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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 43-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
THE GOVERNMENT'S COUNTER-TERRORISM PROPOSALS
Wednesday 21 November 2007 RT HON LORD GOLDSMITH QC Evidence heard in Public Questions 490 - 592
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Wednesday 21 November 2007 Members present Keith Vaz, in the Chair Mr Jeremy Browne Mrs Ann Cryer David T C Davies Mrs Janet Dean Margaret Moran Gwyn Prosser Bob Russell Martin Salter Mr David Winnick ________________ Witness: Rt Hon Lord Goldsmith QC, a Member of the House of Lords, former Attorney General, gave evidence. Q490 Chairman: Can I welcome Lord Goldsmith who is to give evidence to this Select Committee. As you know, the Committee is currently conducting an investigation into the Government's counter-terrorism proposals. We have heard evidence from the Metropolitan Police Commissioner, the Home Secretary and from groups such as Liberty and Justice. Why we thought it would be helpful to hear from you is that of course you were the Attorney General at the time, though not specifically responsible for this issue, but you were the Attorney General at the time that this last went through Parliament. Lord Goldsmith: Yes. Q491 Chairman: Can you, first of all, tell the Committee, do you think that Parliament should extend the 28-day detention period? Lord Goldsmith: This is an issue at which I have looked very hard, especially in the light of the two big investigations, including the alleged airline plot which took place while I was still Attorney General in the summer of 2006, and I looked very hard at whether that demonstrated that 28 days was not sufficient. Although, as the Committee will very well know, the decision went up to the wire, having looked carefully at this with the help of the Crown Prosecution Service and indeed the police, I was not persuaded that those episodes showed that 28 days was insufficient and I did not subsequently see any evidence during my time, and I recognise I have been out of government for several months and things may have changed, but I did not see any evidence during my time to indicate that longer than 28 days was necessary. Q492 Chairman: But you were part of the Government at the time when the 90 days was being proposed and obviously you took collective responsibility for that decision. Can you just clear up the point that it has been suggested that you offered to resign from your position if the 90 days was being pursued. Is that correct? Lord Goldsmith: The position, and I do not believe in making threats, is that, if the 90-day proposal had come from the Commons unamended, I would have not found it possible to vote for it in the Lords and that would have had an obvious consequence in terms of my position within government. Q493 Chairman: Did you make that clear to the Prime Minister at the time the proposals were made to go for 90 days? Lord Goldsmith: Well, it was well-known within government that I was not happy with this, but, as I say, I do not think it is right to make threats, particularly if you are in a position of an unelected member of Parliament rather than in the House of Commons. Q494 Chairman: Certainly, but you were then the Attorney General which is a pretty important position. Lord Goldsmith: Yes. Q495 Chairman: We are hearing later from the current Director of Public Prosecutions about these matters and you may or may not have seen the evidence that was put before us by Sir Ian Blair. The argument the police are putting forward is that they need more time in order to investigate a very complex set of networks and information, that computers need to be looked at, information needs to be sorted and, therefore, 28 days is really not enough. As Attorney General, you must have had these arguments put to you when you were last in post. Do you think that kind of argument has merit? Lord Goldsmith: Well, these were the arguments that persuaded the Government and indeed me that some extension to the then time limit was necessary, and of course it has gone up from seven days to 14 days and then to 28 days. I personally was persuaded by the argument that the complication of encrypted computers, of following international links and forensic evidence justified that extension, but the question then becomes: up to what point? I think there is an important constraint that needs to be borne in mind which is not always remembered in this debate, that to keep somebody in detention without charging them, surely you need to continue to have reasonable suspicion, even if you cannot prove it at that stage, that they have committed an offence. Indeed, I would think that that is probably required by our international obligations. The question to my mind is: how likely is it that you get to a period like 28 days, you have been unable to find evidence of any offence, but you still believe that there is reasonable suspicion that this person committed an offence and indeed that by continuing to detain them, because this must be another requirement, you are going to find evidence with which to charge them with an offence? To my mind, that is a constraint which means that there needs to be a limit to this and, whilst any limit is arbitrary, I thought we were really in the right place with the decision which the Commons ultimately took on the time limit. Q496 Chairman: So you were happy with the time limit that was proposed last time? Lord Goldsmith: I was happy with the time limit that was decided upon last time. I was not happy with the time limit that was proposed. Q497 Chairman: By the Government? Lord Goldsmith: Yes. Q498 Chairman: Of which you were a part? Lord Goldsmith: Yes, as I have indicated. Q499 Mr Winnick: Lord Goldsmith is bound to be surprised. You were the most senior law officer at the time as Attorney, I think that would be the right way to put it, and there was no indication that you disagreed with the Government's proposal to increase the detention period to 90 days, yet exactly a year later, November last year, you were on record as saying that you had seen no evidence to support an extension beyond 28 days. Lord Goldsmith: Yes. Q500 Mr Winnick: Are you surprised there is such surprise at what has occurred? Lord Goldsmith: First of all, I think there was a degree of knowledge as to my unhappiness outside government about this and there were a number of press reports, but I think it is important to emphasise that the view I took was not a view based on legality or illegality. If I had taken the view that the proposal for 90 days was illegal, I would have had to say that and would not have been able see the Government pursue it. To some extent, this was a question of what the right policy was and what the evidence was and my views were known. It became apparent that this was a matter of obviously importance to members of the Commons, including, I very well remember, you yourself and that was a debate which needed to take place. Q501 Martin Salter: Lord Goldsmith, on the same theme, obviously we have seen with successive Terrorism Acts the period of pre-charge detention increase from 48 hours to seven days, from seven days to 14 days, and in fact when you were in government from 14 days to 28 days. The case which has been put before us by the