Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In

Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In - Human Rights Joint Committee Contents

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.[54] 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 … it will be right and proper to dissect that information retrospectively."[55] This commitment to review the cases of those detained for more than 14 days in relation to the Heathrow bomb plot case has not been fulfilled.

67. Lord Carlile's review of the "Operation Pathway" case,[56] 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)."[57]

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.[58] 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.[59] 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".[60] 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.[61] 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.[62] 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 ECHR."

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."[63] 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.[64] 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: and

(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[65] 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.[66] 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 scrutiny.

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.[67] 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)."[68] 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 Act 2000.

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.[69] 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; and

(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."[70] 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 detention

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 28^th 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.[71] 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 be involved.[72]

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.[73] 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.[74] 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 legislation.

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.[75] 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.[76]

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 evidence.

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".[77]

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 Legislation."

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 is counterproductive.

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

55 HC Deb 23 June 2008 col 95 Back

56 Operation Pathway: Report following review by Lord Carlile of Berriew QC (October 2009) ("Carlile Report on Operation Pathway"). Back

57 Letter from David Hanson, 13 January 2010, above n. 10. Back

58 Oral evidence taken before the Liaison Committee on 2 February 2010, HC (2009-10) 346-i, Q77. Back

59 Report on 2009 Renewal of 28 days, above n. 54, at paras 26-31. Back

60 Carlile Report on Operation Pathway (above, n. 56). Back

61 Ibid., para. 86 Back

62 Ibid., para. 88 Back

63 Report on 2009 Renewal of 28 days, above n. 54, at para. 27. Back

64 Carlile Report on Operation Pathway, above n. 56 at para. 85. Back

65 Letter dated 23 November 2009 from the Home Secretary to Lord Carlile, deposited in the House of Commons Library. Back