INTRODUCTION

  1.  This paper responds principally to proposals in the document, Possible Measures For Inclusion In A Future Counter Terrorism Bill (Home Office, 25 July 2007) (referred to as the "Possible Measures Paper"). However, other related documents regarding policing powers have also been consulted and are touched upon.

  2.  The sole issue dealt with in this paper is post-charge questioning. My previous submission has dealt with many other aspects raised in the discussion documents concerning counter-terrorism laws.

BACKGROUND PRINCIPLES

  3.  The impression is afoot amongst policy-makers and academic commentators that post-charge questioning is unproblematic either in principle or practice. This position is evident in the foregoing paper and is also present in the more general proposals in the further Home Office paper, Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE) 1984 (2007, para.3.49). It has therefore captured far less public attention than the debates about proposals for 90 day pre-charge detention and questioning. This impression is wrong in both principle and practice. In principle, there should be substantial concerns about any move towards post-charge questioning. In practice, there are many details to be considered and specified.

  4.  In legal principle, it should be realised that the purpose of police arrest and detention at common law was historically confined to the needs of bringing identified suspects before the courts. The court, and not the police station, was the place for the examination of suspects and witnesses, both at committal and at trial. Thus, arrest was for the purpose of charging with an offence and then conveyance to the courts. This legal position was subject to some practical derogation in respect of pre-charge detention and questioning during the 20th Century. Thus, in response to a request from the Home Secretary to the judges of the King's Bench, the Judges' Rules were issued in 1912 to guide English police forces about the detention and questioning of suspects in a way which would avoid the inadmissibility of any evidence so gathered. The Rules allowed the police, subject to a caution, to question before charge any person with a view to finding out whether, or by whom, an offence had been committed. The Rules required a further caution when a person was charged and prohibited questioning afterwards charging save in exceptional circumstances (rule III(b)). At the same time, the Rules did not amount to a formal legal recognition of powers to detain or question pre-charge and confirmed very firmly that questioning should cease on charge. The Rules created some clarity, certainly in comparison to earlier less authoritative guidance, such as Sir Howard Vincent's Police Code and Manual of Criminal Law (originally published as Cassell & Co., London, 1881). But since the law did not explicitly recognise the practice of police detention for questioning, the legal position of police questioning remained uncertain and always subject to the overriding exercise of judicial discretion on grounds of voluntariness and fairness. As explained by Lawrence J. in R. v. Voisin [1918] 1 KB 531 at pp.539-540:

"In 1912 the judges, at the request of the Home Secretary, drew up some rules as guidance for police officers. These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial."

  The 1912 Rules were revised in 1918 and were later reissued as a Home Office Circular 536053/23 (1924) and as the Practice Note (Judge's Rules) [1964] 1 WLR 152. They were eventually wholly replaced in 1986 by PACE Code C made under the Police and Criminal Evidence Act 1984 (PACE). However, until PACE, Parliament did not grant explicit powers to detain or question. That position was confirmed, for example by the Royal Commission in Police Powers (Cmd.3297, 1929) para 158 recommended against the grant of any general legal powers to hold in police custody and delay charges pending investigation. There were just a few exceptions to this position, including the Prevention of Terrorism (Temporary Provisions) Act 1974, which allowed pre-trial detention and questioning following arrest on suspicion of terrorism.

  5.  The position in regard to pre-charge detention and questioning was radically altered by PACE Part IV, which explicitly granted police powers and made police questioning of arrestees a routine part of investigations. Some twenty years on from PACE, it now sounds strange that there could ever be any legal doubt about police powers to question suspects in custody. However, evidence for that position can be confirmed in two ways:

(i)  First, it is reflected in the terms of Article 5 of the European Convention on Human Rights and Fundamental Freedoms of 1950, which states that:

"No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law . . . (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so . . ."

