House of Commons - Home Affairs

Select Committee on Home Affairs Fourth Report

3 The terrorist threat

Has the nature of the threat changed?

39. Central to the police case for increased detention powers is the argument that the nature of the terrorist threat is now completely different to the threat posed by Irish terrorism. The briefing note covered by AC Hayman's letter argues that Irish terrorists deliberately sought to restrict casualties for political reasons, but that now the threat is of "terrorist attacks designed to cause mass casualties, with no warning, sometimes involving the use of suicide, and with the threat of chemical, biological, radiological or nuclear weapons".[42] The police also stress the international nature of terrorist networks.

40. Similarly, the then Home Secretary argued to us that a number of aspects of terrorism had changed 'fundamentally'. He highlighted four points. The first was the nature of the terrorist organisations: he distinguished campaigns in the last century "essentially for national liberation […], which had a clearly defined focus and clarity about what they were seeking to achieve" from al-Qaeda, "an attempt to recreate a medieval form of society". Second was the international nature of terrorism, third the wealth and sophistication of the terrorist organisations and fourth readiness of terrorists to kill themselves.[43]

41. Some witnesses did not believe that the nature of the threat had changed significantly. For example, Ms Gareth Peirce, a solicitor who has worked on the defence in a number of high profile terrorism cases, said:[44]

"I think I cannot accept the proposition that the threat has changed in degree or severity or quality or the factual basis, it is very, very similar".

Tim Owen QC took a similar line:[45]

"While, of course, on one view, the more people who are killed the more evil and wicked is the deed, but in terms of the threat, if you have a lorry loaded with three tonnes of home-made fertiliser being driven around London and left in a public place, with no or an inadequate warning, is it really suggested that the police would not do their utmost to arrest at the earliest point to avoid the threat?".

42. Those who doubted that the threat had changed also argued that the threat from Irish Republican terrorism had at the time been presented by the police and the security services, and perceived by the public, as exposing the citizens of London and the rest of the country to extreme danger, and that bombings carried out for political motives over 25 years were, in Ms Peirce's words, "the most exceptional danger that any country could have been exposed to on a sustained level".[46]

43. JUSTICE took the line that the arguments in favour of extended detention had been used before, both unsuccessfully before the European Court of Human Rights and in support of the extension to 14 days;[47] the implication is presumably that if circumstances have not changed, then the arguments are either still inadequate or should not be used again. We put to AC Hayman that the increase to 14 days had been in place for only two years; he replied:[48]

"what we have seen happen in the passage of those two years across the world and the complexity of the attacks and the atrocities that have occurred means that the timescale of two years becomes irrelevant. If it had been two months and there had been a massive change in circumstances, to be not flexible enough to change one's opinion or review legislation would be remiss".

44. We consider that the nature of the terrorist threat has changed: while there is no sharp break in the continuum between Irish republican terrorism and terrorism today, there are a number of significant developments. The first of these is that while Irish republican terrorism was brutal, and deliberately killed or injured large numbers of people, contemporary terrorism is distinguished by the centrality of the intention to cause mass casualties indiscriminately. Secondly, suicide bombers are a new phenomenon in this country. Thirdly, contemporary terrorism has an international basis which makes conspiracies more extensive and complex and increases the likelihood that recruitment to terrorism will continue to grow. Fourthly, the nature of the current threat appears less amenable to negotiated political resolution.

Consequences for police work

45. The police briefing note of 5 October that the changed nature of the threat means that they have to intervene earlier:[49]

"During every counter-terrorist investigation a balance is struck between the maintenance of public safety, the gathering of evidence and the maintenance of community confidence in police actions. Public safety always comes first, and the result of this is that there are occasions when suspected terrorists are arrested at an earlier stage in their planning and preparation than would have been the case in the past".

As a result, the police argue, the time available to construct a case is restricted: in particular, the period before an arrest, when otherwise evidence gathering would take place, is often now significantly shortened. This problem is compounded by the complexity of many terrorism cases, which are often extremely complex, involving a number of suspects, many of whom would have multiple identities, and which extend across a number of countries.

46. Witnesses who disputed that the nature of the terrorist threat had changed also believed that existing powers were adequate; as Tim Owen QC put it:[50]

"I do not accept that the legal system, at the moment, is not capable of delivering a solution without going to 28 days, or even 14 days".

Tim Owen and others also argued that existing detention periods were probably incompatible with the European Convention on Human Rights and, in any case, might well be unacceptable in court:[51]

"I find it difficult to see how the average English judge would regard it as fair to admit evidence obtained by interview after a person had been held for more than seven days in custody, or certainly longer than 14 days, without any charge".

47. DAC Clarke disputed both these points. On existing detention periods, he quoted counsel's opinion that these are not incompatible with ECHR so long as there was appropriate judicial involvement.[52] On whether evidence obtained after a person had been detained for longer than 14 days would be admissible in an English court, he quoted counsel's opinion that:[53]

"So long as the detention is lawful and there has been no oppression or unfairness, there will be no reason to exclude evidence obtained after 14 days merely because of the time when it was obtained. The weight which is to be given to it will depend on all the circumstances of the case".

