Memorandum submitted by Equality and Human Rights (CTB 01)
1. Summary Position of the Equality and Human Rights Commission
2. After detailed consideration of the provisions of the Bill as presently constituted, the Equality and Human Rights Commission considers that the provisions in the Bill - which provide for a temporary extension to the maximum amount of time that terrorist suspects can be held before being charged to 42 days - could be:
a. contrary to human rights law and may
b. breach the Race Relations Act.
If adopted, we may seek to use our legal powers to challenge the lawfulness of the provisions and to establish clear legal principles on the use of pre-trial detention.
3. Powers of the Commission
4. The Equality and Human Rights Commission is a non-departmental public body (NDPB) established under the Equality Act 2006. As a statutory body, the Commission has a duty to enforce equality legislation on age, disability, gender, race, religion or belief, sexual orientation and transgender status, and a mandate to promote awareness, understanding and protection of Human Rights, and to encourage public authorities to comply with the Human Rights Act.
5. Under powers granted by Parliament, the Commission is able to take judicial review on legislation which it considers may be in breach of the European Convention on Human Rights (ECHR) and other equality legislation, particularly any potential breaches of the Race Relations Act (RRA). It is under these provisions that any legal action by the Commission would be taken.
6. Pre-charge Provisions
7. In accordance with our mandate, the Commission has considered the proposals on pre-charge detention and has a series of concerns in these areas:
iii. discriminatory impact
iv. impact on good race relations
8. The Commission is presently hosting a series of consultation events to look at the impact of counter-terrorism legislation and the Government's policies and proposals on community cohesion including the provisions in this particular Bill. The first was held in London on 19 March, the second will be held in Leeds on 10 April and the final event will take place in Scotland on 24 April. Information gathered at these events will help us decide whether or not we need to take further action to ensure that counter-terrorism measures do not disproportionately damage community relations and that human rights are being upheld.
9. The Commission recognise the duty on governments to protect public safety and accepts that circumstances might arise making an increase of the detention period beyond 28 days helpful to the police in obtaining evidence. This, however, should not be at the disproportionate expense of fundamental human rights.
10. The Commission believes that, given the potential impact on liberty, the likelihood of disproportionate impact on certain groups and the risk of operational error, a positive and compelling case must be made for the limited enabling provisions set out in the Counter-Terrorism Bill. We consider that despite being restricted to particular and specific contingencies, the provisions as set out by the Home Office are as yet unlikely to meet the threshold tests of public interest, justification or fairness.
11. We have written to the Home Office making clear our concerns.
12. The Proposal for Pre-Charge Detention
13. The Bill provides for a temporary extension to the maximum amount of time that terrorist suspects can be held before being charged to 42 days. However, the power to provide for such an extension is only available to the Secretary of State (SoS) after having received a report from the Director of Public Prosecutions (DPP) and Chief Constable of Police (CCP) and only if there are compelling operational reasons to do so. The SoS must also make a statement to Parliament that she is satisfied there is an urgent need for the reserve power and that the extension is compatible with the ECHR and the Human Rights Act (HRA). The higher limit will only remain in force for 60 days and then only if Parliament has approved the continuance of the limit by affirmative resolution within 30 days.
14. The original maximum period that such a person could be detained under the terrorism legislation prior to being charged was seven days. This was extended to fourteen days by section 306 of the Criminal Justice Act 2003 and to 28 days by section 23 of the Terrorism Act 2006. This is subject to a "sunset provision" and has to be debated and agreed each year by Parliament.
15. Matters of Principle
16. The Commission believes that long periods of pre-charge detention raise serious matters of principle and practice. As a matter of principle, extended periods of pre-charge detention are contrary to human rights and British constitutional history and values. Starting with the Magna Carta to the present laws, the individual has been granted and enjoys the following fundamental rights:
ii. Protection against unlawful imprisonment
iii. Presumption of innocence
iv. The right to be told promptly of the reasons for arrest and charge
v. Non-discrimination and equality
17. It is important for any discussion of this subject to proceed from these basic constitutional and legal principles. Any change in law and policy must be assessed against these fundamental principles and should satisfy requirements for public interest and fairness. These requirements are explored in more detail below.