  It will be noted that there is no mention of the purpose of interim interrogation by the police, though it has been recognised that questioning for the purpose of building a case to be put before the court (but not mere intelligence gathering) is lawful, subject to adequate judicial supervision under article 5.3, in Brogan v. United Kingdom, App. nos. 11209, 11234, 11266/84, 11386/85, Ser. A 145-B, (1989) 11 E.H.R.R. 539 para.53.

(ii)  Second, it was only in Holgate-Mohammed v Duke [1984] A.C. 437 that police powers to question before charge was conclusively established in common law by the House of Lords. In that case, a detective constable, exercising his powers under section 2(4) of the Criminal Law Act 1967, arrested the plaintiff on suspicion that she had stolen jewellery and took her to a police station where she was questioned. She was not charged with an offence and was released from detention within six hours of her arrest. The plaintiff brought a civil action against the chief constable for damages for wrongful arrest. The judge found that the detective constable had had reasonable grounds to suspect the plaintiff of having committed an arrestable offence and that the period of detention was not excessive but, because the constable had decided not to interview her under caution but to subject her to the greater pressure of arrest and detention so as to induce a confession, there had been a wrongful exercise of the power of arrest. The plaintiff was awarded £1,000 damages. The Court of Appeal allowed an appeal by the chief constable, and the House of Lords dismissed the plaintiff's appeal. The House of Lords applied administrative law standards to the exercise of discretion pursuant to arrest powers by a constable. In this way, the discretion must be exercised in good faith and not be affected by irrelevant considerations. The interrogation of a suspect in order to dispel or confirm a reasonable suspicion was a legitimate cause for arrest, so that the fact that the constable, when exercising his discretion to arrest the plaintiff, took into consideration that she might be more likely to confess her guilt if arrested and questioned at the police station was a relevant matter and therefore did not render the exercise of his discretion ultra vires. Lord Diplock stated the position as follows at p.445:

"That arrest for the purpose of using the period of detention to dispel or confirm the reasonable suspicion by questioning the suspect or seeking further evidence with his assistance was said by the Royal Commission on Criminal Procedure in England and Wales (1981) (Cmnd. 8092) at paragraph 3.66 `to be well established as one of the primary purposes of detention upon arrest.' That is a fact that will be within the knowledge of those of your Lordships with judicial experience of trying criminal cases; even as long ago as I last did so, more than 20 years before the Royal Commission's Report. It is a practice which has been given implicit recognition in rule 1 of successive editions of the Judges' Rules, since they were first issued in 1912. Furthermore, parliamentary recognition that making inquiries of a suspect in order to dispel or confirm the reasonable suspicion is a legitimate cause for arrest and detention at a police station was implicit in section 38(2) of the Magistrates' Courts Act 1952 which is now reproduced in section 43(3) of the Magistrates' Courts Act 1980, with immaterial amendments consequent on the passing of the Bail Act 1976."

  However, it will be noted that there is no specific statutory authorisation or common law precedent quoted in the foregoing extract. It may also be noted that the legal position of "arrest on charge" and that an arrested person was placed "in the protection of the law" prevailed in Scotland until recent times (compare: Chalmers v Lord Advocate 1954 SLT 177; Johnston (Derek) v HM Advocate 1993 J.C. 187).

