NORTHERN IRELAND (EMERGENCY PROVISIONS) BILL

HL Deb 10 July 1973 vol 344 cc685-721

5.15 p.m.

THE LORD CHANCELLOR

My Lords, I rise to move the Second Reading of this Emergency Provisions Bill. The other Bill which we have been discussing all afternoon is concerned with the future, and therefore, I pray, with hope. This Bill is concerned with the present, and therefore with desperate and urgent, present necessity. But both Bills have the same purpose: the substitution of peace and the rule of law for the disorder and the terror which now prevail. Your Lordships will observe that the present Bill has its genesis in the Diplock Commission. This Commission was appointed last year, in October, to consider what arrangements could be made for the administration of justice in the Province to deal more effectively with terrorist organisations, and particularly those who manipulate and contrive terrorism from a safe distance without themselves participating in the more dangerous activities.

The Commission originated in the desire of my right honourable friend to get rid of the old Special Powers Act, which had caused so much controversy and bitterness, with its provision for internment, which was thought to be a major obstacle to constitutional progress, and at the same time to use to the maximum degree possible the ordinary courts and normal legal processes in place of imprisonment without trial. This Bill will have the effect of achieving both purposes. It will get rid of the Special Powers Act and, following the advice of the Commission, it will repeal and reenact in a proper statutory form and with fresh safeguards the temporary Detention of Terrorists Order, which your Lordships will remember was introduced last December as a temporary and urgent measure pending legislation and following the Commission's Report.

My Lords, perhaps I may say this about the Commission itself. Its members are probably known individually to almost every Member of this House. My noble and learned friend Lord Diplock, Sir Rupert Cross, Mr. George Woodcock and Sir Kenneth Younger could hardly have been better fitted to command the respect of Parliament and the nation, not merely as the result of the wide range of experience they represent but also for the reputation each bears for an enlightened and liberal understanding of the constitutional basis of our liberties. The House and the nation owe to each one of them, and I think I should express, a deep sense of gratitude, both for their public spirit in accepting a difficult and unpalatable task and for the zeal with which they have carried it out, producing, as your Lordships will remember, a Report of ten chapters and an appendix between October 18, when their appointment was announced, and early December, when their Report was published.

The basic problem with which the Commission were confronted was formulated and identified in Chapter 4 of their Report, and they identified it as the problem of intimidation—the intimidation of witnesses and the intimidation of jurors. I hope to show that although some of the provisions can be justified and necessitated on other grounds as well each of the provisions of this Bill is related to the requirements of this central problem. All acts of terrorism, which the Commission defined as "the use or threat of violence to achieve political ends" are of course illegal, and they always have been illegal, under the law of this country and of every other civilised country. But the law of this and every other civilised country also provides for the minimum requirements to protect the individual against unjust conviction. These minimum requirements are set out in Article 6 of the European Convention on Human Rights.

These requirements, however, are not always compatible with the suppression of terrorism in extreme situations. All civilised countries, including our own, also allow derogations from the minimum requirements in time of emergency, as is also recognised, by Article 15 of the Convention on Human Rights. And no one, I think, could doubt, and the Commission did not doubt, that the conditions justifying such derogation are present in Northern Ireland to-day. But as the Commission pointed out, where derogation is made from the minimum requirements, procedures before a tribunal which do not comply with Article 6 are not procedures before a court of law. The minimum requirements are based on the assumption which all legal processes demand, that witnesses to a crime will be able to give evidence in a court of law without risk to their lives, their families and their property. Moreover, the same assumption has to be made about juries if we are to prosecute offences effectively before our peculiarly British institution, the jury. Unfortunately—and I think this can be accepted—neither assumption can be made in the conditions in Northern Ireland to-day. Witnesses are being intimidated in one way or another; witnesses are being murdered. Even a year ago the noble and learned Lord, Lord Diplock, in his Report, gave one scarifying example which had taken place. Jurors have been terrorised. They are sometimes perverse, and many are actually afraid of the danger to their families and themselves or to their property.

Both the Diplock Commission in their Report and my right honourable friend the Attorney General, in introducing this Bill to the House of Commons, gave hair-raising descriptions of both types of intimidation. In these circumstances, I ask the House to agree that, practical considerations apart, it is unreasonable to expect witnesses to testify voluntarily, and morally wrong to try to compel them to do so. The same, of course, applies to jury service. Startling and poignant examples were given of intimidation of both witnesses and jurors alike in the Report of the Commission and by the Secretary of State and the Attorney General during the passage of the Bill through another place. But I am sorry to say that, owing to the lapse of time since April, the situation, particularly in regard to juries, but also as regards witnesses, has sharply deteriorated since the matter was first brought before Parliament, and this makes it urgently necessary that the Bill has a more rapid passage through this House than we had originally hoped.

The philosophy of the Bill can thus be stated in two propositions. In the first place we desire to use, and must use, legal processes as much as possible, but for this purpose, owing to the intimidation of jurors and witnesses, certain modifications of normal procedure are necessary. Nevertheless, we have stuck strictly to the requirements of Article 6 so that what is proposed remains at all stages and in all respects a civilised legal trial in which the charge has to be brought home to the accused. Secondly, we have been compelled to recognise, with the Commission, that extra legal procedures remain necessary in the disturbed situation that obtains. We think that we are right in not dressing up this extra legal procedure as a legal trial. We have sought to contain it within the narrowest bounds possible. We do not wish it to remain a moment longer than necessary. We have sought to engraft upon it the greatest possible safeguards against injustice.

The first proposition is embodied in Part I of the Bill; the second in Part II. But, before I embark upon a discussion of them, I should like to deal shortly with Clause I which abolishes the punishment of death for all forms of murder. This, as the House will be aware, was inserted in another place in Committee of the Whole House, on a free vote, but commended by my right honourable friend. Although my views on capital punishment are not precisely those of my right honourable friend, I too commend it on a personal basis, though if there is a vote here, which I hope there will not be, I shall personally vote for the clause as it is now embodied in the Bill. I hope that no one will say, as in a recent incident in this House, that by doing so I am departing from Government impartiality—because the vote will be an absolutely free vote, if there is one.

My reason for saying this is that, short of the imposition of martial law, or something like it, I do not think it possible morally to impose the death penalty anywhere in the United Kingdom for crimes in respect of which the right to trial by jury is taken away. I have already given some reasons for explaining why this Bill takes away trial by jury in respect of scheduled offences which include terrorist murders. It follows that I do not think death as a penalty for terrorist murders is, short of martial law, an acceptable penalty. Secondly, the effect of removing it for terrorist murders and leaving it for "ordinary murders" (if there is such a thing) would be to create two classes of murder in the province of Ulster and leave death for the one which is the less dangerous, and perhaps the less serious. I do not think this acceptable.

Thirdly, although I would recognise that the situation in Ulster is exceptional and may deserve exceptional treatment, in a matter affecting the sanctity of human life I do not think it acceptable to have two differing penalties for murder in two different parts of the United Kingdom.

Fourthly, it is the opinion of my right honourable friend that the actual execution of the death penalty in the special circumstances of the Province would be counter productive from the point of view of security in the Province. I must say that, so long as he has to bear his heavy responsibility, I think we must leave him to be the judge of this. Fifthly—and I am sorry to labour this but I feel bound to express my view on Clause 1—I do not wish this House to differ from the House of Commons in this respect, and I do not want public opinion in Britain to be divided crucially every time a convicted murderer is sentenced in Ulster. As a convinced supporter of capital punishment in principle, I am quite sure that this reasoning is conclusive.

