Appendices
Appendix 1: Government Response dated 5 June 2008
to the Committee's Twentieth Report of Session 2007-08
Counter-Terrorism Bill
This letter responds to the recommendations made
in the report by the Joint Committee on Human Rights on the Counter
Terrorism Bill which was published on 14 May 2008.
Recommendation 1
As always, in this Report we ground our analysis
in the human rights standards with which the Government's counter-terrorism
measures must be compatible, and we proceed from a full recognition
that the Government has a duty to protect people from terrorism,
a duty imposed by human rights law itself. We also remind Parliament
of one of the central and enduring insights of the Newton Committee
of Privy Councillors which reported on the operation of the Anti-Terrorism,
Crime and Security Act 2001: that counter-terrorism measures ought
not to be extraordinary measures in a special category of their
own, but, as far as possible, part of the ordinary criminal law
of the land.
We only legislate to create terrorism-specific offences
and powers where this is necessary because of the particular nature
of the terrorist threat and where there are not existing provisions
in the criminal law. Our counter-terrorism legislation therefore
contains some specific terrorism offences and powers. However,
nearly half of alleged terrorists who are prosecuted in this country
are prosecuted for ordinary offences under the criminal law. Prosecutions
for terrorism offences and for general offences where these are
related to terrorism are heard in open court using the normal
rules of procedure.
Recommendation 2
The Government has failed to consider these
alternatives to extending pre-charge detention as a coherent package.
Taking these measures in combination, we do not think it can be
said that there is really any gap in public protection which warrants
taking the extraordinary step proposed by the Government to increase
pre-charge detention up to a maximum of 42 days.
We acknowledge that a number of measures have either
been enacted or proposed, which can reduce the pressure on investigation
teams. We accept that they either have improved, or may improve,
our ability to deal with terrorism cases through the ordinary
criminal process, including by introducing more flexibility in
charging, and therefore reduce the risk that investigation teams
will come up against the limit of pre-charge detention. The Government
has considered these measures, enacted and proposed, as a coherent
package but believes that they cannot do more than reduce that
risk - they cannot eIiminate it entirely. They therefore do not
remove the need for extended pre-charge detention to investigate
and question suspects in exceptional circumstances.
For example it has been suggested that a version
of the post-charge questioning regime might negate the need for
extended pre-charge detention. Time is needed pre-charge to uncover
and analyse evidence against a suspect as well as to put that
evidence to the person in interview. Terrorist suspects very often
give 'no comment' interviews in any event so post charge questioning
does not address the same need as pre-charge detention.
We do, however, believe that post charge questioning
for the offence for which the suspect has been charged would help
the police and CPS to strengthen the case against terrorist suspects
thereby helping to secure more successful prosecutions and an
important element of this will be to allow adverse inferences
to be drawn where the suspect refuses to answer questions. The
police are already able to question a suspect post charge about
other offences as, if the police have a reasonable suspicion (perhaps
based on further evidence coming to light) that the suspect has
committed another terrorist offence; they can question them under
caution.
We therefore agree with the Home Affairs Select Committee
that while post charge questioning will reduce the pressure on
investigation teams, it will not eliminate the need for extended
pre-charge detention because it will not reduce the evidential
threshold that is needed to charge a person in the first place.
Intercept as evidence would not eliminate the need
for extended pre charge detention for terrorist suspects. Not
all cases involve the use of intercept. There will be times when
intercept plays no part in the case against a particular suspect.
Even in cases where intercept does provide compelling intelligence
- we would have to look at the material and decide whether it
could be used evidentially. That decision would of course depend
on the scheme chosen - but there would be a number of considerations
for example whether using the material evidentially might compromise
other operations or would disclose sensitive techniques or technologies.
This may mean that the intercept in any particular case cannot
be used because of the sensitivities associated with it. Equally,
in cases where it could be used, it may take some time properly
to evaluate the sensitivities attached to it such that charges
still cannot be brought more quickly than would otherwise be the
case.
In any event, if intercept is allowed and as a result
we find that it enables some suspects in a small number of cases
to be charged more quickly then we would simply not need to invoke
the higher pre-charge detention limit. That is the key thing about
our proposal on pre-charge detention - we are not going for a
higher limit now but only if there is a clear and exceptional
need for it. If we find, in future, that we don't need the higher
limit then it simply won't be brought into force.
