PROFESSOR CLIVE WALKER

17 DECEMBER 2007

  Q1 Chairman: We are joined for another of our sessions on counter terrorism policy by Professor Clive Walker of the law school at Leeds University, so welcome to you, and thank you for coming. We all have seen your paper on post-charge questions, which is what we particularly want to talk to you about today, and perhaps we can start off by asking you a general question whether there is anything in human rights law which prohibits in principle the allowing of post-charge questioning and ultimately drawing of adverse inferences.

  Professor Walker: There are probably two provisions at least that are relevant to this matter. The first is the issue of the necessary detention that will be necessary to facilitate the post-charge questioning which would raise issues under Article 5 of the European Convention relating to the right to liberty. Secondly, under Article 6 there is a question of the generality of the treatment of the person and whether that has an on-going impact in terms of how fair the trial then becomes, how fair it is, for example, to take as admissible evidence which has been obtained by this process, and I suppose the argument would be that particularly after charge the person being questioned is in a rather, shall we say, precarious position, already knowing that charges are to be faced and a trial is pending. So I would say those are the considerations. That does not say that there is any absolute prohibition on questioning, and I think the general issue to be determined is what circumstances of fairness can we devise to ensure that any new process of post-charge questioning is fair under Article 5 and Article 6.

  Q2  Chairman: So, taking you to the Home Affairs Committee recommendation, for example, that you should have the same safeguards post-charge as pre-charge, is that effectively the answer to the story, or should there be different safeguards?

  Professor Walker: My own view would be that because of the fact that there has been a charge there is a changed circumstance which means that simply applying pre-charge protections which mainly exist under the Police and Criminal Evidence Act and Code C of the Code of Practice are not enough, in my view, and I put that forward for two reasons. One is that, as I have already mentioned, there is the issue of what is fair in the circumstances, and fairness here includes not only the detention but also the fact that the police and the prosecution are building a case, and we are dealing with the circumstances of an adversarial process where normally we require a very careful umpire to ensure that what is being done is fair in all the circumstances. That umpire we normally call a judge, and we do not simply allow the police after charge to collect evidence without reference to the court. I think a second principle is, indeed, that the court should be seen as in charge. It is the law, that the court is in charge. The Criminal Procedure Rules of 2005 very much point in that direction, so there is again a major difference in principle between allowing the police to investigate a case up to charge, which is their duty, and what goes on after charge, which is the province, I would say, of the court. The court should keep a very close watch over what is happening after charge to ensure that what is being done is fair in those circumstances. So I would disagree with the Home Affairs Committee.

  Q3  Earl of Onslow: What, in your view, should be the absolute minimum safeguards that are required? If we were to say yes, this is a good idea, basically how would you allow it to happen and under what circumstances? How would you ration the questioning? How would you umpire to ensure the questioning was still fair along those lines?

  Professor Walker: Having criticised your colleagues in the Home Affairs Committee I would start with the proposition that many of the safeguards which apply pre-charge should, indeed, be applied post-charge, and they need explaining or explicating more fully in terms of the conditions of questioning: how long, in what circumstances, meal breaks and all the rest of it; access to solicitors. All of those apply pre-charge but under existing PACE codes there is basic silence on post-charge questioning. It is barely recognised at all, so the first thing is to specify really physical direct conditions of questioning. Secondly, I would like to see the purposes of questioning being carefully delineated, what are the reasons why the police, after charge, would question somebody? Now, in the context of terrorism, which I think is your main interest, I guess the main reason would be that new evidence has now arisen post-charge, and fair enough, I would say, let's specify that therefore the questioning has to be about new evidence and we do not allow the police to continue to browbeat somebody post-charge on exactly the same issues they were questioning pre-charge. They have had their 28 days, or whatever period the Government might now wish to set. It would really be set at nought and it would make a nonsense of all the debates about what the period of pre-charge detention should be if they could continue on the same tack questioning about the same issue post-charge, bearing in mind that between charge and trial can be a considerable period of time- a year, even closer to two years in some cases, has been common in recent times. A third point is that I would like all of that to be policed. I said after charge the court should be in charge, and I therefore recommend that the wish to question further should be taken before a judge, and should be authorised or refused, as the case may be, by a judge, who should look very carefully at the purposes of questioning, and see that they do not conflict, either with the issues which have previously been questioned pre-charge, or, indeed, that they do not conflict with the very elaborate and precise rules about disclosure of evidence which apply post-charge, for I think there is again a danger of the police obtaining by post-charge questioning what they would not be allowed to obtain through the process of disclosure of evidence pre-trial. I would also like the judge, the questioning having taken place, to go back and check the records that the police have actually observed the limits that have been set on the rounds of questioning, the areas of permissible questioning. You would also need to think about periods of time. Should it be another 28 days? Should the police be able to question for what I described as potentially up to two years? Should they question somebody every day over two years? My own recommendation would be to think in terms of no more than a total period of questioning of seven days. So there are periods of time, there is judicial review, and conditions of questioning.

