UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1007-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

HOME AFFAIRS COMMITTEE

 

 

HOME OFFICE'S RESPONSE TO TERRORIST ATTACKS

 

 

Tuesday 10 November 2009

ASSISTANT COMMISSIONER JOHN YATES

SIR KEN MACDONALD QC

MR KEIR STARMER QC

Evidence heard in Public Questions 90 - 196

 

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 10 November 2009

Members present

Keith Vaz, in the Chair

Ms Karen Buck

Mr James Clappison

Mrs Ann Cryer

David T C Davies

Mrs Janet Dean

Patrick Mercer

Martin Salter

Mr Gary Streeter

Mr David Winnick

________________

Witness: Assistant Commissioner John Yates, Head of Specialist Operations, Metropolitan Police, gave evidence.

Q90 Chairman: Good morning. Could I remind all of us present that we have a second session this afternoon, when we will be looking at the Extradition Act and we have another witness the Home Secretary. This is the second evidence session for the Committee's inquiry into counter-terrorism. We are very pleased to see here Assistant Commission John Yates, Head of the Specialist Operations (Counter-Terrorism) at the Metropolitan Police. Welcome and thank you for fitting us in. I know you have had a very busy schedule over the last few weeks. I would refer all those present to the register of Members' interests, where the interests of all members are registered. The Home Secretary said last week that some of the counter-terrorism proposals made after 7 July 2005, the London bombings, were "too draconian" and not the right way to go. Do you agree with the Home Secretary that some of the proposals were too draconian?

Assistant Commissioner Yates: It depends which proposals you are referring to, Chairman. I think we just about have the balance right. We need to tease through some of the issues occasionally, particularly around things like section 44 of the Terrorism Act and we need to adapt and adopt proper procedures around these issues as these events go on. I think we have just about got the balance right. The level of scrutiny around many and several issues that we confront on a day-to-day basis is huge, both from committees like this, the police authorities, the media, and I think we respond to that in an appropriate way.

Q91 Chairman: His comment that we went too far you cannot agree with.

Assistant Commissioner Yates: I do not think so. We constantly have to test these issues and we have to consider them in the light of developments and in the light of ongoing cases.

Q92 Chairman: How many police officers are currently engaged in counter-terrorism activities?

Assistant Commissioner Yates: The totality - so this is counter-terrorism and protective security across the country - is about 7,700. That includes all port policing, counter-terrorism officers and other matters as well. In terms of engaging directly with what people think would be counter-terrorism, it is just over 3,000 across the country.

Q93 Chairman: We were told by Lord West, our first witness in this inquiry, that there has been an increase in funding for the security services. Has there been an increase in the funding for counter-terrorism?

Assistant Commissioner Yates: Overall, yes there has, of about 30% over the last three years. About £80-odd million, rounding it down. £80 million roughly. There has been a 30% increase.

Q94 Chairman: Do you think that is sufficient for you to carry out your duties?

Assistant Commissioner Yates: Again it is all a matter of balance, in terms of what we must achieve in counter-terrorism and what the other police priorities are as well. I think the balance is just about right. If events dictate that we should have more, then of course we will make the case out, but at the moment I think the balance is just about right.

Q95 Mrs Dean: Are PCSOs actively involved in counter-terrorism policing?

Assistant Commissioner Yates: Yes, they are involved in a number of areas. They are involved in local safer neighbourhoods, in terms of community safety and the visible presence there. They are certainly heavily involved - you see them around the Government security zone - around Westminster and the broader geography around here. They are an integral part of the counter-terrorism response, particularly in terms of the visible presence they provide.

Q96 Mrs Dean: Are they used in stop and search?

Assistant Commissioner Yates: They have quite unusual powers in terms of that. First, they must be under the direction and control of a fully fledged warranted officer. In terms of section 44, yes, they can be deployed on that. They can stop vehicles, they can search vehicles, they can search articles that people are carrying, but they cannot search that person in terms of the more intrusive powers that a fully warranted officer has. It is under the direction and control of a fully warranted officer. They receive very careful training around these issues, and training and briefing in terms of what they can and cannot do, but, I repeat, they are an important and integral part of the counter-terrorism response.

Q97 Mrs Dean: Are they always with a warranted officer when they do stop and search?

Assistant Commissioner Yates: I believe that is the case, that they must be under the direction and control of a warranted officer, yes. You will see them patrolling on their own and in pairs when it is warranted.

Q98 Mrs Cryer: Assistant Commissioner, is the funding that goes to counter-terrorism work through your department ring-fenced or is there a chance that it may be cut at some point in the future?

Assistant Commissioner Yates: It is ring-fenced in terms of what we can use it for. We have to make it very clear that the funding that is provided for us is used for that purpose. There is very significant oversight and audit of that. In terms of the overall funding pot, that of course is a matter for the Home Office and the Office of Security for Counter-Terrorism (OSCT). I do not know what the future holds. We have a generous settlement at the moment in terms of the current CSR period. Clearly there is likely to be pressure in the future on all funding pots, so I do not really know, but it is not really a matter for me, it is a matter for the Home Office and the Treasury.

Q99 Mrs Cryer: For the immediate future, is the counter-terrorism pot of money ring-fenced?

Assistant Commissioner Yates: Until the end of this financial year, yes, and, in theory, until the end of the 2010-11 period, yes, but I am also a pragmatist and understand that there is significant pressure on budgets on all fronts.

Mrs Cryer: Thank you.

Q100 David Davies: Assistant Commissioner Yates, you have said in one report that section 44 should be replaced. A new scheme has been tried out in four areas: Brent, Newham, Southwark and Tower Hamlets. Section 44 is meant to be entirely random, so that you are not singling people out who look suspicious, whereas section 1 can be done on suspicion and section 60 can be purely at random, on passers-by who may look suspicious to a police officer. Is this new scheme going to be some combination of those three sections?

Assistant Commissioner Yates: Yes and no. I think the report you are referring to was a report for the Police Authority of about six months ago, which was in terms of community feedback, Lord Carlile's oversight and the like. We acknowledged that the application of section 44, particularly in the Met, was too draconian. In essence, on a monthly basis, I provided an authority, signed by the Home Secretary as well, that anybody in London could be stopped under section 44. In terms of prescribing what you can and cannot do and where you can do it, we felt that was too draconian and so we responded to those concerns. Now it is much broader than the four boroughs; it has now gone across London - so there have been developments since that date. It is a patchwork authority. Clearly it is on a monthly basis, responding to the intelligence picture. It can change. It is very distinctive every month in terms of the intelligence that I look at and I sign in order to provide the authority, but every borough is now being asked to provide where they think they need the power, in terms of either iconic sites (particular threat sites), transport hubs and the like, so you have a patchwork authority where you can use the authority under section 44.

Q101 David Davies: Is it not the case that one of the flaws there is that it is meant to be random? If you saw somebody coming along who in your opinion looked a bit like a terrorist, but you had just stopped to search somebody else who did not, really it might be quite hard to justify randomly picking out the next person you see.

Assistant Commissioner Yates: Section 44 now operates around the more iconic sites, where it can be random, taking account of the intelligence picture. We found that a lot of the stops under section 44 were actually under section 43, where you require reasonable suspicion, so it was a misguided, mis-briefed use of the powers, if you like. Section 43 of the Terrorism Act, which is with reasonable suspicion, operates anywhere - and that still is the case. Section 44, which is the catch-all slightly draconian power, is now operating in London - and I can only speak for London on this point - in particular areas where the local borough will respond in terms of: "This is an iconic site, this is of particular area of concern to us, with critical infrastructure and the like, where we think we ought to have that power operating." As a result of that, we have reduced our use of the power by about 46% over the past three months. It is a proper, legitimate response to feedback and public concerns around an overuse of power.

