Examination of Witnesses (Questions 360-379)|
25 JANUARY 2005
QC AND MR
Q360 Mrs Dean: How can you overcome that
reluctance to complain if people think they have been dealt with
Mr Hardwick: There are a number
of things that we can do. Firstly, we have a very extensive programme
going on at both national and local level to make contact with
Muslim community and faith groups to explain how the system works.
We are looking at trying to create gateways or complainant access
points, so it may well be that people may not know very much about
the Independent Police Complaints Commission or they may not feel
very confident about us but they may have a community organisation
or a mosque or a faith-based organisation that they would feel
more confident about going to. We can develop the competence of
that organisation then to advise their community member about
how to progress their complaint, how the system works and what
outcome they could look for. Often the best option for the lower
level things is an informal approach that one would think could
be dealt with in hours or days rather than months or years where
often what people want is an explanation of what happened. It
includes what was said earlier about outcomes, about does the
person who has been stopped (who might be blameless if it is a
random situation) understand why that has happened and have an
opportunity to ask questions and do they feel they have been dealt
with courteously and properly.
Q361 Mrs Dean: Are police forces responding
to your calls to investigate complaints more quickly.
Mr Hardwick: It is still early
days. We think there is an improvement in the rate at which complaints
generally are being dealt with. To some extent there has been
more progress with the higher level complaints over which we have
direct control than the mass of lower level complaints, but I
am confidentand this is maybe a rash thing to saythat
we will be able to make a significant reduction in the amount
of time it takes to resolve complaints. I think key to that is
improving the system of local or informal resolution which is
often a better way of dealing with that and we are in the process
of dealing with statutory guidance at the moment which I hope
will make that a more robust and satisfactory process.
Q362 Mrs Dean: We have had witnesses
who have told us that complaints have not risen in line with the
rise in stop and search. Do you agree with that?
Mr Hardwick: They have not risen.
Complaints have not risen in line with the increase in the number
of stop and searches. I agree with that. What is more difficult
is to explain why that is the case. I suspect, as I say, it is
about confidence in the system rather than anything else.
Q363 Mr Clappison: Could I perhaps ask
Mr Beckley first of all on behalf of ACPO, to deal with the perception
which has been put to us from some quarters that a disproportionate
number of those arrested are released without charge. What is
your view on the statistics in this area?
Assistant Chief Constable Beckley:
As with many statistics, they are liable to be used selectively
and, to be fair, they are liable to be used selectively on all
sides. There are two or three factors here. One is there are something
like about 70 cases that are currently working their way through
courts at this moment, so there are a large number of cases where
outcomes have yet to be seen, but additionally out of those that
have been arrested about half have been subsequently charged,
not necessarily for Terrorism Act offences but they are still
very serious offences, things like conspiracy to commit murder
or certain weapons offences.
Q364 Mr Clappison: Could I stop you there
because I think we need to be slightly clear about the technicalities
of this. Although it might not be a charge under the Terrorism
Act, are the offences to which you have just referred offences
which have a terrorist element but are charged as offences not
under the Terrorism Act but under the general law?
Assistant Chief Constable Beckley:
That is right and yet the outcome figures that are commonly quoted
are about how many terrorist offence results there are, ie, how
many Terrorism Act offences are charged and subsequently convicted.
The reality of this is, inevitably, because they cover a whole
range of criminality you might arrest under the Terrorism Act
and then find considerable fraud behind it, potentially funding
terrorism but they will be charged under the Theft Act.
Q365 Mr Clappison: Fraud related to terrorism?
Assistant Chief Constable Beckley:
Related to terrorism, yes.
Q366 Mr Clappison: Fraud related to terrorism
or fraud unrelated to terrorism?
Assistant Chief Constable Beckley:
Fraud often related to terrorism. On occasion there may be fraud
unrelated to terrorism but the perception often is of these pre-planned
arrests being fishing expeditions, which was a phrase used a little
earlier on in a slightly different context and this is wrong.
Each pre-planned set of arrests is subject to the most rigorous
community impact assessment. We look at it from all contexts as
to why do we need to arrest, first of all, and then what is the
impact on communities if we did and, likewise, what is the potential
outcome. Ultimately, a 50% charge rate against arrests is pretty
good compared to any other type of criminality.
