APPENDIX 1
Memorandum submitted by The Law Society
1. The Society entirely agrees that it is
vital that we have effective measures to combat terrorism and
we fully recognise that it is the Government's responsibility
to protect its citizens. However, we continue to believe that
this protection can be achieved without serious intrusion on human
rights standards. We are particularly concerned to ensure that
compliance with due process is not curtailed as a result of the
introduction of any new measures.
Extension of pre-charge detention powers beyond
the current limit of 28 days
2. We are opposed to any extension of the
period of pre-charge detention. We remain of the view that the
case has not been made out for any extension beyond the current
limit of 28 days.
3. The call for an extension of the detention
period results largely from inadequate resources. If resources
were increased so as to ensure that evidence gathering was concentrated
at the start of the detention period, the current difficulties
caused by dealing with issues sequentially would be much reduced.
We acknowledge the problems of delay which can be caused by the
need to work with other jurisdictions, to decrypt computers, and
to gather mobile telephone records. However, the availability
of greater resources would mean that other elements of the investigation—perhaps
more critical to preventing an imminent terrorist act—would
be speeded up. That is essential in everyone's interests in terrorist
cases. This approach would leave to the evidentiary phase—for
the purposes of pursuing criminal proceedings—those parts
of the investigation which might take longer. Schedule 1, paragraph
5 of the Police and Criminal Evidence Act 1984 enables judges
to order disclosure of information held on computers, which may
be helpful with decryption in some cases. In cases where a suspect
will not co-operate with decryption this will be fatal to the
ability to charge a suspect only where the sole evidence might
be contained on a computer. It would be wholly disproportionate
to detain a suspect for more than 28 days prior to charge solely
on the basis that information might come to light following decryption.
4. Charging a suspect with a minor offence
is entirely appropriate if there is evidence that such an offence
may have been committed, particularly if, as indicated below,
it were possible to enhance sentences for general offences which
are shown to be terrorism-related. If concern remains about a
suspect's dangerousness, or a belief that, with time, evidence
of terrorist activity will be found, the police could be empowered
to impose restrictive pre-charge bail conditions in terrorism-related
cases, including the surrender of any passport, and restrictions
on association.
5. Article 5(3) ECHR provides that those
arrested or detained must be brought before a judge within a reasonable
time and tried or bailed. We think it very unlikely that any further
extension of the detention period beyond 28 days prior to charge
would be compatible with Article 5(3) ECHR.
New Police power to question suspects after charges
have been brought
6. The ability to question suspects after
charge already exists. Paragraph 16.5 of Code C under the Police
and Criminal Evidence Act 1984 allows the police to put further
questions to suspects after they have been charged in circumstances
which are applicable in terrorism cases, such as where public
safety is at risk[1].
7. If, however, this power were shown to
be insufficient, consideration should be given to amending Code
C to allow for post-charge questioning in terrorist cases where
specific evidence has been discovered after the pre-charge detention
period has expired. In such cases, suspects should be able to
challenge before a judge repeated further questioning, in order
to ensure that such further questioning operate oppressively.
8. The power to question post-charge (in
appropriate cases and with appropriate safeguards) further undermines
any case to extend the pre-charge detention period beyond the
current 28 day limit.
Notification requirements for convicted terrorists
who leave prison
9. The Law Society has no comment on these
proposals.
Enhanced sentences where terrorists are convicted
of general offences
10. Whilst the Society does not oppose this
proposal in principle, we are concerned that any enhancement of
sentence where terrorists are convicted of general offences must
be applied only in cases where the determination that an offence
was terrorism-related is admitted by the accused or proven beyond
reasonable doubt.
11. Accordingly, rather than the enhancement
being dealt with at the point of sentence, the trial court should
determine whether or not the offence was terrorism-related as
one of the elements of an offence, as is the case in racially
aggravated offences. The defence should have the right to appeal
such a determination.
Changes to control orders in respect of fingerprinting,
DNA and powers of entry
12. The Law Society has no comment on these
proposals.
Data-sharing powers for the intelligence and security
services placed on a statutory basis
Police counter-terrorism DNA database put on same
statutory footing as national DNA database
13. We broadly welcome proposals to put
data-sharing powers and the police counter-terrorist data DNA
base on a statutory footing. However, as the then Home Secretary
recognised in his ministerial statement to Parliament, the devil
is often in the detail of proposals. We also welcome the intent
to share draft clauses before introduction of the Bill and to
seek the scrutiny in key areas of the Home Affairs Select Committee
and Joint Committee on Human Rights. We believe that the proposed
statutory wording in these areas, along with its operational implications,
will merit close examination.
14. In particular, the importance of legal
professional privilege is such that it may be appropriate, in
relation to data-sharing powers, to ensure that appropriate safeguards
appear on the face of the Bill.
A review of the use of intercept evidence in court
15. The Society has long advocated that
phone tap evidence should be admissible in order to aid the prosecution
of alleged terrorists.
16. Intercept evidence is admissible in
most common law jurisdictions—including Canada, Australia,
South Africa, New Zealand and the United States—so we do
not understand the reason for it being inadmissible in the UK.
In the light of the use of such evidence by other common law jurisdictions,
the use of foreign intercept evidence in UK courts and greater
EU co-operation, the introduction of intercept evidence is the
logical next step. Indeed, the Society believes that —using
procedures such as public interest immunity hearings to protect
sources of evidence, or to protect witnesses such as service providers—the
case for relaxing the absolute ban on the use of intercept evidence
is overwhelming. This should be put into effect as soon as possible.
10 July 2007
1 PACE Code C 16.5 A detainee may not be interviewed
about an offence after they have been charged with, or informed
they may be prosecuted for it, unless the interview is necessary:
* to prevent or minimise harm or loss to some other person, or
the public * to clear up an ambiguity in a previous answer or
statement * in the interests of justice for the detainee to have
put to them, and have an opportunity to comment on, information
concerning the offence which has come to light since they were
charged or informed they might be prosecuted Back
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