Q102 Patrick Mercer: Using similar powers in Northern Ireland, we did not get much negative feedback because, frankly, it was just a fact of life. It settled down and the people were used to having their time wasted, for the most part. From time to time, when we apologised and said, "I am frightfully sorry for having to do this," people would say, "No, not at all. This makes us feel more secure." How much positive feedback do you get from people?

Assistant Commissioner Yates: I am not aware of any positive feedback, but that is not to say there is not any. It is not the sort of information that may filter up to me.

Q103 Patrick Mercer: No-one says, "Thank you for stopping us."

Assistant Commissioner Yates: No-one says thanks. It depends what the current perception of the threat picture is. I am sure after 7/7 in 2005 people would have been delighted to have been stopped under those powers. As that perceived threat dissipates, then I think it would become less acceptable, even though the threat may remain broadly similar in a certain sense. It is that sense.

Patrick Mercer: Thank you.

Q104 Ms Buck: Is the issue that section 44 was perceived to have leaked over into broader stop and search powers. I say this from some experience, having a 15-year old son growing up in London. Virtually all of his friends have been stopped under section 44, when normally you would expect, if there was going to be a stop and search of teenagers, that it would be under the section 60 or whatever powers. To what extent do you think that was happening in parts of London and why was it happening? Perhaps you could tell us, in answering, what the trend figures were that led to the report on the review of section 44.

Assistant Commissioner Yates: On the first part, on whether there was there a leakage over into section 1 and section 60 powers, that may be the case. But the issue was that we had become broadly reliant on this power post 7/7, post the very significant threat, and there was probably an absence of detailed briefing and understanding amongst a lot of our staff that: "This power needs to be used in this way. This is what it is for. There is section 43, reasonable suspicion, which you can use at any time and any place." There may have been an overuse of the power in that sense. We recognise that. In terms of the trend you talk about, again, post Haymarket in 2007, we saw a massive spike. You would expect that and I think people would understand that in the sense that they would probably welcome it. There was a spike. As I say, it has gone down considerably now by a factor of almost half in the last several months. I think it is being used appropriately, properly and proportionately now.

Q105 Ms Buck: Do we have the specific data?

Assistant Commissioner Yates: I can certainly share that with you.

Q106 Ms Buck: We accept there will be spikes, but the broad trend date since 2005 would be helpful.

Assistant Commissioner Yates: We can certainly provide that. I think we publish them on the website, to be honest. The Police Authority require them on a regular monitoring basis, but certainly we can provide those.

Q107 Ms Buck: We do not live in a perfect world, so I accept that not every single officer on the street is always going to use their power proportionately, but it does worry me that the sheer scale of extended use of section 44 could have occurred because people did not necessarily have a grasp of what they were doing. What went wrong with the training and guidance to operational officers, such that it could have been so vague as to allow that explosion of the use of section 44 to have occurred?

Assistant Commissioner Yates: There was an explosion of use, as I have said, after a particular iconic event. That is to be expected. That is what we would want to happen, to be honest. In terms of the specific details of section 44, in terms of its use, our attention may not have been as thorough as it could have been. I am not saying it has gone wrong but I think we could have paid more attention to that. In the last six months, we have paid very particular attention to the quality of the briefing on a daily basis at our boroughs across London. It is one of the issues I look at on the monthly authority signing. What does the briefing look like? What is the quality of the briefing? What is the quality of the intelligence supporting that briefing? We make sure, as is appropriate in terms of the level people can receive in terms of their intelligence, that boroughs are aware of that and that all the staff are aware of it. We pay particular attention to it.

Mr Clappison: You were asked a moment ago about positive response. I would suggest to you that there is a large silent majority of people in this country, including many of my constituents, some of whom suffered in the London bombings, who support the work of the police in this area and do not wish to put their work under the microscope in order to generate criticism of them.

Chairman: Is that your question, Mr Clappison?

Q108 Mr Clappison: Yes. Will you take that into account, please?

Assistant Commissioner Yates: Yes. I noted it.

Chairman: Normally Mr Clappison has several questions to put to our witnesses.

Q109 Mr Streeter: Assistant Commissioner, you talked earlier about getting the balance right. Following on from Ms Buck's questioning, you have now reined back slightly on the use of section 44 - as I understand it, in the last six months. No doubt that goes down better in terms of community relations and is more proportionate, but are you confident that you are not now damaging the counter-terrorism activity reining back in this way?

Assistant Commissioner Yates: No, I do not think we are. We do keep it under constant scrutiny in terms of safety. The authority will change instinctively every month to reflect the intelligence picture we are receiving. It is not as if it is a blank authority I sign every month. There is an abundance of material that I will see every month. It is different every month. For example, in the coming month we will be looking at the Christmas markets, the Christmas shopping areas and all those areas where the threat is likely to rise in terms of people 's perception of public safety. It changes every month. We monitor it very carefully. We are looking at the quality of the stops as well. It is kept under constant scrutiny.

Q110 Mr Streeter: Presumably the State Opening of Parliament is something that could give you palpitations.

Assistant Commissioner Yates: Yes. You will be pleased to know that the 44 authority is in operation in all of Westminster, in the Government security zone, for obvious reasons.

Q111 Chairman: But it is not able to manage to open Carriage Gate, which has been shut for a few days because of a missing screw!

Assistant Commissioner Yates: Another problem for me.

Q112 Mr Streeter: Neither could it stop the climate change protesters getting up on to the roof. Do you have any observations about how they were able to access the Palace of Westminster within about 30 seconds using ladders?

Assistant Commissioner Yates: That is a most regrettable incident, but it is under review at the moment and I am sure we will be reporting back to the appropriate authority once the findings of that review are produced.

Chairman: We are quite certain they were not pass holders and they got in on their own.

Q113 Mr Winnick: Mr Yates, you recognise, as we all do, the overwhelming majority of Muslims in this country are law-abiding, they loathe terrorism and recognise that when terrorism come about, like 7/7, they are as likely to be victims as anyone else. That is not in question at any serious level. Of those elements/individuals, few in number within the Muslim community who so distort their religion as to justify and perhaps carry out terrorism, how many would you say at this stage, in so far as you can give a number - and Lord West did give a number last year - could be considered an acute danger to the security of Britain?

Assistant Commissioner Yates: It is probably unwise of me to speculate about numbers. Clearly the Security Service have the lead in terms of intelligence, in terms of counter-terrorism, but I think Jonathan Evans is on record as saying about 2,000 people----

Q114 Mr Winnick: That is the number Lord West used.

Assistant Commissioner Yates: Yes. That is a number on public record from the DG in the Security Service. The intelligence lead is a matter for them. We work very closely with them in what is an excellent working relationship, and for me to speculate on a numbers beyond that I think would be unwise.

Q115 Mr Winnick: Would it be right to say that the feeling generally amongst the police and security agencies is that it has not in any way been reduced but there is a number of people - and you yourself do not want to give a number, for reasons I perfectly understand - who present, as I mentioned a moment ago, an acute danger to the security of our country?

Assistant Commissioner Yates: I think that is a fair assumption, yes.

Q116 Mr Winnick: There are other groups, are there not, which could be described here as racist and fascist elements - most of whom presumably do not wish to engage in terrorism of any kind, although some do? For example, a BNP election candidate called Robert Cottage was found last year with the largest amount of chemical explosives ever found in this country. There remains that danger of such groups, not necessarily just the BNP.

