Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 100-119)


11 OCTOBER 2005

  Q100  Colin Burgon: Reading through JUSTICE's briefing,[3] they make a statement, "In particular, we think it is false to suggest it is necessary to significantly restrict fundamental rights in order to protect one right in particular, the right to life". Would you not say there was a certain primacy about the right to life that it should in effect determine our response?

  Dr Metcalfe: Yes, there is a primacy to the right to life, but, as the European Court of Human Rights made clear in the case of Osman, involving the measures that the police officers could have taken in respect of a dangerous suspect several years ago, what the European Court said in that case was that, "Yes, the right to life is very important, but the protection of the right to life cannot be allowed to circumscribe the other rights that people enjoy under the European Convention". That is to say, you cannot abrogate all the other rights in the name of protecting one right in particular. Now, I am not suggesting that the Government does not have a serious responsibility in protecting the lives and safety of members of the public and I have a great deal of respect for the heavy task that they have in that regard, but I would also point out that there are a number of risks in our daily lives that we have to balance. If you just take the idea of the threat to the right to life or bear in mind that there were 800 murders in the United Kingdom last year and 3,000 road deaths, we do not talk about abrogating the right to liberty or the right to due process by reference to safeguarding people who die from speeding or from drunk-driving or from murder. I am not trying to be callous and I am not trying to suggest that it is not atrocious what happened on July 7, but I am asking you to bear in mind that every risk to the right to life that appears in this country does not necessarily require an extreme response. Again I am not saying that the Government is not entitled to take very seriously important measures against terrorism, but you need to balance all the rights in a society because there is a danger that if you go too far in one direction, you end up undermining what you were fighting to protect in the first place.

  Q101  Colin Burgon: What grounds do you have for claiming that the current limit of two weeks' pre-charge detention is the maximum period that would be compatible with Article 5 of the European Convention on Human Rights?

  Dr Metcalfe: Well, the case of Brogan v United Kingdom came up in 1988 and that was a case that was brought under the 1984 Prevention of Terrorism Act in Northern Ireland. In that case the European Court of Human Rights said that detention and police custody without judicial control that had lasted four days and six hours was in breach or Article 5(3) of the European Convention on Human Rights. They said that to find otherwise, to go further would be "a serious weakening of the procedural guarantee to the detriment of the individual and impede the very essence of the right protected". It is also quite interesting, I think, to point out that last week, just as the Home Secretary was releasing his latest letter on 6 October defending his claim to have three months' detention, the European Court of Human Rights was handing down another judgment in relation to a Turkish case. This related to the state of emergency in south-eastern Turkey and the Turkish Government has a declaration of a state of emergency and had derogated under Article 15 of the Convention and even in that situation detention of more than 10 days without being brought before a judge and having a judicial determination was found to be contrary to Article 5(3), so that is the basis we have for saying that if you have any more than two weeks' detention, it is highly likely to be found incompatible by the European Court of Human Rights, if not by any number of British courts on the way to Strasbourg.

  Q102  Colin Burgon: So the Home Secretary has been badly advised, has he?

  Dr Metcalfe: Well, I suspect he is probably being quite well advised, but I am not quite sure that his answers reflect the full extent of the advice that he has received.

  Q103  Nick Herbert: Can I just direct my questions to Liberty. You do not object, do you, to the principle that there are circumstances in which it is necessary to detain suspects without trial?

  Ms Chakrabarti: Well, there are circumstances in which it is necessary to detain suspects without trial and every time a suspect is arrested for a period he is of course detained without trial. Article 5 of the Convention says that he should promptly be charged and then, beyond charge, he should be tried as soon as is reasonable. If what is being said to me is something bigger than that, if what you mean by your question is that there are circumstances in which there is such a threat to the life of the nation, Parliament has been obliterated, the fuel supply and the food supply, what I believe to be a truly temporary emergency situation of that kind arises, then of course the Convention itself provides for a derogation mechanism and of course that was a mechanism that the Government sought to employ in the context of internment or lengthy detention without trial in the whole Belmarsh scenario. What I would say about those sorts of cataclysmic moment, the moment where those in power declare the state of exception where, for a time, the rulebook is truly put aside is that if moments of that kind are adopted too easily and in an unending war or an unending emergency, that is incredibly dangerous indeed and that is effectively the end of our society. Moments of that kind should only be entered into as the very, very last resort, not just because we have been attacked, not just because people's lives have been lost, but because the State effectively cannot function.