police, in particular, is that the worst possible time to legislate is in the aftermath of a terrorist atrocity and that there is a precautionary principle at play here. Was there a precautionary principle at play when we increased from 14 to 28 days or was there evidence that we had already gone past the 14-day barrier and that terrorist suspects were being released and were going on to offend? Lord Goldsmith: Well, I believe that an analysis of the evidence, modern techniques of terrorism and the way that conspiracies were being conducted, did produce a convincing case that the 14-day limit was inadequate to enable the police, with the assistance of the agencies and then the Crown Prosecution Service making decisions, to analyse and to be able to reach a proper concluded view, so I believe there was evidence to that effect. Q502 Martin Salter: So are you saying to us that terrorist networks have stopped becoming more sophisticated ---- Lord Goldsmith: No. Q503 Martin Salter: ---- and that there will come a point in time when it will not be credible for that limit to need to be raised still further? Lord Goldsmith: The view that I have expressed is my belief based on looking, at the time that I was in government, at the evidence that was available as to the complexity and whether or not the time of 28 days was sufficient and, in my judgment, it was and I did not see the case for saying that it should be extended. I fully acknowledge that you may now have seen material or that there may be material available which may give rise to a different conclusion, but I have not seen it. Q504 Martin Salter: There are a number of options, as you will be aware, that the Government has put forward and there need to be put in place, or it has been suggested that there need to be put in place, arrangements for an external review of the way the police exercise their powers of pre-charge detention. It has been floated that the Metropolitan Police Authority would be the appropriate body to carry this out, and that has been recommended by the Joint Committee on Human Rights. Do you think that is appropriate or do you think that the role played by the independent reviewer, Lord Carlile, could be either changed or expanded to conduct this task? Lord Goldsmith: I do not know whether I have got a very refined view on who should conduct the task. I see the importance of being able to review the material. Q505 Martin Salter: But you have no fixed view as to whether it should be the Metropolitan Police Authority or Lord Carlile or anybody else? Lord Goldsmith: No, I do not. Q506 Chairman: What was your unease at the Government's position on the last occasion shared by other government ministers? Lord Goldsmith: Unease, I do not know. I do not know that anyone else was quite in the position that I was in. Q507 Chairman: But you did discuss this with the Prime Minister? Lord Goldsmith: The Prime Minister knew of my concerns, but, as I have said, I do not think it is for a member of the other House, as it were, to try and put a Prime Minister over the barrel and it was quite obvious that there was going to be in the proper place, in the House of Commons, an important debate about this and, if that had gone one way, I would have been in one position. As it was, I was not. Q508 Gwyn Prosser: Lord Goldsmith, there has been a lot of concern expressed, quite rightly, about the possible impact, and indeed perhaps the past impact, which extending from seven to 28 days, et cetera, has on local communities. What is your view of the impact a further extension would have? I am sure it would not enhance community relations, but to what extent would it damage community relations? Lord Goldsmith: I regard this as a very important consideration. It seems to me that in the fight against terrorism it is not just tough police powers that may be necessary, it is also winning hearts and minds and part of that is sending out a message about the sort of society in which we live, which is one based on tolerance and justice and fair play. I have a concern that, if one appears to send out a message, even though it is not the message that is intended, that actually we are a society that is prepared to lock people up for a significant period of time without charge and then release them after what would be the equivalent of a reasonable sentence, that will actually damage that struggle. It is for others to judge where the balance lies and these are all issues in relation to balance, but it does seem to me that is an important issue which is why I frame the question for myself in terms of, "Is it necessary to do this?", not simply, "Might it be helpful to do it?" which would be a different test. I suggest the test is whether it is necessary to do it because, if you are changing important principles of civil liberties, like freedom, liberty, detention without trial, then it is important that you do have a necessity to do so. Q509 Gwyn Prosser: Do you have any sympathy with the thoughts of Sir Ian Blair who says that an important element, even perhaps more important than the avoidance of extensions of detention, would be to engage more with local communities and explain, and talk to them about, the values of bringing that tiny minority of extremists to book and connect that with the need sometimes to detain beyond 28 days? Do you have any sympathy with that view? Lord Goldsmith: I certainly have sympathy with the view that it is important to talk to these communities about the way that powers are being used, whether it is 28 days or whether in the event it is longer, and I commend, if I may, the work of the Crown Prosecution Service who were at pains to go out into communities and to try and explain how decisions to prosecute were made and how decisions to continue to detain were made so that it was apparent that these were decisions made on the basis of an objective view of the evidence and not, for example, any form of stereotyping. I think that is important and needs to be continued and perhaps increased. Q510 Gwyn Prosser: What do you say to those who say that it is UK foreign policy? Lord Carlile has been on record as saying this, that UK foreign policy has a far worse impact on community relations than any discussion or extension of detention? Lord Goldsmith: I do not think I am in a position to judge the relative weight of these arguments. We have seen certainly evidence that after detentions, even under the present position, have come to their end and people have been released, that leads to statements being made about what sort of society we are in, and I suppose that has an impact on some within those communities. Q511 Mr Winnick: Bearing in mind that, once the 90-day proposal was rejected, no one as far as I know, be it in the Commons which I do know, but also in the Lords, voted to retain the status quo at that time of 14 days, that no one voted to keep the 14 days, would you agree, Lord Goldsmith, that there is in fact a consensus in both Houses about the amount of days that one should be held in detention? Lord Goldsmith: I hope you will not mind my saying, but that is what I would call in the legal field a 'leading question' in the sense that I think it is for you to form an assessment and for Parliament to form an assessment as to where the consensus lies and not for me to express a view