  6.  Much of the foregoing discussion has related to the development of police powers to question before charge. There is even less historic legal basis for powers to question after charge, including no clear precedent equivalent to Holgate-Mohammed. Exceptional circumstances when post-charge questioning might be allowed were outlined in rule III(b) of the Judges' Rules. They were confined to (i) where necessary for the purpose of preventing or minimizing harm or loss to some other person or the public or (ii) clearing up an ambiguity in a previous answer or statement. PACE Code C has added the possibility of questioning (iii) "in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted". If anyone is interviewed in these circumstances, inferences cannot be drawn under sections 34 to 37 of the Criminal Justice and Public Order Act 1994, and the accused must be given a modified "old-style" caution. More extensive powers of post-charge questioning exist exceptionally in respect of a variety of corporate and financial services crimes and serious frauds whereby questioning is allowed. The exceptional nature of such powers is noted in R v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1. Any evidence gathered pursuant to such powers will not be admissible at trial. A substantial list exists under Schedule 3 of the Youth Justice and Criminal Evidence Act 1999 as follows: Insurance Companies Act 1982; sections 43A and 44; Companies Act 1985, section 434; Insolvency Act 1986, section 433; Company Directors Disqualification Act 1986, section 20; Building Societies Act 1986, section 57; Financial Services Act 1986 sections 105 and 177; Companies (Northern Ireland) Order 1986 (NI 6), Articles 427 and 440; Banking Act 1987 sections 39, 41 and 42; Criminal Justice Act 1987 section 2(8); Companies Act 1989, section 83; Companies (Northern Ireland) Order 1989, Article 23; Insolvency (Northern Ireland) Order 1989 (NI 19), Article 375; Friendly Societies Act 1992, section 67; Criminal Law (Consolidation) (Scotland) Act 1995, section 28; Proceeds of Crime (Northern Ireland) Order 1996 (NI 9), Schedule 2 paragraph 6.

  7.  The principled position is that, after charge, questioning should stop for two reasons. The first is that, after charge, the suspect becomes subject to the control of the court and further actions in pursuance of the case should be authorised by the court. It is the court which takes charge of the suspect and not the police, and the police should not intervene without permission. The second reason is to guard against oppressive treatment and questioning. Given that a person may spend a long time in custody after charge, there is a danger that prejudice to the case could be caused by forms of treatment which are later viewed as unfair by a jury. The police (and prosecution) represent one side of the adversarial process, and the court must umpire the way the accused is treated to ensure fairness.

  8.  The first reason, the transfer of authority to the courts, can be evidenced by two sources. The first is the Criminal Procedure Rules 2005 SI no.384. These set out the overriding objective, that criminal cases be dealt with justly (rule1.1) and specify further that the court must advance the overriding objective by actively managing the case (rule 3.2). This transfer of authority away from the police is also underlined by the institution of the charging scheme under the Criminal Justice Act 2003, by which charging decisions and the gathering of evidence in connection with charges becomes a matter for the Crown Prosecution Service. The second source which underlines this transfer of authority after charge is a series of Scottish cases. In Stark and Smith v H.M. Advocate 1938 J.C. 170 at p.173, Lord Justice-General Normand stated:

"As a matter of law the police are not entitled to question an accused person about a particular charge once the investigation relating to that charge has been completed at the stage of his having been taken into custody and cautioned and charged. Statements made by an accused person after that stage, made in such circumstances, are inadmissible as evidence. The police may not question him or act in such a way as to give a plain invitation or otherwise to induce him to answer questions . . ."

  In Miller v HM Advocate 1997 SCCR 748 at p.751, it was stated that, "The formality of the making of a charge provides a certain and clear-cut point marking the change in the relationship between the police and the suspect." This rather stark position has been moderated to some extent. In Aiton v H.M. Advocate 1987 S.C.C.R. 252, the High Court of Justiciary allowed a statement where there was no question of the police inviting or inducing the appellant to make a statement. In Fraser and Freer v H.M. Advocate 1989 S.C.C.R. 82, the police invited statements after charge but did not question the charged persons. Questioning about other matters unrelated to the crime charged was allowed in Carmichael v Boyd and Kinnie 1993 S.C.C.R. 751.

