Liberty's Briefing to the Counter-Terrorism Bill Committee

 

 

 

 

 

 

May 2008


 

About Liberty

 

Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

 

 

Liberty Policy

 

Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent funded research.

 

Liberty's policy papers are available at

http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml

 

Parliamentarians may contact:

 

Gareth Crossman

Director of Policy

Direct Line: 020 7378 3654

Email: GarethC@liberty-human-rights.org.uk

 

 

Jago Russell

Policy Officer

Direct Line 020 7378 3659

Email: JagoR@liberty-human-rights.org.uk

 


Overview

 

1. The Counter-Terrorism Bill is the fifth piece of primary legislation proposed since 2000 dedicated to terrorism. The Terrorism Act 2000 (TA 2000), the Anti Terrorism Crime and Security Act 2001 (ATCSA), the Prevention of Terrorism Act 2005 (PTA) and the Terrorism Act 2006 (TA 2006) ensure that the UK does not lack counter-terrorism legislation. Liberty has long maintained that the most effective legislation is that which identifies and addresses a specific gap in the law. Unfortunately, we believe that much terrorism legislation has been excessive and has proved counterproductive. The use of stop and search without suspicion under s.44 TA 2000, the introduction of control orders in the PTA and the offence of encouragement of terrorism created in the TA 2006 are, in our view, examples of laws that have proved divisive and which undermine community cohesion. The counterproductive impact of terrorism laws has been acknowledged in the Equality Impact Assessment accompanying this Bill. It speaks unambiguously of the perception among Muslim groups that they were being unreasonably targeted by anti terrorism laws; saying for example:

 

"There is a perception that the majority of people arrested under s.41 of the Terrorism Act 2000 (TACT) are Muslim."

"There are strong concerns expressed by representatives of the Muslim community that they are being targeted as a religious group rather than individuals from that group."

"The police noted that there was concern in the Muslim community that they are being targeted as a group rather than individual suspects."[1]

 

2. The period of time that a person suspected of terrorist activity can be detained without charge has been at the heart of debate over counter-terrorism policy. Successive Acts of Parliament have increased this period from 7 days to the current limit of 28 days. Like a growing number of people inside and outside Parliament, Liberty does not believe there is any case for allowing people to be held without charge for longer than 28 days. Any further increase would not only be unjustified; it would also be wrong in principle and could ultimately prove counterproductive. There are a range of alternative policies that should be tried out before Parliament is forced to vote again on this divisive issue.

 

3. A further extension of pre-charge detention sits uncomfortably with the Prime Minister and Home Secretary's generally calm and reasoned approach to the very real terror threat. One might therefore expect urgent and compelling reasons for revisiting the issue of pre-charge detention limits, especially given that it was considered by Parliament only 2 years ago and how controversial it was at the time. Sadly, no such justifications exist. As the Home Affairs Select Committee concluded "[n]either the police nor the Government have made a convincing case for the need to extend the 28 day limit on pre-charge detention." In fact, the Home Secretary and Sir Ian Blair themselves accept that there has been no case to date where longer than 28 days' detention has been needed. The Government's only argument is that the powers might be needed in the future.

 

4. It would fly in the face of our basic democratic principles of justice, fairness and liberty to hold people for over a month on the basis of police suspicion rather than hard evidence and without formally accusing them of any criminal offence. Innocent people would almost certainly be detained for long periods of time and then released without charge. Released after six weeks in police custody, the suspect may well have lost their job, home and the trust of their community, friends and perhaps even family. They will be powerless to rebut the inevitable suspicion that they are involved in terrorism. This is why the British legal system has for centuries required suspects to be charged or released within a matter of days or even hours. Indeed, in non-terror cases in the UK the limit remains 4 days. The current 28 limit in terrorism cases is also much longer than in other comparable democracies: for example, in the US the limit is 2 days, in Ireland the limit is 7 days and in Canada the limit is 1 day[2].

 

5. The Government seems to suggest that this injustice might be a price worth paying for greater security. In the long-term, however, unjust measures like these do not make us safer, even if they do have short-term operational benefits. The Home Office's own equality impact assessment states, 'Muslim groups said that pre charge detention may risk information being forthcoming from members of the community in the future.' This proposal would further alienate those communities we most need to engage if we are to combat terrorism. In some extreme cases, as with internment in Northern Ireland, it might even operate as a recruiting sergeant to terrorism.

 

6. Liberty believes there are better ways of responding to the increasing complexity and international nature of terrorist investigations than continually ratcheting-up pre-charge detention limits. All of these should be tried before considering the grave and potentially counterproductive step of going beyond 28 days. Alternatives suggested by Liberty include: (A) allowing intercept evidence to be used in criminal trials so that the police can use existing surveillance material to support a charge; and (B) with judicial oversight, allowing the police to re-question suspects that have already been charged with an offence if new evidence comes to light suggesting that a more serious charge may be appropriate.

 

7. The Government's attempts to camouflage these proposals as something other than a simple extension from 28 to 42 days do not withstand scrutiny. While the powers are described as "exceptional" "reserve powers" they would, in fact, be triggered to deal with individual cases rather than real emergencies. Furthermore, despite repeated promises of parliamentary oversight, in most cases Parliament would have no vote at all. In any event, however diligent our parliamentarians, a meaningful debate and vote would be impossible. The powers would be triggered to keep a particular individual in custody. As the Bill accepts, no information on the individual in question could be provided to Parliament without prejudicing future prosecutions. There would therefore be nothing meaningful for Parliament to debate or vote on.

 

8. The Bill contains 92 clauses and 6 Schedules. While we have a fundamental objection to the detention extension, there are many parts of the Bill that we either agree are appropriate or where we suggest amendment.

 

Part 1 - Powers to gather and share information

 

9. Clauses 1 to 9 create powers to remove documents for examination from persons or premises where there is suspicion of a variety of terrorism offences. The power can be exercised in a number of situations including: the execution of search warrants; searches following arrest; and searches prior to arrest[3]. Most of the searches covered by Clause 1 already allow for documents to be seized. For example, s.43 (4) TA 2000 allows a police officer to, 'seize and retain anything which he discovers in the course of a search of a person... which he reasonably suspects may constitute evidence that the person is a terrorist'. Meanwhile Paragraph 1(1)(c) of Schedule 5 TA 2000 allows for an officer undertaking a premises search under warrant 'to seize and retain any relevant material which is found on a search'. Clearly, this extension is intended to address perceived shortcomings in the current system. These presumably arise from difficulties in ascertaining whether certain types of material might constitute evidence. The Bill will allow material to be taken to another place (Clause 1(2)) and contains a requirement that information stored in electronic form must be produced in a transportable and legible format (Clause 1(3)). Removed material can be retained for up to 4 days (Clause 5). There are a number of obligations governing the removal of documents which: require proper records to be made of material taken: govern access to and return of material; and govern the protection of legal privilege. Obstruction of the exercise of the power is a criminal offence (Clause 2).

 

10. Liberty can envisage situations where the current provisions governing documents might prove inadequate. For example, a large bundle of paper documents or those on a computer drive might take a long period of time to work through. It may well be practicable for this to occur away from the scene of investigation. We do not therefore take issue with the principle of the new power. We would, however, make a number of observations.

 

11. Principally we see this power being exercised against those who are being searched but who have not been arrested. This is because it would allow an opportunity to remove material from person or premises in order to ascertain whether the contents reveal grounds for arrest. We are uncertain then, why these extended powers are necessary post-arrest. Anyone arrested under s.43 (1) TA 2000 can have property seized. If there was a need to search premises after a person had been arrested we presume that there would be an application to a Justice for the Peace for a premises search under Paragraph 1 Schedule 5 TA 2000 in order to obtain evidence. The current period of detention permitted for terrorism offences is 28 days (which the current Bill seeks to increase to 42 days). This would allow plenty of time to sift potential evidence. We are therefore unsure why this power needs to be applied post-arrest and hope this question is addressed during debates.

 

12. We note that the creation of a criminal offence of obstructing a constable exercising this power, combined with the power to require documents to be produced in a legible form, could make these proposals similar in effect to Part III of the Regulation of Investigatory Powers Act 2000 (RIPA). Part III RIPA governs the investigation and disclosure of encrypted data and creates an offence of failing to comply with a notice requiring disclosure of encrypted data (s.53 RIPA). Both create a coercive regime governing disclosure of material. The main difference is that RIPA covers only electronic data whereas the new Bill covers all material. When arguments were put forward in 2005 justifying extension of the (then) terrorism detention limit of 14 days, one often cited reason was the difficulty in processing large quantities of evidence. At the time Liberty pointed out that Part III RIPA had not been brought into force. Notwithstanding our concerns about Part III, we argued that, if the encryption of evidence really makes it impossible to charge people within 14 days, bringing into force the existing powers in Part III would be more proportionate than extending the period of pre-charge detention. Part III has since come into force. We would now point out that these extra powers of evidence gathering should alleviate any lingering concerns about evidence gathering difficulties justifying detention extension.

