5 Pre-charge detention|
Is the power to detain for up
to 28 days still necessary?
65. In our last report on the annual renewal of the
power to detain terrorism suspects pre-charge for up to 28 days,
we pointed out that the information required for Parliament to
be able to evaluate the need for the power was not available,
because there had still been no proper review of the cases where
the extended power had been used.
We were particularly disappointed that there had been no review
of why, in Operation Overt (the Heathrow liquid bomb plot case),
three people had been detained for almost 28 days before being
released without charge.
66. During the 2008 renewal debate, the then Minister
(Tony McNulty MP) expressly accepted the need for detailed information
to be available about how the power to detain beyond 14 days has
been used in practice when debating future renewals. He said "as
and when greater collective awareness of the ins and outs of those
detained beyond 14 days is possible, that will happen
will be right and proper to dissect that information retrospectively."
This commitment to review the cases of those detained for more
than 14 days in relation to the Heathrow bomb plot case has not
67. Lord Carlile's review of the "Operation
Pathway" case, 
the police operation which led to the arrest of 12 students from
Pakistan on suspicion of terrorism in April 2009, is precisely
the kind of detailed review for which we have consistently called
in relation to previous exercises of the power to extend pre-charge
detention, in particular those suspects arrested following the
Heathrow plot who were released without charge after almost 28
days in pre-charge detention. However, the Government has still
not undertaken that exercise, despite previously accepting in
principle the desirability of doing so. In fact, it now appears
that the Government has no intention of doing so: in its most
recent correspondence on this subject, it said "we have never
promised to specifically review the pre-charge detention of the
individuals who were arrested in relation to 'Operation Overt'
(the Heathrow Airline Plot)."
68. When the Prime Minister was recently asked about
this at the Liaison Committee, he rightly pointed out that when
the Government was proposing to extend the period of pre-charge
detention beyond 28 days, part of the proposal was that an independent
report would be done in every individual case in which the power
was used. That is
precisely what we have been asking for in relation to every individual
who has been held for more than 14 days before charge. It is not
an onerous task. The power has not been used for two years and
eight months. The number of individuals in respect of whom it
has ever been used is small. We recommend that a thorough independent
review be conducted of the pre-charge detention of all those individuals
who were arrested in relation to the Heathrow airline plot and
detained without charge for more than 14 days, in order to ensure
that Parliament is properly informed about the operation of this
power in practice when it debates whether it should be renewed
in June this year.
Adequacy of procedural safeguards
on extension of pre-charge detention
69. In our last report on the renewal of the 28 day
pre-charge detention power we also repeated our longstanding concerns
that the current arrangements for judicial authorisation of extended
pre-charge detention are not compatible with the right to a judicial
determination of the lawfulness of detention and will lead in
practice to breaches of the right to liberty in Article 5 ECHR
in individual cases.
We pointed out that the decisions of the European Court of Human
Rights in A v UK and of the House of Lords in AF
increased the risk of such breaches of Article 5. The risk is
that the current statutory provisions governing extensions of
pre-charge detention may lead to a suspect's pre-charge detention
being extended on the basis of allegations the essence of which
the suspect does not have the opportunity to contest.
70. On 23 November 2009 the Government published
Lord Carlile's Report on "Operation Pathway".
The individuals concerned in that case were arrested on 8 April
2009, their period of pre-charge detention was subsequently judicially
extended, and they were transferred, without charge, to immigration
detention on 22 April, just before the expiry of the 14 day period.
Lord Carlile's report, which is the first review of the operation
in practice of the extended periods of pre-charge detention in
terrorism cases, is of considerable interest to us in view of
our previous work on the issue of pre-charge detention. In particular,
its detailed review of the way in which the procedures for extending
their pre-charge detention operated in practice confirms many
of our concerns about the adequacy of the safeguards in that process
and the risk of breaches of Article 5 ECHR unless the procedures
are reformed to ensure that suspects are told clearly the offences
they are suspected of having committed and the reasons for the
suspicions leading to their arrest.
