Counter-Terrorism Bill

My Lords, I respectfully suggest that there is not a world of difference between the amendment proposed by the noble Lord, Lord West, and that proposed by the noble and learned Lord, Lord Lloyd of Berwick. Both come from the same direction and starting point: that is, the horror with which English law has over the centuries looked on the prospect of a person who, after all, is in the care of the court, after being charged, having further questions put to him. As I understand it, there have always been very narrow exceptions. There are narrow exceptions in Code C to the Police and Criminal Evidence Act 1984, which broadly applies at the moment. They apply where it is necessary to put questions in the hope of minimising or avoiding loss to a person, in the public interest, or where a further statement made by another person has come to light or has been referred to in an interview by another person. Those are the limitations that apply at the moment. There are two avenues in Clause 23. One might be described as the police path of questioning. The other is the judicial path, and it is a great improvement on the part of the Government to want to drop the police path and concentrate on the judicial path. The difference now is whether the judge should sit in essence as an examining magistrate, which would be the probable effect, although not the intention, of the amendment of the noble and learned Lord, Lord Lloyd, or whether the judge should be at large. I believe that the judge should be trusted. I have served for some 18 years as a circuit judge. Circuit judges very often have to face very difficult choices and can maintain a proper and just balance in such circumstances. The difference might be that, under the amendment proposed by Her Majesty’s Government, this application would be made ex parte but the defendant would not be represented. I am sure that that can be cured either by further amendment or by some administrative decision. On the other hand, there is a danger, which was properly expressed by the noble and learned Lord, Lord Goldsmith, that if one begins to spell out exactly what the question should be, one is in very difficult waters. The noble and learned Lord, Lord Lloyd, has argued that the judges’ rules—of 1904, if I remember rightly; I will be corrected if I am wrong—allowed the judge to oversee the questioning, but only post the event. There was no question of the judge being able to draft the area of questioning. He was obliged to consider whether any information or evidence had been extracted unlawfully and was therefore inadmissible. The oversight was limited to oversight long after the event. I know of no other instance where a judge in our law is entitled beforehand to set out the detailed parameters of the questioning. I appreciate that the noble and learned Lord, Lord Lloyd, is not saying that; he is saying that we should set out the area of investigation. That is why there is no world of difference between the two amendments. The area of investigation is bound to be affected by the provision in the Government’s amendment, which says that, "““further questioning of the person is necessary in the interests of justice””." If you say that questions in that area are necessary but that questions in another area are not, you are drawing a proper boundary between the two. On the other hand, if you say that this is the type of question that can be asked only up to that point but not beyond it, you are making the position of the questioning police officer almost impossible. There can be compromise where the area of questioning can be adequately delineated without over-circumscribing the content of the question.