  Q4  Earl of Onslow: Arising out of that, how do you cope with, unless you have a judge sitting in on the questioning, PC Bloggins being allowed to question within that sort of parameter? The accused has a solicitor present. The policeman, because he is getting more information, starts to stray outside those parameters. How do you police that if there is not somebody judicially there? Also, how long would you allow this to go on? Let's say new evidence arises ten minutes, and I am taking this as an exaggeration, before the trial is due to start? How would you stop it happening X days or X hours or X months or X years before the trial starts?

  Professor Walker: On the first point, we have moved on in terms of police questioning and questioning is now, certainly for more serious cases like terrorist cases, almost certainly going to be tape recorded. So I think we do have a good record, and we would be able to obtain a fairly clear transcript of what has gone on in the police station. As you say, combined with the fact that the suspect, the chargee's, lawyer is also likely to be present and is able to object at the time if the questioning, as you say, strays. But my idea was to bring back the transcript before the judge who granted the authorisation. Let the judge look at the transcript and make a judgment as to whether the police have strayed too far in a way which is unfair or underhand, if you like, designed to evade the rules on pre-charge questioning time limits or designed to evade the rules on disclosure. So that is my answer to your first point, the safeguards are there. In terms of when does the clock stop, or should the clock ever stop, I would certainly find it difficult to say that it is likely to be viewed as fair to question while the trial is going on. It would seem to me to be an extraordinary fate for an individual to spend his day in the Old Bailey and his night in Paddington Green, so I am fairly sure of that. I find much more difficult your question should the police interrogation stop a day before the trial, a week before the trial, a month or a year before the trial? I would come back to the idea that any questioning is to be authorised by a judge who is charged with the idea of ensuring fairness in the circumstances, and I can conceive that it is possible that if evidence suddenly arises a day before the trial and that the police have not exhausted their allotted time, which I argued should be seven days, then questioning might be viewed as fair. It might also be viewed as fair for that judge to postpone the trial so that the defence can properly consider the evidence which has been obtained. So I find your question a very difficult question to answer in terms of time limits, save that I would say that there cannot be questioning during the trial.

  Q5  Baroness Stern: Some people might say that the role you are suggesting for the judge is inquisitorial and that is rather at odds with the traditional judicial function in an adversarial system like ours. How would you answer that objection?

  Professor Walker: I am not asking the judge to directly ask the questions, and in the context of a hearing I would add as another safeguard that I would like any police questioning to be approved by the prosecution. I think it is probably obvious that that would have to be the case after charge, so on the one side we have the police making an application to question further, and I would also invite the defence to appear if they wished to object to the questioning. So I see the role of the judge as essentially an umpire as to whether the questioning should take place, and later, on review, an umpire as to whether the questioning which has taken place has taken place fairly and in the interests of justice. In that I would distinguish the role of the judge from an inquisitorial magistrate, who is actually directing the lines of inquiry and in some cases is conducting those inquiries directly herself or himself. The judge remains an umpire; the initiative is taken by others.

  Q6  Lord Dubs: My question is about silence in the face of post-charge questioning. What do you think is the minimum that should be contained in the specimen direction by the trial judge to the jury about the inferences it might be permissible to draw?

