Counter-Terrorism and Sentencing Bill

Debate between Lord Marks of Henley-on-Thames and Lord Thomas of Gresford

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, may I say how much I agree with the noble Lord, Lord Faulks, in his warning against equating too closely the use of polygraphs in monitoring sexual offenders with their use on terrorist offenders, who obviously pose a very different problem? The Minister should consider that.

Sixty years ago, in 1961, I was proudly driving my red and black little Austin A40—new car, brand new wife—along the twisting road from Mold to Denbigh in north Wales. It was a snowy day, just like today—that is what reminded me of the incident. We were not in a hurry. I approached a bend well on my own side of the road at a reasonable speed. There was a car parked on the bend; a large lorry coming from the opposite direction at speed saw it late, swerved out to overtake it on my side of the road and, as he pulled back, his rear end hit my car.

I gave evidence in the Denbigh Magistrates’ Court and found it very stressful. A police sketch of the accident was produced which purported to show where my car had ended up, with a 30-foot, perfectly straight skid mark. I told the chairman of the Bench I thought my car had finished some 20 yards short of where it was shown on the plan. He said, “Don’t you appreciate this is a carefully prepared police plan of your accident?” I said, “Well, it is entitled ‘rough sketch plan’.” Everybody laughed—except the chairman. The defendant was acquitted of careless driving, with the chairman commenting that the wrong person had been prosecuted —it should have been me. However, the lorry driver’s insurers paid me and my wife damages for personal injury without any questions.

The point of this lengthy reminiscence is that witnesses are giving evidence up and down the country in Crown Courts and magistrates’ courts every day, but nobody has ever thought to put a polygraph test on them as they are questioned. Your pulse may be racing, your blood pressure through the roof; you may be sweating, wishing you were anywhere other than perched in a witness box above the well of the court with myriad sceptical eyes looking you up and down—not because you are lying, but you may be afraid that someone, like the chairman of the Denbigh Bench, may not believe you. There are also those pesky lawyers paid to make you out to be a liar with their ridiculous version of the event. That is why the present Domestic Abuse Bill calls for special measures for victims and their witnesses and the present overseas operations Bill has a presumption against prosecution altogether, to save old soldiers the stress of recalling bad times.

The purpose of polygraph testing, as I said at our last meeting on 26 January, is to measure the physiological response of a person to questioning. It depends on the proposition that a person who lies will demonstrate it by changes in his blood pressure, perspiration, heartbeat and so on. I pointed out last time that these conditions are explicable by the stress of being questioned, by being thought to be lying, even by the state of your stomach-turning digestion, or by fear.

Because these physiological changes do not demonstrate that a person is lying, at least to the degree of certainty required for a conviction, evidence of the result of a polygraph test is excluded in court. It is therefore very good policy that, so far, the courts of this country have refused to accept polygraph results as admissible evidence.

We have already discussed whether such evidence should be used where terrorists are released from prison to monitor their continuing behaviour in the community. The purpose of this amendment is to probe whether the Government harbour any desire to go any further: whether this restraint will be maintained if the results of such a test appear to be relevant to a future terrorist trial in a court. That is when principle is put to the test—when there appears to be an indiscriminate danger to the public.

I support this amendment and I look forward to hearing the Minister’s comments on the proposal.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, as my noble friend Lady Hamwee and others have explained, Clause 32 puts the imposition of polygraph conditions on serious terrorist offenders released on licence on the same footing as applies in the case of serious sexual offences. I say at the outset that I agree with the noble Lord, Lord Faulks, and my noble friend Lord Thomas that different considerations apply with terrorist offenders and sexual offenders.

Yesterday, in Committee on the Domestic Abuse Bill, we discussed the use of polygraph testing for domestic abuse offenders released on licence—and again, different considerations apply. Nevertheless, I said then that my outright opposition to the use of polygraph testing anywhere in our criminal justice system had become more nuanced when the proposed use was for the limited purpose of monitoring compliance with licence conditions on release from custody. My outright opposition hitherto stemmed from the lack of proven reliability of polygraph testing and from the perception at least that it is directed to providing binary answers, true or false, to complex evidential questions—hence the use of statements such as “He failed a polygraph test”. Lawyers naturally prefer a system which depends on the careful and balanced evaluation of evidence, often conflicting or inconsistent, rather than certainty.

