(Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood have met and considered the cause Ward v Police Service of Northern Ireland.)
We have heard counsel on behalf of the appellants and respondents. This is the considered opinion of the Committee.
Fundamental and far-reaching changes to the law for the prevention of terrorism were made by the Terrorism Act 2000. This Act, which applies throughout the United Kingdom, replaced a series of measures that were designed to deal with terrorism connected with the affairs of Northern Ireland but had been extended to cover the field of international terrorism. It was preceded by an inquiry into the subject by Lord Lloyd of Berwick: Inquiry into legislation against terrorism, October 1996 (CM 3420 (1996)). Kerr J, as he then was, had been invited to advise on the Northern Ireland aspects of the review, and a paper on the threats posed by international terrorism was contributed to the report by Professor Paul Wilkinson, Professor of International Relations at St Andrews University. Lord Lloyd’s report was followed by a consultation document published by the government: Legislation Against Terrorism (Cm 4178). The 2000 Act replaced these earlier measures, a list of which is to be found in section 11(4). It received the Royal Assent on 20 July 2000. Just over a year later, on 11 September 2001 (“9/11”), the threat posed by international terrorism was brought into the open as never before by the tragic events in New York, Washington and Pennsylvania. Further legislation has been introduced in response to those events and to terrorist attacks in London and elsewhere in Europe. Section 306 of the Criminal Justice Act 2003, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006 are the main stepping stones. But the basic structure upon which these additional, and more stringent, measures have been erected is to be found in the 2000 Act.
The issue in this case concerns the rights of a person who has been arrested under section 41(1) of the 2000 Act. That subsection provides that a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist. When a person is arrested under section 41 the provisions of Schedule 8 apply. This Schedule deals with the treatment of persons detained and the review and extension of their detention. Section 41(3) provides that, subject to the provisions that follow as to review of this period under Schedule 8, a person detained under that section shall, unless detained under any other power, be released not later than 48 hours beginning with the time of his arrest under that section or, if he was already being detained under Schedule 7 for examination under port and border controls, the time when his examination began.
The part of the Act with which the Committee is concerned in this case is set out in Schedule 8. Paras 29 to 37 of the Schedule enable the period of detention under section 41 to be extended by judicial authority. A police officer of at least the rank of superintendent may apply to the senior district judge or his deputy in England and Wales, a sheriff in Scotland or a county court judge or a designated resident magistrate in Northern Ireland for the issue of a warrant of further detention beyond the initial period of 48 hours for a specified period. As originally enacted, the specified period could not exceed seven days beginning with the time referred to in section 41(3). This period was extended by section 306(4) of the Criminal Justice Act 2003 to fourteen days. This was the period that was in force at the time of the events to which this case relates. It was extended to 28 days by section 23 of the Terrorism Act 2006, provided that any extension beyond 14 days has been authorised by a judge of the High Court in England and Wales or Northern Ireland or of the High Court of Justiciary in Scotland. Detention without charge for such extended periods is, of course, a very serious invasion of a person’s article 5 Convention right to liberty. Whether the permitted period should be as long as it is, and whether it should be extended still further, has been and still is a subject of acute political controversy. That is not an issue for this Committee. But it provides the background to the issues that have been raised in this case. The provisions that the Act contains for the protection of the detained person must be construed at all times in his favour in so far as the language of the statute permits this to be done.
The appellant, Christopher Owen Ward, was arrested under section 41 of the Act at 7.37 am on 29 November 2005 on suspicion of involvement in the Northern Bank robbery in Belfast on 20 December 2004. He was detained and interviewed by the police in the presence of his solicitor. He had previously been interviewed by them as a witness. They wished now to put to him evidence which they had gathered subsequently which appeared to them to contradict or to be inconsistent with what he had told them in that capacity.
On 30 November 2005 the police gave notice to Mr Ward and his solicitor under para 31 of Schedule 8 of their intention to apply to His Honour Judge Burgess for a warrant of further detention for a period of three days. In a paper that was attached to the notice it was stated that further time was needed to complete the process of interviewing Mr Ward, to secure and preserve evidence and to question Mr Ward about it. At 7.35 am on 30 November 2005 Judge Burgess issued a warrant of further detention under para 32 of Schedule 8 for an extended period of three days until 7.30pm on 3 December 2005. On 3 December 2005 the police gave notice of their intention to apply to Her Honour Judge Philpott for an extension of the warrant by a period of 60 hours on the ground that further time was required to complete the interview process. At 11.25 am on 3 December 2005 Judge Philpott granted the application. On 5 December 2005 the police gave notice to Mr Ward and his solicitor of their intention to apply to His Honour Judge Gibson for a further extension of the warrant by a period of 48 hours.
