Joint Committee On Human Rights

Joint Committee On Human Rights Third Report

2 The Terrorism Bill

14. The Government published its Terrorism Bill on 12 October 2005, after previously publishing and consulting on draft clauses of the Bill.

15. The Government believed that all the measures in the Bill as introduced were compatible with the ECHR. Its justification for this view is summarised in the Explanatory Notes to the Bill paras. 165-176 and Annex A to the written evidence submitted to this Committee by the Home Office on 18 October.[19]

16. The Bill creates a number of new criminal offences. In his recent speech to the European Parliament making a number of proposals for countering the terrorist threat, the Home Secretary accepted that it was incumbent on the British Government, as advocates of change, to make the case that such measures will in fact make a practical difference. We welcome the fact that the Home Secretary accepted, in his evidence to us, that the same onus rests on the Government to demonstrate to the UK Parliament the necessity for the measures it is proposing, for example where it is proposing the creation of a new criminal offence, by identifying precisely the gap in the law which exists and providing evidence to demonstrate that the law's protection against terrorism is inadequate.[20] We accept the Home Secretary's qualification that it is not possible to prove that a particular measure is the single thing which has prevented a particular event or proposed attack taking place, but we welcome the fact that he accepts that the basic test ought to be necessity.

17. The Bill received its Third Reading in the House of Commons on 10 November 2005 and had its Second Reading in the House of Lords on 21 November. At report stage in the Commons on 9 November a number of significant amendments were made to the Bill, particularly in relation to the provisions concerning encouragement of terrorism (clause 1) and the maximum period of pre-charge detention for terrorist suspects and judicial supervision of extensions of the period (clause 23). We take account of these amendments as appropriate in the analysis of the Bill which follows, summarising the effect of those amendments along with our views on the extent to which they have addressed concerns we had about the human rights compatibility of the Bill's original wording.

Encouragement and glorification of terrorism (clause 1)

18. Clause 1 of the Terrorism Bill would create a new criminal offence of "encouragement of terrorism", carrying a maximum penalty of 7 years' imprisonment.[21] In the Bill as introduced, the offence would be committed by a person who publishes a statement, or causes another to publish a statement on his or her behalf, at the time knowing or believing, or having reasonable grounds for believing, that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism.[22]

19. Glorification of terrorism, which in the draft Bill was to constitute a separate and less serious offence, is now part of the offence of encouragement of terrorism.[23] Statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism include statements which glorify the commission or preparation of such acts and "is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances".[24] The words "by them" were added by the Government by amendment at report stage in the Commons to clause 1(4)(b).[25] The Government argued that this was a significant narrowing of the scope.[26]

20. Criminalising the publication of statements engages the right to freedom of expression in Article 10 ECHR. Article 10's protection extends to expression which offends, shocks or disturbs, but proportionate restrictions are permissible on expression which amounts to incitement to violence, including terrorist acts. Restrictions on direct incitement to violence (which is already a criminal offence in English law) are clearly compatible with Article 10. It appears from the Strasbourg case-law that restrictions on indirect incitement to commit violent terrorist offences are also capable in principle of being compatible with Article 10, provided they are

necessary
defined with sufficient precision to satisfy the requirements of legal certainty, and
proportionate

to the legitimate aims of national security, public safety, the prevention of crime and the protection of the rights of others. In one case the Court of Human Rights has held that a restriction on expression, in the form of a refusal to allow a radio journalist to interview a terrorist (Red Army Faction) suspect, was justified because the words spoken by the suspect could possibly be understood by supporters of the terrorist group as an appeal to continue its violent activities, even if they did not directly incite violence.[27] The main issues, therefore, are whether the proposed new offence of encouraging terrorism is necessary, and is defined in the Bill as currently drafted sufficiently precisely to satisfy the requirements of legal certainty and proportionality.

NECESSITY FOR THE NEW OFFENCE

21. The Home Secretary's evidence is that there is a gap in the law which makes it difficult to prosecute incitement to terrorism of a general nature, as opposed to incitement of a specific terrorist act.[28] In his view, the law already outlaws incitement to commit a particular terrorist act, such as the statement "Please will you go and blow up a tube train on 7 July in London?", but not a generalised incitement to terrorist acts such as "We encourage everybody to go and blow up tube trains."

22. Incitement to violence, including terrorist violence, is already a criminal offence in UK law. Incitement to commit an act of terrorism overseas is also a criminal offence by virtue of s. 59 of the Terrorism Act 2000. Solicitation to murder is an offence under s. 4 of the Offences Against the Person Act 1861. Incitement to racial hatred is a crime under the Public Order Act 1986. In light of the wide range of criminal offences already available, the question is why a new offence of encouragement of terrorism, including by its glorification, is necessary.

23. Recent prosecutions illustrate the current law. In R v El-Faisal, for example, the Court of Appeal upheld the convictions of a minister of Islam for soliciting murder under s. 4 Offences Against the Person Act 1861 and incitement to racial hatred under the Public Order Act 1986, for having made audio tapes urging Muslims to fight and kill, among others, Jews, Christians, Americans, Hindus and other "unbelievers".[29] In the course of its judgment the Court of Appeal explained the very great width of the offence of soliciting to murder:

"26. The offence of soliciting to murder is contained in s.4 of the 1861 Act which states:

"Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life."

R v Most

"The largest words possible have been used, "solicit" that is defined to be, to importune, to entreat, to implore, to ask, to attempt to try to obtain; "encourage", which is to intimate, to incite to anything, to give courage to, to inspirit, to embolden, to raise confidence, to make confident; "persuade" which is to bring any particular opinion, to influence by argument or expostulation, to inculcate by argument; "endeavour" and then, as if there might be some class of cases that would not come within those words, the remarkable words are used, "or shall propose to", that is say, make merely a bare proposition, an offer for consideration."

