Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

3 Conditions of pre-charge detention

64. In view of the significant extension of the period for which people suspected of terrorism offences can be detained before charge, we decided to look more closely at the conditions in which such suspects are detained and at the way in which they are treated during such detention.

65. Terrorism suspects are taken to a dedicated high-security facility at Paddington Green police station in London for questioning. We visited Paddington Green on 16 May 2007 and were able to look around the cells and other facilities and talk to the police officers responsible for both the custody and investigation of terrorism suspects, the station superintendent and one of the GPs responsible for assessing the health of detainees. We were impressed by the professionalism and positive attitude of the staff we met at Paddington Green, who work in less than ideal conditions but appeared to us to be committed to respecting the human rights of detainees. We are grateful to all those we met for the time they took to show us around and answer our questions, both during and after our visit.

66. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT"), which is the monitoring body for the European Torture Convention, reported a number of significant concerns about Paddington Green following two visits it made to the UK in July and November 2005.[47] These concerns were reiterated by representatives of the CPT with whom we met during our visit to Strasbourg in December 2006. During our visit to Paddington Green we sought to follow up the Committee's main concerns.

Facilities at Paddington Green

67. The facilities available for dealing with terrorism suspects at Paddington Green are plainly inadequate. They were designed when the station was built in the late 1960s in order to deal with terrorism suspects from Northern Ireland - a far different threat from that faced from international terrorism today, in terms of scale and complexity. The main deficiencies of Paddington Green are as follows:

there are only 16 cells. Over 20 people at a time were arrested during individual terrorism investigations in both 2005 and 2006 and some had to be sent to Belgravia police station, which is not set up to deal with terrorism suspects. In addition, the normal day-to-day work of Paddington Green police station, which serves the local neighbourhood, was severely disrupted.

there are no dedicated facilities for forensic examination of suspects on arrival. Cells have to be to specially prepared for this purpose, which is time consuming and further exacerbates the lack of accommodation.

there is no dedicated space for exercise. Part of the car park can be cleared to provide a small exercise yard but this takes time to arrange and the car park is overlooked. This is likely to reduce considerably opportunities for exercise.[48]
only one room is provided for suspects to discuss their cases in confidence with a solicitor.
there are no facilities on site for the forensic examination of equipment such as computer hard drives.
the videoconferencing room is too small to accommodate judicial hearings on the extension of the period of detention. Such hearings are usually now held in the entrance lobby, which is itself cramped, is a thoroughfare into the custody suite, and opens into the staff toilets at the back. It is clearly an inappropriate location for such a crucial part of the detention process.

68. We are not the first to comment on these problems. The CPT reported in 2005 that "the present conditions at Paddington Green High Security Police Station are not adequate for such prolonged periods of detention [as 28 days]".[49] The Independent Police Complaints Commission concluded in 2006 that "in our view this facility needs to be improved if it is to be suitable for longer term detention" and recommended that the facilities should be upgraded or relocated.[50]

69. The problem of the suitability of Paddington Green for prolonged periods of detention has been taken into account in the new Code of Practice on the detention, treatment and questioning by police officers of terrorist suspects.[51] The Code provides that where detention beyond 14 days is authorised the detainee must be transferred from detention in a police station to a designated prison as soon as practicable.[52] The Code explains that transfer to prison is intended to ensure that individuals who are detained for extended periods of time are held in a place designed for longer periods of detention than police stations.[53] Lord Carlile, in his recent report on the operation in 2006 of the Terrorism Act 2000, found the facilities at Paddington Green to be acceptable for up to 14 days' detention,[54] although he also concluded that "it is plain that the Metropolitan Police need a new custody suite suitable for up to 30 terrorism suspects."[55]

70. We agree with the CPT that conditions at Paddington Green are not adequate for prolonged periods of detention. Bearing in mind that for all other offences the maximum period of police custody is four days, we consider 14 days to be a prolonged period of detention for which the facilities are not adequate. We are in no doubt that the facility for terrorism suspects at Paddington Green must be replaced as a matter of urgency.

71. Lord Carlile has suggested that a new facility for the Metropolitan Police would ideally be purpose built, very secure, and in a location causing as little disruption as possible to nearby residents and businesses.[56] A new custody suite for terrorism suspects could be situated in a remote location, where maximum security could easily be arranged. We heard strong arguments against this option from the police officers we spoke to at Paddington Green, however. Co-location with an ordinary police station lends a degree of transparency to the process of investigation and may give some reassurance that terrorism suspects are being dealt with fairly and in accordance with the law. There are also several benefits to staff in working inside, or close to, an everyday police station and the need to accommodate investigative staff who may work very long hours during investigations must be borne in mind.