 

13. Clause 10 creates a power allowing a constable to take fingerprints and non-intimate samples from those subject to control orders. These can be taken from the time the provisions come into force regardless of when the control order was made (Clause 13). The definition of 'non-intimate samples' includes mouth swabs and other means of obtaining DNA. Ever since the introduction of the Prevention of Terrorism Bill in early 2005, Liberty has been absolutely opposed to the control order regime. We see no fundamental distinction between control orders and the detention of foreign nationals under Part 4 of ATCSA. Part 4 was determined incompatible with human rights principles by an 8 -1 majority of the House of Lords' Appellate Committee in December 2004. We object to the process, regardless of whether the consequences of an order are house arrest (under a control order) or detention in a high security prison (under Part 4 ATCSA). The use of Special Advocates in the control order system to determine allegations of involvement in terrorism is a pale imitation of due process. The ability of a person to know, and thus be able to rebut, allegations that have been made against them goes to the heart of common law concepts of fair trial and the presumption of innocence. Liberty has argued at length that more can and should be done to utilise the breadth of criminal law available. We have made suggestions as to how problems in bringing prosecutions might be overcome. In December 2003 the Newton Committee of Privy Counsellors criticised the Government for failing to make sufficient attempt to bring criminal prosecutions[4]. Liberty maintains this criticism still holds true.

 

14. The need to legislate specifically to allow fingerprints and DNA to be taken from those on control orders underlines fundamental problems of process. One consequence of creating a quasi-judicial system outside criminal law is that the normal procedural and ancillary policing powers associated with the criminal process do not apply. Anyone arrested for recordable offences (which include offences as trivial as begging) can currently have their DNA taken and permanently retained even if they are not convicted or even charged. The result is a policy anomaly where 'allegations' of involvement with terrorism (criminality of the highest order) through the control order system mean the police are unable to use powers that are available as a matter of course when investigating suspicion of much lower level criminality. Allowing police to take the DNA of those who have not even been arrested for any offence would push the boundaries of state intervention into new territory. Liberty believes that the blurring of criminal process through the existence of control orders has already damaged the rule of law. We would urge that nothing further be done in this direction and that the focus be put back on criminal due process.

 

15. Clauses 14-17 allow for fingerprints and DNA samples held by the police and those retained by the Intelligence and Security Services to be cross-referenced. Clause 18 creates a statutory basis for fingerprints and DNA samples that are being held outside of existing regulatory frameworks. We do not take issue in principle with either of these developments. There is no reason why databases such as the National DNA Database (NDNAD) should not have an interface with counterpart databases held by the security services. Similarly we would prefer to see any sample held being subject to a formal statutory regulation such as that provided by Clause 18.

 

16. Our concerns lie not with the principle but with the practice. There has been a massive increase in the scope of data retention and dissemination in recent years. Coupled with this are moves towards the use of data mining and data matching techniques used to imply potential illegality without the use of human intelligence sources. We believe these moves are undermining data protection principles and are increasingly disproportionate. We agree that a DNA database of those convicted of certain crimes, including terrorism related offences, can be a useful crime detection tool. However, permanent DNA retention is now permitted on arrest even if no charge follows. This, coupled with the difficulty in having samples removed, means that many innocent people are on the database.

 

17. Clauses 19-21 allow for any person to speak to the security services in connection with any of its functions without breach of a contractual duty or breach of common law duties of confidence. We imagine these provisions have arisen in response to concerns in specific cases about the willingness of individuals to pass on information. We do not have any particular comment to make about these provisions with regard to, for example, breach of contractual obligations. We agree that the passing on of potentially valuable intelligence should not be jeopardised as a consequence of concern over potential civil action. We are more concerned by breaches of obligations of confidence. Any trust that exists between advisor and client is based on confidence. The new provisions might be relevant to the application of s.19 TA 2000 which created an offence of failing to disclose a suspicion about terrorism arising from a person's employment. This might not impact upon the relationship between terrorism suspect and lawyer as s.19 has a specific exemption that it does not apply to information received from a professional legal advisor (s.19 (5)). However, there are other relationships of confidence that could be affected including medical professionals and religious advisors.

 

Part 2 - Detention

 

18. Clause 22 and Schedule 1 cover the critical issue of the period of permissible pre-charge detention in terrorism cases.

 

Inevitable Injustice of Lengthy Pre-Charge Detention

 

19. "Charge" is an incredibly important point, marking the beginning of true criminal proceedings. It is when the prosecution formally advises the suspect that s/he is to be prosecuted and gives him/her the particulars of the criminal allegations s/he faces. Before charge a person is not formally accused of any criminal offence. A suspect is charged when the prosecuting authorities have gathered enough evidence to stand a reasonable prospect of convicting the suspect.[5] Before charge the police do not have this hard evidence. In fact, the arrest and detention of a suspect before charge is justified on the basis of police suspicion as opposed to evidence.

 

20. Suspicion is such a low "evidential" hurdle that it is not really capable of being tested by the courts or challenged by the suspect or their lawyers. Any proper contest between defence and prosecution or any true scrutiny by a court is not really possible in the absence of hard evidence. This could not amount to any more than second-guessing a police officer's hunch. In fact, the law recognizes that the most that judicial oversight can reasonably achieve before charge is to ensure (1) that there is indeed a police investigation ongoing and (2) that the police are carrying out this investigation diligently and expeditiously.[6] Government claims that the risk of injustice will be removed by judicial involvement in authorising pre-charge detention should, therefore, be viewed with scepticism.

 

21. Pre-charge detention is easily confused with detention after charge, i.e. detention in remand while a suspect awaits trial. There is, however, a major difference between pre- and post-charge detention. While the total period of detention from arrest to trial should be as short as possible we accept that suspects are often held for quite lengthy periods of time after charge while awaiting trial, especially in serious cases like those involving terrorism. Unlike before charge this has traditionally been accepted after charge because: the detention is based on hard evidence rather than police suspicion; the suspect knows the reason for their detention; they have been formally accused of committing an offence and can decide whether to plead guilty or to contest the charges; and, if they do plead not-guilty, their lawyers can start to develop the defence.

 

22. The police will inevitably arrest people who they then release without charge because they can't find enough evidence to sustain a prosecution. This is demonstrated by the statistics on the suspects held for 27/28 days in the short period since the current limit came into force. Half were released without charge. None has been subsequently re-arrested, placed on a control order or subjected to intensive surveillance. In effect, it seems that the police suspicion turned out to be unfounded. It is inevitable that this will sometimes happen in a democracy and it is not a cause for criticism. The consequences of these mistaken judgements do, however, vary enormously depending on how long a person has been detained: if detention is for a matter or hours or days the consequences may not be too grave but if a person is detained for over a month the consequences are likely to be unacceptably severe.

 

23. A suspect released without charge after six weeks may well have lost their job, home and the trust of their community, friends and perhaps even family. Their arrest and detention would no doubt have been accompanied by media speculation and gossip but once released the suspect would be unable to clear away the air of suspicion that they are involved in terrorism. Their only option may be to sell-up, move home, look for a new job and new schools for their children. In October 2007 Liberty spoke to one lady who had been through something approximating this kind of ordeal. She was released without charge after 12 days' detention under the Terrorism Act. She said of her experience:

"The 12 days when I was held without charge felt like 12 months - I was claustrophobic, fearful, and I thought I would never get out. For months after being released without charge I was afraid to leave my home alone. This experience has changed my life forever."[7]

 

24. Due to the injustices that will inevitably arise from lengthy pre-charge detention, UK law has historically required suspects to be charged within a matter of hours or days, rather than weeks or months. The pre-charge detention limit in non-terrorism cases, for example, is still 4 days and in terrorism cases the limit was just 7 days until 2003. The proposed 42 day limit is way out of line with this historic position. Even the existing 28 day limit is much longer than in other comparable democracies (discussed below). Indeed, lengthy detention without charge is more commonly associated with oppressive, non-democratic regimes. When informed of the current proposals Helen Suzman, anti-apartheid activist and South African politician, said:

"I am reminded of the course of events in apartheid South Africa which started with house arrest without charge, continued with 90 day detention without charge, then 180 days' detention without charge, and finally, under the so-called Terrorism Act, indefinite detention without charge."

