look at the two key issues. The first relates to judicial supervision, and the second concerns definitions, what constitutes the same offence or a separate offence, and ensuring that both types can be interviewed after charge if necessary. I am greatly reassured by what the Minister said about going away and looking at these issues afresh. Clearly, if only to avoid time-consuming activity on all our parts, it is important for the Government to maintain the channels of communication with us so that we know well before Report whether there is a meeting of minds on the matter. We might wish to return to it on Report if the  Government disagree with us. At the same time, I have no desire whatever to disagree with the Government on this issue.

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

I am happy to give that assurance. That is perfectly reasonable: if there is not the unity that we want, the hon. and learned Gentleman should have the time to marshal his resources appropriately for Report.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I beg to move amendment No. 14, page 16, line 25, after ‘offence’, insert

‘, at any time up to the commencement of the trial,’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss amendment No. 21, in clause 25, page 17, line 32, at end insert

‘, at any time up to the commencement of the trial,’.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

We are having a very useful discussion this morning. For once, all parties are on exactly the same wavelength in what we are trying to achieve. We are simply trying to make sure that the legislation fits the circumstances that we see developing. These are probing amendments in support of an observation by the Joint Committee on Human Rights in response to the evidence that it heard on this matter. I hope that the Minister can reassure me.

Our amendment simply seeks to ensure that post-charge questioning does not continue once the trial has commenced. Common sense suggests that that would be the case. After all, once a trial has commenced the proper place for questioning is in the context of the trial, with the direct supervision of the judge for the case, rather than in a police cell, with that evidence being given second-hand to the court.

I present Lord Lloyd of Berwick in support of my case with some difficulty, because he is wholly opposed to post-charge questioning and made that abundantly clear. Although I so often agree with him, in this instance I do not. In the debate on the Queen’s Speech in 2007, he said:

“Even if it were to be allowed, where would it stop—at the door of the court? To allow a defendant to be questioned by the police up to the moment that he goes into the dock would be quite intolerable. No one would seek to defend that; but where else is the line to be drawn, once post-charge questioning is allowed?”—[Official Report, House of Lords, 12 November 2007; Vol. 696, c. 264.]

My response is that a clear line can be drawn at the trial’s commencement. That is when I would expect an absolute prohibition on further post-charge questioning.

I hope that the Minister will reassure me that that is exactly what will be contained in any future PACE codes on the matter, and that it will be clear that once the prisoner appears in court, that is the end of the investigative process, and the beginning of the judicial process.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I have two observations. First, I agree with the hon. Gentleman that it would be quite wrong for questioning to take place during the currency of the trial. That is so clear that the point need not be argued. Secondly, I am bound to say that I am cautious about the suggestion that post-charge questioning should take place close to the trial. As a matter of general principle, the prosecution should achieve some finality in its case at least in good time before the trial. It is probably a matter for the PACE codes or perhaps judicial supervision to determine exactly when the post-charge questioning must cease but, as a proposition, one is entitled to say that the Crown must get its tackle in order in good time before the trial, so that the defendant knows the exact nature of the case that he or she must face, and that the ground cannot shift under his or her feet.

Those are my two observations on the principle. I have a nasty feeling that the amendment might encourage the police to suppose that they are entitled to question right up until the date of the trial. That is not the hon. Gentleman’s intention, but I have a nasty feeling that it might have that effect. However, I understand his thinking and I support it. I hope that we will get reassurance on that point from the Minister.

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

I think that the right hon. and learned Member for Sleaford and North Hykeham can have that reassurance. If nothing else, the amendment is a useful hook on which to put the notion that the codes of practice on commencement of post-charge questioning would make it clear, notwithstanding his point, that post-charge questioning relating to offences about to be tried should cease before the trial. I actually think—I repeat that I am no lawyer—that, as has been implied, the judge would rule all evidence obtained as a result of questioning a suspect about the offence after the trial has started as unfair and therefore inadmissible. That will be made clear in the amendments to codes, regardless of where we end up with the last discussion.

