Examination of Witnesses (Questions 560
- 579)
WEDNESDAY 21 NOVEMBER 2007
SIR KEN
MACDONALD QC
Q560 Mr Winnick:
But of the large number who have been released without charge?
Sir Ken Macdonald: In which period?
Q561 Mr Winnick:
Well, in the last two to three years?
Sir Ken Macdonald: Perhaps I could
just check with Ms Hemming. We do not believe that anyone who
has been released without charge who has been arrested for a terrorist
offence has ever subsequently been charged with the offence in
respect of which they were released. We do not believe so, but
we cannot be absolutely sure.
Q562 Chairman:
Would you check and write to us, if that is not the case?
Sir Ken Macdonald: I think we
can certainly interrogate our computer system, but I am not sure
that all terrorism offences are flagged. If I can just say what
the problem is, many people who are charged as being terrorists,
if you like, are not charged with terrorism offences, but they
can be charged with conspiracy to cause explosions, with conspiracy
to murder, so it might be quite difficult for us to do that piece
of research exhaustively, but we can certainly go back to the
Counter-Terrorism Division and ask people to rack their brains
and come up with any examples they can recall of people who have
been released and subsequently charged. My strong feeling is that,
if it had happened, we would remember it because it would be a
fairly startling thing.
Q563 Mr Winnick:
We could save you a lot of trouble, Sir Ken, by putting it down,
if necessary, in a parliamentary question.
Sir Ken Macdonald: We will do
our best to remember.
Chairman: That would be very helpful,
thank you.
Q564 Mr Winnick:
Sir Ken, what I found extremely interesting and informative in
the evidence which you gave was the earlier remark you made about
reasonable suspicion. Now, the fact that someone has been released
after being held, released from detention, and not charged and,
say, that person has been held, as in some cases has been the
position, for 15, 20 or 22 days and no charge has been made regarding
reasonable suspicion, would that not indicate that, having been
investigated, really there was no evidence to support any charge?
Sir Ken Macdonald: Well, it certainly
would indicate there was no evidence to support a charge, otherwise
the charge would be made, but people are arrested for different
reasons. Some people are arrested as a result of intelligence
material which cannot be deployed in criminal courts and possibly
it might be intercept material, it might be informant material,
it might purely be intelligence material, so sometimes people
are arrested on suspicion on the basis of material which cannot
be deployed in court. After they are arrested on suspicion on
that basis, an attempt is made to see if there is any evidence
which can be deployed in court and sometimes when that fails,
in spite of suspicions which are not evidence-based, they might
have to be released.
Q565 Mr Winnick:
Can I put it to you as a layman, Sir Ken, that, if someone is
being held within the 28-day period and the argument of the police
and the Government is that 28 days is not sufficient because of
all the reasons that you are familiar with which the Government
and the police have advanced, having been held for a lengthy period
of time, up to 28 days, and there is a pretty strong feeling and
more amongst the police that this person should be charged, but
the evidence is not there at the moment, are you telling us that
a charge of reasonable suspicion can be made?
Sir Ken Macdonald: And has been.
Q566 Mr Winnick:
Has been made?
Sir Ken Macdonald: What the test
says is that the threshold test is applied to those cases in which
it would not be appropriate to release a suspect on bail after
charge, but the evidence to apply the full code test, which is
the realistic prospect of conviction, is not yet available. The
threshold test requires Crown prosecutors to decide whether there
is at least a reasonable suspicion that the suspect has committed
an offence. In those circumstances, he can be charged, but the
prosecutor has to consider the likelihood of further evidence
being obtained, the time it would take to gather the further evidence
and the charges that that further evidence is likely to support.
If the further evidence is not forthcoming and the full code test
cannot be passed, then the prisoner will have to be released.
Our experience has been that in every case where a terrorist suspect
has been charged on the threshold test, the evidence to justify
the full test being passed has arrived, the full test has been
applied and the matter has proceeded to trial.
Q567 Mr Winnick:
Does that not tend to undermine the case for extending the 28
days? The very fact that there are these provisions and the likelihood,
and the police are pretty strongly of the view, that evidence
will be forthcoming, they cannot be certain obviously, but there
is this provision which you have just explained again to the Committee,
does that not rather undermine the view that 28 days is totally
inadequate and we need more to protect our country?