72. We recommend that a new facility for dealing with terrorism suspects should be established as soon as possible. Such a facility should be located in London and should strike an appropriate balance between the need for high security and the desirability of appearing accessible to the local community. It should be part of a functioning police station rather than a facility exclusively for terrorism suspects in a remote location. Accommodation and social facilities for staff must be close at hand. The new terrorism facility must be significantly larger than Paddington Green and should take account of the detailed recommendations we make in this Report about the conditions of detention and the treatment of detainees.

73. Transferring suspects to prison after 14 days is on balance beneficial to suspects given the current unsuitability of Paddington Green for prolonged periods of pre-charge detention. It is not, however, without significant disadvantages. Prisons are not suitable locations for people who have not been charged with any offence. Although the social and leisure facilities available will be better, and there will be more opportunity for association, the prison environment may be unduly oppressive, particularly at a high security prison such as Belmarsh to which terrorism suspects are transferred. Suspects also have to be ferried backwards and forwards to the police station for interviewing, and there must be a risk that transfer to prison may encourage the police to pursue the investigation with rather less urgency once the suspect who is the subject of investigation is housed away from the police station. For all these reasons we think it undesirable in principle that suspects be transferred out of police and into prison custody during the period of pre-charge detention. We recommend that the new purpose-built facility which replaces Paddington Green should be designed so as to be suitable for pre-charge detention of suspects for up to the maximum of 28 days.

Use of video-conferencing when extending detention

74. One of the most important safeguards accompanying the power to detain without charge is the requirement of judicial authorisation for extending the period of detention. The first such application must be made to a judge after 48 hours, and then subsequent applications for extensions must be made when the warrant of further detention expires, which is usually at the 7, 14 and 21 day mark, up to a maximum of 28 days. Applications to extend a period of detention are made by the police to a judge at Horseferry Road Magistrates Court. The CPT discovered in 2005 that these applications are usually made by video-link.[57] The Government's response was that this was done for security purposes.[58]

75. During our visit, we were assured that suspects were free to choose to attend court in person, but most preferred to stay at Paddington Green. We heard that video-conferencing is used for about 80% of applications for extended detention. The police told us that they would also prefer hearings to extend detention to be done by video-link from Paddington Green, because it saved time and money compared to transferring suspects to Horseferry Road Magistrates Court. However, we were told that security considerations would not usually be the reason why the hearing takes place by video-link, because even when the hearing takes place by video link at Paddington Green the site still has to be secured. The reason the hearings are usually conducted by video-link, we were told, is that the suspect usually prefers to stay put at the police station.

76. We were also told that the superintendent from Counter Terrorism Command makes the application to the judge for extended detention in person, and that investigating officers prepare the application and will be present in the room if their help is required by the superintendent.

77. The CPT's concern was that video-conferencing was not suitable given that one of the main purposes of such a hearing is to monitor the manner in which the detained person is being treated:[59]

From the point of view of making an accurate assessment of the physical and psychological state of a detainee, nothing can replace bringing the person concerned into the direct physical presence of the judge. Further, it will be more difficult to conduct a hearing in such a way that a person who may have been the victim of ill-treatment feels free to disclose this fact if the contact between the judge and the detainee is via a video-conferencing link.

78. The CPT therefore recommended that steps be taken to ensure that terrorist suspects in respect of whom an extension or further extension of police custody is sought are always physically brought before the judge responsible for deciding this question.

79. We share these concerns. In our view, for the reasons given by the CPT, the routine use of videoconferencing does not meet with the highest standards of judicial oversight which would be expected for such a crucial part of the detention process. The judge does not have the same opportunity to witness the demeanour and body language of all the relevant people, and the suspect is likely to be more inhibited in a room in a police station, in the presence of their interrogators, talking only to the judge via a TV screen. We recommend that suspects should be formally notified of their right to appear physically before the judge at the hearing of applications by the police for extended detention, and required formally, in writing, to waive their right to do so if they choose to have the hearing conducted by video-link. Code H should be amended to make this explicit.

80. Even where a suspect waives their right to appear physically before the judge, it is unacceptable to hold judicial hearings into the extension of a period of detention by video-conference from the entrance hall at Paddington Green, the same room which provides access to the staff toilets. At the very least a dedicated room, sufficiently large for the purpose, is required, if needs be in the police station proper.

