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Abstract
The Counter-Terrorism Act 2008, sections 22–26, implement post-charge questioning in relation to persons in detention because of terrorism offence charges. Relevant principles and practicalities are examined, plus the exceptional circumstances when such questioning is to be allowed. Implementation of the scheme, which was delayed for several years, has required detailed work by way of published guidance. Based on adversarialism and fairness, there are found to be substantial reasons of principle and systemic consistency for delimiting these exceptions and for imposing judicial supervision. The scheme in force is a substantial improvement on early drafts, but a stronger version could have been produced.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Clive Walker is Professor Emeritus of Criminal Justice Studies at the School of Law, University of Leeds, where he has served as the Director of the Centre for Criminal Justice Studies (1987–2000) and as Head of School (2000–2005, 2010). He has written extensively on terrorism, with a PhD (University of Manchester, 1982), and numerous published books and papers not only in the UK but also in several other jurisdictions. He has been a visiting professor at many universities, including, George Washington and Stanford Universities in the USA, and Melbourne and New South Wales in Australia. His latest books on terrorism include Terrorism and the Law (Oxford University Press, 2011), work for which was funded by an AHRC fellowship, and The Anti-Terrorism Legislation (3rd ed., Oxford University Press, 2014). He is currently the special adviser to the Home Office’s Independent Reviewer of Terrorism Legislation and has served as a special adviser to the UK Parliamentary Select Committee which scrutinised what became the Civil Contingencies Act 2004. A book commentating upon that Act, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom, was published by Oxford University Press in 2006.
Notes
1. See further Clive Walker, ‘Post-charge Questioning of Suspects', Criminal Law Review [2008]: 509. See further Michael Zander, ‘Is Post Charge Questioning a Step Too Far?’, Justice of the Peace 178 (2008): 716.
2. Home Office, Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE) 1984 (London, 2007), para. 3.51.
3. See Crown Prosecution Service, Code for Crown Prosecutors (London, 2013), para. 5.
4. Ibid., para. 5.
5. Home Office, Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority (London, 2006).
6. Ibid., 2, per Prime Minister Tony Blair.
7. Carloway Review, Report and Recommendations (Scottish Government, Edinburgh, 2011), para. 6.2.46–64. For a history of the rule in Scotland, see Peter R. Duff, ‘Adversarial Ideology and Police Questioning after Charge’, Juridical Review (2013): 1.
8. See Policy Memorandum (SP Bill 35–PM 1 Session 4, 2013), para. 86. Post-charge question measures have been introduced in Scotland under the Criminal Justice (Scotland) Act 2016, s.35 (which contains provisions for post-charge questioning and not just in terrorism cases). The 3rd Report, 2014: Stage 1 Report on the Criminal Justice (Scotland) Bill (SP Paper 468, JUS/S4/14/R3), paras 187, 188, agreed with this reform but asked for record-keeping and confirmation from the Scottish government that existing rules provide that no adverse inference may be drawn from a suspect’s refusal to answer police questions unlike in England and Wales. The legislation was much delayed because of controversies about corroboration rules in Scotland.
9. Home Office, Possible Measures for Inclusion in a Future Counter-Terrorism Bill (London, 2007), para. 35.
10. Lord Alex Carlile, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill (London: Cm.7262, 2007), para. 22.
11. Joint Committee on Human Rights, Counter-terrorism Policy and Human Rights: 42 Days (2007-08 HL23/ HC156), q.210, Sue Hemming; Hansard (House of Commons) Public Bill Committee on the Counter-Terrorism Bill, Evidence from Sir Ken MacDonald, col 49, 22 April 2008. The Joint Committee on Human Rights (Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill (2007-08 HL 50, HC 199), para. 77) reveals that the test has been invoked against four out of eight detainees charged after detention for more than 14 days.
12. See Terrorism Act 2006 s.23.
13. See Protection of Freedoms Act 2012, s.57.
14. See Home Office, Possible Measures for Inclusion in a Future Counter-Terrorism Bill, para. 11; Options for Pre-Charge Detention in Terrorist Cases (London, 2007); Pre-Charge Detention of Terrorist Suspects (London, 2007); Counter-Terrorism Bill 2007-08 HC no.63 cl.22 and Sched.1.
15. See Home Office, Modernising Police Powers, para. 3.52.
16. Report (London: Cmnd.8092, 1981), para. 4.114.
17. Home Office, Modernising Police Powers, para. 3.53–54.
18. See Home Office, Summary of Responses to the Counter-Terrorism Bill Consultation (London: Cm.7269, 2007), para. 36.
19. See Joint Committee on Human Rights, Counter-Terrorism Bill, para. 24. Compare House of Commons Home Affairs Committee, The Government’s Counter-Terrorism Proposals (2007-08 HC 43), para. 92.