about it. The facts that you state are absolutely true, nobody did seek to go back to the 14 days or increase it beyond the 28, but whether that was a political compromise at the time or a genuine belief that that was the right position, I would not like personally to judge. Q512 Mr Winnick: Are you at all surprised that, having been defeated on 90 days, the Government is bringing this back and we are trying to get 56 days/58 days? Now that you are no longer in the Government and you can speak a little more freely, does that surprise you in any way? Lord Goldsmith: I think it is plainly important, it is one of the first responsibilities of government, to protect the security of the country and I think it is an important obligation to protect the values of this country as well, and that includes fundamental values on which society is based, and I am sure, not being a party to the discussions, that the reasons for making proposals are based on a genuine belief that it is necessary and it is the right thing to do to protect the country. I do not happen to take the view that, if the proposal were to extend to 56 days, that is justified by the evidence. Q513 Mr Winnick: Because we are all concerned with the safety and security of our country ---- Lord Goldsmith: Of course. Q514 Mr Winnick: ---- which you accept. Lord Goldsmith: Absolutely, as am I undoubtedly. Q515 Mr Winnick: But you do not believe, as you were saying in reply to the Chairman, that there is any justification? As you see it, you see no evidence to go beyond 28 days? Lord Goldsmith: I have seen no evidence to go beyond 28 days. That is my position. Q516 Chairman: Just following on from Mr Winnick's question, we have had a meeting today with the Head of MI5, Jonathan Evans, which the Committee found most helpful. He referred us to his speech a couple of weeks ago made in public to the newspaper editors about the threat of terrorism. Have you managed to have a look at his speech? Lord Goldsmith: I have not looked at the detailed speech, I have seen reports in the press. Q517 Chairman: The issue that Mr Winnick raised about the safety and security of the public is obviously a paramount consideration. Lord Goldsmith: Yes. Q518 Chairman: Do you have any information, since you ceased to be Attorney General, about the increase in the terrorist threat, apart from what you have seen in the newspapers? Lord Goldsmith: I have tried to make it plain from the start of giving this evidence that what I am saying is based on what I knew then, and I absolutely accept that things may have changed and I would expect to see them at some stage if proposals are formulated, maybe we all will see more, and you may have had the benefit of seeing material that I have not seen. Q519 David Davies: Lord Goldsmith, the Committee heard in the United States that there was absolutely no problem over there in using intercept evidence and keeping defence lawyers happy with it. What is your view on using that over here? Lord Goldsmith: I have strongly worked at finding a way to make intercept evidence admissible, subject to proper safeguards for the interests of the agencies which are the interests of us all. I am glad that the Commission, under Sir John Chilcott, is now examining that, and I have given them my views on how one might achieve that. I do think it is very important for two reasons, because I believe that, if we could find the right route, and I believe there is a workable solution to do that, it would be important in terms of increasing the prosecutability of offences, including very much in the serious and organised crime field which is another very important area, but also because I think it is important that we are seen to have been trying all avenues within the ordinary criminal justice process to bring people to justice rather than to use other ways round that. Q520 David Davies: Lord Goldsmith, a Liberty report that has just been published suggests that there are no other countries in Western Europe, North America or Australasia that have anything like as long as a 28-day period where you can be held without charge. Is this report correct? Are there any countries that have comparably similar lengths of time for which you can hold people in the Western world? Lord Goldsmith: Well, I do not think there are in the common law countries, the United States, Canada and Australia, as far as I am aware. It is not so easy to compare with the countries which operate a continental justice system because they do not quite have the same stage of charge that we do and they do have to have some form of assessment of potential culpability at a stage before detention continues. Whether that is really the same and you can compare that directly with charge, I think, is a moot point, so there will be cases there where people are detained, it will be said, for quite a long period of time ---- Q521 David Davies: Without a charge being put against them because obviously you can detain somebody who has been charged in this country for quite a long period on remand? Lord Goldsmith: Well, the point I am making, and I think you perhaps may need to get more help than I am giving you on this at the moment, but they will, as I understand it, in such countries have received some form of assessment of responsibility. The question is whether that is really the same as a charge under our system. I have had French lawyers say to me, "No, it is a charge", and it takes place after six days or eight days or something like that, and I am just not sure that that actually is quite the same as we have. Q522 Mrs Cryer: Lord Goldsmith, are you able to comment on the implications of the Government's proposals to allow questioning in terrorist cases of prisoners post-charge? Lord Goldsmith: I am in favour of that, as long as it is subject to the right safeguards, and I am in favour of it because I think it may offer, at least in some cases, a middle course, that it is possible after 28 days to charge somebody with some offence, perhaps the possession of material which could be useful in a terrorist case, whilst keeping alive the possibility that the police could continue to investigate and question on a more serious charge, so I am in favour of that. It obviously has to be subject to safeguards so that people are not continually browbeaten and questioned time and time again on the same material, but I would favour it for that reason. Q523 Mrs Cryer: You do not want to go into the details of the safeguards you are suggesting? Lord Goldsmith: I think quite a bit of work would need to be done to draw them up, but the principal safeguard, in my view, would be against an abuse of the process by browbeating suspects by continually questioning them when there was not, for example, any new material at all, and the safeguard could include some form, I would welcome some form, of judicial supervision in terms of giving at certain stages permission for further questioning to be done or something of that sort. I understand, but you will get this better from them than from me now, that both the police and the Crown Prosecution Service think that that would be helpful, at least in some cases. Q524 Chairman: Do you think there is a consensus emerging on post-charge questioning? Lord Goldsmith: That, it does look as if there may be. From what I have seen, including