Draft Detention of Terrorist Suspects (Temporary Extension) Bills - Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills Contents

Draft Detention of Terrorist Suspects (Temporary Extension) Bills

CHAPTER 1: Introduction

1.  The draft Detention of Terrorist Suspects (Temporary Extension) Bills were published by the Home Office and laid before Parliament on 11 February 2011. Publication followed the Government's Review of Counter-Terrorism and Security Powers which reported on 26 January 2011. The Joint Committee on the draft bills was appointed by a motion of the House of Commons on 15 March 2011 and a motion of the House of Lords on 17 March 2011 with terms of reference to "consider and report on the draft Bills by 9 June 2011." We sought, and were granted, an extension to 23 June 2011.

2.  During the course of our inquiry we held seven public evidence sessions, hearing from many expert witnesses. These included three former Home Secretaries and a former Attorney General as well as the present Home Secretary, and representatives of the police and of the Crown Prosecution Service. We invited the Security Service to give evidence, but they declined the invitation, telling us that the Security Service is not in a position to comment on the question of how long a pre-charge detention needs to be, and has no role in advising whether there is sufficient evidence to support a prosecution or how that evidence should be collated. We also received a good deal of written evidence. A list of those who gave evidence is included as Appendix 2. We are grateful to those who have taken the time to contribute to our inquiry.

The draft bills

3.  There are two draft bills but they both have the same effect: to extend the maximum period available for pre-charge detention from 14 days to 28 days if and when necessary. Both draft bills contain a sunset clause so that the extended maximum would only be in force for a period of three months from Royal Assent.

4.  The two draft bills are drafted differently because one is intended to be used while the order-making provisions in section 25 of the Terrorism Act 2006 are still in force and the other once those provisions have been repealed (the Protection of Freedoms Bill would, if passed in its current form, repeal the relevant provisions of the 2006 Act). The draft bills are potential pieces of emergency legislation, published by the Government with the hope that neither draft bill, nor anything similar to them, would ever need to be brought before Parliament.

History of pre-charge detention legislation

5.  Extended pre-charge detention of terrorism suspects for up to seven days was introduced by the Prevention of Terrorism (Temporary Provisions) Act 1974, and continued in subsequent legislation, including section 41 and Schedule 8 of the Terrorism Act 2000. The maximum period of pre-charge detention was increased from seven days to 14 days under the Criminal Justice Act 2003 and further extended to a period of 28 days under the Terrorism Act 2006. The 28 day detention period was introduced as a compromise: the Government had initially sought a 90 day period, but this was defeated in the House of Commons.[1] The last Government also sought to extend pre-charge detention limits to 42 days, in the Counter-Terrorism Bill of 2008 but these plans were rejected by the House of Lords. After that rejection, the Government published a draft bill to be kept in reserve and used in emergencies, like the draft bills we were asked to scrutinise.[2] That draft bill would have increased the maximum period of pre-charge detention from 28 to 42 days.

6.  The Terrorism Act 2006 provided that the maximum period of pre-charge detention would be reduced to 14 days, after one year, unless an affirmative order is renewed by both Houses of Parliament. Such an order was made each year for four years after the passage of the Act and the power to detain for 28 days without charge was available consistently between 25 July 2006 and 25 January 2011.

7.  As illustrated by the government defeats in 2006 and 2008, extended pre-charge detention has been a contentious issue. In June 2010, shortly after coming to power, the coalition Government announced its intention to conduct a review of counter-terrorism legislation. With reference to pre-charge detention, it announced that "the 28-day maximum period should be a temporary measure and one that we will be looking to reduce over time."[3] At the same time ministers laid an order under the Terrorism Act 2006 to renew the 28 day period for a period of six months while awaiting the report of the Review of Counter-Terrorism and Security Powers. The effect of that order expired on 25 January 2011 and the maximum limit of pre-charge detention reverted to 14 days. On 20 January 2011, the Home Office Minister, Damian Green MP confirmed that the Government would not be seeking to renew the order.[4]

Review of Counter-Terrorism and Security Powers

8.  The Government's Review of Counter-Terrorism and Security Powers ("the Review") was conducted by the Office for Security and Counter Terrorism, a division of the Home Office. The Home Secretary asked Lord Macdonald of River Glaven QC, the former Director of Public Prosecutions (DPP), to provide independent oversight of the Review in order to ensure that it was properly conducted, that all the relevant options had been considered and the recommendations were balanced. The Review was charged with considering six counter-terrorism and security powers, one of which was the detention of terrorist suspects before charge, including how to reduce the period of detention below 28 days. During the course of the Review government departments and security and law enforcement bodies were consulted, as were NGOs and professional and community organisations.[5] There was also a programme to involve members of the public.

