Laws aimed at ensuring that defendants get fair trials are hampering anti-terrorist operations and must be reviewed, a former senior police chief has said.
The Contempt of Court Act 1981 was preventing the public being properly informed about operations, Peter Clarke, previously the country’s most senior counter-terrorism officer, told BBC radio news yesterday.
His call for a review was supported by former attorney general Lord Goldsmith QC, who said ministers should consider the idea of a “controlled way of releasing more information”.
The Act bans the publication, from the moment a suspect is arrested, of material which poses a “substantial risk that the course of public justice will be seriously impeded or prejudiced”.
It is designed to prevent potential jurors being swayed by the publication of information before a trial takes place.
But Clarke said it was time to “trust” jurors more in the interests of ensuring that communities were kept informed during the sometimes very long periods it took to prepare a case.
“I think there is a link between the application of the Contempt of Court Act and the potential effectiveness of counter-terrorist policing,” he told the BBC.
“It is fundamental to any type of policing that communities must have confidence in what the police are doing. All too often, though, it has been two or even three years before we have been able to explain to communities why certain actions were carried out.
“If that happens it is going to be far more difficult for those communities to have confidence in the police, to have the confidence to come forward with intelligence and information which could be absolutely vital in terms of counter-terrorism.”
Clarke, who headed the Metropolitan Police’s Counter Terrorism Command until last year, said a 2003 raid on Finsbury Park Mosque was a particularly acute example.
“This was a hugely sensitive operation and we wanted to be able to explain to communities why it was we were doing something like that,” he said, adding that an explanation could not be given until three years after the event.
The police were then accused of exaggerating the terror threat in a bid to provide support for the Iraq invasion, which harmed the force’s effectiveness, he said, adding that the “official silence” required by the Act “leaves an open court for others to roll out speculation, innuendo, sometimes deliberate lies”.
“That unbalances the public debate and makes it very difficult for communities to know what to believe and therefore it makes it more difficult for the police to do their job.”
He questioned how often in reality there was a “substantial risk of serious prejudice”.
“In an era of global communication it is unrealistic to think that jurors will sit there in complete isolation not understanding the context of what they are trying.
“Juries are the bedrock of our judicial system – we need to cherish them and, most importantly, we need to trust them,” he said.
Lord Goldsmith, who was the chief law officer at the time of the Finsbury Park raid, said he accepted the need for a review but warned any relaxation of the law would require very careful consideration.
Research abroad suggested that jurors were far more swayed by what they heard in court than information they received outside.
He also agreed that the contempt rules were out of date in the internet age.
“I think it probably is time for a review of the Contempt of Court Act in an independent and objective way. Let’s look at the evidence of what actually affects juries and what doesn’t. Let’s look particularly if there could be some sort of controlled way of releasing more information.”
He had often found himself under attack from prosecution and defence over the issue when he was Attorney General.
“When everybody seems to be unhappy with the law, it is time to look at it.”
A Ministry of Justice spokesman said: “The Contempt of Court Act 1981 prohibits the publication of information that creates a substantial risk of serious prejudice to the course of justice in legal proceedings. It is designed to ensure that a fair trial can be held.”