Fourth Standing Committee on Delegated Legislation
Tuesday 16 July 2002
[Mr. Alan Hurst in the Chair]
Draft Terrorism Act (Cessation of Effect of Section 76) Order 2002
The Chairman: Due to the fire alarm, I am suspending the sitting until 10.45.
The Minister of State, Northern Ireland Office (Jane Kennedy): I beg to move,
That the Committee has considered the draft Terrorism Act (Cessation of Effect of Section 76) Order 2002.
May I say, Mr. Hurst, what a pleasure it is to serve on the Committee under your chairmanship? You have brought the sun with you. I look forward to attending future Committees with you, accompanied by equally good weather.
I start by drawing the attention of hon. Members to Lord Carlile's first report. Lord Carlile, the independent reviewer of the Terrorism Act 2000, recommended that we consider the need for section 76, and that we have done. We considered the issues carefully and consulted widely. The order repeals section 76 of the 2000 Act, which deals with the admission of confession evidence in the prosecution of scheduled offences in Northern Ireland.
Specifically, section 76 allows confession evidence to be heard in court unless the defence produces prima facie evidence that the confession was elicited by torture, degrading treatment, violence or the threat of violence. Repeal would replace the current standard for the admission of confessions with the standard found in the Police and Criminal Evidence (Northern Ireland) Order 1989, which allows confession evidence to be heard in court unless there is evidence that it was obtained through oppression or in consequence of anything liable to render it unreliable.
The distinction between section 76 and Police and Criminal Evidence Act 1984 standards of admissibility lies in the breadth of the term ''oppression''. Under PACE, ''oppression'' includes torture, degrading treatment, violence and the threat of violence, but it is not limited to them. There is case law that predates the introduction of the PACE standard and it can be used to determine the nature of oppression. However, the difference between the two standards would prove negligible in practical terms. The difference derives from the origins of the two provisions. Section 76 was introduced in 1973, when it was exceptionally difficult to use confession evidence in the Northern Ireland courts. Even self-confessed terrorists were not being convicted. A standard was therefore set that allowed confession evidence to be admitted to court unless
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there was evidence that the confession was elicited under specified forms of duress.
The details of the circumstances under which confessions could not be admitted were taken directly from article 3 of the European convention on human rights. The section has been passed down to us through various Northern Ireland (Emergency Provisions) Acts into the Terrorism Act 2000.
PACE introduced a new, higher standard for the admission of confession evidence for general use. That PACE standard applies to all non-scheduled offences in Northern Ireland and to all offences, including terrorist offences, in England and Wales. Although we are content that the standard set in section 76 is consistent with our international obligations, we no longer consider it necessary to preserve a distinction between the PACE and section 76 standards.
Lord Lloyd's 1996 report on terrorist legislation concluded that no evidence suggested that the courts were prepared to accept confession evidence that did not already meet the PACE standard.
Mr. Crispin Blunt (Reigate): While the Minister is on that point, will she inform the Committee whether the reverse is true and that, in a negative sense, Lord Lloyd was simply unable to discover whether courts were prepared to accept such evidence? Was Lord Lloyd aware of examples of courts rejecting confession evidence that the prosecution thought should be admissible?
Jane Kennedy: That is a useful intervention, but I am not aware of any examples. If there are any specific ones, I hope to provide them later.
Our 2000 review of the Diplock provisions reached the same conclusion as Lord Lloyd. Lord Carlile concurs, and he recommends in his recent report that the Government consider repealing section 76. We have considered carefully and consulted widely, and have concluded that now is the time to repeal. I am aware that some may say that it is not right, in the current circumstances, to repeal any part VII provisions. We are all aware that the security situation in Northern Ireland is not perfect, but we are committed to the Belfast agreement, and as part of that we are committed to removing the so-called emergency legislation, but only as and when it is safe to do so.
Importantly, the police agree with us that the use of the PACE standard will have no adverse effect on their ability successfully to prosecute terrorist suspects. I commend the order to the Committee.
Mr. Blunt: I join the Minister in welcoming you to the chair, Mr. Hurst.
I am quite prepared to say to the Committee I arrived undecided on how to approach the issue and what is the appropriate action for an Opposition Front Bencher to take. I wanted to listen to the Minister and to consider the quality of her arguments. Inevitably, if one is undecided on a matter pertaining to terrorism in Northern Ireland, as a default option one is inclined to support the Government. However, the Minister
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finished with the weakest part of the case for passing the measure now, which is the issue of timing.
The Minister said that the security situation is far from perfect. Indeed, it has gone much further than that. Sadly, it can properly be said to have been declining since the May 2000 Diplock report review and the publication of Lord Carlile's report. It is certainly not getting better. As Lord Carlile said in his report, there are still several defendants coming forward in Northern Ireland on scheduled charges. In 1999, 10 per cent. of the total appearing in Northern Ireland were charged with scheduled offences. In 12 per cent. of those cases, they pleaded not guilty to those charges. By 2000, that figure had risen in terms of the number of defendants who were fully contesting the scheduled charges put to them. Between 1999 and 2000, there was an increase in the number of defendants found not guilty of all the scheduled charges they faced.
That leads us to consider carefully any changes that we would make to the admissibility of evidence. There is the issue of the timing of the measure, and the wider message it sends. Then there is the issue itself, which turns on the difference between the standards for interviewing suspects that must be adopted under PACE and those that must be adopted under the European convention on human rights.
