Conclusions and recommendations
Origins and presentation of the police and Government
case
1. It
will be clear from later parts of this report that we found the
case for extending the maximum detention period to 28 days was
convincing, but did not find the arguments for the 90 day period
compelling. On such a major issue, with very significant human
rights implications, we would have expected the case made by the
police to have been better developed. The police should have been
able to present an evidence-based analysis of the type we have
endeavoured to undertake. It is clear that this was not done,
despite their reliance on their 'professional judgement'. We think
it is reasonable for the Prime Minister and Home Secretary to
rely on advice from the police on such issues, but we would also
expect them to have challenged critically that advice in order
to assure themselves of the case that was being made. We heard
no evidence that this had happened: this is unsatisfactory. (Paragraph
29)
2. We recognise the
value of seeking to achieve cross-party consensus on these issues.
The immediate response to the July bombings was a strong cross-party
approach to new counter-terrorism powers. By the time the Terrorism
Bill was debated in the House, this consensual approach had broken
down. (Paragraph 30)
3. The then Home Secretary
argued to us that the break-down in the cross-party consensus
on measures to tackle terrorism essentially arose from a lack
of flexibility on the part of the Opposition parties over the
period of 90 days. We did not take evidence from the Opposition
and are therefore in no position to judge the points made by the
then Home Secretary. But in our view the primary origin of the
difficulties experienced by the Government lies in the lack of
care with which the case for a maximum 90 day detention period
was promoted. (Paragraph 31)
4. We recognise that
the public is less ready to take on trust assertions by those
who have seen evidence not publicly available. However, in an
area where much material cannot be published (mainly because it
is sub judice), we considered it right to take some evidence
in private. It is also obvious that those with responsibility
for taking decisions on these issues will have access to material
that is not and cannot be in the public domain: we therefore reject
JUSTICE's argument that such material should not be taken into
account. However, the nature of the issues under consideration
mean that it is all the more important that the Government's presentation
of its case be as open as possible. (Paragraph 35)
Public confidence and community relations
5. It
is important to take into account the effect on the Muslim community
of a longer period of detention. Muslims were amongst the casualties
in the atrocities of 7 July, and the authorities cannot combat
terrorism without the confidence and trust of Muslims. Extended
pre-charge detention carries the danger, which should not be underestimated,
of antagonising many who currently recognise the need for co-operating
with the police, and hence the need to be very cautious before
extending the period of detention beyond 28 days. (Paragraph
38)
Has the nature of the threat changed?
6. 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. (Paragraph 44)
Consequences for police work
7. 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. (Paragraph 51)
8. 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. (Paragraph 54)
9. 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.
(Paragraph 63)
10. 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. (Paragraph 67)
11. 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.
(Paragraph 69)
12. 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. (Paragraph 72)
13. 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.
(Paragraph 73)
14. We were not convinced
by the evidence that provision of interpreters is a significant
difficulty. (Paragraph 76)
15. 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. (Paragraph
78)
16. 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. (Paragraph 81)
17. 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. (Paragraph 83)
18. 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. (Paragraph
88)
19. 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. (Paragraph 89)
20. 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. (Paragraph 90)
Disruption and prevention
21. 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. (Paragraph 93)
22. 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. (Paragraph 94)
23. 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. (Paragraph 95)
Alternatives to longer detention
24. 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. (Paragraph 100)
25. 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.
(Paragraph 103)
26. 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. (Paragraph
109)
27. 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. (Paragraph 112)
28. 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. (Paragraph
116)
29. 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. (Paragraph
119)
Existing provisions
30. We
do not doubt that district judges perform their duties impartially
and to a high standard and that the police have to take the utmost
care in preparing applications for extensions to periods of pre-charge
detention. However we share the wide-spread unease at the prospect
of the existing system being used to provide judicial oversight
of even longer pre-charge detention. (Paragraph 124)
New circumstances
31. Lord
Carlile proposes a strengthened system of judicial oversight once
a suspect has been arrested. We support the thrust of his proposals,
but believe they should be extended. Firstly, we believe that
supervision should provide for a continual reassessment of whether
alternative methods, such as tagging and control orders, would
be appropriate. Secondly, as we have argued in the section on
disruption and prevention, we believe that there should be appropriate
judicial oversight when arrests are made under the Terrorism Act.
This would enable proper independent consideration to be given
where an arrest is to be made for its disruptive and preventative
value rather than primarily for its investigative purpose. It
would also enable consideration from the outside of alternatives
to arrest and detention. We recognise that this would bring some
procedures more common in other jurisdictions into our criminal
justice system. (Paragraph 129)
32. We acknowledge
that we cannot simply import elements from abroad that would not
work in the common law system. But there should be no bar to adapting
such approaches to our needs. The principle of independent judicial
oversight from the time that arrest is first considered should
be adopted. This would also ensure that the police alone do not
have to bear responsibility for arrests intended to protect the
public. For judicial oversight to be effective, there must be
adequate support for the judge, including through the provision
of appropriate technical expertise. (Paragraph 131)
33. The recent police
raid in Forest Gate and subsequent release without charge of those
arrested did not involve extended pre-charge detention, but it
clearly would have been of benefit to police and public alike
if there had been independent oversight of the decision to intervene.
(Paragraph 132)
Detention periods
34. Current
and recent investigations have gone sufficiently close to 14 days
to show that an extension of the maximum period of pre-charge
detention, as agreed by Parliament, is justified. We repeat, however,
that effective judicial oversight of detention is essential.
(Paragraph 139)
35. None of the evidence
we have reviewed of current and recent investigations would have
justified a maximum detention period longer than 28 days. But
the growing number of cases and the increase in suspects monitored
by the police and security services make it entirely possible,
and perhaps increasingly likely, that there will be cases that
do provide that justification. We believe, therefore, that the
28 day limit may well prove inadequate in the future. (Paragraph
143)
36. We have seen no
evidence that a maximum of 90 days pre-charge detention is essential,
rather than useful. The police did not press strongly for this
maximum, while technical witnesses, generally in favour of as
long a time as possible, did not seek to argue that 90 days was
in itself a significant period. (Paragraph 145)
37. The process of
the Terrorism Bill through Parliament was divisive and did not
increase public trust in the police or the Government. If 28 days
proves inadequate in due course, new primary legislation to extend
the maximum pre-charge detention period is likely also to be very
divisive. But it would be unacceptable for the Government to use
secondary legislation. We suggest that a committee independent
of Government be created to keep the maximum detention period
under annual review and to recommend the introduction of new legislation
as necessary. The committee might follow the model of the Newton
Committee of Privy Counsellors, appointed in April 2002 to review
the operation of the Anti-Terrorism, Crime and Security Act 2001.
(Paragraph 148)
Future legislation
38. Many
of the difficulties the Government experienced in the passage
of the Terrorism Bill arose from the speed with which it was drafted
and presented to Parliament: this inquiry did the job of examining
the police arguments for extended detention which the Home Office
should have done before introducing the Terrorism Bill. Any new
legislation on terrorism should not in our view propose a longer
period of detention than 28 days unless there is such compelling
evidence as we have already referred to earlier. The new legislation
on terrorism, including the promised consolidation of existing
measures, should be extensively examined in draft, either by this
Committee or by a joint committee of both Houses. The Government
should ensure that it meets the commitment to build this into
the timetable. (Paragraph 151)
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