Assistant Commissioner Yates: That is correct. In recent months and recent years we have seen a growth around some of the far right extremism movements. Mostly, I have to say, they tend to be less organised. It tends to be the concept of the 'lone wolf'. We have seen several manifestations of that over the past months and several arrests, and there are ongoing cases which of course I cannot comment upon. This is something we take extremely seriously. We make sure we balance our resources appropriately, to ensure we can devote sufficient to the growth of that threat, the intelligence picture, and of course the response, should that be required.

Q117 Mr Winnick: My final question about those who want to commit murder for what may be described as political or religious reasons concerns the Dissident Republicans, who have surfaced again, I am told, in Northern Ireland. Do they in any way present the same sort of danger, in your view, in Northern Ireland and the mainland, as the IRA in the early days, when the IRA started again, the Provisional IRA, if we take as an example 1970-71-72? Does this group of thugs I have just mentioned present the same sort of danger?

Assistant Commissioner Yates: Throughout the 1970s, the 1980s and the early 1990s we saw the most dreadful carnage in Northern Ireland and on the mainland. The very fact that has not happened in recent years would indicate that the threat is not at that level. That being said, I know the Independent Monitoring Board for Northern Ireland reported this week that the threat from Dissident Republicans is as great as it has ever been in the last six years, so clearly the threat remains. The security services work very closely with the PSNI over in Ireland in terms of countering that threat and of course we monitor that very closely on the mainland as well. There have been very worrying developments in Northern Ireland in recent months, as demonstrated in the recent report of the Independent Monitoring Group.

Q118 Martin Salter: Building on Mr Clappison's remarks, would you also agree that if there is an overuse of the counter-terrorism powers and an inappropriate use of them, constituents like mine who suffered in the London bombings - we had a casualty in my constituency as well - are put at greater risk if, as a result, that shuts down the flow of intelligence from communities. It is very important to get the balance right.

Assistant Commissioner Yates: It is a constant battle to get that balance right. We saw with the recent events up in the North West of England the effect on community confidence. When we disrupt what we consider to be a significant plot but it does not manifest itself in charges, those issues really do hit home. We have to work constantly with communities, which is why it is so important that a lot of our counter-terrorism effort is based in local communities and we get that feedback to us.

Q119 Martin Salter: Would it be fair to say that we collectively have destructed more terrorist plots as a result of good quality information coming out of communities than we ever have through the use of section 44 powers or other stops? I get the impression that it is intelligence that one needs in the first place.

Assistant Commissioner Yates: There is not really a benchmark to compare it with, but, as I say, we work very closely with the security services around these issues. The absence of an attack should not be seen as the absence of a threat, but, again, it is good news that we have not been subjected to the attacks in 7/7 and 21/7 in recent years.

Q120 Martin Salter: I have the dubious pleasure of representing Mr Lewington in Reading, the rightwing extremist who was found with the bomb-making material and all the rest of it and the Ku-Klux-Klan manuals. To what extent are these rightwing people who wish to use violence and acts of terrorism linked into other European networks? Or are they slightly disturbed freelancers getting their inspiration from the internet and other sources - in the way that Lewington appeared to be?

Assistant Commissioner Yates: It is much more the latter. The internet is a fertile feeding ground for some of these issues. You can receive briefings from around the world about these matters and act upon them through that medium. My assessment is - and it is not a detailed assessment - that it is not well organised. It tends to be lone individuals acting in that way, but, nevertheless, presenting considerable danger to public safety.

Q121 Martin Salter: We have successfully put in place legislation making it an offence to download extreme images of rape and torture for private profit. Is it an offence to have in possession on your PC manuals on bomb making?

Assistant Commissioner Yates: Yes.

Q122 Martin Salter: It is. Under what legislation?

Assistant Commissioner Yates: The Terrorism Act.

Martin Salter: Thank you.

Q123 Chairman: Assistant Commissioner Yates, there is a report in the Guardian of 17 October concerning security services and their activities under the Prevent Strategy, that they were gathering information about people unconnected with terrorist activities - basically innocent members of the Muslim community. Did you see that report? Do you have any comment to make as to whether or not it is correct?

Assistant Commissioner Yates: I have certainly seen the Guardian reporting on the Prevent matters. I do not agree with it. Prevent has to be at the heart of everything we are doing around counter-terrorism. I have never known a policing strategy since 1829 that has not included prevention as one of its primary objectives. The Guardian article was misleading in that sense. It is not a spying operation; it is us working with communities to keep communities safe. The Prevent Agenda is much more than the police. Many of the 16 government departments have an interest in Prevent. Why would we not do it? It is crazy to suggest that we would not have Prevent at the heart of what we do. We do it with everything else in policing. Be it drugs, be it basic criminal activity, Prevent should be at the heart of everything we are doing. If there is a selling issue in terms of how we have sold Prevent, then we may need to address that.

Q124 Chairman: You have absolutely no evidence, no information that innocent people have in any way been targeted?

Assistant Commissioner Yates: I have no evidence. In the early 1990s and the Irish problem to which Mr Winnick referred, the strapline was "Communities Defeat Terrorism". It is exactly the same now. We must not get away from that.

Q125 Patrick Mercer: How do you ensure good co­‑operation between so many of the different agencies that are involved in counter-terrorism policing?

Assistant Commissioner Yates: It is a constant challenge - I would not say otherwise - but the working relationships that have evolved between the police, the security services, our international partners in terms of the 'pursue' angle are world class. Everyone is aware of their role: we talk, we share and we discuss matters. The broader challenge is around things like Prevent and Protect, where it is not just a policing matter but we have to corral all the efforts across all of government to ensure that all the resources are targeted in the best way. That is probably the broader challenge. In terms of the 'pursue' issue, in terms of investigation and intelligence, I think the current arrangements work extremely well. Of course there are little rubs - there are bound to be - but we get through those pretty quickly.

Q126 Patrick Mercer: Are you convinced that the Counter-Terrorism Units are working properly?

Assistant Commissioner Yates: Yes, I am. Our Counter-Terrorism Units across the country are the envy of the world. No-one does it like we do it in terms of that local community connection, which we then lift up into a national response as it is required. We have a clear understanding that agreed with all chief constables about how this would work, both in day-to-day running and in crisis running. We have more work to do. Interoperability is a constant challenge for us, in terms of making sure we have the same doctrine around command and control, the same doctrine around surveillance, but again there is a huge will and support from law enforcement colleagues across the country to make this work. We really do have an excellent system here, and, as I say, it is the envy of the world.

Q127 Patrick Mercer: My perception is that the Counter-Terrorism Unit did not really get into step, it did not really get into its pace, until after the aircraft plot of 2006. There was then a huge impetus which forced it forward. That was intercepted, thank God, but we had been bombed in 2005, with the Twin Towers happening in 2001. Why so slow?

Assistant Commissioner Yates: We did not have CTUs until after 11/05 clearly.

Q128 Patrick Mercer: Why not?

Assistant Commissioner Yates: I cannot really speak of the past, but clearly events do drive activity and the appalling events of 2005 provided the impetus to make this happen. Incredibly quickly, the national network was built and set up, both infrastructure and people in training, within two years of a three-year programme. It was built a year ahead of its time. Yes, there may well be reasons why we did not do it before, but the fact of the matter is we have done it now. It works well, it is well-trained, well-led and it operates very effectively, in my view.

