The range of views about post-charge
questioning
24. In our Report on Prosecution and Pre-Charge
Detention in July 2006, we took the view that human rights
law presents no obstacle in principle to the relaxation of the
current restriction on post-charge questioning, nor to the drawing
of adverse inferences from a defendant's refusal to answer questions
at such post-charge interviews. We said that such a measure would
not necessarily breach the privilege against self-incrimination,
provided it is accompanied by adequate and effective safeguards
(including some additional to those that exist for pre-charge
questioning), such as access to legal advice, a requirement that
the prosecution have already established a prima facie case, and
limits to the inferences that would be proper.[22]
25. We therefore recommended that the Government
amend the PACE Codes to permit post-charge questioning and the
drawing of adverse inferences, as a measure which would significantly
reduce the need for a further extension of pre-charge detention,
but we made clear that we expected an opportunity to scrutinise
the adequacy of the safeguards proposed.[23]
We repeated the recommendation in our more recent report on 28
days, intercept and post-charge questioning (July 2007), again
emphasising the critical importance of the accompanying safeguards.[24]
In the interests of introducing the change as soon as possible,
we questioned whether it was necessary to make the change by legislation
rather than amending the PACE Codes of Practice. We now accept
that the important safeguards against oppressive use of the power
should be spelt out in primary legislation.[25]
26. The Home Affairs Committee, in its recent report
on The Government's Counter-Terrorism Proposals, concluded
on post-charge questioning:[26]
We support allowing the use as evidence of information
obtained in post-charge questioning of terrorist suspects, including
the ability to draw an adverse inference against an individual
who refuses to answer, subject to the same safeguards as apply
to pre-charge questioning: the right to legal advice, the right
against self-incrimination and freedom from oppressive questioning.
27. Lord Carlile of Berriew QC, the reviewer of terrorism
legislation, in his report on the Government's proposed measures
for inclusion in a Counter Terrorism Bill, expressed some words
of caution about post-charge questioning.[27]
Whilst it is my view that it is sensible that provision
should be made for suspects to be questioned further after charge
in terrorism cases, it is right that I should utter a word of
caution. Historically, the prohibition on post-charge questioning
has existed to protect the rights of accused persons, by forcing
the police to charge only where there is sufficient evidence to
justify doing so, and in a timely fashion. If they are unable
to do this then the suspect must be released. An unfettered ability
to question after charge might give rise to at least two possible
situations, each of which is wholly foreseeable and, equally,
each of which is wholly unacceptable. First, a suspect could be
charged with a minor offence (such as criminal damage). He or
she could then be held pending trial, with virtually no judicial
scrutiny or protection, whilst the police investigated the offences
in which they were really interested, with the intention of adding
more serious charges at a later stage. Alternatively, a suspect
could be charged with a serious offence for which the police had
strong suspicion but scant evidence, hoping that the pre-trial
period would permit them to discover the evidence to justify the
charge. As ever, I am concerned that the effort to protect the
right to safety of the law-abiding public should not remove provisions
designed to protect a wrongly-accused individual. I wish to make
it plain that the ability to question after charge is not of itself
a panacea for the ills of extended periods of pre-charge detention.
However, with proper safeguards in place, it may be a practical
and effective way of balancing the two competing principles referred
to above.
For these reasons, this innovation would require
careful amendment to the current Police and Criminal Evidence
Act 1984 Codes of Practice, or an additional and specific Code.
It would be necessary to provide clarity for the particular threshold
for such questioning, limitations on its extent, and other provisions
to ensure protection of the suspect from arbitrariness. The Government
should consider judicial supervision of the exercise of the power,
perhaps making provision for judicial examination at an early
stage of the evidence said to be sufficient to justify charge.
However, judicial supervision should not extend to judicial presence
at the questioning itself.
My early reaction to this proposal included misgivings
about the availability in court of an adverse inference against
a defendant in the event of a failure to answer questions asked
in post-charge police interviews. I have some doubts, founded
on experience of court cases, of the efficacy of the adverse inference
provisions. On reflection 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.
28. Considerable concern, however, has also been
expressed about the emergence of an apparent consensus about the
desirability of allowing post-charge questioning with adverse
inferences. Lord Lloyd of Berwick, for example, in the debate
on the Queen's Speech, said:[28]
First, there is the issue of post-charge questioning.
I knew that as soon as ever that idea was floated everyone would
jump on the bandwagon and even claim that they had thought of
it first. It seems to be such an easy and in a sense obvious solution
to what everyone agrees is a difficult problem.