  9.  As regards the second reason for limiting post-charge questioning, possible unfairness to the accused, all questioning, whether pre-charge or post-charge, should be voluntary and fair, as required by PACE, sections 76 and 78. The English legal system remains in the business of running an adversarial process and must secure fairness in that context. One consequence is that if the police are afforded new powers to examine their chief suspect at any time up to trial and on pain of adverse inferences, then the defendant's barrister should be likewise enabled to examine the police and their witnesses on the same terms under the principle of equality of arms, as required by article 6 of the European Convention on Human Rights. Second, how can we disentangle what might be said to be legitimate questioning which is akin to documentary disclosure by the defence, a principle first controversially enshrined in the Criminal Procedure and Investigations Act 1996, and the questioning of an accused with a view to uncovering the defence's legal tactics? Surely, the pursuit of the latter is not fair in the light of the principles of legal privilege and the right to counsel? But who will police the police questioning in these sensitive circumstances? Compulsion through police questioning may contravene article 6 of the European Convention where other criminal proceedings are pending as in Shannon v United Kingdom App. no.6563/03, 4 October 2005. For both these reasons, it would be troubling to put the police in effective charge of a post-charge process which might impinge upon pre-trial processes which are normally the province of the presiding judge. At very least extra safeguards are required. This hostile approach to post-charge questioning was adopted by the Court of Appeal in R v. Walters [1989] Crim. L.R. 62. The defendant was accused of throwing petrol bombs. He was charged on evidence of eye witnesses and also because of burns on his leg. While on remand, he asked to see a specified police officer. The police officer asked, after caution, whether he was admitting the offence, which he did. No contemporaneous record was made of the conversation. The Court was of the view that there should have been no questioning after charge and therefore excluded the statement.

  10.  Moving from history and established principle to the future use of post-charge questioning in counter-terrorism, in terms of the substantive case for post-charge questioning, one can appreciate that the weight of evidence in complex terrorist cases, combined with the use of the Threshold Test by Crown Prosecutors (albeit that the Test does not apply in many terrorist cases: House of Commons Home Affairs Committee, Terrorism Detention Powers (2005-06 HC 910 para.112)), do conduce towards the resumption of questioning after charge. It is said by the Home Office paper to have become more likely that new facts will emerge in terrorist cases than in many other serious crimes (with, perhaps, the exception of serious frauds). At the same time, if the justice route is to be followed, as opposed to the pursuit of preventive administrative measures such as control orders, then the standards of justice must be observed. It is no use securing a conviction, if the convict, his community and even the general public regard it as lacking legitimacy. It is most unlikely to be viewed as legitimate or just if the post-charge questioning is applied in circumstances beyond those already identified in Code C, in other words, (i) where necessary for the purpose of preventing or minimizing harm or loss to some other person or the public or (ii) clearing up an ambiguity in a previous answer or statement or (iii) to gather statements about information concerning the offence which has come to light since the charge was lodged. The justice of the resumption of questioning can be readily understood in those three circumstances. By contrast, the resumption of questioning post-charge about matters which were known and investigated pre-charge does not appear legitimate. Rather, it appears to set at nought the carefully constructed restraints on questioning and detention pre-charge which exist for the sake of fairness and liberty.

  11.  Conclusion: There exist strong statements of practice, backed by sound principle, that questioning after charge is generally not allowed. There are good reasons to support that stance in terms of the overriding roles of the court and prosecution after charge and also because of the need to ensure fairness. For these reasons, if it is decided that post-charge questioning is to be allowed, the rule of law demands that there should be a clear grant of statutory authority. Changes to PACE Codes, whether Code C or Code H, will not be sufficient to achieve these purposes since they may affect issues of admissibility but cannot grant new legal authority. In short, clear statutory powers will be required if post-charge questioning is the chosen policy.

  12.  Conclusion: The need for greater use of post-charge questioning is understandable in the circumstances of complex terrorist cases and the use of the Threshold Test for charging. But the application of post-charge questioning in circumstances beyond the three situations already identified in PACE Code C is not legitimate if the principles of adversarial process and fairness are to be maintained.