The ground on which this further extension was sought was that further time was required to complete the interview process. The hearing before Judge Gibson began at 7.30 pm on 5 December 2005. The police superintendent, police legal representatives, Mr Ward and his solicitor were all in attendance. The police superintendent gave evidence on oath in support of his application, and he was cross-examined by Mr Ward’s solicitor. He explained that Mr Ward had been interviewed on nine specific topics and that the police were of the opinion that it was important for them to interview him on five further topics which were outstanding. He said that this was considered to be a crucial stage of the interview process. Judge Gibson wanted to know what these five topics were. He said that he wanted to be satisfied that they were indeed new topics and not topics that had already been the subject of questioning. At this point he agreed, at the request of the police and having considered and overruled an objection by Mr Ward’s solicitor, to exclude Mr Ward and his solicitor from the hearing so that this matter could be explored in their absence in sufficient detail to satisfy him that the test for further detention had been made out.
The hearing then continued in the absence of Mr Ward and his solicitor for about nine or ten minutes. They were not informed of what had transpired when they returned to the hearing. Cross-examination of the superintendent was concluded, submissions were made and Judge Gibson adjourned to consider his decision. He then gave his decision in the presence of the parties and their legal representatives. He said the superintendent had provided him with information about the five outstanding topics and that he was more than satisfied that it was essential for the police to question Mr Ward about them. He did not say anything about the information which he had received in the absence of Mr Ward and his solicitor or reveal to them what these five topics were. At 10.13 pm on 5 December 2005 he extended the warrant for 48 hours from the expiry of the period authorised by Judge Philpott.
At about 1.45 am on 6 December 2005, following an inter partes hearing in the High Court of Justice, Hart J gave leave to apply for judicial review of Judge Gibson’s decision to extend the warrant of further detention. He also granted interim relief to the effect that further interviews of Mr Ward were to be suspended pending determination of the application. The hearing took place between 9 am and 11.30 am on 6 December 2005. The application was made on the ground that Judge Gibson acted outside the powers conferred on him by para 33 of Schedule 8 when he excluded Mr Ward and his solicitor from the proceedings and failed on their return to inform them of the information that had been provided to him in their absence so that they could make representations about it. At the end of the hearing Hart J dismissed the application for reasons that he set out in an ex tempore judgment. It is his decision that is the subject of this appeal.
At 11.45 pm on 6 December 2005 Mr Ward was arrested under the Police and Criminal Evidence (Northern Ireland) Order 1989. At 1.02 am on 7 December 2005 he was charged with armed robbery. He denied any involvement in the robbery and was later released on bail. His trial has been fixed for 1 September 2008.
Section 41 of the Act, as has been said, enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person’s right to liberty demands that scrupulous attention be paid to those safeguards. The details are set out in Part II of Schedule 8, which provides for periodical review of the detention by an officer who has not been directly involved in the investigation, and in Part III of the Schedule, which provides for extension of the detention under section 41 within defined limits by a judicial authority.
It is not necessary for the purposes of this appeal to examine the provisions of Part II of Schedule 8. It is worth noting however that para 21 provides that the detention shall be periodically reviewed by a review officer at intervals of not more than 12 hours, and that he may authorise the person’s continued detention only if satisfied that it is necessary for one or other of the purposes set out in para 23. These purposes include the obtaining of relevant evidence whether by questioning the person who is being detained or otherwise and the preserving of relevant evidence. Provision is made in para 27 for the person to be informed about his rights. Para 28 states that he must be informed of the outcome of a review by the reviewing officer and his grounds, should he decide to do this, for authorising continued detention.
Part III of Schedule 8 begins with para 29. It provides that a police officer of at least the rank of superintendent may apply to a judicial authority, which in the case of Northern Ireland means a county court judge or a designated resident magistrate, for the issue of a warrant of further detention under that Part. Para 30 provides that the application must be made within the period of 48 hours referred to in section 41 or within six hours of the end of that period. The person may then be detained pending the conclusion of proceedings on the application: section 41(6).
Paras 31 to 33 of Schedule 8, as originally enacted and in force at the date of Judge Gibson’s order, provided:
The grounds for extending detention in para 32 of Schedule 8 were amended by section 24(3) of the Terrorism Act 2006 by substituting for the words from “to obtain” to “preserve relevant evidence” in sub-paragraph (1) the words “as mentioned in sub-paragraph (1A), and inserting a new sub-paragraph in these terms:
Section 24(6)(a) provides that this amendment does not apply in a case in which the person detained under section 41 was arrested before the commencement of section 24.