In part, as I said yesterday, I have become more sympathetic to the use of polygraph testing with the help of the comprehensive and very helpful learning session organised by the MoJ last Thursday, which was attended by a number of Peers, including the noble Lord, Lord Faulks, and my noble friend Lady Hamwee, as they have said. In addition, I accept that there are legitimate reasons for the use of polygraph testing to provide information to the police and others investigating serious offences and, in the case of terrorism, often potential offences that threaten multiple lives. However, accepting polygraph testing for those limited purposes does not mean that we can accept polygraph testing in criminal cases, and that will remain our position unless and until the reliability of polygraph testing is far more conclusively established than it is now. I agreed completely with the observations of my noble friend Lord Thomas of Gresford on how stress can affect evidence given in a court and on how falsely polygraph testing may skew such evidence.

Our Amendment 19 would amend Section 30 of the Offender Management Act to ensure that evidence of any statement made by a released defender in a polygraph session, and any of his physiological reactions while being so examined, could not be used in a criminal prosecution of any person, not just the released offender. It is right that this amendment is billed as a probing amendment, but that is plainly right. However, at the moment, Section 30 does not say that. As the noble and learned Lord, Lord Wolfson, said yesterday in answer to me on the domestic abuse provisions:

“Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.”—[Official Report, 8/2/21; col. 41.]


Therefore, the Government accept the principle that evidence obtained as a result of polygraph testing, or flowing from physiological reactions under such testing, cannot be used as evidence in a prosecution brought against the person being tested. It must be right that it should not be possible to use such evidence in the prosecution of anybody else, and the reasons mentioned by my noble friend Lord Thomas apply equally to that situation.

It therefore seems that, while this is a probing amendment, it is an amendment that the Government can and should plainly accept without compromising their position or anything that the Bill is trying to achieve, and that it is simply consistent with the position taken by the Government that polygraph-testing evidence cannot be used to secure a criminal conviction.

I stress, in the context of the danger posed by terrorism, that I take the point made by the noble Lord, Lord Faulks, that deradicalisation is difficult to achieve. He described it as a holy grail. I emphasise that nothing we say would prevent those administering polygraph testing to released offenders from passing on to the police for the purpose of preventing terrorism information revealed to them. Nor should the police be inhibited from using such information passed on to them in investigating and avoiding terrorist offences.

Amendments 19A and 19B would have the effect of insisting on the affirmative resolution procedure for regulations making provision relating to the conduct of polygraph sessions further to a terrorism-related offence. I suggest that the need for the affirmative resolution procedure is obvious. I would be grateful, however, if the Minister could confirm a number of other points about the regulations proposed, not just for the conduct of polygraph sessions but for using information obtained in the course of such sessions in relation to recall from licence.

My understanding is that, as with sexual offences, and as we were assured yesterday with domestic abuse offences, no decisions on recall from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about breach of a licence condition or about further offences, for example, I understand that investigators may ask the police to investigate further before taking any positive action. There is therefore to be no recall on the basis of a failed test, which will lead to recall only if the police find other evidence establishing that a breach has occurred. I hope that will be confirmed in a terrorist context as well.

I also have some concerns about cases where an offender makes a disclosure in a polygraph test, confessing to behaviour that is a breach, and who might therefore be recalled. I asked yesterday about this and was told by the noble and learned Lord, Lord Wolfson, that recall in domestic abuse cases may follow if

“disclosures made voluntarily by the offender during the polygraph examination … reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.”—[Official Report, 8/2/21; col. 41.]

I take that point, but I regard it as important that, before a disclosure in a polygraph test can lead to recall, there should be a hearing where the disclosure is either admitted by the offender to be true or can be tested so as to ensure that it is voluntary, genuine and true before a recall based on it is affected.

