HC Deb 11 December 1997 vol 302 cc1220-30

`—(1) Section 60 of the Northern Ireland (Emergency Provisions) Act 1996 (orders and regulations) shall be amended as follows.

(2) In subsection (2), after "30" there shall be inserted ", 54".

(3) In subsection (5), the words "or 54" shall cease to have effect'.—[Mr. Trimble.]

Brought up, and read the First time.

Mr. Trimble

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 5, in clause 5, page 2, line 38, at end insert— (2A) Subject to subsection (2B) a recording or a copy of a recording made under subsection (1)(b) shall not be made available to any person. (2B) A judge conducting the trial of a scheduled offence may require the production to him alone of copies of all or any of the interviews made under this section with the accused in connection with the subject matter of the trial.'. No. 7, in schedule 1, page 4, line 26, leave out & ", 53A" & and insert & "or 53A' ".

No. 8, in schedule 2, page 4, line 37, at end insert— 'In section 60(5), "or 54".'.

Mr. Trimble

Amendments Nos. 7 and 8 are consequential on new clause 3, but amendment No. 5 deals with a separate issue that is quite important.

I must give credit for new clause 3 to the hon. Member for Basingstoke (Mr. Hunter). In Committee the other week, when we were discussing a code of practice under the Criminal Procedure and Investigations Act 1996, the hon. Gentleman referred to the provisions in that Act enabling codes of practice to be properly consulted on and debated in the House. The Minister—this Minister—approved of the hon. Gentleman's comments; as a result, they are the joint progenitors of the new clause. As the Minister spoke approvingly of the proposal in Committee, I am sure that he will follow through the logic of that approach now.

Amendment No. 5 is a different matter. I will explain the thinking behind it. Clause 5 makes provision for the audio recording of interviews conducted by the police with terrorist suspects. It is a matter about which we have very grave reservations. Indeed, in previous debates we have advised against such audio recording.

I know that audio recording is normal practice with regard to other offences. I am also aware that some judges in Northern Ireland have expressed the view that there should be audio recording. From their perspective, such recording diminishes fights when people who have signed statements challenge them on the ground that they were obtained improperly. The trial within a trial on the issue is sometimes difficult for judges to resolve. While audio recordings of interviews might solve that problem, they give rise to other problems and dangers, which in the past have convinced my hon. Friends and me that they should not occur.

During interviews with terrorist suspects, much intelligence is gathered by the police. A number of things are said on the basis that they are not recorded in the note of the interview. That is a well-known practice, and it is not necessary for me to cite evidence of it; it is accepted by everyone who is familiar with the system. Many such statements are made, and they would of course be recorded if an audio recording were taken. Such a recording would become available to a wide range of people. I do not need to remind hon. Members that when a terrorist suspect is arrested and questioned, the very first thing that his criminal associates do is try to find out details of what happened and what was said during the interrogation. An audio recording would facilitate that.

There is no point in saying that the recording would not become available. If, in the normal course of events, a recording should be disclosed or come up in discovery, it will become available to the terrorists. They will then be able to check what their members or people associated with them have said in interviews. That is a very dangerous step to take and will have a serious effect by limiting the amount of intelligence that becomes available to the security forces.

I realise that the Government are determined to proceed with audio recording. Amendment No. 5 therefore tries to limit the damage. It provides that a copy of the recording can be furnished by the police to only one person—the judge conducting the trial—and that it would not be available to anyone else outside the police. That must go into legislation; it cannot be included in a code of practice because codes of practice cannot prevent the recording being discoverable. The amendment would limit the collateral damage which clause 5 will do to the activities of the Royal Ulster Constabulary.

Mr. Andrew Robathan (Blaby)

The hon. Gentleman has raised a point which I had not considered. If the amendment is not accepted, the clause could be a gift to terrorists. All hon. Members are very well aware that Sinn Fein and the IRA are very good at manipulating any loophole—however small—in the law. The amendment should be commended by us all.

Mr. Trimble

I thank the hon. Gentleman. His phrase is quite right; the provisions in clause 5 are a gift to terrorists. The amendment would limit the damage. I acknowledge the arguments in favour of audio recording. We felt on balance in previous years, however, that even though there was an advantage to audio recording the disadvantage that I have mentioned outweighed the advantage. The amendment would prevent the disadvantages that would flow from audio recording.