  Professor Walker: This, again, is a very difficult question. There are a number of provisions in past history which have allowed questioning post-charge but on the basis that the evidence is not allowed to be admitted at all, and so the first proposition is to question whether I think we allow this evidence to be admissible. As I say, there are a number of fairly recent statutory provisions—when I say "recent", the past 20/25 years—dealing with serious frauds and corporate misdeeds which have allowed this form of questioning, but very much on the basis that the evidence would not be used. I think if we allow the evidence and then also we allow not only statements which have been made but silences by way of unforeseen[1] inferences, we have to be again sure, it strikes me, that it is fair to draw inferences in those circumstances, and I think that again points to active judicial umpiring of what is being questioned about and the circumstances of questioning. So I would say that provided we have had that form of umpiring, the circumstances which I have already described, it is difficult to argue that it is necessarily wrong to draw adverse inferences. A case called John Murray before the European Court of Human Rights did not exclude the possibility of adverse inferences being fair. In terms of the directions, then, to the jury I think I would like to add an extra statement to what is the current approved statement which has been devised through the Judicial Studies Board which would be to the effect of a reminder to the jury that, post-charge, the suspect is perhaps at a particularly fraught stage and is under particular pressure to respond and to try and, for example, do a deal or to please his or her imprisoners. Therefore the reliability of either silences or statements may be particularly questioned in those circumstances. So I start with the normal proposition, the normal inferences, the normal directions, but I think I would have a special warning to do with post-charge questioning.

  Q7 Lord Dubs: You have mentioned a number of safeguards, both in answer to my question and earlier questions. Do you think some or all of these should be contained in primary legislation, and if not all, which ones do you think would be appropriate to leave to secondary legislation, for example amending the PACE codes, to which you have also referred?

  Professor Walker: I start with the proposition that the Police and Criminal Evidence Act does not authorise in the terms of that Act post-charge questioning at all, so I would start with the proposition that if you are going to go down this road, whether it is to do with terrorism or, as the Government has also argued, police questioning in general, there does need to be primary legislation to set some parameters. The particular parameters I would set in the primary legislation would, indeed, relate to the purposes of the questioning—for example, it relates to new matters not old matters: I would see it as relating to the time limits on the questioning—I suggested no more than seven days; and I think the idea I put forward of judicial umpiring of the process of questioning would also require primary legislation. Presence of a solicitor would also require primary legislation. So I think all of that should be primary. I think you could probably leave to an amended PACE code issues like the person shall get a meal every two hours or a meal break every two hours, and some of the details of that kind can be left to the details of the code.

  Q8  Chairman: Can I put to you the more general question as to where this has all come from? We are trying to steer a very difficult course, I think, between, on the one hand, post-charge questioning and, on the other, 28 days, plus or minus. The question really, I suppose, is this. One of the key arguments that has been advanced by the police in the past, I am not sure to what extent it is still the case now but it will come back, is that the reason we need 28 days, or more than 28 days, is the complexity of the investigation and the fact that evidence comes to light much later, and with the fixed time limit they cannot put that evidence to the suspect, and the argument is we can have threshold charging, which works on the basis of anticipating what the evidence may be and within what timeframe and so forth, and the argument then comes back: Well, the answer to that is to require the charge and the threshold charging and all the rest of it to be at the 28 day limit, but the quid pro quo is that the police should then be able to put that to the suspect at a later date. So which is the lesser of two evils, having more than 28 days—42 days or whatever it is—and no post-charge questioning, or sticking to 28 days or even less, but the quid pro quo is you allow the suspect to be questioned on the evidence that comes forward as a result of those later inquiries? How would you answer that, which is the political question we all have to grapple with?

  Professor Walker: I think I would prefer to treat the issues as independent to a large extent. In other words, I would like you to ask yourselves, as you no doubt have been, is the 28 days justified on its merits? What is the evidence in terms of the case files, for example, from 14-28 days?

  Q9  Chairman: We have already concluded on that and we have said there are no grounds for fixing the limit beyond 28 days. But I put the argument hypothetically because there is no doubt this is an issue that will keep coming back as it gets more complex or more evidence is produced. At the moment we are not satisfied we need to go beyond 28 days, but there is no doubt this issue will be a running sore through politics for the foreseeable future, so take it as read that is going to be the argument we shall have to answer.

