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Lord Cope of Berkeley: I am grateful to the noble Lord for his response. As regards the two different categories of organisations, although I drew attention in my speech at Second Reading to the oddity of having different evidential arrangements for the two categories, I am not pursuing that in this particular amendment or indeed later in this Committee stage.

I hope that Amendments Nos. 1, 4 and 8 apply only to members or supporters of specified organisations, as opposed to proscribed organisations. If the Government widen the measure in the rather peculiar way that they seem to be suggesting, perhaps that is the fault of our drafting for which I can plead only the pressure due to the rather helter skelter manner in which we have been required to consider this legislation. The more substantive point at which we are aiming is whether or not for a specified organisation the new evidential arrangements should catch only those who are members of the specified organisation or also those who solicit or invite support. The noble Lord drew attention to the fact that it is a matter of support other than with money or other property. That phrase is taken directly from the PTA 1989 where other sections deal with the financial arrangements, in particular Section 9 of the Act. Therefore we felt it necessary to follow the wording of the PTA.

However, as I also emphasised not long ago in my Second Reading speech, I am strongly in favour of "clobbering" terrorist money whenever one can. The main argument on which the noble Lord relied in his response was that if someone solicited or invited support, that was evidence of membership. As I recall, that is the exact opposite of the argument that his noble friend the Minister at the Northern Ireland Office used on the sentences Bill where the phrase "supporters of terrorist organisations" was specifically used. As I recall, we wondered why there was not a reference to members and the noble Lord, Lord Dubs, said that membership was difficult to prove but support for an organisation was easier to prove and therefore the Government used the wider phrase in the sentences Bill. In a sense we followed that usage when we tabled these amendments.

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9.30 p.m.

Lord Lloyd of Berwick: I do not know whether it is in order for me to intervene or whether my intervention supports the arguments on either side. I saw certain difficulties in membership of an organisation being the test. I proposed instead the phrase "taking an active part in an organisation." I was against the term "membership" for a slightly different reason in that it is a woolly expression. I was anxious not to include people who are nominal members of foreign organisations. In general we want to catch people who are doing things in the organisation. You could do that by defining "membership", if you wanted.

Lord Williams of Mostyn: As the noble Lord, Lord Cope, indicated, I rather suspected that he intended to aim at specified organisations rather than proscribed organisations. This is reaffirmed by his reference to the PTA which, of course, refers to proscribed organisations and not specified organisations. I accept his point that he has had little time to draft these measures. That is a fair point to make. We believe that we have this right and that the term should be "membership". If support is solicited, invited or is tangible in terms of money or property, I personally believe that inferences could be drawn from that.

Lord Cope of Berkeley: Reinforced by the support of the noble and learned Lord, Lord Lloyd of Berwick, I am not entirely satisfied with that response. I have looked briefly again at the drafting to determine whether we are catching those who solicit or invite support for proscribed organisations as opposed to specified organisations. As far as I can see, we have the drafting right. However, this is an abstruse point which is difficult to discuss at this stage. Unless the Minister has anything further to say, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 4 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 5:


Page 1, line 24, at end insert--
("(3A) Nothing in this section shall prevent the police officer who makes a statement to which subsection (3) applies from being cross-examined as to the content of and factual basis for the statement.").

The noble and learned Lord said: Amendment No. 5 deals with the issue of cross-examination. That was a matter which I raised in my speech at Second Reading and which a number of other noble Lords touched on in the course of their speeches. I wish to explore the matter slightly further. It is very important that by the time the Bill leaves this Chamber and becomes an Act of Parliament those who are required to work with the Act--police officers, lawyers, the courts and the judges who preside over the courts--are quite clear as to the policy on the issue of cross-examination.

In his opening speech the noble Lord, Lord Williams of Mostyn, made quite clear that evidence given by a police officer as to his opinion of the accused belonging or having belonged at a particular time to a specified

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organisation would be evidence that was open to cross-examination. As I indicated earlier this evening, that was a statement which I warmly welcomed.

Subsequently in the debate at Second Reading my noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Lloyd of Berwick, raised the possibility that during the giving of his evidence the officer speaking to his opinion as to membership, if it was an opinion based on evidence from confidential sources, might decline to answer questions. That was a theme taken up later in the debate by the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Thomas of Gresford, who pointed to situations where the officer concerned could plead public interest as a justification for declining to answer a particular question.

When he replied to the debate the noble Lord, Lord Dubs, indicated that it would be for the police to determine what sources to reveal. It would be for the police officer himself to make his own decision. I have to be quite frank and say that those comments about officers being able to decline to answer questions come as somewhat of a surprise to a Scottish lawyer. As I understand the law of Scotland, and I am sure that I shall be corrected--and rightly corrected--if I am wrong about this, ultimately it is for the judge to decide whether or not a witness answers a question. If he feels that the question is inappropriate and should not have been asked, the question will be disallowed, no doubt after objection, and the officer will not be required to answer it. But if the officer is required by the judge to answer the question as part of legitimate cross-examination of his opinion evidence, then he will have to do so and he will not have a choice as to whether or not he wishes to reveal sources, information coming from sources, or whatever.

Part of the reason for that may be that it is not our practice in Scotland to rely on the existence of public interest certificates. All prosecutions are ultimately under the control of the Lord Advocate. If, in a particular case, he took the view that the public interest militated against revealing the source of particular evidence, then he would decide that a particular prosecution should not go ahead for that reason. But I think it right to make clear that as far as Scotland is concerned the basis upon which the Minister the noble Lord, Lord Dubs, replied would not be acceptable.