Mr. Öpik

Are we to understand that the hon. Gentleman is trying to ensure that audio recordings do not become an additional weapon in the terrorists' armoury and that audio—and, more important, video—recording is used to protect the interests of prisoners as well as accuracy?

Mr. Trimble

Yes, indeed. Obviously, recordings can also protect the police.

What provisions do the Government intend to make with regard to the detailed operation of audio recording? I look forward to what the Minister has to say.

Mr. Ingram

The hon. Member for Upper Bann made some strong and salient points about the new clause and amendment No. 5. I thank him for paying tribute to those who helped frame new clause 3. Given the debate in Committee, it is important that we get the matter right. The earlier proposal did not quite achieve the objective to which I was prepared to subscribe. The hon. Member for Basingstoke (Mr. Hunter) can speak for himself on new clause 3, but since he has not tabled any other amendment I assume that he supports it. The hon. Member for Upper Bann did not go into much detail, so it is worth setting it out for the record. New clause 3 and the consequential amendments Nos. 7 and 8 would have the effect that any order made by the Secretary of State bringing into operation or amending a code of practice made under the Act would be subject to the affirmative resolution procedure. Currently, an order made bringing into operation or amending a code of practice under the Act is subject to the negative resolution procedure in the same way as orders pertaining to equivalent codes under the Police and Criminal Evidence Act 1984.

Codes of practice are required in connection with the detention, treatment, questioning and identification of persons detained under the PTA, and such codes are already in operation. Codes of practice are also required in connection with silent video recording and audio recording and may be made in connection with the powers of part II of the Act. We hope to be in a position to bring the silent video recording code of practice into operation in January 1998. It would be wrong to debate the details of that at this stage. If the new clause gains the support of the House, we shall clearly have an opportunity to discuss in detail the Government's proposals. The audio recording code has yet to be drawn up. Under the provisions of the amendments, its introduction after the Bill receives Royal Assent would be dealt with by the affirmative resolution procedure, which would allow debate and consideration.

Orders pertaining to the equivalent PACE codes are subject to negative resolution and the Northern Ireland (Emergency Provisions) Act currently mirrors the PACE provisions in this respect. However, codes of practice governing the application of counter-terrorism provisions are by their nature somewhat different. That is why I responded as I did in Committee and why I support new clause 3. Such codes of practice merit special scrutiny. All of us will gain from such an approach. I am happy to accept the proposals of the hon. Member for Upper Bann concerning new clause 3.

Amendment No. 5 raises a range of important issues. In effect, the hon. Member is seeking to place a restriction on disclosure of audio tapes. His amendment would have the effect that audio recordings would be made available only to the judge conducting the trial. The Government fully understand the motive behind that. The hon. Gentleman is seeking to remove any inhibitions that might be placed on the interviewee, and any fears that he may have in the knowledge that audio tapes of his interviews may become public.

Before I respond to amendment No. 5 in detail, I want to reassure the hon. Member for Upper Bann and the House that the audio recording system is being introduced with the full co-operation and support of the Chief Constable of the RUC, who has taken the view that it will not impair the ability of his officers to pursue terrorist crime. The details of the code of practice that will govern the system will be drawn up, in the usual way, in full consultation with the RUC.

The general matter of electronic recording in the police holding centres has been a subject of much discussion: it is no secret that the question of disclosure of tapes—whether audio or video—has been a major area of contention. Even those favouring the introduction of electronic recording have given thought to whether it would be possible to devise a scheme that would guard against tapes being disclosed, for precisely the reason the hon. Member has outlined.

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Sir Louis Blom-Cooper, the Independent Commissioner for the Holding Centres, in his annual report published in 1994, put forward proposals for a scheme involving the Lord Chief Justice to direct a judge, not being the trial judge, to view any tape that a detainee or his legal representative had sought disclosure of during the course of the trial. The Crown would then subsequently be invited to argue against any decision on the part of the judge to allow disclosure and in the end could withdraw its reliance on the disputed evidence. In other words, only if the Crown were still to pursue its prosecution, based wholly or in part on the contested evidence, would disclosure be ordered by the High Court judge.