Using the threshold test and extending pre-charge
detention are not mutually exclusive. The threshold test is already
fully used in terrorist cases. As the DPP made clear when he gave
evidence to the Home Affairs Committee on 21 Nov last year, the
threshold test was used in 2 cases where suspects were charged
at the 27/28 day point.
But the threshold test cannot be used in every case.
It does not mean you can just charge a suspect on the grounds
of reasonable suspicion: It requires that there must be a clear
likelihood that sufficient admissible evidence will become available
within a reasonable time to meet the full code test. There may
be a very small number of cases where this does not apply even
at the 28 point - for example where material coming from overseas
or from analysis of computers is still being investigated but
this has not yet been examined to the extent that the prosecutors
can be confident this will yield sufficient evidential material
to meet the full code test.
If we find that the threshold test - together with
other measures such as intercept as evidence and post charge questioning
- means that more than 28 days are not needed in future then we
will not make the higher limit available but that is not a risk
we can take now.
It has also been suggested that a system for 'plea
bargaining' would remove the need for extended pre-charge detention.
Part 2, Chapter 2, of the Serious Organised Crime and Police
Act 2005 places the common law practice of 'Queen's evidence'
on a statutory footing in England, Wales and Northern Ireland.
It clarifies and strengthens the common law provisions that provided
for immunity from prosecution, undertakings on the use of evidence
and sentence reductions for defendants who co-operate in the investigation
and prosecution of other offenders. This option can be used in
terrorist cases, but there is no evidence to date that It will
result in a substantial increase in prosecutions in these difficult
cases.
Finally, the new offence of acts preparatory to terrorism,
in s.5 Terrorism Act 2006, broadens the charges available to the
CPS and has proved effective in a number of cases. But it will
not be applicable in all cases and, where it is applicable, it
will not always reduce the length of time required.
The fact that some of those charged at the current
limit were charged with acts preparatory- on the threshold test
- suggests that there may be cases where it simply takes a few
days longer than 28 to secure sufficient evidence to charge persons
even with this 'preparatory' offence, and even on the threshold
test.
Recommendation 3
We are extremely disappointed by the Government's
failure to provide a substantive response to a substantial report
on the issue which has proved the most controversial in the context
of the current Bill. We look forward to the Government at the
very least responding to the recommendations we have identified
below.
a. That reasoned explanations, rather than
mere "statements' be given by Ministers to Parliament concerning
extensions of pre-charge detention.
b. That the Home Secretary explain to Parliament
why the Government has decided not to propose any additional judicial
safeguards surrounding pre-charge detention, when this was one
of the questions on which it consulted
We have consulted widely on the issue of pre-charge
detention - an approach that has been widely welcomed. Prior to
introduction of the Counter-Terrorism Bill we conducted an extensive
five month public consultation which involved consulting over
100 organisations as well as holding regional seminars across
the UK. In addition we have met with representatives from the
police, judiciary, civil liberties organisation and community
representatives. There have been numerous evidence sessions before
Parliamentary committees, including the JCHR and in each case,
going back to April 2007, reasoned explanations have been given,
not mere 'statements'. The consultation did not give rise
to any specific proposals for strengthening the role of the judiciary
in relation to pre-charge detention. Judges are already responsible
for authorisation of continued detention and the general view
was that this aspect of the pre-charge detention process worked
well and that judges rigorously scrutinise any applications for
extending the detention of individual suspects.
As a result of the consultation, we have made one
change in relation to pre-charge detention. For extension hearings
beyond 14 days, the definition of a senior judge for England and
Wales and Northern Ireland has been amended so that it is now
a circuit judge designated by the Lord Chief Justice or a county
court judge designated by the Lord Chief Justice of Northern Ireland
or a high court judge. This change reflects the fact that it should
be for the senior judiciary to designate the most appropriate
judges to hear applications for extensions of detention. We have
therefore also removed the requirement for the Lord Chancellor
to be consulted on the designation of judges for this purpose.
The most appropriate judge to hear the application may well be
a circuit judge with experience in criminal law (rather than High
Court judges who tend to specialise in civil matters).
c. That the Government bring forward the
evidence relied on to demonstrate that the level of threat from
terrorism has increased in the last year.
The level of threat has been at severe or critical
since 7 July 2005 — the only difference between the two
being that severe indicates the highest level of heightened and
sustained general threat with an attack very likely, and critical
indicates a higher level of threat with an attack imminent. The
threat level has been at critical in the immediate aftermath of
7/7, 21/7, operation Overt, London/Glasgow and severe at
all other interim times. A sustained level of threat at severe
indicates the highest possible ongoing threat level.