24. The Muslim cleric Abu Hamza Al-Masri was also charged, on 19 October 2004, with solicitation to murder for soliciting or encouraging others at a public meeting to kill non-believers in the Muslim faith, and with incitement to racial hatred.

25. In view of the breadth of the offence of solicitation to murder and of common law incitement, the strict necessity for a new offence might be thought to be questionable. However, it is true that there is some uncertainty about the scope of the existing offences. The Law Commission, for example, is currently considering the law on encouragement and other offences of complicity. A clarification of the law is therefore in principle justifiable, even if it overlaps to some extent with other existing offences. We therefore accept, on balance, that the case has been made out by the Government that there is a need for a new, narrowly defined criminal offence of indirect incitement to terrorist acts.

LEGAL CERTAINTY AND PROPORTIONALITY

26. The Home Office's written evidence acknowledges, in Annex A, that it could be argued that the description of the offence in Clause 1 of the Bill is "insufficiently precise". This is said to engage the requirement in Article 7 ECHR that the criminal law should be sufficiently accessible and precise to enable an individual to know in advance whether his conduct is criminal. The Explanatory Notes state that the Home Office has concluded that the clause is compatible in this respect because the constituent parts of the offence are clearly laid out in a publicly accessible piece of primary legislation and the consequences of action falling within the offence are clearly formulated in the clause.[30] In its written evidence the Home Office says that the clause is judged to be compatible in this respect because the European Court recognises the need for criminal law to be flexible and acknowledges that general descriptions can be interpreted and applied by the courts.

Vagueness of "glorification"

27. The first source of legal uncertainty in the definition of the offence of encouragement of terrorism in clause 1 of the Bill is the inclusion of "glorification of terrorism" within the encouragement offence.[31] "Glorification" is defined in the Bill to include "any form of praise or celebration".[32] The legal certainty concern is that terms such as glorification, praise and celebration are too vague to form part of a criminal offence which can be committed by speaking. The Home Secretary draws a distinction between encouraging and glorifying on the one hand and explaining or understanding on the other. The last two, he says would not be caught by the new offence, because they do not amount to encouraging, glorifying, praising or celebrating.

28. In our view, the difficulty with the Home Secretary's response is that his distinction is not self-executing: the content of comments and remarks will have to be carefully analysed in each case, including the context in which they were spoken, and there will be enormous scope for disagreement between reasonable people as to whether a particular comment is merely an explanation or an expression of understanding or goes further and amounts to encouragement, praise or glorification. The point is made by the vast range of reaction to the comments of both Cherie Booth Q.C. and Jenny Tonge M.P. about suicide bombers. Some reasonable people thought they fell on one side of the Home Secretary's line, other reasonable people thought they fell on the other. We return to this issue when we discuss the use of the word "justify" in the list of unacceptable behaviours and the Government's interpretation of the Refugee Convention at paragraphs 116 to 118 and 177 to 179.

Overbreadth

29. Another source of legal uncertainty about the scope of the new offence is the breadth of the definition of "terrorism" for the purposes of the new offence. The Government accepts that the effect of the clause as drafted is to criminalise expressions of support for the use of violence as a means of political change anywhere in the world, but defends the offence having this scope with the argument, questioned by some who gave evidence to us, that there is nowhere in the world today where resort to violence, including violence against property, could be justified as a means of bringing about change. This argument is far from convincing and there are plenty of historical examples and indeed some present day resistance movements whose aims and acts—where they are targeted at sabotage—which have been justified and indeed supported by individuals who would not be considered to be encouraging terrorism currently but yet would be potentially liable to prosecution under the terms of this offence.

Lack of requirement of intent

30. In the Bill as introduced, the final sources of uncertainty about the scope of the offence stemmed from the lack of any requirement in the definition of the offence that there be an intention to incite the commission of a terrorist offence, and that the statement must cause a danger of a terrorist offence being committed. As originally drafted, the state of mind which had to be proved by the prosecution was the knowledge or belief that members of the public were likely to understand the statement as a direct or indirect encouragement or other inducement to acts of terrorism, or having reasonable grounds for such belief. This fell short of a requirement of a specific intention to incite the commission of a terrorist offence. The only reason given by the Home Secretary for not restricting himself to a requirement of intent in the definition of the offence was that this would make it more difficult to secure convictions for the offence. Whilst this is true it can also be argued that this is a good reason for its inclusion as a necessary safeguard against the offence being of too broad an application.

31. We consider that the Bill should require a subjective test of recklessness to be proved, as an alternative to intent, if the Bill is to satisfy the need for legal certainty in this respect. As a general rule, every crime requires a mental element, the nature of which depends on the nature and definition of the crime in question. The burden is upon the prosecution to prove the necessary criminal intent. The mental element required to constitute serious crimes is an intention to bring about the elements of the crime in question or recklessness. Recklessness arises in this context where the act in question involves an obvious and serious risk of causing injury or damage and either (1) the defendant fails to give any thought to the possibility of there being such a risk, or (2) having recognised that there is some risk involved, he nonetheless goes on to take it.

32. The above paragraph describes a test of subjective recklessness. At report stage in the Commons, an amendment, proposed by the Government, to clause 1 was made to the effect that the state of mind to be proved by the prosecution is that the person publishing a statement or causing it to be published by another "intends the statement to be understood" by members of the public as a direct or indirect encouragement or other inducement to acts of terrorism, or is "reckless as to whether or not it is likely to be so understood".[33] The cases in which a person is taken to be reckless include "any case in which he could not reasonably have failed to be aware of that likelihood".[34] This formulation is claimed by the Government to be a significant improvement over the original wording of the Bill and a safeguard against the offence being of too broad an application. However it does not represent a subjective test of recklessness, but an objective test. It can be argued that such a test actually provides little narrowing of the application of the offence compared to the original wording. At Commons report stage the Minister, Hazel Blears MP, said that "If we have only a subjective test, people will be able to say that they did not realise what the effect of their actions would be. We would then find it incredibly difficult to prosecute people who genuinely were encouraging other people, indirectly, to commit terrorist acts".[35]

33. We consider it necessary for this offence either to be restricted to intention or - if it is to be extended beyond intention—that it should be extended only to recklessness; and if it is so extended it should contain a subjective test of recklessness (that is, knowing or being aware of but indifferent to the likelihood that one's statement would be understood as an encouragement to terrorism), rather than the objective test currently contained within it.

