The Calcutt Report

HL Deb 22 May 1986 vol 475 cc479-88

5.15 p.m.

The Minister of State for Defence Procurement (Lord Trefgarne)

My Lords, with your Lordships' permission I should like to repeat a Statement being made in another place by my right honourable friend the Minister of State for the Armed Forces about the Calcutt Report. The Statement is as follows:

"Following the acquittal last year of eight servicemen from 9 Signal Regiment in Cyprus who had been charged under the Official Secrets Acts, I announced in the House on 29th October that there was to be an independent inquiry into the way in which the service police carried out their investigations of the eight men originally accused. Mr. David Calcutt, QC, agreed to conduct this inquiry. The House was also told that it was the intention that, subject to the usual security considerations, Mr. Calcutt's report on his inquiry would be published. The report has been published today—Cmnd. 9781.

"Mr. Calcutt has concluded that the service police investigations, which he acknowledged involved special difficulties due to their sensitivity and complexity, were undertaken without any animosity or ill-will towards the servicemen concerned, and that none of the servicemen were subjected to any violence or threats of violence, or any form of torture or inhuman or degrading treatment.

"Mr. Calcutt has, however, concluded that the custody of the eight servicemen was, for part of the time, unlawful and that even after the servicemen had been lawfully arrested on holding charges their continued custody was at least improper. The interviews by the service police with each of the eight servicemen mostly took place during these periods of unlawful and improper custody.

"In the light of Mr. Calcutt's conclusions as to the lawfulness of the custody of the servicemen, my right honourable friend the Secretary of State for Defence has concluded that in the case of seven of them he is prepared to make an ex gratia payment. The seven servicemen concerned are Senior Aircraftmen Kriehn, Lightowler, Owen and Payne, Lance Corporal Glass and Signalmen Hardman and Tuffy. On their application, my right honourable friend will ask Mr. Michael Ogden QC, who acts as an independent assessor for my right honourable friend the Home Secretary, to make an independent assessment of the amount of the award in each case.

"As regards the eighth serviceman, Senior Aircraftman Jones, Mr. Calcutt considered on his construction of air force rules of procedure that his custody was unlawful. Although the facts adduced in evidence before both Mr. Calcutt and the trial judge were essentially the same, the submissions addressed to them by counsel were very different. Indeed, before the trial judge, Senior Aicraftman Jones's counsel did not contend that the custody was unlawful. When the trial judge considered the same provisions of the air force rules of procedure, he accepted that Jones's custody was lawful. In these circumstances, since the trial judge found that Senior Aircraftman Jones's detention was lawful, it would be inappropriate to offer an ex gratia payment in his case. It is of course always open to him to pursue his remedies in the courts, should he be so advised.

"Mr. Calcutt has also concluded that, as the number of days spent in custody increased, so the pressure which was exerted on each of the servicemen gradually built up and crossed over, from what was at first proper to what he could only regard as becoming improper, and that the pressures which were ultimately exerted on each of the servicemen were such that these were likely to render unreliable answers given or statements made by them. However, Mr. Calcutt also points out that the investigations carried out by the service police in Cyprus in February and March 1984 were difficult, sensitive and complex, and they would have created profound problems for anyone who was given the task of carrying them out. Mr. Calcutt concludes that though he has pointed to some breaches of lawful and proper procedures, it would be unfair to be overcritical either of the investigating service police or of those who were advising them.

"The Government fully recognise the difficult position in which the service investigators in the case were placed and that they were motivated solely by what they perceived to be their clear duty. The Government are also grateful to the service investigators for their full participation in Mr. Calcutt's inquiry which was entirely of their own volition. I should also like to take this opportunity to make it quite clear that we continue to have full confidence in the integrity and professionalism of the Royal Military Police and the RAF Police who do difficult, complex and very important security work in many key defence areas.

"Mr. Calcutt has recommended seven matters for further consideration. These are: the potential conflict between learning the nature, extent and full circumstances of any breach of security and bringing the offender to justice; the need to give at an early stage in an investigation clear guidance on the relative priority to be given to the counter-intelligence aspect and the criminal aspect of a security case; whether, in certain circumstances, the 48-hour maximum period allowed under current service procedures for suspects to be detained without charge should be capable of being extended; whether RAF Queens Regulation 1034 should be either annulled or amended; how far the rigid application of the need to know principle may have the effect of depriving a suspect of the protection which the law provides for him; the effect of classifying the routine documentation in security investigations; and whether investigations such as those leading up to the Cyprus trial should be conducted from the UK rather than overseas. "The Government accept all of Mr. Calcutt's recommendations for further consideration and the House will be informed of the outcome of this further work.

