Joint Committee On Human Rights

Joint Committee On Human Rights Second Report

Assessment of Human Rights Compatibility of the Government's Proposals

24. The first plank of the Government's case for extending pre-charge detention is the scale and nature of the threat from terrorism. This is said to be "severe and shows no sign of diminishing. In fact, the reverse." The Government says that there are about 30 known plots, over 200 groupings or networks and about 2,000 individuals known to the police and security services. This figure is said to be the highest it has been: "not a spike but a new and sustained level of activity."

25. In 2007, a total of 42 individuals have been convicted of terrorist offences in 16 cases. The number of people charged with terrorism offences has increased from just over 50 in 2004 to around 80 in 2006 (no up to date figure is provided for 2007).

26. It is not clear from the Government's own consultation papers, however, whether the Government claims that the scale of the threat from terrorism has increased since the pre-charge detention limit was extended to 28 days in July 2006. Scrutinised carefully, the Government's statements about the level of the threat are shy of categorically claiming that the level of the threat has increased since the 28 day limit was enacted.

27. We therefore asked the Minister, Mr Tony McNulty, in September, whether the scale of the threat from international terrorism had increased since the limit was extended to 28 days in July 2006. He said that the threat was at a very high level, but agreed that it was "pretty well the same" as it was at the same time last year.[17] We received a similar message in an informal meeting with senior police officers in October. In an interview with the Daily Telegraph on 26 November, DAC Peter Clarke, head of the Metropolitan Police's Counter Terrorism Command, emphasised "the increasing complexity of cases, the computers, the false names employed by terrorists, the number of jurisdictions over which they operate" as the basis for the proposal to extend the pre-charge detention period, rather than any increase in the threat level.[18]

28. On 5 November 2007 the Director General of the Security Service, Jonathan Evans, gave a public lecture to the Society of Editors, in Manchester, in which he said that, compared to a year earlier, there were now 400 more people in the UK who pose a direct threat to national security and public safety because of their support for terrorism.[19] His speech, delivered on the eve of the Queen's Speech, which included the Government's Counter-Terrorism Bill, was widely reported as signalling that there had been a significant increase in the level of the threat from terrorism in the past year.

29. Following his public lecture, we wrote to the Director General asking him to give evidence to us about the level of the threat and in particular if it had increased. We explained that the level of the threat posed by terrorism is central to our work in scrutinising the human rights compatibility of the Government's proposed counter-terrorism measures, and that, if the threat from terrorism had increased significantly in the last year, contrary to what we had been told by the Minister, this had considerable implications for the proportionality of the Government's response. The Director General replied that the Security Service's parliamentary accountability is to the Intelligence and Security Committee, but offered to provide us with a private briefing on the current terrorist threat to the UK.[20] However, in our view it is important that the information about the level of the threat should be made available to both Parliament and the public.

30. The Director General's lecture raises important questions about whether and, if so, the extent to which there has been an increase in the level of threat in the last year. We would like to be able to ask him, for example, whether the significant increase in the number of individuals of interest to the Security Service is due to the Service's coverage of extremist networks being more thorough (which presumably would tend to reduce the threat), or due to a rapidly growing number of people becoming involved in terrorism, which would obviously bear the opposite interpretation. The answers to these and other questions about the current level of the threat should be available to parliamentarians and the public. We would also like to ask him, for example, for more information to enable us to assess how likely terrorists are to have the capability to use chemical and biological weapons. The Government's consultation papers refer to terrorists having "a clear intent (if not necessarily capability) to use chemical and biological attacks." Publicly accessible information about this likely capability is crucial to any attempt to arrive at a meaningful assessment of the level of the threat.

31. It has been a constant theme of our reports on counter-terrorism and human rights that there are far too few opportunities for independent democratic scrutiny of the Government's assessment of the level of the threat from terrorism. We have pointed out several times that unless both Parliament and the public are better informed about the nature and the level of that threat, it is impossible for them to make meaningful judgments about whether particular measures proposed by the Government to counter that threat are proportionate.[21] We have said before that we consider it important that the Director General of the Security Service be prepared to answer questions from the parliamentary committee with responsibility for human rights. We had hoped that there might be a change of approach in light of the Government's commitment in its Governance of Britain Green Paper to strengthen Parliament's role in holding the executive accountable, and in particular the explicit recognition in that document that "as security issues rise up the political agenda, government decisions on security and intelligence must be subject to proper scrutiny."[22] We are therefore disappointed that the Director-General of MI5 is prepared to give a public address about the level of the terrorist threat, but so far appears reluctant to give public evidence on the subject to the parliamentary committee whose role it is to advise Parliament about the human rights compatibility of the Government's counter-terrorism measures.

