1. Copy of letter from Rt Hon Charles
Clarke MP, Secretary of State for the Home Department to Rt Hon
David Davis MP and Mark Oaten MP with attachments re draft clauses
to the Terrorism Bill on glorification and the issue of pre-charge
detention period
I wrote to you on 15 September enclosing draft
clauses for the Terrorism Bill.
I am sure that there are many points arising
from them that we will want to debate during the Bill's Parliamentary
passage but I think it is fair to say that most attention has
focused on two particular issues the proposed new offence of glorification
of terrorism and the proposal to increase the maximum pre-charge
detention period. It might therefore be helpful to bring you up
to date on these two issues.
We have looked to what could be done to ameliorate
some of the concern that has been expressed about the proposed
glorification offence and think we have found a way.
What we have done is to move glorification into
clause 1 of the Bill and removed what was previously clause 2. The
effect of this is to make it an offence to make a statement glorifying
terrorism if the person making it believes, or has reasonable
grounds for believing, that it is likely to be understood by its
audience as an inducement to terrorism. Questions about which
terrorist offences are covered by the glorification offence, and
from how long ago, also disappear because the test of what constitutes
a glorifying offence is based on the person making the statement's
belief as to its effect on the audience. I hope you will agree
that this is a more satisfactory formulation.
I attach a draft version of clause 1 with these
changes made and would be interested in your reaction.
Turning to the issue of the maximum pre-charge
detention period, I remain convinced, for the reasons set out
in my previous letter, that we need to increase the limit to three
months. I would expect that limit to be reached only in the very
rarest of cases but nonetheless I believe that there will in the
future be such cases where the various factors which I outlined
previously will mean that such a detention period is warranted.
The judicial oversight which will exist will mean that detention
will only be possible if it is necessary and if the investigation
is being carried out as expeditiously as possible.
To inform the debate I enclose some statistics
which we recently sent to the Home Affairs Committee. They show,
I think, that the police do make sparing use of their existing
detention powers and I would expect them to do likewise with the
amended powers. I also attach a paper which has been prepared
by the Metropolitan Police which affirms the case for, and their
support for, the proposed extension.
I am copying this letter and attachment to the
Chairs of the Home Affairs Committee, John Denham, the Intelligence
and Security Committee, Paul Murphy, the Joint Committee on Human
Rights, Andrew Dismore, the Constitutional Affairs Committee,
Alan Beith and the Independent Reviewer of.the Terrorism Act 2000,
Lord Carlile. I am also placing a copy in the Library of the House
of Commons and on the Home Office website.
6 October 2005
DRAFT OF
A BILL
TO
Make provision for and about offences relating
to conduct carried out, or capable of being carried out, for purposes
connected with terrorism; to amend enactments relating to terrorism;
to amend the Intelligence Services Act 1994 and the Regulation
of Investigatory Powers Act 2000; and for connected purposes.
Be it enacted by the Queen's most Excellent
Majesty, by and with the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows:-
PART 1
OFFENCES
Encouragement etc. of terrorism
1. Encouragement of terrorism
(1) A person commits an offence if —
(a) he publishes a statement or causes another
to publish a statement on his behalf; and
(b) at the time he does so
(i) he knows or believes, or
(ii) he has 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 or Convention
offences.
(2) For the purposes of this section the
statements that are likely to be understood by members of the
public as indirectly encouraging the commission or preparation
of acts of terrorism or Convention offences include every statement
which—
(a) glorifies the commission or preparation
(whether in the past, in the future or generally) of such acts
or offences; and
(b) 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 in existing circumstances.
(3) For the purposes of this section the
questions what it would be reasonable to believe about how members
of the public will understand a statement and what they could
reasonably be expected to infer from a statement must be determined
having regard both—
(a) to the contents of the statement as a
whole; and
(b) to the circumstances and manner in which
it is or is to be published.
(4) It is irrelevant for the purposes of
subsections (1) and (2)—
(a) whether the statement relates to the
commission, preparation or instigation of one or more particular
acts of terrorism or Convention offences, of acts of terrorism
or Convention offences of a particular description or of acts
of terrorism or Convention offences generally; and
(b) whether any person is in fact encouraged
or induced by the statement to commit, prepare or instigate any
such act or offence.
(5) In proceedings against a person for
an offence under this section it is a defence for him to show—
(a) that he published the statement in respect
of which he is charged, or caused it to be published, only in
the course of the provision or use by him of a service provided
electronically;
(b) that the statement neither expressed
his views nor had his endorsement (whether by virtue of section
3 or otherwise); and
(c) that it was clear, in all the circumstances,
that it did not express his views and (apart from the possibility
of his having been given and failed to comply with a notice under
subsection (3) of that section) did not have his endorsement.