I now return to the Government clauses in the Bill. It is obvious that special measures are necessary, indeed overdue. Nevertheless, my right honourable friend and the Commission have made, and intend to make, every effort to use due process of law and even, where this is impossible, to provide safeguards for the protection of the detained which are altogether different from and better than the protection afforded under the old form of internment.

My right honourable friend would have liked to do without detention altogether. But neither he nor the Commission felt able to do so. May I quote the Commission in this connection? They said: The only hope of restoring the efficiency of criminal courts of law in Northern Ireland is by using an extra judicial process to deprive of their ability to operate in Northern Ireland those terrorists whose activities result in the intimidation of witnesses. With an easily penetrable border to the South and West the only way of doing this is to put them in detention by an executive act and to keep them confined until they can be released without danger to the public safety and to the administration of criminal justice". My Lords, this is the object of Part II of the Bill and of Schedule 1 which repeals and replaces, with additional safeguards, the provisions of the Detention Order approved last December. Under these provisions, no suspected terrorist can be detained under the order of the Secretary of State for more than 28 days without reference to an independent, legally qualified commissioner who has to inquire into any case referred to him to see whether the person has been concerned in terrorism, and, if so, whether his detention is necessary for the protection of the public. That is two conditions, both of which must be fulfilled. My Lords, the procedure before the Commissioner is no mere formality. Of 538 persons referred by July 5, that is a few days ago, no fewer than 118 have been released. That is by no means the end of the matter, because if the Commissioner orders the detention of the person concerned, that person has the right of appeal to another independent tribunal which is presided over a former Lord Justice of Appeal, Sir Gordon Willmer, and two English Q.C.s, and that is no formality, either. I do not know the exact figures, but I think that they allow a quarter of the appeals in front of them.

Furthermore, after a year, and thereafter at six-monthly intervals, each case must be reviewed and the Secretary of State can review it intermediately. In each case the nature of the charge has to be served. I of course use the word "charge" in inverted commas in this connection. Usually the respondent has a right to be present and to give evidence, and to be represented, although the latter right may be suspended for adequate reasons which are defined in the Schedule. I do not see how, in the absence of a complete public trial, greater safeguards could have been introduced. We have done our best to ensure, so far as is humanly possible, that we have lived up to the prescription of the Commission when they said, and again I am quoting from the Report: If there is any process by which members of terrorist organisations can be identified with certainty, their detention in custody does not involve the punishment of an innocent man or even one who is called guilty of what could properly be called only a political crime'. It means depriving of his liberty, albeit by an extra-judicial process, a criminal who has committed an offence which has been punishable by the common law of England and Northern Ireland for upwards of two centuries before the current emergency arose. My Lords, I turn now to Part I of the Bill, which is new. First of all, I must justify the necessity. Speaking as a lawyer, I must tell your Lordships that however carefully we may frame the safeguards, detention can never be a substitute for the ordinary process of law and this for two quite separate reasons. In the first place, it is vital, in my judgment, that where a crime can be brought home to someone, the terrorist, by persuasive evidence of the ordinary kind, it is vital that he should be tried for it in public, convicted for it in public and sentenced for it in public, in as nearly as possible the ordinary way, so far as the circumstances engendered by terror permit. Extra-judicial processes can lead to detention indefinitely, but they do not lead to punishment; and this is unsatisfactory, both in the interest of private liberty and also of public policy.

The second reason which I give is that given by the Commission when they said (and I agree with them) that however careful one may be in the imposition of safeguards, a process which is normally in private, a process which can exclude the accused from the hearing and can permit the possibility of denying to the "accused" the identity of the source of the information on which he is being accused, can never appear to be as complete a safeguard that none but the guilty will be deprived of their liberty as in the safeguard which is provided by a public trial in a court of law at which the actual witnesses can be produced in person and their evidence tested by cross-examination on behalf of the accused. It is for this reason that we must find, wherever we possibly can, a method of trial, despite the imposition of terror and intimidation, which conforms with the minimum requirements of publicity; the right of identification of witnesses; the scrutiny of evidence in examination and cross-examination in the presence of the accused which is required in every civilised country in the world. That is the purpose of Part I and your Lordships will see that it corresponds pretty closely to the Diplock recommendations. The object of those recommendations is to preserve the reality of public trials before the ordinary courts in every way so as to satisfy the full report and requirements of Article 6 of the European Convention, and with only the minimum departure from the more rigid requirements of English criminal law as it applies in Northern Ireland.

The case for the individual provisions of Part I are argued fully and in detail in the Report. But, my Lords, I think it right that I should summarise them in the few moments that remain. Before I begin on that task, I should like to make three general observations. In the first place, it will be seen that the provisions are temporary; indeed, almost the whole Bill is temporary. It will expire at the end of a year unless it is prolonged with the express approval of both Houses of Parliament. In the second place, the special provisions of Part I are limited in scope to those trials for the terrorist offences which are carefully limited and defined in Schedule 4 to the Bill. In the third place, I emphasise again that the whole purpose of Part I is to limit the use of detention, which involves imprisonment without public trial, to the minimum possible. Any abridgement of the provisions of Part I would, of course, result only in a greater use of detention than is necessary, because in each case, where any of them are used, they are used because with them cases can be brought in the ordinary way in the Northern Ireland courts which otherwise would have to be dealt with by extra legal means.

My Lords, Clause 2 of the Bill suspends trial by jury for the scheduled offences. This has been necessary because, even by the time of the Commission's investigations, trials by jury ware threatened with breakdown. Apart from actual cases of intimidation this, as the Committee explain in paragraph 36, was because only Protestant jurors tended to convict Catholics, and vice versa. In other words, quite apart from intimidation, a jury is in effect, or tends to be, either potentially biased or perversed; because, quite apart from the terror of intimidation, or potential intimidation, frightened jurors will more often fail to convict obviously guilty persons even of the opposite persuasion. I am bound to say that, according to the information I have here which is quite voluminous, the situation has deteriorated since the Commission's Report, which to some extent was prophetic.

The Commission recommended the substitution for jury trials, trial by a single judge; and, my Lords, the Government endorse that advice. At one time the Commons Committee recommended a collegiate trial by three judges. This has been expressly rejected, after consideration, by the Commission, and I will ask the House to take the same view. The reasons for the Commission's view are set out in paragraph 39 of their Report and I can personally endorse them. I want to put this delicately, because I have been told that if I say what I propose to say, I shall be thought to be casting doubt on the talents of the Northern Irish Bar, which I do not wish to do. It is, in fact, one of the few institutions in Northern Ireland which has worked without breaking down despite the fact that it is composed of members from each of the communities. But, my Lords, there are only 17 practising Silks at that Bar; there are only eight juniors of ten years' call, and there are, at the moment, enormous arrears of work for the Judiciary to complete. I could give details of that. The criminal arrears are rising spectacularly, and have been reduced only by allowing the civil work, which includes important personal injury cases and cases arising out of the situation of personal injuries compensation, to mount up beyond what is tolerable.

The Bench which has to be manned at present is composed of three Lords Justices who have to deal with appeals and cases at first instance because they go on assize, five puisne judges of the High Court and nine county court judges apart from the resident magistrates, and in my opinion it really would not be possible to man a collegiate trial of three judges for all the terrorist offences when one bears in mind that terrorist offences, as scheduled to this Bill, amount to 90 per cent. of the work at present coming on indictment before the courts of Northern Ireland. I hope therefore that I shall not be considered to be in the least derogatory or critical of the Northern Irish Bar if I simply say that the situation could not be contained with a collegiate trial, but I am bound to say that I agree with the Commission—and I am quoting from them again: that a single judge trial is probably certainly as good as and probably better than a collegiate trial". They say: Our oral adversarial system of procedure is ill-adapted to the collegiate conduct of a trial of fact. In other words, a collegiate trial is actually less satisfactory, and they give some reasons for thinking that, and I know that the Lord Chief Justice of Northern Ireland has reasons of his own for saying that a one-judge trial is likely to be more in the interests of civil liberties than a trial by three.