Experience of prosecuting cases since 2001 has clearly
demonstrated that they are growing in scale and complexity - in
terms of material seized, use of false identities, multiple
languages and dialects and international links. Recent
operations have shown that the amount of material involved in
cases is increasing and that plots are making greater use of complex
technology.
The type of plots that are now being dealt with are
very different from Northern Ireland terrorism in terms of scale,
number of international connections involved, material seized
and use of sophisticated technology.
In one recent terrorist prosecution, the investigation
involved 270 computers, 2000 discs and 8224 exhibits spread across
eight different countries.
There is a clear trend shown over a number of years
which continues to grow upwards. For example, the material handled
by the Metropolitan Police CT branch trebled between 2004 and
2007- they dealt with 69,000 records in 2004 compared with nearly
200,000 records in 2007.
In 2007 thirty-seven people were convicted in fifteen
different terrorist cases and in the first four months of this
year twenty-eight people have been convicted in just eight cases.
The rising trend of complexity in terrorist related cases is not
therefore something that can be ignored.
We have consulted with the Opposition, with community
groups and with organisations such as Liberty and have made further
changes to our original proposal. We have listened and we have
moved a long way from our original position. We do not want a
permanent, automatic or immediate extension to pre-charge detention
beyond the current maximum limit of 28 days. Instead, we are now
proposing a reserve power that could only be activated if there
is a grave exceptional terrorist threat (as defined in the legislation)
and if a report (as defined in the legislation) has been received
from the police and DPP. The reserve power would need to be approved
by Parliament and would remain in force for a temporary period
before automatically lapsing.
d. That the Government consider the inter-relationship
between the various alternatives to pre-charge detention and bring
forward a package of alternative measures in place of the 42 days
proposal
See response to recommendation 2. The Government
has considered such an inter-relationship, but does not accept
that the measures are an alternative to pre-charge detention at
all, but they may mitigate the use of pre-charge detention in
some cases.
e. That the Government urgently consider
introducing bail with conditions for Terrorism Act offences
We have consulted with the police and they did not
recommend making police bail available for terrorist suspects
because of the risks to public safety that might be involved.
We must remember that we are dealing with individuals
who wish to commit, or to enable others to commit, serious acts
of violence against large numbers of innocent members of the population.
The arrest and detention powers under the Terrorism Act 2000 are
exceptional and reflect the unique threat which is posed by terrorism.
To say that people can be held under those powers and can also
safely be released pending further inquiries is inconsistent.
Those detained under section 41 of the Terrorism
Act 2000 are precisely the people who would be able, if released,
to secure false passports or who might even have the motivation
to carry out a terrorist attack. The possibility of such an attack
being perpetrated by a person on bail for a terrorism offence
is a risk that we are unwilling to take.
Furthermore, we do not believe that denying bail
is against our obligations under the ECHR, notably article 5(3).
Detention can be justified if there are "relevant and sufficient"
reasons. The reasons applicable under the regime in the 2000 Act
satisfy that test: namely (in brief) that there is reasonable
suspicion that the person has committed a terrorist offence, that
his detention is necessary to gather further evidence and the
investigation is being carried out diligently and expeditiously.
f. That a number of detailed amendments
be made to the statutory regime governing hearings at which pre-charge
detention is extended, to make them proper "judicial"
hearings
We note the absence of an extended definition of
the term 'proper "judicial" hearings' and the use of
quotation marks which begs the question what is precisely meant
by this phrase.
At the Public Bill Hearing on 22 April, Sue Hemming
said:
'…The notice that is served on the suspect
before the hearing takes place is not particularly detailed, but
suspects' solicitors are given, as a matter of practice rather
than law, a summary of the evidence so far and an overview of
the investigation so far. The actual application is generally
very detailed and the ex parte part of any application will depend
on each individual case. Our experience is that, as time goes
on, the ex parte applications become less and shorter. Clearly,
at the very beginning of an investigation you are in a very different
situation than at 14 or 21 days. In only one of the applications
that have been made by prosecutors against 17 individuals was
there any form of ex parte application and that was a tiny part
of it'. Official Report, Counter-Terrorism
Public Bill Committee, 22 April2008; c 56, Q145.
We believe that proceedings for extensions to detention
are already fully adversarial, with the suspect entitled to legal
representation and to be present at the open part of the hearing.
The information provided to the suspect both in writing in advance,
and during the proceedings through representations and evidence
is extensive and the suspect's lawyer is able to cross-examine
the investigating officer to challenge the application rigorously.