32. Lord Goldsmith, the former Attorney General, gave evidence to the Home Affairs Committee on 21 November 2007 to the effect that he had not seen any evidence during his time as Attorney General to indicate that longer than 28 days' pre-charge detention was necessary.[23] He acknowledged that he had been out of government for several months and that things might have changed since then, but if they had he would expect to see the new material on which any new proposals were formulated.[24] Lord Goldsmith stepped down as Attorney General on 27 June 2007. We have therefore written again to the Director General of the Security Service, renewing our invitation to give evidence to us on the record, and asking specifically whether the level of threat from terrorism has increased since that date, if so to what extent, and asking him to provide us publicly with as much information about the basis of his assessment of the increase in the threat level as it is possible to provide consistently with the obvious public interest in not disclosing information which would harm national security.[25]

33. As we have often made clear in previous reports, we do not underestimate the seriousness of the threat this country faces from terrorism. In the context of the Government's proposal to extend still further the limit on pre-charge detention, however, the relevant question is whether the Government has provided the evidence to demonstrate that the threat from terrorism has increased since Parliament last considered the question of the appropriate limit in 2006. We have not seen any evidence to suggest that the level of threat from terrorism has increased in the last year. The evidence that we have seen on this question suggests that the threat level remains about the same as last year. Nor is it possible to infer an increase in the scale of the threat from bare statistics about the number of convictions or the number of people charged with terrorism offences, in the absence of any more qualitative analysis of, for example, the seriousness of the charges brought and the number of convictions secured in the last year compared to previous years.

Complexity of terrorism investigations

34. The second basis of the Government's case for extending pre-charge detention is what it says is the trend towards the increasing complexity and scale of terrorist investigations, in terms of material seized, use of false identities, multiple languages and international links. The arguments relied on by the Government here are identical in nature to those relied on when the previous extension from 14 to 28 days was made in 2006. The pre-charge detention options paper contained some "case studies" providing statistics about matter such as the number of computers, DVDs, mobile phones etc. seized in some recent investigations. However, the main evidence relied on to demonstrate that terrorism investigations are now so complex that there is a danger that 28 days pre-charge detention will soon be insufficient is the fact that in two recent investigations suspects have been charged on the 28^th day.

35. In our last report on counter-terrorism policy and human rights, in July 2007, we pointed to the urgent need for Parliament to be provided with more detailed information about how the extended period of pre-charge detention has operated in practice since it was introduced in July 2006.[26] We identified a number of detailed questions which in our view needed to be answered in order for Parliament to be fully informed about how the extended period of pre-charge detention has operated in practice since its introduction.[27]

36. We asked the Minister, Tony McNulty, on 20 September 2007 whether the Government would be carrying out its own detailed research about how the power to detain for up to 28 days before charge had been used in practice and make that information available to Parliament. The Minister said that the Government was "not minded to because we think Lord Carlile picks up all of that in his broader role" [as reviewer of the terrorism legislation].[28] In fact, as we pointed out in our last report,[29] Lord Carlile's most recent report on the operation of the Terrorism Act 2000 did not even state in how many cases the power to authorise extended detention had been exercised, let alone provide the detailed information which we thought Parliament required.

37. We subsequently wrote to the Minister asking what steps he was taking to obtain more information about the use so far made of the power to detain pre-charge for more than 14 days.[30] In response the Minister referred us to a letter from the Home Secretary to David Davis MP dated 6 November 2007,[31] in which she addresses the concern that an extended period of pre-charge detention simply allows the police to take more time over the same tasks they would have done much more quickly if they only had a shorter period. The Home Secretary says that she has asked for further information from the police about the conduct of the investigation into the alleged airline plot, and that the police are satisfied that there were not unnecessary delays in interviewing, charging or releasing suspects.

38. It is clear that the Government itself does not intend to conduct the research necessary to provide Parliament with the answers to the questions identified at paragraph 40 of our earlier report. It also seems that no steps have so far been taken by any independent body or reviewer to obtain this information. In an attempt to find some answers about the lessons to be learned from the operation of the 28 day limit so far, we took evidence from Sue Hemming, Head of the Counter Terrorism Division at the Crown Prosecution Service, who has taken many of the charging decisions in recent significant terrorism investigations, including in the alleged airline bomb plot case, in which the power to detain for up to 28 days pre-charge was first used, and Mr Ali Naseem Bajwa, a barrister specialising in terrorism cases who acted for some of the suspects in the same case and in other terrorism investigations.

39. The Government argues that the experience of the alleged airline bomb plot, in which six people were charged after being held for more than 14 days, shows that the increase from 14 to 28 days was justified, because it enabled people to be charged who could not otherwise have been charged. This was confirmed in evidence by Ms Hemming of the CPS who was personally involved in all of the relevant charging decisions.[32] Ms. Hemming also referred to the Dhiren Barot case, in which she made the charging decision, as "an example of a case where we really were very, very concerned that 14 days was not going to be enough. Fortunately it was."[33] The Government also rely on the fact that three suspects have been charged at the very end of the 28 day period as demonstrating that the 28 day period may in some cases prove insufficient.

40. As Mr. Bajwa pointed out to us in his evidence, however, reliance by the Government on these cases to demonstrate that 14 or even 28 days may not be enough to bring charges is somewhat premature, because none of the cases in question has yet come to trial, and until the outcome of those cases is known it is difficult to draw any lessons from them about the adequacy or otherwise of the 14 or 28 day limit. In addition, while they are pending trial it would be inappropriate to conduct any in-depth qualitative analysis to attempt to determine whether they show the increase to 28 days to have been justified and whether they show 28 days to be insufficient, or the opposite, because this would risk prejudicing the trials of the individuals concerned. Although we heard some evidence of a general nature about the urgency with which the police pursued the investigation in the cases which went beyond 14 days, and the frequency of interviews, we found that these were not matters that we could satisfactorily explore in evidence while the cases themselves were sub judice. We conclude that until it is possible to conduct the necessary qualitative research into the actual use which has been made of the power to detain for up to 28 days pre-charge, which must await the outcome of the criminal trials of those charged, the experience of the use of the power to date provides no evidence to support an extension of pre-charge detention beyond 28 days.