Videoing of interviews

81. The anti-terrorism branch wish to record on video all interviews, to supplement the audio recording which is currently the definitive record in evidential terms. The main argument for this is that video would capture conduct, gestures, facial expressions and demeanour which cannot be recorded in audio.

82. The Home Secretary has power to make an order requiring the video recording of interviews with terrorism suspects in police stations, provided they are conducted in accordance with a code of practice about such video recording which the Home Secretary is required to introduce.[60] Video recording of terrorism interviews is currently permitted in Northern Ireland by virtue of the Terrorism Act 2000 (Code of Practice on Video Recording of Interviews) (Northern Ireland) Order 2003. No such provision has been made in respect of the rest of the United Kingdom. Although video recording of interviews is not illegal it can be objected to by suspects and their advisers.

83. In our view videoing all interviews with terrorism suspects is likely to be a human rights enhancing measure, providing a more reliable record of any abuse or ill-treatment during interrogation, as well as a means for police officers to rebut false allegations of such abuse or ill-treatment.

84. We have written to the Home Secretary to ask for the reasons for not authorising the videoing of interviews with those suspected of terrorism in Great Britain. In the absence of a good reasons, we recommend that the Home Office consider the case for making an order under the Terrorism Act 2000 to require the video-recording of interviews of terrorism suspects, to supplement audio recording, and provide reasons for its decision.

Healthcare

85. A small team of local GPs are additionally employed by the police as forensic medical experts (FME). Their duties include conducting daily medical examinations of terrorism suspects and advising on fitness for detention and interview. Following the daily medical examination of a detainee, the doctor fills out Form 83 which is given to the police, countersigned by the custody officer and becomes part of the custody record, and orally debriefs police staff on the findings of their examination. The doctors also keep their own notes which are fuller than those on the police Form 83 and are subject to the usual rules of patient confidentiality.

ADEQUACY OF MEDICAL RECORD KEEPING

86. One of the main criticisms in the CPT reports was that doctors visiting the custody suites kept inadequate medical records on detainees.[61] In the first of the CPT's reports in July 2005, it commented that the basic safeguard of a right of access to a doctor on the whole operated in a satisfactory manner, but that the recording of some of the forensic medical examinations was at times of such a rudimentary nature as to weaken the effectiveness of the safeguard. This observation was based on scrutiny of Form 83. In its second report in November 2005, the CPT was still concerned that doctors were not recording the findings from their medical examinations in full but said that, as a result of its most recent visit, it was now aware that many doctors are opposed on ethical grounds to making a fuller record of their findings available to the police, because of their concerns about patient confidentiality. It recommended that the UK authorities review the current system of recording medical examinations in police custody suites.

87. From information received from one of the FMEs at Paddington Green it appears that the CPT, at least in its first report in 2005, had not distinguished between the records kept by the police, which are relatively sparse, and fuller medical notes which the doctors make for their own purposes and which are covered by medical confidentiality. We received a template for the confidential notes kept by the doctors, which provided for far more information to be recorded than on the police forms, including any allegations of ill-treatment and any injuries or trauma to the detainee's body. These notes are not shared with the police but kept locked in the filing cabinet in the FME room accessible only by the FMEs. We did not ascertain, however, whether the specimen medical record forms we had been sent were standardised forms used by all FMEs at Paddington Green, or just those used by the particular FME concerned. We also note that the specimen forms do not contain all of the information that the CPT recommends should be included in such forms, such as an indication by the doctor of the extent to which any allegations of ill treatment are supported by the doctor's objective medical findings.

88. Although we formed the view that the current system for medical assessment of detainees generally seems to work well, we think there is scope for improvement in the system of recording medical examinations of detainees at Paddington Green by FMEs. In order to ensure that there is a full record of the information required to make medical examinations an effective safeguard against ill treatment, we recommend that, in addition to Form 83, a new standardised form be used which includes

a full account of statements made by the detainee which are relevant to the medical examination, including the detainee's description of his or her state of health and any allegations of mistreatment
the doctor's assessment of the extent to which any allegations of ill-treatment are supported by objective medical findings.

The form should be made available to the detainee and his or her lawyer, but not to the police. We also recommend that section 9 of Code H should be amended to make clear that an FME is expected to report any signs and symptoms indicative of ill-treatment to an appropriate independent authority.

89. We also urge the Medical Ethics Committee of the British Medical Association and the General Medical Council to consider whether the medical examination of terrorism suspects in detention, and the keeping of records of those examinations, should be the subject of specific guidance to practitioners, in order to achieve greater consistency of practice.