parliamentary comment, there does seem to be quite a lot of support for it. I think I would say, therefore, if that is what is going to happen, then it is important to assess what the implications of that are in terms of the case for a further extension beyond 28 days. Q525 Chairman: And this could be an alternative? Lord Goldsmith: Yes, this could be an alternative. Q526 Bob Russell: Lord Goldsmith, thank you for your frank answers earlier on on the 28 days. Bearing in mind that Parliament has now given the power of 28 days for detention, are you surprised so far that that 28 days has never been taken up? Lord Goldsmith: I think it has been taken up. As I recall in the alleged airline plot, I think there were two cases where they went up to the 28 days before charges, 27 days and something. Q527 Bob Russell: I think they did not quite get to 28 days, but are you surprised then, even if we go with two? Lord Goldsmith: Whether I am surprised, I do not know, but I think it is very important that, if in those cases, for example, there had been a further period of time, the question would have been whether it should be extended beyond the 28 days, and I come back to this question: at what point do you say you can no longer say, "We can't charge", but yet there is still a reasonable suspicion of an offence? If you can charge with something and then question post-charge, well, that may meet some exceptional case. Q528 Bob Russell: On a totally different aspect now, enhanced sentences, what is your view on the Government's proposals for enhanced sentences for non-terrorism-specific offences? Lord Goldsmith: I am not sure I have focused on that. Q529 Bob Russell: This is where they are saying that somebody has done house-breaking in order to raise money to help service an act of terrorism, so the act of house-breaking would have an enhanced sentence. What is your view on that government proposal? Lord Goldsmith: I would think that the powers of the court to take into account all the circumstances of an offence are already there, although a court would still only want to sentence obviously within the limits for the particular offence of which someone has been convicted, but raising funds for terrorism is itself an offence and, therefore, it would be legitimate, I would have thought, to take into account the purpose of some other acquisitive crime. Q530 Bob Russell: But not a penalty sentence on top if that had just been straightforward house burglary? Lord Goldsmith: That has been done sometimes, that Parliament has said, "We want to see an additional element for this", and I do not think that is illegitimate. I think the courts can normally see for themselves where there are aggravating features of that sort. Q531 Mrs Dean: Would you support the Government's proposal to require terrorism offenders, who have served their sentence and been released from prison, to notify the police of their whereabouts and travel plans? Lord Goldsmith: Yes, and subject again to proper safeguards as to such requirements which probably means again some form of judicial involvement. Q532 Mr Browne: Lord Goldsmith, I am going to let you into the workings of our deliberations because we were supplied with a briefing note earlier this week, a few days ago, and there is a section, "Data-sharing and the DNA database", and the question it suggests that we might want to ask is: do you have any concerns about the Government's proposals in respect of data-sharing powers and the DNA database? It may well be after the last 24 hours that we all have concerns, but you might wish to answer that question! Lord Goldsmith: Well, I cannot obviously comment on that. I do believe, and formed the view while I was in government, that the challenge of dealing with terrorism and indeed a lot of crime does require data-sharing across agencies. There is a lot of information which is available which would help prevent crime or solve crime, to take DNA examples, in extreme or not so extreme cases, if it is possible by sharing data about DNA to identify someone who has in the past been a rapist and may still be a threat on the streets to others, but obviously the safeguards for how data is protected, they are obviously important, I am sure everyone would agree about that, and how they are achieved is for others. Q533 Mr Browne: I can see two logical positions on DNA. One of them is that people who have been convicted of a criminal offence possibly over a certain threshold are required to submit their DNA or the other one is that everyone is required to submit their DNA. What I find hard to understand is the rationale for people who have been arrested and not been necessarily even charged being required to submit their DNA and they are then subsequently not convicted of any offence, but it is kept on a database potentially for the rest of their life. Does that give you cause for concern? Lord Goldsmith: Well, I am afraid to say it does not, although the question obviously implies that it ought to. I personally would not have a problem with a database which did cover ---- Q534 Mr Browne: Which was universal? Lord Goldsmith: ---- everybody, which was universal. I think where we are at the moment is that DNA samples are taken in certain circumstances and I think it would be a mistake just to say, "We are just going to destroy those", even though it may turn out, and indeed it has turned out in certain cases, that having that DNA has helped to solve subsequent crimes. Q535 Mr Browne: ID cards, let us finish the range very quickly, do you think they are helpful specifically in regard to trying to combat the terrorist threat or do you think that all the reservations about them, including the potential security of the data, give cause for concern? Lord Goldsmith: I believe that, if all the other issues in relation to ID cards can be solved, then they would provide the ability to stop people at least entering under a false identity twice and that, I think, could be important because there are legitimate concerns about people who leave the country voluntarily or not voluntarily and then come back, and at the moment it is very difficult to deal with them. ID cards, at least for the second time, would prevent that, as I understand it. Q536 Chairman: Lord Goldsmith, one of the options that was put by Liberty was that we should use the Civil Contingencies Act, which the Government has dismissed, as putting Britain in a permanent state of emergency. What are your views on using that particular legislation when the police want to keep someone for longer than 28 days? Lord Goldsmith: I thought it was not really what that Act was about. I thought the Act was about something else and, for myself, I would be rather nervous about then using it as a sort of escape route in the questioning of suspects. There may be circumstances in which the Act is triggered because of events which themselves involve terrorist activity and, therefore, a need to question, but I am somewhat unsure myself that it is right to use it without those other events occurring. Q537 Chairman: But the Government have said that, in pointing to the Civil Contingencies Act, Liberty has accepted that there may be circumstances where there should be an extension beyond 28 days. Lord Goldsmith: I have seen that argument made. I do not know whether it will