Annex
SCRUTINY OF PRE-CHARGE DETENTION IN TERRORIST
CASES
1. This paper deals with the scrutiny of
applications for a warrant of further detention between 14 days
and 28 days. These are made by CPS Counter Terrorism Division
(CTD) who thoroughly scrutinise any request to make such an application
and firstly decide whether it is necessary or appropriate before
ever commencing the process.
2. Only if they consider that it is necessary
and appropriate, and that the necessary criteria (see below) is
met, will an application be made: To date, since the change in
time limits to a maximum 28 days, applications beyond 14 days
have only been made in three cases: the alleged airline plot,
arrests arising out of an investigation in Manchester and the
current investigation in relation to the London and Glasgow bombs.
3. The legal detail of this procedure is
set out at Annex A (attached).
4. The reality of this procedure in a case
where there are multiple defendants is that, whilst a CPS lawyer
will be advising on whether there is sufficient evidence to charge,
a different CPS lawyer is likely to be appointed to present the
warrant of further detention application.
5. The High Court Judge will need to be
persuaded that:
— There are reasonable grounds to believe
that the further detention is necessary to obtain relevant evidence,
whether by questioning or otherwise or to preserve relevant evidence.
— The investigation in connection with
which the person is detained is being conducted diligently and
expeditiously.
6. This can be done with both open source
material which is presented in the presence of the defence and
sensitive material which is presented in the absence of the defence.
The defendants, who are legally represented, are presented with
a document setting out the state of the enquiry thus far and the
future non-sensitive lines of enquiry, and can cross examine the
senior investigating officer at length to test the strength of
the application. (please note—this is not a legal entitlement,
but is done to assist the court and speed up the process.) They
are also allowed to make submissions arguing against the application.
7. Inevitably, to satisfy the Court that
further detention is necessary (the first part of the test), the
court must be informed in great detail of the lines of enquiry
that are likely to bear results within the maximum period of detention
available: speculative enquiries, or those that cannot achieve
evidence within the next seven or 14 days (as appropriate), are
not enough.
8. What is required by the court is: (a)
Precise detail of the enquiries being made (b) When they will
be completed (c) What it is expected they will achieve and (d)
what difference that will make to the charging decision.
These questions are particularly stark for any
application beyond 21 days as results beyond the next few days
are of little relevance.
9. To prove due diligence and expedition
the court must be satisfied that the investigation as a whole
has been conducted as quickly as is reasonably possible (and continues
to be so). This will include current events ie ongoing enquiries
and the review of the evidence with a view to charging decisions.
This test does not respect normal working hours or conditions;
so lawyers and police are expected to work long evenings, weekends
even nights before they can request more time.
10. Due to the detail and extent of the
evidence required to persuade a court that the two tests are satisfied,
the work that goes into the preparation of such applications is
extensive. The CPS lawyer works with police officers to obtain
the necessary information, prepare the necessary documentation
in advance of a hearing and then present the application. This
is extremely onerous, particularly where there are multiple defendants
as the application for each defendant must stand or fall on its
own merits, and is a huge resource burden on both the police and
the CPS.
11. This document deals with CPS applications
for extensions between 14-28 days before a Judge, the police generally
carry out applications between 0-14 days before a District Judge.
12. These, equally, are subject to scrutiny
and opposition by the defence and, whilst they may be more easily
justified, occurring as they do at an earlier stage in proceedings,
it should be noted that these are not always successful. For example,
in the recent high profile Operation Gamble in Birmingham, police
applications for warrants to detain nine men for a further seven
days to 14 days were refused for two of the suspects who were
subsequently released, and were not granted for full seven days
for the remaining seven suspects who were subsequently charged.
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