41. In the Home Office's recent paper on pre-charge detention, the Government accepts that there has not yet been a case in which the current limit of 28 days has proved inadequate. However, it relies on statements by Ken Jones of ACPO and Lord Carlile that "there may well arise in the future a very small number of extremely important cases in which 28 days would prove insufficient." We found no such anxiety on the part of the CPS. Ms Hemming told us quite robustly that she had never found the current 28 day limit on pre-charge detention too restrictive. She said:

42. This was entirely consistent with what the DPP told the Home Affairs Committee on 21 November, that the CPS "have not asked for an increase"[35], was "satisfied with the position as it stands at the moment"[36] and that "our experience so far has been that we have managed and managed reasonably comfortably".[37]

43. We find the evidence of the CPS, that they have managed comfortably within the current 28 day limit, devastating to the Government's case for an extension. The essence of that case is that there is a risk that, in the near future, a terrorism suspect may have to be released because the investigation into the plot he was involved in proves so complex or of such a scale that he cannot be charged within 28 days. But the very body with the responsibility for making the charging decisions, and with all the knowledge and experience of making them to date, working closely alongside the police who conduct the investigations, is quite confident that 28 days is enough time in which to charge. In our view, this fundamentally calls into question whether it really is "likely", or even whether there is any "risk" at all, that at some point in the near future a case will arise in which 28 days is insufficient.

Alternatives to extended pre-charge detention

44. In its initial consultation papers, the Government expressly accepted that a combination of other measures (e.g. the availability of the offence of acts preparatory to terrorism and greater flexibility on charging through use of the threshold test (see paragraph 46 below)) has already reduced the pressure on investigation teams, and that future possible measures (e.g. post-charge questioning and the use of intercept as evidence) might further reduce that pressure.[38] However, the Government's position in its consultation papers was that while these other measures may reduce the risk of investigation teams coming up against the 28 day limit on pre-charge detention, they cannot eliminate that risk entirely, and it is therefore necessary to debate whether the current limit on pre-charge detention needs to be reviewed.

45. At the end of its consultation, however, the Government appears even more resistant to the idea that other alternative measures are capable of removing the need to extend the pre-charge detention limit. The threshold test, for example, is said to be useful in some cases but is not the whole answer because it cannot be used in all instances; post-charge questioning will reduce the pressure on investigation teams but will not eliminate the need for extending pre-charge detention because it will not reduce the evidential threshold needed to charge a person in the first place; allowing intercept to be admissible might help bring charges earlier in some cases but there is no reason to suppose this would assist in all the cases in which there might be a need for longer pre-charge detention.

46. In our view the Government's rather perfunctory dismissal of the alternatives to extending pre-charge detention suffers from the basic flaw that it takes each one in isolation and asks whether it eliminates entirely the risk that investigators will run out of time. It fails to consider how they operate together. For example, the combination of the threshold test and post-charge questioning must potentially go quite a long way to reducing the risk of an investigation running out of time. Ms Hemming from the CPS explained to us exactly what the "threshold test" means, as contained in the Code for Crown Prosecutors:

47. The "full code test", by comparison, requires the prosecutor to be satisfied that there is a realistic prospect of conviction. Comparing the two tests, it is obvious that the availability of the threshold test is of major significance to the debate about the need to extend the 28 day limit on pre-charge detention, because it enables prosecutors to charge at an earlier stage than would otherwise be possible. As the DPP told the Home Affairs Committee on 21 November, so far the CPS have been able to obtain the evidence that is necessary before the 28 days because "given the nature of the threshold test, the evidence is only required to demonstrate a reasonable suspicion that the defendant committed the offence."[40] Contrary to the Government's earlier responses to our reports on this subject, which suggested that the threshold test was of little relevance in terrorism cases, Ms Hemming told us that the threshold test was used by prosecutors in just under 50% of the last 18-20 charging decisions made in terrorism cases, and probably in just over 50% of the charging decisions made in relation to suspects held for more than 14 days.[41] Indeed, we were told that the two suspects in the alleged airline bomb plot case who were charged at the very end of the 28 day period were charged with acts preparatory to terrorism on the threshold test.[42] We think that this demonstrates very well the utility, from the prosecution's point of view, of the combination of broad offences such as acts preparatory to terrorism and the threshold test, which in turn will be further enhanced if the possibility of post-charge questioning is introduced. We intend to report at a later date on post-charge questioning and other counter-terrorism matters.

48. The Government's position on pre-charge detention is premised on the assumption that, without extending the period of pre-charge detention, there is a gap in the protection of the public, because there is a risk that a terrorist suspect may have to be released from custody because there is insufficient evidence on which to charge him with a terrorism offence. Looking at the picture as a whole, we do not think that there can really be said to be a gap in protection, when one considers, for example, the availability of offences as broad as acts preparatory to terrorism; the possibility of charging suspects with such offences on the basis of reasonable suspicion; the possibility of post-charge questioning and the drawing of adverse inferences from refusal to answer such questions; and the availability of control orders and other forms of surveillance to limit and monitor the risk posed by the individual concerned. Insofar as the Government wish to go beyond these alternatives, and to have available a power of pre-charge detention "in a case where although there is reasonable suspicion that an offence has been committed, and evidence is anticipated to be found in the material to be examined, the likelihood of that evidence being available within a reasonable time is not sufficiently certain for the threshold test to be met",[43] we consider this to be dangerously close to a power of preventive detention, which the Government itself accepts would be in breach of Article 5(1).[44]