Lack of requirement of danger that an act of terrorism will result

34. There is nothing in the definition of the offence which would require the prosecution to prove that the statement in question gave rise to any danger that an act of terrorism might be thereby committed.

35. It is essential for there to be a public interest defence to protect the right to freedom of expression against unnecessary interference. Most of the anti-terrorism offences which impinge on freedom of expression in the Terrorism Act 2000 include a "reasonable excuse" defence.[36] The European Court of Human Rights treats the availability of such a defence as a significant factor in determining whether the criminal restriction of freedom of expression is proportionate. In light of the concerns about the breadth of various of the new offences created by the Bill, and in particular the impact of the resultant uncertainty on freedom of expression, we believe that a "reasonable excuse" or "public interest" defence to this new offence should be included to make it less likely that offence would be incompatible with Article 10 ECHR.

36. With the amendment to introduce a requirement of intent or objective recklessness, we consider that the offence in clause 1 is not sufficiently legally certain to satisfy the requirement in Article 10 that interferences with freedom of expression be "prescribed by law" because of (i) the vagueness of the glorification requirement, (ii) the breadth of the definition of "terrorism" and (iii) the lack of any requirement of intent to incite terrorism or likelihood of such offences being caused as ingredients of the offence. To make the new offence compatible, it would in our view be necessary to delete the references to glorification, insert a more tightly drawn definition of terrorism, and insert into the definition of the offence requirements of intent and likelihood.

37. In this context we consider that the doubts of those witnesses who questioned the unqualified argument that there is nowhere in the world today where resort to violence, including violence against property, could be justified as a means of bringing about change cannot be dismissed out of hand. While the argument as stated refers to "today", the legislation is not limited to such a time frame. We observe that the argument could also have significant implications for foreign policy.

Compatibility with the Convention on the Prevention of Terrorism

38. In the Home Secretary's statement to the House of Commons on 20 July 2005, he said that legislating to create a new offence of indirect incitement to terrorism will enable the UK to ratify the Council of Europe Convention on the Prevention of Terrorism.[37] Article 5 of that Convention requires states to criminalise "public provocation to commit a terrorist offence." It provides:

"1. For the purposes of this Convention, 'public provocation to commit a terrorist offence' means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.

2. Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law."

39. The Explanatory Report to the Convention explains that the proposed offence of public provocation to commit a terrorist offence is designed to fill a lacuna identified in the international legal protections against terrorism.[38] It also explains that it allows States a certain amount of discretion with respect to the definition of the offence and its implementation.

40. However, as the Explanatory Report also makes clear,[39] Article 5(1) of the Convention on the Prevention of Terrorism requires that the scope of such an offence be restricted by two limitations. First, there must be a specific intention to incite the commission of a terrorist offence. And second, the making available of a message to the public must cause a danger that such offences may be committed. Article 12 of the Convention also requires states to respect relevant human rights obligations when creating the offences required by Article 5. It provides:

"Article 12 - Conditions and safeguards

1 Each Party shall ensure that the establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 of this Convention are carried out while respecting human rights obligations, in particular the right to freedom of expression, freedom of association and freedom of religion, as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.

41. As currently drafted, the proposed offence of encouraging terrorism in clause 1 of the Bill does not contain either of the two restrictions on the scope of the offence which Articles 5 and 12 of the Convention on the Prevention of Terrorism require. We consider that it therefore does not faithfully implement Article 5 of the Convention on the Prevention of Terrorism, for the reasons given above, and would be an obstacle to ratification of that Convention by the UK.

Dissemination of terrorist publications (clause 2)

42. Clause 2 of the Bill would create a new offence of dissemination of terrorist publications, carrying a maximum penalty of 7 years' imprisonment.

43. The offence would cover a number of ways of disseminating a publication. A publication would be a "terrorist publication" for the purposes of this offence if matter contained in it constitutes a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism (though only if it is likely to be understood as such by some or all of the persons likely to see it), or information of assistance in the commission or preparation of such acts.

44. It is a defence for a person to show that he had not examined the publication and that he had no reasonable grounds for suspecting that it was a terrorist publication. There is also the same defence for internet service providers as is provided in draft clause 1.

45. The Association of University Teachers is concerned that this clause will restrict university teachers who wish to distribute materials to their students on courses such as those concerning terrorism, history or international relations.

46. In our view the proposed new offence suffers from some of the same compatibility problems as those identified in relation to the proposed encouragement offence, including the lack of connection to incitement to violence, and the absence of any requirement that such incitement be either intended, carried out with reckless indifference, or likely.

47. This offence, being concerned with dissemination, engages Article 10's particular regard for the freedom of the media in a democratic society. In Erdogdu v Turkey, for example, the Court said

"where a publication cannot be categorised as inciting to violence, Contracting States cannot with reference to the prevention of disorder or crime restrict the right of the public to be informed by bringing the weight of the criminal law to bear on the media".[

48. For the same reasons given above in paragraph 35 we recommend that a "reasonable excuse "or "public interest" defence, which would provide protection of the legitimate activities of the media and academics, to this new offence be included to make it less likely that offence would be incompatible with Article 10 ECHR.

