Welcome, and thank you for coming this morning.
I would like to remind all Members that questions should be limited to the matters within the scope of the Bill. We must work strictly to the timings in the programme order that the Committee has agreed. I hope that I do not have to interrupt any Members—or, indeed, witnesses—mid-sentence, but if we are running out of time, I will not hesitate to do so. I start by calling Gerry Sutcliffe.
Thank you, Mr Scott, and good morning to the witnesses.
The first question to you, deputy assistant commissioner, is on the new role that the police will have in relation to the Bill. I am concerned that more resources will be required and that the police will have to face more issues. Do you think that that is practicable? What are the issues related to manpower and resources, and do you foresee any problems?
Stuart Osborne: The role the police will perform under terrorism prevention and investigation measures is exactly the same as that under control orders, in that it is for us to monitor and enforce the order, so that will not change. Some of the changes in the Bill, such as with regard to relocation, night curfew or night residence, will mean that the environment becomes more challenging for police to work in. Therefore, we will need some additional resources to meet the additional demands. We have made submissions to the Home Office for a budget increase to cover that.
In relation to whether we will we be in a different place, the challenges will be greater, and the resourcing and policing techniques will need to be different. However, we are hopeful that we will be able to do our utmost to make sure that the risk does not increase.
You say that the duties will be similar to or the same as those under the present legislation. Are there any issues related to that? For instance, a number of convicted terrorists will be back in society next year because they will have been released on licence. Do you have any worries about the associations that might occur, given the opportunities that the Bill provides for individuals to associate with different types of people?
Stuart Osborne: Hopefully, the new Bill still has the ability to place restrictions on associations, but the issue will be the environment within which such associations may take place. Previously, with relocation, it was easy to identify the environment in which associations may happen. If a lot of people who are on the orders live in one close environment, managing that and looking at those associations is potentially more difficult.
Following on from that, there is the ability for relocation to be called into question under the new Bill. Does such people being in London for next year’s Olympics cause any concerns?
Stuart Osborne: Ideally, if people are at risk, the further you can keep them away from the point of risk the better. If people are all within one geographic location—and it might be that people do not stay in London; they might decide to go elsewhere—managing that will need more resources and a greater ability to intervene, should they get to the areas where we would not want them to be. The new Bill makes the provision to put in place exclusion areas for places that you do not want people to go to, so there is an ability to interdict at that point.
I welcome all the witnesses.
Mr Osborne, I want to ask a quick follow-up question about your earlier point about the business case that you submitted last Friday. Can you tell us the time scale for its consideration? When might you expect to hear?
If relocation was not available, what would be the extra cost of monitoring each existing control order to the police service? I know that it will be difficult to give a precise figure, but I am thinking about how many officers you would need, and what the resources and techniques would be.
Stuart Osborne: It is very difficult to answer. It is not only one measure inasmuch as the relocation is concerned, because the relocation is combined with a curfew, with an association, and then with the ability to restrict areas. That all adds up, so it is not simple. Essentially, if you wanted surveillance coverage for one person for 24 hours, that would require four surveillance teams, which is very expensive.
Stuart Osborne: I can provide those exact details to the Committee later on. Actually, we probably would not seek to do that just with personnel. We would look to find other ways of doing that more effectively. One issue with control orders at the moment is that we have managed to come to a style where we have been able to monitor and enforce them in an effective, efficient manner. We would need to look at how we could best do that in a similar fashion under the new TPIMs Bill. However, until we know exactly what the Bill looks like and how it will operate, it is difficult to say what additional resources would be needed and at what cost.
How important do you think that the relocation provision is in making the control order or TPIM regime effective, and in giving you sufficient reassurance that you are able, as you said, to manage the risk to the public?
Stuart Osborne: The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult. Where the choice of residence will be and how many people are within an area will affect the complexities, but there are different environments that make policing easier or more difficult. People could choose to live in an area that was difficult to police in normal circumstances, and that would be even more difficult to police in relation to monitoring control order subjects.