 

Examining the Case for 42 days' Detention

 

25. Successive acts of Parliament have increased the pre-charge detention period in terrorism cases - from 7 to 14 days in 2003,[8] from 14 to 28 days in 2005[9] and now it is proposed to increase the limit to 42 days. The basis for this ratcheting-up of the limit has been the nature of al-Qaida inspired terrorism and the increasing complexity of police investigations. In particular, the Government has pointed to the increase in the level of the threat; the fact that the new terrorist threat can cause "mass casualties without warning" (meaning that the police must intervene early to prevent attacks before they happen);[10] and the complexity of cases "in terms of material seized, use of false identities, multiple languages and dialects and international links".[11] Despite the fact that there have been two major terrorist investigations since the 28 day limit came into force, Sir Ian Blair and the Home Secretary have accepted that the existing limit has given the police sufficient time. Proponents of 42 days argue instead that cases requiring longer than 28 days might arise in the future and that Parliament should agree to extend the limit in case this happens.

 

26. In spite of these arguments, made repeatedly over several months, a clear consensus has emerged that there is no justification for going beyond the existing 28 day limit. The Home Affairs Select Committee put it simply: "[n]either the police nor the Government have made a convincing case".[12] Only 6 of the 71 respondents to the Government's own consultation, for example, supported any extension beyond 28 days. The Director of Public Prosecutions, responsible for charging decisions, has stated unequivocally "we have not asked for an increase ... [w]e are satisfied with the position as it stands at the moment."[13] Other high-profile opponents of any extension include Lord Woolf (the former Lord Chief Justice), Rachel North (Survivor of 7/7 Bombs in London), Sue Hemming (Head of Counter-Terrorism, Crown Prosecution Service), the Parliamentary Joint Committee on Human Rights, opposition parties, a growing number of Labour back-bench MPs and almost all the UK's newspapers. Selected quotations illustrating the strength and breadth of opposition are available at www.chargeorrelease.com.

 

27. Liberty does not deny that the UK faces a very real and severe threat from al-Qaida-inspired terrorism. Neither do we seek to dismiss claims about the increasing complexity of terrorist investigations or, indeed, claims that longer pre-charge detention might prove operationally convenient for police in future cases, at least in the short-term. We have always acknowledged and appreciated the extremely difficult work undertaken by the police and other agencies charged with national security. We do not, however, believe that the possibility of short-term operational advantages would, in itself, justify pre-charge detention for longer than 28 days. If, indeed, this were the only test, why should Parliament restrict police powers at all? We urge parliamentarians to look beyond any possible short-term benefits of these proposals and to consider:

The potential counter-productivity of detaining suspects without charge for over a month; and

The possibility of other ways of addressing the arguments for longer pre-charge detention which are less damaging to civil liberties and pose less risk of counter-productivity.

Before turning to these two key issues, we briefly consider the Government's case for 42 days' detention from an international perspective.

 

International Perspective on the Government's Case

 

28. There can be no doubt about the international nature of the threat from al-Qaida-inspired terrorism. Like the United Kingdom, Spain, the US and Turkey have all suffered from terrorist attacks in recent years. Police in these countries face the same investigative challenges cited in support of longer pre-charge detention in the UK - the greater complexity of terror plots, their international dimension and the need to intervene and arrest suspects earlier. Given these similarities, a consideration of how other comparable democracies have responded to these challenges is a useful guide to the necessity and proportionality of the UK Government's current proposal. Liberty asked qualified lawyers and academics in 14 comparable democracies to advise us on how long a terror suspect can be detained before charge (or the closest equivalent to charge) under the criminal law in their jurisdictions. We found that none of the countries surveyed permits pre-charge detention for anything like the existing 28 day limit in the UK. The US Constitution, for example, limits pre-charge detention to two days, the closest equivalent to pre-charge detention in France is limited to six days and the limit in Ireland is seven days.

 

Can the UK's police truly need the power to detain suspects for over a month without charge when their counterparts in other jurisdictions are successfully prosecuting terror suspects with far shorter time limits?

 

29. Proponents of 42 days have sought to dismiss these findings, arguing that it is impossible to compare different legal systems.[14] Of course no two legal systems are exactly the same and comparisons are not always simple but this does not mean we should shut our eyes to overseas experience. The UK's counter-terror laws do not exist in a vacuum. Difficulties in drawing comparisons can, indeed, be over-played. Some countries like Ireland, the United States and Canada, for example, have very similar criminal justice systems to our own, making comparisons relatively straightforward. In civil law countries like France and Germany, which do not have the exact concept of "pre-charge detention", we explained the significance of charge in the UK and asked lawyers qualified in those jurisdictions to identify the closest equivalent. Liberty's 60-page study, setting out the findings in detail, is available at: http://www.chargeorrelease.com.

 

30. Any extension to pre-charge detention would put the UK further out of line with comparable democracies. Not only does this further undermine arguments that we really need to hold people for over a month without charge, it could also have broader implications. States and individuals seeking to radicalise Muslim youths may use the disparity to undermine the UK's claim to civility and moral authority. As human rights activists around the world warn, other governments may even see this as a green light to pass their own unjust and over-broad measures against those they consider a threat. Asma Jahangir, Chairperson of the Human Rights Commission of Pakistan (placed under house arrest by General Musharraf), for example, has said of these proposals:

"Britain has a proud history of promoting democratic norms and upholding human rights. It takes the lead in advancing the cause of human rights. A measure that sees a reverse trend will send a negative signal to the international community. The worry is that while Britain may make amends, they would have left a poor precedent for dictators to follow on the pretext of fighting terrorism. This downward trend will be detrimental to the rights of individuals and surely Britain would not want to be a part of it."

Anthony Romero, Executive Director of the American Civil Liberties Union (ACLU) has similarly commented that the attempts of many Americans to achieve the closure of Guantanamo Bay and the end of CIA torture flights "would not be helped by our friends across the Atlantic developing their own brand of injustice - detention without charge for over a month."

 

Counter-productivity

 

31. The Government has rightly started to focus on the need to tackle Al-Qaida-inspired terrorism by engaging in a battle for hearts and minds. 42 days' pre-charge detention and the injustice that would inevitably result would not help us to win that battle. On the contrary, pre-charge detention for over a month could damage community relations, make it more difficult for police and intelligence agencies to maintain all-important relationships with Muslim communities and, in some extreme cases, could even operate as a recruiting sergeant to terrorism.

 

32. The Home Office's own Equality Impact Assessment explains, "[t]here is a perception that the majority of people arrested under s.41 of the Terrorism Act 2000 are Muslim."[15] This perception is entirely justified. Sir Ian Blair and Peter Clarke have explained, "by and large, most of those who come into custody when asked say that they profess the Muslim faith".[16] It is not, therefore, surprising that there is, to quote the Equality Impact Assessment, a "concern in the Muslim community that they are being targeted as a group rather than individual suspects."[17] History has shown that oppressive laws, which have a disproportionate impact on one racial or religious group, can cause serious long-term damage to community cohesion.[18]

 

33. Pre-charge detention for weeks on end would further alienate those communities we most need to engage if we are to combat terrorism. If you, your friends, colleagues or family members had been detained without charge for weeks on end you would be bound to feel a certain amount of animosity to the police and authorities. At the very least you would be less likely to choose to assist the police with their future inquiries. As the Home Office's own Equality Impact Assessment states, 'Muslim groups said that pre-charge detention may risk information being forthcoming from members of the community in the future.'[19] The Mayor of London has warned:

"I am fully aware of the nature and extent of the terrorist threat facing London and other UK cities but I feel this particular proposal could worsen that threat by undermining the community support that is essential for effective, intelligence-led anti-terrorist policing."[20]

There is also a real concern that people will be dissuaded from reporting any suspicions they might have about colleagues or neighbours for fear that, even if their suspicions turn out to be unfounded, the person concerned could be held in police custody for over a month.

