PRACTICALITIES
For how long should the period be extended?
51. Both the Association of Chief Police Officers
(ACPO) and the independent reviewer of terrorism legislation,
Lord Carlile, have been quoted as arguing that there should be
no statutory maximum limit on pre-charge detention; instead, it
should be for judges to decide how long an individual's detention
can be extended. Ken Jones, President of ACPO, told the Observer
on 15 July that the police were "up against the buffers"
with the 28-day limit and that they needed to be able to detain
suspects for "as long as it takes".[65]
52. Lord Carlile commented to the BBC that the issue
was not simply about the number of days someone should be detained:
My view is that people should not be detained a day
longer than necessary or a day shorter than necessary in the interests
of justice. … The cases should be considered by senior judges
on an evidence basis. It would strengthen the rights of those
detained with a higher level of judges and subject to appeal.[66]
53. Giving evidence to us, Lord Carlile clarified
his position on this issue:
I would like to see stronger judicial supervision
than we have at the present time … It is not for me to judge
what is the correct maximum number of days—that is a political
decision. The intellectually respectable view, in my opinion,
if I may say so, is that we need a proper system of checks and
balances. Now, in a world of absolute perfection you would say
to yourself: "Well, the judges are going to provide that
ultimate decision, so you do not need to set down the number of
days at all." … [However,] if one had to choose an arbitrary
figure an absolute maximum of 90 days might be an appropriate
figure.[67]
54. Sir Ian Blair argued that there should be a statutory
maximum but would not commit himself to a specific number of days:
"this has got to be decided by Parliament." He added:
it is very difficult because you are selecting something
entirely arbitrary but I think I have enough faith in the officers
of the Metropolitan Police and other services that there will
be a time by which we have extracted all the evidence that is
available. Somewhere out there between 50 and 90 days is a limit
which would seem very sensible.[68]
The Home Secretary also would not specify in October
what she thought the increased limit should be, but indicated
that she would be responsive to what emerged from the current
national debate, in which she was seeking a consensus.[69]
55. Liberty argued that whatever maximum period was
proposed by the Government:
must by definition be a speculative guess as to how
much might be needed at an indeterminate point in the future.
The fact that the most frequently cited extension figure of 56
days has been arrived at by doubling the existing period demonstrates
the arbitrary nature of determination.[70]
The Opposition spokesmen who gave evidence to us
also thought that any new maximum by its nature would be arbitrary
as no one yet knew what might be required.[71]
56. The Government has subsequently produced proposals
for a maximum limit of 42 days for pre-charge detention, on which
it is now consulting. The Government states: "Such powers
should only be used where there is a clear operational need related
to a particular operation or investigation and should be supported
by strong parliamentary and judicial safeguards."[72]
However, the Government's consultation paper does not explain
the reason why a limit of 42 days has been chosen.
57. Leaving
aside for a moment the question of the necessity for an extension
beyond 28 days, there is no basis on which we could recommend
a particular maximum limit on pre-charge detention.
The Government's options
58. The first two of the Government's four listed
Options for extending the time limit[73]
are very similar and are based upon the existing procedure for
applications under the 28-day limit, though with the addition
of the option of parliamentary scrutiny of each individual case
after the extension has been granted (Option 1) or a parliamentary
'trigger' for the activation of the new powers (Option 2). Options
3 and 4 are more radical.
59. Option 3, that the emergency powers under Part
II of the Civil Contingencies Act (CCA) 2004 could be invoked
in specified circumstances, would require the declaration of a
state of emergency and approval by Parliament within seven days.