Whatever the viability of the scheme, however, it would still face two major difficulties. The first is that, given that the possibility of disclosure would remain, the inhibitions on the person being interviewed—to the extent that that is still a problem—would also remain. Secondly, and more importantly, such tapes would represent best evidence in any criminal proceedings, and to devise schemes that circumvented the principle of disclosure of best evidence would surely go to the heart of the fairness and adequacy of those proceedings.

Similarly, the alternative of confining access to the tapes to the trial judge only was considered carefully in the past. I have looked at the idea again in the light of amendment No. 5 tabled by the hon. Member for Upper Bann. I have to say that it would be highly prejudicial to the process of justice if any judge were to hear recordings of interviews that were not in the end made available to the defence—all the more so if the judge noted any impropriety on the part of the police interviewing officers. It would place the judge in an impossible position, because his function is to administer justice in a way that is impartial to both parties in a case. We have an especially good record in Northern Ireland in achieving that objective against a difficult background.

The Government have taken the decision to introduce audio recording for several reasons. We believe that it will provide additional protection both for the detainee and for the interviewing officers, it will reduce the scope for the lengthy hearings within trials that have been such a feature of terrorist-related trials in recent years, thus speeding up the process of justice to everyone's benefit, and it will not undermine the ability of the police to investigate serious terrorist crime, which is the Chief Constable's considered view.

Mr. Robert McCartney

Can the Minister explain why the Chief Constable is now said to be in favour of audio recordings being admitted as evidence—and why he has apparently suggested that that will not prejudice the investigations or hamper the collection of evidence—when that did not appear to be the case on previous occasions when the subject was considered? What has brought about that tremendous metamorphosis in police thinking? [Interruption.]

Mr. Ingram

The hon. Member for North-East Cambridgeshire (Mr. Moss) says that it was political pressure.

Mr. Malcolm Moss (North-East Cambridgeshire)

Political direction.

Mr. Ingram

I am sorry—I misheard the hon. Gentleman. If the accusation is being made—from a sedentary position or by implied intervention—that political direction has been given to the Chief Constable, I assure the House that that is not the case. If the hon. and learned Member for North Down (Mr. McCartney) wishes to know why the Chief Constable has changed his mind, the hon. and learned Gentleman should talk to him. That is what the Government have done as we discussed the changes. I am reporting the view of the Chief Constable to the House. I can assess why he changed his mind only on the basis of the discussions that we had with him.

Mr. Moss

So he has changed his mind.

Mr. Ingram

That is not in dispute. The reasons behind his change of mind are based on the facts and circumstances that he has to take into account, but how the Chief Constable reached his decision is a matter for him. The Government believe that there is merit in proceeding as we intend and the Government have to be held to account for that, not the Chief Constable. I suggest that the hon. and learned Member for North Down and others who are concerned should discuss the matter with the Chief Constable. He is amenable to talking to hon. Members and to giving full consideration to any points of view that they express.

Written records of interviews are already kept, and silent video recording will be introduced shortly—as the hon. Member for Upper Bann said. Audio recording is a natural and sensible progression. My genuine belief is that the best way to protect the process of bringing terrorist criminals to justice is to protect the police from unfounded and malicious allegations, and to enable the courts to satisfy themselves conclusively that admissions to police are properly obtained.

While I understand the purpose of the hon. Member for Upper Bann in tabling amendment No. 5, I do not believe that a system that sought to prevent audio tapes from being disclosed would be either workable or appropriate. That is why I cannot accept the amendment. We have not rejected it out of hand. Due thought was given to the amendment on the basis of the various examinations of the subject by others. However, on balance, we do not believe that the amendment would advance the cause of natural justice and I ask the hon. Gentleman to seek leave to withdraw it.

Mr. Seamus Mallon (Newry and Armagh)

I wish to make three brief points. The first relates to the codes of practice. I seek an assurance from the Minister that the codes of practice that the Secretary of State is required to produce, however they are decided, will be implemented speedily. Silent video recording has been agreed and adjudicated on, but after some considerable time it has still not been implemented.