Q129 Patrick Mercer: I take absolutely that we are where we are. My own view is that it is working well. I think particularly OSCT is doing a smashing job - I really do. Do you think a National Terrorism Agency (call it what you will) is the next logical step?

Assistant Commissioner Yates: No, I do not. The real power and value of the current network is that it is embedded at the local level, where it picks up local intelligence. It is closely engaged with the communities; Chief Constables' accountability and oversight of it locally is very, very clear. It is also very, very clear to Chief Constables what happens in a crisis and where the might of the national network will pull together. I would be loath to remove that distinction from the mother ship, if you like, that a national agency could foresee full time.

Q130 Chairman: Your predecessor Andy Hayman disagrees with you in the comments that we have seen he has made. He will be giving evidence to us on 8 December. We have finally tracked him down. He is very clear that he does not think that COBRA works very well. He says that too many politicians are involved in making these decisions, that it is too reactive, and that what you need is a regular body where senior people, such as yourself and others, can get together - a national security council along the same lines as they have in the United States. Surely Mr Hayman has a point.

Assistant Commissioner Yates: Andy did an immense amount of valuable work in terms of counter-terrorism and he is entitled to his view. I do not agree with his views round COBRA. I think COBRA works very well. I have seen it operating on numerous occasions.

Q131 Chairman: Is it not reactive, Assistant Commissioner? It only meets when there is a crisis. Should it not meet more regularly in order to review the current situation?

Assistant Commissioner Yates: There are other bodies. Of course COBRA is reactive, by the very nature of it. It is there in emergencies. But there are other bodies that meet on a regular basis that discuss the very issues that you were advocating then.

Q132 Chairman: How many bodies meet on a regular basis to discuss the issues?

Assistant Commissioner Yates: On a weekly basis? There must be around 40 people who meet on a regular basis.

Q133 Chairman: On a weekly basis?

Assistant Commissioner Yates: On a weekly basis, across all the government agencies involved in the CT Unit. That is a meeting at which the threats and the like are discussed and appropriate action is considered. Of course operational matters remain entirely a matter for the police and security services. There is a clear distinction.

Q134 Martin Salter: Building on what Mr Mercer was saying, the Counter-Terrorism Units came into being, as you said, very quickly after 2005.

Assistant Commissioner Yates: Yes.

Q135 Martin Salter: The 9/11 atrocity fairly shook the world, changed the landscape considerably. At what point did budgets for counter-terrorism start to rise? Was it post 2005 or was it post 2001?

Assistant Commissioner Yates: I have not been involved in that distinct part of history, but my recollection is that there was a significant rise in the budget post 9/11 and a considerable amount of work done by people like David Veness before me in terms of creating resilient infrastructure to deal with a similar incident to 9/11 in the UK. But it is my understanding that it is really only in the post 2005 world where we clearly saw the need to have a more resilient structure away from London as well in terms of a regional response to these matters.

Q136 Ms Buck: To go back to the Prevent Agenda, there was very powerful co­‑operation from mosques and community leaders and faith leaders with the Prevent Agenda. I know this first-hand from my local constituency. They, like everyone else, are involved in a balancing act of maintaining support within their own communities for the relationships they have with the police. What is your assessment of the extent to which that co­‑operation is being maintained? What lessons are being constantly learned and reviewed about how to maintain that level of co­‑operation without in some way compromising those who are leading the community and in the mosques?

Assistant Commissioner Yates: My assessment is that the co­‑operation is still excellent. There are very good examples, like the independent case down in Bristol where a radicalised man, who was turned in by his local mosque, was preparing to do carnage in Bristol. There are some great examples of that. But we must not be complacent. We must ensure, in my view, that Prevent is much broader than the local community. It is about the far-right, it is about extremism in all its constituent parts, and that is what we have to make clear. We must not be complacent about the relationships. We have to work with them all the time.

Q137 Chairman: Assistant Commissioner, you said that our units are considered to be the best in the world as far as counter-terrorism issues are concerned. Which is the European body that you deal with most? Is it Europol? Where would you go to in order to get co‑operation from other countries?

Assistant Commissioner Yates: It tends to be Europol, but it tends to be the direct relationships with the particular countries concerned, to be honest. That is a much more productive avenue from our perspective. We spend a lot of time building up our own networks and relationships across Europe and with Canada, America and Australia, because events over there clearly play out here very quickly.

Q138 Chairman: It is bilateral.

Assistant Commissioner Yates: Bilateral, trilateral, however many times you can go up.

Q139 Chairman: If you are not using Europol, is there another organisation that we should be using?

Assistant Commissioner Yates: We do use Europol, particularly some of the databases, which grow all the time, particularly our forensic links and the like. It tends to be the CT counterparts that you tend to use the most.

Chairman: Assistant Commissioner, thank you very much indeed for coming to give evidence to us today. We are most grateful to you.


Witness: Sir Ken Macdonald QC, gave evidence.

Q140 Chairman: Sir Ken, welcome back to the Select Committee. Thank you very much for coming to give evidence to this inquiry into counter-terrorism that we are currently conducting. We have been told that interception is most used as a tool for gathering information rather than evidence. Do you think that is correct?

Sir Ken Macdonald: No. I think it is fundamentally incorrect.

Q141 Chairman: Why?

Sir Ken Macdonald: In 2004 I was asked by Lord Goldsmith, who was then the Attorney General, to conduct an investigation in a number of jurisdictions which used intercept evidence. I travelled on that occasion to the United States and then to Australia and on other occasions to Canada. In the United States I met with the National Security Agency, the Drugs Enforcement Agency and a number of other representatives of agencies involved in law enforcement. Their experience of intercept is that it is an absolutely critical forensic tool in criminal trials. As they informed the Chilcot Review, and as is repeated in the report, they regard it as quite invaluable. The Australians and Canadians take the same view. I am not sure what it is about British criminals which means that if we are here and intercept their conversations, somehow this material will be of less use to us than the recording of American, Australian or Canadian criminals prove to be in those jurisdiction. I think it is a lack of imagination that fuels the view which you have cited, Chairman. If we had intercept available as an evidential tool and if we were directing intercept capability towards the gathering of evidence, I am absolutely confident that our experience would mirror the experience of other jurisdictions where it is used very frequently to great effect, and results in the saving of considerable expense because more expensive investigative tools, such as, for example, surveillance, are not required.

Chairman: Mrs Dean will want to explore further with you the practice in other countries.

Q142 Mrs Dean: As you have said intercept evidence is acceptable in other countries. Do you know why the UK does not allow prosecutors this option?

Sir Ken Macdonald: It never has. The UK and Ireland are the only countries I am aware of that forbid this practice. There are numerous cultural reasons why we do not. There are numerous other reasons that I do not want to go into if you do not mind. It is largely a cultural response on our part. We have never allowed it. The NSA in the United States said to me, frankly, that if they had no intercept regime there, they would probably oppose it too - because what organisation involved in that sort of work wants to be involved in criminal trials? But having had it instituted there, it works perfectly well for them. It is largely a cultural response. It is a powerful cultural response. There is serious concern within the agencies in particular that the use of intercept as an evidential tool would result in significant bureaucratic burdens upon them in terms of having to retain material and examine material for potential exculpatory effect and so on. One of their concerns is that they would have to divert some resource from frontline spying, if you like, into backroom retention and consideration of material. And that is true. It is really for us to decide whether we think that extra investment in this area is worth it. I am sure it is. One of the primary effects of intercept evidence in prior jurisdictions is to drive an increase in the guilty plea rate so that we have less contested trials. Contested trials in serious cases consume an enormous amount of public resource. The costs - and I gave this in evidence to the Chilcot Committee - would more or less balance themselves out. There would be some upfront costs of course. That is not a terribly precise answer but I do not think there is a single precise answer to your question.