49. In addition, there are other possible future changes which could also reduce the pressure on investigators, including allowing for the admissibility of intercept, which is likely to allow suspects to be charged at an earlier stage because it expands the range of evidence which can be taken into account when deciding whether they should be charged; and providing for bail with conditions for terrorism offences, which would enable terrorism suspects who do not pose a threat to public safety to be released but subject to conditions.[45] Ms. Hemming from the CPS agreed that bail with conditions could be seen as an alternative to pre-charge detention for those accused of lesser terrorism offences:

50. We urge the Government to consider the interrelationship between the various alternatives to extending pre-charge detention, in order to bring forward a package of measures, taken together, in place of the 42 days proposal.

51. We again call on the Government to give serious and urgent consideration to introducing bail with conditions for Terrorism Act offences, or to explain its reasons for refusing to do so.

The Civil Contingencies Act option

52. In its pre-charge detention options paper the Government included as one option Liberty's suggestion that the Government need not legislate now to extend the period of pre-charge detention in anticipation of a future grave emergency involving multiple plots, but can rely instead on the Civil Contingencies Act 2004. In Liberty's view, that Act provides a power to extend pre-charge detention periods in any future emergency, subject to parliamentary and judicial control, and a targeted and temporary extension of pre-charge detention periods in a genuine emergency, contained in an executive order which could be quashed by the courts if incompatible with the ECHR, which would be preferable to a permanent change to the legal framework contained in primary legislation which can only be declared incompatible by the courts and could not be struck down.

53. The Prime Minister indicated some scepticism about this proposal in his comments in the House of Commons on 25 July when he asked whether advocates of this option believe that "the declaration of a state of emergency in the circumstances that we have been talking about would not send out a message about how we deal with things in this country that is exactly the opposite of the message that we want to send out?"[47] In the Home Office's recent paper, the Government rejects the Civil Contingencies Act option for a number of reasons, including uncertainty about whether it would cover the sorts of situations which the Government wishes to cover (e.g. complex investigations falling short of an emergency).

54. We note that according to the Home Office's summary of consultation responses, the majority of respondents preferred the Civil Contingencies Act option, being attracted in particular by the understanding that it is linked to specific operational circumstances and time limited. However, we have grave doubts about Liberty's Civil Contingencies Act proposal, for a number of reasons. We doubt whether the power of the executive to make emergency regulations under the Civil Contingencies Act includes a power to authorise detention. The power to make emergency regulations[48] is a general power, to make provision of any kind that could be made by Act of Parliament or exercise of the Royal Prerogative, but does not expressly include deprivation of liberty. In our view the "principle of legality" which is well established in our common law of human rights,[49] requires such general powers to be read strictly and requires deprivations of liberty to be expressly authorised by Parliament in the regulation making power. In the absence of such express authorization to deprive of liberty, any regulation extending the period of pre-charge detention would be ultra vires.

55. The Act also expressly limits the regulation making power by providing that emergency regulations "may not alter procedure in relation to criminal proceedings".[50] We find it hard to believe that the limit on pre-charge detention in Schedule 8 to the Terrorism Act 2000 does not count as part of the "procedure in relation to criminal proceedings". To confine the limitation to post-charge proceedings would be highly artificial (a pre-charge detention hearing is clearly not civil), and again we think that the common law principle of legality, that the phrase be interpreted with a presumption in favour of liberty, would come into play. In our view, therefore, the limitation on the power to make emergency regulations altering procedure in relation to criminal proceedings would apply, and make a regulation extending the period of pre-charge detention ultra vires. In short, we do not agree that the Civil Contingencies Act authorizes executive preventive detention in times of emergency. If the Government wishes to take that step, there would need to be a proper parliamentary debate about whether the strict conditions for derogating from the right to liberty in Article 5 ECHR were met.

56. We are also concerned by the lack of safeguards involved in the Civil Contingencies Act option: it leaves it to the emergency regulations themselves to provide the necessary safeguards, such as appropriate judicial scrutiny of extended detention, which both the Government and Parliament may be less inclined to provide when regulations are being made in the context of an emergency.

57. We also share the concern expressed by the DPP to the Home Affairs Committee, that the difficulty with the Civil Contingencies Act option proposed by Liberty is that there would have to be a debate in Parliament about an order extending the period of pre-charge detention in respect of a particular case, and this would risk prejudicing the trial of those concerned (and see paragraph 60 below).[51]

58. Our conclusion is that the Civil Contingencies Act option is inappropriate, for the reasons we have given above. In addition, we expect Parliament to legislate on the basis of clear evidence, not hypothetical nightmare scenarios.

Parliamentary safeguards

59. Leaving aside for a moment the question of whether the case for such a change has been made out, we welcome any commitment to enhance parliamentary accountability for the use of powers which interfere with important human rights such as the right to liberty. As we noted in our recent report, there is already considerable scope for improving parliamentary accountability for exercise of the extended power to detain for between 14 and 28 days.