A senior judge hears the application (for applications beyond
14 days) and ensures that the tests for further detention are
satisfied before any extension is granted.
A suspect is entitled to be present at the hearing
and is excluded only on limited and proportionate grounds from
any closed part of the hearing. Video links are often used for
the suspect's appearance as both the security risks and resources
implications justify such an approach; in any event video link
is routinely used in other judicial hearings. The judge may order
the suspect to be present in person if there is reason (see para
33(9) of Schedule 8)
We therefore dispute the assertion that such hearings
are not already 'proper "judiciaI" hearings'.
g. That the test applied by the court when
deciding whether to extend pre-charge detention be amended to
require the court to be satisfied that there is a sufficient basis
for arresting and continuing to question the suspect
In relation to the first limb of this proposed two
limb test, it is implicit in any successful application for a
warrant of further pre-charge detention that the court would need
to be satisfied that there are reasonable grounds for suspecting
the person has committed a terrorist offence. The test for a lawful
arrest under section 41 of the Terrorism Act 2000 is that the
constable reasonably suspects that the individual is a terrorist
(as defined in section 40 of that Act). This reasonable suspicion
is an implicit pro requisite for the test which is currently required
to extend pre charge detention. If a court is to be satisfied
that there are reasonable grounds for believing further detention
is necessary for the purposes of obtaining etc. relevant evidence,
there must inevitably be a reasonable suspicion that the person
committed the offence. The minimum standard that the prosecution/police
must demonstrate is that there are reasonable grounds upon which
to suspect that person. Conversely, without reasonable grounds
to suspect that person, the prosecution/police could not even
commence an application for further detention on grounds of securing
relevant evidence.
In relation to the second limb, namely that further
detention should (only) be for 'continuing to question the suspect';
we contend that this is too narrow to deal with a major terrorist
investigation. Were that to be the test, it raises questions such
as 'when would such questioning have to commence in order to satisfy
the requirements?' It should be noted that often in the early
stages of a detention under section 41 of the Terrorism Act 2000,
interviews are delayed while the evidence seized during arrests
and searches are analysed; such an investigative approach would
potentially fall foul of the suggested test as drafted.
Furthermore, it is well documented that evidence,
or material capable of forming the basis of a charge, has to be
obtained from (inter alia) such sources as computers and other
forms of electronic media, forensic analysis, and foreign jurisdictions.
Some of this may need extensive translation, often from languages
where the number of interpreters is limited. It may also require
comparison with or linking to other existing material, before
it could either be used for questioning or as the basis of a charge.
There may also be compelling but sensitive information
that needs to be converted into a form that is capable be used
for questioning or presented as part of the evidence upon which
the decision to charge may be made. The process of converting
sensitive information into usable material can be complex
and may take a period of time.
All these grounds are appropriate bases upon which
warrants of further detention may currently be sought but appear
to fall outside the test as suggested above. We therefore strongly
contend that the ability to detain suspects in order obtain evidence
by ways other than questioning is essential, as is the ability
to detain suspects to preserve or analyse evidence.
h. That legal aid be made available for
representation by counsel at hearings to extend pre-charge detention
Warrants of further detention are already in scope
of Criminal Defence Service funding and the Legal Services Commission
will make provision for appropriate legal representation, including
representation by Counsel, if required.
Recommendation 4
The fundamental flaw In the Government's proposal
therefore remains: it confuses parliamentary and judicial functions
by attempting to give to Parliament what is unavoidably a judicial
function, namely the decision about whether it is justifiable
to detain individual suspects for longer.
There is no confusion between the role of Parliament
and the role of the judiciary. This represents a complete misreading
of the provisions. The role of Parliament is clearly to discuss
and, if so minded, approve the order commencing the temporary
extension of the power to detain pre-charge to up to 42 days.
The Home Secretary will lay a statement before Parliament within
2 days of making the order or as soon as practicable and setting
out that she is satisfied that there is a grave exceptional terrorist
threat, that the reserve power is urgently needed for the purpose
of investigating that threat and bringing those responsible to
justice and that the provision is compatible with Convention rights.
The Home Secretary will at the same time lay before Parliament
an independent legal advice as to these matters (redacted as necessary
to protect sensitive information and anything prejudicial to a
prosecution). Then there will be a full debate within 7 days.