I heard the Minister's explanation for the delay and in some ways I accept it, but I would be more confident in accepting it if I could do so in conjunction with an assurance that the codes of practice for audio recording will not be delayed. I hope that the Minister will be able to give a target date for the implementation of audio recording, based on the codes of practice.

Secondly, I have listened with great interest to the points that have been made tonight, but one point seems to be missing. The person being questioned in police custody is in abnormal circumstances. He has been arrested abnormally under emergency legislation; he is being held abnormally, by people who have the right to refuse him access to a solicitor; he may be held for an abnormal length of time, in contravention of the European convention on human rights; and he is held in abnormal physical conditions, in holding centres that have been condemned as unfit for that use by all who have reported on them to Parliament. Abnormality surrounds the entire process from the time person is arrested until the time the person appears in court. The abnormality continues because there is then no jury. The abnormality stretches right through the entire process. For that reason, we must be ultra-careful.

Mr. Robert McCartney

I agree that there are a number of abnormalities, but does the hon. Gentleman agree that the most fundamental abnormality is the existence of terrorist organisations that, over a period, have murdered more than 3,000 human beings, destroyed enormous amounts of property and mutilated the persons of literally thousands of people? That is the fundamental assault on society and everything it stands for which has given rise to the abnormalities of which the hon. Gentleman so eloquently speaks.

Mr. Mallon

I thank the hon. and learned Gentleman for making that point, and I do not dispute with him the obscene abnormality of violence and what it has done to everyone living in the north of Ireland. That is incontestable. What is open to question, however, is the capacity of any abnormal system to end that state of affairs.

In some ways, the question posed by the hon. and learned Gentleman confirms that. The more abnormal the process of law has become, the more abnormalities are sought. We must think about that even when there is peace—I know that that will crop up later in the debate. Please do not despise that peace. For someone who lives where I live, it is very precious. Do not let a wish list damage the prospect of its continuing. Do not let the need or the desire to predict accurately cloud judgment on the issue.

It is within that context, on the three key issues, that I greatly welcome the changes made. However, I have been and am still critical of the fact that at a time when we are, I hope, moving into lasting peace, the legislation is being extended beyond the year 2000.

We as a society, whether in Northern Ireland or anywhere else, must never forget the need to protect the rights of individuals. It is true that some of those individuals do not respect other people's rights, but that is no reason why a Government, a Parliament or a system should take up the abnormalities and make a virtue of them.

I look forward to hearing the hon. and learned Member for North Down (Mr. McCartney) argue his case from a legal point of view, but as a layman I simply pose one question about the amendment. Can it be just or equitable that the evidence on tape is not available to everyone involved in the process of a person's trial? Can that be right? Can that be legally acceptable?

We should not make the assumption that if the judge sees the evidence he, in his overpowering wisdom, will make the right decision. Surely a lay person who respects the law and wishes to protect it should demand that if there is evidence available, it should be available as of right to everyone. It should not be withheld.

Over the years, one of the greatest criticisms of the application of both the emergency provisions Act and the prevention of terrorism Act has been that legislation designed to protect society was used to trawl for evidence. Ministers admitted as much in the House. When the provisions were first introduced, Sir Leon Brittan confirmed on the Floor of the House that one of the purposes was to trawl for information. That fact was also confirmed by a junior Minister in a famous Standing Committee debate.

Is there not an element in the debate on the new clause which suggests that what is being protected is not the chance of a valid conviction, or even the right of the individual, but the capacity of those who are doing the questioning to trawl for information rather than pursuing whatever evidence there may be against the person being questioned?

That goes to the heart of the problems as many of us in the north of Ireland see them. In response to a comment made earlier, I must say that I believe that there is no general view in the north of Ireland, and that we must accept that fact. However, there is one subject on which there is an absolutely general view—the end to the terrible violence that the hon. and learned Member for North Down talked about. And there is the absolute desire for peace.

There is also a strong view that, whatever tactics may be used by the terrorists and the others who have inflicted the obscenity of terrorism on the rest of us for so long, the legal process must retain its integrity and should never even step towards using the same type of tactics as the terrorists. I am afraid that the implication that the provisions allow trawling for information goes down a road that we should not travel. It does not protect what we should protect, and over 25 years it has not achieved the results that some assume.