More explicit reference to what will be in the codes might be put in the Bill—I have agreed to look at that proposal. I undertake to consider the general point on offering at least a draft of amendments to the code so that we can see what they might look like before Report, as I have said. However, I cannot accept the amendment because there are some problems with it. It makes no mention of pre-existing forms of post-charge questioning, limited though they are, and its impact on them. Nor does it refer to intelligence interviews that have nothing to do with the immediate offence but which might be pressing, nor retrials. I do not like the amendments, although I appreciate the spirit in which they have been tabled.

The code of amendments will make clear, as the Committee has, that post-charge questioning is probably not terribly useful or fair beyond the start of a trial or in the preparation for a trial. In that context, I ask that the amendments be withdrawn.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

Although I agree with the Minister, I have one further thought. In any Crown court proceeding there is a preliminary hearing before a judge, who will look at the state of the case. Surely there would be reference then to whether post-charge questioning was needed, therefore negating the rush to trial and then suddenly aborting it because of an argument about some questioning the day before. That could be dealt with at the preliminary hearing.

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

Potentially so. I hear what people say about the speediness of committal these days, but “rush to trial” and “the English legal system” are two phrases that do not necessarily run together—more is the pity in some cases. The point applies equally to what we mean by the start of a trial.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 9:45 am, 8th May 2008

I am glad that the right hon. Gentleman is being helpful on that point. Might I make a suggestion that he might ponder, that any application made to a judge with regard to post-charge questioning must be an inter parte application? That is to say that the statute or the rules should provide that the defendant or the detained person is always present and/or represented at any such application.

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

The right hon. and learned Gentleman seeks to provoke me gently, because there is no judicial oversight for post-charge questioning in the Bill. Were there to be, I would be with him in that regard, purely because, should there be post-charge questioning or otherwise, I cannot see the fairness of, or the requirement on the part of the state for, ex parte proceedings. The point is entirely fair. None the less, I take the serious point made in the amendments and in the spirit of my response I ask that the amendment be withdrawn.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I thank the Minister for his response. I believe that there is no difference between us in the outcome that we seek. This is not an attempt to provoke the Minister further, but I again make the point that were judicial supervision to be in place it would be self-limiting because the judge would rightly say, “No, the trial is to commence next week. You are not going to have a further period of post-charge questioning because that might prove inadmissible in the trial.” There is a self-regulating structure available if we have judicial oversight of post-charge questioning. The Minister has, however, given me the sort of assurances that I sought. I never intended to press the amendment to a Division at this stage, but it is an important area and should be contained in any forthcoming codes of practice. There must be clearly defined good practice in that area to avoid inappropriate use of what is a considerable extension of existing powers, which we all want to see, but properly regulated. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I beg to move amendment No. 16, in page 16, line 34, leave out ‘may’ and insert ‘must’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 18, in page 16, line 35, at end insert—

‘(4A) Codes of practice made under subsection (4) must include provision for—

(a) questioning to take place only in the presence of a lawyer representing the interests of the accused person;

(b) a transcript to be made available to the judge authorising the questioning under subsection (3);

(c) the questioning to be subject to a video recording;

(d) for the purpose of the questioning to be confined to questioning about new evidence which has become available since the accused person was charged; and

(e) preventing oppressive questioning by specifying appropriate time limits.

(4B) Prior to the commencement of the trial the judge must review any transcripts made available to him under subsection (4A)(b) having regard to subsections (4A)(d) and (e).’.

No. 20, in clause 90, page 59, line 33, at end insert—

‘( ) The provisions of Part 2 (detention and questioning of terrorist suspects) come into force—

(a) in England and Wales on the day after the revised codes of practice under section 23(4) have effect, and

(b) in Northern Ireland on the day after the revised codes of practice under section 25(3) have effect.’.

No. 23, in clause 25, page 17, line 34, leave out ‘may’ and insert ‘must’.

No. 24, in page 17, line 36, at end insert—

‘(3A) Codes of practice made under subsection (3) must include provision for—

(a) questioning to take place only in the presence of a lawyer representing the interests of the accused person;

(b) a transcript to be made available to the judge authorising the questioning under subsection (3);

(c) the questioning to be subject to a video recording;

(d) for the purpose of the questioning to be confined to questioning about new evidence which has become available since the accused person was charged; and

(e) preventing oppressive questioning by specifying appropriate time limits.

