The Government's preferred option
13. In the most recent Home Office paper the Government
has settled on a preferred option for extending pre-charge detention.
The proposed approach is said to be guided by the approach taken
by the Civil Contingencies Act 2004: any increase in pre-charge
detention must be exceptional, temporary and dependent upon specific
operational need.
14. The Government's proposal is to legislate to
increase the pre-charge detention limit from 28 to 42 days, but
to impose a number of limits on the availability of the new 42
day limit:
- the 42 day limit would not
come into force immediately but the Home Secretary would have
the power to bring it into force by order;
- the Home Secretary would only have power to bring
the 42 day limit into force after receiving a joint report from
the DPP and the police setting out their reasonable grounds for
believing that more than 28 days will be required to obtain, preserve
or examine relevant evidence and stating that the investigation
is being carried out diligently and expeditiously;[14]
- the Home Secretary's decision to bring in the
42 day limit could be subject to judicial review;
- the 42 day limit would come into force on the
day the Home Secretary signs the order making the higher limit
available;
- if not agreed following a debate in both Houses
of Parliament within 30 days of coming into force, the order bringing
it into force would lapse after 30 days;
- the 42 day limit could only remain in force for
a maximum of 60 days if approved by both Houses.
- the Home Secretary would be required to provide
a statement to Parliament within two days, or as soon as practicable,
after bringing the order into force, including statements such
as that:
- a terrorist investigation is
occurring which has given rise to an exceptional operational need
- the investigation relates to the threat of serious
damage as a result of terrorism
- the higher limit is urgently needed and is necessary
in order to prevent, control or mitigate terrorism
- the higher limit is compatible with the ECHR
- the Home Secretary has received the required
report from the DPP and the police.
- Parliament would be informed
(presumably by the Home Secretary) each time an application to
hold someone for more than 28 days was approved by the courts;
- the Government's reviewer of terrorism legislation
would report to Parliament both on the operation of the higher
limit in individual cases and on the decision to bring the higher
limit into force, and there would be a debate in Parliament on
these reports.
15. In relation to any statements to Parliament about
the extension of pre-charge detention, we would expect reasoned
explanations from Ministers, rather than mere assertions in the
form of "statements", to ensure that Parliament is transparently
and fully informed about the justification for particular decisions
and that ministerial reports to Parliament do not become simply
formalities.
16. The Home Secretary refers to this system imposing
a "triple lock" on the new temporary limit of 42 days:
(i) a report by the police and DPP demonstrating a specific operational
need; (ii) the agreement of the Home Secretary; and (iii) a set
of strong parliamentary and judicial safeguards.
17. The judicial safeguards envisaged are the same
as those which already apply to extensions of detention beyond
14 days: they would require judicial authorisation at least every
7 days, which is only to be granted if the judge is satisfied
that the suspect's continued detention is necessary to obtain
or preserve evidence and that the investigation is being carried
out diligently and expeditiously.[15]
The only additional procedural safeguard proposed in relation
to applications for warrants of further detention is that applications
for extensions beyond 28 days would require the consent of the
DPP.
18. The Government says that its proposed approach
is "significantly different" from the one it originally
proposed when it began the consultation in July. Then, the Government
put forward four options for revising the current 28 day limit:
(i) extending the 28 day limit with additional safeguards;
(ii) extending the 28 day limit but deferring its
coming into force;
(iii) relying on the Civil Contingencies Act, as
recommended by Liberty; and
(iv) introducing judge-managed investigations.
19. The Government's preferred option in July was
option (i): extending, with immediate effect, the maximum limit
beyond 28 days to a new maximum limit to be set by Parliament.
It accepted that any such increase in the limit should be balanced
by strengthening the accompanying judicial oversight and Parliamentary
accountability. The additional safeguards envisaged in the July
consultation papers, however, were mainly improvements to the
current parliamentary safeguards, including a requirement that
the Home Secretary notify Parliament of any extension beyond 28
days as soon as practicable after it has been granted, with a
requirement to provide a further statement to Parliament on the
individual case and an option for the House to scrutinise and
debate this. In addition, the independent reviewer would be required
to report on the operation of the extended period in any individual
case, to inform any parliamentary debate.
20. The Government's second option was to legislate
for such a power now but provide for that power to be triggered
at a later date by an affirmative resolution in both Houses. The
Government was less keen on this option because it would require
a parliamentary debate in the middle of what might be a national
emergency. The Government's current preferred option is something
of a hybrid of its original options (i) and (ii): an extension
to 42 days, only to be brought into force by the Home Secretary
at a future date, with an opportunity for parliamentary debate
and with a limited form of parliamentary approval (the approval
of both Houses is required, not to bring the order into force,
but for the order to continue in force for more than 30 days).
21. The third option was Liberty's suggestion that
the Government need not legislate to extend the pre-charge detention
limit but instead can rely on the Civil Contingencies Act to extend
the period of pre-charge detention by a further 30 days to a total
of 58 days. We consider this proposal in detail below.
22. The fourth option was to introduce judge-managed
investigations. We gave this option careful consideration in our
report on Prosecution and Pre-Charge Detention in 2006.[16]
After visiting France and Spain to see at first hand how judge-managed
investigations work in practice, we reached the firm conclusion
that the investigating magistrates model should not be borrowed
wholesale and imported into our own institutional arrangements,
nor did we think that there was anything in the investigative
approach which might be borrowed or grafted on to our more adversarial
common law tradition. We are pleased to note that the accompanying
Home Office paper on terrorist investigations and the French examining
magistrates system reaches a similar conclusion: that if we were
to try to emulate the examining magistrates system here, we would
need to import the system in its entirety rather than borrow specific
aspects and bolt them on to our criminal justice system, and this
would require fundamental changes to our adversarial, common law
tradition. We do not propose to give this option any further consideration.
23. We now turn to consider the two main arguments
relied on by the Government to make the case for a further extension
of the limit on pre-charge detention.
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