60. However, we are very concerned by the unavoidable implication in the Government's preferred option that there might be parliamentary scrutiny and debate about the appropriateness of the exercise of the extended power to detain for up to 42 days in relation to specific, ongoing investigations. In our view this gives rise to the same concern as was raised by the DPP in the context of the Civil Contingencies Act option: any parliamentary debate about whether it is justifiable to invoke the higher 42 day limit in relation to a particular investigation will carry a serious risk of prejudicing the eventual trial of the individuals who are detained in the course of that investigation. The nature of the concern was explained by Ms Hemming of the CPS:[52]

"We have real concerns that if there is an open Parliamentary debate about particular individuals, what would be said in those open debates would become public before that individual went to trial, and there may be issues over fair trial."

61. Lord Carlile has expressed similar concerns about the potential unfairness to the uncharged suspect under the Government's original option (ii), which envisaged a debate in Parliament before the extended detention powers could be used. [53] We agree. Because the power to extend will be in relation to a specific, ongoing investigation, any parliamentary debate about the justification for exercising the power will necessarily be so circumscribed as to be virtually useless as a safeguard.

62. Parliament's proper role is to create the framework within which counter-terrorism is investigated and prosecuted. It is not appropriate for Parliament to debate and decide on whether particular individuals should be detained pre-charge beyond 28 days. That is an inherently judicial, not a legislative, function. We recommend that the Government rule out enabling Parliament to debate and decide on pre-charge detention beyond 28 days in relation to specific ongoing investigations.

63. Although, for the reasons given above, we object in principle to a legal framework which envisages parliamentary debate about the merits of extensions of pre-charge detention in relation to specific investigations, we think it is also worth pointing out that, even on their own terms, the parliamentary safeguards which are proposed are hardly "substantial" as the Government claims. On closer inspection, the bringing into force of the proposed 42 day limit is not really "subject to parliamentary approval" at all, despite the Home Secretary's claims in her letter of 5 December. Even if both Houses vote to disapprove the order, it will remain in force for 30 days, and therefore, assuming that the order bringing into force the 42 day maximum will only be made towards the end of the current 28 day maximum period, the order will nearly always lapse only after the relevant individuals have been detained for the full 42 days.

Judicial safeguards

THE PROMISE OF "STRONGER JUDICIAL SAFEGUARDS"

64. The importance of the judicial safeguards which accompany pre-charge detention has been consistently emphasised by the Government throughout its consultation on whether there should be an extension beyond 28 days. Indeed, the Government's preferred option has always been to extend the current 28 day limit with "additional safeguards". Both the Prime Minister in his statements to the Commons and the bill contents paper refer to enhancing the judicial safeguards which already exist and about "further" judicial scrutiny, and the pre-charge detention options paper talked of balancing any increase in the limit by "strengthening the accompanying judicial oversight". Judicial safeguards continue to be part of the Government's description of what it proposes: in the Home Secretary's letter of 5 December to the Chairman of the Home Affairs Committee, she emphasises that "the higher limit would be … subject to … strong judicial safeguards."

65. In our last report, we welcomed the Government's apparent commitment to enhancing the judicial safeguards surrounding pre-charge detention, and in particular the Prime Minister's acknowledgment that proper judicial scrutiny is essential in order to guarantee against arbitrariness in the exercise of powers which take away liberty.[54] Our welcome proved misplaced: there are no additional judicial safeguards proposed as part of the Government's preferred option for extending pre-charge detention.

66. We have been puzzled by this aspect of the Government's proposals since the beginning of the consultation in July, for although there are repeated references in the consultation documents to increased judicial safeguards, no specific proposals were made in any of the consultation papers which amount to improving judicial scrutiny or strengthening the judicial safeguards. We were particularly concerned because we had very recently made detailed and specific recommendations about how to improve the current judicial safeguards surrounding pre-charge detention.[55] When the Minister, Tony McNulty, gave evidence to us in September he again referred to there being stronger judicial safeguards if the power to detain pre-charge were to be extended beyond 28 days,[56] so we pressed him as to exactly what sorts of additional judicial safeguards the Government had in mind.[57]

67. We received a disarmingly candid answer from Mr David Ford, Head of the Counter Terrorism Bill team. He said:

Elsewhere in his evidence, however, Mr. Ford said that there may also be an additional role for the judiciary in terms of oversight of the pre-charge detention period.[59] We therefore wrote to the Minister again asking what stronger judicial safeguards the Government has in mind when it talks of strengthening those safeguards.[60] In the Minister's response, he said that one of the options set out in the consultation papers was increased judicial involvement in the pre-charge detention period, and he said that the Government was now considering the nature of the judicial safeguards for any extended period of pre-charge detention and would keep the Committee informed of developments.[61]

68. In the event, Mr. Ford's candid answer proved correct. In the Government's announcement of its preferred way forward, the only additional "safeguard" surrounding applications for warrants of further detention is that applications for extension would require the consent of the DPP. It hardly needs pointing out that this is not a "judicial" safeguard, and it hardly seems a very substantial safeguard as it is already the case that applications for extension of detention are made by the Crown Prosecution Service not the police,[62]and it is inconceivable that the DPP would not be asked to consent to the making of such an exceptional application as one to extend pre-charge detention beyond 28 days.

69. The Home Office's summary of consultation responses states that any support for an extension of pre-charge detention was on the understanding that there would be additional oversight to ensure that any further detention beyond 28 days was justified, and that most respondents echoed the view that there should be added judicial or Parliamentary scrutiny should the Government decide to go beyond 28 days.[63]

70. In light of the Government's previous statements of intent to provide additional judicial safeguards surrounding pre-charge detention, and the apparent views of most respondents to the Government's consultation that such additional judicial safeguards should be provided if any extension to 28 days is proposed, we recommend that the Home Secretary provide Parliament with a full explanation as to why the Government has decided not to propose any additional judicial safeguards.

