House of Commons - Home Affairs

Select Committee on Home Affairs First Report

3 Alternatives to Extended Detention

77. Civil liberties organisations have urged the adoption of other measures as an alternative to extended detention, such as allowing the use of intercept evidence in court, and increasing the scope for post-charge questioning.[97] However, the Government have argued that, even if those measures were to be adopted, this would not entirely eliminate the need for extended detention powers.[98]

Intercept as evidence

78. Intercept evidence gathered by intelligence services from other jurisdictions may be produced in evidence in court here, but not intercept evidence gathered by the UK intelligence services. In our 2006 inquiry, many witnesses argued in favour of allowing the full use of telephone intercept evidence in courts, as is done in many foreign jurisdictions, saying that there were no human-rights difficulties. Lord Carlile supported this, as did (with some reservations) the Metropolitan Police. However, the then Home Secretary, Rt Hon Charles Clarke MP, said this was not a "silver bullet", and that the risk of changing the law outweighed the benefits. Those risks were of: (a) damaging intelligence interests by revealing the sources of intelligence; and (b) massive data collection demands by the defence. We noted that there was universal support for the idea outside the Government, and concluded that there was no convincing evidence that the difficulties were insuperable.[99]

79. Assistant Commissioner Hayman told the Committee:

I think I am moving, as I know ACPO is, to a conclusion that in a selected number of cases, not just for terrorism but also for serious crime, [use of intercept] would be useful. I think also it does make us look a little bit foolish that everywhere else in the world is using it to good effect.[100]

80. In July 2007 the Government announced that it had commissioned a review on Privy Counsellor terms "to advise on whether a regime to allow the use of intercepted material in court can be devised that facilitates bringing cases to trial, while meeting the overriding imperative to safeguard national security". The Review Committee is chaired by Sir John Chilcott; its other members are Rt Hon Lord Archer of Sandwell, Rt Hon Alan Beith MP and Rt Hon Lord Hurd of Westwell.[101] It is due to report early in 2008.

81. JUSTICE strongly welcomed the announcement of a review. In October 2006 they produced a report entitled Intercept Evidence: Lifting the Ban, which argued that the current ban was "archaic, unnecessary and counter-productive". They noted that the UK was the only country in the common-law world which prohibited completely the use of intercepted communications in criminal proceedings:

the experience of other common law countries shows that the fears of the intelligence services that intercept evidence would lead to their interception capabilities being compromised are unfounded. Established common law principles of public interest immunity work well in other countries to prevent the unnecessary disclosure of sensitive intelligence material, such as methods of interception and the identity of informants.[102]

82. Liberty accepted that intercept might not be a 'magic bullet' allowing charges always to be brought, but "maintain that the admissibility would ensure that charges could be brought in most situations".[103] The DPP thought that intercept evidence would be quite a powerful tool and might lead to charges being brought more quickly.[104] Lord Goldsmith believed that not only would such evidence help in prosecuting offences but also that the UK authorities should be seen to have tried all avenues within the ordinary criminal justice process rather than making exceptions to that process (presumably a reference to extended detention before charge).[105]

83. DAC Clarke told us: "[this is] an area rich in anecdote and quite often light in fact. … [in respect of terrorism] there have been very few cases where intercept evidence could have made very much difference to the case. … [it is] easy to overstate its importance".[106] He also said that it would be "very difficult indeed" to devise ways of allowing intercept evidence while imposing some limits on the sheer amount of material that might be needed to be disclosed to the defence.[107] Likewise Lord Carlile said that in his view allowing intercept evidence would make a big difference in other types of crime, but he doubted it would make much difference in terrorism cases. He was in favour of it in principle but thought it raised "considerable logistical difficulties".[108]

84. During our visit to Washington DC in October 2007, we explored with our interlocutors at the Department of Homeland Security and the Department of Justice the extent to which difficulties of the kind raised by our police witnesses had impeded the use of intercept evidence in the courts in the United States. We received the strong impression that, while some such difficulties, for instance in relation to logistics, may well arise from time to time, these are eminently surmountable given the political and judicial will to do so, and should not be regarded as constituting an objection to the principle of using intercept evidence.[109]

85. While not underestimating the practical difficulties, the Crown Prosecution Service thought they were not insuperable.[110] Sir Ken Macdonald helpfully explained that the 'disclosure' problem—the fear that the defence might require transcription of huge amounts of intercept evidence which the police or security services had obtained but which the prosecutors were not intending to use—was not as serious as some people feared. He said:

actually, if we apply the law properly, the legislation governing disclosure, which dates back to 1996, it does not mandate the disclosure of all material to the defence. That became the practice, but we got the practice back very firmly on track so that what we disclose now is our case, the material that we intend to rely on, and anything that is in our possession which, although we do not intend to rely on, undermines our case or might assist the defence case.[111]

86. While we do not suggest that intercept evidence would provide the solution to all the problems in bringing charges against terrorist suspects, we do consider it ridiculous that our prosecutors are denied the use of a type of evidence that has been proved helpful in many other jurisdictions and which, even if not conclusive itself, appears often to provide useful avenues for further inquiry. We can learn from other similar countries, such as the USA and Australia, how to protect our intelligence sources. After all, it would not be compulsory to use intercept evidence if it were felt that the damage from doing so outweighed the benefit. We found the DPP's clarification of the problems surrounding disclosure very helpful: if the Crown Prosecution Service has already rowed back from a misinterpretation of the extent of disclosure required under 1996 legislation, then it should be possible to cope with the amount of transcription that the defence could legally require.