(6) A person guilty of an offence under
this section shall be liable—
(a) on conviction on indictment, to imprisonment
for a term not exceeding 7 years or to a fine, or to both;
(b) on summary conviction in England and
Wales, to imprisonment for a term not exceeding 12 months or to
a fine not exceeding the statutory maximum, or to both;
(c) on summary conviction in Scotland or
Northern Ireland, to imprisonment for a term not exceeding 6 months
or to a fine not exceeding the statutory maximum, or to both.
(7) In relation to an offence committed
before the commencement of section 154(1) of the Criminal Justice
Act 2003 (c. 44), the reference in subsection (6)(b) to 12 months
is to be read as a reference to 6 months.
STATISTICS ON
ARRESTS UNDER
THE TERRORISM
ACT 2000
[These statistics are compiled from recent police
records and are therefore subject to adjustment as cases go through
the system]
Key Facts and Stats
Police records show that from 11 September 2001
until 30 September 2005, 895 people were arrested under the Terrorism
Act 2000.
Charges
138 of these were charged under the Act. Of
these, 62 were also charged with offences under other legislation.
156 were charged under other legislation. This
includes charges for terrorist offences that are already covered
in general criminal law such as murder, grievous bodily harm and
use of firearms or explosives.
Convictions
23 Individuals have been convicted of offences
under the Terrorism Act.
Other Information:
The following table gives the outcome for those
not covered above—
| Outcome |
|
| Transferred to Immigration Authorities |
63 |
| On Bail to Return | 20 |
| Cautioned | 11 |
| Received a final warning | 1
|
| Dealt with under Mental Health Legislation |
8 |
| Dealt with under Extradition Legislation |
1 |
| Returned to Prison Service Custody | 1
|
| Transferred to PSNI Custody | 1
|
| Released Without Charge | 496
|
| |
The maximum period of detention pre-charge was extended to
14 days with effect from 20 January 2004. Between that date and
4 September 2005, 357 people have been arrested of whom 36 have
been held for in excess of 7 days. The breakdown of these cases
is as follows:
2004
| Period | Number held for
this period
| Charged | Released
without charge
|
| 7-8 days | 3 | 1
| 2 |
| 8-9 days | 0 |
| |
| 9-10 days | 11 | 6
| 5 |
| 10-11 days | 1 | 0
| 1 |
| 11-12 days | 0 |
| |
| 12-13 days | 0 |
| |
| 13-14 days | 9 | 9
| 0 |
| 2005 | | |
|
| Period | Number held for
this period
| Charged | Released
without charge
|
| 7-8 days | 1 | 1
| 0 |
| 8-9 days | 0 |
| |
| 9-10 days | 5 | 4
| 1 |
| 10-11 days | 1 | 1
| 0 |
| 11-12 days | 1 | 1
| 0 |
| 12-13 days | 2 | 1
| 1 |
| 13-14 days | 2 | 2
| 0 |
| | |
|
Letter from Andy Hayman QPM MA, Assistant Commissioner,
Metropolitan Police to Rt Hon Charles Clarke MP, Secretary of
State for the Home Department
COUNTER TERRORISM LEGISLATION
Thank you for giving me the opportunity to comment on the issue
of extending the maximum period of detention.
You will see from the attached briefing note the operational
requirements for extension to the maximum period of detention
without age to three months, for which I am a strong advocate:
I do appreciate that there may be concern in some quarters
regarding whether this is too long a period.
The checks and balances to be imposed by the judiciary will,
I believe, ensure that investigations are conducted in an expeditious
manner and detention on only continues where necessary.
6 October 2005
Annex
ANTI TERRORIST BRANCH (SO13)
THREE MONTH
PRE-CHARGE
DETENTION
This paper will set out the issues from a police perspective
which are driving the need for a pre-charge period of detention
in terrorist cases which, subject to regular judicial oversight,
might extend for a period of up to three months. The paper will
be divided into three sections as follows:
— The overall case for change from current arrangements
— Actual case studies derived from recent investigations
— A theoretical case study drawing together many
of the issues into one "storyline".
The Case for Change
Throughout the campaign waged by Irish terrorists, the concept
of counter-terrorist investigation focussed on interdicting the
terrorist at or near the point of attack. This enabled the best
evidence to be obtained, in terms of catching the suspect in possession
of terrorist material, or at a point where the evidence as to
his intentions was unequivocal. In the times when the requirements
of disclosure were not so stringent, this approach enabled the
intelligence agencies, their techniques and investigations to
be shielded from exposure in judicial proceedings.