 

34. While we would not suggest that 42 days' pre-charge detention would magically transform law-abiding Muslims into terrorists, we are concerned that the visible injustice of such a policy would provide a propaganda tool to those seeking to radicalise young Muslims. During House of Lord's debates in 2005, Lord Paul Condon (one of Sir Ian Blair's predecessor as Met Police Commissioner) warned:

"If we now go back and make it look like we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women ... to be misguided, brainwashed and induced into acts of martyrdom."[21]

These concerns are supported by recent focus-group research that Liberty has conducted with Muslim men in London, Birmingham, Bradford and Leeds. 34 of the 40 participants felt that "extending the detention limit beyond 28 days will provide religious extremists with a propaganda coup." The impact of detention without charge in Northern Ireland confirms these risks. Internment in Northern Ireland has been described as the "best recruiting sergeant the IRA ever had".[22]

 

Better Alternatives

 

35. There are better ways of responding to the increasing complexity and international nature of terrorist investigations than continually ratcheting-up the length of time suspects can be held before charge. Before considering the grave and potentially counter-productive step of extending the detention limit beyond 28 days we believe that all of these alternatives should be tried. Some of the alternatives, highlighted by Liberty in the past, have already been adopted. For example, in October 2007, Government brought into force Part III of RIPA. This criminalizes any failure to disclose an encryption key and provides an answer to police arguments that longer pre-charge detention is needed because of the time taken to decrypt large amounts of electronic data.[23] It is disappointing that, despite these new tools for the police, a further extension to the pre-charge detention limit is being proposed. Indeed, as we discuss below, at the same time as pushing ahead with 42 days, the Government is starting to look more seriously at some of the most significant alternatives to lengthy pre-charge detention suggested by Liberty. In light of the Chilcott review's findings, the Prime Minister has recently agreed to look at lifting the bar on intercept evidence. In addition, the current Bill contains a provision on post-charge questioning - albeit one which is much more restrictive and at the same time potentially more unjust than Liberty's proposal. These kinds of alternatives should be implemented and tried out before longer pre-charge detention periods are considered any further.

 

Intercept evidence

 

36. Liberty has long argued that the bar on the use of intercept evidence in terrorism trials should be lifted.[24] We believe that this would make it possible to charge suspects earlier in a significant number of terrorism cases. We are, therefore, delighted that the in-depth Chilcott review into this issue has reached the same conclusion and recommended that the bar be lifted. We also welcome the Prime Minister's initial indications that he intends to implement these conclusions. It would be premature to extend the pre-charge detention limit beyond 28 days before this bar has been lifted and the effect of this development fully appreciated.

 

37. Claims that lifting the bar would not make a significant difference in terrorism investigations are very hard to reconcile with the extent of surveillance in the UK (including phone tapping).[25] In 2004, for example, roughly 1,800 intercept warrants were authorised by the Home Secretary. Given this it would be a surprise, or indeed a cause for concern, if the communications of those suspected of involvement in terrorism were not being intercepted before they are arrested. In many cases we would, therefore, expect intercept material to be available at the time of arrest.

 

38. At present, the kind of intercept material that is likely to have been gathered before arrest cannot form part of the evidence base for a charge because it is not admissible in criminal proceedings. The police therefore have to spend unnecessary time filling the gap in evidence that the current bar creates. Once intercept material is made admissible it would, therefore, save police time. Indeed, elsewhere in the world, intercept evidence has been used effectively to convict those involved in terrorism and other serious crimes. In fact, even within the UK, intercept evidence is currently relied on by the state in non-criminal proceedings and Clause 60 of the current Bill proposes to allow intercept evidence to be used in terrorist asset-freezing proceedings.

 

Post-charge questioning

 

39. Liberty has argued that the police should be able to re-question suspects after charge where new evidence subsequently comes to light suggesting that a more serious charge might be appropriate.[26] We believe that this could have a major impact on terrorism investigations. In order to appreciate why, it is necessary to consider the way the police currently investigate suspected crimes. At present where, for example, the police suspect that a person might have been involved in a complex conspiracy to murder they will arrest the person and detain them while trying to gather the evidence to support their suspicion, including by police questioning. In the process of doing this they may well obtain enough evidence to support a charge for a lower level offence - in a terror investigation this could well be a relatively serious pre-cursor offence like "possessing articles for terrorist purposes",[27] "preparation of terrorist acts"[28] or offences connected to the "membership or support of proscribed organisations".[29] Nevertheless, instead of charging the suspect with the lower level offence, police will continue looking for evidence to support the more serious complex conspiracy charge. They will only charge with the lower-level offence when the law says that their time has run out and when they therefore need either to charge or to release the suspect - at present after 28 days.

 

40. The 42 day proposal is designed to allow the police to go on investigating for longer, to allow evidence to be received from overseas or for massive computer databases to be searched in case this produces evidence to support the more serious conspiracy to murder charge. Instead of continually agreeing to longer pre-charge detention periods Liberty believes it would be better promptly to charge the suspect with the lower-level offence and then to continue looking for evidence to support the more serious offence after charge. Where the initial charge is a serious pre-cursor terrorism offence of the type referred to above one would frequently expect the suspect to be held in remand while awaiting trial. If new evidence does come to light we believe that, with prior judicial approval, it should be possible for the police to re-question the suspect about that evidence and, if appropriate, to re-charge them with the more serious offence. If there were proper judicial oversight Liberty does not believe that this proposal could lead to the use of "trumped-up" holding charges as some have argued.

 

41. Clause 23 of the Bill (considered in more detail at page 24) does propose to allow greater post-charge questioning but does not go as far as Liberty has suggested. Neither does it contain the vital safeguards against oppressive post-charge questioning and abuse that we would consider necessary. If Clause 23 were expanded to allow re-interview about other more serious offences arising from the same set of facts as the initial charge we believe this would provide a significant alternative to even longer periods of pre-charge detention. If accompanied by the safeguards we propose this alternative would be more proportionate and less likely to prove counter-productive.

 

The Nightmare Scenario and Existing Emergency Laws

 

42. Proponents of 42 days often argue that the powers might be needed to deal with a future nightmare scenario involving multiple grave terror plots which come to notice and/or fruition so suddenly and simultaneously that the police are simply unable to gather the evidence required to charge such a large number of suspects within the 28 day time limit. The Minister of State for Security, Counter-Terrorism, Crime and Policing (Rt Hon Tony McNulty MP), for example, wrote in the Daily Mirror: "As an extreme example, imagine two or three 9/11s. Imagine two 7/7s."[30] As with all of the Government's arguments for 42 days' detention, Liberty has seriously considered those based on the hypothetical "nightmare scenario". Even if such a scenario did arise we do not, however, consider that new laws are needed to deal with it. Existing emergency powers legislation (the Civil Contingencies Act 2004 or CCA) already gives senior ministers the power to pass emergency laws extending pre-charge detention limits if this is urgently needed to deal with a real emergency such as three 9/11s. Liberty has obtained an opinion from David Pannick QC confirming this.

 

43. It is not Liberty's intention to detract the Committee's attention from the current 42 day proposals by dwelling here on how the CCA and Liberty's reference to it have been misrepresented by those advocating 42 days' pre-charge detention.[31] We would, however, like briefly to clarify two key points. First, the fact that Liberty sought to draw the Government's attention to the powers that are contained in existing emergency legislation does not mean we accept that it is necessary to go beyond the current 28 day limit. We have merely responded to the "nightmare scenario" justification for 42 days by highlighting that in such a situation the Government already has the powers to extend pre-charge detention limits if this is urgently needed. Secondly, using the CCA would not require the declaration of a "general state of emergency" and would not amount to a kind of martial law of the kind seen recently in Pakistan.[32] Using the powers in the CCA temporarily to extend pre-charge detention limits would, of course, be a serious step but this is entirely appropriate given the grave consequences of lengthy pre-charge detention discussed above.

 

The Current Proposals

 

44. If enacted in its current form, Liberty believes the practical effect of this Bill would be for terror suspects to be detained for up to 42 days whenever it is considered that this would assist an investigation. In simple terms the effect would not be very different if the Bill simply replaced the existing 28 day limit with a 42 day limit. For this reason we would urge the Committee to look beyond the Government's complex flow-charts and not to become side-tracked with the confusing "trigger procedures" or the safeguards which the Government claims to have included in the Bill.[33] We believe that the following key questions (considered above) should be considered before getting into this level of detail: Has the Government made a case for any extension beyond 28 days? Are there better alternatives that could be tried first? Could 42 days' detention prove counter-productive in the long term?

 

45. Nevertheless, we make a few observations at this stage about how the Government has presented the current proposals. The Home Secretary has claimed that the Bill would only create exceptional "reserve powers". The reality, however, is rather different. The Bill would actually allow the Home Secretary to trigger the power to detain people for up to 42 days at any time, to deal with individual cases.[34] The only requirement is that she has first received a report from the DPP and a chief police officer stating that longer detention would assist their investigations and that those investigations are being pursued diligently.[35] The powers would certainly not be restricted to the kind of real emergency covered by the CCA. Furthermore, once the higher limit is triggered to deal with an individual case, while it remains in place this higher limit would apply to all suspects detained under the Terrorism Act 2000 and to anyone subsequently arrested under that legislation.