9.  The Review reported on 26 January 2011. It concluded that 28 day pre-charge detention is not routinely required, that a detention limit set at 14 days should "at present be the norm" and that that limit should be reflected on the face of primary legislation.[6]

10.  The Review also concluded that there might be rare cases where a longer period of pre-charge detention might be necessary and that a contingency power was required to allow for this. Various options for providing this power were considered. The option the Review preferred was requiring Parliament to pass emergency primary legislation if it was deemed necessary to extend the maximum period beyond 14 days. The Review recommended that a draft of the legislation should be discussed with the Opposition, but not introduced unless necessary.[7] On 26 January 2011, the Home Secretary announced that the Government would publish draft emergency legislation which would be subject to pre-legislative scrutiny.[8]

The use of extended pre-charge detention

11.  The process for holding a terrorist suspect without charge is set out in the Terrorism Act 2000. That Act provides that a person arrested without a warrant on suspicion of terrorism related offences should be held for no more than 48 hours.[9] This period may be extended to a maximum of seven days by a judge on an application by a police officer of the rank of superintendent or higher, or a crown prosecutor (or the Director of Public Prosecutions in Northern Ireland, or the Lord Advocate or a procurator fiscal in Scotland) for a 'warrant of further detention'.[10] This period may be further extended by a judge to a maximum of 14 days on an application by any of the above-mentioned people. Until 25 January this year detention could be further extended by increments of not more than seven days up to 28 days, by a senior judge (judge of the High Court or of the High Court of Justiciary) on an application by any of the same people.[11]

12.  In the four and a half years when it was possible to apply to hold a terrorist suspect for more than 14 days, only 11 warrants to do so were granted. These 11 warrants were all made in connection with one of three different terrorism investigations: nine warrants were granted in Operation Overt (the transatlantic airline plot in 2006); one in Operation Gingerbread (a Manchester-based arrest in 2006) and one in Operation Seagram (the London Haymarket and Glasgow airport attacks in 2007). No individual has been detained without charge for more than 14 days since 2007. Table 1 provides details of the numbers of individuals charged or released and held for periods between 14 and 28 days.


Number of terrorist suspects held without charge for more than 14 days
Period of detention Year of arrest Number of persons held ChargedReleased without charge
14-15 days2006/07 11 0
18-19 days2007/08 11 0
19-20 days2006/07 33 0
27-28 days2006/07 63 3
Total 118 3

Source: Table 1.3 Home Office Statistical Bulletin 10/10

13.  No application for a warrant of extended detention beyond 14 days has ever been turned down altogether by a High Court judge. We were told, however, that in one case the prosecution were given a shorter period of time than they requested and that the police had been refused an extension to a warrant of extended detention at seven days.[12]

14.  During the period when it was possible to apply to hold a suspect for up to 28 days a high proportion of individuals arrested under section 41 of the Terrorism Act 2000 actually spent a much shorter time in custody.[13] For example, in the year up to Sept 2010, 33 out of 53 (62%) of those arrested under section 41 were charged, released or otherwise dealt with within 48 hours, and 17 of those were dealt with within 24 hours. Only one person was held for 14 days, and 19 were held between 3-7 days.[14]

15.  Statistics also show that the percentage of those charged increases as the length of pre-charge detention increases. 8 of the eleven (77%) individuals held for between 14 and 28 days were charged. Between 2001 and 2010, of the 150 individuals detained for between 7-14 days, 95 (63%) were charged, 36 (24%) were released, and 19 (13%) fell into the 'other' category.[15] This compares with 52% charged after being detained between 2-7 days (196 charged of the 379 individuals) and 21% charged after being detained up to 48 hours (200 charged of the 943 individuals).[16]

16.  It should however, be noted that of the 11 suspects detained for longer than 14 days without charge, four (36%) were eventually convicted (one of whom was convicted of a non-Terrorism Act (non-TACT) offence). We understand that the outcomes of those suspects detained beyond 14 days without charge were as follows:

  • Held for 27-28 days:

  3 released without charge

  1 charged but case dismissed

  1 convicted of non-TACT offence

  1 convicted under TACT

  • Held for 19-20 days:

  2 convicted under TACT

  1 charged but acquitted

  • Held for 18-19 days:

  1 charged but acquitted

  • Held for 14-15 days:

  1 charged but case dismissed.

1   On 9 November 2005, MPs voted by 322 to 290 against the Government proposal of a 90 day limit. Back

2   Counter-Terrorism (Temporary Provisions) Bill 2008, 13 October 2008, HC debate Col 624. Back

3   24 June 2010, Home Office Press Release, http://www.homeoffice.gov.uk/media-centre/news/28-day-detention  Back

4   HC Col 1009, 20 January 2011. Back

5   None of the consultation responses were published in full, though some organisations published their own responses and the Government published a very brief summary of some of the responses. The responses by government departments, security services and the police were not included in the summary of consultation responses. Back

6   Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations, HM Government, Cm 8004, paras 26-29. Back

7   The Review, para 29. Back

8   Rt Hon Theresa May, Home Secretary, 26 Jan 2011, HC col 306-307. Back

9   Terrorism Act 2000, Section 41. Back

10   Terrorism Act 2000, Schedule 8, para 29. Back

11   Terrorism Act 2000, Schedule 8, para 36. Back

12   Sue Hemming, Q 221 Back

13   Home Office, Statistical Bulletin 18/10, 28 October 2010, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stops and searches Great Britain 2009/2010, Table 1.7, p 20. Back

14   Home Office Statistical Bulletin 04/11, 24 February 2011, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stop and searches, Quarterly update to September 2010, Table 1.3, p8. Back

15   'Other' includes: cautions for non-terrorism related offences, transfers to immigration authorities, transfers to PSNI, summonses, awaiting charge and being dealt with under mental health legislation. Home Office, Statistical Bulletin 18/10, 28 October 2010, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stops and searches Great Britain 2009/2010, Table 1.7, p 20Back

16   The maximum period of pre-charge detention under section 41 of the Terrorism Act 2000 was extended to 14 days with effect from 20 January 2004. Figures regarding detention and charge of those held in pre-charge detention from 1-7 days is from 2001-2010. Home Office, Statistical Bulletin, Ibid.  Back

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Prepared 23 June 2011