49. In our view the proposed new offence of "disseminating terrorist publications" is unlikely to be compatible with the right to freedom of expression in Article 10 ECHR in the absence of an explicit requirement that the dissemination of such publications amounts to an incitement to violence and is both intended and likely to do so. Amendments made in the Commons at report stage effected some narrowing of the offence, but it is essential for the Bill to set out the necessary mental elements of the offence so as to require proof of intention or recklessness. It is also essential for there to be a public interest defence to protect the right to freedom of expression against unnecessary interference (including the chilling effect of such a widely drawn offence).

Preparation of terrorist acts (clause 5)

50. The Home Secretary has said[42] that the proposed new criminal offence of "acts preparatory to terrorism" is designed to address the situation where there is "clear evidence of an intention to commit a serious terrorist act. For example, instructions on how to build a bomb, evidence of intention to acquire chemicals and evidence that terrorist related websites have been accessed", but "the precise details of the planned terrorist act are not known—indeed, the terrorists themselves may not have decided exactly how they will act."

51. The Joint Committee on Human Rights in the last Parliament considered this proposal in its 2004 Report, Review of Counter-terrorism Powers.[43] In light of the Newton Committee's observation that in the course of its inquiry nobody had suggested that it has been impossible to prosecute a terrorist suspect because of a lack of available offences, the fact that the Newton Report did not recommend the creation of any new criminal offences, and the Director of Public Prosecution's evidence to the effect that the wide range of criminal offences already available was adequate, the Committee concluded:[44]

"We have considered carefully whether there appears to be a need for new criminal offences in relation to terrorism. We are not yet persuaded that a new criminal offence of acts preparatory to terrorism would be a valuable addition to the existing range of offences or a means of ensuring that the current detainees could be dealt with through the criminal process. We find it difficult to see how the existence of such an offence would overcome the obstacles to prosecution identified by the Newton Report, in particular the problem that the evidence relied on in relation to a suspected international terrorist is usually intelligence material which is either inadmissible as evidence in a criminal court, or material which the authorities do not wish to disclose for fear of compromising sources or methods. In our view, that is an obstacle which needs addressing directly, and is unlikely to be helped by the creation of still more criminal offences."

52. The proposed new offence certainly appears to overlap with existing offences. Possession of an article for purposes connected with the commission, preparation or instigation of acts of terrorism[45] and collecting information of a kind likely to be useful to a person committing or preparing an act of terrorism[46] are already criminal offences under the present law. These would already seem to cover some of the conduct referred to by the Home Secretary as intended to be caught by the proposed new offence, with the exception of evidence of intention to acquire chemicals. Whether this is a genuine lacuna in the current law merits further exploration.

53. The conviction of Andrew Rowe on 23 September 2005 for possessing items which could be used in terror attacks, including instructions on firing a mortar, demonstrates the scope for using existing offences. Peter Clarke of the Metropolitan Police was quoted following the conviction as saying "We do not know when, what or where he was going to attack, but the public can be reassured that a violent man has been brought to justice."

54. Notwithstanding this overlap between the new and existing offences, the removal of the requirement to demonstrate an agreement between two or more people, which is a necessary ingredient of the common law offence of conspiracy, does overcome a real obstacle to prosecuting under the present law. We are therefore satisfied, on balance, that the necessity for the new offence has been made out.

Training for terrorism (clause 6)

55. By clause 6(1) of the Bill, a person commits an offence if he provides instruction or training in certain skills (including the "design or adaptation for the purposes of terrorism … of any method or technique for doing anything") and at the time he does so he "knows or suspects" that a person receiving the training or instruction intends to use the skills for terrorist purposes.

56. University teachers have expressed concern about the breadth of this offence.[47] We consider that, if the offence can be committed by suspecting that the trainee has a terrorist purpose, there ought to be a defence which would protect those who took reasonable steps to report their suspicion to the appropriate authorities. Without such a defence the offence can be committed where a person has reported their suspicion but the relevant authority has failed to act.

57. For these reasons and for those given above in paras 35 and 48 we therefore recommend that a "reasonable excuse" or "public interest" defence, to this new offence be included, to make it less likely that offence would be incompatible with Article 10 ECHR.

Attendance at a place used for terrorist training (clause 8)

58. Clause 8 of the Bill makes it a criminal offence to attend at any place, here or abroad, which is used for terrorist training, and in relation to which the person knows or believes, or could not reasonably have failed to understand, that terrorist training was being provided there.[48] It is immaterial whether the person concerned receives the instruction or training.[49] Concern has been expressed about the impact of this offence on the work of journalists and academics.

59. Criminalising mere attendance at a place used for terrorist training appears to us to be disproportionate, and in order to be compatible with Article 10 ECHR we consider it would be necessary to qualify the scope of the new offence, for example by requiring an intention to use the training for terrorist purposes.

Proscription (clauses 21 and 22)

60. Clause 21 of the Bill would extend the grounds for proscribing organisations under the Terrorism Act 2000 so as to include organisations whose activities include the unlawful glorification of the commission or preparation of acts of terrorism, or are carried out in a manner that ensures that the organisation is associated with statements containing any such glorification.[50] Glorification is defined in the same way as in clause 1.

61. Extending the power to proscribe in the way proposed raises the very same compatibility issues as the proposed new offence of encouraging and glorifying terrorism in clause 1: in particular, whether the definition of the new grounds for proscription are too vague and imprecise to satisfy the requirement that interferences with the right to freedom of expression and (in the case of proscription) association be both prescribed by law and proportionate.

62. The interference with freedom of expression through a prior restraint demands a very high level of justification, as has long been recognised in the common law of libel.[51] The European Court has emphasised that prior restraints upon expression require the most careful scrutiny.[52] The same applies to freedom of assembly. The fundamental problem with prior restraint is that self-censorship is required in order to avoid prosecution, and this particularly applies to the proscription of organisations.[53]

63. In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 ECHR or the right to freedom of association in Article 11 ECHR for the same reasons as those given above in relation to the proposed new offence of encouraging and glorifying acts of terrorism. If our recommendations concerning the proposed offence of glorification are accepted, this concern would be addressed.