Post-charge questioning

87. Under PACE, suspects can be questioned after charge in defined circumstances, including "to prevent or minimise harm or loss to some other person, or the public".[112] In our 2006 inquiry, civil liberties organisations argued that this police power rendered a further extension of pre-charge detention unnecessary. Liberty further argued that the circumstances could be extended to include those where the Secretary of State considered it necessary in the interests of national security or if the person were arrested in connection with terrorism. Other witnesses opposed this suggestion. We concluded that post-charge questioning alone would not be sufficient to replace extended pre-charge detention, but it could be a useful addition. We encouraged the Government to consult on this as a priority.[113]

88. In July 2007 the Government announced that it plans to legislate:

So that in terrorist cases (that is, those arrested under the Terrorism Act 2000) suspects can be questioned after charge on any aspect of the offence for which they have been charged. Such questioning would not require the consent of the defendant. Any answers that are given as part of a post-charge interview could be used for evidential purposes.[114]

89. The JCHR has welcomed the Government's decision, but suggested that the change could be introduced more quickly by amending the PACE Codes rather than through primary legislation.[115] The Crown Prosecution Service strongly supported the proposed change, as did Lord Goldsmith and David Davis.[116] Nick Clegg was in favour provided that there were protections in place to prevent the use of peripheral charges as a 'hook' to keep people under detention.[117]

90. Liberty claimed that removal of the bar on intercept and reviewing post-charge questioning would together have a huge impact upon the ability to charge.[118] JUSTICE commented that under PACE Code C, there is already limited provision for questioning of suspects post-charge. They have supported the view that these grounds could be extended to include any case in which fresh evidence came to light. They noted that questioning post-charge would have to be attended by the same safeguards that apply to pre-charge questioning, that is, the right to legal advice, the right against self-incrimination, and freedom from oppressive questioning. Subject to these safeguards, they supported the Government's proposal.[119]

91. The Home Secretary commented that in the responses to the Government's consultation there had been "pretty widespread support for the proposals around post-charge questioning. There have been some questions about the safeguards and the way in which it will be implemented but it has been pretty well received".[120]

92. We support allowing the use as evidence of information obtained in post-charge questioning of terrorist suspects, including the ability to draw an inference against an individual who refuses to answer, subject to the same safeguards as apply to pre-charge questioning: the right to legal advice, the right against self-incrimination and freedom from oppressive questioning.

93. The Government propose that sentences for terrorists who are convicted on non-terrorist specific offences should be enhanced to reflect the additional seriousness that terrorist involvement represents. Examples of such offences might include forging documents in order to assist a terrorist act, or committing burglaries in order to raise cash to buy weapons for terrorist purposes. It would be left to the court to determine whether an offence was terrorism-related, and there would be no extension to the current maximum penalty for such offences. This implements a recommendation by Lord Carlile in his report on the definition of terrorism published on 15 March 2007.[121]

94. Liberty stated that they did not have an issue with this proposal in principle, but wished there to be a requirement that the jury should be convinced that there was an intention on the defendant's part that the offence was committed for purposes connected with terrorism.[122] The Law Society argued that enhancement should not be dealt with at the point of sentence but should be determined during the trial as one of the elements of the offence, as with racially aggravated offences.[123] JUSTICE shared this view.[124]

95. British-Irish Rights Watch stated that they had grave concerns about this proposal. They opposed what they saw as an increasing trend for terrorists to be treated differently from other criminals, and more harshly, because of the motive for their crimes.[125]

96. Sir Ken Macdonald stated that some of the offences mentioned—such as financing terrorism—are already covered by terrorist legislation. He also suggested that if the investigators did not have evidence of terrorist involvement, it would be difficult to prove that there was such an aggravating feature and, if they did have such evidence, they would probably seek a charge under the terrorism Acts in the first place. However, he did not rule the proposal out completely.[126] Lord Goldsmith thought that the courts already had the power to treat a terrorism link as, in effect, an aggravating feature.[127]

97. Some of the examples given to us of offences linked to terrorist activity for which enhanced sentences might be appropriate may already fall within the definition of, for example, acts preparatory to terrorism. There also appears to be some doubt over the extent to which a connection with terrorism is regarded as an aggravating circumstance currently. However, if the Government can clarify that there are activities which assist terrorists but do not at present fall within the definition of acts preparatory to terrorism, or other such provisions, we accept the case for regarding the connection with terrorism as an aggravating factor that should lead to an enhanced sentence.