 

46. Home Office ministers have also made much of the parliamentary and judicial safeguards which they claim to be contained in the Bill. Liberty is not, however, convinced. There are, for example, three stages at which Parliament would be involved once the Home Secretary has triggered the 42 day limit. On closer inspection it is clear that none is satisfactory and that some would actually be constitutionally inappropriate:

Parliamentary approval is not needed to trigger the 42 day limit. If asked by the DPP and a chief police officer, this decision would be solely a matter for the Home Secretary.[36] All Parliament would receive is a statement that the Home Secretary has done so after the event.[37] In short, if Parliament considered that the powers had been triggered in an inappropriate situation it would be powerless to do anything about it. As the power is likely to be triggered to deal with individual cases, it would even be difficult for Parliament to have a meaningful debate about the Home Secretary's statement without the risk of prejudicing future prosecutions.[38]

Parliament would only have a vote if the Home Secretary wanted the 42 day limit to stay in place for longer than 30 days.[39] This would be very unlikely to ever happen in practice because, by this time, suspects would already have been held for 42 days.[40] Alternatively the Home Secretary could choose to allow the power to lapse after 30 days and then re-trigger the 42 day limit, thereby avoiding any vote in Parliament.

Individual cases where people are detained for longer than 28 days would be notified to Parliament.[41] This proposal confuses the constitutional roles of Parliament and the courts. Parliament's role is to determine the law of the land but it is the courts that should control how that law is exercised in individual cases.

It may well be Government's intention to concede a greater role for Parliament as this Bill proceeds through Parliament. This would not, however, remedy the grave, potentially counter-productive and unjustified proposal to allow detention without charge for over a month.

 

47. Government has also argued that any potential for injustice would be removed due to the existence of judicial safeguards. Again, these arguments are overplayed. It is true that the courts would have a limited role in authorising the use of the detention powers in individual cases. However, as we explain above, this would only be of limited assistance because before charge there is no hard evidence and no formal allegation for a court to scrutinise. Judicial oversight of how powers are used in individual cases is only part of the story. Liberty believes that, as under the CCA, Parliament should limit the Home Secretary's authority to trigger any exceptional detention powers and that the courts should be given effective powers to sanction any failure by the Home Secretary to operate within these legal limits. Under the current proposals there would be no legal limits on the power of the Home Secretary to trigger the 42 day limit and no judicial oversight of her decision to do so. One can understand why Government ministers might wish to avoid any risk of legal challenges but, in Liberty's view, under the British constitution the Government should not be able to operate above the law.

 

Part 2 - Questioning of Suspects

 

48. Clause 23 contains provision about post-charge questioning. It provides that a constable can question a person about a terrorism offence after they have been charged or officially informed that they may be charged with it (Clause 23 (2)). An adverse inference can be drawn from a failure to answer questions (Clause 23 (6)). This creates a general ability to question after charge in terrorism cases. At present, the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice set out very limited grounds for permitting questioning of those who have already been charged[42].

 

49. The issue of post-charge questioning was originally raised by Liberty during debate in 2005 over proposed extension of the pre charge detention limit from 14 to 90 days. A letter from Andy Hayman, the Assistant Commissioner of the Metropolitan Police, to the Home Secretary explained why he believed the extension to 90 days was necessary. The letter stressed the difficulties faced by the police in gathering sufficient evidence to bring an appropriate charge in the time allowed. Liberty pointed out that much of the evidence gathering in criminal prosecutions already takes place after charge. As a consequence there was no reason why properly authorised re-questioning could not take place if continuing investigation suggested that someone charged with a 'lesser' terrorism offence[43] might be questioned again in connection with a more serious offence. Allowing this would negate one of the central planks put forward in justification of pre-charge detention extension.

 

50. Following Liberty's initial suggestion, the idea of post-charge questioning has gained general support. Both the House of Commons Home Affairs Committee (HAC) and the Joint Committee on Human Rights (JCHR) agreed with the principle in their respective reports on the Bill[44]. The JCHR in particular agreed with Liberty's approach in calling for 'a number of detailed safeguards on the face of the Bill, to ensure that this potentially oppressive power is not used oppressively in practice'[45]. Unfortunately, the Government's proposal falls down in two key areas. 1) it only allows questioning in respect of the offence that the person has already been charged with 2) there are no safeguards to ensure that questioning is not oppressive and occurs only when necessary.

 

51. We do not understand the rationale for limiting the scope of further questioning to the offence already charged. By definition, the person to be questioned will have had sufficient evidence already gathered against them to allow charge. The implication from this is that the motivation for post-charge questioning will not be evidential. For example, the current proposal would allow for re-questioning to take place with no incentive other than a desire to ensure that adverse inferences can be drawn from any refusal to answer questions. Similarly it could have the effect of allowing the police to seek disclosure of information about possible evidence on which the defence intends to rely in advance of the usual disclosure processes.

 

52. The Government has suggested that there is no need for the Bill to address questioning for different offences as this is already permitted. Naturally, we accept that it is common practice for a person charged with an offence to face further questioning about a separate allegation. This is straightforward when a person charged with say, burglary, is to be questioned about an assault. However, matters are not so clear when questioning involves a potentially different charge arising from the same set of facts. For example, if evidence came to light suggesting that someone charged with the offence of Preparation of Terrorist Acts (s.5 TA 2006) might instead be investigated for a more serious terrorist offence such as conspiracy to murder. Although the offence is different, the subject matter would involve the same facts. Whether re-questioning would currently be permitted in such a situation is a grey area. Liberty would suggest that re-questioning in such a case is not currently permitted. The PACE codes that govern conduct by the police are silent on the issue[46]. As the PACE codes list the activities that are authorised, the implication must be that something not authorised by PACE is not permitted.

 

53. Logic may suggest that it is appropriate to give the police the ability to re-question terror suspects after charge where, for example, new evidence has come to light suggesting that a person may have committed a more serious offence than that originally charged with. , Safeguards are, however, vital to avoid the possibility of questioning for unfair and potentially oppressive purposes of the type referred to above. We believe questioning should only take place if authorised by a High Court judge when satisfied 1) that the original charge was appropriate to bring 2) that it is in the in the interests of justice to allow further questioning in the circumstances 3) that further questioning would not be oppressive. The judge should then supervise the process by setting out parameters (for example the length of time permitted for further questioning) which could be varied on application.

 

54. This modified version of Clause 23 would significantly undermine the Government's argument for the need to extend pre-charge detention limits. It would also ensure that the necessary safeguards were in place to negate concerns over the use of 'holding charges' or oppressive questioning.

 

Part 3 - Prosecution and Punishment of Terrorist Offences

 

55. Clause 29 contains provisions aggravating certain offences if they have a terrorist connection. Schedule 2 lists the offences covered and includes common law offences (such as murder and manslaughter) and a range of statutory offences relating to explosives, hostage taking and so on. Conviction for any of these offences will now be accompanied by a requirement for the court to determine whether there is a terrorist connection. In making the determination the court can hear evidence and must take into account any defence or prosecution representations relevant for sentencing purposes. If an offence has a terrorist connection it must be treated as an aggravating factor for sentencing.

 

56. Liberty does not take issue with the principle of aggravating factors in sentencing. We do, however, have concerns about the manner in which determinations of a terrorist connection will be made. Clause 29 (2) states that 'If it appears to the court that the offence has or may have a terrorist connection, the court must determine whether that is the case'. This makes the determination a matter solely for the judge as opposed to one of evidential consideration by the jury. This is a departure from normal procedure where the judge makes determinations of law while the jury are responsible for findings of fact. We would suggest that findings of terrorist connections are reserved for the jury. The stigma of 'terrorism' is such that we believe it appropriate that it should only follow the conventional process of fact determination by a jury. Furthermore, a finding by the court that an offence has a terrorist connection is likely to lead to the making of a notification order under Part 4 of the Bill. Notification requirements result in onerous obligations involving notification and restrictions on travel for those subject to them. Again we would suggest that such restrictions should only follow a finding of fact by a jury.

 

Part 4 - Notification Requirements

 

57. Part 4 of the Bill creates a range of notification requirements and travel restrictions. The Bill covers 3 main areas of notification and restriction:

1) Clauses 38 to 55 create a requirement that anyone convicted of certain specified terrorism offences register their details with the police and provide notification of any change in details or of any intention to travel abroad. If a person is convicted of an offence that has a terrorist connection (see paragraphs 21 and 22) they will also be subject to notification requirements.

2) Schedule 4 allows for anyone convicted of a foreign terrorism offence to also be subject to notification requirements.