20. See [1914] A.C. 599 at 611, 612.
21. Ibid., at 614 per Lord Sumner.
22. Leonard H. Leigh, Police Powers in England and Wales (London: Butterworths, 1975), 143. See further R v. Knight and Thayre (1905) 20 Cox CC 711.
23. See Ian Brownlie, ‘Police Questioning, Custody and Caution’, Criminal Law Review [1960]: 298; G. Abrahams, Police Questioning and the Judges’ Rules (London: Oyez, 1964), 17; Leigh, Police Powers in England and Wales, 145; Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England and Wales (London: Cmnd.8092-1, 1981), Apps 12 and 13.
24. 536053/29, 24 June 1930.
25. ‘Cross-examination’ was discouraged by Rule VII of the 1918 Judges' Rules.
26. (London: Cmd.3297, 1929), para. 158.
27. See R. v. Voisin [1918] 1 KB 531 at pp. 539–540; R v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1 at 42.
28. [1964] 1 WLR 152, Home Office Circular 31/1964. See John Smith, ‘The New Judges’ Rules – A Lawyer’s View’, Criminal Law Review [1964]: 176; David A. Thomas, ‘The Revised Judges’ Rules’, British Journal of Criminology 10 (1964): 383; Ian Brownlie, ‘Questioning: A General View’, Criminal Law Review [1967]: 75.
29. Home Office Circular 89/1978. See further Criminal Law Act 1977 s.62; Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England and Wales, Apps 14 and 16.
31. This approach is less alien in Scotland: Chalmers v. HM Advocate 1954 JC 66.
32. Brogan v. United Kingdom, App. Nos 11209, 11234, 11266/84, 11386/85, Ser A 145-B (1989), para. 53. See further (Margaret) Murray v. United Kingdom, App. No. 14310/88, Ser A 300-A (1988), para. 55; Gusinskiy v. Russia, App. No. 70276/01, 19 May 2004, para. 53.
33. [1984] A.C. 437.
34. Ibid., at 445.
35. As a result, the police had an incentive to delay the charge (see R v. Collier and Stenning [1965] 3 All ER 136) especially as questioning after charge did not result in an automatic exclusionary rule (R v. Smith [1961] 3 All ER 972; Conway v. Holton [1976] 2 All ER 213).
36. See for example R v. May (1952) 36 Cr App Rep 91.
37. (London: Cmnd.8092, 1981), para. 4.114.
38. Para. 16.5. See further R v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1 at 6, 7.
39. [1993] A.C. 1. The questioning took place after charge but before trial.
40. App. No. 19187/91, 1996-VI. See further R v. Saunders [1996] 1 Cr App R 463; Roger Munday, ‘Inferences from Silence and the European Human Rights Law’, Criminal Law Review [1996]: 370.
41. R v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1 at 41: ‘section 2(8) does not provide complete protection, since information obtained in answer to questions (such as, for example, the location of funds in a foreign bank account) can lead to the disclosure of damaging facts which once known can be proved by other means, even if the answers themselves cannot be put in evidence’.
42. SI no.1610.
43. See Paul Roberts and Adrian Zuckerman, Criminal Evidence, 2nd ed. (Oxford: Oxford University Press, 2010), 556.
44. See R v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1 at 31.
45. App. No. 6563/03, 4 October 2005.
46. [2010] UKSC 43. See Duff, ‘Adversarial Ideology and Police Questioning after Charge’, 25.
47. See Clive Walker, ‘Arrest and Rearrest’, Northern Ireland Legal Quarterly 35 (1984): 1.
48. Criminal Law Review [1989]: 62.
49. For evidence of cultural reluctance, see HM Inspector of Constabulary, Under the Microscope: An HMIC Thematic Inspection Report on Scientific and Technical Support (London: Home Office, 2000); and Under the Microscope – Refocused, Report of Her Majesty’s Inspectorate of Constabulary (London: Home Office, 2002).
51. See Clive Walker, Terrorism and the Law (Oxford: Oxford University Press, 2011), Chap. 4.
52. No.63 (HC).
53. Joint Committee on Human Rights, Counter-Terrorism Bill, para. 30.
54. Government Reply to the Ninth Report from the Joint Committee on Human Rights (London: Cm.7344, 2008), 4. See further Crime (Sentences) Act 1997 Sched. 1 para. 3; Prison Service Order No. 1801: Production of Prisoners at the Request of the Police (HMPS, 2000).