Pre-charge detention (clauses 23 and 24)

64. Clauses 23 and 24 of the Bill introduce significant changes to the current regime governing pre-charge detention of those arrested on reasonable suspicion of being a terrorist. In the Bill as introduced the maximum period of detention without charge was extended from 14 days to three months, with a requirement that each period of extension had to be for seven days unless the application asked for a shorter period or the court authorising the extension was satisfied that there were special circumstances meaning that the extension of seven days was inappropriate. Amendments made at Commons report stage reduced the maximum period of detention from three months to 28 days, removed the requirement for the court to be satisfied that the circumstances making it inappropriate to grant an extension for seven days be "special", and made it a requirement that extensions beyond 14 days be approved by a High Court judge (or, in Scotland, a judge of the Court of Session).

EVOLUTION OF THE LAW ON PRE-CHARGE DETENTION IN TERRORIST CASES

65. The Prevention of Terrorism Act (Temporary Provisions) Act 1984 provided for detention without charge for up to seven days without judicial authorisation. In 1988 this was held by the European Court of Human Rights to violate the right to be brought promptly before a judge under Article 5(3) ECHR.[54]

66. The UK derogated from Article 5(3) in order to keep its period of seven day pre-charge detention. In 1993 that derogation was upheld by the European Court of Human Rights as being strictly required by the exigencies of the situation.[55]

67. The Terrorism Act 2000 kept the period of pre-charge detention in terrorism cases at seven days, but introduced judicial control over the period of detention, which enabled the UK to withdraw its derogation from Article 5 ECHR.

68. The Criminal Justice Act 2003 extended the maximum period of pre-charge detention from seven to fourteen days, again subject to judicial authorisation.[56]

THE CURRENT POSITION

69. Under the present law (Terrorism Act 2000), a person who has been arrested on reasonable suspicion of being a terrorist[57] can be detained by police for up to 48 hours from the time of their arrest.[58] Their detention is periodically reviewed by a review officer, with the first review as soon as reasonably practicable after arrest and subsequent reviews at intervals of not more than 12 hours.[59] A review officer can authorise continued detention only if satisfied that one of the grounds for continued detention exists. The grounds for such continued detention include that it is necessary to obtain relevant evidence, whether by questioning him or otherwise, and to preserve relevant evidence.[60] The review officer must also be satisfied that the investigation in connection with which the person is being detained is being conducted diligently and expeditiously.[61] The detained person, or their solicitor, is entitled to make representations to the review officer before he or she decides whether to authorise continued detention.[62]

70. The police can apply to a designated District Judge (Magistrates' Court) for a "warrant of further detention".[63] Such a warrant shall authorise the further detention of the detainee for a specified period up to a maximum of seven days from the time of his or her arrest[64] and the period specified in such a warrant can be extended and further extended by a court up to a maximum of 14 days from the time of arrest.[65] The judge may only issue a warrant of further detention, or extend or further extend a warrant, if satisfied that there are reasonable grounds for believing that the further detention is necessary to obtain relevant evidence, whether by questioning him or otherwise, or to preserve relevant evidence, and that the investigation is being conducted diligently and expeditiously.[66] A person must be released straight away if at any time the reason for his detention ceases to apply before the extension is at an end.[67]

71. There are certain procedural safeguards for the detainee in the process of obtaining or extending a warrant of further detention. They are required to be given notice of the fact that an application for a warrant of further detention has been made, the time at which it is to be heard and the grounds upon which further detention is sought.[68] They are also to be given an opportunity to make oral or written representations to the judge and are entitled to be legally represented at the hearing.[69]

72. However, the safeguards are also subject to some important limitations. The judge hearing the application for a warrant of further detention, for example, has a very broad discretion to exclude the detainee and his representative from any part of the hearing.[70] The grounds on which such exclusion can be justified are not specified. There is also power for the judge, on application by the police, to order that specified information upon which the police intend to rely be withheld from the detainee and his representative,[71] if satisfied that there are reasonable grounds for believing that if the information were disclosed it would have one of a number of specified consequences, such as interfering with or harming evidence of an offence, hindering the recovery of property, hindering the apprehension, prosecution or conviction of other terrorist suspects, and making more difficult the prevention of an act of terrorism.

THE EFFECT OF THE BILL

73. The Bill as introduced made three significant changes to the regime for pre-charge detention for terrorist suspects:

(1) it increased the maximum period of pre-charge detention for terrorist suspects from the current limit of 14 days to 3 months;[

anything up to

must be

As noted above, amendments made at Commons report stage reduced the maximum period of pre-charge detention to 28 days and removed the requirement that a judicial authority be satisfied that circumstances which might make it inappropriate to extend a period of detention by a further seven days be "special".

THE HUMAN RIGHTS IMPLICATIONS

74. This part of the Bill engages three overlapping aspects of the right to liberty in Article 5 ECHR:

i. the requirement in Article 5(1) that deprivation of liberty must be "in accordance with a procedure prescribed by law" and "lawful", which imports a requirement that the detention must be neither arbitrary nor disproportionate;

ii. Article 5(2) ECHR, the right of an arrested person in Article 5(2) ECHR to be informed "promptly" not only of the reasons for his arrest but also "of any charge against him"; and

iii. the right of a person arrested on reasonable suspicion of having committed an offence to be brought promptly before a judge, under Article 5(3) ECHR.

75. The Explanatory Notes to the Bill as introduced stated that the Home Office had concluded that detention under the Bill was compatible with Article 5 because further extension of detention was at the discretion of a judicial authority, and the person had to be released straight away if the reason for his detention ceases to apply.[75]

76. The written evidence we received from the Home Office in response to our call for evidence went a little further than the Explanatory Notes to the Bill. It said (in Annex A) that clauses 23 and 24 were judged to be compatible "in the absence of European Court jurisprudence on the length of time for which a person may be detained pending charge."