3) Schedule 5 allows for anyone subject to notification requirements to be restricted or refused foreign travel.

 

58. The notification requirements under Part 4 cover anyone convicted of any offence listed in Clause 39. If a person has been convicted of any of the offences in Schedule 2 (see paragraph 21) and the court has determined that there is a terrorist connection, they will also be subject to notification requirements (Clause 45)[47]. Notification applies once a trigger sentence has been imposed (Clause 42). A trigger sentence is effectively one exceeding 12 months imprisonment (Clause 42 (1) (a) (ii)). The notification requirements are retrospective in that they will apply to anyone who is in custody or on licence for an offence at the time the provisions come into force.[48] The notification requirements are set out in Clause 44 and broadly cover personal details including address, national insurance number, details of the offence, and details of any notification requirements. The Bill reserves a power for this information to be added to by way of affirmative resolution (Clause 44 (3)). Re-notification must occur annually or whenever any details change (Clauses 46 and 47). If a person intends to travel abroad they must give details of their intended travel to the police (Clause 50). A person who fails to comply with any of the notification requirements commits an offence (Clause 52). Notification requirements last for life for anyone imprisoned for 5 years or longer. They last for 10 years in other cases (Clause 51).

 

59. The notification provisions are broadly similar to those applying to sex offenders (Sex Offenders Act 1997). As with sex offender notification, Liberty agrees that the imposition of notification requirements on those convicted of terrorism offences can be a legitimate and proportionate interference with rights. We would draw a contrast with restrictions imposed upon those subject to control orders whose liberty can be severely curtailed regardless of the fact they have not been convicted of any offence. As the notification scheme does not of itself allow restriction, application to those already convicted is unlikely to be in breach of the prohibition on retrospective punishment (Article 7 of the Human Rights Act 1998)[49].

 

60. While we do not take issue with the principle of notification, we do have concerns about the detail. Notification will automatically apply to anyone who receives a custodial sentence of 12 months. The offences covered include those not requiring any involvement or participation in terrorist actively, such as 'encouragement of terrorism' (s.1 TA 2006) and 'failure to disclose information about acts of terrorism' (s.38B TA 2000). We presume the purpose behind notification is to ensure that the authorities are aware of the location of those who might constitute a risk to public safety. As a consequence we believe that, rather than being automatic, notification should follow a judicial assessment that the person convicted is a public risk. Having heard the case, the trial judge is best placed to make the appropriate risk assessment in an individual case. If the person is convicted of a Schedule 2 offence and the court determines there is a 'terrorist connection' under Clause 29 they can appeal against required notification on the same terms as an appeal against conviction (Clause 45). We can understand the rationale behind the ability to appeal as the offence will not be a 'terrorist offence'. However, seeing as the court will have already made a determination that the offence has a 'terrorist connection' we do not see any reason why a person convicted of encouragement of terrorism should not have the same ability to appeal against notification as would be permitted to a person convicted of a terrorist murder.

 

61. We would also question the absolute nature of the two tier system of 10 years' notification (for those sentenced to less than five years' imprisonment) and lifetime notification (for all others). It would be appropriate to retain a residual discretion to dispense with notification requirements in exceptional circumstances. There will be situations arising where a court (and indeed the authorities) might accept that a person convicted of a serious historic terrorist offence might renounce violence. A notable feature of the Northern Ireland peace process has been the participation of those previously associated with involvement in sectarian violence. It would serve no purpose and entail a questionable use of policing resources not to allow scope within the Bill to dispense with notification requirements for those who present no risk at all to public safety.

 

62. We do not have any particular comment about Schedule 4. This allows for those convicted of terrorism offences overseas to be subject to the notification regime. If notification is to be introduced there is no reason why it should not equally apply to those who have committed offences overseas. We note that anyone subjected to notification under Schedule 4 will be entitled to appeal to the Crown Court. We imagine that this appeal has been introduced to cater for the fact that, although the Bill refers to 'corresponding' offences committed overseas, it is not always possible to compare like with like. The appeal mechanism would allow inappropriately made orders to be dismissed. For the reasons outlined earlier we believe an appeal should apply to all.

 

63. Schedule 5 allows for overseas travel restrictions to be placed on those subject to notification. For restrictions to be imposed, a person subject to notification must have acted in a way that gives 'reasonable cause to believe' that a travel restriction order should be made (Paragraph 2(3)). Application is made by a chief officer of police to the magistrates' court (Paragraph 3). Orders can last for up to six months but can be renewed indefinitely. Restrictions can range from a bar on travelling to named countries, to an absolute bar on all travel outside the UK (Paragraph 6). Appeals against the making, or scope, of travel restriction orders can be heard in the Crown Court (Paragraph 12).

 

64. Liberty does not take issue with the creation of travel restriction orders. There might be situations where it is appropriate to restrict the overseas travel of those who have been convicted of terrorist offences and whose behaviour justifies preventative action to avoid involvement in further terrorist activity. However, removing the ability to travel abroad can be a major restriction on liberty and should only be imposed when there is a significant risk of terrorist criminality. The criterion for imposing an order is vaguely worded. The magistrates' court simply needs to be satisfied that the person has acted 'in a way that gives reasonable cause to believe it is necessary for a foreign travel restriction order to be made to prevent the person from taking part in terrorism activity outside the UK'. There is no explanation of 'reasonable cause' and no explanation of factors to be taken into account. The explanatory notes to the Bill state that 'Although this is a civil order, the standard of proof will be the criminal one'[50]. It is difficult to square this with the wording as currently drafted. Even if the criminal standard is applied to the question of there being 'reasonable cause to believe' it becomes effectively meaningless as 'reasonable cause to believe' is a low and essentially subjective threshold. Given that orders can be renewed indefinitely this low threshold could result in effectively permanent restrictions being imposed on travel. We believe a more stringent threshold should be applied. A more appropriate wording would allow an order to be made if the court is 'satisfied that it is necessary to make an order to prevent a person taking part in terrorist activity'.

 

65. Travel restrictions could potentially raise free movement issues. The basis for Freedom of Movement within the EU is Article 14 of the EU Treaty which creates an internal market without borders. Articles 18 and 39 of the Treaty sanction the right of every EU citizen to move and reside freely within the EU territory. The right to freedom of movement is subject to limitations under Article 39 (3) justified on grounds of 'public policy, public security or public health'. A Directive of 25 February 1964[51] attaches certain conditions to the power of Member States to limit the right of freedom of movement on public policy or public security grounds. The Directive relates to all measures taken by a Member State concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken on public policy, public security or public health grounds. Article 3 specifies that measures taken on public policy or public security grounds shall be based 'exclusively on the personal conduct of the individual concerned; previous criminal convictions shall not in themselves constitute grounds for the taking of such measures'.

 

66. The free movement provisions certainly allow restrictions to be placed on travel. However, the low threshold of 'reasonable cause to believe' does not sit comfortably with the EU treaty. According to jurisprudence from the European Court of Justice (ECJ) on the meaning of "public policy":

States may only have recourse to the public policy reservation exceptionally and in a limited way;

measures may not be collective or reflect a wish to achieve general exclusion;

in accordance with the principle of equality of treatment, the conduct in question must also be punishable when exhibited by nationals.

We would suggest that the higher threshold we have proposed (above) would be more compatible with the approach taken by the ECJ.

 

Part 5 - Asset Freezing

 

67. Clauses 56 to 63 concern applications to set aside asset freezing decisions. We have no specific comment to make about Part 5. Asset freezing powers for the Treasury are contained in the Terrorism (United Nations Measures) Order 2006[52] and others are listed in Clause 56(3). Part 5 makes some general provisions regarding rules of court, disclosure and the appointment of Special Advocates. It is worth noting that Clause 60 removes the bar on intercept evidence in asset freezing proceedings. Liberty has always argued that there is no justification for the bar on the use of intercepted material as contained in Section 18 of the Regulation of Investigatory Powers Act 2000 (RIPA). We were pleased to see that the Privy Council Review of Intercept as Evidence agreed with the principle that the bar on intercept should be removed[53] and we hope the government will follow its recommendations. The removal of the bar in relation to asset freezing proceedings is evidence of governmental acceptance that removing the bar on intercept can serve a useful purpose.

 

Part 6 - Inquests and Inquiries

 

68. Part 6 introduces a range of provisions which would limit the transparency and increase executive control over the inquest process. Clause 64 inserts a new Clause 8A into the Coroners Act 1988 (CA) to allow the Secretary of State to issue a certificate that an inquest will be held without a jury. Clause 65 also amends the CA by inserting a new Clause 18A which allows specially appointed coroners to be appointed by the Secretary of State in order to replace the person who would otherwise have held the inquest. Clauses 66 and 67 are similar to the provisions in Part 5 relating to asset freezing orders in that they amend Section 18 of RIPA to allow intercept material to be admissible in inquiries in exceptional circumstances.