Yesterday I posed a number of questions to the Minister in relation to domestic abuse polygraph conditions. They are reported in Hansard, but the same questions are pertinent today in connection with this Bill. They concerned in particular: first, a guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions of a criminal offence; secondly, that recall from licence on the basis of a disclosure in a polygraph test of a breach of a licence condition will not be possible without a further hearing—the point I just mentioned; and, finally, whether evidence of a breach of a polygraph licensing condition could ever be itself based on evidence from a failed polygraph test. It would be helpful to have those answers in the context of this Bill relating to terrorist offences as well.

Counter-Terrorism and Sentencing Bill

Debate between Lord Marks of Henley-on-Thames and Lord Thomas of Gresford

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.

The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.

I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.

There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.

The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.

I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”

I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.

This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?

It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.

European Union (Withdrawal) Bill

Debate between Lord Marks of Henley-on-Thames and Lord Thomas of Gresford

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I agree with what the noble Lord, Lord Cormack, has just said. As the noble and learned Lord, Lord Judge, the noble Viscount, Lord Hailsham, and my noble friend Lord McNally explained, the Bill as drafted would permit Ministers, when they consider it “appropriate”—a point made by the noble Viscount and a word discussed at length last Wednesday—to create by regulations new criminal offences carrying up to two years’ imprisonment for wide and diffuse purposes. As discussed last week, regulations could also be used to make any provision that could be made by Act of Parliament. The Henry VIII powers are as all-embracing as could be imagined. This is all the more shocking in the context of the creation of new criminal offences. These may concern individual liberty, certainly; reputation, always; and the conduct of business, as the noble Lord, Lord Carlile, has pointed out.

The report of the Delegated Powers and Regulatory Reform Committee—on which I sat for a number of years—described the powers as “wider than we have ever seen”. It described Clause 7 as notable for its width, novelty and uncertainty, and the same can be said of all three of the clauses in question. The principle is simple: it is in general not acceptable for the Government to have the power to create new criminal offences by regulation without an Act of Parliament. That principle was treated as cardinal when I was on the Delegated Powers Committee.

In 2014 the committee produced a document headed Guidance for Departments, directed principally at memorandums for the departments. However, on the question of criminal offences it was considered so out of order that new criminal offences would be created by regulation that the guidance did not even address that possibility. The committee said:

“Where a Bill creates a criminal offence with provision for the penalty to be set by delegated legislation”—


that is, the Bill creates the offence—

“the committee would expect, save in exceptional circumstances, a maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

However, this Bill potentially permits the creation of a new range of criminal offences. Both the Bill and the Explanatory Notes are silent about everything to do with such offences as might be created except for the broad statement of their purpose in the three clauses, in the most general terms, and with no indication of what offences are envisaged, except that the maximum penalty must not exceed two years imprisonment—which, as the noble Viscount, Lord Hailsham, pointed out, is a not insubstantial period.

The basic principle was enshrined in Article 39 of Magna Carta: that no one should be imprisoned or stripped of his rights or possessions or deprived of his standing in any way except by the lawful judgment of his equals or by the law of the land. These are constitutional principles as old as this Parliament, and we should be very careful in dealing with the issue of allowing the right of Parliament to insist on a say over criminal offences being created by the diktat of Ministers.

[Lord Thomas of Gresford (LD)]

My Lords, in this context, I draw attention to the paragraphs in the Delegated Powers and Regulatory Reform Committee report which deal with tertiary legislation because it is important that this aspect should be understood. The Bill confers powers on Ministers to make law by regulations, and the secondary legislation can do anything that Parliament can do. This would allow people, bodies or Ministers to make further subordinate legislation—tertiary legislation—without any parliamentary procedure or any requirement for it to be made by statutory instrument. Where tertiary legislation is not made by statutory instrument it evades the publication and laying requirements of the Statutory Instruments Act 1946 but it is still the law.

Nothing in the Bill limits the power of creating tertiary legislation. It can be used for any purpose—for example, to create new bodies with wide powers, which could introduce criminal offences in many of the areas currently governed by EU law, including aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They may only provide the skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament or Ministers but by one of the new bodies so created.