THE ADEQUACY OF EXISTING JUDICIAL SAFEGUARDS

71. In the absence of any proposals by the Government to introduce additional judicial safeguards, the Government's proposals for pre-charge detention up to 42 days will therefore depend on the adequacy of the existing safeguards.

72. In previous reports we have repeatedly expressed concerns about the adequacy of the judicial safeguards at the hearings of applications for a warrant of further detention.[64] We have two main concerns. First, we are 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 are 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.

73. Since our last report we have sought to understand better the way in which the judicial safeguards which currently exist actually operate in practice, by taking evidence on the subject from Ms Hemming and Mr. Bajwa. We have revisited our earlier recommendations in light of their very useful evidence.

THE RELEVANT HUMAN RIGHTS STANDARDS

74. We have explained the human rights standards which apply to pre-charge detention in previous reports on this subject.[65] In short, the Government's proposal to extend pre-charge detention of terrorism suspects to 42 days engages a number of aspects of the right to personal liberty in Article 5 ECHR:

(1) the requirement that deprivations of liberty must be "in accordance with a procedure prescribed by law" and "lawful, which means that there must be sufficient guarantees against the detention being either arbitrary or disproportionate;[66]

(2) the right of an arrested person to be informed "promptly" not only of the reasons for his arrest but also "of any charge against him";[67]

(3) the right of a person arrested on reasonable suspicion of having committed an offence to be brought promptly before a judge;[68]and

(4) the right of an arrested or detained person to a judicial hearing to determine the lawfulness of their detention.[69]

75. The right of the defence to a fully adversarial hearing at applications for extended pre-charge detention is well established in ECHR case-law. Article 5(4) ECHR provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

76. In Garcia Alva v Germany[70] the European Court of Human Rights said this about the minimum content of a "judicial procedure" for the purposes of Article 5(4):

"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."

77. We note that in response to concerns we have already expressed about the limited opportunity to challenge the basis on which a suspect has been arrested and continues to be detained, the Government has suggested that this is not the role of the court at the hearing of a warrant for further detention, because it is already possible to make a judicial challenge to unlawful detention through the use of habeas corpus proceedings.[71] In our view, however, there is no doubt that hearings of applications for warrants of further detention must comply with the requirements of Article 5(4).[72]

78. We have also made clear in earlier reports that ever longer periods of pre-charge detention risk giving rise to independent breaches of the right not to be subjected to inhuman and degrading treatment in Article 3 ECHR, because of the oppressiveness of lengthy detention without charge, and also to statements obtained from suspects after lengthy pre-charge detention being ruled inadmissible at trial for the same reason.[73]

POWER TO EXCLUDE THE SUSPECT AND HIS REPRESENTATIVE AND TO WITHHOLD INFORMATION

79. Our consistent concern about the adequacy of the existing judicial safeguards has been that the hearing at an application for a warrant of further detention is not a proper "adversarial" hearing because the statutory framework (Schedule 8 of the Terrorism Act 2000) expressly allows:

(1) the suspect and their legal representative to be excluded by the judge from any part of the hearing;[74] and

(2) information to be provided to the judge but withheld from the suspect and their legal representative if the judge is satisfied that there are reasonable grounds for believing that if the information were disclosed certain harms would be caused, including that "the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with.[75]

80. The effect of these provisions is that pre-charge detention can be extended for up to 28 days on the basis of material which is not made available to the suspect or his lawyer and which is considered by the judge at a closed hearing from which the suspect and his lawyer are excluded.

81. In response to our recommendation in our last report that, for there to be proper judicial scrutiny of applications to extend pre-charge detention, there should be a full adversarial hearing before a judge, subject to the law of public interest immunity to protect sensitive information, the Government asserted in its response to our report that there is "already a full adversarial hearing", although it accepts that "on occasion, at the initial applications to extend detention that are made before the 14 day period has elapsed, the judge is given sensitive information to allow him to make an informed decision.[76] Such information is unsafe to disclose to the suspect or cannot be disclosed at this early stage of an ongoing investigation." Mr. Ford in his oral evidence also said that "the hearings that we have are already full adversarial hearings."[77] We were surprised to hear the Government describe extension hearings as "full adversarial hearings" when both we and our predecessor Committee have consistently pointed out that such hearings fall well short of a full adversarial hearing because under the relevant provisions of the Terrorism Act 2000 detention can be extended in the absence of the detainee and on the basis of material not available to them. The Government, however, continues to maintain that the hearings are "fully adversarial": see, for example, the letter dated 5 November 2007 from the Home Secretary to the Chair of the Home Affairs Committee.

82. We have sought to ascertain how often, in practice, the suspect and their lawyer are excluded from the hearing or parts of the hearing, how often information is provided to the judge which is not disclosed to the defendant or their lawyer and what sort of information might be provided to the judge but withheld from the suspect and their lawyer.