The threat from international terrorism is so completely
different that it has been necessary to adopt new ways of working.
Irish terrorists deliberately sought to restrict casualties for
political reasons. This is not the case with international terrorists.
The advent of terrorist attacks designed to cause mass casualties,
with no warning, sometimes involving the use of suicide, and with
the threat of chemical, biological, radiological or nuclear weapons
means that we can no longer wait until the point of attack before
intervening. The threat to the public is simply too great to run
that risk. During every counter-terrorist investigation a balance
is struck between the maintenance of public safety, the gathering
of evidence and the maintenance of community confidence in police
actions. Public safety always comes first, and the result of this
is that there are occasions when suspected terrorists are arrested
at an earlier stage in their planning and preparation than would
have been the case in the past. In one recent case it was not
possible to be sure that the terrorists were not about to mount
an attack, and so the decision was taken to arrest. At that point
there were more than ample grounds to make the arrests but there
was little or no admissible evidence. That had to be gathered
dining the following 14 days, with key parts of the evidence emerging
by chance from a mass of material at the very end of that period.
The heart of the issue is this. Public safety demands earlier
intervention, and so the period of evidence gathering that used
to take place pre-arrest is often now denied to the investigators.
This means that in some extremely complex cases, evidence gathering
effectively begins post-arrest, giving rise to the requirement
for a longer period of pre-charge detention to enable that evidence
gathering to take place, and for high quality charging decisions
to be made.
Aside from the changed concept of operation described above,
there are a number of specific features of modern terrorism that
drive the need for an increased period of time to be available
before the decision to charge or release can properly be made.
These can be summarised as follows:
— The networks are invariable international, indeed
global in their origins and span of operation. Enquiries have
to be undertaken in many different jurisdictions, many of which
are not able to operate to tight timescales.
— Establishing the identity of suspects often takes
a considerable amount of time. The use of forged or stolen identity
documents compounds this problem.
— There is often a need to employ interpreters to
assist with the interview process. The global origins of the current
terrorist threat has given rise to a requirement, in some recent
cases, to secure the services of interpreters who can work in
dialects from remote parts of the world. Such interpreters are
difficult to find. This slows down the proceedings, restricting
the time available for interview.
— Terrorists are now highly capable in their use
of technology. In recent cases, large numbers (hundreds) of computers
and hard drives were seized. Much of the data was encrypted. The
examination and decryption of such vast amounts of data takes
time, and needs to be analysed before being incorporated into
an interview strategy. This is not primarily a resourcing issue,
but one of necessarily sequential activity of data capture, analysis
and disclosure prior to interview.
— The forensic requirements in modern terrorist
cases are far more complex and time consuming than in the past,
particularly where there is the possibility of chemical, biological,
radiological or nuclear hazards. Following the discovery of a
"bomb factory" in Yorkshire after the 7 July attacks
in London, it was over 2 weeks before safe access could be gained
for the examination to begin. It took a further 6 weeks to complete
the examination. The Al Qaeda methodology of mounting simultaneous
attacks inevitably extends the time it takes for proper scene
examination and analysis.
— The use of mobile telephony by terrorists as a
means of secure communication is a relatively new phenomenon.
Obtaining data from service providers and subsequent analysis
of the data to show linkage between suspects and their location
at key times all takes time.
— There is now a need to allow time for regular
religious observance by detainees that was not a feature in the
past. This too causes delay in the investigative process during
pre-charge detention.
— A feature of major counter-terrorist investigations
has been that one firm of solicitors will frequently represent
many of the suspects. This leads to delay in the process because
of the requirement for consultations with multiple clients.
All of the above factors have contributed to the requirement,
in the most serious and complex cases, for there to be the possibility
of extended detention for the purposes of investigation prior
to point of decision about charging or release. It is not an issue
that can be resolved simply by putting more resources into the
investigation. Certainly this can help, in turns of ensuring that
as much material as possible is available to investigators and
to prosecutors. However, the process of staged disclosure to the
defence, consultation with clients to take instructions, interview
and assessment is essentially sequential, which the application
of extra resources will not materially shorten.