SPECIFIC FEATURES OF MODERN TERRORISM

48. The police briefing note of 5 October sets out a number of specific features of modern terrorism which in the police's view support the case for an increase in maximum detention powers.[54] These are set out below:

—  The networks are invariably international, indeed global in their origins and span of operation. Enquiries have to be undertaken in many different jurisdictions, many of which are not able to operate to tight timescales.
—  Establishing the identity of suspects often takes a considerable amount of time. The use of forged or stolen identity documents compounds this problem.
—  There is often a need to employ interpreters to assist with the interview process. The global origins of the current terrorist threat has given rise to a requirement, in some recent cases, to secure the services of interpreters who can work in dialects from remote parts of the world. Such interpreters are difficult to find. This slows down the proceedings, restricting the time available for interview.
—  Terrorists are now highly capable in their use of technology. In recent cases, large numbers (hundreds) of computers and hard drives were seized. Much of the data was encrypted. The examination and decryption of such vast amounts of data takes time, and needs to be analysed before being incorporated into an interview strategy. This is not primarily a resourcing issue, but one of necessarily sequential activity of data capture, analysis and disclosure prior to interview.
—  The forensic requirements in modern terrorist cases are far more complex and time consuming than in the past, particularly where there is the possibility of chemical, biological, radiological or nuclear hazards. Following the discovery of a 'bomb factory' in Yorkshire after the 7th July attacks in London, it was over 2 weeks before safe access could be gained for the examination to begin. It took a further 6 weeks to complete the examination. The Al Qaeda methodology of mounting simultaneous attacks inevitably extends the time it takes for proper scene examination and analysis.
—  The use of mobile telephony by terrorists as a means of secure communication is a relatively new phenomenon. Obtaining data from service providers and subsequent analysis of the data to show linkage between suspects and their location at key times all takes time.
—  There is now a need to allow time for regular religious observance by detainees that was not a feature in the past. This too causes delay in the investigative process during pre-charge detention.
—  A feature of major counter-terrorist investigations has been that one firm of solicitors will frequently represent many of the suspects. This leads to delay in the process because of the requirement for consultations with multiple clients.

These features fall into two groups: those which relate to aspects of the investigation, such as computer decryption, mobile phones and forensics, and those, such as interpretation and religious observance, which are part of the process of detaining and interviewing a suspect. We now look at each of these in turn.

ASPECTS OF THE INVESTIGATION

International nature of terrorism

49. The police briefing note mentions Operation Springbourne (the 'ricin' plot), noting that it involved 26 countries in addition to the United Kingdom.[55] We were also given in confidence details of a number of other investigations, some still sub judice, others concluded.[56] Of four concluded investigations since September 2003, two involved 7 countries, one 11 and one 17.

50. No witness disputed that terrorism cases might involve gathering evidence from a significant number of countries, but some argued that the same was true of other forms of crime. Liberty, for example, commented that:[57]

"white collar fraud can involve huge amounts of material and any number of jurisdictions. Yet pre trial detention is limited to a maximum of four days, less than a third of the current time permitted for terrorism detention".

51. It is of course the case that many non-terrorist crimes involve complex international elements over a number of countries, and that pre-charge detention is significantly shorter than in terrorism cases. But the unique feature of terrorism cases is the emphasis that has to be given to the protection of the public while the investigation proceeds.

Multiple identities

52. Two of the four operations mentioned in paragraph 49 did not involve multiple identities (although in one two false passports were discovered); in one of the others 3 suspects had ten identities with four false passports and 10 false identity documents, and in the last, in which there were 7 suspects, 860 passports and identity cards were accompanied by 2,500 other forged documents.

53. Liberty could not see how difficulties in establishing identities of terrorist suspects would present any significant hindrance, since multiple identities were not a new phenomenon in criminal investigation and people could be charged under an identity they had assumed if that was a name by which they were known.[58]

54. Those investigating contemporary terrorism cases not only have to identify the individuals concerned, but also to understand the roles they played in complicated conspiracies. We therefore think that it is reasonable for the police to cite multiple identities as a complicating factor in their investigations.

Computers

55. Technical experts disagreed on the length of time it takes to analyse a hard drive to discover whether there is unencrypted material of interest or encrypted material. The preliminary stage is taking a copy of the hard drive ("imaging"), which in the police's theoretical case study is said to take a minimum of 12 hours. Peter Sommer of the LSE described this as "something of an exaggeration" and asserted that: "modern imaging products claim rates of up to 5GB per minute—so that even a comparatively large hard-disk of 120 GB would be imaged in 30 minutes. The only real problems are with some laptops where direct access to a hard-disk may be difficult".[59] David Lattimore, Technical Manager of the Digital Crime Unit at LGC Ltd, told us that most of the computers he dealt with needed imaging overnight.[60] Similarly, Mark Morris, Head of Forensics at LogicaCMG plc, noted that in a recent non-terrorist case the forensic imaging took 30 man-days in machine time: he believed that Mr Sommer's evidence did not reflect the issues faced in a complex and serious inquiry, in which information gleaned from an interview might entail the re-examination of computer media.[61]

56. Witnesses did agree that it depended entirely on the circumstances of particular cases whether evidence obtained from computers was significant; as Mr Sommer put it:[62]

"Sometimes the computers are at the heart of it and sometimes they are entirely peripheral. That applies to any form of crime in which computers are involved as well as the terrorist cases. I currently am instructed in three terrorist cases and in one of them the computer evidence is really fairly peripheral, but there are a lot of other types of evidence in terms of what was located. The computer evidence may slightly strengthen or slightly weaken the police case but in other instances it can be absolutely at the heart of it".