Clause 3 of the Bill restricts the right to bail. This is directly related to the intimidation of professional judges after the horrible murder of Mr. Stainton. Your Lordships will remember that absolutely heartbreaking poem by the child when the father was lying at death's door and ultimately died. It is obviously plainly indefensible to give judges or magistrates the discretion to admit to bail in these cases. It is plain to me, and to the authorities, that probably as a result of intimidation bail has been granted to alleged terrorists on trial in circumstances in which it would never have been given elsewhere in the United Kingdom. Speaking for myself, I cannot conceive of any ordinary case in which it would be proper to admit an alleged terrorist to bail, and the House will remember that neither in the Angry Brigade case here nor in the case of those accused of bombing the Old Bailey were the accused in fact admitted to bail. In effect, the conditions referred to in Clause 3(2) only make mandatory the status quo here in the use of discretionary powers.

My Lords, Clause 5 makes witnesses' statements available in evidence if they have been made formally and if the witness is not available by reason of death or illness or non-availability, or if he simply disappears. The case for this is argued in paragraph 93 of the Report. It clearly reduces the incentive to intimidate or murder, and your Lordships will have fresh in your minds the terrible case of the murder of the bus driver spoken to by my noble and learned friend when we debated the matter some months ago; and the fact that evidence will not come before a jury but before an experienced judge unlikely to give it probative value greater than it possesses in the absence of cross-examination strengthens the case enormously. The rule is limited, as your Lordships will see, to signed statements by identified persons and the Report describes it as needed in the following words: A minimum but immediate alteration to meet the problem that witnesses to terrorists crimes may be killed or so injured as to be incapable of going to court, or may flee from Northern Ireland or go into hiding in fear for their own safety, with the result that it is impracticable to produce them to give oral evidence in court. Clause 6 deals with admissions. This excludes admissions obtained by torture or inhuman or degrading treatment—and your Lordships will see that the burden of proof is upon the prosecution to exclude that—but admits other admissions subject to any adverse criticism going to its weight or reliability. This removes technical rules which have been interpreted by the Northern Trish courts perhaps even more rigidly than in England. The Commission reported here—and I agree with them: We consider that the detailed technical rules and practice as to the 'admissibility' of inculpatory statements by the accused as they are currently applied in Northern Ireland are hampering the course of justice in the case of terrorist crimes and compelling the authorities responsible for public order and safety to resort to detention in a significant number of cases which could otherwise be dealt with both effectively and fairly by trial in a court of law. Possibly the most important of the changes in the conduct of the trial is contained in Clause 7, which deals with the onus of proof in cases where the gist of the offence is the possession of arms or explosives. I know that the Lord Chief Justice of Northern Ireland attaches great importance to this, as did the Commission, who indeed put it first in their list of desirable alterations under this head. My Lords, it is a technical matter, argued in detail in Chapter 8 of the Report, where examples are given of the ludicrous results which follow from a strict application of the present rule. The simplest case is where two or more persons are travelling together in a mini-car at night surrounded by bombs, guns or explosives. Since it is not possible to say with certainty which of the persons was in possession of the car or of the objects in it, each is entitled to an acquittal on the direction of the judge, without ever entering the witness box, on the ground that he has no case to answer. It really is rather extraordinary what muddles lawyers can sometimes get themselves into for want of a little common sense. A further and perhaps even more ludicrous example is given in paragraph 69 of the Report, and I ask the House to endorse the verdict of the Commission that it really is— intolerable that the scales should be weighted so heavily in favour of guilty men", while so much suffering is caused to innocent citizens by terrorist use of firearms and explosives. My Lords, I am aware that I have spent a little time on this Bill, but it does entrench very closely on human liberty and therefore I hope that your Lordships will be indulgent to me for my long-windedness. I do not think I need deal on Second Reading with the other provisions of the Bill, except perhaps to point out that a further safeguard is contained in Clause 26 by limiting prosecutions under the Bill to those instituted with the consent of the Northern Irish Director of Public Prosecutions and by Clause 30 which, as I said, renders the whole Bill, with few exceptions, temporary for one year only unless continued in force by the Secretary of State with the approval of both Houses of Parliament. My Lords, I beg to move.

Moved, That the Bill be now read 2ª.—(The Lord Chancellor.)

5.48 p.m.

LORD GARDINER

My Lords, the whole House will be grateful to the Dip-lock Commission for their Report and to the noble and learned Lord, the Lord Chancellor, for his careful explanation of it to us. We support the Bill in general and we believe that nearly all the proposals of the Diplock Commission, however draconian, were justified by the exceptional conditions in Northern Ireland. Perhaps the next thing I should say is that we also accept the need for this Bill to pass into law before the end of this Session. I was at one time a little apprehensive, when I observed that the Committee stage was intended to be taken on Thursday, the 19th, and the Report stage on Monday the 23rd, that we might be veering towards the European Communities' situation in which it was understood that there could be no amendment because there would be no time for the Bill to go elsewhere; but, as I understand it, there is a slot reserved in the other place if that became necessary. We hope, therefore, that if we have a few Amendments to put down they will receive the Government's careful consideration.

There are only four or five points which we should wish to raise. I personally, of course, would strongly support the view of the noble and learned Lord, the Lord Chancellor, on Clause 1. On Clause 2, I should, I think, say a word about a one-judge court or the alternative. We are persuaded by the Diplock Commission's Report that the case for not having juries is made out. The noble Lord, Lord Windlesham, will remember that when he moved a Motion on March 28 to improve the Government's White Paper I made a few observations then on the Diplock Report, and I said then that I should have preferred a judge and two legal assessors. The reason was really this. Ordinarily, I think a jury is better at saying who is telling the truth than one lawyer. They mix with all kinds of people. There can, of course, be a "crackpot" on a jury, but majority verdicts take care of that. In much the same way, I think justices of the peace, coming from different occupations, used to meeting different classes of people, all putting their heads together, are better at deciding who is telling the truth than one lawyer. I am hopeful that the noble and learned Lord the Lord Chancellor will agree with me that if one asks anybody who has been both a recorder (that is, a judge sitting alone) and a chairman of quarter sessions (a judge sitting with justices) which he prefers, he invariably says that he much prefers sitting with justices, because it is a great help to be able to talk something over, and so often the justices suggest points which would never have occurred to himself. It was for that reason that I suggested on March 28 that we should have a judge and two assessors.

The main reason why the Diplock Commission were against a court of more than one is given in paragraph 39 of the Report, where they say: In criminal proceedings, in particular, immediate rulings on admissibility of evidence and other matters of procedure have constantly to be made by the single judge when sitting with a jury. It would gravely inconvenience the progress of the trial and diminish the value of oral examination and cross-examination as a means of eliciting the truth, if a plurality of judges had to consult together, albeit briefly, before each ruling was made. That was not at all what I had suggested. I was suggesting a judge who would rule on all questions of law, but who would have what I think would be the great advantage of being able to talk it over with the legal assessors.

Since then, my view has been supported by the Bar of Northern Ireland, who have said this: The Bar of Northern Ireland strongly recommends three judges and not a single judge as the composition of the court to try scheduled offences. Reasons:

1. (i) The change from a jury trial to a single judge is too drastic and could undermine public confidence in the courts.
2. (ii) The three-judge court would spread the responsibility for decisions and accordingly reduce the risk of personal danger to individual judges.
3. (iii) The existence and efficient working of a three-judge court in the Republic would reduce criticism of the change from jury trial here.
4. (iv) Manpower difficulties should not be allowed to determine such an important issue and experienced resident magistrates and/or Queen's Counsel should be used, if necessary. In any event, non-jury trials should save a considerable amount of time."