(3B) Prior to the commencement of the trial the judge must review any transcripts made available to him under subsection (3A)(b) having regard to subsections (3A)(d) and (e).’.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Amendment No. 16 deals with the codes of practice and does two things. First, under subsection (4) it requires that the changes in the codes of practice be made, in contrast to the permissive power given there at present. Secondly and importantly, it sets out the parameters for those changes to the codes of practice, to ensure that there are proper protections against oppressive questioning. We all recognise that whatever utility there is to post-charge questioning—and we all hope that it has utility—the person charged and in custody is potentially vulnerable, and it is important to maintain the highest level of safeguards, not least to ensure the efficacy of the process with respect to the admissibility of the evidence in court. It is pointless to conduct a heavy-handed interrogation that devalues the evidence in court, making it more likely that there will not be a conviction. We must be explicit about the protections for the individual being questioned.

A key area—on which we shall touch in the next group of amendments, so I shall not deal with it extensively—is to ensure that the purpose of the questioning is the collection of further evidence, and not the achievement of a series of silences from the witness, which can then be used under the adverse inference rules to strengthen a case in court. That would be a misuse of the powers of questioning.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I think that the hon. Gentleman is speaking to his amendment No. 18, and I am a little puzzled by paragraph (d) of the new subsection (4A) that the amendment would insert into the clause. The paragraph would confine questioning to new evidence. It is far  from clear to me why the subsequent questioning should not be used to clarify issues that arose in the previous interviews. I do not see why it should be so confined.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

It is not my intention to lay down firm rules; I do not say that what is in the amendment is necessarily what should go in the Bill, and I look forward to the Minister’s response. My purpose is to ensure that post-charge questioning would be used for a proper purpose, relevant to the circumstances that we have been exploring throughout our discussions on the Bill. It should not enable the police or investigating officers to take short cuts in charging.

Charges should be properly based when they are made, but post-charge questioning would then make it possible to explore either further evidence that could not come to light in the normal detention period—let us remember that many of us argue that the questioning is part of the apparatus that makes the extension of pre-charge detention unnecessary—or evidence of further criminality, so that the investigating officers could properly come to a conclusion about the full criminality of the accused person. That seems to me to be the proper use of the process.

The right hon. and learned Gentleman may be right; the exclusion may be unnecessary. I included it because it was among the suggestions of the Joint Committee on Human Rights. The Committee did extensive work on the subject, and it struck me that putting forward the safeguards that it felt necessary, on the basis of the evidence it received, would be of value. The right hon. and learned Gentleman’s point is arguable, and I accept that.

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

To pursue the same point, my difficulty with the amendment is that it rather presumes clarity of evidence at the point of charge. It is perfectly right to suggest that there may be entirely legitimate post-charge questioning in relation to that clarity. At the extreme, a computer or hard disk may be offered in evidence at charge, and not all of the hard disk may have been de-encrypted. The lawyers will have another fine day in court, saying that it was registered as evidence at charge and no further questions can be asked to seek clarity as has been suggested. That is an extreme example, and we can clearly deal with that, but there are difficulties about presuming that there is absolute clarity as to the evidence that is offered at charge. To lock it off entirely from further questioning would not be terribly helpful.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I understand that point and I am prepared to consider the matter further. I have to say, though, that what the Minister suggested would constitute new evidence. If material that had been encrypted at the point of charge was then de-encrypted and used in questioning, that would constitute new evidence and would fall within that definition. However, that is a matter that we can discuss further. I do not want to fall out over the detail of the prescription when it is the principle that is important. Given that the Minister has hinted that he is open to suggestions, I would say that changes must be made to the Police and Criminal Evidence Act 1984. We all accept that, and he understands that perfectly well. The question is whether those changes should be in the Bill or not. There is sufficient evidence from those who have considered the matter in detail to  suggest that it would be of value to at least have the principles for the amendments to PACE in the Bill. Some of them are self-evident and cover a range of matters, including the prohibition on oppressive questioning, the right to a lawyer, and the subject of the recording.