Mr Lattimore said that in 70% or 80% of the cases in which he was involved, the computer evidence was needed before a charge could be brought.[63]

57. We were also told that encryption was in practice less of a problem than had been feared. For example, Mr Sommer cited Operation Ore, a major paedophile inquiry, in which among 7,200 suspects there had only been 20 instances where encryption had been a serious problem.[64] Ross Anderson, Professor of Security Engineering at Cambridge University, told us that:[65]

"In the case of decryption, there are still a few products around where the act of searching for a key may take time, but this is largely a thing of the past. Encryption products nowadays tend to be either good or useless, and if they are good then you either guess the password or you give up".

58. Witnesses also agreed that the police might not be exploiting existing capabilities fully. For example, David Lattimore told us that "often some encrypted files/volumes are found however others are missed because the investigator is not familiar with the techniques being used by the suspects",[66] while Mark Morris observed that "the most common forensic tool used by Police is not very effective in even revealing encrypted data, and it is feared that many times such evidence may be overlooked".[67] Professor Anderson argued that the quantities of data available in trials, both civil and criminal, were increasing much more rapidly than the capabilities of the police (or the justice system), which would need a step change.[68]

59. The National Technical Assistance Centre, a Home Office unit which provides technical support to UK law enforcement and intelligence agencies, explained how long decryption might take:[69]

"An initial examination will reveal the extent of the encryption and indicate the likelihood of success. This process takes less than a week. The subsequent timing of the case is wholly dependant on the type of encryption applied and the nature of the forensic information recovered from the suspect computer. For example NTAC have processed cases for over one year and have still remained optimistic of obtaining a successful result. Other cases have been completed in less than a week.

In general terms however it would be fair to say that if resolution of a case had not been possible after a reasonable period then the likelihood of a positive result diminishes significantly. An exact value for the length of this period is hard, if not impossible, to determine precisely due to the variety of factors involved. Past experience has shown that two months is usually adequate if a result is possible although this might extend to three months where a substantial amount of data or a large quantity of computers and media are involved. After these timescales the case officer will, in most cases, have secured a result; have identified indicators which pointed towards a positive outcome with considerable further work or concluded that the chances of success were limited or non existent".

60. Professor Anderson did not believe that technical challenges would justify an extension of maximum detention. He argued in essence that work expands to fit the time available:[70]

"In my experience people take as much time as they have got. Even if you have got a civil case that drags on for months and months and months, the work is always done in a rush just before the deadline to submit papers. [...] My view tends to be, based on my experience of these things, that you work for a certain amount of time on a heap of data and then you run out of ideas or you run out of puff or you run out of money".

61. The other technical experts who gave oral evidence to us were readier to accept that 90 days might be desirable in some cases. David Lattimore told us he personally had worked on cases that had taken more than 90 days to crack.[71] Peter Sommer agreed that there might be "very, very rare" occasions on which the police might need up to 90 days to carry out computer decryption and analysis before charging suspects.[72]

62. The police agreed that analysis of material found on computers was generally more time-consuming than decryption.[73] They accepted that the amount of potential evidence to be found on computers had led to changes in the approach to an investigation. As DAC Clarke explained:[74]

"Traditional, good detective work is that you follow the evidence wherever it takes you and that is the purity. You keep an open mind from the beginning of an investigation and follow the evidence where it takes you. However, with the weight of material we are now seeing, what we actually have to do is to set clear priorities at a very early stage and we have to make choices around which material we are going to try and access on computers or through mobile phones or overseas and hope, and it really does come down to hope, that that will yield the evidence we need prior to the end of what is now the 14-day period".

DAC Clarke went on to point out that these early choices could have significant effects, for example, if it was decided not to investigate a computer that later turned out to contain significant material, individuals might be released who would otherwise have faced serious charges.[75]

63. Encryption of data does not appear, for the time being, to be the problem in practice that had been feared. However analysis of data on computers, both unencrypted and decrypted, is time-consuming and resource-intensive. This will be an increasing problem for all types of investigations.

Regulation of Investigatory Powers Act

64. Some witnesses suggested to us that difficulties over encryption of data would be at least alleviated if the Government brought into force Part III of the Regulation of Investigatory Powers Act 2000 (RIPA), which provides that if someone has an encryption key and refuses to hand it to an authorised person, he or she will be liable to up to two years in prison.[76] Liberty pointed out that ACPO had also called for Part III to be brought into force.[77]

65. Other witnesses doubted that this would make much difference in practice. Mr Lattimore and DAC Clarke both argued that a suspect facing a long prison term for terrorism offences would be likely to refuse to surrender a key and accept a two year term as the lesser evil.[78] Professor Anderson believed that tax evasion or social security fraud would be more likely to provide charges on which to hold suspects.

66. The then Home Secretary told us that Part III of RIPA was not in force because the amount of data encrypted was much less than had been expected when the Act had been drafted, but added that the Home Office would conduct a public consultation on a draft code of practice, after which Parliament would be asked to approve a statutory code.[79] (This consultation, begun in early June, is scheduled to end on 30 August 2006.) He also pointed out that the Terrorism Act 2006 increased the prison term for non-disclosure of an encryption key from two to five years in national security cases.[80]

67. Clearly, bringing Part III of RIPA into force would not solve the problem of encrypted data; it could nonetheless provide a useful instrument in some cases. We therefore welcome the Home Office's expressed intention, following consultation on a code of practice, to bring Part III into force. It should do so as soon as possible.