"As far as present practice is concerned, Mr. Calcutt acknowledges that the new code of practice for the treatment and questioning of persons by the service police has now been issued under the Police and Criminal Evidence Act 1984 and that this may at least go some way towards overcoming some of the shortcomings revealed by the inquiry. In addition, the House will wish to know that RAF Queens Regulation 1034, that provides for a form of custody short of arrest, has been suspended, and that further instructions are being issued to clarify and re-emphasise the safeguards for individuals under investigation.

"Finally, I should like to express our gratitude to Mr. Calcutt for conducting his inquiry both speedily and with great thoroughness, and for producing a rigorously argued and most valuable report."

My Lords, that concludes the Statement.

Lord Graham of Edmonton

My Lords, perhaps I may first congratulate the noble Lord, Lord Trefgarne, on a step up in the pecking order in the Ministry of Defence. I do not know whether any money is involved or whether it carries anything, but even if it carries increased status and prestige I think the noble Lord, Lord Trefgarne, deserves the congratulations of the House.

I begin by reminding the House that the background to this inquiry and this Statement was the longest secrets trial, a show trial, and the most expensive trial that we have seen in this country for many a long day. I repeat the phrase "show trial" because of particular purposes. At the end of the day we are being told that there was no animosity, no ill will, no violence, no threats of violence, no torture, no inhuman or degrading treatment. We are told that the interrogators are not to blame, that they are blameless; yet the RAF men, we are told, were held in custody for unlawful periods. In that time the interrogations took place during what the statement calls, periods of unlawful and improper custody". Who was to blame for those periods of improper custody? We have the right to know. Will the Minister tell the House who was to blame? Can we be told the department, the section or the individual? If this is not to be a whitewash and there has been some dereliction from duty, the House is entitled to know who is to blame.

I draw the attention of the House to what I think is a conflict that the Minister should help the House to reconcile. In paragraph 2 of the Statement we are told that none of the servicemen was subjected to any violence, threats of violence or any form of torture, inhumane or degrading treatment. In paragraph 6 we then have Mr. Calcutt concluding that as the number of days spent in custody increased, so the pressure which was exerted on each of the servicemen gradually built up and crossed over from what was at first proper to what he could only regard as becoming improper, and that the pressures which were ultimately exerted on each of the servicemen were such that they were likely to render unreliable answers given or statements made by them.

I suggest to the Minister that he needs to satisfy the House as to precisely what Mr. Calcutt meant about the cross-over point. When were matters proper and when did they become improper? I think the House can imagine a situation in which tension mounts, pressure increases; and we need to ask quite frankly how much of the evidence produced at the end of the day was manufactured.

We then need to ask the Minister whether he recalls that during the passage of the Armed Forces Bill in another place, and as recently as Monday of this week in your Lordships' Chamber, we have rested our treatment of service personnel in matters of discipline as far as possible on the same basis as that enjoyed in civilian life. Can the Minister say that he is satisfied that this equality of treatment has existed in the case of the interrogations that we are now discussing? Is the Minister satisfied that the lessons to be learned from this experience have been appreciated by the senior officers in the interrogation services and that appropriate changes in training and procedures have been instituted? Is the Minister satisfied that the RAF Provost Marshal branch and the Army Special Investigation branch have searched their experiences elsewhere so as to be certain that there are no comparable cases which call for an investigation, even if it is an internal one?

Some of the difficulties surrounding this highly unsatisfactory episode have resulted from, at the very least, imperfect communications between the MoD and the Special Branch where security is concerned. Has the Minister anything to tell us on the steps that have been taken to improve this communication?

Has the Minister reflected on the fact that this case was the third within 12 months when prosecutions brought under the Official Secrets Act led to acquittals at the Old Bailey? Has he caused any inquiry to be made within the MoD among those there who caused those prosecutions to proceed? Who initiated the proceedings that brought these men to trial in the first instance?

