Joint Committee on Human Rights Twenty-Fifth Report


4  Compatibility with the right to a judicial hearing

Background

30.  A person who has been arrested on suspicion of being a terrorist or of being involved in the commission, preparation or instigation of a terrorist offence can be detained beyond 14 days and for up to 28 days without charge if their continued detention has been authorised by a judge. The same provisions as apply to extensions of detention beyond four days apply to extensions of detention up to 28 days.[30] The Government says that this requirement of judicial authorisation of detention beyond 14 days both enshrines the common law principle of habeas corpus and satisfies the requirement in Article 5(4) ECHR that the detained person has a right to "a judicial hearing to determine the lawfulness of their detention."

The inadequacy of the current judicial safeguards

31.  We do not accept that the current arrangements for judicial authorisation of extended pre-charge detention satisfy the stringent requirements either of habeas corpus or Article 5 ECHR. Our predecessor committee first made this point about the inadequacy of the procedural safeguards in 2003 when the maximum period of pre-charge detention was increased from 7 to 14 days in the Criminal Justice Act of that year.[31] We made the point again, in greater detail, in 2005 when the maximum period was further increased from 14 to 28 days in what became the Terrorism Act 2006,[32] and again, in still more detail, in subsequent reports when it became clear that the Government was contemplating a further extension of the maximum period of pre-charge detention beyond 28 days.[33]

32.  As we explained in those reports, we had two main concerns about the adequacy of the judicial safeguards at the hearings at which judicial authorisation of the suspect's further detention was sought. First, we were concerned that the hearing of an application for a warrant of further detention is not a fully adversarial hearing, because of the power to exclude the suspect and his representative from the hearing and to withhold from the suspect and his lawyer information which is provided to the judge. Second, we were concerned about the adequacy of the judicial oversight because of the narrowness of the questions which the court is required to answer when it decides whether or not to authorise further detention.

33.  Since then, we have investigated carefully how the judicial hearings into extended pre-charge detention actually work in practice, taking evidence on the subject from the Head of the CPS's Counter-Terrorism Division and from a defence barrister with experience of conducting such hearings on behalf of suspects. We concluded, in the light of that evidence, that the hearings at which judges are asked to authorise extended pre-charge detention are not fully adversarial hearings because of the limited disclosure of information to suspects before the hearing, the power to withhold information from the suspect and their lawyer which is seen by the judge and the power to exclude the suspect and their lawyer from parts of the hearing.[34] We also concluded that the focus of such hearings is the future course of the investigation and whether it is being conducted diligently and expeditiously by the police, rather than whether there is sufficient evidence to justify the original arrest and continued detention. We made a number of detailed suggestions for improving the judicial safeguards which apply to extended pre-charge detention.[35]

34.  Subsequently, in our report on the Counter-Terrorism Bill which is still before Parliament, we recommended a number of specific amendments to the legal framework governing all pre-charge detention hearings, designed to ensure that they are truly judicial (that is, adversarial) in nature.[36] We reproduce these recommended amendments in an Annex to this Report.

The Government's response

35.  The Government has now responded to our reports concerning the inadequacy of the judicial safeguards in the statutory regime governing hearings at which pre-charge detention is extended and to our recommended amendments to the legal framework to remedy those deficiencies.[37]

36.  The Government's response is that hearings of applications to extend detention are already fully adversarial and therefore compatible with Article 5 ECHR, because the suspect is entitled to be legally represented and "to be present at the open part of the hearing" and the information provided to the suspect both in writing in advance and during the proceedings through representations and evidence is "extensive".  According to the Home Secretary, it is enough to comply with the requirements of Article 5 that the suspect be brought before a judge within 48 hours and that thereafter there is continuing judicial approval of the need to detain the suspect.  "Pre-charge detention is subject to regular judicial oversight, complying with the requirement in Article 5(3) that such a person be 'brought promptly before a judge or other officer authorised by law to exercise judicial power'. At these hearings a detainee may challenge the lawfulness of his detention, as required by Article 5(4) ECHR." The Secretary of State also invites us to infer that if those safeguards were incompatible with Article 5 we could expect them to have been challenged by now in Strasbourg or in our own courts under the HRA. 

37.  The Home Secretary makes essentially the same case in response to the criticism that the arrangements for judicial authorisation of pre-charge detention fail to satisfy the common law principle of habeas corpus, that is, that an individual is entitled to challenge the lawfulness of their detention before a judge. In response to a question from Mr William Cash MP in the course of the debate on the Counter-Terrorism Bill, the Home Secretary claimed that "the principle behind habeas corpus, which is that the court must determine whether it has the power to detain a person … is already enshrined in Schedule 8 to the Terrorism Act 2000" which applies to all extensions of pre-charge detention, including those up to 28 days.[38] Such hearings, she asserts, "involve a full adversarial hearing with the suspect represented."[39]

38.  We do not accept the Government's argument that the requirement of judicial authorisation satisfies either Article 5 ECHR or the common law of habeas corpus.