be helpful if I just add one additional point. The fact that somebody has been released from detention without charge does not of course mean that the police cannot continue to investigate whether an offence has been committed by that person, and they may be able to continue to investigate material that they have obtained and they may be able to continue to investigate that particular person. Now, I have seen suggestions that it may be helpful in those circumstances that that person can be put under bail conditions and, if the police can demonstrate that that would be worthwhile, that could be an option. It remains the fact of course that, if the concern is that someone is a threat, at least at the moment, we continue to have in place other legislation designed to protect against those threats, the Control Order legislation. Q538 Margaret Moran: We have heard evidence that one of the issues around the extension beyond 28 days is related to the complexity of the technology, not just the fact that there are myriad laptops, myriad people involved, people using cyber cafes and myriad identifies, but that actually we are dealing with very deep encryptions, split data and indeed people who are specialists in IT itself perhaps way beyond the capabilities of our criminal justice system, dare we say. In that context, if the technical experts are saying that technically they need beyond 28 days, what would your argument be in relation to that? Lord Goldsmith: Forgive me, first of all, it is not an argument, but I was asked to express my view and that is what I am doing. I am not trying to argue any particular case at all. I simply have not seen that evidence being stated. That it is complicated, yes, but I have not seen it said. You may well have information that, as I said, I have not got where the technical experts are saying, as a matter of fact, "It is not possible to do this within 28 days", and this is what we expect to see. Chairman: Lord Goldsmith, thank you very much for giving evidence. We are now going to hear from the DPP, but we are most grateful to you for coming here. If you have any further thoughts before the inquiry closes, please do not hesitate to write in. Thank you very much. Witness: Sir Ken Macdonald QC, Head of the Crown Prosecution Service and Director of Public Prosecutions, gave evidence. Q539 Chairman: Sir Ken, thank you very much for coming to give evidence to this Committee. As you know, we are conducting an inquiry into the Government's counter-terrorism proposals. What particularly interests this Committee is the detention period and whether or not it should be extended beyond 28 days. You were outside the room, so you did not hear your former boss, the former Attorney General, tell the Committee that he did not see any evidence to go beyond 28 days and indeed, had the matter gone through at 90 days, he would have left the Government, which was a very surprising statement that the Committee heard. You were involved, were you not, in these matters when it last came before the House and did you have any such similar reservations? Sir Ken Macdonald: Well, we welcomed the increase to 28 days and we felt that a period of 14 days was not sufficient. It seems to us that 28 days has been effective and has provided us with powers, if you like, supervised by the courts, which have been useful to us as prosecutors in making appropriate charging decisions within that period. We are, on the basis of what has occurred since then, satisfied with 28 days. We have not had any cases which would require a longer period than that and indeed in one case, which is very well-known involving an airline plot, I think two or three men were charged on the 27th or 28th day and three men were released without charge and have not since been charged, so our day-to-day experience as prosecutors has been that the 28-day period has been useful and effective. Q540 Chairman: But both the Metropolitan Police Commissioner and the Home Secretary and indeed the Prime Minister in his statements to the House have said that they need more time. No one has actually stated a particular time, but they have all three, pretty persuasive and powerful figures, said that it should go beyond that period if they are going to properly counter terrorism. You do not agree that the case has been made? I know you cannot make policy. Sir Ken Macdonald: Obviously it is a matter for Parliament how long the period is and one can make a case based on the evidence and, in those circumstances, one can feel pretty confident as a law-maker. If the basis for it is hypothetical, perhaps one feels a little less confident, but I accept that there is room for different views on this and you are asking me for my view as a prosecutor. Q541 Chairman: Indeed. Sir Ken Macdonald: I think there is some misunderstanding about the nature of the decision which is made by a prosecutor when he or she decides to charge. There are two tests, two alternative tests. One is the full test, and that requires the prosecutor to determine that there is a realistic prospect of conviction. That simply means that, on the basis of the evidence the prosecutor has before him or her, a court is more likely than not to convict. However, in a case where, if charged, it would be inappropriate to release the defendant on bail, a prosecutor can apply a different test which is the reasonable suspicion test, the threshold test, so, in those circumstances, if the prosecutor is considering a case in which, if there was a charge, bail would not be appropriate, and that would cover all terrorist cases, I am sure, the prosecutor can charge on the basis of reasonable suspicion, as long as the case is kept under review and the full code test can be applied as soon as practically possible. Now, two of the individuals in the recent well-known case, whose decisions were made towards the end of the 28-day period, were charged on the basis of reasonable suspicion. I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period, so that is a practical problem which could face prosecutors. Q542 Chairman: But in looking at these practical problems, the Commissioner put to us quite strongly that he needed the extra time and he was talking about a period between 50 and 90 days if he was going to get a charge, but throughout the period of course his officers are in constant contact with yourselves. Sir Ken Macdonald: Yes, of course; we are the ones who make the decision about charge. These are onerous applications to make to courts and they scrutinise them very rigorously and of course the longer you have got someone in custody without finding evidence to charge, the tougher it is to make these applications, particularly if you are in the position where there is not yet, as I have said, even reasonable suspicion to justify charge. Q543 Chairman: But on the last occasion, and obviously we have heard a lot of evidence from Lord Goldsmith about this, did you actually make the case for an extension? Were you one of the agencies that said, "We need more time"? Sir Ken Macdonald: We supported an extension and I am quite satisfied we were right to do so because I do not think 14 days was sufficient, given the increasing complexities of investigations, and you have heard all this evidence, I am sure, from Sir Ian Blair and others, the computer disks and so