71. Lord Carlile's report reveals an interesting
difference of view between the police and the CPS as to whether
there were grounds to apply for an extension of pre-charge detention
beyond 14 days to allow inquiries to continue.
The CPS's view was unequivocally that there were no grounds to
apply for a further extension of their pre-charge detention, as
there was insufficient evidence in relation to each of the suspects.
In Lord Carlile's words
The police were surprised to receive this advice,
as their understanding and experience was that it was enough for
them to show that more time was needed to convert intelligence
to evidence and that the inquiry was being progressed diligently
and expeditiously. The CPS responded that the detentions in their
view might be held unlawful if continued.
72. Lord Carlile records the fact that the police
remain of the view that all the suspects should have been kept
in custody longer to allow for continuing questioning and inquiries
into the case. Lord Carlile, however, finds it very difficult
to understand what it was believed that further questioning would
have achieved, given the number of questions already asked of
the suspects in interview.
He expresses surprise that the police did not anticipate that
they would be required to clarify the evidential basis for the
arrests before a judge during the period of detention "given
the long history of arrest law
and the provisions of the
73. We are less surprised. The police's expectation
that the extension judge would only consider whether more time
is needed and whether the investigation is being conducted diligently
and expeditiously by the police was not at all surprising given
the statutory framework and the way in which such extension hearings
had always operated in the past. As we said in our last report
on the 28 day renewal, we were "concerned about the adequacy
of the judicial oversight at extension hearings, because the judge
is only empowered to consider 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 suspect's original arrest and continued detention."
It is therefore no surprise to us, in view of the language of
the statute, that the police in Operation Pathway expected their
application for an extension of detention to be granted if they
could show that they were conducting their investigation diligently
and expeditiously. They would have had to have quite a sophisticated
understanding of human rights law to appreciate that the extension
judge might read into the statutory framework words which are
not there, in order to make it compatible with the right to liberty
in Article 5 ECHR.
74. What had changed since the date of our report,
it appears, is that the extension judges in the Operation Pathway
cases had adopted a new interpretation of the relevant provisions
of the Terrorism Act 2000 in order to make them compatible with
Article 5 ECHR, by reading in an "evidential test" that
is not present on the face of the statute: they made it clear
that continued detention would be likely to become unlawful if
the suspects were not told clearly the offences they were suspected
of committing and the reasons for the suspicions leading to their
arrests. There is,
however, no publicly available report of the judge's reasons.
75. Lord Carlile makes two recommendations on the
back of these findings:
(1) that the police and the CPS should take immediate
steps to ensure that their procedures reflect the need for legal
advice to the police at an early stage - expert CPS lawyers should
be informed, well before arrests take place, of ongoing inquiries
likely to result in arrests, and asked to advise on the state
of the intelligence, information and evidence as the inquiry progresses:
(2) all police officers involved in counter-terrorism
policing should be trained in the law of arrest and its potential
effect on detentions under the Terrorism Act.
76. The Government's written response to Lord Carlile's
report is terse and
disappointing. It contains no commitment to do anything in response
even to his modest recommendations. In response to the recommendation
about improved procedures between the police and the CPS, the
Home Secretary simply says that "action has already been
taken to streamline and clarify police procedures where appropriate
in line with your suggestions." The Minister in his evidence
to us elaborated on this, explaining that the police and the CPS
have agreed a procedure whereby all counter-terrorism units brief
CPS officials in advance of arrests, unless there are exceptional
circumstances such as the need for urgent action.
He said that the CPS is already involved pre-arrest in many terrorism
cases and they are consulted by the police. We recommend that
any Memoranda of Understanding or specific protocols designed
to ensure that the police inform and consult appropriate CPS lawyers
well before arrests take place are made publicly available for
77. The Home Secretary's response to Lord Carlile's
Report does not respond at all to his specific recommendation
about police training. The Minister did say in evidence to us,
albeit in very general terms, that the Government was "very
happy to look at" further guidance and possibly training
to police officers to ensure that they have the necessary knowledge
and understanding of the relevant part of the Terrorism Act 2000.