Para 34 of Schedule 8, which remains unaltered, provides:
Para 36(1) of Schedule 8 provides that a police officer of at least the rank of superintendent may apply to a judicial authority for the extension or further extension of the period specified in a warrant of further detention. Para 36(2) provides that, if the period specified in the warrant is extended, the warrant shall be endorsed with a note stating the new specified period. At the date of the hearing before Judge Gibson para 36(3), as amended by section 306 of the Criminal Justice Act 2003, provided that the specified period was to end no later than the end of the period of 14 days beginning with the time of the person’s arrest under section 41 or, where he was being detained in connection with port and border controls, the time when his examination began. Para 36(4) provides:
Hart J certified three points of law arising out of his judgment which were of general public importance. At the time of hearing it was thought that the application to Judge Gibson was for a fresh warrant of further detention, and the questions were framed on that basis. In fact the application was for an extension of the existing warrant of further detention, as already extended by Judge Philpott. The fact that the application was for an extension, and not for a fresh warrant, is immaterial for the purposes of this appeal. The provisions in paras 33 and 34 apply to both kinds of applications. That is the effect of para 36(4). Nevertheless the parties agreed that, in the interests of accuracy, the certified questions should be rephrased as follows:
The answer to the questions raised by this case is to be found in the wording of paras 33 and 34 of Schedule 8. But it is necessary first to put those provisions into their proper context. This is provided by the grounds on which the warrant of further detention, or an extension of it, is sought.
There are three possible grounds. This is made clear by para 32(1), which identifies the only grounds on which a warrant of further detention or an extension of that warrant may be issued by the judicial authority. They are that the person’s continued detention is necessary
to obtain relevant evidence by questioning him,
to obtain relevant evidence otherwise than by questioning him and
to preserve relevant evidence.
In this case the grounds on which the warrant of further detention and the extensions of it were all sought were directed to the belief by the police that Mr Ward’s continued detention was necessary to obtain relevant evidence by questioning him. He was entitled to be notified that these were the grounds, and this was duly done on each occasion by an appropriate notice when the application was made.
Had the application been made on other grounds, the notice would have had to state what these grounds were. If it was to be submitted that Mr Ward’s continued detention was necessary to obtain relevant evidence otherwise than by questioning him or to preserve relevant evidence, it would have been necessary for the police to provide sufficient details to enable the judicial authority to be satisfied that there were reasonable grounds for believing that further detention of the person to whom the application related was necessary. Details of the evidence that was to be obtained or to be preserved, and an explanation as to why the person’s continued detention was necessary while this was being done, would have to be set out in the application. As para 33 provides that that person shall be given an opportunity to make oral or written representations about the application to the judicial authority and to be legally represented at the hearing, those details would have had to be set out in the notice that was to be given to Mr Ward. At first sight, it would seem obvious that the release of information of that kind is necessary if the person to whom the application relates is to have a fair hearing. On the other hand, especially in the context of terrorism, release of information of that kind may be contrary to the public interest in view of the risks that this may give rise to. That is the context for the provisions that are set out in para 34 of the Schedule.
In this case, however, the ground for the application was the need for further time to obtain relevant evidence from Mr Ward himself by questioning him. He was entitled to be told that this was the ground for the application. But there is no rule of law which requires the police to reveal to a suspect the questions that they wish to put to him when he is being interviewed. Nor are they required to reveal in advance the topics that they wish to cover, even in the most general terms, in the course of an interview. In some cases providing these details in advance will not prejudice their inquiries. But in others it may well do so. This is a judgment that must be left to the police. The interview must be conducted fairly. But advance notice of the topics to be covered is not a pre-requisite of fairness. The judicial authority may want to know what the topics are in order to be satisfied that the warrant or an extension of it should be granted. But that is information that the police are entitled to withhold from the suspect until he is being interviewed. That is the context for the power to exclude in para 33(3) of the Schedule.
Para 34 of Schedule 8 enables the officer who has made an application for a warrant of further detention or for an extension to apply to the judicial authority for an order that specified information on which he intends to rely be withheld from the person to whom the application relates and anyone representing him. Details of evidence that he wishes to obtain otherwise than by questioning that person or of evidence that he wishes to preserve, and of the reasons why the continued detention of the person to whom the application relates is necessary for that purpose, is information that will fall within the ambit of this paragraph. The grounds for withholding it that are listed in para 34(2) are exactly those that one would expect to find in that context. They include such risks to the public interest as interfering with or harming evidence, making more difficult the apprehension, prosecution or conviction of a person suspected of terrorism and making prevention of the prevention of an act of terrorism more difficult as a result of a person being alerted. The person to whom the application relates has the right under para 33(1)(a) to be given the opportunity to make oral or written representations to the judicial authority about the application. It follows that an application under para 34 should ordinarily be made before the hearing begins, so that the amount of the information that the detained person is to receive is settled before it starts.