REQUIREMENT TO NOTIFY POLICE OF WHEREABOUTS AND TRAVEL PLANS

98. The Government proposes that terrorism offenders should be required, following their release from prison, to notify the police of their whereabouts and travel plans, in the same way that sex offenders are already required to.[128] Under the Sex Offenders Act 1997, those convicted or cautioned in relation to sex offences are required to notify the police of their name and address (including any change of address and significant periods away from home), date of birth, and national insurance number. The particular period for which notification is required depends on the sentence received—for example, for someone sentenced to imprisonment between 6 and 30 months, the notification period is 10 years.[129]

99. Liberty stated:

we accept that [notification requirements and travel restrictions] could … be appropriately used against those convicted of terrorism offences. We might raise concerns over the detail of what offences are covered by travel orders; what details are required for notification; who is notified and so on. We will wait for further development of these suggestions.[130]

100. JUSTICE welcomed the creation of a terrorist offenders register as "a sensible practical measure" to ensure that those convicted of terrorist offences were subject to proper monitoring following the end of their sentences.[131] The DPP thought the proposal very sensible.[132] Lord Goldsmith, David Davis and Nick Clegg also supported it.[133]

101. Professor Clive Walker of Leeds University expressed concerns about this proposal. He called for greater clarity as to what restrictions would apply, how long the order would last, whether there was any possibility of redemption for an individual and what facilities for rehabilitation would be available in these cases, bearing in mind that many convictions under the Terrorism Act 2000 are for low level offences, such as the withholding of information in a specific relationship with a relative or partner. He added:

This proposal will create extra workload for the police, and one wonders whether its blanket application will be worthwhile. The extension to overseas applicants is especially problematic. … There is the added point as to why the existing device of control orders fails to achieve all these restrictions?[134]

102. On the other hand, Nick Clegg felt that this requirement would at least be transparent and limited in scope, whereas control orders—which should be used for more serious purposes—were often, he argued, used simply to impose travel restrictions on suspects.[135]

103. Some aspects of the proposed legislation—the length of sentence and the length of the notification period—differ from the approach taken in respect of sex offenders. It would be helpful for the Government to explain its reasons for these differences. Subject to these clarifications, we recommend the imposition of a requirement for terrorist offenders to notify police of their whereabouts and travel plans.

104. At present, investigating officers have the right to detain property of individuals suspected of wanting to travel abroad for terrorism-related purposes. The Government wishes to extend this power to allow officers temporarily to seize travel documents from such suspects to enable further investigations to be undertaken.[136] We support this proposal.

DATA-SHARING AND USE OF THE DNA DATABASE

105. The Government also proposes to establish the police counter-terrorism database on a statutory footing, ensuring that DNA samples obtained under the Terrorism Act 2000 can be placed on the national DNA database, allowing the security services to cross-reference material they obtain with the national DNA database, and providing equivalent powers relating to DNA and fingerprints after a control order is served, as currently apply when arrests are made under PACE and the Terrorism Act. It also wishes to place the intelligence and security agencies on a similar statutory footing to the Serious and Organised Crime Agency in respect of their ability to acquire and disclose information.[137]

106. Liberty stated that they had no issue in principle with either of these proposals, but they were concerned about their practical implementation. They argued that:

Moves towards use of data mining and data matching techniques used to imply potential illegality without the use of human intelligence sources … are undermining data protection principles and are increasingly disproportionate. Similarly, … 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 thousand innocent persons are now on the database.[138]

Other witnesses, such as the DPP and David Davis, thought it right in principle to ensure that resources of information such as the DNA database should be readily available to the police and security agencies tackling terrorism.[139]

107. Although a number of witnesses shared Liberty's concerns about data protection and the retention of DNA samples in certain circumstances, these issues are much wider than the present discussion over counter-terrorism measures and need to be addressed elsewhere. We are reviewing aspects of them in relation to our concurrent inquiry into 'A surveillance society?'. We consider the Government's proposals about information sharing to be a proportionate response to the need to increase the efficiency of our counter-terrorism services.

97 See, e.g., Appendix 13, paras 11-13 (Liberty) Back

98 See Possible measures for inclusion in a future counter terrorism bill, 25 July 2007, para 37 Back

99 Terrorism Detention Powers, para 116 Back

100 Ibid., para 113 Back

101 Possible measures for inclusion in a future counter terrorism bill, 25 July 2007, paras 17 and 20 Back

102 Appendix 4, para 23 See also Q 427 (Clegg) Back

103 Appendix 13, para 11 Back

104 Q 569 Back

105 Q 519 Back

106 Q 50 Back

107 Q 48 Back

108 Q 102 Back