6.15 pm
Mr. Robert McCartney

In connection with the proposed amendment, may I first point out that although I sought from the Minister some indication of the reasons for the Chief Constable's change of heart about audio evidence, that was not necessarily done for the purpose of supporting the amendment.

There are difficulties about the amendment. The most basic, which has already been mentioned by the hon. Member for Newry and Armagh (Mr. Mallon), is that it is a fundamental principle of our judicial system that evidence that is to be tendered against an accused must be made available to him. If it is made available to the judge alone in certain circumstances, that is a breach of a fundamental principle.

The Minister would be correct to have reservations about that, and perhaps it is a good basis for not accepting the amendment. My objections, and the reason for my question to the Minister, involved whether audio evidence should be accepted at all. I did not mean that it should be accepted and an attempt made to tailor it to our present difficulties by overriding what the hon. Member for Newry and Armagh rightly pointed out is a fundamental and necessary principle of the administration of justice in the United Kingdom.

May I in turn refer to other matters that the hon. Gentleman has mentioned? I see nothing objectionable if those charged with bringing criminals to justice seek to obtain information in any circumstances, provided that those circumstances are lawful and are not in breach of any of the principles according to which evidence should properly be obtained.

There should not be any objection in principle to extraordinary or emergency measures being used to deal with extraordinary and emergency cases. The fundamental question is how far a democracy is entitled to take measures of an emergency nature to protect democracy itself.

That is no new principle. When the state itself was threatened, both Abraham Lincoln and F. D. Roosevelt, who in any democratic society would be respected as great servants of democracy, introduced emergency measures to which in normal circumstances they would have objected. During the war between the states, Abraham Lincoln suspended habeas corpus, opened US mail without authority and interned people without trial. Similarly, we forget that, in more recent times, the US Government interned 100,000 Japanese citizens—the Nissei—in 10 different camps when the United States was threatened by Japan.

No one would pretend for a moment that they like these actions or that they should be given any credence—except in particular circumstances where even greater damage would be done to society itself were these emergency measures not in place. During the second world war, people who were thought to be a danger to the security of the state were placed in positions where that danger could be averted.

All this may lead the hon. Member for Newry and Armagh to suggest that these measures are not necessary, but let us look at what happened today. In 1984, a group attempted to assassinate the entire Cabinet of the United Kingdom. In 1991, the same people attempted to direct rockets to destroy No. 10 Downing street and those within it. In 1997, they are coming through the front door of No. 10 Downing street, without having surrendered a single weapon or handed over a single ounce of Semtex. It is a myth that violence does not work—violence works if Governments do not have a commitment to take the necessary emergency measures to protect the person and property of its citizens.

Mr. Norman A. Godman (Greenock and Inverclyde)

Can I return the hon. and learned Gentleman to the question of persons being interviewed by police officers? Does he agree that there should be no unseemly delay in the access to legal advice for those persons?

Mr. McCartney

In principle and in appropriate circumstances, everyone should have the quickest access to legal advice. Again, however, we must balance whether or not prompt and vigorous—although not unlawful or not objectionable—interrogation methods are necessary to obtain information that might prevent horrendous crimes from occurring.

What is not generally appreciated—except by those involved—is that, very often, those who are being interrogated in holding centres are already known to have committed the crimes for which they are being interrogated. Very often in Northern Ireland, witnesses come forward and specifically identify people and give the most positive and clear evidence against them. However, they say to the investigating police that because they live in the area and because they, their children or their relatives may be murdered or mutilated, they will not give evidence. However, they will identify people on the confidential phone or in an interview. The people concerned are then picked up and interrogated. Within the necessary strictures that must be placed on the police, that interrogation or trawling for evidence—l it what you will—erfectly justified.

Mr. Mallon

The hon. and learned Gentleman has long experience of practising in the courts in the north of Ireland. I have long experience of the other side of the coin in relation to this legislation. Is it ever right under law to arrest people under emergency legislation— ally at six o'clock in the morning— e them to a holding centre, question them and keep them there, when those who are arresting and questioning them know that there is no suspicion attached to them? Are not the persons arrested losing their freedom and human rights in the search for information, perhaps about someone who the police know is guilty, or about an incident? The figures for the EPA and the PTA down the years clearly show that that has been the case. Surely that is wrong, and we should not allow it to happen again. The amendment would do just that.