Q143 Patrick Mercer: Is it instructive that the two jurisdictions you have mentioned who are reluctant about this are Southern Ireland and the UK - in other words, Northern Ireland. Is this a legacy of the intercept difficulties that we had with principally Republican terrorism?

Sir Ken Macdonald: That may certainly feed into it. It is also true that our intelligence agencies have played a role in intelligence gathering for law enforcement, and so there has been a relationship between our agencies and law enforcement has not historically existed in other jurisdictions and they are concerned about that being disruptive. I am sure, as you will be aware more than most, the Irish experience has had many legacies for us and that may well be one of them.

Q144 Patrick Mercer: What benefits would admitting intercept material have in court?

Sir Ken Macdonald: It increases the guilty plea rate. It has the potential to make trials swifter because the evidence is so compelling. I am sure it would develop the conviction rate. The conviction rate is already high in serious criminal cases but we have a very high contested trial rate in our jurisdiction and lowering the contested trial rate is a significant prize here.

Q145 Patrick Mercer: My memory goes back at least 20 years on the use of intercept material. We have constantly been struggling with this matter. Why is it taking so long to reach a conclusion?

Sir Ken Macdonald: There were three separate reviews while I was DPP, and they always started with a firm indication from the Prime Minister or the Government that they wanted to do this. During the course of the review problems were always thrown up. I have said before, Mr Mercer - and I am not casting aspersions on anyone here - that if you want to achieve a change as fundamental as this, it is absolutely essential that all parties come to the discussions and the negotiations willing them to succeed. I am not sure we have been in that territory.

Q146 Chairman: I know you are not casting aspersions on anyone in this room, quite rightly, but who do you think is holding it up?

Sir Ken Macdonald: I have already said the agencies have significant perfectly plausible concerns.

Q147 Chairman: When you say the agencies, do you mean the security services?

Sir Ken Macdonald: Yes. They have entirely plausible and understandable concerns.

Q148 Chairman: Is it the security services that have stopped this happening?

Sir Ken Macdonald: I do not want to put it that crudely. It is much more complex than that. There is a feeling that this is a reform that would be burdensome and might impact on the relationship between the agencies and law enforcement in a way which is unattractive. I understand those concerns. I am not in any sense suggesting that they are real and sincerely held concerns. We need to approach this problem in problem-solving mode, if I might put it that way, rather than intent to throw up difficulties the whole time.

Q149 Chairman: When you were told of these concerns, did you try to persuade either the Government - which would be the Attorney General - or indeed the security services that they were wrong?

Sir Ken Macdonald: Of course. Lord Goldsmith was the Attorney General during the time that this was relevant. To me as the DPP he was well known as a strong supporter of this reform. I did not need to persuade him.

Q150 Mr Winnick: The view has sometimes been expressed that those who are not very keen on anti-terrorism measures of a certain kind - and it is not my view, but nevertheless it is a view that is held - use interception evidence as a sort of panacea: that we need not do this or do that in combating terrorism but interception would provide the answer.

Sir Ken Macdonald: No, there is no such thing as a panacea in this area. The field is much too complex. I hate to slip into this sort of managerial jargon, but we need a toolbox that has a variety of tools in it and intercept, it seems to me, is a crucial tool. On its own, it will not achieve what it is capable of achieving if it is placed within the right environment. We need a much more developed system of co‑operating witnesses in serious crime, we need to develop concepts of plea bargaining, we need to move into a territory which encourages minor players in a conspiracy who have been intercepted to co‑operate with state prosecutions on the basis of their interception evidence in exchange for lower sentences. We need a whole suite of measures, it seems to me, to crack our high contested trial rate. Intercept is a vital part of that but it is not a panacea on its own.

Q151 Mr Winnick: You would not overestimate interception evidence as being the cure-all for dealing with the obvious dangers that this country faces.

Sir Ken Macdonald: No. Nothing on its own is a cure-all. Along with another suite of powers, in the right criminal justice environment - as the Americans have found, as the Australians have found and as the Canadians have found - it becomes critically important and critically useful.

Q152 Mr Winnick: The Chilcot Review said that: "The limited evidence available suggests that there would be a modest increase in successful prosecutions, at different levels of seriousness, as a result of the use of intercept as evidence." Clearly as far as they see it, there will be more successful prosecutions but on a pretty modest level.

Sir Ken Macdonald: As my opening remarks indicated, I challenge that. I do not think it is the experience overseas. The problem is that we are trying to look at cases that we prosecute at the moment without intercept. Look at the numbers of cases in that category that contain intelligence intercept and then ask yourselves in how many of those cases could that intelligence intercept be converted to evidentiary intercept. The point is that if you have intercept as an evidentiary tool, you start to use it, and you start to target people with that tool. Inevitably, it seems to me, the use of intercept evidence increases. It is very well known in the United States that the bulk of their serious crime cases proceed on the basis of intercept. I am quite confident if we had it as a tool in our jurisdiction it would be used more and more frequently. I have huge respect obviously for the Chilcot team and for the work they did, but on that conclusion I have to say I take issue. It is not my experience of what is happening overseas. If you look at what overseas agencies told the Chilcot Review, it does not seem to gel with their own view about what is happening in their countries.

Q153 Mr Streeter: Sir Ken, turning to control orders, you have apparently said that they are a "small gasp of defeat" and a "hopeless device in the modern democracy" - from which I discern that you are not really in favour of them. Could you expand on how you think they fit into the system and why you do not like them?

Sir Ken Macdonald: We need to acknowledge when we are discussing this - as I usually do when I discuss it - that the Government faces a genuine dilemma. When it is confronted with people it feels are a threat to security but it cannot prosecute them because it does not have enough evidence and it cannot deport them because of Article 3 of the European Convention (which prevents us from deporting people to countries where they might face mistreatment), what is it to do? My answer - and this may be a counsel of perfection, but I am afraid sometimes due process requires counsels of perfection - that you have to develop investigative tools to try to acquire evidence that can be deployed in a due process environment - as I say, in a court of law in a trial - against individuals, if you want to interfere with their rights and take away their liberty in any way. No other jurisdiction that I am aware of has thought it necessary to go down the control order route. The Americans do not, the Canadians do not, certainly no other common law country does. I think we made a mistake in doing so. The reality of the control order regime as it exists at the moment is that it does not work. A number of these men disappear. The others are confined to their homes to a greater or lesser extent. I am quite sure that the degree of surveillance that is required to ensure they stay that way is pretty immense. Intercept is something which could have a role to play in this area. But not just intercept: other investigative techniques, trying to turn witnesses, trying to obtain co-operating statements and so on and so forth. Sometimes, if you are going to be loyal to a constitutional due process system, you have to accept that that comes with an element of risk; otherwise we would lock up people without trial on suspicion in a wholesale fashion. We do not do that because we recognise that there is a trade-off here between risk and constitutionality. I do not like control orders. I do not think they have worked. I think, frankly, they have brought our system of government into disrepute.

Mr Streeter: Thank you for that excellent answer.

Q154 Chairman: Presumably you said all this when you were DPP. You are not just saying it now because you are the ex-DPP. You said this to the Attorney General and to the Home Secretary.

