Counter-Terrorism Bill

moved, as an amendment to Amendment No. 6, Amendment No. 7: 7: Clause 23, line 13, after ““to”” insert— ““(i)”” The noble and learned Lord said: My Lords, the House may have gathered from what the Minister has said that in Committee there was no support for the Government’s proposals on post-charge questioning. The noble Lord was given an extremely difficult hand to play but, in truth, subsections (2) to (5) of Clause 23 were indefensible. They have now been scrapped. The question for the House today is: what should be put in their place? Perhaps I may be forgiven for describing the sequence of events as they concern me. During the evening of Tuesday 28 September, I heard from the noble Lord, Lord Thomas of Gresford, that the Government had caved in and that post-charge questioning would be authorised not, as had been proposed, by the police but by a Crown Court judge. On Wednesday 29 September, I asked if I could see the government amendment, which sounded good. It had already been printed. I was told that there was some urgency as the amendment needed to be tabled as soon as possible. When I saw the amendment—not the one that is now before your Lordships—I realised at once that it was good, and I rang the Home Office the next day to say so. However, when I rang again on Thursday, I was told that the Home Office was having second thoughts. The amendment that I had seen, which I have here, would not be tabled after all. There had been opposition from the police and the Crown Prosecution Service in England and from the procurator fiscal in Scotland. They wanted certain words deleted. If noble Lords look at the Marshalled List, they will find the relevant provisions set out at line 12 of Amendment No. 6. The judge, "““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””." In the original version the clause continued, "““and the matters in respect of which the questioning is authorised””." Those words have now been deleted at the behest of the police, and my argument is that they are vital words. The sole purpose of my amendment is to restore them in the Government’s amendment. Why are the words vital? It is easiest to give an example. Let us suppose that after charge the police come across an altogether new piece of evidence on which they wish to interview the defendant—he is by then a defendant. They want to put it to him, and it is right that they should be able to do so. So they go before a judge, and he authorises further questioning for, let us say, 48 hours—the maximum allowed under proposed new subsection (2). Now let us suppose that the police have finished asking the questions about the new evidence after a few hours. What happens then? Are the police really free to go back during the remainder of the 48 hours over old ground about which the suspect, because he was then a suspect, has already been questioned for 28 days? Clearly, they cannot. If that were possible, there is a real danger of the court holding that the defendant had not had a fair trial. However, there is nothing in the government amendment before the House to prevent that happening. That is why it is so important for the judge to be able to limit the further questioning in the example I have given to the new evidence about which he has been told. Yet those are the very words that have been omitted. It seems almost self-evident that if the judge is going to authorise the further questioning, as everybody now accepts, he should be able to say what he is authorising—in other words, the matters in respect of which he is giving his authority—and those are the very words that are now missing. Why do the police and the prosecuting authorities in England and Scotland want those words removed? It is not for me to speculate, and I am afraid that the noble Lord has not yet explained to me why they need to be excluded. One reason might be that the police do not like judges looking over their shoulders, but that is an important part of the judges’ task. Indeed, it is part of the judges’ duty, which was formulated in the Judges’ Rules at the request of the then Home Secretary nearly 100 years ago to oversee the manner in which interviews are conducted by the police. Another reason might be that the police would feel inhibited in following the questioning where it led. However, the judge would not dictate the questions; he would only circumscribe the subject matter. Within the limits of the subject matter authorised by the charge, the police could ask whatever they wanted. This is a case where the Government’s first thoughts were clearly best. If the noble Lord now feels able to accept this amendment and restore the vital words that are missing at the moment, as they were deleted, apparently at the behest of the police, I would be more than happy to support his amendment. On the other hand, if those words were not restored, I would oppose it. I beg to move.