39.   The description of extension hearings as "fully adversarial" is clearly incorrect in ECHR terms. The powers to exclude the suspect from the hearing and to withhold information from them which goes before the judge, without any provision for representation by a special advocate, is a clear breach of the right to an adversarial hearing which is required by Article 5 even at a hearing to decide whether to extend pre-charge detention. This is clear from the decision of the European Court of Human Rights in Garcia Alva v Germany, cited in the Committee's Report on 42 days at para. 76, which prescribed a certain minimum content for a procedure to count as a "judicial procedure" for the purposes of Article 5:

"39. The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine "not only compliance with the procedural requirements set out in domestic law but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention".

A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure "equality of arms" between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention. In the case of a person whose detention falls within the ambit of Article 5 §1 (c), a hearing is required

The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. Therefore, information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect's lawyer."

40.  Nor do we accept that the requirement of judicial authorisation of extended detention under the existing provisions of Schedule 8 of the Terrorism Act enshrines the common law principle of habeas corpus as the Government claims. Habeas corpus requires the person who is alleged to be detaining an individual illegally to set out clearly, directly and with sufficient particularity the facts relied on as constituting a valid and sufficient ground for detention of the person concerned. That is not, however, the issue for the court at an application to extend pre-charge detention. As we have demonstrated in earlier reports, the focus of such judicial hearings is not the reasons for the individual being detained, but the future course of the investigation and whether that investigation is being conducted diligently and expeditiously. A schedule 8 hearing into whether or not to authorise extended detention therefore falls far short of a habeas corpus hearing into whether there is a legal justification for continuing to detain the individual. However, as we have also pointed out in previous reports, the High Court has held that a warrant of further detention hearing under Schedule 8 of the Terrorism Act 2000 is the "judicial hearing" to which a suspect is entitled under Article 5(4) ECHR,[40] and we therefore doubt, in the light of that case-law, that a court would entertain an application for habeas corpus by a suspect whose detention had already been authorised by a judge at a Schedule 8 hearing.

41.  We note that the statutory reviewer of terrorism legislation, in his latest report, appears to agree that there is a need to strengthen the judicial safeguards at Schedule 8 hearings.[41] Lord Carlile suggests that the involvement of judges in the scrutiny of detention should be proportional to the length of detention sought, that is, "judges should be permitted to intervene more and make greater demands as the length of detention is extended." He says that the Government should consider "empowering judges to scrutinise the reasons for detention, and the adequacy of the work done to bring the case to charge, from the 7th day after arrest."

Conclusion

42.  We do not accept the Government's argument that the requirement of judicial authorisation satisfies either Article 5 ECHR or the common law of habeas corpus. We are encouraged that the statutory reviewer of terrorism legislation, who has long indicated that the judicial safeguards at detention hearings could be strengthened, appears to share our view and has now made specific proposals for strengthening those safeguards. We repeat our longstanding recommendation that the legal framework governing judicial authorisation of extended detention be amended in order to provide the same procedural protections for the suspect as are required by both Article 5 ECHR and the common law. In our view these amendments are necessary not merely in relation to 42 days' pre-charge detention, but in order to make all pre-charge detention hearings compatible with Article 5 ECHR and the common law of habeas corpus, including those concerning detention beyond 14 days. Unless those amendments are made, in our view the renewal of the maximum extended period of 28 days will lead in practice to breaches of Article 5 ECHR as well as falling short of the common law's traditional protection for the liberty of the individual.


30   Schedule 8 to the Terrorism Act 2000. Back

31   Eleventh Report of Session 2002-03, Criminal Justice Bill: Further Report, HL Paper 118/HC 724 at para. 105. Back

32   Third Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, HL Paper 75-I/HC 561-I at paras 93-99. Back

33   Twenty-Fourth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, HL Paper 240/HC 1576 at paras 136-138; Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL Paper 157/HC 394 at paras 58-61. Back

34   Second Report of Session 2007-08, Counter-Terrorism Policy and Human Rights: 42 days, HL Paper 23/HC 156 at paras 71-100. Back

35   Ibid at paras 89, 96 and 98. Back

36   Twentieth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Tenth Report): Counter-Terrorism Bill, HL Paper 108/HC 554 at paras 21-26 and 33. Back

37   Letters dated 5 and 6 June 2008 from the Rt Hon Tony McNulty MP, Minister of State at the Home Office, responding respectively to the Committee's first and second Reports on the Counter Terrorism Bill (Twenty-Second Report of 2007-08, Counter-Terrorism Policy and Human Rights (Twelfth Report): Government Responses to the Committee's Twentieth and Twenty-first Reports and other correspondence. Back

38   HC Deb 11 June 2008 col. 319. Back

39   Ibid col. 321. Back

40   R (on the application of Nabeel Hussain) v The Honourable Mr Justice Collins [2006] EWHC 2467 (Admin) in which an application for judicial review of a decision of a High Court judge under Schedule 8 of the Terrorism Act 2000, extending pre-charge detention to 21 days, based largely on Articles 5(3) and (4) ECHR, was dismissed on the basis that the High Court did not have jurisdiction to hear a judicial review challenge to a decision of a High Court judge. Back

41   Lord Carlile's Report on the Terrorism Act in 2007, at para. 105. Back


 
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