Mr O'Donoghue QC submitted that the list in para 34(2) included information the disclosure of which would make more difficult the prosecution and conviction of the person to whom the application related, such as questions that the police wished to put to him at interview. This information, he said, was included within para (d) of that subparagraph, which contemplates that if the information were disclosed to the detained person
the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted.
So if the police wanted to withhold from Mr Ward details of the topics that were to be put to him when he was interviewed they should have made an application to that effect under para 34. As this procedure could have been but was not followed, it was not open to Judge Gibson to withhold this information from Mr Ward and his solicitor by excluding them from the hearing while this issue was being discussed or to withhold it from them when they returned.
In the opinion of the Committee para 34(2)(d) does not bear this construction, for three reasons.
First, the application for a warrant of further detention assumes the person to whom the application relates is already in detention. As it has already taken place, his apprehension cannot be made more difficult by disclosing information that the police wish to be withheld. This excludes him from the opening part of para (d). For the purposes of that part the words “a person” must mean someone other than the person who is in detention. As there is nothing in its wording that indicates the contrary, those words must be taken to have the same meaning for the remainder of the subparagraph.
Secondly, there is the contrast between the words “a person” in para 34(2)(d), “the detained person” in para 34(3) and para 34(4), which refers to “the person to whom the application … relates". This usage has been adopted assiduously throughout the Schedule. It suggests that, if para 34(2)(d) had been intended to include the detained person or the person to whom the application relates, it would have included words to make this clear.
Thirdly, para 34(3) refers expressly to reasons for withholding the information that relate to the detained person and to the risk that, if the information were to be released to him, this would hinder the recovery of a benefit that he had obtained from an offence that he has committed. This shows that this is the place where one would have expected reference to be made to information the release of which might make his prosecution and conviction more difficult, if it had been the intention to include this among the grounds on which specified information could be withheld. As it is, no mention of it is made in this subparagraph. Accordingly none of the grounds listed in para 34 were relevant to the question whether information about the topics on which Mr Ward was still to be interviewed should be withheld from him and his solicitor.
Para 33(3) of Schedule 8 confers a discretion on the judicial authority to exclude the person to whom the application relates and anyone representing him from the hearing which is unqualified. Reference is made in an earlier part of the Schedule to particular circumstances when exclusion may be desirable. Para 28(3) provides that a review officer may make his record as to whether or not to authorise further detention in the absence of the detained person if he is incapable of understanding what is said to him, is violent or likely to become violent or is in urgent need of medical attention. No such list appears in para 33(3). The power that it gives is not limited to the situations of that kind. On the face of its wording, given the absence of a reference to this situation in para 34, Judge Gibson’s decision to exclude Mr Ward and his solicitor so that information about the topics on which he was still to be interviewed could be withheld from him was within the powers given to him by this subparagraph. The question is whether this provision should be read more narrowly so as to preclude the use of the power to prevent this happening.
The answer to this question is that the procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.
As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. As Hart J said in his ex tempore judgment, that person’s safeguard is the judge, whose function it is rigorously and comprehensively to examine the basis on which the application is being made.
There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. In the present case the decision that Judge Gibson made is not open to that criticism. A less careful and diligent judge might have taken what the police said at face value. He might have accepted their refusal to disclose the topics that were outstanding in advance of the interview. The fact that Judge Gibson did not do so was due to his wish to be absolutely certain that these were new topics. This was an inquiry which he was carrying out for the benefit of Mr Ward. So Mr Ward’s interests were best served by excluding him and his solicitor from that part of the hearing so that the judge could deal with the point that he wanted to investigate on his behalf. It was submitted that Judge Gibson should have told them what he had heard when they returned. But it is obvious that to do this would have undermined his decision entirely. The power to exclude, if properly exercised, carries with it the power not to disclose what took place during the period of the exclusion.
The Committee declines to answer the certified questions as the propositions which they contain are expressed too broadly. The power in para 33(3) is available where the judicial authority wishes to be satisfied that further detention is necessary to obtain relevant evidence by questioning the person to whom the application relates. It enables the judicial authority, in the detained person’s absence, to examine the topics are that are to be the subject of that exercise. But it must be read subject to para 34. So where the power to order that specified information be withheld from that person under that paragraph is available, an order to withhold it must be sought under that paragraph. As this is not that case, the appeal must be dismissed.
Frank O'Donoghue QC & Sean Doran (instructed by Kevin R Winters & Co) for appellant.
Bernard McCloskey QC & Peter Coll (instructed by Crown Solicitors Office) for respondent.
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