If it is discovered that the RAF Provost Marshal branch of the Army Special Investigations branch did not use lawful and proper procedures, what actions will be taken against them—not words but actions? Finally, what steps have been taken to ensure that such a costly type of trial, in both financial terms and terms of human suffering, can never be repeated?

5.30 p.m.

Lord Wigoder

My Lords, among the not unlimited range of matters in which noble Lords on this side of the House have complete confidence in the Prime Minister is that she has complete confidence in the noble Lord, Lord Trefgarne. We should, therefore, like to add our congratulations and best wishes. I should like also to echo what the noble Lord, Lord Trefgarne, said in thanking Mr. Calcutt for this report, which has been extremely rapid, given the problems, very clear, very well argued and I believe extremely well balanced.

He faced at the outset the very difficult problem that an experienced trial judge had found, after lengthy argument, that in relation to the four defendants with whom he was dealing at that moment he was satisfied that their statements were voluntary. Eventually the jury came to the conclusion that they were not sure that the statements were true. The two judgments are not conflicting, but it is not easy to steer the right course between them. That was a problem that must have faced Mr. Calcutt and that he must have found very troublesome.

His principal findings are those stressed in paragraph 5: beginning in 5.3 that there was no wickedness on the part of the interrogators; in 5.4 that there was no violence; in 5.5 that there were no methods used of deep interrogation; in 5.6. that there was no inhuman treatment; and in 5.18 that the investigators had proper regard for the health and welfare of their prisoners.

Those findings—and they were very clearly supported by the evidence in front of Mr. Calcutt—contrast strangely with the hysterical headlines in the press at the time that the acquittals took place. I hope that with their customary sense of responsibility, when the press are now reporting the findings of the Calcutt Report they will perhaps apologise for some of those misleading headlines some months ago.

The real problem in terms of this interrogation, as Mr. Calcutt points out, was that the authorities were faced with a dichotomy as to whether their urgent task was to seal what appeared to be a serious breach of security or whether their urgent task was to attempt to investigate who was responsible, to arrest them and prosecute them. That is a problem; and Mr. Calcutt again has made some suggestions as to how that might be resolved in future. Perhaps I may ask the noble Lord, Lord Trefgarne, whether he is able yet to answer the question that was raised when the Calcutt Inquiry was announced some months ago. Are the Government now satisfied that there was in fact a serious breach of security in Cyprus, irrespective of who it was that was responsible?

No one, I think, could call the Calcutt Inquiry a whitewash. He finds much to criticise. In paragraph 5.25 he criticises the inadequate records of the investigation; he criticises, in 5.40, the amending of the delay reports; and he criticises, in 5.50, the pressure that repeated interviews amounted to until they came to verge upon and indeed to go over the line and become improper in that repetition. Then he finds in paragraph 5.30 and onwards—and this of course is very serious—that there was what amounted to unlawful detention and the improper use of holding charges. These are all serious matters and Mr. Calcutt and the Government have, I think, faced up to them.

So far as I understand Mr. Calcutt's report, in all of the eight cases he comes to the conclusion that the detention was unlawful. He takes the view that in the case of Jones the original arrest may have been lawful, whereas in the case of the other seven defendants the original arrest was unlawful because the evidence, I think, did not support it at that time. The Government are now announcing compensation to the seven who were unlawfully detained and unlawfully arrested on the grounds that they were unlawfully detained, but not to the eighth man, Jones, who was also unlawfully detained although he may have been lawfully arrested.

It is not for me to hazard a guess as to whether the seven are a little fortunate or the eighth is a little unfortunate, but it seems to me that the distinction is perhaps not really justified by the Government in the light of Mr. Calcutt's findings. The awards, the ex gratia payments, are being made because of the fact of unlawful detention. Mr. Calcutt has found that that is so in respect of each of the eight and I would therefore ask the noble Lord whether he would consider looking again at the case of the eighth man with those observations in mind.

The last observation that I wish to make is this. We shall never know in the last resort whether it was the defendants who were brainwashed in this case as a result of repeated interrogations. Perhaps I may be allowed to comment that sometimes jurors can be brainwashed. They can be brainwashed when repeated allegations are made day after day over a trial lasting some five months. One of the matters which perhaps the Government ought to look at is the quite inordinate length of this trial. I support entirely the jury system but I wonder whether, within the limits of the jury system, it is not possible to take steps to ensure that in future we do not have trials of this length and complexity.