77. The justifications relied on by the Government for extending the maximum period of pre-charge detention to three months were summarised in a document annexed to the letter dated 15 September from the Home Secretary and in a memorandum dated 6 October 2005 from Assistant Commissioner Andy Hayman.

78. The case for change which is made in those documents, in short, was that the threat from international terrorism is now so completely different, particularly in the magnitude of the potential harm and the indiscriminate nature of the targets, that public safety demands earlier intervention, with the result that there is less time available for investigation and evidence gathering prior to arrest. This means that in some extremely complex cases "evidence gathering effectively begins post-arrest". A longer period of pre-charge detention is therefore required in order to enable that evidence-gathering to take place.

79. In addition, there are said to be a number of features of modern terrorism which require the possibility of a longer period of pre-charge detention, such as its international nature, which requires enquiries to be undertaken in many jurisdictions, the frequent use of false identities, the need to employ interpreters, the need to decrypt large numbers of computer hard drives and to analyse the product as well as disclose prior to interview, the need to make safe premises where extremely hazardous material may be found, the need to obtain and analyse communications data from service providers, the need to allow time for religious observance by detainees, and the fact that suspects often use one firm of solicitors which causes delay in the process.

80. We also heard oral evidence on this important issue from Deputy Assistant Commissioner Peter Clarke, Head of the Metropolitan Police Anti-Terrorist Branch, and Chief Constable Ken Jones representing the Association of Chief Police Officers which has been pressing for the change. In their evidence, in addition to the operational reasons for the extension already summarised above, they stressed that the threat from international terrorism was fundamentally different from the type of terrorist threat faced by the UK in the past, in particular in that "we now have people prepared to use suicide as a weapon and an ideological motivation", and the terrorist organisation the police are dealing with is shapeless, amorphous and constantly changing.[76] They also emphasised that the existing powers are only used in the most serious of complex cases,[77] that the new extended period would only be used very selectively and very carefully, "in the most exceptional circumstances",[78] and that there was no intention on the part of the police to take their time with the investigation just because they had more time: "we desperately hope to resolve them inside the seven days never mind the 14 days or beyond".[79] They disagreed that the problem was one of resources: although more resources would help, they could not solve the problem entirely, because there was an irreducible amount of sequencing involved in any complex investigation, involving discrete stages in the collection, retrieval and analysis of information which then has to be incorporated into an effective interview strategy for the detainee.[80]

81. As far as alternatives to extended detention were concerned, the police saw a number of problems with bringing lesser charges and then continuing to investigate more serious offences, including the possibility that a less serious charge might not be available, the risk of bail being granted and the regime governing investigation post-charge.[81] They regarded the control order regime as a useful complement for pre-charge detention, not a substitute,[82] because "the degree of control afforded by a control order might not always be appropriate".[83] Although minded in principle to endorse the use of intercept material as evidence, the risks and difficulties of doing so "within the current legal landscape" remained too great so that at present the police remained uncomfortable about the use of such evidence at trial and preferred the status quo of prohibition, though they hoped to have made progress on this by the end of the year.[84]

82. Lord Carlile, the independent reviewer of the operation of the terrorism legislation, lends considerable support to the case put forward by the police for an extension to 90 days. He has reported that he is personally aware of "several operations" in which arresting early in terrorist cases, in order to avoid the possibility of the terrorists carrying out their acts with dreadful consequences, has led to problems gathering enough evidence after arrest to be able to charge at all, or at the appropriate criminal level.[85] He also reports that the evidential issues requiring prolonged attention in terrorism cases had been demonstrated to him by the police in England and Wales as "real problems", and that he is "satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest".[86] He concluded that as a maximum three months is "probably a practicable and sensible option, all other things being equal." His main concern was with the adequacy of the safeguards for the suspect against arbitrary or over-long detention.

83. By contrast, none of the NGOs from which we received or heard evidence considered the case to have been made out for the proposed extension of pre-charge detention. Liberty accepted that there may be circumstances where the police feel they need to act sooner against suspects because of the nature of the offences they are dealing with,[87] but considered that more appropriate and proportionate ways of meeting the police's concerns are available, including by providing the police and security services with additional resources, relaxing the ban on the admissibility of intercept evidence, bringing lesser charges while continuing to investigate more serious terrorist allegations, amending the PACE Codes to allow interviews to take place after charge where new forensic evidence becomes available and there are legitimate questions to put to a suspect, and introducing conditional bail to enable stringent conditions to be attached to police bail in terrorism cases. They were also concerned that the justifications relied on by the police apply equally to other types of criminal investigation. The Law Society had similar concerns and was also opposed to any extension of the period of pre-charge detention.

84. Professor Walker considered the justifications offered for an increase in the maximum period of pre-charge detention and concluded that "a proportionate case is not made out".[88] He accepted that there were operational difficulties faced by the police, but pointed to the lack of evidence that the problems relied on by the police have prevented prosecution in any given case. He argued that while there may have been a quantitative change since October 2003 when the period was last extended to 14 days, placing a greater strain on police resources, there had not been any significant change in qualitative terms: all the reasons now relied on by the police as reasons for the extension were also relied on in the debate in October 2003 for the extension from seven to 14 days.[89] He also claimed that there is a lack of proportionality between the claim of a need for three months' detention and the progress in actual cases to date. Professor Walker advocated use of a combination of control orders, to enable further evidence-gathering to proceed whilst the suspect is subject to severe restrictions on their liberty, the use of lesser charges to enable questioning to continue in relation to possible more serious charges, looking at the bail provisions with a view perhaps to having a presumption against bail in terrorism cases, and devising a procedural mechanism for post-charge questioning in the form of a judicially managed examination, modelled on the procedure in the Explosive Substances Act 1883, where a suspect is brought before a court for further questioning, but the function of the judge is not to become an investigator but to umpire the questioning of the suspect.[90]

THE PERIOD OF DETENTION

85. As the Government correctly notes, there is no European Court of Human Rights jurisprudence setting a clear limit on the length of time for which a person may be detained pending charge. The constraints in the European Court's Article 5 case-law are derived from the requirements that a person be informed "promptly" after his arrest of any charge against him, and that the detention not be disproportionate, and regulated by sufficient safeguards to ensure that the detention is not arbitrary. However, we note that in many cases the European Court has found violations of Article 5 in cases of detention for periods less than 14 days.