Substituting one judge and two legal assessors for three judges, I should have thought was right; and that was what the other place in Committee decided. They threw out the one-judge trial and substituted a judge with two assessors. But with the assistance of the Government's Whips, the position was restored to a one-judge court on the Report stage of the Bill in another place. My Lords, I say no more than this: this is a point which we should wish to consider on the Committee stage of the Bill, as we have not seen this Bill and it is the first opportunity this House has had of expressing any opinion about it.

My Lords, the second point arises under Clause 5, which provides that a written statement may be put in evidence, although the maker of the statement is not called, if he, is dead, or is unfit by reason of his bodily…condition to attend as a witness; or he is outside Northern Ireland and it is not reasonably practical to procure his attendance; or all reasonable steps have been taken to find him, but he cannot be found. All that seems to me to be quite justifiable. Then it provides for the same thing if the man is unfit to attend by reason of mental illness. I can see that if there was some supervening mental illness after he had made the statement there might be a case for that; but I cannot think it right that a statement, which cannot be cross-examined to because the witness is not there, should be used although the reason for his not being there is some permanent mental condition. In other words, putting it quite shortly, if the police knew that he was "bats" when he made the statement, it ought not to be admissible at all.

The third point arises under Clause 6, which provides that a confession may he put in evidence so long as it was not made when the accused was subjected to torture or to inhuman or degrading treatment". Of course the reason why these words are chosen is that they are in the European Convention of Human Rights. That Convention, as your Lordships know, laid down certain requirements which those who are party to the Convention have to keep in relation to those in custody. Some of those obligations can be derogated from if there is a State of Emergency: and of course at all material times there has been a State of Emergency in Northern Ireland. But the one which, even in a State of Emergency, cannot be derogated from is if the accused was subjected to torture or to inhuman or degrading treatment". I think that we are, as a country, getting into a little difficulty about this. The House will remember that at the time the Committee of Privy Counsellors were appointed to inquire into what I might call the Compton methods of interrogation (not of course invested by that Committee: and I mean only ascribed by that Committee)—that is to say, hooding, use of a noise machine, wall standing, deprivation of food and deprivation of sleep—we knew that the Government of the Republic had laid a case before the European Commission contending that the Compton methods of interrogation did amount to torture or…inhuman or degrading treatment within the meaning of the Convention.

We all thought that it would be most undesirable that we should express any opinion about that, because the United Kingdom Government's case was that none of those, separately, or all taken together, amounted either to torture or to inhuman or degrading treatment. It was not, as it turned out, necessary, so far as I was concerned, in any case to express any opinion on the issue, because, as I said—and nobody since has contradicted it anywhere—the Compton methods were illegal by the law of England and were illegal by the law of Northern Ireland. Therefore, once that was accepted, the Government's choice was either that we should introduce a Bill to provide that in emergency conditions a certain amount of ill-treatment not then legal was to be made legal, or to stop these methods of interrogation.

I was not very surprised, having regard to the difficulties presented by such a Bill, when they decided to stop these methods of treatment. But what Clause 6 means now, as I understand it, is that if a confession is obtained by deprivation of sleep, deprivation of food, the noise machine and wall standing, that will be admissible, because it is still, I take it, the United Kingdom's case that those methods do not amount to torture or to inhuman or degrading treatment. I cannot think that, even in the emergency conditions of Northern Ireland, that can be right. The police would of course be acting both illegally and contrary to instructions if they did this, because the Government have said that the Compton methods are not to be used again. One has seen reports—I do not know how reliable they are—that some of these methods are perhaps sometimes still used by the police: and I know that my noble friend Lord Stow Hill wants to say an additional word about this. I think that some better formula could be found. Moreover, this does not cover threats. A confession can perhaps sometimes be more easily induced by a threat to do something than by actually doing it.

There is this further point. If I remember rightly, in explaining what they had in mind the Diplock Commission made it clear that they did not envisage the use of physical violence. But one can certainly have physical violence which does not amount to torture, and if it does not amount to torture or to inhuman or degrading treatment, then the confession will be admissible though physical violence has been used.

Lastly, as to Clause 7, we fully accept that some such draconian law as this is necessary, where an article such as a gun is found in the possession or on the premises of the accused; and the mere fact that it is there—even though it was quite reasonable—should constitute a prima facie case for saying that he knew it was there. But this is not limited to articles found on his premises or premises which he occupies: it applies to any premises at all. Therefore, as I understand it, if a man goes into a public house—one where he often goes for a drink—and in some room in that public house there is a gun, there is a prima facie case for saying that he knew it was there and it will be up to him to prove the opposite. This illustrates again, I think, the need for having the best possible fact-finding tribunal, because I am afraid that there are on both sides in Northern Ireland men and women with a score to pay off; and it is not difficult to plant a gun and then inform the police. If the man is guilty he will tell a lie and say that he did not know the gun was there, and if he is innocent he will tell the truth and say that he did not know the gun was there, so that the difficulties of ascertaining the truth are obviously considerable.

Finally, if I may say so, I am very glad that the noble and learned Lord the Lord Chancellor is, going to reply, because I should be most grateful if he could help us on one point in particular. We have recently had a sad example of something which admittedly the Government did not explain in detail. We did not spot it, and we really passed it under a misapprehension; and we do not want to do that again. I refer to Schedule 1. Under the Bill, as I understand it, the case of whether there is interim custody will go before a commissioner, who may release the man or make a detention order. He may make a detention order in perhaps a border-line case, and the Secretary of State may think, "I am rather surprised that he made a detention order there," but he has power to release a man, either with or without conditions. He may say, "I will release him on conditions." One of the conditions may be that the man does not leave the town he is in without notifying the police, and so on. Then, some time later, there may be an informer of some kind, or at least the Secretary of State may be informed that the man has left the town, and he can then be recalled.

I do not at all complain of his being recalled without having had the opportunity to defend himself against the charge that he was in breach of conditions, but what I find puzzling is that, first of all, there does not seem to be any provision anywhere for his ever being able to test the question of whether he had broken his condition or not; or for instance, to prove that he had actually left the town. It was suggested by an Amendment in another place that he should be able to take this issue to the commissioner. The Government said—and I quite understand why, because it is the Secretary of State who releases the man, subject to conditions, and he is higher up of course than the commissioner—that it would not look right if, in effect, the commissioner was the court of appeal from the Secretary of State. I fully accept that; but surely there ought to be some way in which the man could contest the question of whether or not he had broken his condition.

The other point is this. In Schedule 1, paragraph 36(3) it is provided that— The Secretary of State may recall to detention a person released subject to conditions under sub-paragraph (2) above, and a person so recalled may be detained under the original detention order. I wonder whether the noble and learned Lord the Lord Chancellor could tell us what is meant by the words: may be detained under the original detention order". It may be that the commissioner makes a detention order, and the Secretary of State thinks, "This is rather a borderline case and I do not know whether he should have made a detention order there. I think I will release him on condition; I can always recall him." So he releases the man on condition, and after three months the man is recalled. If only he had never been released at all, that man would have a statutory right to appeal from the commissioner's detention order to an appeal tribunal, but he has to do that within 21 days of the detention order being made, so he has lost that right and is in a far worse position than if he had never been released at all.