18. Practical Matters
19. The reserved power measure in this Bill is problematic because it would involve legislating on a contingency basis - not on the basis of something needed now but something that might be needed in the future. This power also creates other difficulties because it involves specific changes to fundamental rights and key safeguards in the criminal justice system almost on an individual case-by-case basis. The separation of powers between Parliament and the courts is a long established constitutional principle guaranteeing that Parliament plays no role in the investigation or prosecution of crime.
20. Extended detention periods are also problematic in practice because they can be a punishment in themselves and may lead to the suspect losing his/her job or home and facing periods of separation from their partners and families.
21. In addition, suspects (who are being questioned and investigated) are in a more vulnerable position within the criminal justice system. There is evidence that repeated and lengthy periods of interrogation can have serious mental health consequences and can lead to false confessions and miscarriages of justice. In the past, the criminal justice system has seemed most prone to mistakes in cases where there was justified public outrage (such as the Birmingham pub bombings or the killing of PC Blakelock). If these new detention powers are invoked at such a time of public crisis, as would seem likely, similar problems could arise. Later discoveries of miscarriages of justice more generally undermine public confidence in the criminal justice system.
22. Justification/Public Interest Test
23. It is the Commission's position that a positive and compelling case must be made for the limited enabling provisions set out in this Bill.
24. The Government's stated reasons for this reserved power are set out in its consultation paper of July 2007 and repeated in the Explanatory Notes to the present Bill. The basis for the proposal seems to be that, in future, a longer period of detention might be necessary, perhaps as a result of a series of police operations or following a number of bomb attacks. In such circumstances, there might be overlapping investigations leading to the discovery of more evidence as the inquiry progresses. This might also involve the investigation of hard disks from computers or investigations abroad.
25. It is the Commission's view that the Government has so far failed to provide sufficient evidence to support the need for further extension. Since the period of detention was extended to 28 days six people have been held for 27 to 28 days and three of these were released without charge.
26. The Home Affairs Select Committee in its report of July 2006 stated that none of the evidence it reviewed would justify a maximum detention period longer than 28 days although the Committee did say it is possible that there could be cases in the future that do provide that justification. The Joint Committee on Human Rights (JCHR) reported on 7 February 2008 that the Government had not made a compelling, evidence-based case for extending pre-charge detention beyond the current limit of 28 days. The Commission is sympathetic to that view.
27. It does not appear that there is support from the chief law officers. The DPP has said that he is satisfied with the current 28-day limit, which "has suited us nicely" and argued that the response to terrorism should be "proportionate and grounded".
28. Also, the former Attorney-General, Lord Goldsmith, has said he has seen no evidence to justify the extension and would have resigned if Parliament had approved the Government's previous attempt to introduce a 90-day limit.
29. The necessity for further extensions depends also on what alternatives are available to meet the needs of the police. Other changes to the law which have been suggested and which might assist in the investigation and expeditious prosecution of those suspected of terrorist offences include, for example:
i. the use of intercept evidence which allows evidence from recorded telephone conversations to be used, and
ii. post-charge questioning which permits the questioning of a suspect after they have been charged. This is included in the Bill.
30. However, the Commission believes the simplest solution is for the prosecution to progress as swiftly as it can to charging a suspect. This ought to present few difficulties given that the charging test for all criminal offences is also now slightly lower than it was. The test for charging requires reasonable suspicion and sufficient evidence for a conviction: that evidence does not need to be in existence at the time of the charge, provided it will be available in due course and before the trial takes place.
31. As the JCHR concluded, these alternatives to extended detention do enough in combination to protect the public and are more proportionate in effect.
32. Fairness/Human Rights Compatibility
33. The Commission believes that extended periods of detention before charge raises significant concerns about the way those who are not charged (suspects) are treated compared with those who have been charged (accused). The absence of case law on pre-charge detention does not necessarily mean that the proposal to extend the period to 42 days will be judged to be compatible with the ECHR.
34. The Explanatory Notes also argue that extended pre-charge detention under these provisions is not arbitrary because of the twin safeguards of parliamentary approval and judicial oversight. Moreover, it is said to be proportionate to the attainment of its purpose - that is the need to ensure public safety.