The most important thing is to provide the context in which post-charge questioning takes place and to ensure that it is an orderly and judicially based process. That is what I am trying to achieve. I hope that the Minister will consider the matter further and bring back amendments of his own if, having considered it, he feels that it is appropriate to put the matter in the Bill. I hope that he will not reject the principle behind my amendment even if he cannot accept the precise wording. If he did that, that would be progress and it would enable us to achieve clarity, and clear limitations on the process. That will ensure that everybody knows what can and cannot be done, what is and what is not appropriate, what would be admissible in court and therefore of value in the evidential and judicial process and what will undermine the case, which would be utterly pointless and something that we would want to avoid.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is very helpful for the hon. Member for Somerton and Frome and his colleagues to have tabled the amendments to enable us to consider further what should or should not appear in PACE codes. I hope that he will forgive me if I say that amendment No. 18 is too prescriptive in the way in which it lays down how the system should operate. My concern has always been to have judicial supervision over the granting of permission, but I do not see any reason why, once that permission is granted, it should not be covered by the ordinary PACE codes and any extra PACE codes that are needed. It has been argued on many occasions that we should video record all interviews in police stations. However, such an idea has been shied away from because of the prohibitive cost. It has been suggested that if we were to do it, it would be an enormously helpful tool to the prosecution when it deals with problems or allegations about what goes on in the setting of interviews. I do not see why a special rule should be made for post-charge questioning if there is not a rule already in place for pre-charge questioning. I would be very surprised if the majority of terrorist-related cases are not already videoed in the course of the interviewing process. The same is true of the transcript. I agree with the hon. Gentleman—although this is so obvious that it hardly needs to be said—that we must have new PACE codes because the existing ones do not cover this contingency. From that point of view, whether it is “must” or “may”, this system cannot properly get off the ground unless we produce acceptable codes that cover this new area of questioning.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 10:00 am, 8th May 2008

I want to make three points. First, I, too, agree that the obligation to lay the PACE codes should be mandatory. Secondly, it is my belief that the laying and making of new PACE codes should be a condition precedent to the implementation of this part of the Bill, and it is my intention to table an amendment relating to the implementation and commencement of clauses to bring that about.

I shall echo what my hon. and learned Friend the Member for Beaconsfield said about amendment No. 18. I entirely understand that the hon. Member for Somerton and Frome is seeking to protect the interests of the detained person, but like my hon. and learned Friend, I see no particular reason why the ordinary PACE codes should not apply.

I would like to make some specific comments about amendment No. 18. The hon. Member for Somerton and Frome needs to keep in mind that, although it does not happen frequently, sometimes detained people choose to be questioned in the absence of solicitors, and it would be a bit perverse to prohibit them from doing so if that is what they want. With regard to the transcript of the questioning, the important thing is that it should be available at trial. It is not self-evident to me why it should be made available to the judge authorising the process. With regard to video evidence, in principle it would be good to have video evidence of all interviews. As a matter of fact, it is now rare for defendants to assert that they have been ill-treated during interviews, because they are all taped. However, it would be helpful in cases where a defendant is extremely contemptuous—[Interruption.]

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I apologise for interrupting the right hon. and learned Gentleman, but there is a certain amount of chatter taking place. I am sure that Members will want to listen with rapt attention to the right hon. and learned Gentleman.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

You flatter me, Mr. Bercow. None the less, I will accept flattery for whatever reason.

Video evidence can be helpful when a defendant is extremely contemptuous of the questioning process. I remember that when I was doing the Minister’s job many years ago, I once went to the Castlereagh holding centre in Northern Ireland. At that time, the police did video interviews of IRA and other terrorist suspects. I remember looking at the process of the interview and seeing one of the detained people just lolling back and really laughing at the questioning officer. Such evidence is helpful for the prosecution to see how the interviewee is responding, so there is merit in videoing.