The Minister was right to point to the fact that, in a sense, the difference is narrow, certainly in terms of the meaning of the word ''oppression.'' The various definitions that she gave are in the 2000 Act—the provisions that we are invited to repeal—and are drawn from the convention.
If one was in urgent need of information and interviewing a terrorist suspected of a scheduled offence, how much would one want to be tied down by the practicalities of conducting an interview strictly under PACE? Plainly, oppression of the sort identified in the convention is wrong, and confessions would not be admissible if it were present. That is important for scheduled offences in Northern Ireland, because such offences are tried without the benefit of a jury. Therefore, we must address the additional question whether the judgments made by judges sitting in isolation without a jury will prejudice the defendant.
Lord Carlile's important conclusion, which agrees with what one would expect of the judiciary and what all the evidence tells us is the case, is in paragraph 2.4 of his report:
''In terms of the outcome of cases, there is no statistical evidence to justify the proposition that those charged with scheduled offences are at any disadvantage before the Courts or in the hands of the Director of Public Prosecutions compared with those facing non-scheduled offences.''
Plainly, that includes the operation of the law under the provisions that we are invited to repeal.
I intervened on the Minister about Lord Carlile's point that Lord Lloyd's review could find no evidence that the courts were prepared to admit status that they would not have allowed under PACE or, to reverse that and address the positive, that there were cases in which the Director of Public Prosecutions had sought to admit confession evidence that would not have been
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acceptable under PACE but was acceptable under the ECHR provisions, but in which the judges had rejected such confession evidence. If there were evidence of the positive, we would have heard about it not only from the Minister, but in Lord Carlile's report.
We then come to the case to maintain the law as it is and to reject the order. In examining the strength of that case, one simply has to turn to the passage of the 2000 Act. During consideration in Committee, when an amendment was tabled, the Minister responsible, who is now Minister of State for Defence, put the case against:
''The amendment would require the court to rule as inadmissible a confession that might have been obtained by oppression. Prolonged and robust questioning, which is habitual in scheduled offences, might rank as oppression, and it would be difficult for the court to accept evidence obtained in such circumstances. That would be an undesirable end to the process. Someone who commits a terrorist offence may—indeed, has to—be subject to robust questioning. As we have said previously, most terrorists are well trained and know what is expected and how to handle questions. In trying to proceed to a charge and conviction, the police must be robust in their approach. It is different from dealing with an ordinary criminal, who would be subject to usual questioning, and is not trained to deal with it. In such circumstances, needs must, as the hon. Member for Aylesbury said.''
He went on:
''There are variations between the clause and a normal provision, for good reason—we are dealing with a different type of criminal. These people are trained and have a different purpose from that of normal criminals.''—[Official Report, Standing Committee D, 3 February 2000; c.273.]
That takes us to the question whether it is appropriate to stand those arguments, which were presented in the House just over two years ago, on their heads and say that the time has come to withdraw the provisions because the situation has changed in Northern Ireland.
Although I am inclined to support the Government, I do so with the most serious reservations. If we come to a time at which scheduled offences are still taking place in Northern Ireland on an almost daily basis and the police need to interview suspects in a way that is not tied down by the regulations surrounding the conduct of interviews under PACE, we will have done ourselves a disservice by passing the order today.
It is right that the law in Northern Ireland should, as far as possible, be consistent with that of England and Wales, which is another argument in favour of the order. The terrorist threat in Northern Ireland is not yet absent, we are not yet in a time of peace and the terrorist threat to England and Wales remains considerable. If we go back to the bad old days and the peace process collapses, we in England and Wales will find ourselves as much the victims of attacks by Northern Irish terrorists as we have in the past. In that case, it would be necessary for the Government to examine whether confession evidence admissible under the ECHR, but not admissible because of the difficulties of conducting interviews under PACE, would require wider measures to be introduced to apply to the whole United Kingdom with the exception of Scotland, which will have its own jurisdiction.
I am slightly critical of the passage in which Lord Carlile adduces his reasons for coming to his
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recommendation, which we are likely to endorse today:
''The section 76(3) standard would be unsustainable in a situation of lasting peace.''
I have to say that I do not accept that. Section 76(3) is the standard of the ECHR, but for non-scheduled offences in England, Wales and Northern Ireland we have set ourselves a higher standard under PACE. That does not mean that section 76(3) is unsustainable in a period of peace. I would have thought that the convention includes perfectly proper standards for the protection of all our citizens. In the end, it is largely a matter of interpretation.
I am not an expert on how PACE works out in practice, because I am not a criminal defence barrister or a prosecution barrister and I have no legal qualification, so, in a sense, one must accept the Minister's view that the police have advised that the proposal will not cause them any particular difficulty as they now conduct all their interviews in line with PACE and there will be no practical, operational difference.
That being the case, the arguments for accepting the order marginally win out—the argument for consistency between England and Wales and Northern Ireland and the argument that the measure will make no practical, operational difference to the police. If there were any question of the police having advised that the measure would make an operational difference, matters would be different. I want the Minister's reassurance that she has clear, unequivocal advice from the police that the measure will in no circumstances make a practical, operational difference to them. With that reassurance, the Opposition will not oppose the order.