Lord Trefgarne

My Lords, I am grateful to both noble Lords for their response and for their kind words about me personally. The noble Lord, Lord Graham—and I shall deal with as many of his points as I can—asked who was to blame. I think that the Statement made clear that we do not seek to apportion blame in this situation. I think that the principal difficulty arose from the ambiguity of the Queen's regulation to which I referred in the course of the Statement. There was undoubtedly room for more than one respectable interpretation of that Queen's regulation. That is why, as the Statement says, it has been withdrawn for the time being, and will be reissued if necessary after due consideration.

The noble Lord went on to ask about the point where Mr. Calcutt says that the pressures changed from proper to improper during the course of the detention of these men. Mr.Calcutt was not specific as to when he thought that happened but the noble Lord, I think, will be aware that at the trial of the young men concerned it was decided not to take account of evidence which arose after a certain point during the investigation. The noble Lord also asked about the alignment of civil and military procedures. Again, as the Statement indicates—and I recognise that the noble Lord has not had very long to study it—we are bringing in certain procedures following the Police and Criminal Evidence Act which I hope will mean, and certainly are intended to mean, that civil and military procedures are being further aligned in this area.

The noble Lord asked me who it was in the Ministry of Defence who authorised these prosecutions. Nobody in the Ministry of Defence authorised these prosecutions. Prosecutions are not for Ministers or for the Ministry of Defence; they are for the Law Officers of the Crown and it is they and they alone who take decisions in this matter.

Turning to the remarks of the noble Lord, Lord Wigoder, he asked about the breach of security. It is a fact that at the time we were pretty certain that a major breach of security had occurred. I must tell the noble Lord that nothing that has happened since that time has caused us to change that view. The noble Lord also asked about why we had distinguished between the case of Aircraftman Jones and the others in the Statement. The Statement goes into some detail on that point and I hope that the noble Lord will agree that it would perhaps not be appropriate for me at this moment to go further than that.

Lord Campbell of Alloway

My Lords, will my noble friend the Minister think it right, in view of the considerable adverse publicity given in the press and in the media at the time, to advert to paragraph 5.24 of the report, which says: My conclusion is that there are no grounds for criticising the Scots Guards in the way they handled the custody arrangements". Would it not be perhaps also right that, if these proceedings are reported, it should be made plain that those serious allegations were unfounded and were found to be unfounded by Mr. Calcutt? May I also give my congratulations to my noble friend the Minister on his elevation?

Lord Trefgarne

My Lords, I am grateful to the noble Lord for his kind personal words. It is indeed the case that Mr. Calcutt found those particular early findings to which the noble Lord, Lord Wigoder, referred in detail and which are recited in the Statement, and the Government are very naturally content with those.

Lord Elwyn-Jones

My Lords, perhaps I may exceptionally begin by commending the Government first of all on the decision to invite Mr. David Calcutt to conduct this inquiry, and Mr. Calcutt himself on the care he has taken to produce a report which, I confess, I had only a brief opportunity of looking at before this matter was raised in the House. It seems to me that the outstanding feature about which I should like to ask the Minister in this whole story is that at no time were these men told that they were entitled to legal advice and assistance.

It is not quite clear at what point they got any legal representation from non-lawyers in the force. The Police and Criminal Evidence Act had not come into existence but I hope it is now being applied. There was no requirement perhaps in military law that they should be informed; but in a matter of such gravity it is really quite astonishing that that was not brought to their attention. Is there any explanation of that? May I also ask to what extent did the commanding officers of these men in the Royal Air Force or indeed in the Army have any supervisory interest in or control over these matters? I do not know whether these questions can be answered at this point of time.

May I say that I also congratulate the noble Lord on his new appointment: it is good to see a fellow countryman so quickly recognised and accorded the advancement he deserves. May I ask the noble Lord: is the code of practice now being applied in the services one that has come into being under the Police and Criminal Evidence Act? The noble Lord has informed the House that it is intended, and perhaps he will tell us whether steps have been taken already, to make the code applicable in appropriate terms to the armed forces.

Finally, if I may, I should like to add a further commendation to the Government on announcing now, already, a decision to make ex gratia payments to the men concerned who have been wrongly treated? May I venture a word of caution? One or two observations that have been made during the course of our short discussion this afternoon must not be allowed to compromise the fact that these men were all acquitted and found not guilty. No review of the matters ought to be allowed to diminish the importance of that fact, for their own purposes.