However, his subsequent letter appeared to contradict this: he
said "the police are fully trained on the lawfulness of arrests.
Suspects are told as much as possible about the reasons for their
arrest and the allegations against them within the confines of
an ongoing terrorist investigation and that this is in accordance
with Article 5(2)."
It therefore seems that the Government does not intend to make
any changes to police training notwithstanding Lord Carlile's
findings in his report and his specific recommendation. We
recommend that training be provided to police officers as recommended
by Lord Carlile and that such training should expressly cover
the effect of Article 5 ECHR on detentions under the Terrorism
78. We also asked the Minister whether the Government
would now consider amending the legislative framework and the
relevant PACE Code of Practice to reflect the additional words
that had effectively been read into the relevant provision by
the extension judge in order to make the provision compatible
with Article 5. He replied that the Government does not consider
it necessary to amend Schedule 8 of the Terrorism Act 2000.
The reasons given, however, do not address our concern that, unless
the relevant statutory provision and Code of Practice are amended
to reflect the Convention-compatible interpretation of the provision,
police officers in future cases will labour under the same misapprehension
as those in Operation Pathway who assumed that their application
for extension would be granted by the extension judge. This could
result in suspects being detained before charge for longer than
is justified by the evidence against them. The law in this area
is complex and there is no law report of the reasons given by
the extension judge in the Operation Pathway case. In these circumstances
there is an urgent need for the law itself, and the guidance upon
it, to be clarified.
79. In view of our previous, consistently held
concerns about the adequacy of the procedural safeguards surrounding
the extension of pre-charge detention, which are confirmed by
Lord Carlile's report, we recommend that:
(1) Schedule 8 of the Terrorism Act 2000 is
amended to make clear that the extension judge must apply an evidential
test when deciding whether or not to extend pre-charge detention;
(2) Code H of the PACE Codes of Practice be
amended to explain to police why Article 5 ECHR is relevant to
extensions of pre-charge detention and what its requirements are,
and to make clear that continued detention of terrorism suspects
is likely to become unlawful if the suspects are not told clearly
the offences they are suspected of committing and the reasons
for the suspicions leading to their arrests.
80. We also recommend that, in the absence of
any accessible report of the extension judge's reinterpretation
of Schedule 8 of the Terrorism Act 2000, the Crown Prosecution
Service adopt clear guidance about when extension should be sought,
reflecting that interpretation.
Draft Bill on 42 days
81. When the Government was defeated in the House
of Lords on its proposal to extend pre-charge detention to 42
days, the then Home Secretary published a draft Bill, the Counter
Terrorism (Temporary Provisions) Bill, which she said the Government
would introduce if and when the need arose.
82. The Bill would make temporary provision, lasting
for 60 days, enabling the DPP to apply to the courts to detain
a terrorism suspect for up to a maximum of 42 days. It contains
a sunset clause after 60 days and for review and report by Lord
Carlile or his successor, but it contains no additional judicial
or parliamentary safeguards. Compared to even the 42 day proposal
that was defeated, it is an alarmingly broad power with very little
in the way of independent safeguards.
83. We asked the Minister whether this draft Bill
still featured in the Government's plans in any way. We are not
entirely reassured by his answer. He did not envisage that the
maximum period of pre-charge detention would be revisited before
the general election "unless there is a major spike in some
public emergency issue between now and then."
That is precisely our concern. As the Government itself argued
during the debate on the 42 days proposal, in the wake of a terrorist
attack Parliament does not always scrutinise emergency measures
as thoroughly as it might. We recommend that the Government
withdraw its draft Bill which, if it were enacted, is likely to
give rise to breaches of the right to liberty in Article 5 ECHR
in the absence of a derogation.