Do you feel that the TPIM regime will be as effective in managing the risk? You say that you will “hopefully” be able to protect the public—we all hope that that will be the case—but do you feel that the regime will be as effective as the current regime in protecting the public?
Stuart Osborne: In terms of policing, we are comfortable with the current control order regime because we know how it works and we have become accustomed over time to being able to use it effectively. The new freedoms that will be given to individuals will significantly increase the challenges that we have to face, and managing those challenges will increase the resources that we need. The degree to which we are successful in managing them depends on both the extent of the Bill and the additional resources that we get.
I have a final question about the case of CD, who was subject to a control order and relocated just months ago. That condition was appealed and upheld by the court. The possibility is that somebody like CD, who presented a significant challenge—the prospect of a Mumbai-style plot—and was actively seeking to gather firearms, would not be subject to a relocation condition in future. Does that cause you concern?
Moving on to look at what the Bill says about TPIM notices and the role that the police will have, there is supposed to be a new duty—you said that it was not changed much—for the Secretary of State to consult the chief officer of police about prosecution. What criteria would you use to try to prosecute those who are accused of terrorist activities?
Stuart Osborne: Just going back to that six figure, I will provide a definite answer to the Committee once I have checked where we are.
In terms of the amount of prosecution, we would look for any breaches in the legislation and the terms and conditions that have been written. It would be very much the Crown Prosecution Service that we would work with in terms of defining whether prosecution was possible and whether we had the sufficiency of evidence to take the prosecution forward.
This is perhaps a question partly for Mr Starmer. What would the bar be for prosecuting somebody for terrorist offences? The Government’s drive is to prosecute wherever possible. Would you use the threshold test? Would you use the CPS full test? How would you try to guide a chief officer?
Keir Starmer: The test would be precisely the same for a terrorism-related case as it would be for any other. The question would be, therefore, whether there is sufficient evidence to provide a realistic prospect of conviction and whether a prosecution would be in the public interest. The second question pretty well answers itself in a terrorist case. The critical question is always whether there is sufficient evidence.
If necessary, we use the threshold test. We prefer not to, but it is one that we can use. We would not approach a case where there may be a control order in any different way to any other case. It is precisely the same test. The critical question in such cases is sufficient “(admissible)” evidence. That is really where all the work is done in such cases. That is the focus of our examination of the files.
Your predecessor has said in his report that he thinks there could be much more admissibility of some of that evidence—intercept and so forth. What is your position? What could be done to close the evidence gap between the evidence that the security services apparently have and the evidence that could be used in a normal judicial process?
Keir Starmer: I think it is important to focus on what the difficulties are before coming to whether intercept is the answer. The difficulties that we confront in these cases are as follows. First, what we are looking at is very often an intelligence-based file, and therefore is not a file that has the sort of evidence that you might find in other cases. That brings into sharp focus the issue of admissibility: where has the intelligence come from? Is it a source that can sensibly be put into the public domain, or would that put other sources and individuals at risk? Is it coherent? Often, the intelligence picture may be fragmented because of the nature of intelligence—it may well work for an intelligence purpose, but may not work for building a case. There are also rules about hearsay which apply strictly in the criminal arena but not in the intelligence arena. It is true that hearsay evidence can now be adduced in criminal cases, but there are limits on that—the statutory tests. These are the issues we are predominantly looking at.
Even when there is evidence—something in addition to the intelligence that we can use—the question is then, is there enough to provide that realistic prospect of a conviction? If there is, we would prefer to prosecute, because we strongly believe in the priority of prosecuting, and we have prosecuted a number of cases, as everybody knows.
There is one additional group which warrants some consideration. Of the 12 control orders which are now in place, three are what we call post-acquittal control orders, meaning that we have taken the decision historically that there was enough evidence to bring proceedings, and the judge has very often taken the view that there is enough evidence to leave the case to the jury, but the jury has none the less acquitted; there is then an examination of the file. In these cases, the question is slightly different: there was obviously admissible evidence—that was the base upon which the case was put forward in the first place—so the question is, what is there, post-acquittal, that might cause concern to those who are assessing risk?