Q367 Mr Clappison: Non-terrorist criminality?
Assistant Chief Constable Beckley:
Mr Macdonald: Can I add something
to that. There is always an attrition rate between arrest and
charge and the reason is partly that the tests are different.
The test for arrest is a reasonable suspicion that an offence
has been committed. The test for a charge for a prosecution is
a realistic prospect of conviction and that it would be in the
public interest to prosecute. That is a much stricter test. What
happens is the police arrest someone and send us a file or consult
us and we decide whether there should be a charge. Sometimes we
decide there should be, sometimes we decide there should not,
but the most serious terrorist charges are not Terrorism Act offences.
They are conspiracy to murder or conspiracy to cause explosions.
These are not Terrorism Act offences. So we have a situation where
there is bound to be a rate of attrition anyway because the test
is different. Secondly, very many of these individuals will be
charged with terrorist offences which are not Terrorism Act offences.
Thirdly, as Mr Beckley has said, very often it is discovered following
arrest that in fact there is not sufficient evidence to prosecute
for a terrorist offence but the individual (who is still believed
to have been involved in that sort of activity) can be prosecuted
for credit card fraud or possessing false identity documents or
offences of that sort.
Q368 Mr Clappison: Given those two points
you have made about the attrition rate from arrest to charge because
of the difference between the two of the tests and also the distinction
between Terrorism Act offences and other offences which are related
to terrorism, what reflections do you have on the number of those
arrested who are eventually charged with offences of a terrorist
nature, whatever distinction is made about it, and what the public
would regard as terrorist offences?
Mr Macdonald: As Mr Beckley has
said, around 50% of the people arrested under the Terrorism Act
later go on to be charged with some offence and that is about
right for serious crime. I say about right, it is about the sort
of figure you have in other areas of complex crime. I just think
these figures about arrest versus prosecution have to be treated
with real caution because the point that is being made by a lot
of people who quote them is not an accurate point.
Q369 Mr Clappison: Can I put another
point to you relating to that but moving on a stage further to
actual conviction as opposed to arrest and charge. It has been
put to us that a lot of those who have been convicted under the
Terrorism Actmost of them according to one sourceare
white non-Muslims. What reflections do you have on that?
Mr Macdonald: Arrests under the
Terrorism Act include people arrested for what is called international
terrorism and people who are arrested for Irish or domestic terrorism.
Traditionally of course most people arrested for terrorism in
this jurisdiction were Irish. That reflected the reality of terrorism
in the 1970s, 1980s and 1990s. There are still some what you might
describe as Irish terrorist cases involving members of the Real
IRA or other organisations who have not signed up to the peace
process. They are declining as a proportion. The reality is that
as far as Terrorism Act offences are concerned a much greater
proportion now are non-white although there is quite an element
of prosecution in this area around Turkish and Kurdish areas.
So there a number of arrests made of people of Turkish or Kurdish
Q370 Mr Clappison: Do you have any further
thoughts you want to share on the subject on the balance of people
who have been charged and convicted from your position as DPP?
Mr Macdonald: The conviction rate
in terrorist cases traditionally is quite high. In Irish terrorist
cases it was extremely high. It was very unusual for people to
be acquitted. Those cases were very different. You would often
have someone who was arrested driving through London in a lorry
with a bomb in the back or someone who was arrested assembling
a bomb in a bed sit or someone who was arrested with Semtex in
the boot of his car. These cases are different. The sorts of cases
that are being brought now are based much more on circumstantial
and inferential evidence. It is often evidence of communication
by internet, of fundraising, of sending money abroad, of collecting
equipment in one way or another. They are much more difficult
to investigate, they are much more difficult to prosecute, and
I would not be at all surprised if it turns out that the conviction
rate in these cases is lower than the conviction rate was in Irish
terrorist cases but that is a reflection of the sorts of evidence
which are gathered in these cases rather than anything else. I
think the conviction rate is still likely to remain pretty high
but it is very early in the process. We have got a number of cases
which have come to trial, some of which are being tried at the
moment and a number of extremely serious cases which will be coming
up over the next two years or so. I am sorry not to answer you
directly but I think we are going to have to wait a year or two
before we come forward with reliable figures about conviction
rates in cases involving this sort of international terrorism.