  Professor Walker: Well, taking it as read that it is an independent issue, looking at the merits of the issue of post-charge questioning in itself, I accept in many ways the preamble of what you have said, that it is claimed—and I think I accept—that a lot of the recent terrorist cases have been very complex. I go back to the question of independence: this does not necessarily mean you need more than 28 days because what you have there is a profusion of evidence within 28 days to charge to the person anyway, but I can see there is an argument you may wish to explore the evidence further. It is in the public interest to know what has gone on and to detect all the strands of the conspiracy which has taken place. So I think that the complexity is a good argument which I accept as a leg for post-charge questioning. The other argument you give I also accept—that the threshold test does again leave up in the air, if I can put it that way, more so than, shall we call it, the normal test, a number of strands of evidence which can be left where they are for the sake of bringing a viable charge, but it may again be in the public interest to explore those unexplored strands and see if there are better charges which might be made or, indeed, other charges which may be made against other people. So I accept the generality of the argument that post-charge questioning has come on the horizon, and makes some sense in the fact that there are changed circumstances which particularly apply in terrorist cases. What I did not accept was the argument that this can be done without a lot of thought and you can simply apply the pre-charge PACE rules to post-charge questioning.

  Q10  Chairman: I think we would certainly agree with that. Can I look at the other side of perhaps the same coin? The police say: Well, it would be useful to have this. However, in practice they will not answer our questions anyway, which is what the position has been pre-charge questioning, generally speaking. The only utility, therefore, comes from the issue of being able to draw the adverse inferences. Is there anything you would like to add to that because in the end we are not arguing so much about the questioning, but about the inferences.

  Professor Walker: Yes. The silences. I suppose two things come from my research. First, I agree with the proposition that in terms of post-charge questioning it happens very rarely, and I very much suspect the reason is what is the point, they will not answer any charges. What would be the effect of applying adverse inferences? I can tell you that there was some research done in Northern Ireland in relation to adverse inferences in terrorist cases—

  Q11  Chairman: Is this in Diplock courts?

  Professor Walker: In Diplock courts, indeed, yes. This goes back I think about seven or eight years, the research, so not exactly the heyday of Diplock courts but nevertheless Diplock courts. The effect of applying adverse inferences—and this again was pre-charge not post, because the rules in Northern Ireland are very much the same; there are no adverse inferences post-charge—was not to produce dramatic changes in terms of those adverse inferences, but to encourage the suspect to speak. I am trying to remember the precise figure, but I think it went up from round about 36% who answered questions to 75% who answered questions, so the main effect was an encouragement to answer the questions. In terms of the adverse inferences they become rarer, and the change there was probably less dramatic. I have a colleague in Northern Ireland at Queen's University Belfast, [2]who does a lot of research on this and he described the adverse inferences as "copper-fastening" the already strong case. That was how he put it in his observations of the cases where he found an adverse inference had been used.

  Q12 Chairman: And since adverse inferences came into England in ordinary criminal trials, has there been any research done on the impact that has had?

  Professor Walker: There has. The impact has been rather more marginal but of a similar nature. In other words, the courts themselves have not, I would say, dramatically used adverse inferences to convict people; it adds to other evidence but it has encouraged more responses to police questioning or, indeed, issues raised at trial. That seems to be the impact. So we must assume it would have the same impact, if applied to terrorist cases in England post-charge.

  Q13  Lord Lester of Herne Hill: I am sorry I was not here at the beginning of your evidence, Professor Walker. My question really is to ask you to state what I hope is the obvious. I take it that the basic safeguards built into the common law and the Human Rights Act are, first of all, the presumption of innocence: secondly, the privilege against self-incrimination, the right to silence: and, thirdly, the overriding obligation of the criminal court to ensure fairness at trial, and all of that is in common law but copper-fastened in the Human Rights Act and the European Convention, so that those safeguards would be in place if we moved towards post-charge questioning, leaving aside the merits of doing so. Is that right?