83. We heard from Sue Hemming of the CPS that, although she has not herself conducted any of the applications for further detention, she had made inquiries about how often the power to exclude the suspect is exercised and had been told that in a total of 17 applications made by Crown prosecutors for an extension of detention between 14 and 28 days an application to exclude the suspect from the hearing had been made in only one of them.[78] She had also asked two senior investigating officers from the police who had been involved in a large number of these hearings and they had only made two applications to exclude the suspect from the hearing. Although she could not say from her own experience what sort of information might be provided to the judge but withheld from the suspect, she had also asked about this and was satisfied that the sort of material withheld in the cases that she had been told about was the type of material where the police are carrying out investigations and they do not want to alert the suspect to that material because they want to be able to question him about it in due course, i.e..it is information which forms part and parcel of the investigation, and is therefore squarely within the scope of the power to withhold.[79] From the information she had been given by those who had dealt with such hearings, Ms. Hemming did not think that the information withheld from the defence and their lawyer at such hearings included information derived from intelligence sources which formed the basis for the reasonable suspicion that the suspect has committed a terrorism offence.[80] However, she very fairly made clear that she did not have sufficient experience of these hearings to be able to answer that question directly.

84. Mr. Bajwa, on the other hand, who has been involved in three separate investigations and has direct experience of conducting extension of detention hearings, said that he could not recall a case in which there was not a closed hearing of some kind.[81] He said

"Plainly, I do not know what was discussed and how much evidence, if any, was called at the closed hearing, but we are told routinely, before we enter the room: 'We have been to see the judge in private and we have had a private hearing'. What was discussed we do not know."

85. Mr. Bajwa also said that the defence does not have access to very much material at all, which makes it difficult for them to mount an effective challenge to applications for further detention at such hearings.[82] He told us that at the time of arrest a terrorism suspect is told that they are suspected of being involved in the commission, preparation or instigation of a terrorist offence which, he said, tells the arrested person nothing except "I believe you are a terrorist".[83] He said that they are then taken to the police station where they are told nothing for very many days as to the basis of why they are there. The statutory notice indicating that there will be an application for more time to the court contains very little information, and is usually worded identically whether it is an application at the 7, 14 or 21 day stage. So it is only at a very late stage that a suspect is given any idea as to the state of the evidence against them. Ms. Hemming accepted that the statutory notices say very little but pointed out that more details are given in the course of the oral application for more time before the judge. Mr. Bajwa responded that it was unfair to suspects if they are given no prior notice of the information that forms the basis for the grounds of application and only find out at the oral hearing before the judge.[84]

86. We also noted that the CPS Note on scrutiny of pre-charge detention in terrorist cases states that the defence is allowed to cross-examine the senior investigating officer at these hearings but that this is "not a legal entitlement", rather it is done "to assist the court and speed up the process." Ms. Hemming said that there is nothing, in statute for example, that specifically says that the investigating officer can be cross-examined, but that Crown prosecutors would want the judge to have as much information as possible to make a proper decision.[85]

87. While we recognise that a hearing takes place before a judge, at which the suspect can be legally represented, and the prosecution case for extending detention can be tested, the evidence we have heard has confirmed us in our earlier view that the proceedings are not adversarial in the sense required by Article 5(4). We fully acknowledge the point made by Ms Hemming, that these hearings are not a trial process but concern an investigative stage in the process, and the police are entitled to carry out an investigation and to investigate properly, rather than give full disclosure of absolutely everything to the suspect whilst they are investigating and whilst they are questioning.[86] We accept of course that where an application for further detention is made on the ground that continued detention is necessary to obtain relevant evidence by questioning the suspect, the police's proposed interview strategy, including lines of future questioning, is information which the police are entitled to withhold from the suspect at these hearings. Indeed, this was very recently confirmed by the House of Lords.[87]

88. As the statutory scheme stands, however, it enables material to be withheld from the suspect if the judge decides that disclosure of the information would, for example, interfere with the gathering of information about acts of terrorism, which might well include intelligence information on the basis of which the original arrest was made. Although we have been unable to establish whether information of this kind is routinely, or ever, withheld from suspects, we have heard enough about the extremely limited nature of the disclosure to the suspect in advance of these hearings to be seriously concerned that, in practice, the hearings do not operate fairly to the suspect. This is because the suspect may not have an effective opportunity to challenge before the judge the information forming the basis for their arrested and continued detention. The statutory scheme makes no provision for special advocates to ensure that the interests of the suspect are represented in closed hearings before the judge.

89. We recommend that the statutory regime governing hearings for warrants of further detention be amended to ensure that the hearings are truly adversarial by, for example:

imposing more stringent requirements about the information which must be contained in the statutory notice given to a suspect before such a hearing;
defining more closely the power to withhold information from the suspect and their lawyer;
providing for special advocates to represent the interests of the suspect at any closed part of the hearing for more time;
providing expressly for the right of the suspect to cross examine the investigation officer;
providing expressly that any restrictions on disclosure or participation are subject to the overriding requirement that the hearing of the application be fair.

THE TEST APPLIED BY THE COURT

90. In an article in the New Law Journal in 2006, Mr. Bajwa wrote that the reason why warrants of further detention are granted by courts against individuals who are subsequently released without charge is that under the current statutory framework the court's two-stage test is framed in too limited a way:

"There is at no stage in the whole process a requirement for the police to demonstrate to the suspect's representative or the court that there is sufficient evidence to justify the decision to arrest and detain. All that the court is required to be satisfied of is that the police are awaiting the result of an examination or analysis of any relevant evidence, and that the investigation is being conducted diligently and expeditiously. This can, in most cases, be established even where the detainee is manifestly innocent."