86. Other constraints on the length of pre-charge detention derive from other substantive guarantees in the Convention, including the right not to be subjected to inhuman and degrading treatment in Article 3, and the right to a fair hearing in Article 6(1). Some respondents to our call for evidence have pointed out possible human rights concerns which might arise as a result of such a long period of pre-charge detention. For example, it has been suggested that such a lengthy period of police custody may lead to detainees suffering inhuman and degrading treatment given the inappropriateness of police custody facilities holding detainees for lengthy periods. The police in their oral evidence accepted that the facilities available to the police are not suitable for such a lengthy period of detention and recommended that any detention beyond 14 days should be in prison.[91] It has also been suggested in evidence to us that statements obtained from suspects who have been detained for interrogation for a period much longer than the current maximum of 14 days are increasingly likely to be regarded as unreliable by courts and therefore excluded under s. 78 of the Police and Criminal Evidence Act. Again, the police in their evidence very fairly accepted that the longer a person has been in custody the greater the risk that any statement by them will be regarded as unreliable by the courts.[92] However, the likelihood of this happening is tempered by the reality of a lack of co-operation from such individuals and the advice from Lord Carlile who says:

However, he goes on to say "the reality is that most suspects exercise their right of silence in interview".[94]

87. In relation to the Bill as introduced, on the important question of whether a maximum pre-charge detention period of 90 days would be compatible with the UK's obligations under the Convention (notably Article 5), we concluded that three months would have been clearly disproportionate and, in view of the deficiencies in the procedural safeguards for the detainee, which the Bill did nothing to improve, would also have been accompanied by insufficient guarantees against arbitrariness. It would also in our view have risked leading to independent breaches of Article 3 ECHR, and to the inadmissibility at trial of statements obtained following lengthy pre-charge detention. Similar, if less substantial risks obtain, in our view, even in relation to the 28-day maximum period now allowed for in the Bill.

88. We recognise that there will be a very wide range of views in Parliament and beyond as to the cogency of the justifications put forward by the police in their written and oral evidence, and on the acceptability of varying maximum periods of detention, including the 28 days now in the Bill. We accept that a longer period than the current 14 day limit is in principle capable of justification by the sorts of considerations put forward in the evidence from the police, concerning the volume and complexity of the evidence in modern terrorist cases, and the different nature of the threat from terrorists today compared to in the past. The police have the difficult task of investigating actual and potential terrorist offences and due regard must be given to their evidence about the nature of the threat and the means needed to tackle it. However, it is, of course, ultimately for Parliament and the Courts to decide whether the means proposed are proportionate to the legitimate aim pursued.

89. The Convention's protection of liberty as a fundamental value in a democratic society prescribes the framework in which the assessment of such evidence should take place. Starting from a presumption in favour of liberty, which is central also to the common law tradition, there is a heavy onus on the state to justify, by clear evidence, any measure which reduces liberty. We therefore consider it to be our task to subject the justifications offered to stringent scrutiny. We note that the Commons Home Affairs Committee has begun an inquiry into terrorism detention powers, including the police case for an extension of the maximum period. We are willing to co-operate with them on it.

90. In our view, the most important evidence capable of justifying an extension of the current maximum of 14 days would be firm statistical evidence demonstrating the number of actual cases in which the current 14 day limit had either prevented charges from being brought at all, or required the police to bring the wrong or inappropriate charges. The police in their oral evidence, when pressed to provide statistics or examples of cases where they felt particularly under pressure after the 14 days and would have liked longer, said "there are numerous cases, many dealing with the decryption of data and the exploitation of computer material, where we would have liked to have longer".[95] Mr. Clarke very fairly said "I cannot sit here and say X number of terrorists have evaded justice because of the lack of provision"[96] and Mr. Jones similarly said "it is a good question and I tried to have some work done on this, … it is such a small number of cases that we are talking about … and we are hopefully dealing with a tiny number of cases in the future, but the statistical rigour that might perhaps bolster this is pretty difficult to give you. We did try very hard to do that but without delving into some very difficult cases it is hard to explain".[97] There was no clear statistical evidence in Lord Carlile's recent report.[98] It is clear that we are not dealing with a numerically large or statistically significant number. Such cases will continue, hopefully, to be rare. As such we have to rely on the qualitative analysis of such difficulties as relayed to us by the police and the Crown Prosecution Service.

91. We were therefore unable to find the concrete evidence for which we were looking in the material provided or the answers given. We also found persuasive the evidence of those who suggested that there were alternative means of achieving the police's objective, without extending the period of pre-charge detention, in particular by the use of a combination of lesser charges (carrying a likelihood of remand in custody) and control orders, and relaxing the restriction on post-charge questioning, with appropriate safeguards, all of which would enable the police to continue their investigations without prejudicing public safety.

92. Recognising that this is a matter on which the relevant legal standards are not very concrete, but bearing in mind the heavy onus of justification on the state where it is depriving of liberty, in our view the proportionality case for any increase from the current 14 day limit has not so far been made out on the evidence. We do not, however, rule out the possibility that such evidence might be produced which would persuade us that a proportionate extension of the maximum period of detention would be justified, subject to the necessary improvements in procedural safeguards for the detainee being made.