Liberty submitted to us Counsel's opinion that the CCA could be
used in an emergency of the type described by the Government and
would allow for further detention.[74]
Sir Ken Macdonald was also of the view that the CCA could be used
in this way.[75] Liberty
argued that these powers could be employed in the "nightmare
scenario" where the complexity of suspected plots was likely
to overwhelm the capacity of the police and intelligence services.[76]
JUSTICE also supported this proposal.[77]
60. Giving evidence to the JCHR on 20 September,
Tony McNulty MP, Minister of State at the Home Office, gave his
view of the Liberty proposal:
I think it is mad. In the end that is twice as draconian
as anything the Government is remotely looking at. Are you seriously
suggesting that in the wake of Overt [the alleged airline plot]
we slap on the emergency powers provision of civil contingencies
for as long as that threat or sustained two or three threats last
with all the powers that entails and gives to the state and then
step down from that as and when we thought such a plan or project
was disrupted and we had all the bad guys? I think that is just
a woeful use of jurisprudence and the law, to be perfectly honest,
and worse than anything that this or any other government has
suggested.[78]
61. Sir Ian Blair subsequently told us that while
he did not think the proposal was "mad", he did not
support it, because it would require declaring a state of emergency
in the middle of a major investigation. He added: "The right
proposal is for Parliament to draw its own conclusions at the
right moment, when there is not some dreadful event going on".[79]
Lord Carlile said that the proposal (together with the Government's
Option (2)) was "completely unrealistic".[80]
The DPP highlighted a difficulty that Liberty had not, in his
view, identified, which was that the need for Parliament to approve
the order carried the risk that comments in the debate on the
order might seriously put into question whether those charged
could obtain a fair trial.[81]
62. Professor Clive Walker of Leeds University stated
that Liberty's proposal was "impractical, unprincipled and
poorly conceived". He argued that, first, most terrorist
attacks do not justify the declaration of a state of emergency,
and second, that:
Liberty seem to be unaware that the Government has
refused to publish any drafts of Part II regulations. In other
words, there is no certainty that, if invoked, the regulations
about pre-charge detention will be as limited or as carefully
designed with safeguards as would legislation in advance of an
emergency. Nor is there certainty that emergency powers would
be confined to detention without charge. For Liberty to encourage
the potentially widespread use of the 'Domesday' powers in Part
II is astonishing.[82]
63. Shami Chakrabarti, the Director of Liberty, defended
to us her organisation's proposal against these various criticisms.
In particular, she argued that the need for Parliament to take
extraordinary action to activate the powers under the Act was
a desirable check on the abuse of those powers, "an inbuilt
political disincentive to activating [them] too lightly".[83]
She also noted that regulations made under the Act would be secondary
legislation "and, therefore, subject to quashing if they
are abused in the courts".[84]
64. Under Option 4, specialist court judges would
be assigned to terrorism cases after suspects had been detained
for 48 hours and the model followed would be similar to the examining
magistrates of Continental Europe. At the same time as its Options
paper, the Government published a short summary of the results
of a Home Office-led study into the French examining magistrates
system.[85] The study
concluded that:
There are significant cultural and constitutional
differences between the French and English criminal justice systems,
but one is not necessarily more effective than the other. A fundamental
conclusion of this study is that if we were to try and emulate
the examining magistrate system here, we would need to import
the system in its entirety rather than borrow and graft certain
elements on to our CJS. This would require fundamental changes
to our adversarial, common law tradition. This was also the conclusion
of the Runciman report on criminal justice in 1993 and more recently
the Joint Committee on Human Rights in their report on prosecution
and pre-charge detention.[86]
65. JUSTICE welcomed the Home Office study, which
they argued bore out their case that "the Government should
not seek to import features from other systems of law without
first understanding the very different distribution of checks
and balances in those systems".[87]
Neither the Home Secretary nor Sir Ian Blair thought a mix of
the two systems was practical and Ms Chakrabarti of Liberty told
us: "it is inherently dangerous to think you can do a pick
and mix of different legal systems".[88]
66. Finally, Lord Carlile commented that although
he did not support Option (4) in its entirety, as this would involve
"an absolute sea-change" in the criminal justice system,
he believed that elements of the continental system could be introduced
with advantage into the Government's preferred option: "Option
(1) with the importation of a judge in a special role would provide
the best of both systems, really—or the best we could do,
anyway".[89] He
added that what was needed was:
a properly experienced judge, which is why I am in
favour of a senior circuit judge with long criminal experience—to
supervise and approve or disapprove the activities of the police
during the detention period. It would require very careful thinking
out. I do not think it would be realistic to have oral adversarial
proceedings during the course of a period of detention in Paddington
Green. I think most of the representation, if not all, could be
done in writing. We might consider importing a special advocate
into the procedure as well. I believe that it would provide the
extra protection with an element imported from abroad.[90]
How would the powers be used?