  Professor Walker: I answered a previous question about what would be the difference of the regime pre-charge, and the various safeguards that exist pre-charge, and the regime that might exist post-charge and what I would like to see post-charge, and I did point out as one of the perhaps major differences what I would describe as "judge umpiring" the questioning post-charge. I would not be happy simply to leave this to the police to conduct as they see fit; I think it should require pre-authorisation by a judge. Let the police put their need to question to a judge and prove that it does not either repeat sessions of questioning already conducted, or does not trespass on the rules of disclosure, or process of disclosure. So there would be pre-authorisation. I also argued that the judge, after the process had taken place, should check the record to see that what has been done is fair, and that he or she makes a decision as to whether any evidence found, or silences inferred, should be raised at trial. So I think the differences are close scrutiny, a close umpiring, as I described it, by the judge.

  Q14  Lord Lester of Herne Hill: I understand that entirely. What I was on about was, assuming that the earlier safeguards that you are recommending did not operate, there would still be the obligation at the actual trial for the judge to be extremely careful against the use of answers to post-charge information because of those three safeguards that I have mentioned about presumption of innocence, the privilege against self-incrimination and fairness of trial. So those would be in place. I am not disagreeing at all in my question, but that is right, is it not? There would be the final obligation of the trial itself?

  Professor Walker: Oh, yes. We, of course, still have the operation of the provisions in Sections 76 and 78 of the Police and Criminal Evidence Act 1984 at the trial itself. What I am arguing is, if the judge has to review at a much earlier stage, pre-trial, then maybe the evidence would not even reach trial. If he or she believes that the questioning that has been conducted has strayed from the authorisation which was granted, we could put a stop to it at that point. But you are right, even if it goes to trial, I guess it would be true to say the defendant has a second bite at it through Sections 76 and 78, and let the jury decide ultimately of course.

  Q15  Lord Lester of Herne Hill: And why would that not be sufficient? We know that in the United States the Fifth Amendment is interpreted in a very extreme way, one might say, to cover people being questioned even when it does not lead to trial, whereas in the UK and Australia we do not take quite such a robust view. Arguing against you, why would it not be sufficient to say any abuses or misuses on the way can be cured by making sure that the evidence is not improperly used at trial? What is wrong with that argument?

  Professor Walker: Well, simply that I put forward the proposition that post-charge questioning is perhaps putting the suspect, the charged person, the accused, in an even more difficult position than pre-charge questioning, and our suspicions ought to be heightened in that circumstance. The earlier the check that the evidence that has been obtained or the adverse inferences which are to be applied is fair in the circumstances the better, in my view, and that relates again to the fact that there is perhaps greater pressure on the accused having been charged with offences. There is also the danger of conflict with the rules of disclosure- where does the boundary of post-charge questioning end and where does disclosure begin? We need again a judge to sit as an umpire to make sure that each procedure is being used for its appropriate purpose. Of course, particularly the issue of disclosure does not apply pre-charge.

  Q16  Chairman: One recommendation that we previously made in relation to pre-charge questioning was that interviews should always be DVD recorded. Presumably you would consider that an appropriate safeguard here as well?

  Professor Walker: If the technology is there, which it certainly is, I see no reason why not. My own experience is that these battles about what was being recorded have been, largely won in the case of PACE suspects, and it is treated now as a matter of course. There is still an overhang in Northern Ireland of a reluctance to record, but I do detect from research and from talking to police officers in Northern Ireland that that is breaking down also because of the influences of PACE. So the better the record the happier I would be in terms of ensuring that justice and fairness is being observed.

  Q17  Earl of Onslow: So may I sum up? What you would like is judge permitted to query interviewing on nothing other than new evidence and time-rationed, and videoing and post-questioning checking with the judge that Plod has not cheated?

  Professor Walker: Yes.

  Q18  Earl of Onslow: If that becomes acceptable and part of the law, would it not therefore be just as reasonable to use this for non terrorist trials as well as terrorist trials, if part of the politics of it should be to make terrorists as near criminal rather than terrorists? Is there any reason why it should not go on over into non terrorist trials?

  Professor Walker: I do not see why not in principle. I think, as you rightly say, if the conditions of fairness apply they apply across the board. Of course, there is a Home Office paper modernising police powers which has made that very proposal but, again, it does so as a kind of afterthought without really any delineation as to what the rules should do. So I think there is a big "if and but" to set the conditions right.

  Q19  Earl of Onslow: But it is proper conditions?

  Professor Walker: Yes.

2  Note by Witness: Professor John Jackson. Back