  Q104  Nick Herbert: In your brief you say, "The State must be permitted the ability to detain for a reasonable period without laying charges to allow investigation. Up to this time that period has been 14 days for terrorist suspects", a clear indication that you support the existing period of 14 days. Is that right or not?

  Ms Chakrabarti: I am not sure that I am going to enter into the auction of—

  Q105  Nick Herbert: Is the 14-day period justifiable or not?

  Ms Chakrabarti: I personally have concerns even about 14 days, but I do accept in principle that people are arrested and the original question that you put to me was whether I accepted that people have to be arrested and detained for a period prior to charge and trial. Yes, of course I do. I think 14 days is quite lengthy if you compare it to the four-day maximum for crimes, such as murders and rapes and complex fraud. That in itself is a lengthy period, but I do not think it is helpful to enter into bidding in an auction for what period between 14 days and three months would be acceptable. What I think should be done instead is to look at whether any extension from the status quo is justified and what more proportionate alternative policies might be adopted.

  Q106  Nick Herbert: But you used this quite dramatic language and you talked about doing away with habeas corpus. My point is that the existing law under the Criminal Justice Act, because of the 14-day period, in your language, does away with habeas corpus.

  Ms Chakrabarti: No, that is not my view.

  Mr Crossman: Sorry, I wrote the briefing that you are reading from and if there is any confusion about what I was saying, I was simply stating that the current law allows for 14 days' detention in terrorism cases. Now, when a Bill is introduced where the Government and the Home Secretary are suggesting that that be increased to three months, I am hardly likely to turn around and start suggesting that 14 days itself is too long. That was simply stating what the current length permissible is now.

  Q107  Nick Herbert: No, it was not. In your brief you say that, "The State must be permitted the ability to detain for a reasonable period without laying charges".

  Mr Crossman: That is right of course.

  Ms Chakrabarti: That is right. I agree with that.

  Q108  Nick Herbert: Can I move on. The police's contention is that they need more time in order to be able to assemble the evidence and Liberty's response to that is that the police should have more resources, not more time, but more resources. However, the police explicitly say, do they not, in the anti-terrorist branch justification for making a case for change that in particular in relation to the de-encryption of the vast amounts of data this is not primarily a resourcing issue, but one of necessarily sequential activity, data-capture, analysis and disclosure. Is that not a point that we should take seriously and is there not a fundamental difference between the fraud investigations which you have described and the kind of offences which we are talking about in that the latter could potentially involve the very grave loss of life?

  Ms Chakrabarti: That is certainly true, but in relation to complexity and just to get to the heart of your question, if I may, on de-encryption, we believe that it is perfectly justified for the police to go to a judge and say, "We believe that we need a de-encryption key in order to pursue this investigation. The suspect will not turn it over. Please order that they do"—

  Q109  Chairman: Would you please answer Mr Herbert's point where he has fairly quoted to you a statement from the head of terrorist operations in the police, saying that it is not primarily an issue of resources?

  Ms Chakrabarti: Well, I am afraid that I disagree.

  Q110  Chairman: So Liberty knows better? This is quite an important point because the debate that is taking place here is that the Government should not do this because they could do it in other ways and you are saying to us that it is about resources. The people who are advising the Government are saying it is not primarily about resources and Mr Herbert is only wanting to establish how you have your opinion, where it comes from.