55. See Hansard (House of Commons) Public Bill Committee on the Counter-Terrorism Bill col 355 (8 May 2008), Tony McNulty.
56. Criminal Procedure and Investigations Act 1996, s.29.
57. Hansard (House of Lords) vol 705 col 171 (4 November 2008), Lord West.
58. See Joint Committee on Human Rights, Government Responses to the Committee’s 20th and 21st Reports and Other Correspondence (2007–08 HL 127/HC 756), 5.
59. Hansard (House of Commons) Public Bill Committee on the Counter Terrorism Bill col 341 (8 May 2008), Tony McNulty.
60. Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 42 Days, q.222 (Ali Bajwa).
61. Hansard (House of Lords) vol 705 cols 171, 172 (4 November 2008), Lord West.
62. App. No. 18731/91, 1996-I, at para. 47. See also Saunders v. United Kingdom, App. No. 19187/91, 1996-VI; Shannon v. United Kingdom, App. No. 6563/03, 4 October 2005.
63. See R v. Goodyear [2005] EWCA Crim 888.
64. See the case of Sajid Badat at http://www.cps.gov.uk/news/latest_news/108_12/.
65. Between 2002 and 205, 50% of applications for bail were granted under the Terrorism Act 2000, s.67 in respect of terrorism charges in Northern Ireland (source: Lord Alex Carlile, Report on the Operation of Part VII of the Terrorism Act 2000 (London: Home Office, 2006), Table B). This measure was repealed in 2005.
66. See Walker, ‘Arrest and Rearrest’, 1; Carlile, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill, para. 22. Compare PACE, ss.41(9), 42(11), 43(19).
67. See Hansard (House of Commons) Fifth Delegated Legislation Committee col 15 (2 July 2012), James Brokenshire.
68. Hansard (House of Lords) vol 704 col 768 (15 October 2008), Lord West.
69. Terrorism Act 2006, s.36.
70. See the recommendation by the Home Office, Review of Counter Terrorism and Security Powers (London: Cm.8004, 2011), para. 30.
71. Counter-Terrorism Act 2008 (Commencement No. 6) Order 2012, SI 2012/1724. Section 26 was triggered by Counter-Terrorism Act 2008 (Commencement No. 5) Order 2012 SI 2012/1121. Arguably the date was 26 July 2012 which was when s.27 came into force: Counter-Terrorism Act 2008 (Commencement No. 7) Order 2012 SI 2012/1966.
72. See Clive Walker, ‘Terrorism Prosecution in the United Kingdom: Lessons in the Manipulation of Criminalisation and Due Process’, in Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative and Policy Perspective, ed. Oren Gross and Fionualla ni Aoláin (Cambridge: Cambridge University Press, 2013), 245–266.
73. Home Office, Review of Counter Terrorism and Security Powers; Lord Macdonald, Review of Counter Terrorism and Security Powers (London: Cm.8003, 2011).
74. Ibid.
75. Hansard (House of Commons) Public Bill Committee on the Counter-Terrorism Bill col 341 (8 May 2008), Tony McNulty; Joint Committee on Human Rights, Counter-Terrorism Bill, paras 62, 64. The Lord Advocate was to publish guidelines in Scotland: Hansard (House of Lords) vol 705 col 183 (4 November 2008), Lord West.
76. Hansard (House of Commons) vol 476 col 196 (10 June 2008), Tony McNulty.
77. Because of the breadth of the implementation, two orders had to be issued: Terrorism Act (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012 SI 2012/1792; Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post Charge Questioning) Order 2012 SI 2012/1793.
78. See https://www.gov.uk/government/publications/pace-code-e-2013, 2013; https://www.gov.uk/government/publications/pace-code-f-2013, 2013.
79. But ‘safety interviews’ are treated as interviews. See R v. Ibrahim [2008] EWCA Crim 880, Ibrahim v. United Kingdom, App. No. 50541/08, 16 December 2014 (referral to Grand Chamber pending).
80. See Hansard (House of Commons) Fifth Delegated Legislation Committee cols 8, 14 (2 July 2012).
81. Code of Practice for the Video Recording with Sound of Post Charge Questioning paras 2.7. 2.8, 2G.
82. See for details, Home Office, Review of the Operation of Schedule 7: A Public Consultation (London, 2012); Clive Walker, The Anti-Terrorism Legislation, 3rd ed. (Oxford: Oxford University Press, 2014), Chap. 5.
83. See PACE 1984 (Codes of Practice) (Revision of Codes C, G, and H) Order 2012 SI 2012/1798. See now https://www.gov.uk/government/publications/pace-code-h-2014, 2014.