Forensics

68. No witness disputed that forensics were time-consuming in terrorism cases, but the Director of Liberty believed that this was a problem that could be solved by increased resources.[81] Liberty's written submission also argued that it was quite common in criminal cases for the majority of forensic evidence to be accumulated post charge.[82] Although DAC Clarke told us that the focus of police work was shifting from forensics to analysis of technological data,[83] the police's written submission makes the point that forensic processes involve highly skilled law enforcement and specialist agency personnel. The police also argue that only a limited number of people can ensure safety and continuity of the task at any given time.[84] The volume of seized material is also a factor: in many of the investigations referred to in paragraph 49 there were thousands of exhibits, and in one of them over 44,000.

69. The police's argument that forensics are time-consuming is not disputed, and we also accept that this is not an area in which greater resources would have an effect because of the need for continuity of the investigation, which can only be ensured by using a team of skilled personnel.

Mobile phones

70. Experts on mobile telephony who gave evidence to us agreed that obtaining data from the handset of a mobile phone can be time-consuming. For example, Vinesh Parmar, Telecoms Forensic technical manager, Digital Crime Unit, LGC Ltd, told us that "on average a complete data recovery and presentation process for one device can take between 4 to 8 hours, this is solely dependant on the device in question and in some cases this time frame may be doubled or tripled".[85] But he and other witnesses also agreed that difficult cases were not common and that there had been little, if any, increase in encryption of data on mobile phonesalthough they did not rule out an increase in problems in this area in the future.[86] They further agreed that the main challenges were found not in retrieval of data from the handset, but the analysis of the records of calls made provided by the telephone companies;[87] all were clear that they would welcome up to 90 days in some cases.[88] They also raised doubts over training for and the technical capabilities of the police: Mr Parmar, for example, said:[89]

"Too often we get requests which say we want everything, which in reality is not a workable request. What we find is that law enforcement agencies need to start understanding the data that is available and to start understanding what is possible evidence or what is intelligence and they need to split it and make valuable requests to us so that we can do the best job we can. At the moment a lot of work we do is fishing expeditions where we are basically requested to grab everything out of there and we do not know the case history".

The police agreed that long-term investment and training were needed to ensure that officers kept up with the pace of technology, but denied that their training was inadequate.[90]

71. AC Hayman said that relationships with the phone companies, who had to balance the liberty and privacy of the user with the need to investigate serious crimes, were good.[91] Mobile phone experts were also satisfied with the speed of response from the networks, although they did call for legislation to ensure that data should be both retained for longer periods and standardised.[92]

72. It is clear from the evidence we received that the analysis of data such as records of calls made from mobile phones can be an important part of an investigation, but that the process is also lengthy and complicated. We therefore think it is reasonable for the police to support their case by pointing to the difficulties caused by the analysis of mobile phones.

73. We received evidence that each of the above factors complicated the investigation of terrorism offences. We also received evidence that it was the combination of the issues in individual investigations that created the real problems. Opponents of extended detention tended not to address the complexity of the issues involved and to understate the challenge faced by the police. In our view, the important point about the above elements is that recent terrorist investigations have involved all of them. Their individual impact is often significant but it is their cumulative effect on investigations that is central to the case for an extension of maximum pre-charge detention.

THE PROCESS OF DETENTION AND INTERVIEWING

Interpretation

74. Ms Peirce disputed that difficulties in finding an interpreter caused delays either in questioning a suspect or providing access to them for his or her solicitor, arguing that there was no shortage of Arabic interpreters.[93] Liberty argued that it was likely that any non-British national arrested on suspicion of terrorism would be detained since the Home Secretary would determine that their presence was non conducive to the public good, while a UK national would speak English or at least one relatively commonly spoken national language. They further commented that 'Difficulties in obtaining interpreters demonstrate why […] the goodwill of differing racial and religious groups within the UK is vital'.[94]

75. DAC Clarke responded that interpreters were not only needed for the process in the police station, but also, for example, for transcription and translation of intercept material. Such work entailed security clearances for interpreters. He also argued that some of the dialects used were rare and that in at least one case no competent interpreter could be found in this country.[95]

76. We were not convinced by the evidence that provision of interpreters is a significant difficulty.

Religious observance

77. Liberty questioned whether the need to allow time for religious observance created any significant problem since Police and Criminal Evidence Act 1984 already specified the need for regular breaks.[96] The police did not try to suggest that "regular religious observance"and it was not disputed that this meant Muslim prayersadversely affected the amount of time available for interviewing suspects. DAC Clarke described this as "another issue which we have to take into account when looking at the overall time available for the investigation to be completed in a proper fashion".[97]

78. We recognise that the need to allow time for religious observance complicates the organisation of an investigation: we do not, however, accept that it justifies an extension of the maximum detention time.

Solicitors

79. British Irish Rights Watch told us that their experiences in Northern Ireland indicated that, while the number of solicitors representing suspected terrorists was relatively limited, this did not have an impact upon investigations, and they strongly cautioned against any restrictions on contacts between lawyers and their clients.[98] Ms Peirce knew of one case in which one firm had acted for the majority of detainees and commented that:[99]

"the only professional way in which you could represent people would be if you had the manpower, or womanpower, to do it. Certainly, speaking from my experience, in our firm, if we were asked to act for more than one person, we would only do so, and could only do so, if we were able to act responsibly for that person".