It would appear to me—although I may be missing something—that the Government have not really applied their minds to this question of recall. It may be that it was something which was thought of at the last minute and so the Secretary of State was given the right to recall a man on condition. I am not opposing that in the slightest; but nobody seems to have asked what exactly is the position of somebody who is recalled. A man in that position does not appear to be given any chance of showing that he never broke the conditions at all; his time for appealing to the tribunal has expired and he has lost that. I wonder whether the noble and learned Lord on the Woolsack will be able to help us on that point.

As I have said, we have not had an opportunity of considering this Bill before. We certainly support its Second Reading, and it does not follow that we shall put all these points down later as Amendments or that, if we do, they will be carried to a Division. It depends on what is said in reply both by the noble and learned Lord, Lord Diplock, now, and later by the noble and learned Lord the Lord Chancellor. Subject to those points, we support the Second Reading of the Bill, and I should like to make it plain that we do not intend to do anything whatever to hold up its passing into law this Session.

6.7 p.m.

LORD DIPLOCK

My Lords, this Bill is based in part upon the recommendations contained in the Report of the Commission of which I had the honour to be Chairman, and from which my noble and learned friend on the Woolsack has quoted so copiously in his remarks to-day. Seven months have passed since that Commission's Report was published and there have been developments in Northern Ireland since that time. Further, the Bill has been fully debated in another place and I have studied with care the arguments which have been marshalled there in criticism of some of the proposals of the Report. A few of them have been echoed by my noble and learned friend Lord Gardiner this evening. Those arguments were not partisan at all. They were imbued with a sincere endeavour to find how best justice and a fair trial could be preserved in the unhappy situation which still exists in Northern Ireland. I have some sympathy with some of the criticisms of the provisions of the Bill. It seemed to me that I owe an explanation to this House why it is that the events of the last seven months in Northern Ireland, the criticisms and arguments marshalled against some of the provisions of the Bill have not caused me to change my mind.

It is perhaps inevitable that a Report becomes known by the name of the Chairman of the Commission. But this Report ought to be called the CrossDiplock-Woodcock-Younger Report, because it was the unanimous Report of all of us. It may be that judges, because of their familiarity with crime, have a reputation for being rather "hawkish" on that subject. But my old friend, Sir Kenneth Younger, who is the Chairman of the Howard League for Penal Reform, is more likely to be numbered among the "doves" than the "hawks", and we all agreed that what we recommended was essential for the task which we were set.

The noble and learned Lord the Lord Chancellor has mentioned the genesis of this Report, of how when we started we hoped to find a way by which the procedure of the regular courts could be modified to deal with terrorist crime. Until I had been to Northern Ireland and seen what was happening, and talked to those concerned in the administration of justice, it was impossible to realise how terrorism could corrupt and ultimately destroy the administration of justice in courts of law. Witnesses risked their lives, families and properties if their identity could be guessed let alone their names known—guessed perhaps from the evidence they were giving. In the result, it was impossible to call to justice before the courts anyone in cases where sufficient evidence could not be obtained by police and army evidence, by confession, or by evidence by people whose safety could be guaranteed.

The courts of Northern Ireland have a reputation, and have maintained throughout these troubles a reputation, for impartiality which is remarkable in that country and reflects the greatest credit on those who sit in the seat of justice there. They will continue when, pray God!terrorist crime is over. They must continue day-to-day to deal with ordinary crime and with their civil jurisdiction. It is essential in the happier future that we all hope is coming for Northern Ireland that nothing will have happened which will sully that reputation. That is why we set ourselves a criterion not to ask regular courts of justice in Northern Ireland to adopt any procedure which fell short of compliance with the requirements of the Human Rights Convention.

There is the power to derogate from that in a public emergency which threatens the life of the nation. No one can doubt that that emergency is there, and that is why we have been driven inescapably (and how reluctantly!) to the conclusion that detention otherwise than as a result of trial in the regular courts of justice, must be retained. When this matter was debated in this House, I think in December, I said that I had satisfied myself from my own investigations in Northern Ireland that the risk of detention of an innocent man was indeed slight. At that time the Commissioners and the Appeal Tribunal were only starting to have experience of operation. I have had the opportunity since then of talking to one of the distinguished judges, and the former distinguished ex-Lord Justice, who have served on those tribunals. What I heard from them confirms the opinion I had formed and expressed in December.

I have already said that we came to the conclusion that only where evidence from police and army witnesses, or confessions, was sufficient was it possible to bring terrorist crime in the ordinary way before the courts of law. But if courts of law are going to try terrorist crime, even under those conditions, if requires jurymen free from intimidation and free from pressure. I gather that it is accepted on every side now that the time has come when the jury system must be replaced in the case of terrorist crime. It had not happened by the time we reported that: The jury system as a means for trying terrorist crime is under strain. It may not yet have broken down, but we think that the time is already ripe to forestall its doing so. There was some criticism of that recommendation at the time on the grounds that it was not supported by the statistics of perverse verdicts. When I see a fire starting, and indeed we saw a fire starting then, I send for the five brigade not a statistician. What has happened alas!in those seven months that has passed has shown how unhappily right we were in our prophecy of what was likely to occur when Protestant terrorism began to grow.

May I turn to the substitute for jury trial, and the proposal of the Commission, which is accepted in this Bill, that trial should be by judge alone and not as some think—and I well understand their reasons—three judges, or two judges and assessors. The Commission gave anxious consideration to the alternative possibilities. We discussed the matter with great care with the Chief Justice, and I consulted other judges who would have to operate the non-jury trial. Even if it had been practicable in Northern Ireland to man three-judge courts, we should not have recommended that. The first question we asked ourselves was, what is the best way to be sure that the right decisions will be obtained? The opposition to the one-judge trial, if I may be permitted to say so, does not come from anyone with judicial experience of trying criminal or civil cases. Our procedure, oral and adversary, needs, as my noble and learned friend Lord Gardiner said, to have one judge in control of the conduct of the trial. It would be wrong to think that there is any analogy between our procedure and the Continental system, inquisitorial as it is, which has collegiate courts. It would be wrong to suppose that it has any analogy with appellate courts; and, if I may venture to say so, it would be wrong to suppose it has any analogy with a chairman of quarter sessions sitting with magistrates. His alone is the responsibility of summing up to juries. The matter on which he can get valuable assistance from magistrates is the most difficult thing of all, sentencing, and that under a jury system is done by judge alone.

Single judges are experienced in finding facts in civil cases, nearly all civil cases in this country to-day, where very important issues may be involved. In Canada and in the United States, or in those States where there is a power trial waive a jury in a criminal trial, trial is always by judge alone. Decisions of fact in criminal cases are easier to arrive at than in civil. In civil you may have great difficulty in deciding where the balance of probability lies—for that is the test. But in a criminal case all one has to ask oneself is: Is there any doubt that this man is guilty? And if the answer to that is, "Yes", then he is entitled to be acquitted. I had ten years' experience of summing up to juries, of listening to criminal trials. I cannot remember any one of them in which there was any difficulty in deciding which way the verdict should go; and after I had achieved experience in summing up to juries I do not recall any case where I was wrong in my estimate of what the jury would decide. In some ways the provisions of the Bill for trial by a single judge offer a safeguard which is impossible in trial by jury because there are provisions which require a judge, as a jury never can, to give a reasoned judgment, a right of appeal as of right to the Court of Appeal; and this presents in my view a safeguard which avoids all risk of injustice in the case —of trial by a single judge.