 

69. With regard to the admissibility of intercept evidence we would reiterate the comments made earlier. The removal of the bar is a tacit acceptance of the use of intercept material. It is also worth adding that one of the consequences of the bar has been to create the need specifically to legislate to allow intercept to be used. It would be far more sensible to simply remove the bar and allow established rules of evidence, both in criminal and other proceedings, to determine the appropriateness of admissibility in individual cases.

 

70. Our principal concern with Part 6 relates to the significant scope given to the Secretary of State to intercede in inquest proceedings. The removal of juries in particular will effectively allow 'secret' inquests to take place following deaths that result from state actions. The grounds for the removal of a jury are extremely broad and cover situations where the inquest will involve material that should not be made public: 1) in the interests of national security 2) in the interests of a relationship with another country or 3) if it is otherwise in the public interest (new Clause 8A(1) CA). Determinations as to whether an inquest will be held without a jury are made solely by the Secretary of State. The only potential challenge to a decision to hold an inquest without a jury would be by way of Judicial Review (JR) in the High Court. However, the purpose of a JR would be to challenge the legality of the decision not to allow a jury. Given that the grounds for the Secretary of State to make a determination cover a broad non-specific 'public interest', the decision might prove difficult to challenge in practice. The Bill does not specifically state that other interested parties, such as family or legal representatives, are excluded. However, the basis for deciding that a jury should be excluded is that 'the inquest will involve consideration of material that should not be made public'. By implication anyone who is not security cleared is likely to be excluded from proceedings in the same way that they would be from, for example, closed sessions in control order proceedings.

 

71. We have serious concerns about the impact that jury removal would have upon public confidence in the inquest system. We also question the compatibility of the proposals with the UK's legal obligations. The European Court of Human Rights in the case of Jordan v UK[54] concluded that there were five essential requirements of the investigatory obligation arising from deaths due to state action or while someone is in the care of a state body. These requirements are 1) independence 2) effectiveness 3) promptness and reasonable expedition 4) public scrutiny 5) accessibility to the family of the deceased. This position has since been confirmed as a minimum standard by the House of Lords Appellate Committee in domestic cases[55]. Exclusion of the jury and the family would seem to conflict with requirements of family involvement and public scrutiny.

 

72. A more general concern is the impact on public confidence in the inquest process. Almost by definition the inquests to which these provisions would apply are likely to involve controversial or violent deaths. If these provisions were already in place it is likely that they could have been applied to the inquest into the shooting of Jean Charles de Menezes at Stockwell tube station in July 2005. This inquest, due to recommence later in 2008, clearly raises issues about national security. It is also likely to involve the consideration of material, for which disclosure may not be in the 'public interest'. Any decision to hold the de Menezes inquiry in secret would be extremely politically contentious. There would inevitably be allegations of a whitewash and a cover up. Indeed, the political pressure might be such that the decision to hold the inquiry without a jury might be considered too contentious. While this is supposition, we make this point to demonstrate the dangers of allowing this type of determination to be made by the Secretary of State. Any decision will be inherently political. Other inquests might raise similar issues to the de Menezes inquiry but not have the same profile or risk the same political fallout. Political considerations risk inconsistent decision making when based on such arbitrary grounds as 'public interest'.

 

73. Similar concerns arise from the provisions contained in Clause 65 which allow for the appointment of coroners by the Secretary of State in specific cases. The rationale for this proposal is not set out either in the explanatory notes for the Bill, the press release accompanying publication of the Bill, or in the Bill itself. By contrast (and notwithstanding the concerns outlined above) the criteria allowing the Secretary of State to certify inquests to take place without a jury are laid out in the Bill[56]. There are no such requirements relating to the appointment of special coroners. The Secretary of State simply issues a certificate and the specially appointed coroner holds the inquest. This can even happen during an ongoing inquest (new clause 18A (3)(b) CA) allowing the current coroner to be replaced with the politically appointed alternative. There is no justification needed or explanation given.

 

74. This direct governmental interference with the inquest system will severely undermine public confidence and is in direct conflict with the traditional separation of powers between the executive and the judiciary. The purpose of an inquest is to provide an independent determination of law and evidence. Allowing direct executive interference would prejudice this independence. It would certainly be difficult to convince the family of a person who had died in custody that a decision of the Secretary of State to replace the coroner in the middle of proceedings was not direct political interference. Similarly, any coroner hearing a politically sensitive inquest would be affected by the knowledge that they could be replaced at any moment, and without justification, by the Secretary of State.

 

75. It is difficult to see what recourse that family would have if they wished to challenge a decision to change a coroner. The Secretary of State will be given absolute discretion. This suggests there would be little basis to challenge the legality of their decision. With no justification needed for the appointment of special coroners, allegations of political interference are perhaps inevitable. Similar criticisms of these proposals have been made by the Joint Committee on Human Rights[57] and the House of Commons Justice Committee in their report on the Counter-Terrorism Bill[58]. At the very least we would expect this Bill to articulate some grounds for the exercise of the Secretary of State's discretion.

 

Part 7 - Miscellaneous

 

76. Clause 68 brings into effect one of the recommendations of Lord Carlile's report into the definition of terrorism. It adds the 'advancement of a racial cause' to the current definition found in s.1 TA 2000 which includes political, religious or ideological causes. We agree that this is an appropriate amendment to the definition and have no particular comment to make. However, we would add that the current wide definition remains problematic especially when coupled with new speech offences contained in the TA 2006[59]. Concerns about distinctions between 'terrorists' and 'freedom fighters', about calls for the overthrow of repressive regimes and about the chilling effect on free speech have previously been expressed on all sides of the House. These problems remain unresolved. The amendment to the current definition proposed by this Bill, will allow the opportunity to revisit the definition.

 

77. Clause 69 creates a new criminal offence of eliciting, publishing or communicating information about members of the armed forces. It creates a new s.58A of the Terrorism Act 2000. It will be an offence punishable by up to 10 years' imprisonment to elicit information about a member of the armed forces which is of a kind 'likely to be useful' to a person committing or preparing an act of terrorism. The offence also covers publication or communication of the information. It is a defence for a person to prove they had a reasonable excuse for their action. We imagine the rationale behind the offence is that members of the armed forces are particular targets for terrorism and require greater legal protection. The recent conviction of Parviz Khan for planning the kidnap and beheading of a British Muslim soldier would seem to support this presumption. However, we are not convinced the new offence is necessary. As the explanatory notes to the Bill point out, s.58 TA 2000 currently criminalises the collection, making or possession of a record of information likely to be useful to a person committing or preparing an act of terrorism. The new Clause does go further in that it covers 'eliciting' information. This means that a person will commit an offence if they try to obtain information but make no record or it. Arguably such a situation would also be covered by the offence of attempt under s.1 Criminal Attempts Act 1981, which criminalises an act 'more than merely preparatory' to the commission of another offence.

 

78. We do not take particular issue with the creation of a statutory offence that effectively conflates existing criminal law on attempt with another offence. We do, however, feel the new offence is overbroad. In particular, there is no requirement that the information is intended to be used for anyone committing or preparing an act of terrorism. The test is merely whether the information is 'of a kind likely to be useful' to terrorist activity. The existing s.58 offence is similarly (and in Liberty's view excessively) broad in that it also does not require any intention that the information be used for terrorist activity. However, the fact that the existing s.58 requires some sort of record to be made or possessed is at least more indicative that some sort of impropriety might be planned. 'Eliciting' under the new s.58A could be interpreted as asking about a soldier's leave dates. Such information could certainly be useful to terrorists. There is a defence available under s.58A (2) if a person charged can prove a reasonable excuse. s.118 TA 2000 applies to the use of this defence meaning that if the defendant adduces evidence sufficient to raise an issue then the duty is on the prosecution to prove beyond doubt that the issue does not exist. This strengthens the defence by placing the burden on the prosecution. However, we still believe it appropriate that the criminalisation of any activity that is not in itself normally within the sphere of criminal activity should require intent for an offence to be committed. Restriction to a defence of 'reasonable excuse' will not provide protection to those who act thoughtlessly or carelessly. A person duped into 'eliciting' information by others with terrorist intent would be unlikely to have a 'reasonable excuse'. They could therefore be convicted even if they had no idea that they were being used.