Sir Ken Macdonald: When I was DPP, I spoke publicly about issues which impacted upon prosecutors where I thought it was necessary - often when you asked me the question, Mr Vaz. You asked me the question about 42 days and that was the first time I made my views plain. When issues did not concern prosecutors, I did not address them. Control orders are not a criminal justice issue. It is a part of the civil jurisdiction. I do not think anyone would have been under any illusion about what my views would be likely to be about control orders, but whenever I was asked about them, and I think I was asked about them in this Committee, I said that they were not an issue for the DPP.

Q155 David Davies: Britain is the only country with common law which has accepted the Human Rights Act which incorporates Article 3. When you compared us just now to other countries, it is not quite a straightforward comparison, is it?

Sir Ken Macdonald: I take your point, Mr Davies. The United States would certainly have difficulties deporting individuals to countries where they would be likely to suffer, in the American Constitutional term, "cruel or unusual punishment". I think there is a similar provision in the Canadian Charter. I am not sure about Australia.

Q156 David Davies: One has the feeling that the Americans would not have allowed such people in in the first place.

Sir Ken Macdonald: That is a different point. You are quite right, they may have taken them to Guantanamo Bay which was an institution precisely designed to -----

Q157 David Davies: Or turned them back at the airport.

Sir Ken Macdonald: Yes. It was an institution which was precisely designed to be outside the embrace of the US Constitution. I think they made a mistake. I think they should have had more confidence in their Constitution to protect them as well as to guarantee their rights. That is my position on that. But you make a valid point, which is that Article 3 of the European Convention prohibits us from doing that. My own view is that the British state should not deport people to countries where they might suffer torture or mistreatment. I think that is an uncivilised thing to do.

Q158 Patrick Mercer: There are two other devices we ought to look at on which I would be interested to hear your views: questioning after charge and plea bargaining.

Sir Ken Macdonald: I have always supported questioning after charge. When I was a defence barrister at the Bar I could see no difficulty with it. It is one of the rules that developed a long time ago when people in custody were virtually unprotected. If you have questioning after charge of a prisoner who is legally advised, who has all of the protections which our constitution now offers prisoners, I see no difficulty in it. There is a significant advantage to the prosecution - and this is a fair advantage - that if we put questions to a defendant, a prisoner, which he refuses to answer, we can, with the judge's consent, invite the jury to draw an adverse inference from his failure to answer those questions. If we discover evidence against a man after he has been charged, under the current rules we cannot put that to him to gain the inference if he refuses to answer. I think that is unfair to the prosecution. I fully support questioning after charge with appropriate safeguards. A man should be represented. He should not be dragged from his cell. If he does not want to come from his cell to be questioned, he should not, but if he declines to be questioned, the prosecution should be entitled to an adverse inference if the jury think it is right to draw one. I support plea bargaining. I know it is a sensitive area, but I have always supported plea bargaining.

Q159 Ms Buck: Lord West told us - it is no secret - that he would much rather not have control orders, but you have set out very clearly that it is a dilemma and a very fine balancing act that governments have to deal with. You have also explained to us a number of approaches that you think might be effective in that context to allow us to go down a different path. Why do you think that the Government does not feel about to take those particular steps? What are the barriers that prevent the Government going down the road that you have now outlined for us which would perhaps provide a viable alternative to control orders?

Sir Ken Macdonald: Partly the Government got itself into a bind, into a sort of war of attrition with the courts. The original scheme was to keep just foreign nationals in detention. The courts said that was no good: "You have to keep everyone in detention." Then the courts said, "You can't keep people in detention anyway without a due process trial. The Government is where it is. It is always difficult to extricate yourself from a policy which has failed. I think this policy has failed. I suppose if the Government was setting out to try to deal with the situation now, it would not go down the route of control orders, and we will have to see what happens if there is a change of government. I think this is just a question of it being difficult to extricate yourself from a failed policy. I really do acknowledge the difficulty the Government are in. When I was DPP and the July 7 bombs went off, I had a reaction to it which was quite unexpected on my part, which was a sense of failure and guilt that something like this had happened while I was DPP - although there was nothing I could have done about it, in essence. That must have been massively magnified for the Prime Minister, the Home Secretary and everybody else. People react sometimes to these events in a hyperactive way. Many Western governments were guilty of that. I quite understand why it happened and I think control orders are one example.

Q160 Ms Buck: Your sense is that this is an inability so far to extricate themselves from the dilemma they are in, not, in a sense, a weighing up of the pros and cons of various alternatives and seeing practical measures to introduce in each of them so great that we are not yet in a position to be able to offer an alternative.

Sir Ken Macdonald: I am sure that is a part of it. I do not mean the Government is sitting there staring into the headlights like rabbits. They obviously are thinking about how they can get out of this and what alternatives might be. The trouble is they have to come up with an alternative that is going to be acceptable to the courts. If anything which represents a serious interference with liberty is not acceptable to the courts, it is rather difficult to see what else they can go for, other than doing everything that can possibly be done to mount prosecutable cases against individuals who represent a serious risk.

Q161 Mr Clappison: You are very fair in the difficulties which you ascribe to the Government in the very understandable dilemmas that they faced and the reaction which you had yourself. Going back to the question about deportation, you obviously have a strong view about that. Nobody wants to see people exposed to torture and treatment. Do you think there is anything worthwhile in exploring guarantees, given for people who can be deported back to another country to ensure that their treatment in another country does not contravene human rights?

Sir Ken Macdonald: Yes, I do. That is part of the Government's duty. The Government has a Foreign Office and it has intelligence services and it has ambassadors abroad, and it is clearly in a position to negotiate with foreign countries and ought to be in a good position to determine whether treaties which it enters into are likely to be adhered to by other countries. I should have thought that if the Government enters into a treaty with another country guaranteeing the safe treatment of individuals who are going to be deported, the Government should be given a high degree of respect for its view as to whether that treaty is likely to be upheld or not. The Government should be in the best position to make that determination - I should have thought, in many circumstances, in a better position than the courts. As I say, the Government has a diplomatic service and intelligence agencies and all the rest of it. Assuming the Government enters into those negotiations with good faith - and I am sure that it does - if it concludes a treaty with a foreign jurisdiction, it seems to me that that treaty should be accorded a high degree of respect in this country and indeed by the courts in this country.

Q162 Mr Winnick: Sir Ken, now that you can speak more freely, having given up carrying out your duties, if I may say so, in such a distinguished way for those five years you were the Director, bearing in mind the acute danger that Britain has faced from the latest terrorist threats over the last nine or ten years, how far do you feel there has been, if there has been, a serious erosion of civil liberties in our country? I assume that you recognise the necessity of those measures which have been brought in. How far has there been any serious erosion of civil liberties?

Sir Ken Macdonald: I think we avoided the most serious erosions that we might have suffered. My experience was that the Government was not composed of conspiratorial figures who wanted to destroy liberty; it was composed of people who were genuinely wishing to respond to serious security threats and making very difficult and fine judgments in some areas - 42 days would be one, and some of the terrorism legislation on the fringes, encouraging terrorism and so on, are others. But we have managed to avoid any diminution of our due process principles. We maintained open trials. We avoided vetted judges, we avoided vetted lawyers, we avoided special courts and we avoided changing the rules of evidence, for example, on the burden of proof. We managed to protect the integrity of our trial system in the face of quite a lot of pressure at one time. In 2004 it should be remembered the Prime Minister floated the idea of reducing the standard of proof in criminal cases. We said publicly that we cannot be sending people to prison in the face of reasonable doubts about their guilt. There was a genuine conversation between the Government and others, and in the end - and this is my personal view, obviously - the Government did a pretty good job, but it did it within the context of parliamentary democracy and all of the pressures that came to bear upon it in this Place and outside. I think we broadly came out of it with a sense that our system was working.