Returning to your question—how do we plug those gaps?—some of them are difficult to plug, because if you are dealing with intelligence, you are dealing with intelligence. As far as intercept is concerned, my own position is that, in principle, I am in favour of intercept evidence being admissible in evidence, subject to two caveats. The first is that there must be a fair trial, and therefore the disclosure issues raised by intercept evidence have to be fully thought through—and they are not straightforward, as everybody appreciates. Secondly, there should be a caveat that the use in any given set of circumstances or set of cases should not significantly impact on the ability of the security and intelligence services to do their job. But, in principle, I am in favour.
There is a difficulty in assessing whether or not intercept would have made the difference in historical cases, because, when historical cases were prepared, intercept evidence was not admissible, and therefore it was never part of the thinking for an operation that you would be obtaining admissible intercept evidence. To look at cases now and say, “Would it have made a difference?” is an exercise, but in my view a pretty limited exercise.
I am very interested in your comments about post-acquittal cases, where people have specifically been acquitted by a jury. May I ask one more question? There is an argument about whether the measures listed in, for example, schedule 1 could make it harder for the police to gather evidence. Part of the idea of relaxing the rules on electronic communications is to make this easier. What is your view on the balance of that? Does a TPIM, or a control order, actually make it harder to prosecute?
Keir Starmer: I think we need to be reasonably clear about this. The chances of getting admissible evidence for a prosecution after an order is put in place are much reduced, because the fact of the order is open—it is known to the individual—as are the conditions. I understand the thinking that, under the old control order regime, by controlling the individual and stopping them engaging in activity which might be criminal, you are hardly likely to further a criminal investigation. So far, that is true. We have prosecuted one individual who was on a control order, but that was as a result of information that came to light that related to his activities pre-control order. I appreciate that part of the thinking behind the Bill is that, if you could have a different approach that allowed the investigation to continue in a slightly different way, you might get a different result. I would not stand in the way of that, but, speaking frankly, there is not a great chance of getting evidence after the imposition of the order. There might be a chance of getting evidence about behaviour before the order.
Following on from Hazel Blears’s question on relocation, did you say that if you get the additional resources you can deal with the relocation issue?
Stuart Osborne: It depends where the relocation is and how many people are relocated to that area. The relocation was a very good way of managing risk. If we do not get the relocation, I think the risk overall that needs to be managed increases, and it therefore depends upon the resource that we get to manage that risk and whether we will be able to balance it out or not.
Mr Osborne, you said earlier in response to a question from Hazel Blears that you are very comfortable with the current regime because it has bedded in and everybody knows what they are doing. With the Olympics next year, how long will it take for the new regime to bed in—what time scales are you working to at the moment?
Stuart Osborne: To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires. It also depends on how many people actually go on to the TPIMs regime and how many people come off it. There are a lot of inter-dependants there. The control order put people in the protect and prepare part of the Contest strategy. TPIMs moves them back into the pursue element of the strategy, which is a slight paradox because it was only due to the failure to get sufficient evidence to prosecute them that we moved them into the control order in the first place. So there is a bit of a paradox there.
May I also follow up on the relocation aspects which Ms Blears raised with you? From recollection, the Government said that they had consulted the security services before drafting and publishing this Bill. Are you saying that there will not be any greater danger as a result of TPIMs coming into force, as opposed to control orders, providing you are sufficiently resourced?
May I then ask Mr Starmer whether he thinks the Bill strikes a better balance between civil liberties on the one hand and the need to protect the public on the other?
Keir Starmer: I am not sure that is a question for me to answer; that is a question of political judgment. Our role is at the beginning of the exercise to carry out the assessment we are required to carry out, with a view to taking a decision on whether we can prosecute, and then at a later stage—if it arises—consider breaches and whether they can be prosecuted. That is the extent of my current ambit.