Q371 Mr Clappison: It may be that historians
will be interested in the position with Irish terrorists in the
past but can I ask you about the present: are you confident that
you are successful in balancing the rights of the accused in terrorism
cases with the public interest?
Mr Macdonald: I think we are.
We have taken a very strong position as a prosecuting authority
and I have said publicly that prosecutors have to be loyal to
due process. We take the view that what the public are interested
in is safe convictions in which they can have confidence. I am
sorry to slip back into history again but we do not want to find
ourselves in the position again we found ourselves in in the 1980s
of suddenly realising that people who had been in prison for very
many years had not committed any offence. We are very conscious
of that. We support due process, we support fair trials, and I
am quite satisfied that the systems we have in place at present
guarantee those rights to people who find themselves in our courts.
I have said publicly that if you want to change the criminal trial
process or interfere with it you have to do so with very great
Q372 Mr Clappison: Are there any procedures
you have in place that you would regard as special procedures?
Mr Macdonald: Yes, we have specialist
prosecutors who work in this area. We have a senior cadre of prosecutors
who work on these cases. They are very experienced and they are
managed by senior lawyers who oversee their work. The work is
reviewed. I think it is conducted with skill and with care. I
look at it closely myself. I have close contact with prosecutors
working in this area. One of them is with me today and I am satisfied
from everything I have seen since I have been in this post for
a year or so that this work is conducted within the CPS with conspicuous
skill, and we aim to keep it that way.
Q373 Mr Clappison: Thank you. Could I
move across to Mr Hardwick and ask if you have received any complaints
about unfounded arrests and detentions under the Terrorism Act?
Mr Hardwick: Again, we have had
a small number of complaints about that. What we have said to
forces is that we do want to make sure they are addressed properly
so we have used our powers to call in complaints arising from
an arrest under the Terrorism Act. Since we have done that we
have had about four or five complaints made. We do have a special
process for dealing with all of those. Those decisions about handling
would be made by myself personally with advice from our senior
professional advisers and the cases that we have at the moment
are all ones that are in progress.
Q374 Chairman: Just a couple more questions
if I could, Mr Macdonald. Of the 50% of arrests that are leading
to charges, how many of those charges are what you might call
simple immigration offences as opposed to other types of crime
like credit card fraud and the more organised type of crime we
are talking about?
Mr Macdonald: I do not have a
breakdown of that although I am sure we could try and research
this for you and provide the Committee with some figures. We all
have slightly different figures here, I am afraid. We have somewhat
different figures from ACPO and so does the Home Office. They
are general ball-park figures. We are aware of around 460 arrests
for international terrorism. That is this type of terrorism since
9/11. Of those our figures demonstrate that about 54 were charged
with Terrorism Act offences and 236 with other offences. Those
other offences will include forgery, identity fraud, murder, conspiracy
to cause explosions, and so on and so forth. What I cannot tell
you at the moment is precisely how those 236 are made up.
Q375 Chairman: You would agree though
that it is relatively easy to defend arresting and charging somebody
if they turn out to be guilty of credit card fraud or a serious
crime of that sort; less easy perhaps in the context of community
relations to justify the use of terrorism powers to arrest somebody
where you end up doing them just because they have overstayed
on their visa.
Mr Macdonald: If people got the
idea that these powers were being used to conduct sweeps through
communities to pick up people who were here illegally for example,
that would be hugely undermining of public confidence. I am not
suggesting that is the case for one moment. I am sure it is not
the case. You also have to bear in mind that on occasionsand
I am aware of such cases myselfindividuals who are arrested
under the Terrorism Act and who are believed to be involved in
terrorist activity and in respect of whom that belief remains
even after the decision is taken that we cannot charge them with
Terrorism Act offences, they will nevertheless be charged with
what on the face of it might appear to be pretty minor offences.
It does not mean that we have changed our mind about their criminality.
What it means is we have come to a determination that we do not
have the evidence to proceed on a particular basis. That is not
always the case but it will sometimes be the case.
