CHAPTER 14:
Consideration of further measures
This chapter addresses suggestions put to the Government in the aftermath of the Omagh bombing to strengthen the law against terrorism (and specifically the law against Irish terrorism). The Government does not rule out seeking further powers were they to be effective and proportionate to the level of threat. At this stage, it is not convinced that those circumstances pertain, particularly in view of the recent strengthening of the law in the Criminal Justice (Terrorism and Conspiracy) Act 1998; and the comparatively low level of current terrorist activity.
Against that background views are sought on whether any of the proposed changes described in this Chapter can be justified.
Internment
14.1 The Northern Ireland (Emergency Provisions) Act 1998 removed the power for the Secretary of State for Northern Ireland to introduce detention without trial (internment). The Government took that step because it doubted whether internment could ever be effectively introduced. Since the Omagh bombing, there have been a number of calls to reinstate that power (as well as some to take a further step and introduce internment itself).
14.2 The Government recognises the reasons behind these calls. It does not rule out for all time the reintroduction of the power to intern, but the setting aside of the criminal law in favour of executive action could only be contemplated exceptionally, where the Government were convinced that the measure was likely to prove effective; and it would require the Government to enter a derogation under article 15 of the European Convention on Human Rights (ECHR). Joint action by the UK and Irish Governments might increase the likelihood of effectiveness, but the Government remains to be convinced of the practical merits of such a measure. At present, the Government has no plans to reintroduce the power of internment.
14.3 There have been suggestions put to the Government to change the definition of admissible evidence and to make changes to the law to allow:
- that accomplice statements should be admissible as evidence against co-accused:
The use of accomplice evidence was a main feature of the controversial "supergrass" trials of the 1980s (when the uncorroborated evidence of individuals themselves involved in terrorist crimes, against others they had worked with, led to convictions). The subsequent overturning of convictions in these cases has meant that it is now very difficult to obtain a conviction on the basis of uncorroborated accomplice evidence. It is suggested that the difficulties associated with those trials could be avoided if corroboration could be provided by inferences from silence and admissions from other co-accused.
The present position is that if a defendant gives evidence in a joint trial, what he says is evidence for all purposes of the case and can be used against his co-65 defendant. Subject to that it is, however, a firm rule of evidence that statements made by one defendant, for example under police questioning, are a form of hearsay and cannot be used against a co-defendant unless that co-defendant effectively adopts them. It is far from clear what weight courts would be prepared to give to statements from a co-accused if the rule were changed.
The Government would welcome views on this proposal generally.
- that previous terrorist convictions should be admissible as evidence in serious scheduled offences:
This suggestion would allow the Court to take account of previous convictions for terrorist offences. This would mirror practice in countries like Austria and France. In Diplock trials, the judge would be well placed to assess the weight to be attached to that record, but past guilt has not previously been used in British law as part of a case about subsequent responsibility for crime except in defined circumstances where evidence of past conduct proves system or design or rebuts a defence such as accident or mistake. The question is whether the rule should be changed and evidence of propensity to crime itself made admissible to prove guilt. The Government notes that the Law Commission has been examining this issue; it will want to take into account any conclusions which the Commission reaches.
- that the refusal to answer questions in defined circumstances should be an offence:
The current law allows inferences to be drawn from silence in defined circumstances. The recent Criminal Justice (Terrorism and Conspiracy) Act 1998 extends the provisions by allowing inferences to be drawn in connection with membership of a specified proscribed organisation; but even there that is insufficient in itself to secure a conviction. The proposal would create an additional offence of refusing to answer questions, modelled on a power currently given to investigators in a range of cases such as serious fraud investigations, and customs and licensing enquiries.
There are, however, serious ECHR constraints on this option. If it is an offence not to answer questions the resulting evidence, whether answers or silence, cannot be used in a subsequent case against the individual concerned.
- that the burden of proof is invariably placed on the accused in cases concerning the possession of specific items likely to be of use to terrorists (such as guns and explosives). (Currently, where it is established that the item and the accused were both present in any premises at the relevant time, or that the item was in premises of which the accused was the occupier, the court may accept the fact proved as sufficient evidence of possession unless the accused can prove he had no knowledge or control of the item. This provision, which applies in Northern Ireland only, is one of the range of provisions attaching to the Diplock Courts arrangements, in respect of which transitional arrangements may be required while a terrorist threat remains until lasting peace is established - see Chapter 13):
This suggestion could either make the prosecution only need to prove guilt on the balance of probabilities or reverse the burden by requiring the Court to accept the fact proved as sufficient evidence of possession unless the accused can prove he had no knowledge or control of the item. The suggestion is made as a result of the Appeal Court judgement in Killen which held that, under the existing law although the fact of possession constituted a prima facie case, the guilt of the accused still had to be proved beyond all reasonable doubt.
The Government does not think it right to contemplate a requirement on the defendant to prove his or her innocence. This would be to depart from the fundamental presumption of innocence in our law. It would, however, welcome views on whether the standard of proof in this category of case should be adjusted in any way and, in particular, whether the offence should be triable on the civil, as opposed to the criminal, standard.
14.4 These proposals are all intended to increase the potential for convictions against members of sophisticated terrorist groupings and reflect difficulties faced. The Government is aware of certain types of cases in which the prospects of a conviction would be enhanced if these changes were introduced, but, as with anti-terrorist powers more widely, wishes to retain a balance between securing the safety of its citizens and protecting human rights.
14.5 The Government believes these proposals would, taken together, mark a significant departure from the established criminal law, but is interested in views on the individual merits. It is conscious that any change to the law would need to comply with the ECHR and, in particular, the requirement for a fair trial in any particular case.
Operational improvements
14.6 Suggestions have also been made that arrangements between the RUC and An Garda Siochana could be improved operationally through, for example, the introduction of hot pursuit, and through better administrative arrangements in joint training arrangements.
14.7 Whilst these non-legislative proposals are not part of the remit of this consultation paper, it is the Government's view that co-operation between the United Kingdom Police Services and that of the Republic of Ireland is at its highest ever level. Naturally, efforts to improve that still further continue, and the RUC Chief Constable and Garda Commissioner have established a joint working group after the Omagh atrocity to examine what more can usefully be done. The Government does not rule out developments such as those proposed, but believes, currently, that the operational judgement of the senior police officers concerned should be the determining factor in operational co-operation between the two police services.
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