The debates would not be dissimilar to previous debates after
such incidents in the past - covering matters such as the general
security threat, the progress of investigation, the police numbers
involved, the number of suspects detained, the outline of the
plot, the number of countries involved, if there are any, the
number of exigencies, whether the Home Secretary's decision was
properly founded, if she had indeed received the police and DPP
report in the first place, other information received and other
broad discussions. The Bill expressly prohibits any mention of
individual cases in the Home Secretary's statement. It is for
both Houses to determine whether, given the grave, exceptional
circumstances, it is justifiable for the order commencing the
42 day provision to remain in force for the limited duration of
30 days.
The courts in contrast assess on a case by case basis
whether the police and CPS need more time to collect and examine
evidence in order that a charge may be brought against an individual.
It is also for the court to be satisfied that the investigation
is proceeding diligently and expeditiously in these individual
cases.
Nowhere in the provisions of the Bill are these two
distinct constitutional functions confused or conflated at all.
Recommendation 5
We would not expect to have received the legal
advice provided by the Law Officers to the Home Office, which
we accept would be legally privileged. However, we are disappointed
that the Law Officers were not even able to confirm that, in their
view, the Bill is compatible with the UK's human rights obligations
and does not risk giving rise to breaches of human rights in individual
cases. We see no reason why Parliament should not have received
at the very least a summary of the reasons why the Law Officers
regard the Government's 42 days proposal as being compatible with
the UK's human rights obligations. In our view, on a matter as
significant and sensitive as the proposal to increase the maximum
period of pre-charge detention, it is important that Parliament
is fully informed about the views of the Law Officers, especially
in light of what has subsequently been learned about Lord Goldsmith's
view at the time of the 90 day proposal.
The Government recognises that Parliament and the
public are entitled to an explanation of the legal basis for key
actions and decisions, however it is standard Government practice
neither to confirm or deny.
The Secretary of State considers that the provisions
allowing for a temporary extension to pre-charge detention in
defined circumstances, both under the Bill and our proposed amendments,
are compatible with Article 5 of the ECHR (right to liberty).
Article 5(1 )(c) permits detention for the purpose
of bringing an individual before the competent legal authority
on reasonable suspicion of having committed an offence. The provisions
fall within this limb of Article 5(1) as they provide for the
continued detention of persons reasonably suspected of having
committed terrorist offences for the purpose of enabling the charging
of that person.
There is no specific ECtHR jurisprudence on the length
of time that a person can be detained before he is charged but
there is the overarching principle that detention under Article
5 must not be arbitrary. Extended pre-charge detention under these
provisions is not arbitrary. This is because of the motivation
and effect of the detention - the prevention of suspected terrorists
from absconding or having further involvement in terrorism while
the expeditious investigation into a terrorist offence proceeds
-- and because the detention is in keeping with the reasons for
detention in Article 5(1) and Article 5 more generally.
The detention is proportionate to the attainment
of its purpose. The need to detain terrorist suspects for longer
than others before charge is necessary for a number of reasons,
including the following. First, with recent terrorist attacks
designed to cause mass casualties, the need to ensure public safety
by preventing such attacks means that it is necessary to make
arrests at an earlier stage than in the past. This often means
that less evidence has been gathered at the point of arrest, which
means that more time is needed to gather sufficient evidence to
charge a suspect. Secondly, longer time limits are needed to cope
with the fact that terrorist networks are often international,
requiring enquiries to be made in many different jurisdictions
and often requiring finding interpreters for rare and remote dialects.
Thirdly, terrorist networks are increasingly using sophisticated
technology and communications techniques: in recent cases a large
number (sometimes in the hundreds) of computers and hard drives
have been seized with much of the data on those computers having
been encrypted.
In the light of this, the Secretary of State considers
that detention for up to 42 days is not arbitrary for the following
reasons:
In accordance with section 19 of the Human Rights
Act 1998, it is for the Minister in charge of a Bill to certify
whether in his view its provisions are compatible with the Convention
rights. In this case the Home Secretary has stated that, in her
view, the provisions of the Bill are compatible.
Recommendation 6
We remain of the view that the Threshold Test
would benefit from proper parliamentary scrutiny and debate, which
to date it has never received.
The Code for Crown Prosecutors, which contains the
Threshold Test, is annexed to each CPS annual report so it is
laid before Parliament for scrutiny each year so the CPS has imposed
a duty upon itself which goes over and above the requirements
of section 10(3) of the Prosecution of Offences Act 1985. The
Code is also subjected to extensive public consultation when it
is revised. This last occurred in 2004. Parliament has already
considered the point and given the Director powers to issue guidance
under the Prosecution of Offences Act 1985 and (as amended) the
Police and Criminal Evidence Act 1984.