CONFIDENTIALITY OF MEDICAL EXAMINATIONS

90. Another issue raised by the CPT was whether medical examinations are conducted in private.[62] The standard operating procedures stated that the examination of a detainee by an FME without an officer present should be "exceptional rather than normal." The CPT found this unacceptable and recommended that appropriate measures be taken to ensure that all medical examinations are conducted out of the hearing of police officers so as to ensure confidentiality, and out of the sight of police officers unless the doctor requests otherwise.

91. We specifically asked about this and were assured that this was normally done, although doctors sometimes requested that a police officer be present for their own safety. We were not told whether, where a doctor requests the presence of a police officer, that officer can see but not hear the examination being conducted. We note that new Standard Operating Procedures for dealing with suspects detained in the secure unit at Paddington Green are in the course of being written following the lessons learnt from the first extended periods of detention beyond 14 days in August and September 2006. We recommend that both the Standard Operating Procedures and section 9 of PACE Code H (concerning the care and treatment of detained persons) be amended to ensure that the medical examination of a suspect is always carried out in conditions which guarantee confidentiality, for example by requiring that medical examinations are always conducted out of the hearing of police officers and, unless the doctor concerned requests otherwise, out of the sight of such officers.

92. There are two further points on which we feel improvements could be made in this area.

RIGHT OF FEMALE DETAINEES TO BE EXAMINED BY A FEMALE DOCTOR

93. Firstly, the doctors serving Paddington Green are all male. We were told that, if a female detainee asked for a woman doctor one would be found from a neighbouring FME team. Such a request has apparently never been made, but we were told that if it were there would be no logistical obstacle to making the necessary arrangement. We consider that female detainees should be offered the option of examination by a female doctor as a matter of routine, and we recommend that this should be done and both the Standard Operating Procedures and section 9 of PACE Code H amended to make this explicit.

DOCTORS' INDEPENDENCE OF POLICE

94. Second, the GP with whom we discussed healthcare at Paddington Green commented that he would prefer to be paid by the Home Office or the NHS, rather than the police, in order to demonstrate that he acted independently of the police service. We agree with this suggestion and recommend that the Home Office consider alternative options for the payment of forensic medical experts in order to demonstrate more clearly that they are independent of the police service. In our view they should be paid by the NHS.

Delaying access to a lawyer

95. Following its November 2005 visit, the CPT expressed its concern that under the Terrorism Act 2000[63] the right of access to a lawyer can be denied to a terrorism suspect for a period of up to 48 hours.[64] Access to any lawyer can be delayed if a superintendent has reasonable grounds to believe that the exercise of the right will have one of a number of consequences, such as physical injury to any person, the alerting of other suspects still at large, or the hindering of the recovery of property.

96. The CPT reiterated that the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest, and the right to have access to a lawyer during that period is therefore a fundamental safeguard against ill-treatment. The CPT recognises that in order to protect the legitimate interests of the police investigation it may exceptionally be necessary to delay for a certain period the detainee's right of access to a lawyer of their choice, but this should not result in the right of access to any lawyer being totally denied during that period. Access to an independent lawyer should be arranged in such circumstances. The CPT recommended that the law be amended to ensure that all persons arrested have the right of access to a lawyer from the outset of their deprivation of liberty.

97. In light of the CPT's concern we asked at Paddington Green how often the power to delay access to legal advice for up to 48 hours is used and whether exact figures were available showing the number of times it had been used since July 2005. We were told that the power was only used very rarely and only on what were described as "safety grounds", such as where a suspect had been apprehended in close proximity to a live bomb and the police interview him or her to try to ascertain if there are other life-threatening devices. Detainees may be subject to what was described as a 'safety interview' after they have been arrested if it is thought that public safety may be at risk and once the agreement of the station superintendent has been obtained. We were told that although such "safety interviews" usually took place without a lawyer present, there was no reason not to have a duty solicitor present if one could be found in the time available. We were further told that it would be difficult to give even a rough indication of the number of times that terrorism suspects have been interviewed without a lawyer present because this would require examination of the interview records of each individual.

98. We share the concerns of the CPT about the width of the power to delay the right of access to a lawyer by a terrorism suspect. We note that the account of the circumstances in which a "safety interview" might be held with a suspect, such as where the matter may be one of life or death, is considerably narrower than the much broader statutory power.

99. We recommend that in future detailed records be kept of the number of times that the power to delay access to legal advice is used and the precise grounds on which "safety interviews" are used so as to enable independent scrutiny of the use of this power to delay access to one of the most important safeguards against ill treatment. We also recommend that efforts are always made to secure the presence of a duty solicitor from the outset of a suspect's deprivation of liberty, unless the need to interview the suspect is so urgent that one would be unable to get there in time.