  Ms Chakrabarti: The Prime Minister once famously said, "We asked the police what powers they wanted and we gave them to them". I humbly suggest that is not the appropriate way for democratic politicians to behave. I merely suggest that there may be more proportionate ways to address the police's operational concerns, like the point about interview post charge, like the point about de-encryption, like the point about more resources when all of these should be looked at far more seriously before such an extension of pre-charge detention.

  Q111  Nick Herbert: In France, as I understand it, suspects can be detained for up to four years on similar charges. Is that approach, which I imagine you object to, compatible with the European Convention?

  Ms Chakrabarti: I am not an expert on French law. Dr Metcalfe knows a bit more than me, but I do not think that it is four years pre charge. I think it may be four years pre trial, but not pre charge.

  Mr Crossman: In our briefing we did not make a statement as to any particular length of time that we thought would be Article 5 compatible or not Article 5 compatible because we were aware that different countries have different time lengths. What we are saying is that this Government should need to justify any extension in the UK.

  Dr Metcalfe: We are particularly concerned about the idea that the Home Secretary has suggested that there might be judicial control and what he is trying to model it upon is the French, the Italian and the Spanish jurisdictions that he has talked about. In the French system in particular, the French examining magistrate has a much more intimate role in the investigation process. They are in fact in charge of the investigation. They interview the witnesses, they assess the evidence for themselves and they in fact in most cases take the decision whether the person is to be charged and prosecuted in the first place. Now, if you want to import that system into the British model of justice, then you have got to adopt also the French style of training magistrates, giving them the specific background training. You train to be a judge in the way that you train to be a lawyer in France, so the model is very different. What the Home Secretary is talking about is importing a notion of judicial control without any of the background of experience of any of the judges in this country. There has been some suggestion that if you upped the level of seniority of judge in this country, then that might provide a better safeguard, but even the most senior judge in this country does not have the same degree in expertise of conducting an investigation as the most ordinary examining magistrate in France, so I think it is highly inappropriate for the suggestion that the French model should be transplanted into the English adversarial model without also importing the same safeguards that the French enjoy.

  Mr Smith: You have to be totally careful about cultural pick-and-mix, it seems to me. I have sat with the juge d'instruction and it is just an entirely different process. You sit there and the file gets bigger and bigger. It is a completely different role.

  Q112  Mr Clappison: Can we just have a straight answer to the question please. How long can somebody be held in France before they are charged?

  Dr Metcalfe: My understanding is that they cannot be held for more than 48 hours. I am not offering you gospel on that. I am not an expert on French law.

  Q113  Chairman: But the practical reality is that in France somebody can be held, charged very early and then held for an extremely long period of time before they are brought to trial and that does not fall foul of the European Convention.

  Dr Metcalfe: It happens in this country too, that once you have been charged and if you are not granted bail, then you can be detained for quite a lengthy period.

  Ms Chakrabarti: But the Convention makes an important distinction between the prompt charge and the period between charge and trial and that needs to be remembered. The charge is the bare minimum of knowing why it is that you are detained.

  Q114  Mrs Cryer: If the safeguards in the draft Bill were to be strengthened, for instance, by requiring the application to be heard by a High Court judge rather than a district judge, would this dispose of some of the compatibility issues? This question was put to the Home Secretary and he sounded to me as if he was quite sympathetic to these being strengthened.

  Mr Smith: I think the answer to your question is no, but it would be desirable.

  Q115  Chairman: And Liberty would say yes?

  Ms Chakrabarti: Well, we would say no. We have been here before, if I may say so, Mrs Cryer. We have been here before with Belmarsh which was supposed to be okay because judges were involved. We have been here before with control orders which are supposed, some would say, to be okay because judges are involved. A process is only fair where a judge is presiding over something that is a fair process. Just importing the fig-leaf of judicial involvement does not turn something into a fair and proper legal process. What is the judge going to look at? There is not even a charge. I would suggest that in this lengthy pre-charge detention phase, all the judge can do is to say to the police, "Have you really made enquiries of the Egyptians yet? Why is it taking you so long?" What he cannot do is to substitute for the fact that there is as yet no charge, no particularised allegation against the individual concerned.

