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Counter-Terrorism Bill

Enough data are available for the judge to ensure that proceedings are fair, which will normally allow the detainee or his lawyer to cross-examine the investigating officer. The extent of questioning is controlled by that judge to ensure that it is directed only to relevant matters and does not trespass on undisclosed or more difficult matters. The judge whom I accompanied at Paddington Green was extremely thorough. He went into considerable detail to make sure that it was appropriate for the man concerned to be held while further investigations were going on. He gave them only a very short time. That chap was charged and found guilty later. I was rather impressed by how that was done. I will certainly take away the point of the noble Lord, Lord Thomas of Gresford, and look at it. Video links are often used for the suspect’s appearance as both the security risks and resource 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. He or she does not always do that: it is often to do with security or movement of people. Such hearings without special advocates comply with human rights, but should in a particular case the judge consider that fairness requires a special advocate to be appointed, he or she could do so. In relation to the point that the existing grounds for issuing a warrant for the further detention of a suspect beyond 14 days should be amended to include a requirement that there are reasonable grounds for believing that the person has been involved in the commission, preparation or instigation of a terrorist offence, it is implicit in any successful application for a warrant that the initial arrest was lawful and 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 prerequisite 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 that further detention is necessary for the purposes of obtaining relevant evidence, there must inevitably be a reasonable suspicion that the person committed the offence. The minimum standard that the prosecution or police must demonstrate is that there are reasonable grounds on which to suspect that person. Conversely, without reasonable grounds to suspect that person, the prosecution or police could not even commence an application for further detention on grounds of securing relevant evidence. Therefore, it would not be possible for a court to authorise detention of a person under Schedule 8—or indeed under PACE, which also does not expressly require the court to consider the issue of reasonable suspicion—for any period without the reasonable suspicion required by Article 5.1(c). The extension of the maximum period to 42 days—if we were going that way—does not change this position as the test for continued detention remains the same. Finally, I point out that, in relation to legal aid, the arrested person is entitled to be legally represented at the application—and the person certainly was when I was there—and is entitled to legal aid for representation by a solicitor in the case of hearings relating to detention up to and including 14 days, or counsel in the case of hearings relating to detention for more than 14 days. I therefore resist that amendment. The purpose of Amendment No. 35 is threefold: to replace the independent reviewer of terrorism legislation with a panel of reviewers; to provide that the Motion approving the order for annual renewal of the 28-day limit cannot be made until a minimum of one month after the annual report on the operation of the Terrorism Act 2000, and Part 1 of the Terrorism Act 2006, has been published; and to provide that the Secretary of State cannot appoint the independent reviewer unless he or she lays a report on the appointment process before Parliament and it is agreed by affirmative procedure. In our response to the JCHR on 6 June, we made it clear that we do not consider it necessary to replace the independent reviewer with a panel of reviewers and that the noble Lord, Lord Carlile, has done, and continues to do, an excellent job. We do not accept that his post is too heavily loaded for one person. The appointment of the noble Lord, Lord Carlile, was renewed for a further three years in October 2007. We do not believe that it is necessary for Parliament to agree a report on the appointment process, as this is unnecessarily bureaucratic. Having a statutory requirement to publish the annual reports a month in advance of the renewal debates would be difficult. Where possible, we ensure that the report made by the independent reviewer is available in advance of the annual renewal debates, but this cannot be guaranteed. I therefore resist this amendment I am unable to accept Amendment No. 36. It seeks to put the threshold test used by the Crown Prosecution Service on a statutory footing, but only for cases with a terrorist connection. It would also require that defendants be informed which test had been used; the courts to set timetables regarding evidence; and annual reports by Her Majesty’s Crown Prosecution Service Inspectorate on the operation of the threshold test for cases with a terrorist connection. In rejecting this amendment, I have taken into account the fact that there is already a statutory requirement for the Director of Public Prosecutions to issue formal published guidance on charging under the Prosecution of Offences Act 1985 and the Criminal Justice Act 2003. This statutory framework emphasises the independence of the Crown Prosecution Service and recognises the need for regular revision by the Director of Public Prosecutions to take into account changes to the law or circumstances. Both those factors make the charging test unsuitable for primary legislation. It would be particularly inappropriate to enshrine only one of the charging standards in statute and only in relation to terrorism offences, when the threshold test is available for other offences. The current version of the code for Crown prosecutors was issued in 2004 and is the fifth edition. The code is laid before Parliament whenever it is revised, but the contents of the code are not statutory, although it is binding on prosecutors. The code was the subject of public consultation when it was last revised in 2004 and sets out two tests—the full code test and the threshold test. Both these tests have two stages—the evidential stage and the public interest stage. Interestingly, the amendments laid here do not mention the public interest test. Only if the evidential stage is met does the prosecutor go on to consider whether it is in the public interest to prosecute the case. Under the full code test, a suspect can be charged where there is a realistic prospect of conviction and it is in the public interest to charge that suspect. By contrast, the threshold test requires Crown prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence and, if there is, whether it is in the public interest to charge. In deciding whether there is a reasonable suspicion, prosecutors must also make a clear evidential decision. They are directed under the code to consider the evidence already available and the reasonableness for believing that further relevant evidence will become available within a reasonable period sufficient to meet the full code test. Under the code, the threshold test is applied only to those cases in which it is not appropriate to release a suspect on bail after charge but the evidence to apply the full code test is not yet available. Obviously such circumstances may apply not just in terrorism cases but in other serious criminal cases as well. The threshold test is applied only for a limited period. The charging decision is kept under review by the prosecutor and the full code test must be met as soon as reasonably practicable. In addition, I should point out that Her Majesty’s Crown Prosecution Service Inspectorate already carries out thematic inspections of charging across criminal case work, and that includes the threshold test. A statutory requirement to inform the defendant which evidential test has been applied would not add value or safeguard the rights of the defendant. The criminal process already enables the defence to be informed of the evidential basis of the Crown’s case at the first court hearing. In most cases, the first hearing will take place within 24 hours of the charging decision. At that stage, there will be clear consideration of the evidence in relation to the bail application. The Bail Act 1976 specifically requires the strength of evidence justifying retention in custody to be considered. The legal process already allows the court to set time limits for the service of further material. It also permits applications to the court to be made for the case to be dismissed due to lack of evidence at an early stage in proceedings. The Bail Act and the custody time limit regime further ensure that courts must consider the strength of the evidence against the defendant and the conduct of the prosecution when making a decision on whether the defendant should be bailed or remanded in custody. Advising the defence at the point of charge what test they have been charged under would not assist the defence or add any extra safeguards to the extensive ones that already exist. On the basis of what I have said I ask noble Lords to withdraw the amendment. On Amendment No. 71, we have considered the option of allowing terrorist suspects to be released on bail and have consulted the police. They did not recommend making police bail available for terrorist suspects because of the risks to public safety that might be involved. There is also a risk, which we are unwilling to take—