I also think that paragraph (d) in amendment No. 18 is too restrictive. The Minister is right when he says that definitional questions will arise as to what is new evidence. In any event, it seems rather perverse that further questioning should not be allowed in respect of doubts that have arisen in the previous questioning. Indeed, it can also work to the advantage of the defendant. I will briefly cite the case that I have just concluded. The defendant was asserting that he had made phone calls to relevant parties. That was true, because it was reflected in the billing records. It would be perverse if anything that we did prevented a police officer from going back and saying, “You said in the previous interview that you had made these phone calls. Would you be good enough now to indicate where in the billing records they are to be found?”

We should be cautious about being unduly restrictive in the PACE code requirements that we have in mind, although I am always on the libertarian side of the argument. I hope that the hon. Member for Somerton and Frome will recognise that although I entirely accept his good purpose in the matter, I do not wish to see his amendments carried or pushed any further forward.

Photo of Tom Brake Tom Brake Shadow Minister (Olympics and London), Liberal Democrat Spokesperson (Olympics and London)

I rise in part to wish you good morning before it is too late to do so, Mr. Bercow. It is clear from the debate that has taken place so far that the Minister has expressed some sympathy for some of our amendments, but less so for amendment. No. 18. Indeed, we have heard expressions of concern from the official Opposition on that score as well. However, I hope that the Minister will be able to respond specifically to paragraphs (a) to (e) in amendment No.18, to make clear his views on those points.

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

It is a shame that our hon. Friend the Member for Newark—I use the word advisedly—is not in his place, because we have shared a number of Bill Committees and I think that he has a little bingo card for striking through some of my more pompous phraseology. “Canard” was Tuesday’s, after something I said in reference to the identity cards legislation. The term I have not used thus far, but which is appropriate for amendment No. 18, is undue specificity, or in similar terms, over-prescription. That is, putting measures on the face of the Bill that apparently guard people’s liberty, but which are far too restrictive for what we seek to achieve with post-charge questioning and defendants’ rights. I do not like amendment No. 18 at all and others have been through some of the reasons. Why have a post-questioning regime at all if either, as was being pointed out, the individual cannot be further interviewed at his own request without a lawyer or, as set out at paragraph (a), there is effectively a complete veto by the defendant on post-charge questioning? All that they would have to do is say, “I don’t want a lawyer.” That cannot be what the hon. Member for Somerton and Frome was seeking to do.

The right hon. and learned Member for Sleakeham—[Interruption.] I apologise. The right hon. and learned Gentleman has made it clear that a transcript should be available, but the notion that the judge should review it at some stage before post-charge questioning seems entirely irrelevant. On video recording we have made it clear, not least because of requests from the police and the JCHR, that in future all terrorism cases will have compulsory video recording, although I think that that is pretty much the case already. We can certainly explore whether video recording is suitable for post-charge questioning and it may well be, for all sorts of reasons—not least our trip down memory lane to Castlereagh. As I have already said, paragraph (d) in amendment No. 18 is not appropriate, but time limits, video and all such elements can and should be dealt with in the changes to the police code.

I shall not embarrass anybody, but I shall read out my brief on amendment No. 16. The amendments would make it compulsory for codes of practice to be put in place for post-charge questioning about the offence charged in England, Wales and Northern Ireland. It has always been the Government’s intention that the codes of practice governing police questioning of a suspect will be revised to take account of post-charge questioning. Indeed, it would not be possible, as the hon. Gentleman inferred, for these clauses to work without such revisions, so we believe that it would be unnecessary to make the requirement compulsory. What we are saying is that these provisions for post-charge questioning will not work without revisions to PACE. It is irrelevant, therefore, to say that they should be compulsory on the face of the Bill because if they are not compulsory,  the whole system will not happen. The Committee would be in a more satisfactory position if, in this one instant, a little call my bluff game was taken on board and the “may” became “must”. The inference should be that we want the thing to work, so it is purely a tidying up exercise to replace “may” with “must” to include a compulsory element, with my assurance that at least the principal heads of such amendments to the code are available to the Committee before Report.

Unaccustomed as I am to accepting amendments, I accept with all due humility amendment No. 16, making it mandatory rather than optional for provisions to be made under the PACE codes, but I reject the others with the contempt that I am more comfortable with.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

The contempt that the hon. Gentleman was expressing is of course also a contempt for the JCHR, which was the author of the provisions, and I am sure that that will be communicated to the Chairman of that Committee in due course. In all seriousness, I am grateful to the Minister for his response. I wanted us to have a substantive debate on this issue and I think that we have had that. He is very clear about some of the provisions that ought to be in the revision of PACE, and that is good news.