Alternatives to extended pre-charge
BAIL FOR TERRORISM ACT OFFENCES
84. Lord Carlile in his Operation Pathway report
recommended that consideration should be given to amending the
Terrorism Act 2000 to allow the granting of bail by a judge for
a period of up to the 28th day following arrest, subject
to the full range of conditions available in relation to crime
generally and in relation to control orders, to allow further
inquiries to continue.
He pointed out that the unavailability of bail where a person
has been arrested under the Terrorism Act 2000 is to be contrasted
with the situation in Northern Ireland, where bail has always
been available from a High Court judge even when the arrest was
in respect of terrorism, and under immigration law, where the
Special Immigration Appeal Commission has the power to grant bail.
85. The Home Secretary rejected this recommendation
on precisely the same basis as the Government opposed our recommendation
and proposed amendment to the Counter-Terrorism Bill in the last
session: bail should not be available for terrorist suspects "because
of the risks to public safety" and the denial of bail to
this class of suspect does not breach Article 5(3) ECHR.
86. We put to the Minister Lord Carlile's question
of why bail should have been available in relation to terrorism
offences in Northern Ireland, even during the Troubles, but is
not available in relation to terrorism offences in the rest of
the UK. His response was that the Government accepted the operational
advice of ACPO that bail should not be available in relation to
terrorism offences because of the risk to public safety that might
87. The Minister also said in evidence that the advice
of the Crown Prosecution Service is also that bail should not
be available in relation to terrorism offences.
That is the first time we have heard that suggestion and we find
it surprising in view of the clear risk of breach of Article 5(3)
ECHR. We have been
unable to find any public statement of the CPS's view on the question.
88. We remain of the view expressed in our earlier
reports that bail ought in principle to be available in relation
to terrorism offences. Whether it is granted in any particular
case, of course, will be a matter for a court to determine. The
range of terrorism offences is now so broad that many people arrested
under the Terrorism Act are arrested on suspicion of some involvement
at the periphery of terrorist-related activity.
89. Views are clearly divided on whether bail
ought to be available, including within the police service. While
ACPO is opposed to bail being available, the police officers we
spoke to at Paddington Green police station in 2006, who deal
with terrorism suspects routinely, were in favour. We recommend
that the Government hold a full consultation on whether bail should
in principle be available in relation to terrorism offences.
INTERCEPT AS EVIDENCE
90. We welcomed the Government's announcement in
June 2007 that the prohibition on the use of intercept as evidence
would be reviewed by a small cross-party group of Privy Counsellors.
We had long been calling for the relaxation of the prohibition
in order to facilitate more use of criminal prosecutions in terrorism
cases and noted the growing frustration at the lack of progress
on this issue in the face of steadily mounting evidence that it
required urgent reconsideration. We have also said that if intercept
were admissible as evidence it would reduce the pressure for an
extension of pre-charge detention.
91. The Privy Counsellors, chaired by Sir John Chilcot,
reported in January 2008, concluding that the ban on intercept
as evidence should be substantially relaxed, although certain
procedural safeguards would need to be legislated for so as to
minimise the risks to national security and to the operational
effectiveness of intercept as intelligence.
92. On 6 February 2008 the Prime Minister affirmed
his commitment to the principle of using intercept as evidence
and the case for doing so, provided it could be done consistently
with national security (and subject to nine specified operational
requirements). He agreed that the programme of work recommended
by the Chilcot report be taken forward, with the objective of
93. In our reports on the Counter-Terrorism Bill
in 2008, we were extremely disappointed that the Bill did not
contain measures to give effect to the Chilcot review.
We asked the Government to disclose details of the "Public
Interest Immunity Plus (PII+)" model that was being developed
by the Government as the possible vehicle for implementation but
the Government refused to do so.