My Lords, may I add just this? It is in fact wholly impracticable to institute three-judge trials in Northern Ireland. It is a small Judiciary—numbers have been given; it is a small Bar, and of that small Bar two-thirds have been called since 1969, so that only one-third have more than four years' experience of practice at the Bar. Furthermore, if justice is to be done, just as you cannot, dare not, dilute the Judiciary, so too it is essential that there should be proper legal representation for the prosecution and in particular for those who are accused, so that even if we had felt that it was a narrow balance between single judge and three-judge trials, which we did not, we should have been compelled by practical necessity to say, "In Northern Ireland that is impossible". Naturally we had very much in mind the possibility of risk to judges. I consulted closely, and have since the Report was made, with the Chief Justice of Northern Ireland and he is satisfied that there will be no greater risk to judges than there is at present where the summing-up, the sentence, and often the decision to admit or to refuse a confession, have as great an effect upon the accused as they will have when the decision is his alone.

Finally, may I say on this point that though I would respect and pay attention to public sentiment in Northern Ireland, if there were such public sentiment in favour of a collegiate court, my own impression, from the sources that I have heard so far as the public is concerned, is that there is no strong feeling either way as to which way this new system of trial should operate.

My Lords. I shall probably not have an opportunity of being in this House at the Committee stage. May I deal rapidly with the other points which my noble and learned friend Lord Gardiner made? First as to evidence, the written statement, it is I think important to realise that trial will be by a single judge, and if any single judge paid any attention to any statement from someone suffering from mental illness I should be indeed surprised. May I say why "mental health" was added? There have been cases—and this is the result of terrorism where after the statement has been made to the police a nervous breakdown has followed from the fear that has been installed. That is why mental health was put in. Of course, no judge will give weight to any such statement. On confessions, I express no views about matters which may be under consideration in the European Court. I think those who have read the Report can gather by inference what our views were about certain conduct. May I say just this about threats? In the Report we referred to threats of torture, but we regarded it in the context of other inhuman or degrading conduct, and I personally would have regarded threats of torture as being within the expression, "inhuman or degrading conduct"; certainly so far as we were concerned it was intended to be included and it looks to me as if the Parliamentary draftsmen have taken the same view as we did in our Report.

Finally, on the possession point in Clause 7 I would point out that this is not making the possession of firearms in any sense an absolute offence. Its only purpose is to ensure that when there are firearms or explosives in joint possession —and this is so common in Northern Ireland because terrorists operate in groups—they will go into the witness box and give their explanation of why the arms or explosives were in their immediate vicinity, and if that explanation is satisfactory there is no danger that they will be convicted.

These are minor changes in the rules of evidence: rules which are peculiar to this country and are unparalleled in any other European nation. I am confident that these changes involve no risk of the conviction of an innocent man, and with human life and property so gravely at risk from terrorist crimes it is a small price to pay for the protection of those who are the victims. I fear that this Bill offers no solution to the basic problems of Northern Ireland—let us pray that the Bill which has just received a Second Reading may perhaps do that—but I believe that this Bill will make the position of innocent citizens in Northern Ireland, who represent the great majority, safer, without detriment to fair trial and without any damage to the high reputation of the Northern Irish courts.

6.32 p.m.

LORD STOW HILL

My Lords, my name appears upon the list of speakers but it appears after two Lord Chancellors and one Lord of Appeal, and before I rose to speak I wondered very much whether, in those circumstances, I should be able to add anything of use to what they would have said. Having listened to them, I felt still more doubtful as to whether I should venture to intervene in this debate. If I may say so, their speeches were admirable—the well-informed and well-documented speeches that we should have expected from them —and if I rise, one of the purposes of my so doing is to pay tribute to the noble and learned Lord, Lord Diplock, and his colleagues for their work in producing, in such a short time, the extremely valuable Report which in effect we are now discussing, embodied as it is in the terms of the Bill before the House.

That I wish to say, and I would add this. I think we must all have been very much moved when we listened to the sincere terms in which the noble and learned Lord expressed his feelings and his reactions when he visited Northern Ireland and acquainted himself at firsthand with the problem with which he and his colleagues were confronted. Speaking as a judge of enormous experience and distinction, he explained why he thought it right to do what in effect he has done—and I think he would agree with me about this—to decide to recommend to your Lordships, albeit for a very limited period, that in the exceptional circumstances with which he had to deal it was necessary to some extent to dismantle or render less effective those safeguards which over centuries we in this country have evolved largely for the purpose of ensuring that that nightmare of every lawyer does not take place—that an innocent person be convicted of a crime.

If the question before your Lordships in a sense is, and may be put, as follows: are the exceptional circumstances such as to justify a departure from the maintenance of those safeguards, I would most certainly and without any hesitation answer that question in the way in which the noble and learned Lord has answered it. But I know that both he and the noble and learned Lord the Lord Chancellor would wish that the Opposition, as is their duty, should investigate this question: whether in any particular respect the terms of the Bill depart further than is necessary in the exigencies of the existing situation from the maintenance of those safeguards for the administration of justice and the prevention of the conviction of an innocent person. As my noble and learned friend Lord Gardiner said, the Opposition clearly must examine, by appropriate testing and amendment, the various provisions of the Bill on which possibly doubts could be raised as to whether they go a little too far away from the maintenance of those precautions which we apply in the administration of justice in this country and which we have come to regard as essential.

My noble and learned friend said that I might wish to add to what he had said with regard to the wording of Clause 6, which deals with the admission of confessions or statements by an accused person, and he said that I might wish to add something to what he had already said with regard to the test required in that clause, namely the test whether the accused person had been subjected to torture or to inhuman or degrading treatment. If I may say so to him, he treated of the matter so fully himself that I do not think there is anything I wish to add. However, I hope noble Lords and noble and learned Lords will agree with me that perhaps those words are too widely drawn and it is at least desirable that we should think very carefully whether some words could be substituted by way of definition of the kind of pressures which are not to be exercised, which would limit to some extent the scope of the definition at present in that clause.

I am quite conscious of the fact that that clause, as it has emerged from another place, is now extremely carefully worded and delicately balanced, and if a confession is sought to be adduced as evidence then if there is some evidence that it may have been obtained by the kind of conduct that is described in the clause it will not be admissible unless the prosecution proves beyond reasonable doubt that it was not so obtained. The argument proceeds—and the noble and learned Lord, Lord Diplock, reminded us of it this afternoon—that supposing you have a case in which the confession is not excluded because it was obtained by that conduct which perhaps I may categorise as extreme pressure, nevertheless obviously it will not be regarded as credible by a learned judge, and particularly a learned judge sitting without a jury.

May I say that there is obviously force in that argument and I entirely accept it, but I still doubt whether it goes far enough to justify the words in the clause as it stands. I am conscious, of course, of the fact that they came from the European Convention on Human Rights; but they really are so extreme in character, so I would submit: "torture, inhuman or degrading conduct". I would put it for your Lordships' consideration that we should perhaps not draft our Statutes in such a way as even by implication to seem to give the impression that we will tolerate conduct falling short of that extreme conduct, but nevertheless being conduct of which we in this country would very strongly disapprove. My noble and learned friend Lord Gardiner gave examples of it. One might consider cases where the grossest deception is practised upon an accused person so as to bring pressure on him, but which nevertheless cannot be regarded as torture or a threat of torture, or as degrading or inhuman conduct. I quite accept the argument of the noble and learned Lord, Lord Diplock, that a threat of torture would presumably fall within the scope of the definition "degrading or inhuman conduct". If there had been a threat of torture this would result in making a confession inadmissible. I simply put the point as one which, in my submission, should be further investigated in Committee for the general reasons that I have given.