She believed, in the example she cited, that the firm did have a very large number of people available, and was therefore 'dubious' about the legitimacy of the police's example.

80. DAC Clarke disagreed:[100]

"I think there have been occasions when what anybody else would recognise as clear conflict of interests have arisen through multiple representations of clients by one firm, and of course that is not a matter for us as police officers to point out to those professionals—that is a matter for them to recognise themselves. I would say undoubtedly there have been occasions when the representation afforded to people has not been of the highest standard because of this multiple representation issue".

He added:[101]

"It is not for me to second-guess a professional judgment of lawyers because we do see certain patterns and I do find it strange when, say, we have nine people in custody, eight of whom are represented by the same firm, and they all receive identical advice even though their circumstances are radically different as I am not sure that each individual suspect is getting the best possible advice".

81. We asked the police to provide us with an analysis of at least ten recent terrorist investigations showing how many suspects in each inquiry were represented by the same solicitor or the same firm. They provided this material in confidence, but it is clear that on more than one occasion a single firm with a small number of solicitors has represented more than double that number of suspects, who were the large majority of those arrested. We doubt therefore whether those suspects were represented to the highest legal standards: this of course raises questions of whether justice has been properly served. But the police are also concerned that such multiple representation may hinder effective investigation, for example by making it more difficult to schedule interviews of a number of suspects represented by the same solicitor. Be that as it may, it is not clear to us that the problem provides a strong case in itself for the extension of pre-charge detention.

Solicitors' advice to the public

82. When we visited Paddington Green Police Station, Anti-Terrorist Branch officers mentioned a leaflet distributed by a firm of solicitors, which urged members of the public not to co-operate with the police. We were later told that this referred to a leaflet distributed by Arani & Co., which contains the following advice to the public:[102]

"WHAT TO DO WHEN CONTACTED BY SPECIAL BRANCH ALSO KNOWN AS ANTI-TERRORIST BRANCH

Do not be misled by officers who state that they need you to assist them.

Do not talk to them regarding any matter.

Take the officers' names and telephone numbers.

State to the officer(s) that you need to seek legal advice.

State to the officer(s) that your solicitor will contact them.

Do not discuss any matters with them, walk away once you have taken the officers' names and numbers."

We note that the leaflet conflicts with the approach taken by, for example, the Muslim Council of Britain, which although frequently critical of the police has encouraged Muslims to co-operate with them.

83. It is disgraceful that any lawyer should encourage the public not to co-operate with the police as a matter of course. It is for the Law Society to decide whether Arani & Co.'s conduct has breached professional standards, but given the obvious terrorist threat we find that conduct particularly reprehensible.

Interviewing suspects

84. One of Ms Peirce's arguments was that the police did not use the time available to them in the most productive way. In particular, she suggested that even the most preliminary interviews were delayed for more than two days after the arrest:[103]

"It may be 48 hours before a person is even being asked where he was born, where his parents are living, all of that; it is frustration, from the point of view of the detainee, in terms of how it progresses".

Ms Peirce told us that over the past 25 years 90% of cases had followed this pattern: she offered to provide us with further evidence to back up this assertion, but, despite being chased several times, did not do so.[104]

85. Lord Carlile, the Government-appointed independent reviewer of terrorism legislation and a practising advocate, believed that interviewing was "becoming not entirely irrelevant, but near to irrelevant".[105] He argued that the defence had to strike a balance between answering questions on the basis of carefully managed disclosure by the police, on the one hand, and the adverse inference direction that would be given if questions are not answered, on the other: "most of us involved in serious cases would say that the adverse inference direction is a flea bite compared with the danger, the risk or hostage to fortune of answering questions".[106]

86. DAC Clarke disputed Gareth Peirce's assertion that interviews did not take place in the first 48 hours of detention:[107]

"In terms of the suggestion that we do not interview for the first 48 hours, I am afraid I do not recognise that either. There is no policy about that. Indeed, it is very often in our interests to have an interview as soon as we reasonably can so that we can get an indication of an individual's intentions and demeanour in respect of the investigation. I simply do not recognise that".

He also told us that the upper limit of time taken for interviewing a suspect was about 20% of the total time detained, but the average was somewhere between 10 and 15%.[108]

87. The police did accept that, in their words, "the detention process is not about interviewing alone as many people do not answer questions in any event" and that "in the majority of suspect interviews, terrorist suspects are advised, and exercise, their right to remain silent^".[109] They told us that over 60% of those detained by the Anti-Terrorism Branch chose to exercise their right to silence and that only one in ten of those who were considered to be leaders or directors of terrorism chose to speak.[110] But AC Hayman added that "that does not mean to say we should assume someone is not going to talk to us and we must not deprive someone of the opportunity to actually make comment when evidence is being presented to them".[111]

88. The assertion by Gareth Peirce that in the large majority of cases the police do not conduct even preliminary interviews with suspects was rejected by the police. In the absence of any supporting evidence from Ms Peirce, we cannot give any weight to her claim.

89. We accept that some of the aspects of the process of detaining and interviewing suspects pose practical difficulties for the police. They contribute to the case for extended detention but on their own are not sufficient to justify a change.

90. In general it cannot be expected that interviews of suspects during extended detention will lead to significant additional information that can be used in court. While we can understand that there may be cases in which confrontation of a suspect with new evidence might lead to admissions, it appears that the case for extended detention rests on two arguments: first, the need to seek and analyse evidence from a complex range of sources and, second, the need to ensure the protection of the public. This latter point has been referred to in our evidence and the Parliamentary debates. It does not, however, form any part of the legal basis for an application for extended detention. We consider the issue of public protection further in the next section.