84. PACE Code H para. 15.2.
85. App. No. 39846/98, 2001-X, para. 62. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UNGA Res 43/173 of 9 December 1988) Principle 18.4 does not allow for overhearing in any circumstances.
86. (London: Home Office, 2003), paras 9, 12.
87. PACE Code H para. 15.5.
88. Lord Alex Carlile, Operation Pathway (London: Home Office, 2009), paras 48–51, 76, 91; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Bringing Human Rights Back In (2009–10 HL 86/HC 111), para. 70.
89. See Criminal Procedure and Investigations Act 1996.
90. See Northern Ireland (St Andrews Agreement) Act 2006; Agreement at Hillsborough Castle 2010, http://www.nidirect.gov.uk/castle_final_agreement15_2_-3.pdf.
92. See Explanatory Memorandum to the Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012, SI 2012 No, http://www.legislation.gov.uk/ukdsi/2012/9780111524152/pdfs/ukdsiem_9780111524152_en.pdf, para. 4.5.
93. Police and Criminal Evidence (NI) Order 1989 (Codes of Practice) (Revision of Codes C, E, F, and H) Order 2012 SR 376. See now http://www.dojni.gov.uk/de/pace-code-of-practice-h-2014, 2014.
94. Terrorism Act 2000 (Code of Practice on Video Recording of Interviews) (Northern Ireland) Order 2001 SI 2001/402.
95. Preparatory hearings must be held in terrorist cases: Terrorism Act 2006 s.16.
96. (HM Courts Service, 2007), para. 11.a.iv.
97. See Kenneth R.M. Short, The Dynamite War: Irish-American Bombers in Victorian Britain (Dublin: Gill and Macmillan, 1979); Patrick Quinlivan and Paul Rose, The Fenians in England 1865–1872: A Sense of Insecurity (London: Calder, 1982); Owen McGee, The IRB: The Irish Republican Brotherhood, from the Land League to Sinn Féin (Dublin: Four Courts Press, 2005).
98. R v. Gallagher (1883) 15 Cox CC 291. See also R v. Deasy (1883) 15 Cox CC 334.
99. Tumultuous Risings Act 1765 (Ir.) ss.7, 8. See Samuel Clark and James S. Donnelly, Jr., eds, Irish Peasants: Violence and Political Unrest 1780–1914 (Manchester: Manchester University Press, 1983); Michael Beames, Peasants and Power: The Whiteboy Movements and Their Control in Pre-famine Ireland (Brighton: Harvester, 1983).
100. Whiteboy Act 1775 (Ir.), s.16.
101. Suppression of Insurrections Act 1796 (Ir.), s.15.
102. Suppression of Insurrections Act 1807, s.9.
103. Peace Preservation Act 1812, s.30. See Angela Bull, The Machine Breakers (London: Collins, 1980); Kirkpatrick Sale, Rebels Against the Future (Reading, MA: Addison-Wesley, 1995).
104. See Senan Moloney, The Phoenix Murders: Conspiracy, Betrayal and Retribution (Dublin: Mercier Press, 2006).
105. Home Office, Modernising Police Powers, para. 3.53.
106. The idea is rejected by Carlile, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill, para. 23.
107. Compare the Royal Commission on Criminal Justice, Report (London: Cm.2263, 1993), para. 1.14.
108. Report (London: Cmnd.8092, 1981), paras 4.59–63.
109. Compare Byron M. Sheldrick, ‘Judicial Independence and Anti-terrorism Legislation in Canada’, International Journal of Evidence & Proof 10 (2006): 75.
110. Pt.I. See Kent Roach, ‘Did September 11 Change Everything?’, McGill Law Journal 47 (2002): 893; Maureen Webb, ‘Essential Liberty or a Little Temporary Safety?’, Criminal Law Quarterly 51 (2005): 53.
111. See Senate Bill S-3, reintroduced as Bill C-19 in 2009 and Bill C-17 in 2010. After these failures, Bill S-7, passed on 25 April 2013 by the Combating Terrorism Act 2013, s.2, revived the measure until the end of the 15th sitting day of parliament after the fifth anniversary of the coming into force.
112. In the Matter of an Application under Section 83.28 of the Criminal Code [2004] 2 SCR 248. See Sheldrick, ‘Judicial Independence and Anti-terrorism Legislation in Canada’.
113. Home Office, Pre-Charge Detention of Terrorist Suspects (London: 2007), 8.
114. R v. Davis [2008] UKHL 36.
115. R v. Twomey [2009] EWCA 1035. See also R v. JSM [2010] EWCA Crim 1755; R v. KS [2010] EWCA Crim 1756.