67. Sir Ken Macdonald gave us a useful summary of
the way that prosecutors decide when and how to charge those arrested
for serious crimes such as terrorism. He explained that there
were two alternative tests that could be applied:
- The full test, which requires
the prosecutor to judge that there is a realistic prospect of
conviction. "That simply means that, on the basis of the
evidence the prosecutor has before him or her, a court is more
likely than not to convict".
- The other is relevant where, if there was a charge,
bail would be inappropriate (which, in Sir Ken's view, would be
likely to cover all terrorist cases). In these circumstances,
the prosecutor can apply 'the reasonable suspicion test' or threshold
test: the prosecutor can charge on the basis of reasonable suspicion
as long as the case is kept under review and the full code test
is applied as soon as practically possible. In deciding on bringing
such a charge, the prosecutor has to bear in mind the likelihood
of further evidence being obtained, the time it would take to
gather that further evidence and the charges that that further
evidence would be likely to support.[91]
Sir Ken added:
Our experience has been that in every case where
a terrorist suspect has been charged on the threshold test, the
evidence to justify the full test being passed has arrived, the
full test has been applied and the matter has proceeded to trial.[92]
68. Sir Ken further explained that in the airport
case, two of those charged towards the end of the 28-day period
were charged on the basis of reasonable suspicion. He commented:
I think an analysis might lead you to conclude that,
if after 25 or 26 days you could not find a reasonable suspicion
to justify a charging decision, it might be quite difficult for
a prosecutor to persuade a court that, even though there is not
presently reasonable suspicion to justify the threshold charge,
a man or a woman should be kept in custody for a longer period,
so that is a practical problem which could face prosecutors.[93]
This view was echoed by Lord Goldsmith.[94]
69. Sir Ken also said that, even under the current
limit, courts scrutinise applications for extensions very rigorously
and "the longer you have got someone in custody without finding
evidence to charge, the tougher it is to make these applications".[95]
When we pressed him on this point, he said:
I think the experience of prosecutors is that, when
they apply for seven days at the beginning of the period or a
period over 14 days, it is tough, but it gets tougher the longer
you have had someone in custody and for very obvious reasons,
that the courts become more sceptical about the likelihood that
material [to justify a charge] is going to be forthcoming.[96]
70. Neither
the police nor the Government have made a convincing case for
the need to extend the 28-day limit on pre-charge detention. We
consider that there should be clearer evidence of need before
civil liberties are further eroded, not least because without
such evidence it would be difficult to persuade the communities
principally affected that the new powers would be used only to
facilitate evidence gathering and not as a form of internment.
71. The DPP's
evidence about the existence and use currently made of the 'reasonable
suspicion' test by prosecutors convinces us that there is flexibility
in the system if the police need a little extra time to gather
evidence sufficient for a charge subsequently to be made with
'a realistic prospect of conviction'. We also note the implication
in his words that judges will probably be increasingly sceptical
about the likelihood of gathering such evidence the longer a suspect
is kept in custody—which may make an extension beyond 28
days ineffective in practice.
72. It is clear
to us from other sources such as the speech made by the head of
the Security Service to the Society of Editors on 5 November 2007
that the terrorist threat facing the UK is real and acute. Therefore
any request made by the police authorities to extend the maximum
period for which terrorist suspects can be held without charge
has to be treated with great seriousness.
73. We considered
the proposal from Liberty, that Part 2 of the Civil Contingencies
Act (CCA) 2004 could be used in exceptional circumstances where
the complexity of the suspected terrorist plots was likely to
overwhelm the capacity of the police and security services. However,
we concluded that this was not an intended use of the powers under
the CCA, that there were significant legal problems and that it
would not be sensible for a national state of emergency to be
triggered in the middle of a major investigation.
74. If, in these
exceptional circumstances, a temporary extension of the pre-charge
detention period is deemed essential to secure successful prosecutions
of terrorist suspects, the Government should consider building
support for proposals that effectively reform the powers of the
CCA, secure Parliamentary scrutiny and judicial oversight, but
stop short of the requirement to declare a full-scale state of
emergency. We urge the Government to begin urgent discussions
with other parties on this basis.
75. Although
we have set this out in detail, we reiterate that we do not consider
that a convincing case for an extension to the limit at present
has been made out.
76. We also
heard evidence that other options, in particular the admissibility
of intercept evidence in court and changes in the rules governing
post-charge questioning, could make it easier for the police to
gather and present evidence sufficient to convict terrorist suspects.
We now turn to these issues.
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