Case Studies
Operation Springbourne 2002-05—the so-called
"ricin" plot. This was a wide ranging investigation
into a network of Algerian extremists who were engaged in terrorist
activity. Some of this activity was clearly terrorist in nature,
but at the same time there was a great deal of peripheral supporting
activity involving the use of forged documents, cheque and credit
card fraud and the like. The investigation ran over, several months
and spanned not only the UK but some 20 other jurisdictions as
well. Many of those jurisdictions (especially those with an inquisitorial
system) work to extended timescales in such cases, and cannot
respond to our enquiries within the timeframes demanded by our
pre-charge time limits. The challenge was to analyse a huge amount
of material, to identify the prime conspirators (and what it was
they were plotting to do), and to clarify the roles played by
each of the suspects. This proved impossible in the time available,
and the result was that several suspects were originally charged
with terrorist offences who were eventually proceeded against
for crimes such as fraud or forgery. This is symptomatic of the
current situation where investigations have to be shaped to fit
the procedural requirements of the time-limited charging procedure,
rather than simply following the evidence in an objective search
for the truth. Had there been the opportunity to understand the
complexities of the conspiracy before the decision was required
to charge or release; the right charges against the right people
could have been determined from the outset. The quality of the
original charging decisions would also have been higher, and it
is probable that the suspect who fled the country while on bail
and who eventually proved to have been a prime conspirator, would
have stood trial in this country. If that had happened, the outcome
of the trial process might have been very different.
* * * * *
Theoretical Case Study
This case study has been constructed with the assistance
of the Crown Prosecution Service and draws upon issues that have
arisen in many real cases. The statistics used are entirely typical
of the scale of events that have been seen in terrorist investigations
in recent years.
The Security Service are held by an agent that a group of
men in various parts of the country are planning terrorist attacks
on the Houses of Parliament and the British Embassies in Pakistan,
Istanbul and Morrocco. They have been exploring conventional and
homemade explosives as well as CBRN possibilities. It is believed
that this will be carried out in 3 months time. The agent is reliable
and his information must be acted on for public safety reasons.
Surveillance is started on 2 of the men identified and over
a period of 2 months they are seen with numerous other people.
All of the people seen are unknown to intelligence services and
cannot be identified. 5 key addresses were identified and probes
put into each over the period.
The agent does not know where the dangerous materials are
being stored or where they have been obtained from although he
believes that some might have been brought in from abroad. The
men are believed to be all illegal entrants to this country and
are each living on at least 2 false identities.
Police arrest 15 people following the execution of Terrorism
Act warrants in 4 different areas of the country on day l. Each
arrest requires time-consuming custody procedures; sterile arrest,
transportation to the secure suite at Paddington Green, the forensic
examination of prisoners and taking of evidential samples. The
samples are particularly important as it is thought that the men
are not who they purport to be and/or not from the countries they
claim to come from. Each has at least one false passport.
These procedures have to be completed before any detained
person can consult with their legal representatives. On this occasion
they took about 8 hours for each person. Some could be conducted
simultaneously, but some (like booking in with the Custody Sergeant)
had to be done individually.
The fingerprints are sent to 5 differerit countries to see
if the men can be properly identified.
With 15 people under arrest, a disclosure strategy was required
so as to achieve the best evidence from the interviews and test
the accounts given. This was done whilst the defendants were being
examined and other procedures carried out, and whilst the police
were waiting for the solicitors to arrive. Each disclosure package
given to the respective legal representative required lengthy
consultations with the detainees.
2 firms of solicitors represented all the detained men. Their
representatives were not available immediately; the police had
to wait 4 hours for one and 5 for another. Each firm only provided
2 representatives. The initial consultations with each client
lasted on average 4-5 hours. This time took up some of the time
available to the officers to conduct their detailed interviews
and enquiries, the clock did not stop running whilst the detainees
were taking legal advice.
In addition all 15 men need to be allowed to observe prayer
5 times a day and all say that they need an interpreter.
In the first 14 days a total of 165 interviews were conducted.
Most of the suspects are saying nothing, but as more evidence
is put to them by the 14th day, 2 appear to be getting concerned
and might talk.
Within the first 4 days of detention, 55 forensic searches
were conducted around the country involving residential and non-residential
properties and vehicles, again involving an enormous amount of
work by officers to speedily assess the relevance of exhibits
within the time limits imposed.
Each of these required a separate warrant and information
received led the police to believe that there could be CBRN material
on the premises as well as possibly conventional and homemade
explosives. This meant that specialist teams had to be deployed
and some of the premises were unsafe to enter until various forms
of risk assessments had been done and procedures carried out.
There are only a limited number of specialists available to do
this work and it was only possible to do one premise at a time.
10 of the premises require this procedure and were in three of
the different parts of the country, some about 5 hours drive away
from the other.
During this period of time a vast amount of exhibits were
seized during the searches. This had to be examined, prioritised,
sifted for relevance, an assessment made of which individual should
be questioned about which exhibit and a decision made on which
should be sent to experts in chemical weapons, which on biological,
which to FEL and which to the AWE.