THE PREFERRED APPROACH: JUDICIAL EXAMINATION

  13.  Assuming that post-charge questioning is to be allowed, then the preferred approach should be to explore an enhanced role for the presiding trial judge rather than the police. The intervention of the judge will answer the demand for equality of questioning opportunities and will reduce concerns about voluntariness and fairness. This mechanism also ensures, in line with principle, that the court is in charge of process.

  14.  There is much to be said for the precedent of the Explosive Substances Act 1883, section 6, by which, in exceptional cases arising from terrorism, there may be questioning after charge, but it must be conducted by a judge. Section 6 states as follows:

"6 Inquiry by Attorney-General, and apprehension of absconding witnesses:

(1)  Where the Attorney-General has reasonable ground to believe that any crime under this Act has been committed, he may order an inquiry under this section, and thereupon any justice for the county, borough, or place in which the crime was committed or is suspected to have been committed, who is authorised in that behalf by the Attorney-General may, although no person may be charged before him with the commission of such crime, sit at a... petty sessional or occasional court-house, or police station in the said county, borough, or place, and examine on oath concerning such crime any witness appearing before him, and may take the deposition of such witness, and, if he see cause, may bind such witness by recognizance to appear and give evidence at the next petty sessions, or [a magistrates' court] when called upon within three months from the date of such recognizance; and the law relating to the compelling of the attendance of a witness before a justice, and to a witness attending before a justice and required to give evidence concerning the matter of an information or complaint, shall apply to compelling the attendance of a witness for examination and to a witness attending under this section.

(2)  A witness examined under this section shall not be excused from answering any question on the ground that the answer thereto may criminate, or tend to criminate, [that witness or the [spouse or civil partner] of that witness]; but any statement made by any person in answer to any question put to him [or her] on any examination under this section shall not, except in the case of an indictment or other criminal proceeding for perjury, be admissible in evidence [against that person or the [spouse or civil partner] of that person] in any proceeding, civil or criminal.

(3)  A justice who conducts the examination under this section of a person concerning any crime shall not take part in the committing for trial of such person for such crime.

(4)  Whenever any person is bound by recognizance to give evidence before justices, or any criminal court, in respect of any crime under this Act, any justice, if he sees fit, upon information being made in writing and on oath, that such person is about to abscond, or has absconded, may issue his warrant for the arrest of such person, and if such person is arrested any justice, upon being satisfied that the ends of justice would otherwise be defeated, may commit such person to prison until the time at which he is bound by such recognizance to give evidence, unless in the meantime he produces sufficient sureties: Provided that any person so arrested shall be entitled on demand to receive a copy of the information upon which the warrant for his arrest was issued."

  This role would fit with the Protocol on the Management of Terrorist Cases. Section 6 is now outdated and would need revision as follows:

—  It should be applied not only to explosives offences but also to other terrorist offences and even (as argued above) to persons subject to control orders.

—  It should be triggered by a request from either prosecution or defence on the basis of compelling new evidence which has arisen after the pre-charge process and where the judge is satisfied that it is in the interest of justice to investigate further. The possibility of defence requests might seem unlikely, but evidence might arise which can lead to a dismissal of charges at an early stage.

—  An amendment is required to section 6(2). The purpose of the amendment would be to make the answer admissible, but in circumstances of judicial control which might be distinguished from the Shannon case.

—  The power should be exercised by a judge qualified to sit in the Crown Court. Given that seniority, it is not clear why the disqualification under section 6(3) should apply.

—  Further consideration could be given to whether the adverse inferences of the kind allowed in sections 34 to 37 of the Criminal Justice and Public Order Act 1994 should be allowed. The changes in Schedule 3 of the Youth Justice and Criminal Evidence Act 1999, which disallow any testimony, were made in the light of powers of compulsion (it being an offence not to respond to the questions). That legal position had been condemned under article 6: Saunders v United Kingdom, App.no.19187/91, (1997) 23 EHRR 213. Adverse inferences might be viewed as less drastic than a criminal offence, and a judicial examination might be less partisan than interrogation by an investigator. Nevertheless, the fact that the person is under charge and is increasingly close to the point of trial when such matters can be drawn out in better controlled circumstances, might be telling. The idea that adverse inferences can simply be applied to the context of post-charge questioning (Home Office paper, Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE) 1984 (2007, para.3.53) therefore fails to understand the legal difficulties. These difficulties are compounded if it is the police or prosecution who are put in charge of the questioning post-charge.