on. Q544 Chairman: So on the last occasion you supported the case for an extension? Sir Ken Macdonald: Yes. Q545 Chairman: And on this occasion you are not supporting the case? Sir Ken Macdonald: Well, I think that the most I can say, Mr Vaz, is that it is a matter of record that we have not asked for an increase. Q546 Chairman: But on the last occasion you were quite open about it, you did support it, you said you needed it, but on this occasion you think that the 28 days is sufficient? Sir Ken Macdonald: We are satisfied with the position as it stands at the moment. Q547 David Davies: I wanted to clarify a comment that you made earlier on, just to be sure I understood this. What you were saying was that, if the police could not find enough evidence to charge in 28 days, then it would be very difficult for you as a prosecuting service, or you might find some difficulty in prosecuting somebody who had been held in detention for longer than that period. Sir Ken Macdonald: Well, it is simply that the way the system works is that we go back to the court to ask for a further period of detention and we have to persuade the court in effect that there is a real prospect that, if that period of detention is granted, some evidence is likely to be forthcoming. Now, it seems to me clear that the longer you have had someone in custody without finding that sort of material, the tougher the applications are. I think the experience of prosecutors is that, when they apply for seven days at the beginning of the period or a period over 14 days, it is tough, but it gets tougher the longer you have had someone in custody and for very obvious reasons, that the courts become more sceptical about the likelihood that material is going to be forthcoming. Q548 Mr Winnick: You were doing your present job of course two years ago and you were appointed in 2004. Sir Ken Macdonald: No, 2003. Q549 Mr Winnick: Thank you for the correction. When the Government at the time, two years ago, proposed 90 days, were you surprised? Sir Ken Macdonald: Well, I moved from private practice into a very different world, Mr Winnick, and I do not think there was much that was surprising me! Q550 Mr Winnick: But were you opposed? Sir Ken Macdonald: We did not express a period of time that we wanted and we certainly did not become involved in any sort of process of trying to persuade MPs one way or another and that is not what I am trying to do now. This is a matter for the Government and it is a matter for Parliament, but you are asking me direct questions about what my view is about what we think is necessary and I am trying to answer those without impinging on the areas of policy or parliamentary law-making. Q551 Margaret Moran: We have heard, as we were referring to earlier on, that one of the arguments for an extension of the time period is because of the increasing complexity of the technology that is being used, that it is international, it involves multiple laptops, cyber cafes, data-splitting, deep encryption and people who have serious skills in dealing with the technology. What would your argument be to those who would argue from the technological point of view that unravelling all of those issues requires more than 28 days? Sir Ken Macdonald: Well, we have had very, very complex cases since this law was enacted and in only three have we had to go beyond the 14 days. Of course the evidence is increasingly complex and that is why we have gone up to 28 days which is by far the greatest period in the common law world; I think in Canada they have 24 hours and in the United States they have 48 hours. Our people work very hard and the police work very hard to get the evidence that is necessary within 28 days. So far, we have been able to, and I do underline the point that, given the nature of the threshold test, the evidence is only required to demonstrate a reasonable suspicion that the defendant committed the offence. I can only say to you that our experience so far has been that we have managed and managed reasonably comfortably. Of course it is always possible to set up hypothetical situations in which it could become extremely challenging, and it is for Parliament to decide whether it wants to proceed on the basis of those hypotheticals rather than on the basis of the evidence which we have experienced so far, and that is a matter for you, not for us. Q552 Margaret Moran: As a former defence lawyer, do you have any concerns about the Government's proposals in respect of the DNA database and data-sharing powers? Sir Ken Macdonald: I think that DNA, as we have seen, is an extremely valuable tool and you only have to look at the cold-case reviews and the number of people who have been convicted of very serious crimes because of the DNA database. Of course there are concerns around the storage of information, and of course the retention of information from people who have not been convicted of a criminal offence is a controversial area, but again these are issues for Parliament. What we are satisfied about is that, if there is a DNA database, it has to be readily accessible by law enforcement in order that it can be used to great effect, as it is used, in criminal cases. I do not think the issue changes whether you are a defence lawyer or a prosecution lawyer. I think prosecution lawyers should be as interested in human rights issues and fair trial issues as defence lawyers, and indeed that is the ethos that we try and espouse. Q553 Gwyn Prosser: When you said that you asked for an extension beyond the 14 days, but you have not asked for it this time, although I thought you made it clear that you supported the extension beyond 14 days, when you took that view and your colleagues took that view, did you take into account the negative impact it might have on local communities? Sir Ken Macdonald: Yes, we did. We spend quite a lot of time engaging with the communities who are affected by these sorts of issues to try and build confidence with them. We spend a lot of time doing that. Q554 Gwyn Prosser: Putting aside some of the issues you have raised this afternoon which do not particularly promote the idea of going beyond 28 days, what do you think the impact would be, if we went further beyond the 28 days, on local communities? Sir Ken Macdonald: Well, I am not an expert in this and people will make up their own minds. What I do firmly believe is that our response to these threats which we are facing needs to be proportionate and grounded, and I have spoken about this on many, many occasions. For us, this is a law enforcement issue. It is about the detection of crime, it is about the enforcement of our laws and it is about winning justice for those people who are damaged by their infringement. We do not talk the language of warfare, we talk the language of law enforcement. These people are criminals, they commit criminal offences, offences proscribed by the criminal law in our jurisdiction and we ought to deal with them in that context. The Committee was suspended from 4.00pm to 4.15pm for a division in the House. Q555 David Davies: Sir Ken, you are on record as supporting the use of intercept evidence. What sort of problems would that cause, particularly in relation to disclosures for defence lawyers? Sir Ken Macdonald: Although we have always strongly supported the use of intercept evidence, and