I have spent years of my life discussing amendments that either replace “may” with “must” or “must” with “may” and whatever I put down there is usually civil service advice to say that the opposite has to apply, and at the end of the day it very rarely amounts to any real difference in the effect of the Bill, other than affecting the sort of mood music that surrounds it, so I am grateful to the Minister for accepting amendment No. 16. In that context, I assume that he also accepts amendment No. 23, as it is identical and refers to the same thing.

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

That is purely the clarification that I was going to offer. That is entirely the case. I of course accept amendment No. 23 as well as amendment No. 16.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Two amendments in any sort of criminal justice Bill Committee is good going. So I will rest on that, other than to say that it would be obviously helpful to have the drafts of the revisions to PACE before Report.

Furthermore, I hope that the Minister will consider whether he wishes to put anything in the Bill that gives the basic principles behind the PACE revisions, not because of any pleading on my part but because of the evidence of a lot of people who have examined this subject and believe that that addition is necessary. That is the basis on which the JCHR made its recommendation; it did not just pluck that recommendation out of the air but made it on the basis of the evidence that it had received. I think that that recommendation was echoed by my noble Friend Lord Carlile of Berriew in the evidence that he gave; he suggested that it would be better if there was a very clear provision in the Bill in this respect. Certainly, he was strongly of the view that there need to be very clear safeguards in place.

On that basis, it is not my intention to seek a Division on amendments Nos. 18 or 24. However, I wish to press amendment No. 16 and, in due course, amendment No. 23.

Amendment agreed to.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I beg to move amendment No. 19, page 17, line 2, leave out subsections (6) and (7).

Photo of John Bercow John Bercow Conservative, Buckingham

With this, it will be convenient to discuss amendment No. 25, in clause 25, page 18, line 1, leave out subsections (5) and (6).

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Thank you, Mr. Bercow. I think that we can now rapidly complete our consideration of this issue of post-charge questioning.

Amendment No. 19, which I move in my name and that of my hon. Friend the Member for Carshalton and Wallington, deals with adverse inference. The Minister knows that we are uncomfortable—I put it no more strongly than that—with the principle of drawing adverse inference from silence and the qualification that that gives to the right of silence. Having said that, I am not deaf to the advice that we received in evidence that this principle was a key part of the utility of post-charge questioning.

I do not intend to press these amendments to a vote in the Committee today. However, where adverse inference is drawn in court proceedings from silence on matters raised in post-charge questioning, the specific circumstances of post-charge questioning in which that person remains silent—we have all accepted that those circumstances are different from those of normal questioning—should be drawn to the attention of the court. As everybody who gave evidence said, the defendant will almost certainly have been advised by their lawyer to say absolutely nothing in response to post-charge questioning, even if that advice is not always taken. However, the amendment does not say that those circumstances should be brought to the attention of the court; it would delete the provisions concerned, and that is why I shall not press it.

Will the Minister respond to the proposal that rules of court and advice to judges trying a case should suggest that the matter be brought to the court’s attention so that the jury is aware that, although it is in order to draw an adverse inference from the silence, it should be qualified by the circumstances of post-charge questioning, in which someone was in a police cell and had been charged? That is a complicated way of saying something that might or might not have value in court proceedings, but it is a strong suggestion from those with better legal training than I have, which is none. It was made to the Joint Committee on Human Rights in written evidence, and it seems to be an appropriate suggestion for the Minister to respond to.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:15 am, 8th May 2008

I am not unsympathetic to the anxieties expressed by the hon. Member for Somerton and Frome, and there is a long history of arguing about whether we should be entitled to draw adverse inference from silence. At one time, under our legal principles, that was prohibited.