THE ADEQUACY OF THE SAFEGUARDS FOR THE DETAINEE

93. The longer the possible period of pre-charge detention, the more important are the procedural safeguards for the detainee to guarantee against arbitrary or disproportionate detention. When the maximum period was increased from 7 to 14 days in the Criminal Justice Act 2003, our predecessor Committee drew attention to the deficiencies in those safeguards and warned of the potential for a lack of fairness in the decision-making system and consequent risk of a violation of Article 5(1) ECHR.[99] That warning was not heeded by the Government. There has been no amendment of the relevant provisions of Schedule 8 of the Terrorism Act 2000 which prescribe the procedure for judicial authorisation of extended detention.

94. Lord Carlile in his recent report doubted the ECHR compatibility of the current procedural safeguards for the detainee given the length of extended detention which is now envisaged. In his view, the existing procedure for judicial scrutiny by district judges of applications to extend detention periods was suitable for short interferences with liberty, but would not be adequate for longer periods. He said:[100]

"Inevitably the material they see is likely to be one-sided, and they have only modest opportunity for in-depth scrutiny. Though they can ask questions and do seek further information, they have no role in the inquiry under way and they have no independent advice or counsel before them. … A more searching system is required to reflect the seriousness of the State holding someone in high-security custody without charge for as long as three months."

95. Amnesty in its evidence made the similar point that judicial scrutiny of extensions is simply a review of the reasons adduced by the police of the need for such extension, and it is already not particularly onerous for the police to convince the judiciary of the need for an extension of detention. Professor Walker similarly told us that an English judge will find it difficult to gainsay what the police say about the exigencies of the investigation. The police in their evidence to us could not bring to mind a case where an application for an extension had been totally refused, although they said that it was very often the case that the district judge would reduce the amount of time that they were asking for, for example from four or five days to 48 hours.[101]

96. If there is to be any extension of the maximum period of pre-charge detention beyond the current 14 days, the question therefore arises as to what protections there ought to be, in the way of procedural safeguards for the detained person. In our view any further increase beyond 14 days will require the procedural deficiencies in the current regime to be addressed in order to avoid incompatibility with Article 5 ECHR. The Home Secretary said that the Government was sympathetic to the point that the judicial scrutiny of the period of detention should be supervised by a higher level judge than a district judge,[102] and, as noted above, amendments to the Bill made at Commons report stage now require extensions of detention beyond 14 days to be made by a High Court judge. This is some improvement on the current position, but it does not in our view meet the substance of this concern about the adequacy of the procedural safeguards for the detainee.

97. Lord Carlile suggested that for the system of protection for the detained person to be sufficiently strong was likely to require a shift to a more investigative approach of the kind first envisaged in the Newton Report.[103] As Lord Carlile envisaged it, this would involve a security-cleared judge with power to require specific investigations to be pursued, a suitable opportunity for written and oral defence representations against extended detention, and the use of a special advocate to make representations on the interests of the detained persons and to assist the judge.[104]

98. The Home Secretary indicated that this was not a realistic possibility, because although he personally thought there was a lot to be said about an investigating judge regime rather than the current adversarial system, there was considerable disagreement within Government about shifting to an inquisitorial regime for terrorist cases.[105] Most of the NGOs were also opposed to the idea. The Law Society, Liberty and JUSTICE were all opposed to establishing a judicial role in the investigation of terrorist crime. One of the principal grounds offered for opposing the suggestion is that this would represent a major change from the UK's adversarial system. This does not seem to us to be enough of a reason to reject the possibility that there may be scope to devise a novel procedure borrowing elements from the investigating judge model used in some European countries. We note, however, some of the concerns expressed about such a model, in particular the lack of training available for judges on how to conduct investigations, and the appropriateness of deploying a special advocate in a case where personal liberty is at stake.[106] We intend to return to the question of the possible use of investigating judges in terrorism cases in a later report.

99. In the meantime, bearing in mind that what is at stake is individual liberty, in our view, any increase beyond the current 14 day maximum would at the very least require amendment of the relevant provisions of the Terrorism Act 2000 which currently enable detention to be extended in the absence of the detainee or his or her legal representative and on the basis of material not available to them.[107] These two procedural deficiencies should be remedied. We consider that there should be nothing less than a full adversarial hearing before a judge when deciding whether further detention is necessary, subject to the usual approach to public interest immunity at criminal trials, including when necessary the use of a special advocate procedure when determining whether a claim to public interest immunity is made out. Such safeguards would make it much less likely that the UK would be found in breach of the right to liberty guaranteed in Article 5 of the Convention.

100. Furthermore, in order for the safeguards to be adequate, the provision in the Bill for, in effect, a presumptive minimum of 7 day extensions also requires deleting. The presumption should be in favour of liberty not detention. The court which authorises further detention should have an unfettered discretion to decide the period of the extension (within the limit), as it does under the current law. We welcome amendments made at Commons report stage to provide for this and also to meet our concern that the correct level of judge to decide these issues is a High Court judge.

101. We consider that these issues surrounding an extension of pre-charge detention are an illustration of avoiding the damages of counter-productivity to which we refer in paragraph 9.

102. We would wish a higher level of police officer to be responsible for the application to the judge, such as an Assistant Chief Constable or Chief Constable.

THE ADDITIONAL GROUND FOR EXTENSION

103. In our view, the new ground for extending detention does not of itself raise any human rights issues. It is already a ground for extending detention that there are reasonable grounds for believing that further detention is necessary to obtain relevant evidence whether by questioning him or otherwise, and the new ground appears to us to be no more than a sensible clarification of the existing ground to cover cases where evidence has not yet been obtained because of a process which is being conducted.

19 Appendix 4 Back

20 Q 2 Back

21 Clause 1 of the Bill Back

22 Clause 1(1) Back

23 By clause 1(2) of the Bill Back

24 Clause 1(2)(b) Back

26 HC Deb, 9 November 2005, cols. 392-3 Back

27 Hogefeld v Germany, App. no. 35402/97 (20 January 2000) Back

28 Q 8 Back

29 [2004] EWCA Crim 456 Back