But it will not do. Why not? For the simple reason
that if post-charge questioning is allowed, there is a very real
risk that the suspect will not get a fair trial. That needs some
explanation, along these lines. The courts have always made it
their primary function to ensure that trials are fair. That applies
not only to the conduct of the trial itself but to what happens
before the trial starts. Let me give a recent example. Not long
ago, a defendant was brought to stand trial in England by being
forcibly placed on an aircraft in South Africa without any judicial
process of any kind. The Court of Appeal, to its shame, held that
he could still have a fair trial here, even though the manner
in which he had been brought here was so obviously unjust. That
decision was unanimously reversed by the House of Lords. I could
give other examples.
So judges are very much concerned with not only what
happens at the trial but what happens in the process by which
suspects are brought to trial. It is for that reason that over
the years they have formulated certain rules that have always
been known as the "judges' rules". Two of the best known
of those rules are that as soon as there is enough evidence to
charge a suspect he must be charged forthwith. The second rule
is like unto it and is obviously a corollary of it; that once
he has been charged no further questioning is permissible in relation
to that offence. The reason for both those fundamental rules is
the need to protect a suspect from oppressive questioning. The
rules have a long history and they have long had the force of
statute. They are currently to be found in Code C of the codes
made under PACE—the Police and Criminal Evidence Act 1984.
The current code took effect as recently as July 2006. Paragraph
16.4 provides:
"A detainee may not be interviewed about an
offence after they have been charged".
It is not very good grammar, but the meaning is perfectly
clear. There are some very limited exceptions, which only go to
prove how important the rule is.
Those are just two of the rules that underpin our
concept of a fair trial. Yet it is now proposed to abrogate the
second of those rules in relation to terrorism. But a terrorist
suspect is entitled to a fair trial, the same as any other suspect.
Our notion of what constitutes a fair trial surely cannot depend
on what the suspect is supposed to have done. Post-charge questioning
is not the easy way out and we should resist it as vigorously
as we should resist any extension beyond 28 days.
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? Of course the police can continue their investigation.
Of course the suspect can be re-arrested and questioned in relation
to some other offence. But once he has been charged and the case
handed over to the Crown Prosecution Service, questioning in relation
to that offence must stop.
The need for adequate and effective
safeguards
29. When we were given sight of the draft clauses
prior to the publication of the Counter-Terrorism Bill, we noted
that no safeguards were included on the face of the draft clauses
themselves. Instead, the draft clauses provide that the PACE Codes
of Practice may make provision about post-charge questioning.
Since, in our view, the crucial human rights issue in relation
to post-charge questioning is the adequacy of the accompanying
safeguards against the abuse of what is potentially an oppressive
power, we wrote to the Home Secretary[29]
asking her to provide more detail about precisely what safeguards
are intended, and in particular whether any form of judicial control
is envisaged, such as prior judicial authorisation of questioning
or even judicial supervision of such questioning, as suggested
by Professor Clive Walker.
30. The Home Secretary's response contained, for
the first time, a little detail about the safeguards being contemplated:[30]
The proposed measures will only allow an individual
to be questioned in relation to the offence for which they have
been charged. … An initial period of 24 hours to question
a person after charge can be authorised by a senior police officer,
thereafter any questioning after charge would be limited to a
maximum period of 5 days and would have to be authorised by a
Magistrate's Court. If there is a need for any subsequent post
charge questioning, the police must return to the Magistrate's
Court for further authorisation. The safeguards in the PACE codes
will apply as they do pre charge as regards the conditions of
custody, questioning, etc.
31. Professor Clive Walker and Professor Ed Cape
both submitted evidence to us in which they expressed strong concern
about the introduction of post-charge questioning, and suggest
a number of detailed safeguards which they say should accompany
any such measure if it were introduced.[31]
32. Like Lord Lloyd, we have been concerned about
whether the apparent consensus about the desirability of post-charge
questioning has led to a neglect of the question of the appropriate
safeguards.[32] We therefore
took oral evidence on this subject from Professor Clive Walker.