Sir Ken Macdonald: First of all,
it is not the police view which counts at this time, it is the
prosecutor's view because it is the prosecutor who makes the charging
decision, and whether it undermines the case is really a matter
for your judgment rather than mine. I do repeat, there are respectable
arguments for an extension and I respect those arguments. Our
experience has been that 28 days has suited us quite nicely.
Q568 Margaret Moran:
Obviously you have to deal within the rules as currently laid
down. One of the issues that you raised, and I just want to clarify
really, is that obviously the current legislation does not allow
intercept evidence.
Sir Ken Macdonald: Yes.
Q569 Margaret Moran:
Can I ask you to speculate on whether, if you were able to use
intercept evidence, that would change your view as to whether
you would need beyond 28 days?
Sir Ken Macdonald: I do not think
so. I think the likelihood is that, if we had intercept evidence,
it would be quite a powerful tool and might lead to charging decisions
occurring more swiftly rather than taking longer because obviously
the material would be available to you from the moment of arrest
because people are listening to it. The experience in other jurisdictions,
it seems to us, has been that intercept evidence is an extremely
valuable tool in criminal investigation and in criminal prosecution.
The Americans regard it as indispensable, the Australians regard
it as indispensable, everyone who uses it regards it as indispensable
and we think it would swiftly become very useful in our jurisdiction
and would probably, in our estimate, result in us being able to
charge people more quickly, not less quickly.
Q570 Chairman:
Have you actually briefed the Home Secretary on your views? Has
she sought your views on the extension?
Sir Ken Macdonald: We have had
communications with the Home Office, but not with her.
Q571 Chairman:
Have you met the Home Secretary herself and spoken to her about
this?
Sir Ken Macdonald: No.
Q572 Chairman:
Have you met the Prime Minister and spoken to the Prime Minister?
Sir Ken Macdonald: No.
Q573 Chairman:
Have you met the Metropolitan Police Commissioner and spoken to
him about this?
Sir Ken Macdonald: Well, I know
that Ms Hemming has conversations with—
Q574 Chairman:
But have you met Sir Ian?
Sir Ken Macdonald: No.
Q575 Chairman:
So you have not met the Home Secretary, the Prime Minister or
the Metropolitan Police Commissioner?
Sir Ken Macdonald: No.
Q576 Chairman:
Is that surprising?
Sir Ken Macdonald: I do not think
so.
Q577 Mrs Cryer:
Sir Ken, could you comment on the implications of the proposal
to allow suspects to be questioned in terror cases after charge?
Further on from that, does the CPS foresee any difficulties at
all if someone charged with a lesser offence was then held for
questioning on a more serious offence, but subsequently not charged
with that offence?
Sir Ken Macdonald: Well, we strongly,
and I strongly, support a power for the police to question individuals
after charge. Of course they can do that anyway, so long as the
individual consents, but what we want is a power to question individuals
after charge in the associated context that, if the individual
declines, an inference can be drawn against that individual by
a subsequent jury. At present, if you decline to answer questions
about a charge after you have been charged, the jury cannot draw
any inferences, so we think that the same rule should apply to
questions after charge as applies to questions before charge.
It is quite important that there are not any misconceptions about
this. It is always open to the police, if they charge someone,
to go and question someone about a completely different offence
that comes to light. What this power will allow the police to
do is to question somebody about the very case that they have
been charged with and for an inference to be drawn against that
individual if they decline to answer, and I strongly support that
reform; I think it would be very useful. Can I explain why? As
we have established during this session, these are complex investigations
in which evidence comes to light over a period of days, weeks
and months. It seems to us obviously right that if important evidence
against an individual comes to light after he has been charged,
the police should have an opportunity to put that evidence to
the individual to get his response to it, and if he refuses to
give a response the jury should be entitled to draw an adverse
inference against him for refusing to respond.
Q578 Chairman:
Do you think there is a consensus emerging about post-charge questioning?
Sir Ken Macdonald: I think very
few people oppose this, Chairman. I have personally supported
it for years. I supported it when I was at the Bar; I always thought
this rule was a bit Victorian in nature.
Q579 Chairman:
The worry for some is that it might be used in counter-terrorism
cases but then it might be extended to the general criminal law
and, therefore, what becomes a specific then becomes a general.
Sir Ken Macdonald: I do not see
why it should not be. I would support it being a general rule
in our system, that it should be possible to question individuals
after charge. Of course they have a lawyer present and of course
they have the right to remain silent, but if they remain silent
let the jury know about that and draw an adverse inference if
the jury think it is right to do so.
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