Counter-Terrorism Bill

moved Amendment No. 6: 6: Clause 23, page 16, line 33, leave out subsections (2) to (5) and insert— ““( ) A judge of the Crown Court may authorise the questioning of a person about an offence— (a) after the person has been charged with the offence or been officially informed that they may be prosecuted for it, or (b) after the person has been sent for trial for the offence, if the offence is a terrorism offence or it appears to the judge that the offence has a terrorist connection. ( ) The judge— (a) must specify the period during which questioning is authorised, and (b) may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out. ( ) The period during which questioning is authorised— (a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and (b) must not exceed 48 hours. This is without prejudice to any application for a further authorisation under this section. ( ) Where the person is in prison or otherwise lawfully detained, the judge may authorise the person’s removal to another place and detention there for the purpose of being questioned. ( ) A judge must not authorise the questioning of a person under this section unless satisfied— (a) that further questioning of the person is necessary in the interests of justice, (b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and (c) that what is authorised will not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.”” The noble Lord said: My Lords, the government amendments in this group seek to address the concerns raised in Committee in respect of the post-charge questioning provisions. The amendments remove the ability of a police superintendent to authorise post-charge questioning about the offence charged. Rather than authorisation by the police, all questioning will need to be authorised by a Crown Court judge in England and Wales, a sheriff in Scotland and a district judge in the magistrates’ courts in Northern Ireland. We have selected the district judge following consultation with colleagues in Northern Ireland. They advised that it would be the most appropriate judicial tier for authorisation in Northern Ireland as they are legally qualified and have full case-management responsibilities for all cases, including terrorism cases, before they go to trial. They also commit cases for trial, which requires them to determine whether there is a prima facie case by examining written evidence in preliminary inquiries and by means of hearings involving the examination of witnesses in preliminary investigations. As I have already said, authorisation in Scotland will be by a sheriff. Scottish colleagues advise us that this is broadly equivalent to the Crown Court judge of England and Wales and that this would be the appropriate level for authorisation. The amendments limit the period for which post-charge questioning can be allowed to a maximum of 48 hours before further authorisation must be sought. This 48-hour period would run continuously from the commencement of questioning and would include time for meal breaks, sleep and consultation with legal advisers. The amendments ensure that questioning would be authorised only if the judge deemed that it would not interfere unduly with the preparation of the defendant’s defence to the charge, or any other criminal charge, that he may be facing. In effect, this would prevent questioning close to or during a defendant’s trial. The amendments allow the judge to authorise questioning for an offence not specified in terrorism legislation if it appears that the offence with which the person has been charged has a connection to terrorism; for example, a judge could authorise post-charge questioning for the offence of murder if it appeared to them that it was connected to terrorism. This is instead of the original proposal where questioning for a non-terrorism offence would have been allowed if the judge had made an order under Section 29 of the Criminal Procedure and Investigations Act 1996 for a preparatory hearing to be held on the basis that the offence was connected to terrorism. It is no longer necessary to make reference to a hearing under Section 29 as the judge authorising questioning will be seized of the matters and so will determine whether there is a connection of a general criminal offence, such as conspiracy to murder, as part of the authorisation for questioning. This has an advantage over the previous position as there was a potential gap between charging and when the order for a preparatory hearing was made, where it would not have been possible for post-charge questioning for general criminal offences to have taken place. Finally, the amendments allow the judge authorising questioning to impose conditions on the questioning, such as the location or length of the questioning, as they deem necessary in the interests of justice. They do not, however, specify that the judge could determine the scope of questioning, unlike the amendments tabled by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Neville-Jones. We had considered including in the Bill a provision that allowed the judge to impose conditions as to the matters in respect of which questioning was authorised. However, following further consultation with the Crown Prosecution Service, the police, and Crown Office & Procurator Fiscal Service in Scotland, we do not believe that it would be appropriate to for a judge to determine the exact scope of police questions. While the pre-trial phase has certainly been started after charge, the Government do not accept that this should give a judge a role in directing or limiting any continuing police investigation. The defendant may be under the protection of the court, but he is not under the control of the court. There is an overlap with case management responsibilities that are certainly within the judge’s remit, which come into play the later in the proceedings the application is made. However, the new clause contains a provision that the judge can refuse questioning if it would interfere unduly with the preparation of the person’s defence. It is important to remember that following a sudden terrorist event, people may be charged on the threshold test before all the evidence in what may be a very complex web of facts, circumstantial evidence and contacts has been gathered or analysed. At that stage, the investigation is very much still under way and may be at an early stage in respect of some, if not all, lines of inquiry. Court proceedings will not be in full swing in the sense that any trial is remotely imminent. Any decision to allow post-charge questioning is therefore squarely part of the police responsibility, over which they have a very wide discretion, to conduct a proper investigation following up reasonable lines of inquiry pointing towards or away from guilt. If they act inappropriately in any way, they may be sanctioned and the judge may rule out any evidence at trial. These principles are well established in relation to pre-charge interviews. We also believe that if we were to specify that a judge could impose limits on, and identify closely, the scope of questioning, it could start to take their role a little way towards that of examining magistrates in France. We do not want anything that might start to take us down that route, something I know the Joint Committee on Human Rights has looked at in detail. In addition, practical problems may arise if the judge determines the scope of questioning. For example, if unforeseen issues arose from any answers to an authorised line of questioning, the police might be hampered in their ability to question further without first returning to the court to seek a fresh authorisation. The implication for any subsequent trial would be that if there was any deviation from the line of questioning authorised, this would prompt an objection to the admissibility of those questions and any answers. There would likely be extensive arguments in court as to whether the individual questions were within the scope allowed by the judge. We therefore believe that the admissibility of the post-charge questioning as a whole is a matter which should properly be determined at trial with reference to the principles of admissibility and fairness. We believe that the rights of a defendant subject to questioning are adequately protected as the judge can specify how long the police would have to question them. The judge would need to be satisfied that the questioning was in the interests of justice and in practice, if the police only had a small amount of additional evidence on which to question the suspect, they would grant only a short time for additional questioning. Finally, the fact that the judge has authorised post-charge questioning does not require the accused to answer those questions. He will have the same right to silence, in relation to any and all questions, as in any other situation and is certain to have a solicitor present to advise him. I beg to move.