  Q116  Mrs Cryer: So you feel that having a High Court judge would be preferable to a district judge?

  Mr Smith: Yes, that was the distinction I made. The answer to that question is yes, it would be better and there has been, I have forgotten the name of it, but a horrific case in relation to an Anti-Social Behaviour Order which was made by a district judge and then had to be overturned and then became a cause célèbre in the Court of Appeal which shows how badly these things can work. District judges one has immense respect for, but a High Court judge is the minimum, so the answer to your second question is yes and to the way you originally formulated it is no, it is not enough in itself.

  Q117  Mrs Cryer: We have already talked about increased resourcing and it is a little bit of a repeat but I wonder if I could put this to the Law Society specifically. In your memorandum,[4] you argue that "it appears to a large extent that the call for an extension of detention powers relates to the question of resources". What evidence do you have to back up this assertion? What scale of increased resourcing do you think is necessary?

  Ms Marks: Our paper actually referred to the information available and quoted not only the annex to Charles Clarke's original letter to his opposite numbers in the opposition parties, but actually we have also had the benefit of seeing the information that was supplied by the Assistant Commissioner Andy Hayman on 6 October. Some of the case studies he gave in his own evidence were, I found, extremely interesting. For example, he referred to one case where it was the sheer weight of material. In another, in his hypothetical study and this was a hypothetical one, he said that a targeting document was found on the 50th computer to be examined in the seventh week which to me indicates that if there were 50 people looking at 50 computers instead of one, that could have been the first computer on the first day of the first week rather than, as he suggests, looking at them sequentially. If this amount of material is seized, I respectfully suggest that it is almost impossible to know what the sequence is until you start looking at it, so you really need a large number of people to be looking at it. What I thought was particularly striking was one of his early examples where it was a real case study and it was sub judice, so he could not give much detail, but what he could say about it was that if the decision to charge could have been delayed while the investigation developed, things might have turned out differently and went on to say, and this is the final point, that the case is to be heard in January 2006. What that seems to suggest is that once a charge has been placed, that is the end of the investigation. We all know that is not so and we only have to think of some of the more serious criminal offences, serial murders, serious fraud cases and so on, the investigation continues even after charge and we can see no reason why the investigation could not continue after initial charge and if further evidence emerges, further charges can be put. That was something which we suggested in our evidence would be a way of dealing with this particular difficulty. After all, we would stress, in order to arrest an individual, there have to be reasonable grounds in the first place, so if within 14 days it is not possible to substantiate those reasonable grounds sufficient to place a charge, let alone bring them to trial, we suggest there is something seriously awry with the arrest in the first place.

  Q118  Nick Herbert: Following that reply, I just wanted to establish what these lesser offences might be. One of the suggestions which has been made and I asked the Home Secretary about was that if there was not sufficient evidence to justify a charge under these terrorist offences, there might be lesser charges which would then enable detention until the evidence could be gathered to upgrade the charge. This is a suggestion which all three of you have made, so what are these lesser offences?

  Dr Metcalfe: Well, I think it is helpful to point out that what the Newton Committee made reference to was that many of those involved in terrorist offences or suspected to be involved in terrorist offences are also engaged in a great deal of low-level criminality in order to fund that and they gave examples of people who are involved with credit card fraud. That is not an unusual occurrence.

  Q119  Nick Herbert: The sort of `Al Capone' point?

  Dr Metcalfe: Exactly.

  Ms Chakrabarti: Also there are low-level terrorist offences. There is being associated with a terrorist organisation, there is funding terrorism, supporting terrorism, possession of material. There is a whole range, a whole hierarchy of offences within the special terror offences regime and of course these other offences of fraud and so on which Dr Metcalfe refers to.

3   Not printed. Available in the House of Commons Library (for inspection by Members of the House) and the House of Lords Record Office, and on the internet at: Back

4   Not printed. Available in the House of Commons Library (for inspection by Members of the House) and the House of Lords Record Office, and on the internet at: Back

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