Justice and Security Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Thomas of Gresford

Tuesday 17th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I raised in my Second Reading speech the question of a separate judge for the determination of disclosure issues, in particular PII applications and Section 6 proceedings: that is, a judge who is separate and distinct from the trial judge. The reason I believe this to be a necessary safeguard in civil proceedings is because the trial judge in civil proceedings is the judge of fact. That is quite distinct from criminal proceedings in the Crown Court, where it is the jury that makes the decision on what has happened.

It was the procedure instituted in the Diplock criminal courts in Northern Ireland, where the judge, unusually, sat alone without a jury. He decided the facts and returned the verdict. The purpose of this practice was to build public confidence in the criminal trial process in the absence of a jury. The importance of public confidence in the system has been emphasised today, most particularly by my noble friend Lady Williams, but also by others who have referred to the need to keep public confidence in the judicial system.

This proposal has been the subject of discussion with the Minister, and with the Secretary of State, for which I am grateful, and I have been provided with a note which sets out the Ministry of Justice’s views. The first reason for its lack of support for my suggestion is that,

“it is better from the point of view of the administration of justice and judicial case management that the judge trying the case—who will have a direct interest in ensuring that he or she oversees a fair trial process—should be the judge who determines whether a CMP should be allowed”.

This totally ignores the fact that, in ordinary civil litigation, preliminary issues are the province of a Master of the Queen’s Bench, or a registrar. He deals with strike-out applications, case management, and in particular, with disclosure under Part 31 of the rules of the Supreme Court. Applications seeking further disclosure or contesting claims for disclosure are tried by the Master subject to appeal, not necessarily to the trial judge, but to another High Court judge.

In civil proceedings, unlike criminal proceedings, a two-tier system is in existence at the moment. Anything that is ruled out by the Master on the basis that it should not be disclosed or is irrelevant or inadmissible is not put before the trial judge. The trial judge does not become involved in these proceedings until the case is ready for trial and the disclosure issues are already dealt with.

Another aspect of the Master’s work is to deal with, as I said, strike-out applications, where allegations in the pleadings which are irrelevant or scandalous are struck out and never come before the trial judge at all. Clause 9 says that subject to Clauses 7, 8 and 10, the normal rules of court continue to apply, in relation to disclosure. That seems to mean that the Master would govern all applications in the case relating to material which is not the subject of a Section 6 application but, when it comes to sensitive material, those applications are dealt with by the trial judge. I do not believe that the Ministry of Justice has fully taken on board the standard everyday practice in civil proceedings, whether in London or across the country, where preliminary issues are not dealt with by the trial judge.

The second reason given by the Ministry of Justice for rejecting my suggestion is that relevant, but very sensitive, evidence, which would fall to be excluded otherwise from the proceedings under a public interest immunity application, is considered by the trial judge. I draw attention straight away to the difference between “material”, which is the word used throughout the Bill—Section 6 applications relate to material—and evidence, which is what is admissible and what is relevant and what the judge may take into account in coming to his decision.

The ministry says that:

“The issue is about allowing the judge to know the full facts, even in circumstances where they cannot be fully shared with the claimant. So there will usually be no question of the judge’s mind being swayed by evidence which ought not to be taken into account at all. It is about allowing the judge to take all the evidence into account”.

Of course, if all the material is put before the judge—not evidence, but material—he still has to exclude from his mind irrelevant and inadmissible material. Presumably that is multiple hearsay, inexpert opinion, the product of intercept and so on.

On intercept, I want to ask the Minister a very specific question. Under the provisions of this Bill on a Section 6 application, the judge is permitted to look at intercept material. Is he, as the trial judge, permitted to consider intercept evidence for the purposes of his decision on the issues between the parties on material that would be inadmissible in open proceedings? The Bill as drafted suggests that he may take such material into account in making a declaration under Clause 6 that a CMP application may be made, but nothing is said in the following clauses about whether he may take inadmissible evidence, like intercept, into account in formulating his judgment.

Indeed, there is a huge hole in this Bill. It deals with a Section 6 application and how you can make it; it deals with how the judge determines that application and what rules are to be applied; and it deals with how he is required to withhold material the disclosure of which he considers would be damaging to the interests of national security; but having made all those decisions what then? One would have expected a clause saying something to the effect that the judge in open court may take into account the material that he has considered in the Section 6 application. One would have expected at that point that the Bill would not be silent about what happens afterwards and to what degree he can take into account what he has seen but which he cannot disclose. If evidence is inadmissible in open proceedings, how can it be inadmissible in closed proceedings? The inherent unfairness of Section 6 applications is doubly compounded.