Mr. McCartney

Certainly a strong case can be made that only in exceptional circumstances should persons who are not themselves suspected of committing a crime be arrested and subjected to interrogation for the purpose of implicating others. However, there may be circumstances known to the police—would have to be left to their discretion—re such measures may be justified if they would save lives, prevent a horrendous crime or, in other unspecified ways, protect the community. It is very easy to make specific judgments and to ask for a generalised approval of a principle which, in practice, may cost people their lives and cause massive destruction.

Mr. Trimble

I shall try to respond to the debate briefly. Amendment No. 5 has been touched on, and we can exaggerate the abnormality of the situation with which we are dealing. In tabling the amendment, I recognised, as has the Minister, that we are attempting to balance advantages and disadvantages with regard to a course of action. There are some advantages in the course that the Government are taking, but there are also disadvantages. The amendment tries to steer between them to achieve the best balance.

The Minister acknowledged that the Chief Constable of Northern Ireland has changed his mind on the matter. Until quite recently, it was not just the view of the Chief Constable, but the settled view of the police force that it was inadvisable to have audio tapes of interviews with terrorist suspects. Although the Chief Constable may have changed his mind, I think that I am right in saying that other senior members of the police force prefer his former opinion to his present one.

The hon. Member for Newry and Armagh (Mr. Mallon) referred to the European convention on human rights. There would be only a mere technical breach of the convention if the amendment were accepted; a technical breach which could have been solved a long time ago. I am glad to see that the Home Secretary has announced that he is to try to solve that problem, and the solution is fairly obvious.

I suggest to the hon. Member for Newry and Armagh that the situation about which he is concerned will not be aided in any way by the amendment. The amendment is not directed at a person who is brought in for what he called trawling but is not charged with an offence. The amendment would be relevant only to those who are charged with an offence and to the subsequent trial of that offence.

The hon. and learned Member for North Down (Mr. McCartney) made the correct point—h which I fully agree—t evidence to be used against someone should be available to them. However, the evidence is the statement that that person has made. The audio recording is relevant to the circumstances in which the statement is made, and may be relevant to the admissibility of the statement. It may not be ideal for the audio tape to be available only to the judge, but this is not unusual.

Where material has been withheld under public interest immunity certificates, for example, the judge alone looks at it to see whether the certificate should have the effect of taking the material out or whether it should be available. That can be relevant to criminal cases—example, material that the judge alone considers can be crucial to the outcome of the trial, as in the Matrix Churchill case.

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The abnormality of the case can be exaggerated. To return to my first point, it is a balancing exercise and the Government are making a mistake in where they are putting the balance. That mistake will become clear in subsequent days. It is a pity that that is happening and I am sorry that the Government are taking that line. None the less, I do not intend to press amendment No. 5 to a vote and I shall seek the leave of the House to withdraw it.

I am delighted at the Government's acceptance of the new clause and amendments Nos. 7 and 8. I am glad that they are employing such an open approach to this legislation. In this sort of situation, it helps if the Government are prepared to look seriously at the merits of clauses. As the Minister said, new clause 3 would ensure a debate within Parliament on the codes of practice, so that they are under parliamentary control, or are at least given a degree of parliamentary scrutiny. That is right. The fact that we are dealing with emergency legislation, increases the argument for parliamentary scrutiny. If we are doing something outside of the normal course of events, there is all the more reason for the House, which is authorising the departure from the norm, to examine and scrutinise. Hon. Members on the Ulster Unionist Benches have made that point year in and year out.

Parliamentary scrutiny of emergency legislation is inadequate and this is a small step to strengthen it. I appreciate the fact that the Minister has accepted those amendments. Therefore, Mr. Deputy Speaker I beg leave to withdraw amendment No. 5.

Mr. Deputy Speaker

Order. We have not yet got to amendment No. 5. We are only debating it with new clause 3 at this stage, so the hon. Gentleman does not need to withdraw it.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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