Response to the CPT report

100. We were surprised to learn that some of the police officers at Paddington Green, and the GP who we met at the station, were largely unaware of the CPT reports on Paddington Green and the Government's response. We detected a willingness on the part of all the people we met to deal with any criticisms constructively, but they did not appear to have been provided with the necessary information to enable them to act on concerns which had been expressed by a significant human rights monitoring body. We recommend that the Government draw the attention of relevant police officers, forensic medical experts and other staff to these Reports, and subsequent reports on the detention of terrorism suspects by parliamentary committees and other bodies, and ensure that their views are taken into account in formulating the Government's reply to all such reports.

Respect for family life and privacy

101. We learned during our visit that suspects detained at Paddington Green are not entitled to any family visits or any correspondence, and can only communicate with their family in English on a monitored telephone line.

102. We understand the need for stringent controls on detainees' communications during an investigation, and the need to maintain a high security environment at Paddington Green. We are also aware, however, of the very wide range of terrorism offences, suspicion of which may lead to detention at Paddington Green, and the lengthier period of pre-charge detention, and we question whether a blanket prohibition on family visits and correspondence is likely in all circumstances to be a proportionate interference with the right to respect for family life. We recommend that consideration be given to replacing the blanket prohibition on family visits and correspondence during detention at Paddington Green with a discretion to allow supervised family visits and monitored correspondence in circumstances where not to do so would be disproportionate.

103. All detainees at Paddington Green are subject to constant video surveillance in their cell. We noticed on the monitoring screens that the entire area of the cell is visible, including the area in which the toilet is situated, but that there is a small area of pixillation on the screen the purpose of which, we were told, is to obscure any view of the genital area when the detainee is using the toilet. We noticed that the area obscured was extremely small, so it would still be possible to see most of a detainee who is using the toilet, even if the precise area of the toilet seat is obscured from view.

104. This struck us as an unnecessary and disproportionate interference with the detainee's privacy and dignity. There may be a case for such intrusive surveillance of a detainee who has been assessed as at risk of suicide or self-harm, but such detainees will be in the minority and should be identified by the risk assessment process. In relation to detainees who have not been assessed as not posing a risk of suicide or self-harm, we doubt whether the interference with their privacy and dignity is proportionate to the security purpose which is served by the surveillance. We recommend that the area within the cell which is obscured from view be extended so as to ensure that a detainee is not visible at all when using the toilet.

Conclusion

105. Paddington Green was designed in an era when terrorism suspects could be held for no longer than 48 hours. Suspects can now be held before charge for up to 28 days, 14 of which may be at Paddington Green, and, given the longer period of detention which is now possible, it is likely that increasing numbers of suspects will spend 14 days in detention at Paddington Green. The cells at Paddington Green are, to say the least, spartan, containing nothing more than a bench with a mattress and pillow, and a toilet. Visitors are not allowed and, as we have noted, very limited provision is made for exercise. The GP we met with said that he had seen little evidence of deteriorating mental health in the suspects he had assessed. Nevertheless, the potential for terrorism suspects to suffer mental health problems because of lengthy detention at Paddington Green appears to us to be significant. We are concerned that holding terrorism suspects in such basic conditions for as long as 14 days may give rise in certain circumstances to breaches of the right not to be subjected to inhuman or degrading treatment in Article 3 of the ECHR. Furthermore, investigations would be jeopardised if suspects were rendered unfit for interview because of the conditions in which they are held, and there must also be a risk that in certain circumstances evidence obtained from questioning the suspect during such an extended period of detention in such basic conditions will be ruled inadmissible by a court, or a court may refuse to draw an adverse inference from any silence during questioning whilst detained in such conditions. We recommend that the conditions in which suspects are detained at Paddington Green are improved immediately, beginning with more systematic arrangements for exercise and the provision of basic facilities for leisure. Any replacement for Paddington Green must have considerably improved facilities for detaining suspects for long periods.

47 Report to the UK Government on the visit to the UK carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 11 to 15 July 2005, CPT/Inf (2006) 26 (hereafter "CPT July 2005 Report") at paras 10-24; Report to the UK Government on the visit to the UK carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 to 25 November 2005, CPT/Inf (2006) 28 (hereafter "CPT November 2005 Report") at paras 27-39. Back

48 See CPT July 2005 Report at para 22 and CPT November 2005 Report at para 39. Back

49 CPT July 2005 Report at para 24. Back