Q163 Mr Winnick: Partly due to you, Sir Ken.

Sir Ken Macdonald: No, I do not think so.

Q164 Chairman: Earlier in evidence, I put to Assistant Commissioner Yates that the Home Secretary had said last week we had perhaps been "too draconian" with some of the measures that were adopted following the London bombings. Assistant Commissioner Yates said he disagreed with the Home Secretary. Do you think the Home Secretary was right? Were we too draconian?

Sir Ken Macdonald: Yes. I think he was absolutely right. Looking back in years to come, I think people will say that, whilst we protected the fundamentals, at the edges the Government at times wanted to go too far. I repeat what I have just said, that it was because of the parliamentary context and the public context that the Government was dissuaded from doing so and the Government was sensible enough to be dissuaded. That is a good thing.

Chairman: Sir Ken, thank you very much for coming today.


Witness: Mr Keir Starmer QC, Director of Public Prosecutions, gave evidence.

Q165 Chairman: Good morning. Thank you very much for coming to give evidence. I know you are extraordinarily busy and we are most grateful to you. It is exactly a year since you were appointed DPP in 2008.

Mr Starmer: Yes.

Q166 Chairman: Are you enjoying the job?

Mr Starmer: Yes, thank you.

Q167 Mr Winnick: I hope you say so at the end of it.

Mr Starmer: I will let you know.

Q168 Chairman: Do you think you would benefit as Director of Public Prosecutions from the admission of intercept material as evidence?

Mr Starmer: Yes, I do. Evidence obtained by interception would be of benefit to prosecution in this country, particularly in respect of counter-terrorism and organised crime. I base that answer on an analysis of the cases where we have been able to use foreign intercept evidence. There have recently been 11 such cases involving organised crime. In eight of those cases, there were pleas of guilty based on foreign intercept evidence. It is on an analysis of those cases. I am not able to carry out an analysis of our prosecutions and answer the question "Would they have been enhanced by evidence obtained by intercept?" because obviously we do not routinely see that material and there would be no point in us carrying out the analysis. In so far as I have done it with foreign intercepts, it is clear that there would be a benefit in terms of prosecution.

Q169 Chairman: You have conveyed your views to the Attorney General and the Home Secretary, have you? Ministers are aware of what you would like to see happen as far as intercept evidence is concerned?

Mr Starmer: Yes. My view is that I am, in principle, in favour. I do think it would be of benefit for the reasons I have just outlined. In addition to that, I should say that, as an organisation, CPS, we have been participating in the workings of the Chilcot team, looking at the question of whether the evidence obtained by intercept could be put into a model that would be consistent with the nine operational principles, but my 'in principle' position has been made known.

Q170 Mr Streeter: We have been told that interception is of most use as a tool for gathering information rather than evidence. We have heard from your illustrious predecessor a second ago that he did not agree with that. What is your view, please?

Mr Starmer: It is of great benefit in terms of intelligence gathering. I am aware in other jurisdictions where evidence obtained by intercept can be used that it is of benefit and has been used in a wide range of cases. That tends to suggest that the same would be true here. As I have said, on the analysis of foreign intercept - which is our best evidence, in a sense, because it is intercept in this jurisdiction in our court proceedings - there is clearly benefit. What I am not able to do - and I really do not think I should do - is to suggest that it is possible to give any analysis of our prosecutions, that they would in fact have benefited or not, because that analysis simply has not been done by me or anybody else.

Q171 Patrick Mercer: Can I ask you to throw your mind back to Operation Overt, the intercepted plan to bring down aircraft in the summer of 2006. The procuring of emails from California was crucial in this. Can you clarify the distinction in this particular case between information and evidence?

Mr Starmer: I have to be slightly circumspect about this case because, as you know, I consider there should be a retrial of the three remaining defendants. That, if it goes ahead, is going to go ahead next year and so the case is still live to that extent. In that case, some email traffic between alleged conspirators was captured by internet service providers overseas. Efforts were made to obtain it and, eventually, through legal assistant it was obtained. There were a series of court orders in January and February of 2009 that released those emails from a US court of law in the district of California in accordance with a request from the UK. Then it was deployed by us in the second trial, the retrial, in that case. We considered that it added to the strength of the prosecution. It was used as evidence.

Q172 Patrick Mercer: Is the distinction between information and evidence as rigid and absolute as the Minister for Security Lord West suggested?

Mr Starmer: As a matter of law I think it probably is because evidence can only be evidence if it complies with the evidence of the rules of admissibility in this jurisdiction. That is a real difference. That is not to say that information which is currently collected as intelligence could not be used for evidential purposes, but there is a clear distinction in law between the two.

Q173 Mrs Dean: Obviously many other countries, both in the EU and the Commonwealth, allow the use of intercept evidence in court, albeit in tightly controlled circumstances. Why do you think the UK does not allow prosecutors this option?

Mr Starmer: In a sense that is a question of policy which is not for me to answer, but it is important to appreciate - and I think most people do appreciate - that the legal regimes in other jurisdictions are different. By that I mean the legal regime by which intercepts are captured. I do not think there is another jurisdiction that has the same set up as we have here and it is important to appreciate that because it does have practical consequences. In other words, I do not think you can simply transpose one model from another country with a different legal regime and assume that it will automatically apply here. The work of the Chilcot Review was to look at a model that might work here, given our regime.

Q174 Mrs Dean: Are you of the opinion that that is possible? Do you think that we can introduce a regime that can allow it?

Mr Starmer: As a matter of principle I think that a legal regime could be devised, in which evidence obtained by intercept could be admissible in evidence. The more difficult question is the question that the Chilcot Review is confronting, whether a model can be devised that is consistent with the principles that they have set down for their review. But I accept that in principle it can be done; you can devise a legal model that would permit evidence obtained by an intercept to be used.

Q175 David Davies: Mr Starmer, we heard what the former DPP thought about Control Orders; what are your personal views on control orders?

Mr Starmer: I do not think, for the reasons that my predecessor just gave, that it is appropriate for me to give my personal views about control orders. I recognise the difficulties that the government face and faces in dealing with the threat of terrorism. I accept that measures have to be taken to protect the public. As DPP my involvement with control orders is on the question of whether or not a prosecution could be brought as an alternative to the control order in the first place, and that is a review decision during the currency ---

Q176 David Davies: As DPP you do not think it is appropriate to comment on control orders, but obviously they have been brought in because the Human Rights Act prevents us from sending these people back even though they pose a threat to our security. Why do you think it is not appropriate to comment on control orders but that it is perfectly appropriate to comment on what political parties may or may not think of the Human Rights Act?

Mr Starmer: I have limited my comments today and in the past to matters which touch on the prosecution and I have not made any comment on the government or the opposition's policy on anything. I simply make comments that the passing of the Human Rights Act as law is useful to us as prosecutors, in particular in protecting the rights of victims and witnesses.

Q177 David Davies: And people who have posed a threat on our security?

Mr Starmer: I have not touched on that in any public comment either, no.

Q178 David Davies: You do recognise that the only reasons we have control orders is because the Human Rights Act prevents us from sending people back who may pose a threat to our security?

Mr Starmer: I am very aware of the history.

Q179 David Davies: So you would accept that it is perfectly reasonable for political parties to have discussion as to whether or not the Human Rights Act is working?

Mr Starmer: Of course I do; I think it is a perfectly legitimate and proper thing.

Q180 David Davies: And as DPP it is not really appropriate for you to get any more involved in that discussion than it is for you to get involved in a discussion about control orders?