I fully appreciate, having listened to the discussion this evening--

Lord Archer of Sandwell: I wonder if the noble and learned Lord would forgive me. I cannot speak for the law of Scotland and I would be grateful for his guidance. Would there not be two courses open to the judge? One could be to direct the officer to answer the question. The other, and preferable one, which most judges I would have thought would prefer, would be to say, "If you are not prepared to answer that question then I shan't take this piece of evidence into account".

Lord Mackay of Drumadoon: I do not think that that course would be open, even if the judge were sitting

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on his own. However, many of the cases will be tried in front of a jury. One cannot direct members of a jury to ignore events which they have heard; namely, a question being asked and the officer indicating that he was not prepared to answer it, with an exchange between the judge and the police officer resulting in it being left to the police officer's discretion as to whether or not to answer. It is right that I indicate that the noble and learned Lord the Lord Advocate and I have discussed the matter informally and our understanding of the law of the land and the practice of Scotland is at one in this matter.

It is right that Members of the Committee appreciate that the basis on which debate has taken place this evening would not apply in Scotland. For that reason it is important that when the Bill leaves this House and Parliament, the courts in Scotland, England and Wales and Northern Ireland are quite clear as to the position.

The purpose of the amendment is to make it clear that nothing in new Section 2A, introduced by Clause 1, inhibits cross-examination. In the law of Scotland, England and in Northern Ireland, there may well be other provisions: the right to claim public interest at the instance of a police officer in England; rules against hearsay, secondary hearsay, and the remainder. Other rules of evidence may preclude or inhibit cross-examination. However, the message I wish to see sent out loud and clear in the Bill--whether by acceptance of the amendment, or through a statement by the Minister--is that nothing in the Bill inhibits the right to cross-examine. That will leave it to the trial judges in the different jurisdictions to apply the existing law. I do not think that we could improve on that situation.

Before the noble and learned Lord helpfully intervened, I had turned to deal with this point. I fully accept that in England and Wales the procedure is different. I would not wish the procedure in England changed to accord with the position in Scotland. Nor would I wish the Bill to change the position to accord with the Scottish or any other position. We should superimpose the provisions of the new Section 2A on top of the existing law as to the right and extent of cross-examination. If we do that--I return to a point made by noble Lords on a number of occasions, in particular by Ministers who opened and closed the Second Reading debate--it offers the best hope of protecting this legislation against challenge in Strasbourg.

If witnesses are to be allowed to decide whether or not they answer questions, however well the Bill may have been "proofed" against the European convention, I imagine that a strong challenge could be mounted if the message coming from the Bill is that it is up to witnesses whether they disclose sources or factual information upon which they base their opinion. One can well imagine that a police officer who, without disclosing the source of information, discloses the information upon which he based his opinion, would by implication disclose his sources. People would work out that he could only know that fact if he had been speaking to "X". That is where the problem arises.

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As I indicated in my Second Reading speech, I accept that it would be difficult for a police officer to volunteer to give evidence because in many instances his opinion will be based on sources he is not prepared to disclose. As the noble and learned Lord, Lord Lloyd, indicated, that may well mean that, for all its trailers, the Bill has tended to be a bit of a mouse. Only time will tell whether that view is correct.

However, that is the reason I move the amendment. Having explained the intention, when the Minister replies I hope that he will be prepared to state at the Dispatch Box that there is no intention to change the practice in any of the jurisdictions which will be affected as to the right to cross-examine, and the extent of that cross-examination. I beg to move.

9.45 p.m.

Lord Thomas of Gresford: I shall speak to this amendment and try to outline the practice in England and Wales as I understand it. If public interest immunity is claimed, as it will be, for informers or for information that has been obtained from the security services, the practice is that an application is made ex parte to the judge so that the prosecution goes to the judge and discloses the material. Of course, the defence has no part to play in this unless the judge says, "I think that you should disclose some part of what you have revealed to me to the defence; they should have that information. But I agree with you that the sources are so sensitive in relation to other parts of the information that you are disclosing to me that you need not disclose that information at all".

Let us take this Bill. Suppose that happens and the judge says, "I accept that you need not disclose, on public interest immunity grounds, your sources for your opinion", or that the police officer need not disclose his sources. When one goes back into court the police officer will say, "I believe that the defendant is a member of a proscribed organisation". Defence counsel then stands up and asks, "Why do you have that belief?", and the police officer replies, "I am not entitled to tell you", or prosecuting counsel intervenes and says, "This is a matter that is covered by public interest immunity". There is, therefore, no effective challenge in court to the police officer's opinion.

The curious thing that happens then is this: the judge may know from the private disclosure to him exactly what the source is. He may know that it is a reliable source. He may know the whole background to the opinion that the police officer expresses. As may happen in Northern Ireland, if that judge is sitting alone, he then has to go into court and he has to say in accordance with this Bill, "Of course, I have heard the opinion of the police officer and that is not enough under the terms of the Bill for him to be convicted. I dismiss the charge".

So, there is a very curious situation where the judge is informed privately, on an ex parte application, exactly why the police officer believes what he does, but a charade is played out in court where the police officer cannot give the reasons for that, which leads to the charge being dismissed.

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The more one examines the detail of this legislation the more one sees that, although it is a gesture, and an important gesture, it really will have no influence on or effect in increasing the number of convictions for terrorism in Northern Ireland or in this country.


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