My Lords, my noble and learned friend referred to the question of majority verdicts. I do not know whether he did that, in a sense, to tease me because I think he knows how very much I personally dislike the idea of majority verdicts. I dislike them because I think if one alters the law so as to make it possible to accept the verdict of ten out of 12 people, one is pro tanto, perhaps not very much but to some extent, making it more likely that an innocent person may be convicted. The noble and learned Lord said that the dissident juror or jurors may be cranks. The reason given by those who supported that measure was that they might be cranks, or might have been got at by the sophisticated criminal. That is a change in the law which certainly I still dislike; because it is a provision which makes it more likely—I do not say very greatly more likely, but more likely—that an innocent person may be convicted. But it is after all now a permanent feature of our legislation. It is not one limited to a period of a year in a wholly abnormal situation such as that which obtains in Northern Ireland. It is the normal situation for which we legislate in this country, and we have enacted that as part of our legislation for good and all until Parliament may choose, as I hope one day it will, to amend the appropriate Statute. If we are justified in changing our legislation in that sense in normal conditions, I think it becomes much more easy to accept the view propounded by the noble and learned Lord, with which I personally identify myself completely and absolutely, that for a short period in these wholly abnormal situations in which juries and witnesses are intimidated we should dismantle to some extent the safeguards which we have erected in this country, and which have been erected in Northern Ireland, by our combined experience over the centuries to see to it no innocent man ever has the stain of a criminal conviction visited upon him.

My Lords, those I think are the points I would principally desire to make. I personally have very much doubted the wisdom of the recommendation of the Criminal Law Revision Committee that we should introduce into the criminal law the provision of our civil law making hearsay statements admissible in criminal cases. I opposed that proposal, and still oppose it. In criminal cases I think it is so essential that the jury or judge alone, if there is a judge alone, should have the opportunity of observing the witness who they or he, as the case may be, are invited to trust and in whom they must place their complete confidence if there is to be a conviction. Now, that provision, namely, that hearsay evidence is to be admissible in a criminal trial, is now introduced by this Bill on the recommendation of the Commission over which the noble and learned Lord presided. I accept it. I would not oppose it in the exceptional circumstances that one is considering and in relation to which the noble and learned Lord was making his proposal, but I still must say I dislike it. I am sure I speak with the assent of the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Diplock, and of my noble and learned friend Lord Gardiner when I say that I feel sure we all dislike a number of these proposals, but the situation is forced upon us. Lawyers must give way to reality and, faced, as I think we all are, with a possible breakdown of the whole administration of criminal law in Northern Ireland, we have to be prepared to go a long way to depart from that system of law which in the normal conditions in which I hope we still are in this country, we think is indispensable.

My Lords, as I have said, we wish to examine this Bill more closely in Committee although, of course, we entirely accept it must soon pass into law—and the sooner the better. For these reasons, I hope your Lordships will think it right to give to the Bill a Second Reading.

6.48 p.m.

THE LORD CHANCELLOR

My Lords, I am greatly indebted to all three noble Lords who have participated in this debate, both for what they said and for the way in which they said it, and if I do not say so again may I begin by thanking my noble and learned friend Lord Diplock for his most impressive speech which was listened to with rapt attention, and which, so far as I was concerned, carried full conviction. But if I may I will handle the questions one by one as they arise.

My Lords, I greatly welcome the acceptance of the noble and learned Lord, Lord Gardiner, of the fact that for the time being at any rate the jury trial has really become unreal. If in fact one has two warring communities—let us forget for the moment about terrorism, which is a very real fear to any juror—and one has the situation in which in order to get a conviction of a Catholic one has to have a Protestant jury, and if one wants a conviction of a Protestant one has to have a Catholic jury, and if one has a mixed jury they do not agree, I think that, quite apart from terrorism, this has become a farce and we have to stop it for the time being, much as we may adhere to jury trial in this country in conditions with which we are familiar. I had some startling figures to support what I have been saying, and even reports about the situation which obtained at particular Assizes recently. I do not quote them only because all the noble and learned Lords who have spoken have really recognised that the situation has come, and we need to pass this Bill into law in one form or another before the judges go out on Assize again in October, when the situation will, of course, be repeated with these enormous arrears in prospect.

The noble and learned Lord, Lord Gardiner, then said that he would have originally preferred three judges. I know that that is not the view of the Northern Ireland Judiciary. I have tried to show why for practical reasons it is not "on" in the present situation, and the noble and learned Lord, Lord Diplock, has explained why in our system a single judge is, in his view, preferable. I would say only this to the noble and learned Lord, Lord Gardiner, about that. I personally like the thought, in England, of a judge and two lay people with him to judge questions of fact. I have not much experience of it outside the magistrates' courts; I do not think many of us have, because it does not take place much outside magistrates' courts. But I find this an attractive proposition in England. I do not have any affection whatever for a trial before three judges, except on points of law. When I say three judges, I mean three legal, professional judges. I find that a most unattractive proposition in any circumstances, especially on questions of fact.

The noble and learned Lord, Lord Gardiner, postulated a judge and two legal assessors. I think that that would have almost all the disadvantages of a trial before three judges without any of the advantages of a trial before a judge and two laymen. And I must just say this to him, only amplifying what my noble and learned friend on the Cross-Benches said. There are, as I think I said in opening, only seventeen Northern Irish Silks altogether, and only eight juniors of ten years' call. Everybody, of course, in that little community is known very well to everybody else, even the laymen. Of those seventeen Northern Irish Silks, fourteen are habitually used by the Director of Public Prosecutions to prosecute by rota. The remaining three, I think, specialise in defence, unless they do not go into the criminal courts at all. I really cannot see any advantage in putting any one of those fourteen or any one of those three on to a Bench with a High Court Judge and saying that this is preferable to trial by a High Court Judge. It seems to me to be unreal. If and in so far as you did it, I wonder how far you would be improving the security from intimidation of any one of those people on that Bench. You can provide for the security of a High Court Judge, who is identified and can be protected up to a point. But if you are a counsel defending or prosecuting, trundling round the Assizes and the county courts, I wonder whether, if you had given an adverse decision, you would be at all safe or free from danger if you were put on a tribunal of that kind.

My conviction is that once you have got away from trial by jury, for the time being, you had far better get to the only attractive—to me professionally attractive —proposition, which is a single judge giving reasons for his decision, exercising discretion about which evidence he believes and which he does not, and subject to the overall control of a court of appeal consisting of three judges, which can criticise his reasoning on fact just as much as his rulings on points of law. I do not hesitate to say that I prefer, in the circumstances of this Bill, in the conditions of the Province, the option which the Commission chose and which the Government have insisted upon in another place. I think it is the right option. We can, of course, discuss this further on Committee, if need be.

A further point was raised by the noble and learned Lord, Lord Gardiner —and I am taking his adverse points because I think it is on those he would like my answer. He criticised the provision in Clause 5 which dealt with mental illness, the admission of a signed statement by a person suffering from mental illness. I think it is a fairly unreal point. The reason we put it in was that which was given by the noble and learned Lord on the Cross Benches. Somebody who has been subject to terrorism can have a nervous breakdown, or appear to have a nervous breakdown, or a psychiatric condition which renders him quite incapable of giving rational evidence, and this is just as much a result of the terrorism as if he were rendered physically incapable by way of physical illness of attending the trial. In both cases I should have thought that one was justified in saying that that statement should be admitted before a single judge, for what it is worth or what he thinks it is worth, and to that extent the incentive to terrorism should be removed from the potential terrorist.