Mr Starmer: It is appropriate for me to make any comment that is relevant to the programmes of offences in this country. The Human Rights Act has been a useful tool in protecting the rights of victims and witnesses. My anxiety is if that Act is repealed our ability to protect victims and witnesses could be undermined. I think that is a legitimate thing for me to comment on.

Mr Salter: Can I refer my colleague David Davies to a speech I made several years ago calling for a derogation of the Human Rights Act.

Mr Winnick: It is in the collective works downstairs.

Q181 Mr Salter: You are not the only one. I have looked, Mr Starmer, at the reaction of Lord West to the Law Lords' ruling where he said he would much rather not have them - they are a kind of necessary evil. But the government's current position as set out by Lord West's letter of 22 October states that the government's current assessment is that the control order regime remains viable; but surely in the wake of the Law Lords' ruling it is difficult to see how it remains viable in any shape or form, is it not?

Mr Starmer: Again, I am in danger of trespassing on an area ---

Q182 Mr Salter: I am happy for you to trespass.

Mr Starmer: The difficulty is this. My involvement is in relation to the question of whether there could be a prosecution before or a prosecution for a breach afterwards. I have obviously read and studied the House of Lords' judgment on due process; it is the law of this country and it seems to me that it gets the balance about right in terms of due process. Some of those cases have been remitted back to the courts and are being considered right now. Frankly, with everything else that I have to do I have not had the time to study each and every one of those cases as they go back through the court system now, but they are being looked at. From our point of view the only concern is that if any of the orders are deemed invalid at the end of the exercise it makes any prosecution of a breach impossible. So we do have that interest, but a detailed study of what has happened on the remitted is not something I have undertaken.

Q183 Mr Salter: Can I just follow up on that. If the review of the case is concluded and if invalid prosecutions follow as a consequence of that review then what future for control orders?

Mr Starmer: The difficulty for me as DPP and as prosecutor is this: if there is a breach we must obviously consider prosecution and bring a prosecution where it is appropriate to do so. If at the end of the exercise that the House of Lords has dictated our courts must go through now any control order is deemed to have been invalid, then it is likely to have been invalid ab initio, from the start, and that means that it will be probably impossible for us to prosecute the breach; so that is our concern in terms of the discussion and the cases on validity.

Q184 Mr Winnick: Lord West told us that he would rather not have the control order system. I do not suppose that anyone, to say the least, is over-enthusiastic about such a system, but is there really an alternative? If it is not possible to prosecute and such people are considered an acute danger, what alternative is there?

Mr Starmer: I agree with many others that prosecution would be far better than preventative measures and that includes control orders. So there ought to be, in my view, a presumption in favour of prosecution. It is therefore quite right that we consider prosecution; it is right that we review whether we can prosecute during the currency of the control order. You posed the question if not control orders what else and I think that is a very valid question and I do not have a ready answer, and to that extent I do recognise the difficulty that the government is in. If it has a duty to take some measures to protect the public and there cannot be a prosecution, then anybody who argues that control orders should not be used needs to come up with an alternative which is viable, and I am not able to do so.

Q185 Mr Winnick: In a very minor sort of way, compared to the situation at the time, this is a kind of 18N regulation, is it not?

Mr Starmer: Yes.

Q186 Mr Winnick: We know that 70 years ago when the very existence of our country was at stake and people were locked up when there was no evidence against them, but in view of the danger there was considered no alternative, so Mosley and co went to Brixton and stayed there until, I think, 1943; so in a sense this is nothing particularly new as such.

Mr Starmer: I accept that. One of the difficulties - and this is well recognised - of the control order regime is the length of time for which they can realistically remain in place and I think that is a real challenge for the government and I do not pretend to have an answer. But that would be the difference, that potentially at least they would last for a lot longer if renewed on an annual basis.

Mr Winnick: One final question. Bearing in mind, as we all do, the terrorist danger that is going to exist for some time, can you see the ending of control orders in the near future?

Q187 Chairman: The courts have made a judgment on this that they have to end.

Mr Starmer: Yes. I am not sure that I am in a position to answer that but, as I say, there is an anxiety about how many times a control order can be renewed and I think that on each renewal the courts become increasingly anxious about the appropriateness of renewing the order.

Q188 Chairman: Mr Starmer, later on today we will be taking evidence from the Home Secretary on extraditions, specifically the Extradition Act between the United Kingdom and the United States, with reference to the Gary McKinnon case. Have you been involved in any way? The case is obviously over; it has gone through its processes. Are you involved in any way in extradition matters in your office?

Mr Starmer: We have an extradition team on difficult, sensitive cases. I am briefed and will be involved in the decision-making process.

Q189 Chairman: In order to prosecute?

Mr Starmer: In terms of the decision whether to prosecute in the first place and/or whether to extradite.

Q190 Chairman: So have you completed all your deliberations in respect of this matter? It is now in the hands of the Home Secretary, is it not?

Mr Starmer: It is in the hands of the Home Secretary; I do not think it can be guaranteed that the case is over and there will not be further legal proceedings, so I need to answer any questions carefully.

Q191 Chairman: So do it in a broader sense; you know of no circumstance which will prevent representations being made to ministers on this case, clearly because the Home Secretary is considering it at the moment? In terms of general extradition cases it is quite possible for representations to be made and discretion to be exercised by ministers.

Mr Starmer: That is right. Representations are also made to us as prosecutors.

Q192 Chairman: Yes, exactly.

Mr Starmer: And taken into account, and that happened in the Gary McKinnon case.

Q193 Chairman: Finally, you made some comments recently about the criminal justice system and out of court penalties. Why are you concerned about the number of out of court penalties?

Mr Starmer: I was concerned not so much by the numbers but by the fact that over time out of court penalties have developed in a rather piecemeal way with different options being added at different times, and my concern was that if you now stand back and look at the product of all those changes the system lacks some clarity and I was expressing the view that I thought a structured approach indicating which offences could be dealt with by what out of court disposal and which body would oversee it, going up in a graded way which was transparent, would be far better. I was also indicating the fact that as far as conditional cautions are concerned, which are the out of court disposals over which I have supervision, I have issued guidance to say that conditional cautions should not be given in any case which is more serious than a common assault.

Q194 Chairman: And your views have been echoed by the Commissioner who also agreed with what you said, and we understand that today the Lord Chancellor has just announced a review of these matters as a result of presumably comments that you and the Commissioner has made, and he is obviously also concerned about it. Are you aware of that?

Mr Starmer: I am aware of that. I cannot answer as to why he has done that, but there is concern as to the overall scheme, I think.

Q195 Chairman: Finally, you have inherited the CPS. We have none of stories that seem to have affected your predecessors - no lost files in court. Are you quite satisfied and happy about the way in which the organisation is functioning at the moment?

Mr Starmer: Yes, I am. I think it is an organisation which is now performing to a high level; it is an organisation that needs to perform to a high level all of the time and I am determined to bring forward such changes as are necessary to achieve that. But all of the external touch points - we have the Inspectorate and our Capability Review - have recognised all the hard work that has been done over the years to put the CPS now in a different position to the position it was in ten years ago. I am now determined to drive quality into the organisation from top to bottom and consistently.

Q196 Chairman: How are you doing on diversity?

Mr Starmer: Very well. In terms of our staff profile we are one of the best across Whitehall; in terms of our community engagement we are very active on questions of equality and diversity. We take it very seriously. I personally take it very seriously.

Chairman: Director, thank you very much indeed for coming to give evidence to us today; we are most grateful.