There were about 4,000 exhibits labelled in the first week
with many more outstanding for examination. At least half of the
documentary exhibits (about 600) are in Arabic. Most of the available
interpreters are being used for the interviews and after trawling
the country police manage to locate another 3 who can begin on
the documents. There are also several boxes of videos tapes the
contents of which the police do not know until they have been
viewed. There are no labels on them. A cursory viewing of a handful
shows that they are extremist in nature and mostly with Arabic
voiceovers or individuals speaking in Arabic on. There is little
point in the officers viewing these further as they cannot understand
them.
A decision had to be taken about where each of the exhibits
should go first. It is decided to fingerprint 300 documents first.
Half of these are handwritten and will also need to be examined
for handwriting analysis. All the identification documents found
(at least 100) need to go for expert analysis to see if they are
false. 15 of these are French, 10 each are Spanish, Italian and
Turkish, but the majority appear to be of Eastern European extraction,
maybe Bosnian, and all have to be submitted to their country of
origin to check whether they are genuine.
There have been over 268 computers seized together with 274
hard drives; 591 floppy discs, 920 CD DVDS and 47 zip discs. The
High Tech Crime Unit say that every computer hard drive seized
during that period of time takes a minimum of 12 hours to image
for the assessment teams at Paddington to then provide to the
interviewing officers. The preliminary assessments carried out,
due to the time constraints imposed, cannot be considered as thorough
and have to be revisited as other factors emerge and different
matters become relevant. About a quarter of the computers and
hard drives have encrypted material on them and the suspects are
refusing to give the keys saying that the computers, even those
found in identifiable homes, are nothing to do with them. Assistance
is required from a number of agencies here and abroad with regard
to this and an assessment has to be made about which computers
to prioritise.
It is not clear which of these computers was used the most
as the man believed to be the leader and 2 others have been itinerant,
using at least 20 of the known addresses over the last 6 month
period.
The main suspect was of no fixed abode. He had items of personal
property at a number of addresses. Some in false; fingerprint
and DNA work done in the first 4 weeks enabled police to establish
this.
During the first two weeks 60 seized mobile telephones, mostly
pay as you go, were forensically examined. The sheer volume of
material to be gathered from these examinations meant that much
of it was not available until the 6th week of investigation. This
evidence is crucial as it is needed to corroborate associations
and prove movements. DNA analysis is required to discover which
telephones have been used by which suspects, again because they
have used or visited many addresses.
Some 25,000 man hours were spent examining CCTV footage.
Some 3,674 man hours are used to assess the eavesdropping material
gathered by probes operating 24 hours each day over an 8 week
period. There are 850 surveillance and observation point logs
that must be assessed for their evidential value. This evidence
will be crucial to establish who was present at which meetings
and what was said.
In the first 4 weeks the police identified 6,000 actions
in the investigation 10,000 documents, 2,300 statements and 7,000
exhibits have been seized or created by week 8 of the. investigation.
Crucial evidence is still awaited from DNA, other scientific work
and from various foreign enquiries coming in gradually over the
period of detention.
Letters of request for legal assistance in gathering evidence
abroad have been written by prosecutors and sent through emergency
channels to 17 countries.
As the enquiries progress more addresses are being identified,
more searches done and more exhibits, computers and false documentation
with photographs of the suspects and others are being discovered.
In amongst the documents are some bearing the picture of a well
known international terrorist being held in custody in another
country where it is not easy for the police to obtain access or
information. This might be a crucial link with some of the suspects
being held and an approach needs to be made through diplomatic
channels.
Throughout the detention period it is becoming abundantly
clear that there were plans to use a dirty bomb in the Houses
of Parliament, conventional explosives for an attack on 2 of the
Embassies and a possible chemical attack on the third. Each suspect
has several identities. We are waiting to hear if the requested
countries can establish the true identity of the men. Fingerprints
of each man are being found on some documents of a suspicious
nature. It is unclear however which role each man took and whether
they can be linked to any or all of the planned attacks.
The case is largely circumstantial as no chemicals or explosives
or anything else of that nature has been found despite the fact
that the targeting document (found on the 50th computer to be
examined in the 7th week) shows that the attack on Parliament
was due to take place 2 days after the arrests.
2 prosecutors are working full time with the Anti Terrorist
Branch making applications to extend pre-charge detention, drafting
initial and supplementary letters of request and reviewing the
evidence as the investigation progresses. Experts from 10 different
disciplines are working on exhibits and documents seized as well
as scouring addresses and cars for explosive and other traces
and three-quarters of the police capacity has been involved in
various actions including examination of exhibits, computers,
interviewing, etc.
5 October 2005
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