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Baroness Scotland of Asthal: I can certainly undertake to write to noble Lords about that matter. The pressure that the seven days has caused on certain of the more sensitive operations has been understood by the judiciary who have had to deal with these matters. On the comments made by the noble Lord, Lord Carlile of Berriew, I do not think we have ever had any dissociation from their understanding about how difficult this is and the benefits that there may be from extensions. If we have had any formal consultation with them, I will certainly write to the noble and learned Lord to indicate that.

Lord Clinton-Davis: It may be that the dialogue ought to be extended, particularly in light of this debate. Will my noble friend agree to that?

Baroness Scotland of Asthal: I hope this matter does not come back on Report, but if it were to do so, I would happily see what we have and come back to the Committee on the next occasion.

Lord Clinton-Davis: Notwithstanding what may happen on Report, does the Minister not think that it is desirable for there to be a dialogue between the Government and those other people at this stage?

Baroness Scotland of Asthal: It is difficult for me to answer because I believe that there may already have been such a dialogue. The noble Lord will know that a very limited number of judges deal with these matters; they are intensely involved in the way in which we develop these issues. I am quite confident that if the judiciary, seized of this matter, felt that it was unnecessary and we were quite happily dealing with

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matters within the ambit of that which we had, they would have told us about that very forcefully. But I am very happy to check it and to have some confirmation, and I am sure that if the officials in the Box have such information, I will probably have it by the time I sit down because I have a feeling I will be here for a while. Well, I am told that they have not had specific conversations but they will certainly do so.

It follows that for some limited and very specific circumstances under which the current seven days may be insufficient to enable the police fully to investigate the offences in respect of which the individuals have been detained, the proportion of cases to which this applies is small but significant. I obviously cannot go into individual cases or give any information that might be useful to those to whom the legislation might apply, but I am able to say that of the 212 persons detained from 1st January 2002 to 31st March 2003, 16 cases went into the sixth day as a result of extensions.

I will also give examples of the types of circumstances which might lead the police to need more time. While I cannot refer to actual operations, the examples I am about to give are not hypothetical but are extrapolated from actual occurrences. I hope that noble Lords will understand that I cannot identify them more specifically than that.

Increasingly frequently, there may be occasions when it is necessary to examine substances that are thought to be dangerous—all the issues raised by the noble Lord, Lord Carlile, bite on these matters—which are found on or with the detained individuals, to establish whether they are chemical, biological, radiological or nuclear materials. Such substances have to be retrieved in accordance with forensic procedures. Moreover, very detailed health and safety provisions exist to protect the experts doing that work. This is a time-consuming process which needs to be carried out with painstaking attention to clinical procedures and often in stages, with one stage needing to be complete before the subsequent stage can be started. In one significant case, it has even been necessary to bring equipment from the United States to perform the analysis.

A further layer of complexity that technological development has added is that investigations increasingly involve the requisition and analysis of hard drives of PCs and the subsequent search of suspects' work or home premises after an arrest has been made. It is therefore a matter of days, not hours, before any material from a hard drive is available to be used in the questioning of a suspect. This can be further exacerbated when the hard drives or PCs obtained from a number of individuals have to be cross-referenced to each other to establish patterns of communication and even movement.

There is another difficulty in investigating terrorism. When one is undertaking a sting, if I may call it that, in relation to drugs operations, usually it is possible to do much of the preparatory investigative work before one goes in to arrest. Quite often in terrorism cases, one simply does not have that luxury. So the level of preparation on cases can vary because

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things can turn very quickly. You find yourself having to investigate an issue earlier than you would otherwise have preferred. I regret to tell noble Lords that terrorists are not very compliant with one's timetabling.

A similar situation arises with mobile phone use and the swapping techniques of whole phones and phone parts, such as SIM cards, designed to make it more difficult for the police to track the owner and the pattern of use. Establishment of identity, as the noble Lord, Lord Carlile of Berriew, mentioned, is increasingly a feature of re-questioning and pre-questioning activity with the police, often having to work through the use of false identities or multiple false identities. The unravelling of the false identities involves extensive national and frequently international inquiries and cross-checking. It would be unusual to reach a successful outcome easily and speedily. The same applies to bank accounts, for which up to five individuals have used the same identity to access and move funds. For the analysis of documents and possibly video material found on premises, and in the questioning of suspects, translators and interpreters frequently need to be used, possibly for rather remote languages. Those persons have to be used for interviews at all stages during the period of detention.

Moreover, and I believe significantly, it is unusual for there to be only one set of the above or similar circumstances contributing to delay in the investigation. More frequently, there is a combination of factors, each of which involve detailed and time-consuming but vital research, which impacts on the time available to the police for questioning.

The modus operandi available to terrorists is clearly growing in sophistication and breadth. In such combined cases as I have mentioned, the police investigation will need to be correspondingly more sophisticated in order to analyse and cross-reference the available evidence. That is what creates a different investigative playing field and justifies the need for allowing the police an extended period to put the information together.