My experience in the days before adverse inference could be drawn was that in certain cases juries had no difficulty drawing adverse inference from silence, notwithstanding the fact that they were told specifically by the judge that they should not do so. Equally, my impression in so far as I have the seen the working of the adverse inference system operating since—I have done so on a number of occasions—is that it does not  seem to have made much difference the other way either. If the jury believes that there is a good reason why someone might have decided to remain silent, whatever adverse inference is suggested, it does not make it. If, on the other hand, it cannot think of a reason why someone did not say something at an earlier stage that they now put forward in court, for example, it draws its own conclusions.

For those reasons, although I would be prepared to engage in a debate as to whether we should restore the right to silence generally, I am not sure that any special safeguard is required in this context. It seems to me that post-charge questioning is post-charge questioning. It clearly falls into a slightly different category, and counsel representing a defendant would have no difficulty in pointing out that such matters were put to the defendant at a later stage. Defendants can, as the hon. Gentleman is aware, say that their legal advisers told them to say nothing, and the jury can make of that exactly what it will. A special protection is not required, as we agreed a long time ago, under a previous Conservative Government, the principle of changing it. I had some reservations at the time, but as so often happens with changes that are introduced to try to make the criminal justice system more efficient, they turn out not to make much difference.

Another classic example is that of letting in previous convictions, which the hon. and learned Member for Medway (Mr. Marshall-Andrews) touched on so well. It was suggested that that would be a short cut to convicting defendants, but it seems to have led to longer trials, because everyone’s character is now thrown in left, right and centre during the trial process, which previously did not happen.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I support very much what my hon. and learned Friend said. In 1994, I had some doubts about whether it was desirable to abrogate the right-of-silence rule. Such doubts were misplaced on the whole because, first, I do not think that there was much damage. Secondly, I think that my hon. and learned Friend was right when he said that juries, in proper cases, did draw an adverse inference, whatever the law might strictly have been at the time. It is extremely difficult to make a distinction in principle between silence in pre-charge questioning and silence in post-charge questioning. I do not see how the distinction of principle can be sustained. In any event, it is open to the defence counsel to make such points as he or she might deem desirable.

In answer to the point made by the hon. Member for Somerton and Frome, that the detained person is likely to answer no questions, I would rather doubt that. Nor would that be the advice that I would give to a detained person. My advice would be, first, to try and ensure that there is full disclosure from the police—that is sometimes pretty difficult. Once the detained person has some disclosure, they should make a written statement. If the detained person asserts his or her innocence, the sensible detained person would say in their written statement, “I have limited disclosure from the police as to the facts on which they rely. I now, however, wish to assert my innocence.” Then they would make a few robust statements, and sit down—which is what I propose to do now.

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

First, may I apologise to the right hon. and learned Member for Sleaford and North Hykeham, for truncating the name of his constituency to Sleakeham?

The substance of the amendment has been adequately dismissed by the hon. Member for Somerton and Frome. However, it seems to me that one can only make a negative inference from post-charge questioning if the existence of the post-charge questioning is recognised by the court. If there is any doubt, as has been said, the circumstances of the questioning would be made very clear, very rapidly, to the courts. There may well be some larger debate about whether to restore the right to silence, with no inference from that more broadly, but that is not a matter for this part of the Bill. Nor is the introduction of a more explicit provision for post-charge questioning appropriate. Although it is not the intent of the hon. Member for Somerton and Frome, whatever value we might get from post-charge questioning might be negated. I have seen—not as a lawyer, but more generally—videos that show the manner in which the silence is carried through by individuals. Whatever the provisions, the jury will make their minds up one way or the other.

I do not think, therefore, that the amendments are useful, and I ask that they be withdrawn. I look forward to the wider debate on the right to silence in the English and Welsh criminal justice system at some other stage—but not now.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

The Minister says not now, but that is something that we ought to discuss at some stage. I listened to the hon. and learned Member for Beaconsfield and to the right hon. and learned Member for Sleaford and North Hykeham, whose constituency, in my experience  in Committee, causes as much problem as my own, inexplicably in my view—Somerset and Frome is a perfectly easy thing to say, but no one can say it.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Meirionnydd Nant Conwy is dead easy in comparison.

I am grateful for the opportunity of raising the issue. I listened to the sapient advice of my colleagues on the Committee, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23, as amended, ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.