 

79. Clauses 71 to 74 make a variety of provisions about control orders. Clauses 72 to 74 are essentially technical amendments relating to the definition of 'involvement in terrorism-related activity' (Clause 72), the time allowed for representations by controlled persons (Clause 73), and anonymity provisions for those subject to orders (Clause 74). They arise from poor scrutiny of the PTA resulting in uncertainly over interpretation. We have no particular comment to make about these other than to point out that, as the PTA was rushed through Parliament in two weeks, it was perhaps inevitable that mistakes would be made. Parliament needs sufficient time to scrutinise Bills so that similar errors can be spotted.

 

80. Clause 71 creates powers for the police to enter and search the property of those subject to control orders. These are to be used to ascertain whether a person subject to an order has absconded and to allow monitoring to ensure compliance with the terms of an order. As we have stated earlier, Liberty believes the control order regime has proved both excessive and ineffective. This Bill's inclusion of provisions allowing police entry to ascertain whether a person has absconded is a consequence of people subject to control orders disappearing. The need to create a police power of entry once again demonstrates the fact that a regime created outside of the normal criminal law requires constant legislating to create parallel powers to those used as a matter of course by the police and other agencies.

 

81. The remainder of the Bill contains a range of technical, explanatory and consequential provisions. These cover, for example, changes to terrorist cash forfeiture periods (so that only working days are taken into consideration) and requirements for gas transporters to pay the costs of policing at gas facilities. We have no specific comment to make about these, or about other parts of the Bill where we have been silent. There are parts of the Bill which are proportionate, justified or which plug gaps in the existing framework.

 

82. The removal of the pre-charge detention provision would still leave a substantial piece of anti-terrorism legislation. The range and strength of opposition to the extension of pre-charge detention indicates that the Bill will face a difficult progress through parliament. Far better that those provisions are dropped in order to allow the remainder of the Bill an easier passage.

 

 

 

Gareth Crossman, Jago Russell and Isabella Sankey

Liberty

 



[1]http://security.homeoffice.gov.uk/news-publications/publication-search/counter-terrorism-bill-2007/ct-bill-eia?view=Binary at page 4

[2] Liberty has undertaken research into the length of pre-charge detention periods in other comparable democracies. The executive summary is available at http://www.liberty-human-rights.org.uk/issues/pdfs/comparative-law-exec-summary.pdf

[3] Section 1 (1) Permitted under Schedule 5 TA 2000, S.43 (2) TA 2000 and S. 42 (1) TA respectively. The power can also be exercised under s.52 ATCSA (search for evidence of weapons related offences) S. 28 TA 2006 (search for terrorism publications) and the proposed new S.7 A-C PTA (control order searches introduced in this Bill)

[4] The Newton Committee report of Privy Counsellors http://security.homeoffice.gov.uk/news-publications/publication-search/independent-reviews/newton-committee-report-2003.pdf?view=Binary

[5] The DPP has confirmed that the "threshold test" for charging is often applied in terrorism cases. This applies where it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the Full Code Test (i.e. reasonable prospect of conviction) is not yet available. It requires at least reasonable suspicion on the available evidence together with the likelihood that further evidence will become available within a reasonable time to meet the Full Code Test (The Code for Crown Prosecutors, Chapter 6)

[6] Terrorism Act 2000, Schedule 8, para 32

[7] Her full story is available at www.chargeorrelease.com

[8] Criminal Justice Act 2003

[9] Terrorism Act 2006

[10] Home Office, "Pre-Charge Detention of Terrorist Suspects", December 2007, p.4

[11] Ibid. p.5

[12] First Report of 2007/08, "The Government's Counter-Terrorism Proposals", para 7

[13] Evidence to the Commons Home Affairs Committee, 21 Nov 2007

[14] By contrast, Professor Nicola Lacey (Chair of Criminal Law and Legal Theory at the LSE) has described "the report into comparative detention periods across democracies [as] an excellent piece of research"

[15] Equality Impact Assessment, page 4

[16] Evidence to the Home Affairs Select Committee, 9 Oct 2007, Q21

[17] Equality Impact Assessment, page 4

[18] Examples include the controversial sus laws as well as internment in Northern Ireland

[19] Equality Impact Assessment, page 4

[20] Letter to Shami Chakrabarti, Director of Liberty, 30 Nov 2007

[21] HL Deb, 13 December 2005, col 1175

[22] cf Lord King of Bridgewater, HL Deb, 10 March 2005, cols 1040-1041

[23] Police and Justice Act 2006 also allowed suspects to be released on bail subject to potentially strict conditions

[24] Cf Liberty's evidence to the JCHR on this subject at www.liberty-human-rights.org.uk

[25] Report of the Independent Surveillance Commissioner for 2004.

[26] At present the ability for the police to question suspects after charge in relation to offences arising from the same set of facts is limited. Paragraph 16.5 of Code C of PACE allows for re interview in relation to an offence i) to prevent or minimise harm or loss to some other person, or the public ii) to clear up an ambiguity in a previous answer or statement or iii) in the interests of justice...to comment on, information...which has come to light since they were charged. It should be pointed out that there is nothing to stop a person being interviewed in relation to an offence arising from a different set of facts once he has been charged.

[27] Section 57 of the Terrorism Act 2000. This makes it an offence to possess an article in circumstances which give rise to a reasonable suspicion that the possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

[28] Section 5 of the Terrorism Act 2006. This makes it an offence to do anything in preparation to give effect to your intention to commit an act of terrorism or to assist another to commit such an act.

[29] Sections 11 and 12 of the Terrorism Act 2000

[30] "Minister warns of 'peril' as he pushes for 42 day lock-up", 23rd January 2008

[31] cf Liberty's submission to HASC in December 2007: www.liberty-human-rights.org.uk

[32] Prime Minister's Statement on National Security - 25 July 2007

[33] For a detailed analysis of the proposals see: www.chargeorrelease.com

[34] Schedule 1, para 1, proposed para 40(1)

[35] Schedule 1, para 1, proposed para 39

[36] Schedule 1, para , proposed para 40

[37] Schedule 1, para , proposed para 41

[38] This is the case notwithstanding the fact that the Bill now prohibits the Home Secretary from including this kind of personal information in her statement (proposed para 41(5))

[39] Schedule 1, para , proposed para 45

[40] Although the powers can be triggered at any time, in reality the 42 day limit would only be triggered once the normal 28 day limit has nearly run out

[41] Schedule 1, para , proposed para 44

[42] Paragraph 16.5 of Code C of PACE allows for re-interview in relation to an offence i) to prevent or minimise harm or loss to some other person, or the public ii) to clear up an ambiguity in a previous answer or statement or iii) in the interests of justice...to comment on, information...which has come to light since they were charged

[43] Such as Encouragement of Terrorism (s.1 TA 2006), Preparation of Terrorist Acts (s.5 TA 2006) or Possession for Terrorist Purposes (s.57 TA2006)

[44]http://www.publications.parliament.uk/pa/cm200708/cmselect/cmhaff/43/43i.pdf and http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/50/50.pdf

[45] Ibid at page 15

[46] The grounds for re-questioning being limited to those listed in footnote 42 above

[47] Although they can appeal against this to the determining court (Clause 45 (2)).

[48] They are not retrospective in relation to conviction for an offence with a terrorist connection under Clause 29 as these provisions will only come into force when the Bill comes into law

[49] The European Court of Human Rights has determined that Article 7 was not breached by offender registration under the Sex Offenders Act (1997) when applied to those convicted before the regime was implemented (Ibbotson v United Kingdom [1999] Crim LR 153).

 

 

[50] Paragraph 170

[51] Directive (64/221)

[52] http://www.opsi.gov.uk/SI/si2006/20062657.htm. This replaced an earlier order from 2001.

[53] http://www.official-documents.gov.uk/document/cm73/7324/7324.pdf

[54] (2003) 37 EHRR 52

[55] Ex Parte Amin [2003] UKHL 51, [2004] HRLR 3

[56] That is, the interests of national security, in the interests of the relationship with another country or otherwise in the public interest (New Clause 8A(1) CA)

[57] See the Joint Committee on Human Rights Ninth Report of Session 2007 - 08: Counter-Terrorism Policy & Human Rights (Eighth Report): Counter-Terrorism Bill available at http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/50/50.pdf

[58] See the House of Commons Justice Committee Third Report of Session 2007-08 on the Counter Terrorism Bill available at http://www.publications.parliament.uk/pa/cm200708/cmselect/cmjust/405/405.pdf

[59] See Liberty's briefing on the Carlile Review of the Definition of Terrorism for greater detail http://www.liberty-human-rights.org.uk/pdfs/policy06/response-to-carlile-review-of-terrorism-definition.pdf