If one looks at the previous legislation, it essentially enabled the Government to implement measures until such time as they were struck down by a court. This Bill contains a series of measures which are enumerated within it. What are the advantages and disadvantages of that from your perspective?
Keir Starmer: Again, that is not an issue that I have to deal with. Assessing the risk and taking the decision whether to impose a control order is not a decision for me. I suppose there is a question of whether or not the sort of conditions that are in the Bill would facilitate an investigation, and I have given an answer to that. I am absolutely clear that we will review as often as necessary during the currency of an order, we will prosecute wherever there is sufficient evidence, and if it is possible for an investigation to be furthered during the currency of the order, then that is a good thing. We would welcome that and if that throws up evidence, even in a rare case, that takes us across the threshold, and that is to be welcomed. I certainly do not want to be seen standing in the way of that, but that is the extent to which the conditions affect the decisions that I have to make.
One final question for Mr Osborne. You said it would take a year for you to be able to bed in under this new regime once it becomes law. Why is that?
Stuart Osborne: I think I said it would take a year to procure and train sufficient additional assets before it would be ready to do that. We have to order some of the assets so that they are made in advance. To train a surveillance officer and then have them fully able to operate in a challenging environment probably takes at least 12 months before they are deployable. Once they are deployable, they have to work within the environment under a new set of regimes that will need to bed in.
Stuart Osborne: The control orders with the condition of residence were in a policing environment that was much easier to work within. Having a curfew reduced the number of hours that people were out of their residence and needed surveillance. With some of the other association measures in the areas that they are, once again that could be controlled to a greater degree. Therefore, in order to mitigate those additional risks, we need a considerable number of additional human resources in terms of surveillance officers.
The threat to the Olympics has been mentioned a number of times. People might be misled in reading the transcript into thinking that the major threat to the Olympics from a terrorism perspective comes from those who are on control orders. Will you place in perspective and a slightly wider context your concerns about a terrorist threat against the Olympics, comparing those on control orders with those who you do not know anything about at all?
Stuart Osborne: I can only tell you the overall threat is at “severe” at the moment. The Olympics will be in a very challenging area in east London. A lot of people who are on control orders have come from the area initially, and so moving them back will create additional challenges for us. It is difficult to say whether they provide a greater threat than cells or groups that have yet to come to our notice or on which we have yet to receive intelligence.
Mr Osborne, would you comment on the role that ACPO has played in the development of the TPIM regime? Has ACPO been involved and engaged in the counter-terrorism review?
Stuart Osborne: ACPO has been involved in the counter-terrorism review in general, and a number of letters have been written and meetings held. Regarding TPIMs, we have been heavily involved in conversations about how that will be formed and the potential implications of various parts of the Bill as it has gone through different stages of drafting.
Would you comment on the provisions in the Bill relating to specified residence? Schedule 1 includes a provision which may require someone to reside within a specified residence in the locality where they live. Is that helpful and how might it assist with some of the challenges that you have identified this morning?
Stuart Osborne: A specified residence is very helpful, because it will give you somewhere where people are supposed to be based, rather than being somewhat nomadic. The question of where that residence is is more complicated. Some parts of the country are far more challenging for general policing and counter-terrorism policing. If you have a number of people all within the same area, the risk of saturation from surveillance units is quite big. There are other areas where using technical assets such as CCTV cameras and other issues that we may wish to explore might become problematic, as they will be very visible. Therefore, it is very useful to have that condition if there are too many people in the same area and because areas that are undesirable for policing activity create additional challenges.
Is the ability to put someone in a specified residence within a locality—I am sure the Committee will examine these provisions further—of assistance in seeking to manage surveillance and the other mechanisms that you wish to adopt?
Picking up a couple of points regarding prosecution, some people outside this room may think that prosecution is not pursued to the fullest extent or that in some way TPIMs or control orders may be seen as an easier thing to get and therefore prosecution is not pursued. Would you comment on the work the police undertake with the CPS to advance prosecution wherever possible, and is that the preferred option?