35. The Commission considers that the safeguards in the Bill are at present inadequate, that the extensions will raise real issues in relation to the HRA and the measures as proposed are disproportionate.
36. Firstly, the Bill creates a role for Parliament to approve or not approve what is an executive order of the SoS in individual criminal proceedings or investigations. As we suggest above, the detention of a suspect is primarily the role of the courts. If the proposal were to be adopted, Parliament would, in order for this particular safeguard to be meaningful, need to have information on the individual suspects or the investigation. The Commission believes this raises serious constitutional issues. If the information is not forthcoming to Parliament the role that Parliament can play as a safeguard is substantially reduced, perhaps to zero, rendering the safeguard meaningless.
37. Secondly, while judicial oversight is a necessary safeguard, we believe the reliance on current procedures is insufficient to discharge the requirement for fairness or to protect individuals from arbitrary arrest or miscarriages of justice.
38. Our reasons are as follows:
i. Article 5 of the ECHR protects liberty and security of the person, prohibits arbitrary detention and creates a number of procedural safeguards which must be met when a suspect is detained before charge (and an accused before trial). These procedural safeguards are also (to some extent) reflected in Article 6 of the ECHR (right to a fair trial), as well as in relevant case law.
ii. Everyone arrested has the right to be informed promptly in a language he or she understands of the reasons for the arrest and of any charge: Article 5(2);
iii. A suspect has the right to be brought "promptly" before a judicial officer who should have the power to decide whether the person should continue to be detained: Article 5(3) (in practice "promptly" means within four days);
iv. A suspect and/or accused also has the right to trial within a "reasonable time" or to release pending trial (the right to bail): Article 5(3);
v. An accused is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law: Article 6(1);
We will deal with these issues under the following headings:
39. Reasons for arrest
40. Until charged, the suspect does not formally know the specific charges against him or her (although he or she should have been informed of the purpose of arrest, detention and questioning) and does not know if there will be a trial.
41. In its ninth report, the JCHR stated that charging suspects only after more than 28 days in detention is likely to be in breach of article 5(2) ECHR:
42. 'First, a person arrested on suspicion of terrorism has a right under article 5(2) ECHR to be informed ''promptly'' not only of the reasons for his arrest but also ''of any charge'' against him/her. Although it is correct to say that there is no decision of the European Court of Human Rights establishing how promptly a suspect must be informed of the charge against him, we consider that on any view a period of more than 28 days cannot be considered ''prompt''.
43. In relation to the sufficiency of the reasons, the European Court of Human Rights (ECtHR) has held that it is not enough to tell an arrested person that he or she is being held pursuant to the provisions of emergency legislation or that the reason for the arrest was an honest and genuine suspicion that person is a terrorist. Yet, according to the evidence heard by the JCHR: 'Terrorism suspects are often provided with very little information about the reasons for their arrest other than that they are a suspected terrorist and by the very limited opportunity to challenge the reasons for detention at the hearings to extend pre-charge detention.' This evidence provided further support for the JCHR to conclude that charging suspects after 28 days in detention was likely to be in breach of Article 5, an assessment the Commission concurs with.
44. Judicial control
45. If a suspect is promptly and regularly brought before a judge to review his or her pre-charge detention and the suspect is aware of all his or her "due process" rights, then the legitimacy of the detention is more likely to be consistent with the ECHR. However, longer periods of detention may affect whether a suspect is brought to trial within a reasonable time, as required by the Convention.
46. Extension Hearings
47. The lawfulness of extended pre-charge detention cannot be separated from the fairness of the extension hearings themselves. The Commission is concerned that the procedure for extension hearings has never met the standards imposed by Article 5, a concern which becomes more serious the longer the period of detention. The current provisions (which will not be improved by this Bill) allow the judge to deny the suspect, and his or her lawyer, access to parts of the police information and evidence and to exclude the suspect from part of the hearing. We consider that the lengthier the pre-charge detention period the more stringent the test for a fair and public hearing. The current measures could be said to violate Article 5 rights of the suspect. The possible violation becomes more likely the longer the detention periods become.