we still do, we do not underestimate that there are difficulties that would have to be managed. These include the disclosure of techniques and also the level of bureaucracy that might result and fall on the shoulders of the agencies to retain material which might be disclosable. Our view has always been that it is possible to find a way through these difficulties and, as you know, there is a Privy Council review at the moment and I have given evidence to that review, so I do not want to say too much, if you do not mind, Mr Davies, apart from the fact that we continue to support this. Q556 David Davies: If I may just ask one supplementary though, would it require a change in the law to get the sort of reasonable compromise that is required between giving the defence lawyers the amount of information they need to defend their clients and the current situation which would probably require everything in a complicated case to be transcribed? Sir Ken Macdonald: Well, this is interesting because actually, if we apply the law properly, the legislation governing disclosure, which dates back to 1996, it does not mandate the disclosure of all material to the defence. That became the practice, but we got the practice back very firmly on track so that what we disclose now is our case, the material that we intend to rely on and anything that is in our possession which, although we do not intend to rely on, undermines our case or might assist the defence case. Q557 David Davies: So why not go ahead and do it? Sir Ken Macdonald: Well, I think we could deal with the disclosure problems and the bureaucracy problems and I also think we could deal with the technique problems, but other people, quite legitimately and quite honourably, take a different view and the Privy Council review team will decide on what their recommendation is, and I think they are coming to a conclusion fairly soon. Q558 Mr Winnick: As I understand the position, Sir Ken, no one who was held in detention regarding possible involvement in terrorism, of those who were released from detention without any charge, I believe, and I have not got the figures in front of me, about half, as I understand it, none was charged afterwards at no stage after their release. Sir Ken Macdonald: Do you mean in connection with all terrorism cases? Q559 Mr Winnick: No, those who were held under the detention powers and then released. Sir Ken Macdonald: There were three men, I think they were all men, who were released after 28 days in the airline plot and none of them has been charged with any offence arising out of it. 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. Q580 Chairman: What about Liberty's suggestion of using the Civil Contingencies Act, that we have a state of emergency declared every time you want to keep someone beyond 28 days? Sir Ken Macdonald: This is a very interesting proposal coming from Liberty, otherwise known as the National Council for Civil Liberties as you will remember, Chairman. I think it would be possible in law to do this. I know there is some issue about whether it would be, and I have seen an opinion written by no less a luminary than David Pannick which is available on Liberty's website indicating that in his view this would be lawful, and I agree with him. There is a difficulty which Liberty have not identified, and it is this: the order made to extend the period in respect of a particular case would have to be approved by both Houses of Parliament, as you know, under the Civil Contingencies Act. Imagine a situation where there is a group of men in custody, 25 days, the prosecution decide they need another seven, the Home Secretary is persuaded to issue the order under the Civil Contingencies Act, there then has to be a debate in Parliament approving the order, the Home Secretary no doubt would have to speak, backbenchers would speak, no doubt the subject matter of the debate would be the gravity of the offence, the wickedness of the defendants, the terrible consequences if they had been successful and meanwhile, three, four, five, six, seven, eight months down the line these men are expected to get a fair trial. I think there is potentially a problem with Liberty's suggestion which they have not addressed. Q581 Bob Russell: Sir Ken, the Government propose that sentences for terrorists who are convicted on non-terrorism specific offences should be enhanced to reflect the additional seriousness that terrorist involvement represents, and the examples that we have been given are such offences might include forging documents in order to assist a terrorist act or committing burglaries in order to raise cash to buy weapons for terrorist purposes. What is your view on that? How would it work in practice, if at all? Sir Ken Macdonald: It is an interesting proposal. One of the issues about this is that some of the offences you have described would be offences anyway under terrorist legislation, the offence of terrorist financing for example. If you were going to have terrorism as an aggravating feature of an offence I am not against it. What you need to understand is that you would have to prove that aggravating feature beyond a reasonable doubt, and if you do not have any evidence of terrorist involvement that might be complex and if you do have evidence of terrorist involvement you would probably charge that in the first place. It is an interesting proposal but it does need some examination. Q582 Bob Russell: That is very delicately put, it needs some further examination. Are you suggesting it is a non-starter? Sir Ken Macdonald: No, I am suggesting it needs further some examination, Mr Russell. Q583 Bob Russell: Okay. One of our witnesses, Rachel North, who is a survivor of the 7 July bomb attacks, argued that it would inequitable to give enhanced sentences in the case of a link with terrorism but not in the case of a link with, say, serious organised crime. What is your view? Sir Ken Macdonald: She argued in favour of enhanced --- Q584 Bob Russell: No, she was arguing against it. She was saying how could you separate that from a serious crime. She was saying that it would be inequitable to give enhanced sentences in the case of a link with terrorism but not in the case of a link with, say, serious organised crime. Sir Ken Macdonald: I take your point except to say that terrorism as an offence is uniquely threatening. I got into trouble when I took my appointment because I had previously described terrorism as political violence, which some people thought meant that I was downplaying it and, of course, it aggravates it. Committing a crime for political purposes makes it much, much worse. I think that terrorism offences fall into a particular category quite different from organised crime, quite different from anything else. They are, of course, subject to aggravated sentences in the sense that judges pass very, very long sentences for terrorist crime but, again, these are all matters of policy for Government and Parliament. Q585 Mrs Dean: There were four options put forward by the Government and I do not know whether you want to add anything to what you have already said about the pros and cons of those options. One of the arguments that was made to us for legislating now to extend the 28 days was that we should not be legislating when there is an emergency, it is better to