  15.  It should be emphasised that a judicial examination of this kind is not the same as appointing a judge as investigator. Under the proposal, the judge can retain the role of umpire, with a prosecutor or defence counsel putting the questions which have been screened by the judge. It is submitted that this is far preferable to the confusion of roles which would be represented by a judge-investigator. Judges have no training in police investigation. Furthermore, they would have to rely on police sources of intelligence and evidence, assuming they were forthcoming from the police which may not always be true where an "outsider" is involved, and so could not really act independently. To be viable, a judge-investigator would therefore need independent resources as well as training.

  16.  A number of substantial advantages would flow from judicially-managed examinations. Existing time-limits regarding detention could be respected. At that point, the person would be charged or be subject to a control order or be set free. If further evidence arose from later investigations, further questioning would be possible by reference to judicial examination, which would have the major benefit of ensuring that the responses would be admissible evidence and ensuring respect for the independence of the judiciary. It would also ensure clearer circumstances of fairness and humanity for the suspect.

  17.  Conclusion: The principles of fairness and court control after charge are best secured by a form of judicial examination of persons who have been charged with criminal offences. The necessary powers and processes should be adapted from section 6 of the Explosive Substances Act 1883.

Police examination by way of post-charge questioning

  18.  If post-charge questioning powers are to be granted to the police, there should be clearer rules about the circumstances of questioning than currently arise under PACE Code C paragraph 16 (the more specialist Code H para 15 adds nothing to the regulations). The rules should operate pari passu with the rules about pre-charge detention, including: limits on any interview session and an overall limit on questioning; the specification of conditions of treatment, dealing with meals, heating, sleep and so on; access to outsiders; and the recording of interviews.

  19.  These points are in the main straightforward, but the call for an overall time limit is problematic. Should this limit apply to questioning on all matters together or about each specific issue? One can imagine that the latter would be a more attractive rule to the police, who might say that information on X was not available until, say 10 days after charge, while information on Y was only discovered at 37 days after charge. If one assumes just one extra period of questioning of, say, 28 days (as specified by the Terrorism Act 2006, section 23), then there is just one day to question about Y. But if each specific matter triggers a potential 28 days, not only does the questioning clock become complex, with overlapping periods, but it also begins to appear to allow a process of wearing away the will of the suspect who is being exhausted into a state of complicity.

  20.  It is submitted that the resolution of these difficulties can be tackled in the following way. First, there should be a total parameter on police questioning. The prospect of a potentially large number of successive periods of questioning until trial is surely akin to the kind of practices widely condemned as applying in Guantánamo Bay. Second, given that the evidence will already have emerged to trigger the need for further police questioning, a second grant of 28 days would be excessive. One should instead invoke the extraordinary period of detention for questioning which prevailed during most of the life of British anti-terrorism laws, namely seven days (from the Prevention of Terrorism (Temporary Provisions) Act 1974 until the Criminal Justice Act 2003, section 306). It should be emphasised that seven days was the period specified in its original version by the Terrorism Act 2000, Schedule 8 paragraph 29. A limited period of this kind would apply discipline to police questioning, forcing investigators to think carefully about their strategies of investigation and limiting the questioning process until they were good and ready. For example, they would know that if information X has arisen but they are still investigating issue Y, it might be wise to wait until a fuller picture emerges before starting the seven day clock. The only variation on the PACE rules for pre-charge questioning might be that the clock could be stopped within seven days at the behest of the police. For example, if inquiries are satisfied on X and Y within two days, the investigators could save up a further five days for questioning about a later unexpected matter.