Q376 Chairman: The Home Secretary is
expected to make his decision fairly soon about the follow-up
to the Belmarsh decision. One possibilityand it is only
thatis that you might in future be asked to submit cases
to special courts which sit, for example, without juries in order
to be able to take into account the type of evidence that cannot
be heard in those cases. You made a comment a moment ago about
changing the processes of justice. How would you feel if in order
to bring more people within the network of prosecution for terrorist
offences you had to prepare cases for trial by vetted judges and
Mr Macdonald: What the Government
does in this area is a matter for the Government. We have been
asked to contribute to the Home Office review into these questions
which is going on at the moment. I have said in the past that
it is important not to throw the baby out with the bath water.
I am not sure that open, liberal societies protect themselves
against terrorism by becoming closed and illiberal. It is very
important that we maintain public confidence in the administration
of justice. On a pragmatic view one of the best ways to avoid
miscarriages of justice is due process because in a pragmatic
sense it is a collection of rules which is designed to ensure
so far as possible that innocent people are not convicted. It
is obviously also extremely important in this area, perhaps more
than in any other, that guilty people are convicted and that the
activities of guilty people when they can be disrupted are disrupted.
So the Government has to find the balance. What I have done in
the past is to caution against changes which are not contemplated
with great care and with very cool heads.
Q377 Chairman: It might be more satisfactory
to convict somebody properly of a terrorist offence by taking
intelligence into account in a special court than to only charge
them with a minor immigration offence because that is all you
can do in the current system?
Mr Macdonald: Yes, there are certainly
strong arguments for that. I must stress this is a balance for
the Government to find.
Assistant Chief Constable Beckley:
Just to add a bit of clarification; only eight out of 165 were
detained under immigration in 2004.
Chairman: That is very helpful. Thank
you very much indeed. Mr Prosser?
Q378 Mr Prosser: I want to talk about
the media and alleged police tip-offs. We all know about the particular
incident in Manchester when a raid took place and the media were
there. We also had it on television in real time. The Muslim Council
of Britain have referred to that incident in particular and said
how damaging it was to local community relations. They have suggested
that the only motive for that happening was to inflame Islamophobia
within the community and they were distressed to find that when
they made approaches to the Chief Constable of Manchester he acknowledged
that it could have been someone from inside his forceand
most of us would probably agree with thatbut he went on
to say it was impractical to investigate it. What effect do you
think such tip-offs have on local communities and what can be
done to investigate those particular incidents when they occur?
More importantly, how can we stop them happening in the future?
Chief Constable Baggott: The first
thing to say is that tip-offs are extremely rare in the context
of operations. Clearly tip-offs that are unhelpful and damaging
to community relations are to be condemned. I would want to say
that very clearly and unequivocally. Tip-offs which themselves
undermine an operation, undermine confidence and compromise due
process cannot be right. I know my colleagues at ACPO would share
that view very clearly indeed with me. When it comes to investigating
tip-offs they are difficult to investigate. I have been the head
of professional standards in a major force for five years and
you are always into a reactive investigation. Identifying who
has tipped off journalists is incredibly difficult because journalists
themselves are not necessarily the most forthcoming people in
terms of revealing their sources. They are difficult investigations
to be managed but they need to be managed thoroughly and to the
very best positive effect. Tip-offs are not good. It is as simple
Q379 Mr Prosser: And there any means
of preventing them?
Chief Constable Baggott: The means
of preventing them is through very tight management of confidential
information and planning before you lead to the operation itself.
It is a management of information issue and ensuring there are
very tights boundaries around that and very clear expectations
on colleagues and a very clear spelling out of the consequences
if information is not managed in an ethical way.
Detective Superintendent Tucker:
I want to reinforce that point about how few leaks there have
been. You mentioned one case but there have been a number of cases
this year that would have been of considerable interest to the
media. There were no leaks around those cases and the official
press releases put into the public domain has to balance between
the amount of information that we should give but also the rights
of the people who are going to be charged in any judicial process
that may follow. The press strategies there were not undermined
by leaks in those other cases. It is a very small number of cases
and generally the information is kept very tight.
1 Note by witness: Statistics on complaints
about stop and search under the Terrorism Act have not been collected
nationally for past years. There is no evidence of a significant
rise, as complaints categorised by the Home Office as stop and
search generally have not risen markedly. However, it is not clear
whether complaints about stop and search under the Terrorism Act
would have been recorded under this category or would be hidden
in other categories Back