91. In oral evidence on 20 September, Mr. Ford (head of the Counter-Terrorism Bill team) said that he would expect already to be built into the procedure in these cases the requirement that the extension judge be satisfied that there are reasonable grounds to believe that the suspect has committed a terrorist offence in the first place.[88] In light of that acceptance, the Committee wrote to the Minister asking if the Government had any objection to making explicit on the face of the Bill that this is one of the requirements that must be satisfied by the prosecution when they are applying for an extension of detention. The Minister replied that the Government has no plans to do so.

92. Mr. Bajwa told us that the test for extending detention[89] is such a low test and the material that the defence has is so little and so vague, that the defence really does not have a chance successfully to object to detention being extended. He pointed out that there was not a single case that could be cited where an application for a warrant of further detention or an extension to that warrant has been refused.[90]

"The threshold is so low that, I dare say, if any of us in this room were arrested and we own a computer and a mobile 'phone, we could be detained - any one of us - for 28 days on the tests as currently framed. "Pending further analysis or examination" can be satisfied for any one of us because it will take more than 28 days to examine a mobile 'phone and a computer. The second part of it - that the police are acting diligently and expeditiously - a judge would be hard-pressed to say that the police are not acting diligently and expeditiously. So it can be satisfied for any one of us. That is the greatest concern that I have about the tests as currently framed. It makes it next to impossible for us to successfully resist the application, and I think it makes it next to impossible for a judge to refuse the application."

93. Ms Hemming told us that she did know of some cases where the application had been made by the police at an earlier stage in the process and been refused, and also that the high success rate was because such applications were very carefully prepared.[91] She also told us that although there is nothing in the legislation that requires the judge at an extension hearing to look at the evidence for the original arrest of the suspect and his continued detention, in practice there is a discussion of the evidence that already exists, as well as the evidence for which the prosecution is waiting.[92]

94. We remain extremely concerned that as the statutory test for further detention currently stands there is no onus on the police or prosecution to satisfy the court that there is material giving reasonable grounds to believe that the suspect has committed a terrorism related offence in the first place. In our view the current two-stage test sets the threshold too low.

95. We have already expressed our view, that the adequacy of the judicial control being exercised in practice has been seriously called into question in that three of the suspects arrested in connection with the August 2006 alleged airline bomb plot were authorised by the judge to be detained for up to 28 days yet were eventually released without charge at the very end of that period.[93] In addition, so far as we have been able to establish, they are not subject to control orders or other ongoing investigations.

96. Extending the period of pre-charge detention to 42 days, without any improvement in the judicial safeguards, raises the prospect of suspects being held for even longer before being released without charge. We recommend that the statutory regime be amended to introduce an additional express requirement that a court authorising extended detention must be satisfied that there is a sufficient basis for arresting and questioning the suspect. Since the Government regards this as being already implicit in the statutory framework, we cannot see any objection to making it explicit.

THE AVAILABILITY OF LEGAL AID

97. We were surprised to learn from Mr. Bajwa that legal aid is not available for suspects to be represented by counsel at hearings for extension of detention. Legal aid is only available for a solicitor to attend the police station to represent the suspect. He told us that he represents suspects pro bono at such hearings, but that many suspects are not represented by a barrister, even though it is an adversarial procedure involving cross examination of witnesses in which the person's liberty is at stake.

98. We recommend that legal aid be made available for representation by counsel at hearings of applications for further pre-charge detention in light of the importance of the consequences for the individual's liberty and the nature of the hearing.

ASSESSMENT OF ADEQUACY OF JUDICIAL SAFEGUARDS

99. Having now taken evidence about the way in which applications for warrants of further detention operate in practice, we find we are confirmed in our view that the process does not satisfy the requirement that the process be fully adversarial. A number of factors leave us with a general concern that the hearings are not treated sufficiently as "judicial hearings": the power to exclude the suspect and their lawyer and to withhold information from them, the view that there is no right physically to attend, the perception that there is no right (merely permission) to cross-examine, the lack of special advocates, the unavailability of legal aid for counsel, the lack of an explicit test focusing on the lawfulness of the detention: the cumulative effect of these is, in our view, a procedure which falls far short of a fully adversarial judicial procedure capable of satisfying the stringent requirements of Article 5(4) ECHR.

100. We anticipate that we will be proposing amendments to the Counter-Terrorism Bill to amend Schedule 8 of the Terrorism Act 2000 to give effect to the recommendations above, in particular to ensure that the judicial safeguards which apply at hearings to extend pre-charge detention comply fully with the requirement in Article 5(4) ECHR - ie that there is a truly "judicial" procedure, in which the suspect has an effective opportunity, at a proper adversarial hearing in which the parties are on equal terms, to challenge the reasonableness of the suspicion on which reliance is placed as the basis for the original arrest and continued detention.

17 Oral evidence, 20 September 2007, Qs 7-8. Back

18 "Counter terror Yard chief's fears", Daily Telegraph, 26 November 2007. Back

19 Counter-Terrorism and Public Trust, speech by Jonathan Evans to the Society of Editors conference in Manchester, 5 Noveber 2007. Back

20 Letter from Jonathan Evans, Director General of MI5, dated 27 November 2007, Appendix 7. Back

21 See e.g. JCHR Report on Prosecution and Pre-charge Detention, above, at paras 159-161. Back

22 The Governance of Britain, CM 7170, July 2007, para. 88. Back