APPENDIX 2
Supplementary memorandum submitted by
The Law Society
INTRODUCTION
1. The comments below concerning the anti-terrorism
proposals announced by the Government on 25 July 2007 are made
in addition to the written evidence we submitted to the Committee
on 10 July 2007.
2. We note with approval the Government's
expressed desire that consideration of the latest anti-terrorism
measures occur in as consensual a manner as possible. We welcome
the approach of treating those who are alleged to engage in acts
of terrorism as criminals, who should be prosecuted in the normal
way in the criminal courts.
EXTENSION OF
PRE-CHARGE
DETENTION POWERS
BEYOND THE
CURRENT LIMIT
OF 28 DAYS
3. As the Government has rightly acknowledged,[2]
there is a fine balance to be struck between individual liberty
and national security. To increase the time for pre-charge detention
without good cause risks alienating and deterring the cooperation
of the very people who may otherwise supply information to prevent
terrorist crimes.
4. The Law Society, like the Joint Committee
for Human Rights,[3]
is not convinced by the arguments for increasing the period of
time for which a person can be held before they are charged. On
the contrary, the evidence contained in the Options paper[4]
indicates that the current period, one of the longest periods
of pre-charge detention in any comparable system, is sufficient
even in cases of great complexity (such as the airline plot).
5. We share the concern of the Joint Committee
on Human Rights that the proposed extension to the pre-charge
detention period is being sought on the precautionary basis that
28 days will possibly be inadequate in the future.[5]
Any increase in the pre-charge detention period must be justified
by evidence, rather than being based on the Government's belief
"that there will be cases in the future, possibly quite soon,
in which more that 28 days will be needed for charges to be brought".[6]
6. In our view, initiatives that have already
been taken, as set out in pages 6 and 7 of the Options paper (new
offences, use of the threshold test), should be allowed time to
bed down, and be combined with other initiatives not yet in place,
such as the use of intercept evidence and post-charge questioning
with appropriate safeguards. The cumulative effect of these measures
should be evaluated before embarking on the draconian course of
a further increase in the length of pre-charge detention.
POST-CHARGE
QUESTIONING
7. We note that the power to question after
charge already exists in certain circumstances, particularly in
relation to complex terrorism-related investigations, questioning
to minimise the risk of harm, or where it is in the interests
of justice to allow the detainee to comment on information which
has come to light since charge. To prevent any suggestion that
post-charge questioning is oppressive it should only be undertaken
in relation to new information that has arisen since charge, and
not simply be repetition of previous questioning. It should be
authorised by a police officer of Inspector rank, and the defendant
must be entitled to challenge any requests for questioning before
the court, which should have the power to prevent it if it is
not satisfied it would be in the interests of justice. The defendant
must have access to legal advice by a solicitor in person during
any such questioning.
ENHANCED SENTENCES
8. While the Law Society is not opposed
in principle to enhanced sentences for non-terrorist specific
offences that are motivated by a terrorist purpose, we suggest
that the breadth of newly created offences, such as "acts
preparatory to terrorism", will mean it is unlikely that
an appropriate terrorism related offence could not be charged.
For example, the forger of passports referred to in paragraph
38 could be charged with acts preparatory, or the burglar raising
funds to buy weapons for terrorist purposes could be charged with
terror finance offences.
We note that the Possible Measures paper suggests
that it would be "the courts who would determine whether
or not an offence was terrorism related" for the purpose
of imposing an enhanced sentence for non-terrorist specific offences.[7]
However, the paper does not propose increasing the maximum penalty,
and suggests a right of appeal in relation to such a determination
for both the defence and the prosecution. We are therefore unsure
what exactly is being proposed. If there is to be the possibility
of an enhanced sentence due to the presence of so serious an aggravating
factor as the commission of an offence for terrorism related purposes,
this must be an element of the offence, to be either admitted
as part of a guilty plea, or proved beyond doubt at trial, in
a similar way to a racially or religiously aggravated offence.
25 September 2007
2 Options for Pre-charge Detention in Terrorist Cases,
Home Office, 25 July 2007 Back
3
Joint Committee on Human Rights, "Counter-terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning",
HL paper 157, HC 394, 30 July 2007, Summary Back
4
Options for Pre-charge Detention in Terrorist Cases, Home Office,
25 July 2007 Back
5
Joint Committee on Human Rights, "Counter-terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning",
HL paper 157, HC 394, 30 July 2007, paragraphs 51 and 52 Back
6
Options for Pre-charge Detention in Terrorist Cases, Home Office,
25 July 2007, page 8 Back
7
Possible Measures for inclusion in a Future Counter Terrorism
Bill, Home Office, 25 July 2007, paragraph 38 Back
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