94. On 9 February 2009 the Advisory Group of Privy
Counsellors issued an interim report on progress as it stood at
the end of the first of the three phases of work: designing a
model for the use of intercept as evidence. It reported that the
work was proving both complex and demanding. It supported the
implementation project's move into its second phase of "building"
the model, before the third phase of testing it, but sounded "a
clear note of caution": there remained key issues to resolve,
in particular in terms of reconciling legal and operational requirements
in complex counter-terrorism and serious organised crime cases.
95. The Report concluded that "because of the
intrinsic tension between operational and legal issues",
securing the intended increase in successful prosecutions while
ensuring fairness of trial remains difficult and may not prove
possible in the most complex cases. The Progress Report clearly
warned that future progress may not be possible.
96. In May 2009, the Government, in its Reply
to the Fourth Report of the Independent Reviewer Pursuant to Section
14(3) of the Prevention of Terrorism Act 2005, highlighted
the fact that a review of nine control order cases had been conducted
by independent senior criminal counsel and that he had concluded
that the ability to use intercepted material in evidence would
not have enabled a criminal prosecution to be brought in any of
the cases studied.
97. Subsequently, in December 2009, the earlier warnings
were made out when the Home Office published a paper entitled
Intercept as Evidence, concluding that the reports they
had received were such that "no responsible government"
could proceed with implementing the introduction of intercept
evidence on the basis of the proposed model. The Home Secretary,
Alan Johnson, said: "The issues involved are complex and
difficult, and addressing them commensurately challenging. But
the importance of our interception capabilities to national security
and public protection means that there can be no short cuts."
The Government has not, however, entirely dismissed the idea of
using intercept evidence and its advisory group has been asked
to explore other avenues to allow intercept to be admitted as
98. One issue raised in the Intercept as Evidence
paper was the impact of the recent case of Natunen v Finland
(application no. 21022/04). In that case, the European Court of
Human Rights determined (unanimously) that that there had been
a violation of Article 6 (right to a fair hearing) of the European
Convention on Human Rights, on account of recorded telephone conversations
obtained through secret surveillance not having been disclosed
at the applicant's trial for drug trafficking. The case makes
clear that full retention, or judicial control over what may be
discarded, is likely to be essential in order to ensure the equality
of arms required by the guarantee of the right to a fair trial.
99. Finally, the Government's Independent Reviewer
of Counter-Terrorism Legislation, Lord Carlile QC, who had previously
supported the use of intercept as evidence, indicated in a report
issued in November 2009 that despite his willingness for it to
be introduced in appropriate circumstances, he had "yet to
see material to justify the conclusion that the permitting of
such evidence in terrorism cases would do more good than harm"
and that he believed that "this debate should now be drawn
to a conclusion, against the introduction of intercept evidence
in terrorism cases, with an undertaking to keep the matter under
review in the light of any changing circumstances."
100. On 4 February 2010 we received an informal briefing
from the "Intercept as evidence implementation team".
We are grateful to them for keeping us informed and for their
informative presentation. We do not underestimate the practical
difficulties which are presented by relaxing the prohibition on
the use of intercept as evidence. We also recognise the considerable
amount of work which has gone into trying to develop a viable
legal model for doing so. However, it has become increasingly
clear to us that the roadblock to progress is certain of the operational
requirements which were stipulated by the Chilcot Review. In particular,
the insistence on ongoing agency discretion over the retention,
examination and transcription of intercept material (the fourth
and fifth operational requirements) makes a legally viable regime
impossible given the clear requirements of Article 6 ECHR.
101. We welcome the fact that the advisory group
is continuing to explore ways of allowing intercept to be admitted
as evidence, but unless these two operational requirements are
revisited the next stage of the review is, in our view, already
doomed to failure. We do not think the Government can be surprised
by the decision of the European Court of Human Rights in Natunen
v Finland: it has long been clear that Article 6 ECHR requires
a full retention regime or judicial control over what may be discarded.