Stuart Osborne: Yes, may I say very clearly that prosecution is always the preferred option? Often it is only after months of investigation that the police are able to produce evidential material that results in the consideration of a control order or a TPIM. Throughout all of our CT investigations we heavily engage with the Crown Prosecution Service where we think that prosecution may be possible. Before anybody is placed on a TPIM, it is mandatory that we consult the CPS to ensure that a prosecution is not possible. The new measures involve the CPS to a much heavier degree in looking at the sufficiency of evidence.
Keir Starmer: May I briefly walk you through the process? Looking at the current regime, we are now involved from the outset if consideration is being given to whether a control order should be made. The deputy head of counter-terrorism, Deborah Walsh, is immediately notified, and she then allocates one of the prosecuting lawyers from her division who, day in, day out, prosecutes terrorism cases before the courts. They have a great deal of experience, as everyone here understands.
If a decision is made that a control order may be imposed, the exercise begins of reviewing the available material to assess whether it meets the code test that I adumbrated earlier. That approach is no different from the approach that Deborah Walsh and her team take week in, week out, on numerous other terrorist operations. They are in the business of reviewing material to consider whether prosecutions can be brought. If a prosecution can be brought, that is the priority and a prosecution is brought. We are firmly committed to that. If a prosecution cannot be brought, we give brief closed reasons to the relevant authorities. The allocated lawyer then remains with the control order in question. Deborah Walsh sits on the quarterly review meetings that look at all control orders. They are reviewed either if there is new material or if renewal is suggested, and we go through the same exercise. That exercise, the second time round, will include consideration of any of the material that has been led in the control order civil proceedings. At each stage we are applying the code test. So that is the extent to which we are involved in the process. We have found it useful to have an allocated lawyer stay with the case during its lifetime.
I want to pick up what the Minister said about ACPO’s involvement in the development of the Bill. We would all prefer prosecutions to be the first route, and in the deliberations there is a view that access to technology may assist in getting a prosecution. What discussions have the police had with the authors of the Bill on developing technology and on individual access to technology by people on control orders?
Stuart Osborne: The point was made earlier that covert policing is at its most successful when people are unaware that it is taking place. To serve a control notice on someone and then provide them with designated equipment on which they can talk or communicate will create some challenges if we expect them to breach any of the rules. Additionally, if people have set communications, there will need to be some additional assets to monitor and retrieve those communications. Translation and other issues may go along with that, too. Once again we come back to an additional resource.
Mr Starmer, may I bring you back to an earlier exchange with Dr Huppert? Is there anything in TPIMs that you think will allow more suspects to be brought to trial? If there is not, are there any other suggestions—apart from intercept, to which you have already referred—that you think the Government should take up?
Keir Starmer: I am not sure there is a particular provision that I could point to. It is quite clear that thought has been given to how one might use these measures to facilitate an ongoing investigation. The duties of consultation are slightly stricter than they were before, although the working arrangements that we have put in place go as far as the Bill. It is clear that some of the measures are designed to ensure that an investigation can continue if necessary. I am not sure there is a particular one I would point to. I think the thrust of that is something that I would support.
I am slightly sceptical as to whether new material will truly come to light post the order. It may in one case or another, but it is less likely. However, if this facilitates and we are all forced to focus, as we should be, on where there is any evidence that predates the order still undiscovered that can be found to bring a prosecution based on those historic facts, then I welcome that and would certainly work within that framework and in that spirit.
Mr Osborne, you mentioned the exclusion measure. I wondered, from your experience, how wide an area might need to be covered for that measure to be effective. It might clearly be an individual building, but how wide might it go?
Stuart Osborne: That depends very much on the individual and what it is. Each of these TPIMs, or each of the control orders, is tailor-made for the individual concerned. One factor of control orders at the moment is they are more an inclusion, defining those areas that people can move within. That is a lot easier to police. We know the areas that they move in so we can put in the asset and the right resource and know that is not going move a long way. If we have only areas of exclusion, it means the environment within which the individual would move is bigger.
