A Tale of Two Cautions

One thing that’s bothered me throughout the whole debate around extending the period for which terrorist suspects can be held before being charged is that I’ve never quite seen what the police would actually get out of such an extension to their statutory powers.

Obviously I’ve read Andy Hayman’s letter to Charles Clarke setting out the police’s case for a maximum 90 day detention period and taken some time to digest and think over the detail of his arguments, which I find completely unconvincing.

And that’s what’s been bugging me for the last day or two. The fact is that if you strip away the [deliberately] ominous references to chemical, biological and nuclear weapons, dirty bombs, attacks on parliament, etc – annd the obvious scare stories – then what you’re left with, the supposedly substantive arguments he puts forward just don’t add up at all.

For a senior police officer Hayman puts up what can only be described as a piss poor case; one that’s both easily rebutted on point after point – as Spyblog so ably demonstrates in the article linked to above – and which doesn’t really demonstrate quite what the police would actually gain from having extended powers of detention without charge.

This leaves only two possibilities; either their case genuinely is that bad but they’ve sussed that Blair has such a consistant track record of being overly impressed by the arguments of ‘professionals’ – to the point of utter gullibility – and so decided it’s worth trying it on on that basis alone, or there’s something more to this situation that the police aren’t telling us – something missing from the picture.

I should break off at this point to note that I’m strangely indebted to Birmingham’s very own Libinidous Democrat, John Hemming, for accidentally suggesting this line of inquiry with this post on his personal blog which points out that he managed to ask a couple of questions during yesterday’s third reading debate on the Terrorism Bill.

Such things would, ordinarily, be of minimal interest were it not for the fact that John’s understanding of legal matters is notoriously shaky – hence his two failed attempts to obtain permission for a judicial review of postal voting regulations – which means that even such tenous leads as this are worth following up as there’s always a good chance of finding that he’s got something embarrasingly wrong and made a complete prat of himself.

And Ok. It turns out John was, indeed, living up to his usual form; asking two questions:

If evidence is put before a High Court judge and is sufficient to warrant someone’s detention, why is that evidence not sufficient for someone to be charged and remanded in custody?

And:

The argument used for detention pre-charge is that questioning cannot occur after charge. What is there in law to prevent that?

Neither of which got an answer because neither is anything like as good a question as John would like to think.

Nevertheless it is this last question, on the legal impediments to further questioning of suspects after they’ve been charged which did set me off on a particular line of inquiry which, I think, may well explain just what it is that is so attractive to police about the power to detain terrorist suspects for up to 90 days without charge.

The simple answer to John’s question is that regulations under which suspects are detained and questioned are derived from powers granted to the Home Secretary by the Police and Criminal Evidnce Act 1984.

This requires the Home Secretary to publish Code of Practice (called PACE Code) which govern the operation practices of the police in conducting investigations and gathering evidence and while these are not [quite] hard and fast rules, courts still have final discretion where questions of the admissibility of evidence arise, a general rule of thumb would be that a failure by a police officer to follow a relevant PACE code would by highly likely to result in evidence being ruled inadmissible in court.

Now, as John does point out, one of the key contentions of the police has been that a maximum detention period of fourteen days without charge may not give sufficient time in some terrorist cases for them to complete their questioning and gather sufficient evidence to warrant a charge under anti-terrorism legislation.

The counter-argument to this has been that, especially with the introduction of new offences such as that of engaging in ‘act preparatory to terrorism’ in this same bill, there is plenty of scope for holding suspects beyond fourteen days on lesser charges while the police complete their enquiries – to which the argument has seemingly come back from Metropolitan Police Commissioner, Sir Ian Blair, that the PACE code inhibits their ability to question suspects once charges have been laid.

Now here things get a little tricky.

Publicly, the police argument against trying to hold terrorist suspects on lesser charges has been that this would result in them getting bail and then skipping the country; even though the only alleged example of this they’ve been able to give has been the case of Mohamed Mergueba during the now infamous ‘no ricin’ plot. This is, however a rather unfortunate example to choose as Mergueba was held for only two days before being released on police bail without ever seeing the inside of court or being charged with a criminal offence.

I may be wrong, but I would think that the fact that someone is under investigation for involvement in terrorist offences and a potential flight-risk would carry considerable weight in the mind of Judge considering an application for bail, even were the individual charged with a lesser offence.

The other argument, that PACE inhibits the police’s ability to question suspects once they’ve been charged, is rather more difficult to track down, although it was referred to directly Lib Dem MP Alistair Carmichael in his speech during the debate on the detention period clause and attributed directly to Ian Blair as follows:

I attended the Press Gallery lunch yesterday and heard the Metropolitan Police Commissioner address it. He talked about how it was necessary to question a suspect, often on forensic or other evidence, especially after a charge. His position was that the police would be barred from doing so. I accept that that is difficult under the laws of evidence as they stand, but on the basis of my understanding of the law of England and Wales, I must say that it is not already impossible.