We understand the agencies' anxieties about ceding their discretion
in favour of judicial control, but, as we have seen in other contexts,
this is an inevitable consequence of the agencies engaging with
legal processes. In our view, the rule of law requires no less.
102. We do not see any difficulty in principle
with independent judicial control over what material may be discarded.
We therefore recommend that the fourth and fifth operational requirements
of the Advisory Group of Privy Counsellors (requiring ongoing
agency discretion over the retention, examination and transcription
of intercept material) be revisited in the next stage of its work.
Otherwise, we are concerned that the intelligence and security
services continue to exercise a de facto veto over this beneficial
reform by stipulating pre-conditions which are impossible to meet.
Impact on communities
103. During debates about extended pre-charge detention
in 2008 the Government undertook to conduct a risk-assessment
on the effect of the 28-day extension on communities. Asked when
this community-impact review would be complete, Lord West told
the House of Lords that "we hope to have the initial findings
out by the end of the year".
104. Since no impact assessment had been made available
to Parliament by the end of 2008, we asked the Government whether
it would be publishing its assessment of the impact of the 28
day extension on communities. The Government acknowledged its
commitment to undertake a review of the impact of all counter-terrorism
legislation on our communities, but said that its assessment had
been delayed due to extensive scoping work. It envisaged publishing
a research report by late November 2009.
105. When we asked the Minister on 1 December 2009
when the report would appear, he told us that "the commitments
that were given
to produce a report by the end of November,
whilst not being met in practice, will be met in spirit very shortly."
On 5 March 2010 the Government finally published its "Rapid
Evidence Assessment of Public Perceptions of Counter-Terrorism
106. We are disappointed that this important information
was not made available before the parliamentary debates on the
renewal of the control orders regime. As we observed in our report
on that subject, the impact of control orders on the communities
of those affected is one of the most controversial aspects of
those measures, with many people believing that the impact is
so severe and disproportionate that the use of control orders
54 Eighteenth Report of Session 2008-09, Counter-Terrorism
Policy and Human Rights (Fifteenth Report): Annual Renewal of
28 Days 2009, HL 119/HC 726 (hereafter "Report on 2009
Renewal of 28 days"), at paras 16-24. Back
HC Deb 23 June 2008 col 95 Back
Operation Pathway: Report following review by Lord Carlile
of Berriew QC (October 2009) ("Carlile Report on Operation
Letter from David Hanson, 13 January 2010, above n. 10. Back
Oral evidence taken before the Liaison Committee on 2 February
2010, HC (2009-10) 346-i, Q77. Back
Report on 2009 Renewal of 28 days, above n. 54, at paras 26-31. Back
Carlile Report on Operation Pathway (above, n. 56). Back
Ibid., para. 86 Back
Ibid., para. 88 Back
Report on 2009 Renewal of 28 days, above n. 54, at para. 27. Back
Carlile Report on Operation Pathway, above n. 56 at para. 85. Back
Letter dated 23 November 2009 from the Home Secretary to Lord
Carlile, deposited in the House of Commons Library. Back
Q89, Ev 12 Back
Schedule 8 Back
Letter from David Hanson, 13 January 2010, above n. 10. Back
Q102, Ev 14 Back
Carlile Report on Operation Pathway, above n. 56, at paras 93-94. Back
Qs 95-96, Ev 13 Back
Q98, Ev 14 Back
Article 5(3) ECHR contains the right to release pending trial. Back
See e.g. Ninth Report of Session 2007-08, Counter-Terrorism
Policy and Human Rights (Eighth Report): Counter-Terrorism Bill,
HL 50/HC 199 at para. 87. Back
The Government Reply to the Ninth Report of the Joint Committee
on Human Rights Session 2007-08, Cm 7344 (March 2008) at p.
9 (the Government said that a description of the model had been
included in the report of the Chilcot review). Back
HL Deb 1 July 2008 col. 203 Back