Lord Trefgarne

My Lords, I am grateful to the noble and learned Lord for that intervention and also for his personal words. The noble and learned Lord asked specifically about the availability of advice to the young men concerned. I do not think I can do other than remind your Lordships that this was an inquiry of the greatest difficulty. It was clear to the investigators that a major breach of security had occurred and they clearly saw it as their duty to conduct themselves in the light of that belief. Indeed, it was because of that belief that the "need to know" principle was applied to a considerable extent to those who were responsible for their custody and for other matters relating to these young men. That is one of the matters upon which Mr. Calcutt has made a recommendation and it is clearly one that we shall have to consider very carefully. I think that was the essence of the difficulty on which the noble and learned Lord has put his finger. I hope he accepts that our undertaking to look at that particular aspect of the matter will clear up most of the difficulties he has referred to.

Lord Monkswell

My Lords, I, too, should like to congratulate the Minister on his promotion and to thank him for his Statement this afternoon. I should like to reiterate a couple of points that have been made already by previous speakers, and also to raise two others. The first is that it would appear the Government are somewhat hypocritical in their attitude to law-breaking, in the sense that normally their attitude to breaking the law is to throw people in gaol—the prison population is evidence of that—and yet here we have evidence that criminal acts have been committed and nobody is even being brought to trial, let alone punished. The second point concerns the apparent unfairness of the treatment to be accorded to the eighth defendant, who will not receive an ex gratia payment at this time.

The third point I should like to raise is that all this evidence, the result of this report, comes to us as the result of an acquittal in an official secrets trial. Given that our system of justice in this country should be not only fair but seen to be fair, it raises the question about previous official secrets trials and whether in any previous cases there have been unlawful acts committed prior to those by the authorities.

Finally, to reiterate the point made by the previous speaker, I think we must be very clear—and I hope the Minister can reiterate it from the Government Front Bench—that these persons charged under the Official Secrets Act were found innocent. Unfortunately, this afternoon there have been a couple of innuendoes (I put it no more strongly than that) that some guilt may attach. I hope the Minister will take the opportunity to refute that possibility.

Lord Trefgarne

My Lords, I am not sure that your Lordships would want to regard this afternoon as an opportunity for a review of the Official Secrets Act. There are of course a number of views held on that matter and I do not propose to make a contribution to such a discussion this afternoon: nor could I add to the view of the court, which of course was that the defendants were not guilty.

The Earl of Kinnoull

My Lords, I should first like to add my warm congratulations to my noble friend on his elevation to his new post; and may I at the same time ask a very simple question? The question is: what will be the future of the men concerned in this matter?

Lord Trefgarne

My Lords, I can tell my noble friend that four of the servicemen concerned, Lance Corporal Glass, Signalman Hardman, Signalman Tuffy and Senior Aircraftman Payne have already left the services on completion of their engagements. None asked for his engagement to be extended. A fifth serviceman, Senior Aircraftman Lightowler, has already left the Royal Air Force prematurely at his own request. Extremely careful consideration has been given to the future of the remaining three servicemen: Senior Aircraftmen Jones, Owen and Kriehn. These three servicemen are being advised today that the Air Force Board is being recommended to consider their discharge from the Royal Air Force. The reasons for that recommendation are being given in writing to the servicemen, and they are also being advised that they may make representations to the Air Force Board and use the redress of grievance procedure before the board comes to a final conclusion.

Lord Morris

My Lords, may I put two further queries to my noble friend? Am I right in recalling that some six months ago when the Statement was made announcing this inquiry a certain concern was expressed that the terms of reference of the inquiry should include the stage at which the Special Branch were brought in to assist the military authorities in their investigations? May I ask my noble friend, bearing that in mind, whether I am right in believing that at the stage of the Special Branch investigations into this matter, considerable pressure was bought to bear on some of the accused not to diverge from the stories they had previously given to the investigating military authorities?

Lord Trefgarne

My Lords, I am not sure that I am able to make any useful contribution to the details of the investigation of this matter, now so long ago. As for the contribution of the Metropolitan Police Special Branch, they are not of course within the purview of the Ministry of Defence. In any event, so far as I know, no complaints were made concerning their aspect of the matter.