---

Terrorism Bill

moved Amendment No. 119:"Page 22, line 27, at end insert—" ““(   )   In paragraph 32 (grounds for extension) omit the words ““whether by questioning him or otherwise”” in sub-paragraph (1)(a) and after that sub-paragraph insert— ““(aa)   further questioning of him will be confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved, and””.”” The noble Lord said: In moving Amendment No. 119, I shall speak also to Amendments Nos. 127 and 128. It may be helpful to our discussions on Amendments Nos. 121 and 122 if I set out the background in which these amendments are to be considered. I remind the Committee of the tradition of criminal investigation and charging in this country as opposed to continental systems. The police or other investigating authorities make all the necessary inquiries to put a prima facie case together. Once that has been done, there are reasonable grounds for arrest. After arrest the common law approach is to interrogate the suspect about the evidence so collected. Within a limited period—usually 48 hours but it may be extended a little by the court—the person who has been arrested is given an opportunity to explain the evidence that is put before him. If he satisfies the investigators, he is released. If his interrogation casts doubt on the strength of the case, he will usually be bailed to return to the police station when further investigations have been completed. That is the system of police bail. If he fails to give any explanation at all or an explanation that casts doubt upon the case that the police have put before him, he is charged and certain safeguards necessary to a fair trial are put into effect. That is consistent with the presumption of innocence which I have not heard any Member of this House challenge. The person who has been charged is brought before a district judge to determine whether he be remanded in custody or released on bail by the court. The decision about bail depends upon the judge’s assessment of the seriousness of the case, the risks of the defendant not turning up for trial and so on. In any event, the evidence and the documentation will be fully disclosed to him, and from the moment that he is charged, or very shortly afterwards, he is no longer in the custody of the police, except in the very unusual circumstances when the gaols of this country are full. In every serious case, it is customary for the police’s scientific and technical investigations to continue after charge. There may be a misapprehension that they stop at that point, but they do not. A person may be questioned—there is no absolute bar to a person who has been charged being questioned further after charge—but only on the basis set out in this amendment; namely, to prevent harm to the public or in the interests of justice. By this time, the person has usually been remanded in custody to a prison and, from time to time, the police go to the prison for further questioning. If such further questioning takes place, it will be closely scrutinised at trial to see whether it was truly for the purpose of preventing harm to the public or in the interest of justice or whether it was oppressive. During the period between remand and trial, notices of further evidence will be served in which the product of, for example, overseas investigations, telephone evidence and DNA and other scientific evidence, such as fingerprints, will be disclosed to the defence. This happens all the way up to trial and, indeed, on occasion, after the trial has begun. The system that we depend upon for a fair trial copes with all of this. Once there is enough evidence to charge somebody, a great deal of the prosecution case will be put together after charge and before trial. There is no upper limit to the time during which these investigations continue. Further evidence, whether scientific, technical or whatever, may well be collected, collated and served in 14, 50, 100, 200 or 300 days if necessary. It depends entirely upon the nature of the investigation and the sort of evidence that has to be obtained. By reason of the serious threat posed by terrorism, this system was adapted, in particular by the Terrorism Act 2000. Section 41 of the Terrorism Act permits a constable to arrest without a warrant a person whom he reasonably suspects of being a terrorist. When the 2000 Act was passed, it initially stated that the person must be released within 48 hours of arrest, but designated district judges could issue a warrant of further detention under the powers given by Schedule 8 to the Act. At first, that warrant of further detention, which is the subject of all the conflict in this Bill, was for a period of further detention of seven days. In the Criminal Justice Act 2003, against a great deal of opposition, that was extended to 14 days. In order to issue a warrant for further detention, whether for seven, 14, 28 or whatever days, the judge has to be satisfied that there are reasonable grounds for believing that the further detention is necessary, ““to obtain relevant evidence””—I stress those words because one of my amendments goes to the definition of ““relevant evidence—"““whether by questioning him or otherwise””." That is the first thing: is the detention necessary? He must also be satisfied that the investigation is being conducted diligently and expeditiously. The proposal to amend the period of further detention, and to extend it to 28 days, has been decided in another place. As I indicated at Second Reading, we do not propose to contest that. It would obviously be unacceptable for a person who is detained for such an extended period like that to be subject to daily interrogation on a wide basis. It is precisely that sort of questioning—if a person is questioned day after day—which leads to oppressive methods of questioning; indeed, it may even be torture. It is no coincidence that the major miscarriages of justice, which have caused people to doubt the criminal justice system in this country and its ability to protect the innocent, have occurred in the area of terrorist crime. Although lawyers are attacked from various quarters in the Chamber, some of us have experience of terrorist cases—none more so than the noble Baroness, Lady Kennedy of The Shaws. The purpose of Amendment No. 119 is to give judicial oversight to the nature of any further questioning that may take place after charge and during a period of extended detention. A policeman, a superintendent or another investigator, who applies for a warrant of further detention for 28 days, will have to explain to the judge that any further questioning will be of the nature set out in that amendment—if my amendment is accepted. In other words, it would be,"““confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved””." So the purpose of my amendment is to say that if you extend the period of detention, the person detained cannot be questioned widely during that period, but he can be questioned about any matters—whether it be    scientific evidence or whatever—which those investigating have turned up. The judge would make an order extending the period of further detention to 28 days on the basis that the questioning would be of that order. Amendments Nos. 127 and 128 are designed to exclude the limited definition of ““relevant evidence””, which pops up in Part 2 of Schedule 8 of the 2000 Act. For the purposes of Part 3, where we are dealing with extended periods of detention, the nature of the relevant evidence is defined. It is precisely, as Members of the Committee will see if they look at that amendment, the evidence which the Government have said it takes time to collect and to collate. It includes investigations abroad, telephone evidence, computer files and forensic and scientific evidence. It does not include evidence obtained from witness statements and from routine police investigations, which should have gone on beforehand in order to build up the case against the arrested person before he is charged. Why the push to extend the warrant of further detention to 90 days, as was the Government’s original intention? I hope that the Committee has heard my outline and appreciated that there is no logic to that. The figure of 90 days is not magic at all. The investigation may continue for all of the period up to trial, which could well exceed the 90-day period; it could extend for more than a year. Almost 500 people who were released without charge of the 850 arrested under the Terrorism Act were released within 14 days. We have no evidence that any one of those released would have been charged if the police had had more time. So far as I am aware, not one of them has been picked up later following further investigation, arrested and charged. The problem with the 90 days is that it enables the police to arrest on rumour, suspicion or intercept evidence—which every other country finds admissible in evidence but we do not. In other words, it pushes back arrest to well before investigation has got under way. That is quite contrary to the traditions of investigation in this country. A person may be arrested on suspicion or rumour and then the serious investigation starts. If there is evidence that would justify a charge, the investigators—the police—would not hold that person for 90 days and then charge him. When there is sufficient evidence to charge, he must be charged. He may be there under a warrant of further detention; the police may come to the conclusion that he should be charged on day two, day 10 or day 15.