Disruption and prevention

91. The police's written submission to our inquiry was explicit that the changed nature of terrorism meant that arrests were used to disrupt conspiracies:[112]

"In the interests of public safety, we are now compelled to disrupt terrorist activity much earlier than before. This will normally involve arresting suspects where the necessary evidence to support charges reflecting the seriousness of the terrorist intentions is yet to be understood".

92. Lord Carlile told us that "the purpose of the detention period in terrorism cases, first of all, is to ensure that the act is not perpetrated".[113] AC Hayman agreed with Lord Carlile that there were cases in which the police intervened early to prevent an atrocity.[114] When we then put to him that the main case for extending the maximum detention period was to disrupt or prevent terrorist activity, rather than to gather evidence, he agreed that:[115]

"There are a vast amount of cases now where an early interdiction is to disrupt on the grounds of public safety".

When he gave oral evidence to us the then Home Secretary also agreed that "it is critically important for us to disrupt any terrorist attack, and that may involve arresting some people earlier than would be ideal because we need to disrupt the terrorist cell", but added that the purpose of the arrest was still gathering the evidence to bring a charge.[116]

93. It is clear that the change in the nature of the terrorist threat has led to an increasing number of cases in which the arrest has come earlier than would be otherwise the case, because these arrests are primarily intended to protect the public by disrupting terrorist conspiracies.

94. One of the key conclusions of our inquiry is that the preventative element of some arrests under the Terrorism Acts should be given clearer and more explicit recognition. Arrests whose main purpose is to disrupt terrorist conspiracies are a result of the changed nature of terrorism, and, as Assistant Commissioner Andy Hayman of the Metropolitan Police told us, there is now "a vast amount" of such cases. We believe that this form of detention could be used appropriately on occasions to disrupt conspiracies. Hence we agree with the decision to increase the period of detention. But preventive detention is a significant new development, and one that was not made explicit during the passage of the Bill, during which extended detention was primarily justified on the grounds of the time needed to collect and analyse evidence. Any legislation should recognise in terms this important new purpose of pre-charge detention.

95. We repeat that preventive detention is a major step. At present, the police have to decide on both the action needed to protect the public and on the action required to pursue ultimately a successful criminal prosecution. We do not believe that this judgment should be left to the police alone. We consider alternative authorisation procedures in paragraphs 125-132 in the next section.

Alternatives to longer detention

96. Many of those who contested the need to extend pre-charge detention periods argued that the difficulties experienced by police and prosecutors could be better addressed by other means. We therefore consider the alternatives suggested, which are different from the use of tagging and control .

GREATER RESOURCES

97. The Home Office's written evidence emphasised the Government's commitment to ensuring that the police are effectively funded to meet counter-terrorist commitments. Specific counter-terrorism funding for the police service in England and Wales in 2005-06 was £96 million of revenue (of which £61 million was for the MPS and £35 million for provincial forces) and £8 million of capital funding, all for provincial forces. The equivalent figures for 2002-03 were £59 million (£47 million for the MPS, £12 million provincial). The submission also noted that in the 2004 spending review the Security Service received an average increase of 60%.[117] AC Hayman told us that this level of resources for the police and the security agencies was sufficient: "it is for us now to deliver outcomes which we have said we will be able to do".[118]

98. Some witnesses, such as Liberty, believed that greater resources for the police would provide the most effective way of combating terrorism:[119] as Shami Chakrabarti, the Director of Liberty, put it:[120]

"[the police] say, "We have difficulty getting material from this country or that country, we have difficulty getting forensics back," if you were to have, for example, a number of atrocities in different parts of the country you would have to—all of those points are put and surely they beg for more resources. Also, of course, they predicate the whole argument on the basis that the investigatory clock begins ticking almost only at the moment of arrest. Clearly, that is not true and should not be true, and the investigation can only be improved, it would seem to me, by more and better qualified resources".

99. For their part, the police argued that "all modern terrorism operations require a methodical, sequential investigative process that places the onus on the quality of the work undertaken rather than the quantity of resources deployed".[121] DAC Clarke conceded that greater resources in the initial evidence-gathering stage were useful, but told us that:[122]

"What we have found is not good practice is to have too many people engaged in the final analysis of material before it is fed into an interview strategy, because if you have too many people they will not have an overall view of the investigation and might not recognise the significance. One example in one particular case was where we did try to bring in extra people to wade through computer material over the course of a weekend, but because they were not fully sighted on all the issues in the particular case, they actually missed a vital piece of material on a computer hard drive, which was only thankfully then recovered by one of the detectives who had been engaged in the whole case and was able to see it".

The then Home Secretary similarly agreed that there were cases in which more resources would lead to a problem being solved more quickly, but argued that there was not a direct relationship between the amount of resources and the speed of results, and added: "I do not believe that producing infinite resources would lead to a state of affairs where the detention issues were not still necessary".[123]

100. There is no dispute that further increases in resources for counter-terrorism work by the police and security services would lead to quicker results in some cases. But we are satisfied that the nature of investigations is such that greater resources alone are not the answer.

