Conclusions and recommendations
1. In
our view, a truly consensual approach should lead the Government
to accept that it has failed to build the necessary national consensus
for this very significant interference with the right to liberty,
and withdraw the proposal. To proceed with it, in these circumstances,
calls into question the Government's commitment to a consensual
approach (Paragraph 5)
2. We
therefore also agree that the case made by the police and the
Government for additional powers to detain terrorist suspects
before charge must be treated with great seriousness and considered
very carefully. That careful consideration involves subjecting
the case for extended pre-charge detention to rigorous scrutiny
to ascertain whether, on all the evidence, including the availability
of alternatives to extended pre-charge detention, there really
exists a risk to the public of sufficient magnitude to make it
truly "necessary" to extend the period of pre-charge
detention from 28 to 42 days, which is the test which human rights
law requires to be satisfied where measures would interfere significantly
with personal liberty. (Paragraph 6)
3. 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. (Paragraph
15)
4. We
do not propose to give this option any further consideration.
(Paragraph 22)
5. 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. (Paragraph 31)
6. 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.
(Paragraph 33)
7. 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. (Paragraph 40)
8. 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. (Paragraph 43)
9. 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. (Paragraph
46)
10. 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", 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). (Paragraph 48)
11. 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. (Paragraph 50)
12. 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. (Paragraph 51)
13. 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. (Paragraph 58)
14. 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. (Paragraph 60)
15. 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. (Paragraph 61)
16. 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. (Paragraph 62)
17. 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. (Paragraph 63)
18. there
are no additional judicial safeguards proposed as part of the
Government's preferred option for extending pre-charge detention.
(Paragraph 65)
19. 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, 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. (Paragraph 68)
20. 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. (Paragraph 70)
21. 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. (Paragraph 89?)
22. 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. (Paragraph 94)
23. 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. In addition,
so far as we have been able to establish, they are not subject
to control orders or other ongoing investigations. (Paragraph
95)
24. 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. (Paragraph 96)
25. 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. (Paragraph
98)
26. 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.
(Paragraph 100)
27. Any
extension to pre-charge detention is a serious interference with
liberty that requires a compelling, evidence-based demonstrable
case. We do not accept that the Government has made out a case
for extending pre-charge detention beyond the current limit of
28 days, for the following reasons:
(1) We can find no clear evidence that it is likely
that at some point in the near future more than 28 days will be
needed. In particular, this is not the view of the CPS who say
they have been operating perfectly "comfortably" within
the current limit.
(2) The alternatives to extension do enough to protect
the public and are much more proportionate, especially the combination
of the threshold test (charging on reasonable suspicion), post-charge
questioning and making intercept admissible.
(3) The proposed parliamentary mechanism creates
a serious risk of prejudice to the fair trial of suspects, because
it involves parliamentary debate about the merits of extending
the limit in relation to specific ongoing investigations.
(4) The existing judicial safeguards for extending
even up to 28 days are inadequate because they do not provide
a full adversarial hearing or an opportunity to challenge the
basis on which someone is being detained. (Paragraph 101)
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