Recommendation 7
Given the importance of where the threshold
for prosecution is set, and in particular the implications for
an individual's liberty, in our view the Government's approach
fails properly to reflect the strong constitutional presumption
that interferences with an individual's liberty require express
statutory authorisation, or leaves too much discretion to the
DPP. We are not therefore persuaded by the Government's argument
that it would be constitutionally improper to place the Threshold
Test on a statutory footing or to introduce some independent safeguards.
Parliament gave the DDP the power to issue guidance
on the general principles to be applied when determining whether
a case should proceed or not (section 10 Prosecution of Offences
Act 1985). As recently as the Criminal Justice Act 2003, Parliament
gave the DPP the power to issue guidance on charging.
It would not be possible for the Threshold Test to
be placed on the statute book without the Full Code Test being
similarly so placed. To do so would be inconsistent and, done
in the CT bill, may give the impression that terrorist cases are
being routinely charged on a lower standard than other serious
criminal matters.
Special legislative provision would have the potential
to undermine public confidence in the communities likely to be
most affected if the perception were to arise that lower charging
standards were being applied only to terrorism cases.
An important safeguard is the fact that prosecutors,
who are independent from investigators, review cases using the
Threshold Test. The Threshold Test is an objective test. It emphasises
the fact that it is only a temporary measure to be used by prosecutors
in the most serious cases, when a suspect is not suitable for
bail and the prosecutor decides that there is evidence
to support at least a reasonable suspicion that the suspect has
committed an offence, and that it is in the public interest to
charge that suspect. In making that decision, the prosecutor must
reasonably expect that further relevant evidence exists and will
be available within a reasonable period of time so that the Full
Code Test will be applied as soon as reasonably practicable. A
decision to charge under the Threshold Test and withhold bail
must be kept under regular review by the prosecutor, and in any
event, is overseen by the court.
In addition, the Human Rights Act 1998 is an important
independent safeguard.
The Committee acknowledges that there has been no
abuse and the mere fact that their draft clause mirrors the draft
CPS guidance on the Threshold Test is ample testament to the fact
that the CPS acts with the utmost scrupulousness in respect of
the rights of the suspect.
The clause states that the person shall be informed
that they have been charged on 'reasonable suspicion'. This is
only part of the Threshold Test, as the Committee acknowledges
in its draft clause.
The defence can already inquire if a charging decision
was made using the Threshold Test or 'Full Code Test'.
Although the court, in determining questions of bail
or custody, may take into account the strength of the Crown's
evidence against the defendant, the court should accept the prosecution
case as opened by the prosecutor. The defence can comment on the
strength of the Crown's evidence but a bail application is not
the hearing for an exploration and testing of the Crown's case.
To make it mandatory to inform the court that a charging decision
was made under the 'Threshold Test' may effectively invite such
inappropriate challenges, and even lead to the release of people
on bail who really are a bail risk and should be remanded in custody.
There appears to be no apparent purpose to imposing
a duty on the prosecutor to inform the court.
The judicial process already provides independent
scrutiny of the prosecution and safeguards the suspect's rights.
For example:
At an early stage in proceedings, the prosecution
will be revealing the nature of its case to the defence and court
via pre-interview disclosure, 'Advance' or 'Preliminary' Information
at first appearance, bundles of statements, exhibits, unused material
schedules and unused material that falls to be disclosed under
the Criminal Procedure and Investigations Act 1996.
The defence can apply for the case to be dismissed
at case service/committal.
At any stage in proceedings, the defence can raise
issues with the prosecutor, and if they are dissatisfied with
the prosecution response, seek the raise it with the court.
Throughout the pre-trial stage, the court will scrutinise
the conduct of the prosecutor during the criminal process, and
can set timetables for the service of material.
HMCPSI already thematically inspecting charging across
criminal case work and this will include the 'Threshold Test'.
In respect of terrorism cases, there is the practical difficulty
caused by the highly sensitive nature of the material held which
means that the ability of a non-security cleared person to consider
these cases is severely restricted.
Recommendation 8
In our view, the availability of bail with
conditions would enable the police to continue their investigation
of those suspected of terrorism offences who do not pose a risk
to public safety or a flight risk, while at the same time maintaining
some control over them through bail conditions. We therefore recommend
that the Bill be amended to make court-ordered pre-charge bail
with conditions available in relation to terrorism offences.