Now this is where things get very interesting.

Carmichael claims that Blair told MP’s at a Press Gallery lunch that PACE effectively bars the police from questioning suspects on forensic or other evidence once they’ve been charged, but notes as well that this is not, in fact, impossible.

Turning to PACE Code C itself, we find the rules on questioning suspects after charge are as these:

A detainee may not be interviewed about an offence after they have been charged with, or informed they may be prosecuted for it, unless the interview is necessary:

• to prevent or minimise harm or loss to some other person, or the public

• to clear up an ambiguity in a previous answer or statement

• in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted

Now to my, admittedly, untrained eye nothing in that clause would serve to prevent further questioning on evidence which came to light after a suspect had been charged and certainly nothing which would preclude questioning a suspect on forensic evidence, encrypted data or mobile phone records which were not available at the time of charge – three of example classes of evidence that Andy Hayman claims would be problematic, not least is the case study of Operation 2004 which includes this passage:

After their arrest in August 2004, a vast amount of material was recovered in searches, including some 90 hard drives, much of the content of which was encrypted. The sheer weight of material to be analysed and the number of suspects in custody meant that it was impossible, within the 14 days, to complete a fuller investigation. There were many key pieces of evidence which police were unable to put to the suspects in interview because they were not discovered until after the detention period had elapsed.

Now I’m no lawyer but it does seem to me that if the police did, in this case, discover many key pieces of evidence after the detention period had elapsed then it must surely be “in the interests of justice for the detainee[s] to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted” – this being precisely one of the situations in which the PACE code clearly and obviously does permit suspects to be re-interviewed after being charged.

If PACE was a problem in this case then either evidence to which Hayman refers is not quite as critical to the case as he suggests or there is some problem in the interpretation of PACE by either the police, the CPS or the courts (or conceivably all three) which needs to be corrected and which, indeed, could be corrected without even the need for political intervention as the final arbiter of the admissibility of evidence in trial proceedings – which is what is basically at issue here – is of course the judiciary and not the PACE code itself.

I might also observe that this is an issue which would not arise in the US justice system as it makes use of a pre-trial hearing before a judge which enables questions of the admissibility of evidence to be dealt with in chambers before the case comes to full trial, a system which has the strength of permitting rulings on admissibility to be appealled by either side right up to the Supreme Court, if necessary, before the trial proceeds to its full hearing.

The idea of introducting such a system in the UK for complex cases in which questions as to the admissibility of evidence may be crucial to the outcome of the trial is one which has, in my view, considerable merit and would offer a purely judicial solution to the problem that Hayman appears to be raising. It might also, as a footnote, prove a useful alternative to the proposal that the right to a jury trial should be curtailed in complex fraud cases – rather than omit the jury entirely one could deal with the questions of the admissibility and relevance of evidence at a pre-trial hearing before a judge before moving on to a jury trial, the evidence having first been sifted to remove the dross from the case. Yes, this would result in a judge deciding what evidence the jury does – and does not – see during a trial; which happens anyway as juries are excluded any while legal submissions are made during trials in the UK, but any risk of undue from such a practice can, again, be mitigated against the fact that such a system allows for judicial decisions on the inclusion or exclusion of evidence to be appealled before the trial takes place.

But I’ve digressed here, so getting back to the main thread of the argument…

In fact, the only significant ‘line of inquiry’ this clause would appear to preclude is one in which the sole purpose of re-interviewing the suspect was for trying to extract a confession from them; something which, quite rightly, should not permitted.

So the question is…

If PACE is not the impediment to further questioning that the police would appear to want us to believe, just what is it that is different about interviews conducted before and after charges have been laid that confers on them the advantage they are clearly looking for in such cases. What is that makes pre-charge interviews more attractive to the police than those carried out after a suspect has been charged?

And there is one very significant difference here which has certainly not been mentioned publicly by either the police or the government in their arguments for a 90-day detention period and which is not obviouslly apparent unless you go digging around in PACE Code C.

This is the caution given to suspects on arrest but before they are charged:

‘You do not have to say anything. But it may harm your defence if you do not mention now something which you later rely on in court. Anything you do say may be given in evidence.’

I must say here that I really don’t like this caution. I opposed it introduction and think it both unsound and prejudical in allowing inferences to be drawn from suspect having exercised their right to remain silent while being questioned by police should they go on, at trial, to give answers to those same questions.

Whether this is actually prejudical in practice I really don’t know. I would suspect only a practising defense counsel would be in a position to answer that question.

After a suspect has been charged, however, the caution reverts to that which was used before the introduction of this notion that things can be inferred from a refusal to cooperate with the police during questioning and reads as follows:

‘You do not have to say anything, but anything you do say may be given in evidence.’