The noble and learned Lord then goes on to say, "But supposing this witness has been mad from the beginning; is he to be excused attendance and his evidence used?" We can, of course, consider this point further on Committee, if he feels it is of importance, but I would say two things to him which I think render the point an almost academic one. In the first place, there is the point, to which I will revert and which has been mentioned more than once already in this connection and in another, that when you are dealing with trial before a judge alone, as distinct from trial before a judge and jury, quite different considerations ought to apply when you come to consider the question of admissibility of evidence as distinct from weight of evidence. On the whole, we keep away from a jury, which is not accustomed to evaluate weight so cautiously as a judge, the things which might have emotional content but which have either been improperly obtained or which have not been duly scrutinised. A judge can, on the whole, apply his mind to weight by reflecting on the degree to which the reliability of the statement is affected by the fact that it cannot be probed by cross-examination, and he can also reflect upon the extent to which any impropriety in obtaining the evidence reflects upon its reliability.

That, of course, leads me to the question of Clause 6, which was mentioned both by the noble and learned Lord, Lord Gardiner, and by the noble Lord, Lord Stow Hill. I do not think I ought to attempt any expression of opinion as to what is inhuman or degrading treatment. That would be, under the Bill, a question for the courts of Northern Ireland. I share the respect for the Northern Irish judges which has been voiced by the noble and learned Lord, Lord Diplock. They have been appointed without regard to sectarian affiliations by successive Lord Chancellors. Some, I think, of the earliest were appointed before that régime came in, but, even so, without regard to sectarian affiliations, and they have maintained the highest traditions of their office in conditions of considerable difficulty. I do not at all accept the view that they would hold that what has been prohibited as a result of the Committee of three, of which the noble and learned Lord, Lord Gardiner, was a member, would not necessarily be within the terms of this clause. I do not express a view upon it. I know some of the judges concerned, and I doubt whether either they would admit evidence of that kind, or, if they did, they would pay any attention to its truth.

But, of course, what this clause is really dealing with is a situation which is very far removed from that kind of thing. These judges are great sticklers for the nicer points of procedure. Their Judges' Rules are dated before our own present Judges' Rules; they follow an earlier pattern of Judges' Rules. If you are to pursue them very exactly, being a police constable or perhaps a soldier on patrol, you really need to have a set of Law Reports about you at the time. It might be inconvenient, in the circumstances of the conditions in Northern Ireland, to carry that set of Law Reports about with you so that you could refer to the appropriate decisions in order to administer the caution at exactly the right moment of time. What this Bill is designed to do is not to admit confessions which have been procured by methods either near to torture, or by actual torture, or the threats of it; Clause 6 is designed to make admissible, but not necessarily to make acceptable, things which, under the Judges' Rules, might be excluded in a jury trial.

As the noble and learned Lord, Lord Diplock, pointed out in his Report, the very nice distinctions about what might conceivably be a promise of favour, or might possibly be a threat of disfavour, which have arisen in the courts, arose very largely in order to protect defendants in the old days from the handicap that they were under when they were not allowed either to give evidence on their own behalf, or even sometimes to have counsel or call witnesses. Therefore, they were quite unable to deny allegations of admissions when they were made by the prosecution. Even in England this is not universally thought to be a set of Rules which ought universally to be applied at the present time. If they are to be applied in England, the justification for them really rests upon the fact that juries have to judge these things, and when in fact you have a trial before a judge alone in conditions of terrorism, I am bound to say that I found the original arguments of the Diplock Commission's Report wholly persuasive, although I fully agree with the noble and learned Lord, Lord Gardiner, in his detestation of physical or mental cruelty, or degrading treatment.

Still on the same subject but turning to what the noble and learned Lord, Lord Stow Hill, said I think that it is important to use the actual words of the European Convention, and that for two very good reasons. First, we must make our law compatible with the Convention. The trials we give must not use different language, but must use the same language as the Convention. The noble and learned Lord, Lord Stow Hill, will reflect, I am sure, that if we retain the present form of words a person who claims to have been subjected to such treatment will still have his right of recourse to the Commission, even if the court took the contrary view. The court, in applying its view to the facts of a given case, will have regard to the fact that it is not a court of last resort in that sense.

I do not go the whole way with the noble Lord, Lord Stow Hill, in what I thought he was saying at the end of his remarks on that topic. I go along absolutely with the Bill and with the Convention, that evidence obtained by inhuman or degrading treatment or, worse still, by torture, ought to be altogether excluded. Not, as a matter of fact, because if it were admitted before a single judge it would necessarily alter the single judge's decision, because I think that the single judge, having admitted it, would probably be able to discount it for what it was worth, but as part of the campaign to stop that kind of thing going on at all. I would go along with the noble and learned Lord, Lord Stow Hill, about that.

But I think the bounds of what is intolerable go very much beyond inhuman or degrading treatment, and actual torture or the threats of it; they cover a wide range of improprieties of one sort or another, some of them slight and some of them not so slight. When such improprieties are committed. I am not prepared to say that before a judge alone it is altogether wrong to admit evidence, for what it is worth, which has been obtained by some kind of persuasion, or without administering a caution, or by some breach of a technical rule which renders it excluded in front of a jury. On the contrary, I think that an experienced professional judge is entitled to look at the evidence, to examine the circumstances in which it has been obtained—and, if need be, to report those responsible for obtaining it if he thinks it is a serious case for administrative or disciplinary action—but at the end of the day to ask himself, "Can this admission be relied upon as a statement of fact? How can it be relied upon, if at all?" Therefore, I am not prepared to say that the provisions of Clause 6 are not necessary in the terms of the Bill.

I am glad that the noble and learned Lord, Lord Gardiner, at any rate endorsed the principle of Clause 7. He asked me some questions about Schedule 1, and I have endeavoured to obtain answers of a kind in the short time I have had available. No doubt he will want to revert to this at the Committee stage. The point which he put to me was in fact a somewhat rarified one. I think that the actual circumstances he put to me are unreal and unlikely to occur. The actual circumstances he put to me were that the Secretary of State, on receiving the report of the Commissioner, thought, "This is a marginal case. I am surprised that he ordered detention, and I will therefore let the man out on conditions." I do not think that that can happen in the way in which it is presented, because before the matter goes to the Commissioner it has to be referred to the Commissioner by the Secretary of State as a case in which the man has been involved in terrorism, in the opinion of the Secretary of State, and that his detention is necessary for the protection of the public. If, in fact, the Commissioner then endorses that opinion, it is not likely that without supervening facts the Secretary of State will then say, "Well, I was wrong all along, and so was the Commissioner. We will let him out on conditions." I do not think that that is a real situation. What one is concerned with is supervening facts.

Of course the detainee, if he is released on conditions, can appeal against the original detention order at any time within 21 days. If he feels there is any doubt about the case, and if he is legally represented or advised—which he is entitled to be—that is the course which he ought to pursue. It is not uncommon in our penal law, where a person is recalled from a sentence—although of course this is not a sentence—to leave the executive decision as final, and not as one which was to be subjected to the independent scrutiny of a court. When you are dealing with the recall of a detainee or, in our penal treatment, of a convicted man, you are not dealing with an innocent person; you are dealing with somebody who has been the subject of a detention order (if need be on appeal), because he was a terrorist and had been involved in terrorist activities, and because his detention is necessary for the protection of the public. When you are dealing with such a man I do not feel that you ought to deal with him in quite the same way as if the order had not been made in the first place.

On the other hand, the noble and learned Lord will see that there is in the Bill provision for reference at any time to the Commissioner by the Secretary of State, even if the period of a year has not elapsed. It may be that if there was a challenge of fact as to whether the conditions had been broken in the way suggested, the Secretary of State would think it right to refer such a case. Whether he should be compelled is a narrow subject which we may have to discuss further.

I have taken a good deal of time in this debate on the Bill. I am very much encouraged indeed by the reception which it has received. I cannot pretend enthusiasm for it, but I am very much encouraged by the fact that its necessity has been so widely recognised.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.