BRINGING LESSER CHARGES TO HOLD TERRORISM SUSPECTS IN CUSTODY WHILE THE INVESTIGATION CONTINUES

101. It has been suggested that it should be possible to charge suspects with minor offences to enable them to be held while the police continued investigations on more serious charges, such as terrorism. British Irish Rights Watch opposed this: they argued that this would contravene the right to due process and undermine the judicial system, as well as leading to suspects committing further offences when released on bail.[124] Lord Carlile believed that the proposal was 'fundamentally dishonest', on the grounds that people should be charged, and prosecuted, for what they were thought to have done.[125]

102. The police and the Home Office raised a number of objections in their written submissions: these included the need to ensure from the outset with the Crown Prosecution Service (CPS) that the correct charges were brought; the danger that there would not be sufficient evidence for a lesser charge, or that the evidence did not emerge until after lengthy forensic and computer analysis; the diversion of resources from more serious charges; the possibility that the lesser charge might not justify a remand in custody; the danger that the accused might plead guilty and be released; and the diversion of police resources from more serious charges.[126] (Most of this passage of the Home Office written evidence, dated 12 December, was lifted verbatim from the Home Secretary's letter of 31 October to the then Liberal Democrat Home Affairs Spokesman, replying to points he had made at Second Reading.)

103. The use of lesser charges was opposed by a wide range of witnesses, who raised serious practical and moral objections. We do not think it would be an appropriate response to the challenges of counter-terrorism investigations.

GIVING THE POWER TO CONTINUE QUESTIONING SUSPECTS AFTER CHARGE

104. Normally, once a suspect has been charged, the police do not re-interview him or her. But Section 16.5 of Code C of the Police and Criminal Evidence Act 1984 contains provisions allowing the questioning of suspects once they have been charged, under certain circumstances:[127]

"A detainee may not be interviewed about an offence after they have been charged with, or informed they may be prosecuted for it, unless the interview is necessary:
to prevent or minimise harm or loss to some other person, or the public
to clear up an ambiguity in a previous answer or statement
in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted".

105. Both JUSTICE and Liberty argued that these provisions should make it unnecessary to extend pre-charge detention; Liberty also suggested that if necessary the list could be extended or amended, for example to permit re-interviewing "in cases in which the Secretary of State considers it to be in the interests of national security or if the person is arrested in connection with terrorism".[128] Tim Owen QC told us that there was no fundamental primary legislation or human rights principle which prevented an amendment to the Code in a way that Liberty and JUSTICE had suggested.[129]

106. The Home Office written submission recalled that the Government was willing to look again at the issue and would publish a consultation paper.[130] In March the then Home Secretary told us that this would be "in the next two or three months".[131] The Home Office told us in June that it was hoped that a consultation paper would be published "later this summer".[132]

107. The police were generally supportive of post-charge questioning, but noted that many suspects did not answer questions and that to be effective interviewing should be on the basis of assimilated evidence, "for maximum effect and maximum inference if the suspect fails to answer".[133] The then Home Secretary told us he believed that the percentage of cases in which post-charge questioning would lead to new criminal charges would be 'quite low'. He also argued that it did not solve the problem if it had not been possible to bring charges in the first place.[134]

108. British Irish Rights Watch opposed this suggestion, since they believed that it could lead to the harassment of detainees, adding that "the vulnerability of detainees should not be used to build further cases against them".[135]

109. Post-charge questioning alone would not be sufficient to replace extended pre-charge detention, but it could be a useful addition. We therefore urge the Home Office not to allow its consultation to slip any further.

THRESHOLD TEST FOR PROSECUTORS

110. JUSTICE argued that section 6 of the Code for Crown Prosecutors provided a 'Threshold Test', which meant that charges could be brought on 'reasonable suspicion', the standard used by the police to arrest a suspect.[136] JUSTICE's Human Rights Policy Director, Dr Eric Metcalfe, told us:[137]

"In essence, what the Threshold Test is saying is, if you have a complicated, ongoing criminal investigation and you do not have all the evidence back, it is perfectly appropriate to apply the Threshold Test, where it is in the public interest, to ensure that a person is brought up on charges".

111. The Police responded that the Threshold Test was not applicable in terrorism cases. AC Hayman gave the example of a shoplifting case where statements would be needed to support the prosecution but had not yet been taken, while DAC Clarke told us:[138]

"the CPS still has to have evidence in order for a charge to be preferred. It is totally different from the grounds for arrest. The CPS is not allowed to speculate as to what evidence may become available in the future. The Threshold Test is there for them to be able to prefer a charge where bail is not suitable, but where the standard for the final test (the realistic prospect of conviction) has not yet been reached; but they are allowed to take into account that evidence which they can reasonably anticipate will become available during the course of the investigation. So I think there is something of a red herring about this, because I do not think the Threshold Test is at all applicable in these sorts of cases. It is not that we are saying to the CPS, "This is what we've got, and this is what we think we'll get"; this is in cases where we have not got sufficient to charge and require more time, or are asking for more time to actually go and find the evidence which is not yet available and we do not know is there. It is an entirely different concept, and I do not think the Threshold Test is something which really plays into this debate at all".

112. The Threshold Test does not enable charges to be brought without the knowledge that further evidence will certainly become available. In the large majority of counter-terrorism investigations this will not be the case. Nonetheless, the Threshold Test should be used where possible.