However, I hope that the Committee understands that it is not proposed that the court be given a power to issue a warrant authorising 14 days' detention on the first occasion that a warrant for detention is sought. On the contrary, there is a significant number of safeguards within Schedule 8 that will continue to apply, and we have built further safeguard provisions into the amendment. Thus a court will be able to extend the period in the warrant for more than seven days only if the warrant already authorises detention for the maximum seven days currently permitted.

The provision will be incremental, and it is perfectly possible for the court to say, "I will give you 48 hours, but on this investigation I am not going to give you any further extension". So the court will have the control that it needs to supervise and incentivise—a horrible word that is used more and more—the people undertaking the investigation to go as quickly as possible.

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I wish to emphasise the fact that there is a real imperative in undertaking such investigations to work as speedily as possible. Once the perpetrators are aware that one of their number has been identified, the evidence will evaporate quickly. The important thing is to have the scope; everyone knows that time is absolutely the essence in such cases. I know that there are those who will say, "You don't need it", but the tragedy is that we do. There are cases in which, even if we work as fast as we can, we may not be able, tragically, to stop them. We have had examples of that in our history.

Schedule 8 has a brake, which can be applied by the court. The court will be able to extend the period in the warrant for more than seven days only if the warrant has already been authorised. The police can detain for 48 hours; if the conditions of the investigation meet the criteria stipulated in the Act, the police may apply to a court for an extension of that 48 hours. The maximum that the court could allow at that point is five days, in theory. Usual practice is for the court to grant smaller extensions of 24 hours or 48 hours and for the police to have to return to the court to request and justify further extensions. Only if the police had already obtained a warrant extending detention to the full seven days would they be able to make a further request under the provisions in the amendment to go into the post-seven-day period.

The application and use of the power in Clause 284 will be subject to annual review by the independent reviewer of the Terrorism Act 2000; that is, the noble Lord, Lord Carlile of Berriew, who has spoken in the debate and has been fully briefed on the formulation of the amendment and the reasons for it. I am grateful to him for having participated.

Noble Lords will have to make a balanced judgment. Detaining people, whatever they are suspected of, is, as my noble friend Lady Kennedy of The Shaws and the noble and learned Lord, Lord Lloyd, said, a very serious matter for any democracy. It is right that such a measure should receive very careful scrutiny. However, it is for noble Lords to judge whether on balance the limitation of liberty being proposed is proportionate and justified in a very small number of cases, in relation to the potential damage that the actions of suspected terrorists would have on society.

The noble Lord, Lord Hunt of Wirral, asked about the most recent incidents—the terrorist attacks by the Real IRA, which are well known to us all and which caused a huge amount of mayhem, disruption and distress in our country. We can rejoice that the same officers who seek a greater extension have been able to keep us safe so far. However, it would be foolish for me not to emphasise to the Chamber how difficult that has been. There have been occasions when, had there been more opportunity to investigate matters, we might have been able to do that which we eventually did more quickly, limiting the risk to which we put our nation. It will be no comfort, if we have a slip between cup and lip, to be told that the consequences of that slip could

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be justified to the people subjected to it by virtue of the fact that there is no difference between terror and drug trafficking.

4.45 p.m.

Lord Thomas of Gresford: Our amendment, Amendment No. 230B, which aimed at a compromise period for the length of a detention, is clearly weak and inadequate. In the light of the debate that we have heard this afternoon with my friends and colleagues, not to mention tutors, it is clear to me that there is no basis in principle for the compromise that our amendment contains. Therefore, I do not propose to press it.

The noble Baroness, Lady Kennedy of The Shaws, pointed to the clash between civil liberties and the security and safety of the state. If a defendant is kept without charge for an undue time, civil liberties are clearly violated. I admire the statements of principle made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness. On the other hand, a lengthy investigation and interrogation before charge, about which my noble friend Lord Carlile of Berriew spoke, may be necessary for security. How does one achieve the balance?

The noble Lord, Lord Clinton-Davis, pointed us in the right direction when he emphasised the necessity to consider the degree of judicial control. It is in the intensity of judicial control where an investigation takes place over a lengthy period. It is in that where we may ultimately find a solution and safeguard. Because of the noble Lord's intervention, I was delighted to hear from the Minister that she proposes to have a formal consultation with the district judges, who exercise that control at the moment.

By Report stage—the matter will certainly be returned to on Report—I should like to have light thrown on the problem from that quarter. I should like to know how often the suspect is seen. Is there only an application made to a judge, who takes no further interest in the welfare of the person detained after that application has been made? To what degree are the suspect's physical and psychological health supervised? What reports are brought back to the judicial authority on the progress of the investigation?

I do not accept some of the justifications for the Government's position. In my experience—in the cases that I have dealt with—it is quite impossible to analyse a hard disk within 14 days of seizure. I do not think that a period of seven, 14 or 21 days would make much difference at all in that regard.

However, I take heart from the statistics that the noble Baroness gave; namely, that in the past 15 months or so for which figures are available, only 16 out of 212 suspects were held into the sixth day. Therefore, it does not appear at the moment to be a huge problem which is preventing the proper investigation of these cases.

I have already thrown a huge amount of cold water on my own amendment and the Committee will not be surprised if I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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On Question, Whether Clause 284 shall stand part of the Bill?


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