33. Professor Walker told us that in his view human
rights law does not impose any absolute prohibition on post-charge
questioning, rather the issue is how to devise a process which
is likely to be fair to the person who has been charged. However,
he disagreed with the Home Affairs Committee that it was enough
simply to apply pre-charge protections which mainly exist under
PACE Code C. The situation is different after charge, because
the accused is in a particularly vulnerable position, the police
and the prosecution are building a case, and in our traditional
adversarial process it is for the judge, acting as a sort of umpire,
to ensure that what is being done is fair in all the circumstances.[33]
34. In Professor Walker's view, many of the physical
conditions of questioning post-charge could be dealt with in the
PACE Codes, but it is important to establish in primary legislation
many of the other parameters of post-charge questioning, such
as the purposes of such questioning, and the limitation that it
must be about new evidence rather than about the same issues that
were the subject of questioning pre-charge. Careful judicial oversight
is also needed to ensure that the police do not use post-charge
questioning as a way round the process of disclosure of evidence
pre-trial. Professor Walker also advocates judicial control of
post-charge questioning after the event, to enable the court to
supervise the purposes and length of time for which questioning
has taken place, and taping of such interviews to facilitate such
supervision.
35. Professor Walker said that, provided there is
appropriate judicial umpiring of post-charge questioning, "it
is difficult to argue that it is necessarily wrong to draw adverse
inferences".[34]
However, he would like to see a special warning to the jury to
do with post-charge questioning, to remind them that, post-charge,
the reliability of silences or statements might be questionable
because of the particularly fraught stage of being a suspect.
36. We found Professor Walker's evidence compelling
on the question of the detailed safeguards which should accompany
post-charge questioning. We
support the introduction of post-charge questioning as a measure
which reduces the pressure for an extension of pre-charge detention,
but we agree that it should be accompanied by a number of detailed
safeguards on the face of the Bill, to ensure that this potentially
oppressive power is not used oppressively in practice.
37. We recommend
that the Bill should be amended to include the following safeguards
on the face of the legislation:
(1) that there should be a requirement
that post-charge questioning be judicially authorised;
(2) that the purpose of post-charge
questioning be confined to questioning about new evidence which
has come to light since the accused person was charged;
(3) that the total period of post-charge
questioning last for no more than 5 days in aggregate;
(4) that post-charge questioning
always take place in the presence of the defendant's lawyer;
(5) that post-charge questioning
always be DVD- or video-recorded;
(6) that the judge which authorised
post-charge questioning review the transcript of the questioning
after it has taken place, to ensure that it remained within the
permitted scope of questioning and was completed within the time
allowed; and
(7) that there should be no post-charge
questioning after the beginning of the trial.
38. The overriding requirement must
be to ensure that a fair trial is possible and judicial oversight
should be geared towards this end. For example, particular attention
should be paid to the gap between the end of post-charge questioning
and the beginning of the trial to ensure that the defendant's
rights are respected.
18 A "terrorism offence" for this purpose
is defined by clause 26 to include most of the offences under
the Terrorism Act 2000 and the Terrorism Act 2006, as well as
conspiracy, attempt and incitement to commit such offences. Back
19
Clause 23(2). Post-charge questioning is also allowed where a
person has been sent for trial for a terrorism offence or a judge
of the Crown Court has made an order for a preparatory hearing
to be held in the case (under s. 29 of the Criminal Procedure
and Investigations Act 1996) and did so on the basis that the
offence has a terrorism connection: clause 23(3). Clauses 24
and 25 make equivalent provision for Scotland and Northern Ireland. Back
20
Clause 23(6), amending s. 34(1) of the Criminal Justice and Public
Order Act 1994. Back
21
EN para. 275. Back
22
Twenty-fourth Report of Session 2005-06, Counter-Terrorism
Policy and Human Rights: Prosecution and Pre-charge Detention,
HL Paper 240/HC 1576 (hereafter "Report on Prosecution and
Pre-charge Detention"), at paras 132-135. Back
23
Ibid. at para. 135. Back
24
Nineteenth Report of Session 2006-07, Counter-Terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning,
HL Paper 157/HC 394 (hereafter "Report on 28 days"),
paras 163-172. Back
25
Ibid., para. 169. Back
26
First Report of Session 2007-08, The Government's Counter-Terrorism
Proposals, Volume I, HC 43-I, at para. 92. Back
27
Report on Proposed Measures for Inclusion in a Counter Terrorism
Bill, Cm 7262, December 2007, at paras 22-24. Back
28
HL Deb 12 November 2007 col. 263. Back
29
Letter from the Chair to the Home Secretary, 12 November 2007,
Appendix 3. Back
30
Letter from the Home Secretary to the Chair, 5 December 2007,
Appendix 4. Back
31
Appendices 5 and 6. Back
32
In our Report on 28 days, for example, at paras 171-172, we pointed
to the need for post-charge questioning to be accompanied by certain
minimum safeguards to ensure that its use is not oppressive. Back
33
Oral evidence, 17 December 2007, Q2, Ev 1. Back
34
Q6, Ev3. Back