INTERCEPT EVIDENCE

113. A large number of witnesses argued in favour of allowing the use of telephone intercept evidence in courts, saying there were no human rights difficulties.[139] Lord Carlile said that the use of intercept evidence in British courts would be 'very useful'.[140] The police written evidence said that they welcomed any development which would allow them to put more evidence before the courts.[141] AC Hayman told us:[142]

"I have personally moved my position. I originally started off by being fairly unsupportive of the notion of using the material, mainly on the basis that it was starting to disclose methodology to the other side. I think that is now well and truly worn-out because I think most people are aware of that. It does not stop them still talking but they are aware of the methodology so that is a lightweight argument. The next point which I had reservations about was the true logistics about transcribing the material, where you could go into reams of material. Again, that is a fairly moot point now, given that you can be very selective about the things you are going to transcribe if you are very precise on your investigation and focused. I think I am moving, as I know ACPO is, to a conclusion that in a selected number of cases, not just for terrorism but also for serious crime, it would be useful. I think also it does make us look a little bit foolish that everywhere else in the world is using it to good effect".

114. In his letter of 31 October to the then Liberal Democrat Home Affairs spokesman, replying to points he had made at Second Reading, the then Home Secretary said that the use of intercept evidence in court "is under review and we are looking to see whether it will be possible to adduce such material in evidence without compromising our intelligence capabilities, or leading to unacceptably burdensome levels of disclosure". But the Home Office's written evidence to the Committee, dated 12 December 2005, was less positive about the use of intercept evidence:[143]

"My Written Ministerial Statement on 26 January 2005 on the outcome of the review of the use of intercept as evidence made clear that the use of intercept as evidence is not a "silver bullet". The review showed that there may be a modest increase in convictions of some serious criminals but not terrorists. […]

In the light of the review of the use of intercept as evidence, we concluded that the risks of changing the law to allow it outweighed the benefits of doing so. The review noted in particular that new technologies would revolutionise communications in the UK over the next few years and that now was not the right time to move to an evidential regime. A current study into the impact of these technologies on interception will report to Ministers shortly".

115. The then Home Secretary agreed in principle that the use of intercept evidence would be helpful, but identified two problems:[144]

"the first problem we have not solved is how we make that available without making the defendants aware of the way in which we have collected that intelligence which could be damaging to our overall intelligence interests; and the second is how we deal with the issue of disclosure, and the fact that the defence would always say, if there was one particular intercept which was given in evidence, "Can we see the records of every other part of intercept that you have", which means you have a massive, massive data collection issue around it in a particular way. Do we think these two problems are soluble? They may be, particularly as technology is changing so rapidly in this area. That is why I committed to the House to conduct the review we are having at the moment and to report by the end of this year, in the hope that we can get agreement on this".

He accepted that foreign intercept evidence was admissible in British courts, but added that the Home Office were aware "of only very rare instances of other jurisdictions using the product of their intelligence agency (as opposed to law enforcement) interception as evidence in courts".[145]

116. Outside the Government there is universal support for the use of intercept evidence in the courts. The Home Office has not produced convincing evidence that the difficulties are insuperable: they have presumably been tackled in other jurisdictions. We therefore urge the Government to conclude its review of the issue, with the aim of reporting as soon as possible. In the absence of any new information, we assume that it will recommend the use of intercept evidence.

TAGGING AND CONTROL ORDERS

117. The police were not enthusiastic about other means of disrupting conspiracies, such as the use of tagging, surveillance or control orders. In their written evidence, ACPO and the Metropolitan Police Service argued that tagging, which allowed the police to monitor suspects, could not prevent a suspect from committing an act of terrorism or leaving the country. Similarly, surveillance was highly resource intensive, and even if carried out twenty-four hours a day, every day, would not prevent the planning or execution of a terrorist attack. The police also argued that while control orders might be effective against those suspects on the periphery of terrorism, they would not provide an alternative for those suspects that have been arrested for serious terrorist offences.[146] DAC Clarke also pointed out that the control orders were designed for a different purpose and did not, he believed, provide sufficient reassurance to the public.[147] The Home Office made the additional point that a suspect might know that it was only a matter of time before evidence implicating him in terrorism came to light so that if released into the community he might feel he had nothing to lose by carrying out a terrorist act.[148]

118. Other witnesses opposed the use of control orders and related measures on different grounds. The Director of Liberty said that control orders were 'a nonsense' and 'indefinite punishment without trial'; she also commented that:[149]

"the people who wear plastic tags in their homes, if they are so dangerous they should not be there, they should be charged and they should be detained pending trial. They are the cruelty without the benefits of security which come with incarceration".

The Campaign against Criminalising Communities argued similarly that control orders were punishments without charge and therefore inherently unjust.[150]

119. We accept the police's argument that measures such as tagging and control orders cannot protect the public from the threat of terrorism to the same extent as do arrests and detention. But we believe that such measures can be used to disrupt terrorist conspiracies. We therefore reject as entirely wrong the arguments of those who oppose any use of control orders against terrorism suspects. It is clear to us that there are circumstances in which it is not possible to charge individuals yet an arrest or other preventative measures are necessary to protect the public and ensure the successful investigation of terrorism. We believe that the use of control orders, tagging and bail should be considered at each stage of the process of judicial oversight of arrest and detention.

42 See Appendix. Back

43 Q 306 Back

44 Q 5 Back

45 Q 11 Back

46 Q 8 Back

47 Ev 84, paras 14 and 15 Back

48 Q 199 Back

49 See appendix Back

50 Q 14 Back

51 Q 27 Back

52 Q 248 Back

53 Q 249 Back