See response to recommendation 3(e) above.
Recommendation 9
A prison governor fails a long way short of
a judge as an independent safeguard against abuse and we note
that the Government has provided no evidence to substantiate its
assertion that prison governors thoroughly scrutinise any police
requests for production of a suspect for questioning. "After
the event" judicial powers to exclude evidence obtained by
oppressive means are also inferior to legal safeguards designed
to prevent such oppressive questioning happening in the first
place. We therefore remain of the view that the requirement of
judicial authorisation and strict time limits must be set out
on the face of the legislation.
The experience of senior police officers is that
prison governors do thoroughly scrutinise their applications for
production of a suspect for police questioning.
The Government has considered whether judicial oversight
of post-charge questioning, in the manner proposed by the JCHR
would be appropriate. However, we have decided against this model
because of it could potentially slow down the process to much.
This is supported by the evidence given to the Public Bill Committee
by the Director of Public Prosecutions at which he said:
'I do not believe that judicial oversight is necessary,
although that is a matter for Parliament. A difficulty with judicial
oversight of the sort that you are suggesting is that it could
significantly slow down the process. I imagine that the judge
would be relatively reluctant to make an order of that sort until
he was well seized of the case. We are envisaging here questioning
that takes place fairly swiftly after charge. However, I do believe
that some element of supervision would be desirable. It seems
natural that the police should consult the prosecutor in the case,
so that a decision can be taken on whether post-charge questioning
in the circumstances of that case is appropriate. An element of
supervision is desirable, but judicial supervision could slow
the process down too much.' Official Report,
Counter-Terrorism Public Bill Committee, 22 April 2008; c. 45-46,
QI 18.
However, following the concerns expressed by the
JCHR and at Public Bill Committee, we have developed a proposal
which introduces supervision for post-charge questioning but which
doesn't unnecessarily hinder the use of the power. In particular
we have proposed that a number of safeguards should be on the
face of the Bill which would mean that:
- Post-charge questioning must be authorised for
a period of up to 24 hours in the first instance by an officer
of the rank of superintendent;
- Any subsequent questioning would require authorisation
by a magistrate who could authorise a period of post-charge questioning
of up to 5 days. Further periods of questioning of up to 5 days
would require further application to a magistrate. Magistrates
could only authorise post-charge questioning If they believe it
to be in the interests of justice and that the investigation is
being conducted diligently and expeditiously;
- All post-charge interviews would be video-recorded.
We have also produced draft codes of practice for
post-charge questioning which specify additional safeguards for
post-charge questioning. The codes would ensure that every suspect
has a right to legal representation during questioning and that
questioning would require authorisation not only by a police officer
of rank of at least Superintendent, but also in conjunction with
the prosecutor of a case.
The draft PACE codes also make clear that police
and prosecutors should seek to avoid post charge questioning taking
place which may limit or restrict the ability for the person or
his or her defence to prepare adequately for court proceedings.
We are not making express provision for this in the Bill as there
may be situations when questioning close to the trial is unavoidable,
for example to prevent the person causing injury to others, in
these cases, every effort would be made to discuss with the suspect
or his or her legal representatives in order to minimise any disruption
to the court process.
Recommendation 10
In our view, it should be possible to draft
a limitation on the scope of post-charge questioning which confines
it to new evidence but defines new evidence in such a way as to
include material which has only become available, for example,
as a result of analysis of computer material which was already
physically available.
It would not be appropriate or practical to confine
post-charge questioning to new evidence which has become available
following charge. We believe to do so would make all post-charge
questioning subject to challenge on the basis of whether or not
the evidence was available at charge.
We are also believe that there may be circumstances
in which it would be appropriate to question the suspect about
evidence available pre-charge; for example analysis of evidence
collected after charge could cast a new light on evidence that
was available pre-charge. In addition, and most importantly, we
would not want to risk the prohibition of post-charge questioning
about evidence available pre-charge where the purpose of the interview
would be to prevent injury to others.
Recommendation 11
The Government says that amendments to the
control orders framework are not necessary because the judgment
in MB already makes it human right compatible. We do not agree
that the effect of the judgments in MB are as clear as the Government
contends, as is borne out by the continued litigation and appeals
about precisely what the case requires. We remain of the view
that it is better that words appear on the face of a statute than
that they are "read in" to the statute by a judgment
the precise effect of which might not be very clear even after
careful study. We suggest the amendments to give effect to these
recommendations.