That brings me to the Government’s third point. Again, I quote:

“It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds when reaching a judgment”.

That seems to confirm that the judge is to take into account only admissible evidence in deciding the issue. Again, I ask: does that apply to the intercept evidence that he is permitted to see in a Section 6 application? Does he put intercept out of his mind?

The fourth point is:

“This is true even when the judge is also the decision maker on the facts—for example in criminal cases in the magistrates’ court, where there is no jury; and in cases in the civil courts where PII claims are made”.

We are most certainly not dealing with criminal proceedings in the magistrates’ court in this Bill. I would be grateful if the Minister would indicate how often PII hearings do take place in such magistrates’ courts, where the magistrates carry out the Wiley test of weighing the interests of secrecy against the interests of justice. I have never heard of it happening. It may do, but I have never heard of PII applications determined by magistrates. In the civil courts, of course, I repeat, the judge discards material which he rules should not be disclosed as inadmissible —that is to say, it does not enter into the process of his determination of the issues in the case. He must sift out, from the material put to him in the Section 6 application, what is to be discarded because it is inadmissible and take into account only relevant evidence.

The final substantive point made by the Ministry of Justice is that a separate judge would have to review disclosure decisions as the trial progresses. Perhaps he would, but he would be fully informed of the state of the proceedings and of the issue which had arisen in the open proceedings, no doubt by the state’s representative, who would discuss the position with the claimant’s special advocate before such a hearing. There are ways of getting round what goes on in the open hearing which may be required to be reported back to the disclosure judge.

My point is that the designation of a disclosure judge by the Lord Chief Justice, although I put it might be more appropriate to say the Lord Chancellor, or, since it is civil proceedings, the Master of the Rolls would ensure that there is a cadre of judges, security cleared, who would develop expertise in this type of case. They would quickly be adept at redaction, gisting, disclosure to a security ring or whatever way they can deal with evidence or parts of evidence which might be disclosed to the parties. A disclosure judge could, for example, permit the special advocate to ask the claimant specific questions by way of taking instructions and could control the manner in which that would happen. If the disclosure judge decided there was a limited area of the evidence that justice demanded that the trial judge, but not the parties, should see, I suppose that in extremis that could be done. There could be a tiny residue of material which cannot be disclosed by gisting or in any other way to the parties in the open proceedings. Otherwise, however, the trial judge would deal with the issues between the parties only on the admissible and relevant evidence which the disclosure judge had decided should be open to them all.

The Government have suggested that the rationale of my amendment is to avoid the contamination of the judge’s mind in relation to material which he has seen but which is not shared with the parties. The use of the pejorative word “contamination” clouds the issue; the intention of the state in applying for Section 6 proceedings is exactly to influence prejudice or, if you like, contaminate the judge’s mind in coming to his judgment. I am concerned to ensure that justice is seen to be done in an open and transparent way that will command the confidence of the public and continued respect for the rule of law. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I added my name to the amendment put down by my noble friend Lord Thomas of Gresford. This debate is informed by the far-reaching discussion that we had last Wednesday on the relationship between PII and CMP. I suggest that in that debate there emerged a consensus around a series of principles which can be distilled as follows.

First, the use of CMP should always be a last resort given the inherent injustice in the trial judge seeing evidence that is withheld from one or more of the parties. Secondly, there should be substantial flexibility in considering how far a just determination of the issues could be achieved by relying on the PII procedure where the exclusion of security-sensitive material under PII would not make determination of the issues impossible. Thirdly, the court should always, as far as possible, make use of gisting, redaction and other ways of protecting security-sensitive material rather than relying on CMP. Fourthly, before resorting to CMP the court should always be satisfied that the public interest lies in having closed proceedings rather than in letting the case go without a determination on the merits at all. Finally, in any CMP, the use of closed material should be kept to the minimum.