Once charges have been laid, the old-style – and much better – right to remain silent comes back into effect and nothing can therefore be inferred from a refusal by the suspect to answer police questions.

This is, so far as I can see, the only substantive difference between the situation the police face in questioning a terrorist suspect before they are charged as opposed to questioning them afterwards other than in the matter of their inability to go full tilt after a confession. All they really lose is the threat that ‘if you don’t talk now, it’ll go against you in court’.

How much of a difference this may make in terrorist cases is anyone’s guess but as one of Hayman’s case studies (Operation 2004) specifically cites that:

The silence of the suspects, encouraged by current custody time limits, shed no light on the intention or capabilities of the terrorist network.

One has to strongly suspect that in the opinion of the police this difference between the caution given at time of arrest and that given once charges have been laid must be felt, by the police, to make a difference significant enough to warrant their pushing so hard and so openly for an extension of the maximum detention period to 90 days.

If that is the case then it seems a pretty marginal advantage on which to put you authority and reputation on the line, as [Tony] Blair has and one based on what I would consider the fundmentally unsound premise of seeking deliberately to make the fact that terrorist suspects are notiorously uncooperative at interview work against them – after all innocent men and women may be equally uncooperative as well.

A conviction based on inferences from a suspect’s choice to exercise their right to silence can in no way be thought as sound as one based on solid evidence.

UPDATE:

In the comments, WTWU from Spyblog points this out:

In her Third Reading summary, Hazel Blears, the Minister of State (Policing, Security and Community Safety) at the Home Office said:

“Many hon. Members have asked whether post-charge questioning could be a useful additional tool in minimising the period of detention or even obviate the need for extending periods of detention. It would not fulfil the latter aim. If anything, post-charge questioning would be an additional tool, but it would not mean that all our problems with lengthier investigations had gone away.

When it is in the interests of justice for detainees to have put to them—and have an opportunity to comment on—information about the offence that has come to light since they were charged or informed that they might be prosecuted, one can question post charge, but the defendant must agree to be interviewed. No hon. Members mentioned that fairly large caveat to post-charge questioning.

But…

There is still nothing in section 16.5 of PACE Code C, which deals with interviewing suspects after they’ve been charged which explicity requires a suspect to agree to an interview if they are to be interviewed after they’ve been charges.

That’s not to say that such a requirement could, or does, not exist – it may be one derived from case law and precedent or from guidance from the CPS – but Blears’ contention that suspect must specifically agree to be interviewed is not contained in PACE Code C.

The idea that suspects must agree to be questioned after they’ve been charged seems, therefore, to be a matter of convention derived from the nature of the caution in use in post-charge interviews – where a suspect ‘refuses’ to be interviewed this is taken as having the same effect as if they had been interviewed but exercise their absolute right to silence but is, obviously, lesst time consuming.

Again this looks more to be a question of resources than any real impediment to post-charge questioning but what seems clear to me is that the wording in PACE does not support Blears’ assertion that suspects must agree to be interviewed.

The wording in PACE Code C is also critical in that is specifies that:

A detainee may not be interviewed about an offence after they have been charged with, or informed they may be prosecuted for it

A statement that any competent prosecutor should surely be able to drive a coach and horses through as it seems clear to indicate that matters on which a suspect has been chrged or has been told they may be charged with may be off limits – as long as the police don’t overplay their hand at the time that charges are laid in what they charge the suspect with or tell them about what they may be chartged with as the investigation continues then where evidence of new offences/charges arises after the fact of the charge on which a suspect is on remand, there would appear to be nothing to prevent the suspect being re-arrested in prision and interviewed on the new charges under the caution which permits inferences to be drawn from their exercising the right to silence.

Both police and government seem to be pushing an understanding of PACE Code C which may seem accurate to the layman but which is far from accurate when one examines the detail of the code.

  • In her Third Reading summary, Hazel Blears, the Minister of State (Policing, Security and Community Safety) at the Home Office said:

    “Many hon. Members have asked whether post-charge questioning could be a useful additional tool in minimising the period of detention or even obviate the need for extending periods of detention. It would not fulfil the latter aim. If anything, post-charge questioning would be an additional tool, but it would not mean that all our problems with lengthier investigations had gone away.

    When it is in the interests of justice for detainees to have put to them

  • Clarke’s caution and Custody Time Limits dilemma
    Over atTalk Politics, Unity has done a wonderful forensic job pulling apart some of the reasons given by the Police via Andy Hayman and HMG about the need for the 90 day, now 28 day, detention. She dwells on the

  • Thank you for the work done on the PACE code.

    You could be right about the difference between the cautions, but frankly I think the big issue is one of people not understanding the key matters at a national level.

    Most importantly if you detain someone without charging Justice may be done, but it will not be seen to be done.

  • Note that if PACE were the problem, Charles Clarke could change that without consulting Parliament.

  • It is actually S34 of the 94 Criminal Justice and Public Order Act that counts.