legislate ahead of a clear need. You have made the point about being able to prosecute on reasonable suspicion. Could it be said that you could have made that argument about increasing it from 14 days to 28? Sir Ken Macdonald: Yes, but we felt that the 14 days, given the increasing complexity of these cases, really was not enough and we needed an extension. These are all matters of degree and judgment. Should it be 14 days, 21 days, 28 days, 32 days, they are all matters of degree. We were generally in favour of an increase because we could see that 14 days was becoming very challenging in these cases. The point about not legislating in an emergency is very well made but it is a matter for Parliament about how persuaded it is by the hypotheticals that have been raised. Parliament is perfectly entitled to say, "We are persuaded by this, there could be a case in future that is so serious and so grave that it will require more than 28 days and we want to shut off that danger here and now". That is a matter for you, not for us. All I can tell you is what our present experience is. Q586 Mrs Dean: But we have gone up to 28 days under the current legislation. Sir Ken Macdonald: We have. That was very shortly after the legislation was enacted because it came in in July 2006 and I think the case we are talking about was later that summer, it was in August. Q587 Mrs Dean: Do you want to add anything about any of the other Government options? Sir Ken Macdonald: I do not think so. Q588 Mrs Dean: Could I just ask about judicial oversight. We have had different versions put to us on what happens currently and obviously it could influence what happens in the future. Is there an adversarial situation? Are the defence able to put their arguments in front of a judge? Sir Ken Macdonald: I have not conducted one of these hearings but Miss Hemming has, head of our Counter-Terrorism Division, who sits behind me, as have senior members of her staff. Our assessment of these hearings is that they are very adversarial, the judges are extremely challenging, the hearings can last as much as a day on occasion and they are very hard-fought, hard-argued. It is true that we have won all of them, although in one case we got less of a period than we asked for. It may be that one of the reasons we have won all of them is that we do scrutinise these cases very, very carefully before we decide to make applications. As you probably know, after 14 days the decision to make an application is a decision of the prosecutor rather than the police, and we are very careful about the cases in which we make these applications. We have an adversarial system but are very conscious of our role within that and the public interest and public confidence, so we do not run around making these applications except in cases where we think they are very justified, and even in those cases we can be given quite a hard time by the judges. Q589 Mrs Dean: Can I turn to those who have already been convicted and served their sentences. Can you give us your view on the Government's proposal to require terrorism offenders who are released from prison to notify the police of their whereabouts and travel plans? Sir Ken Macdonald: I think it is very sensible. Q590 Bob Russell: As a former defence lawyer, do you have any concerns about the Government's proposals in respect of data-sharing powers and the DNA database? If you do have concerns, what steps could the Government take to address them? Sir Ken Macdonald: Data obviously has to be kept as securely as possible, Mr Russell, and that is a lesson we have all learnt over the last couple of days. I repeat what I said before, I do not think there should be an issue between prosecutors and defence lawyers about this. Since I became DPP I have not found that my view of criminal justice and trials has suddenly shifted and I take a different view about all of these issues. We are interested in fairness and due process. I think that material like DNA is of extraordinary value in criminal cases. We have been able to send men to prison who deserve to be in prison who committed very serious offences ten, 20, 30 years ago because of the DNA database. Bringing justice to cases in that category is immensely important. I am not troubled about the use of DNA in criminal cases. I do acknowledge that there are issues of controversy around keeping DNA from people who are subsequently not prosecuted but, again, that is an issue for Parliament rather than me. Q591 Mr Winnick: You said that 14 days in your view was not enough, and Parliament agreed, and no-one to my knowledge in either House voted to retain the status quo of 14 days. Can I ask you this question: I have seen in the press in Spain that none of those who were found guilty of the horrifying atrocities which occurred were apprehended on the spot, later police investigations led to the culprits being caught, but the paper said the Spanish police had 13 days maximum to hold these people in detention without charges being made. Do you have any knowledge of that? Sir Ken Macdonald: I have seen those press reports but I am not an expert on the Spanish system. I believe they have an inquisitorial system which is quite different. You will all have seen in this dreadful murder case in Italy that the magistrate has apparently been able to remand people in custody for up to a year as the investigation proceeds. The difference with inquisitorial systems is they have a different concept of charge from us and determining at which stage in the proceedings they regard a charge as having been laid is quite difficult. I believe the French regard it as having been laid from the moment you are brought before the court, so their system is also different because it is driven entirely by judicial decision-making, it is the examining magistrate who makes all of these decisions. I believe, although I am not an expert on it, Strasbourg regards that as being a slightly different process within this context, although of course Strasbourg has had no difficulty at all with our 28 days, and nor should it. Q592 David Davies: I should have asked you earlier on, are you aware of any instances within your knowledge where had intercept evidence been allowed somebody arrested for terrorism arrests but not charged might well have faced a charge had intercept evidence been admissible by the courts? Sir Ken Macdonald: I think it might be against the law for me to answer that question because of the terms of RIPA. I would be quite reluctant to get into a detail of that sort. I cannot immediately call one to mind, it may be there is not one. I do not know, Mr Davies, I cannot answer that question. Chairman: Sir Ken, this now concludes the oral evidence this Committee is taking on this inquiry. We took evidence today from the Head of MI5, which we found very helpful. We have heard evidence from Lord Goldsmith and now we have heard from yourself. We aim to publish our report, subject to an earthquake or an act of God, on 17 December this year, which we hope will inform the Government's views on its counter-terrorism proposals. We are very grateful to you. This was arranged at very short notice, you changed your appointments to be with us today and we are extremely grateful to you for what you have done. Thank you.
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