May I return to the Olympics, which have been raised by several Members? Mr Osborne, you said repeatedly that, given sufficient resources, you will be able to meet the risks posed by specified individuals. Specifically on the Olympics, given sufficient resources, as you have said you would require, would you be able to meet the risks posed by those individuals under TPIMs?
After the terrorist attack at Glasgow airport, we became aware in Scotland that we were part of the terrorist area. We have talked about dealings with the Crown Prosecution Service. Do you have dealings with the devolved Parliaments, with Scottish law being different from English law? When you put out control orders—and when you are going to use TPIMs—does that happen under English law that may operate in Scotland, or is there some kind of cross-border relationship? That would, of course, also apply to Northern Ireland.
Keir Starmer: I can answer from the prosecution side, not from the control order side. We have obviously had to consider how we approach offences that take place both sides of the border. Building on the approach in the case you mentioned, we now have procedures in place with our colleagues in Scotland to ensure that we can deal quickly and effectively with issues that arise such as, not least, jurisdiction—where the evidence is and how you transfer it. That does not answer your question in relation to control orders, but certainly when it comes to criminal conduct, we have clear agreements and a good understanding with our colleagues in Scotland as to how we will approach those cases.
Stuart Osborne: And in relation to control orders, how wide they apply is something, once again, for the legislators. In terms of the policing requirement, however, the counter-terrorism unit in Scotland is intrinsically linked to the rest of the counter-terrorism network, and we have good relationships with our Scottish colleagues and with the Crown Office and Procurator Fiscal Service in terms of ensuring that all this is one joined-up piece of business. In terms of counter-terrorism, there are no boundaries between Scotland and the UK in terms of pursuing offenders.
I wanted to ask Mr Starmer and Mr Osborne whether the idea of maximising prosecution and wanting to bring people to trial whenever possible is a new issue. Under previous legislation, it was always the case that when there was sufficient evidence, a criminal prosecution would be brought. I would welcome your confirmation of that.
Keir Starmer: The priority has always been prosecution. It remains as prosecution, and that is right in my view—and, I think, that of the vast majority of people. Linked to that is the question of how robust we are on decision making. I have described the process and the approach. Lord Carlile, who is following on after this session—he is moving on as well—reviewed the position for 2010 in his last report, which was published on 3 February 2011. The last sentence of paragraph 144 of that report states:
“The process is followed: I am satisfied that no control order has been made where a prosecution for a terrorism offence would have satisfied the CPS standards for the institution of a prosecution, in the period covered by this report.”
He was an independent reviewer. He carried out that exercise every year and, no doubt, so will his successor.
Do you think that the mandatory High Court review of all TPIM notices will be advantageous for human rights and civil liberties? Do you think that the continued use of closed hearings and special advocates will continue to be against the interests of human rights and civil liberties?
Keir Starmer: That does not impact on the decisions that I make. The significance of the exercise in the High Court is that it is governed, among other things, by the Human Rights Act 1998, and therefore if there are inconsistencies between the substance or process and the requirements of the 1998 Act, they are teased out. That is exactly what has been going on for a number of years.
The Bill says:
“For the purposes of this Act, involvement in terrorism-related activity” relates to four definitions, one of which is “commission, preparation or instigation”. In your experience, are people put on control orders for a mixture of those four criteria?
One of the criteria is
“conduct which gives encouragement to the commission, preparation or instigation of such acts”.
Can you give an example of what that encouragement might be? Would you know of anybody who has been put under a control order just because they met that condition of encouraging a terrorist act?
Stuart Osborne: There are people we come across who, while they would not want to get involved in any physical acts, are very keen to encourage others to do so and to support their activity. A control order or TPIM would be useful to move such people away from those whom they seek to radicalise or influence to do things that would be detrimental to the UK.