48. Principle of non-discrimination
49. The arguments for increasing the period of detention all relate to the need to deal with a particular kind of terrorist activity, that is terrorists connected with a particular ideological view and who are likely to support a particular religious position. The security assessment of the problem necessarily targets a very small group of a particular religious (and racial) minority.
50. This is problematic not just because a particular law is more likely to be used against one community but because a special law is being created specifically and in practice to deal with that group. We consider that this raises very difficult issues under Article 14 of the ECHR (the anti-discrimination provision). At the very least, the statistical data of a disproportionate impact on Muslims will be sufficient to constitute a prima facie case of discrimination at which point it will be for the Government to show that the use of extended periods of pre-charge detention is justified. It is not clear whether the courts (either in the UK or in Strasbourg) will accept this justification when the evidence for the new provision has not been forthcoming (as explained above in paragraphs 22-28).
51. Good Relations
52. In relation to the principle of non-discrimination, the Commission is concerned as to the potentially adverse impact the proposals will have on Muslim and other ethnic minority communities and on community relations more generally. The risk of damage to community relations is high given that the proposal and the rationale for it is not widely understood and that even sophisticated parliamentary and judicial safeguards are unlikely to reassure the public. In such circumstances, Muslims and ethnic minority communities are more likely to be regarded with suspicion and distrust.
53. In this regard, the Commission was disappointed by the Race Equality Impact Assessment (REIA) undertaken by the Government in relation to the Bill. What the REIA lacks is evidence of the actual impact of the current law, if passed, would have on individual suspects, on their families and communities and on the wider community. We have raised our concerns with the Home Office and have asked them to conduct a new REIA. We are awaiting their response.
54. The Home Office did consult Muslim groups across Britain and the information from these consultations demonstrated a belief among the Muslim community that they are already discriminated against by current legislation and this Bill will lead to a deterioration in that situation. The REIA also states that 'Muslim groups said that pre-charge detention may risk information being forthcoming from members of the community in future'. The Commission believes, if the Bill becomes law, this will present difficulties for policing "with consent" and for the prevention and detection of terrorist offences where co-operation and public confidence in the police service is an important consideration.
55. The REIA contains no information on how the Government will secure and maintain good relations, particularly vital during a time of crisis when the period of pre-charge detention is most likely to be lengthened.
56. Finally, the REIA does not address the fundamental question of whether the aim of the extended detention provision can justify the possible adverse effects on community relations, or whether the aims could be achieved by alternative means. The REIA assumes that the policy will be implemented and the impact needs to be managed rather than the REIA being used to inform the basis of the substantive policy.
57. In relation to monitoring the impact of the measures once implemented, it is suggested that this will be done by the Independent Reviewer, a post currently held by Lord Carlisle. We do not consider that these reviews, which consider the effectiveness of counter-terrorism legislation, will meet the requirements of the RRA which places a duty on public authorities to monitor their policies for impact on race equality and good relations. It is doubtful that the Independent Reviewer sees his role as that of reviewing the impact of the bill on equality and good relations. We recommend that fresh consideration be given to the arrangements for monitoring.
 Home Secretary, House of Commons, 15 November 2007
 Session 2005 - 2006/PN No. 44
 Second Report of Session 2007 - 2008, Counter-Terrorism and Human Rights: 42 Days & Counter Terrorism Policy and Human Rights: Counter-Terrorism Bill, Ninth Report of Session 2007 - 2008 published 7 February 2008
 Home Affairs Select Committee Session: The Government's Counter-Terrorism Proposals. 21st November 2007.
 Home Affairs Select Committee Session: The Government's Counter-Terrorism Proposals. 21st November 2007.
 The Privy Council Review of Intercept as Evidence. Commissioned by the Prime Minister and published on 4th February 2008. The Report's recommendations agreed with the principle that intercept evidence should be introduced as evidence. The Government is currently seeking the views of the security services on these recommendations.
 Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill Ninth Report of Session 2007 - 2008, published 7th February 2008
 Ireland v UK (1998) 2 EHRR 25
 Fox v UK (1990) 13 EHRR 157
 Race Equality Impact Assessments are required under the Race Relations Act as part of the legal duty to promote equality.