We continue to disagree with the JCHR's recommendations
in relation to control orders. As we have stated in response to
previous JCHR reports, as a result of the House of Lords judgments,
the Prevention of Terrorism Act 2005 is fully compatible with
human rights and no amendments to the legislation are necessary.
Recommendation 12
In our view, the Government's justification
for this measure, that the current law may be incompatible with
Article 2 ECHR in this respect, is highly questionable. The law
of public interest immunity applies to inquests and already provides
the Government with the opportunity to persuade the coroner not
to disclose certain documents or information because to do so
would damage the public interest, including national security.
Public Interest Immunity (P11) is not the answer
to the problem that these proposals address. P11 would enable
the coroner to withhold material from both the public and the
jury as fact-finder. However, the difficulty the proposal is addressing
is how to ensure that all relevant material including sensitive
material can be put before the fact-finder. As the sensitive
material cannot be shown to a jury, there is a need to have a
different fact-finder, hence why the coroner will be the fact-finder
in every inquest under the proposal.
Recommendation 13
The proposed solution of specially appointed,
security-cleared coroners would, in our view, clearly not be compatible
with Article 2. In any case where the State is potentially implicated
in the death which is being investigated, a coroner appointed
by the Secretary of State, instead of by the normal method, would
not satisfy the requirement in Article 2 ECHR that the investigation
be carried out by a person independent from those implicated in
the events. The fact that the coroner has been directly appointed
by the Secretary of State for the purposes of the particular inquest
would be fatal to any appearance of independence
The fact that a judicial officer is appointed by
the executive does not fatally undermine their independence for
Article 6 or Article 2 purposes. However, as there is no policy
imperative in having the Secretary of State make the appointments,
the Government agreed to consider an alternative mechanism.
We have therefore tabled amendments for consideration
at Report stage which add a requirement for the Secretary of State
(for Justice) to establish and maintain an approved list of coroners
eligible to be appointed to hold certified inquests. The Secretary
of State (for Justice) must seek the agreement of the Lord Chief
Justice before a coroner can be placed on the approved list, and
those appointed to the list will be drawn from the existing pool
of independent district coroners. The Lord Chief Justice's agreement
must also be sought when there is a need to appoint a person to
hold a certified inquest. Similarly, if there is a need for the
Secretary of State to revoke an appointment - because, for example,
of a coroner's incapacity or illness, or because the inquest is
no longer subject to a certificate and can therefore be conducted
by the coroner for the relevant district - then the appointment
can only be revoked with the agreement of the Lord Chief Justice.
The amendments respond to concerns raised during
the passage of the Bill regarding the appointments system for
specially appointed coroners. The amendments address these concerns
by requiring the agreement of the Lord Chief Justice to the inclusion
of a coroner on the approved list of coroners, and with each individual
appointment of a specially appointed coroner whenever a certificate
under section 8A(1) is issued.
Recommendation 14
We therefore recommend that the clause concerning
coroners' inquests be deleted from the Bill and the issue returned
to in the context of the forthcoming Coroners Bill.
We are aware of a current inquest which may need
to consider material that cannot be disclosed publicly without
harming the public interest, and which has stalled because the
coroner is unable to see the material. It was therefore necessary
to take action to address this problem now, rather than wait a
further year for a Coroners Bill even though the latter has been
confirmed in the draft programme for the next Parliamentary session.
There may be circumstances such as these in which
a coroners' inquest may need to consider material that cannot
be disclosed publicly for very important public interest reasons,
for example because its disclosure might damage national security
and place sources' lives in danger. We must therefore find a way
of allowing the inquest to be able to consider all such material
so coroners' inquests can always comply with Article 2.
Inquests are unlike criminal proceedings where a
decision can be made not to prosecute if there is sensitive material
that cannot be disclosed to the defendant as would be required
in criminal proceedings by Article 6. If the death occurred in
circumstances where Article 2 requires the UK to hold an inquest,
and the sensitive material is relevant to how the individual met
their death, there is the insurmountable difficulty that the investigation
into the death must proceed but such material cannot be disclosed
in open court without damaging an important public interest such
as national security. In such a case, the inquest cannot safely
be held by a coroner sitting with a jury.
The proposals have been drafted very carefully to
ensure that coroners' inquests can always be compatible with Article
2 even when there is material which is central to the inquest
but which cannot be disclosed publicly.
We believe that this proposal is fully compliant
with the ECHR and represents the best way of achieving an appropriate
balance between the concerns of bereaved families and the need
to protect the public interest.
| 