  21.  Oversight of police practices and the running of the questioning clock is vital. The judge who is managing the case to trial should have oversight over these processes. Any application to question should no longer take place under the terms of PACE Code C para 16. Instead, the regulation of these matters should be clearly set out in statute (and be reflected in PACE Code H para 15). The process should flow as follows. First, the police should seek the consent of the prosecutor assigned to the case for further questioning. If the prosecutor consents, both police and prosecutor should apply to the managing judge who should be able to grant a period of questioning up to seven days. The judge should consider and specify the following matters:

—  that there is clarity as to the subject-matter which will be the basis of questioning. Police investigators should be warned to stick to the approved issues and that questioning beyond these parameters may lead to the exclusion of evidence under PACE sections 76 and 78. They should also warn that questioning which is designed to achieve objectives which fall within the process of disclosure or which infringe upon legal privilege will be treated as an abuse of process;

—  that the police are applying appropriate resources to achieve a speedy resolution of the investigative process, including sufficient personnel, translators, data analysers, and forensic technicians;

—  that the conditions of questioning are satisfactory—that arrangements are in place to oversee the welfare of the accused and to provide legal advice.

  Once the process of questioning is over or whenever the questioning clock is stopped, the police should be required to return to the court to report their findings and should produce custody and interview records so that checks can be made on detention periods expended to date and the nature and subject-matter of questioning.

  21.  There will be substantial concerns about unfair process in terms of any evidence arising from post-charge questioning being put before a trial court. These concerns could be averted by adopting the simple rule under Schedule 3 of the Youth Justice and Criminal Evidence Act 1999 that information gathered is not admissible. However, such a rule would doubtless be said to defeat any criminal justice purpose of questioning, though not the intelligence-gathering purposes or possible executive purposes such as control orders.

  22.  A more modest limitation would be to leave in place the existing "old-style" caution (PACE Code C para 16.4) and not to apply the adverse inferences in sections 34 to 37 of the Criminal Justice and Public Order Act 1994. The argument may again be made that questioning in the absence of the threat of adverse inferences is likely to be a fruitless pursuit. In response, it may be pointed out that skilled investigators with considerable detention periods in which to interrogate should have the skills to make headway, as they managed to do in many cases before 1994. A further response is to repeat the point made earlier that police questioning at this late stage of the process raises greater concerns about unfairness under Article 6 than questioning pre-charge because of the greater circumstances of pressure on the accused. At the same time, the European Court of Human Rights in Murray v United Kingdom, App.no.1873/91, 1996-I, (1996) 22 EHRR 29 at para 47 has held that the privilege against self incrimination under Article 6 is not absolute. Provided there is a strong element of judicial supervision of the questioning, combined with strong warnings at trial to the jury as to the stressful circumstances in which any testimony was obtained post-charge, then it might pass the article 6 standard of fairness, though there will often be considerable challenges in the circumstances of extraordinary terrorist detentions. It would therefore be worthwhile to place any evidence before the managing judge for an early decision as to admissibility and the fairness of a direction about adverse inferences. Any statements obtained through post-charge questioning should also be subject at trial to a special warning by the judge to the jury concerning the highly stressful and potentially oppressive circumstances in which they have been obtained.

  23.  Conclusion: After charge, police examinations raise greater dangers of unfair treatment and excluded evidence than judicial examinations. They are a second best solution. If they are adopted, then the conditions in which they operate should be clear and detailed and specified by statute. The conditions should include: consent by the prosecutor and the prosecutor's involvement in applications to the court for permission to question; close judicial supervision by way of initial authorisation and subsequent review; detailed rules as to treatment; a questioning clock which is limited to an overall limit of seven days; any use of adverse inferences should be considered by the managing judge who should address the admissibility of the statements obtained by post-charge questioning; a special warning to the jury about the reliability of post-charge statements.

December 2007