Conclusions and recommendations
1. If,
as those arrested in Forest Gate and the Muslim Safety Forum say,
the Muslim communities perceive the police to be slow in sifting
evidence and reluctant to release those against whom they are
unable to bring charges, then this damages police credibility.
The police must make greater effort to show that they are using
the time during which people are detained effectively. (Paragraph
48)
2. We believe that,
even with the current period of detention, more effort needs to
be made in explaining the process and reassuring the Muslim communities.
(Paragraph 50)
3. 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. (Paragraph 57)
4. 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. (Paragraph 70)
5. 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. (Paragraph 71)
6. 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. (Paragraph 72)
7. 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. (Paragraph 73)
8. 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. (Paragraph 74)
9. 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. (Paragraph
76)
10. 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. (Paragraph
86)
11. 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. (Paragraph 92)
12. 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. (Paragraph 97)
13. Some aspects of
the proposal to require terrorism offenders to notify police of
their whereabouts and travel plans—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. (Paragraph 103)
14. The Government
wishes to legislate to allow officers temporarily to seize travel
documents from any one suspected of wanting to travel abroad for
terrorism-related purposes. We support this proposal. (Paragraph
104)
15. 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.
(Paragraph 107)
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