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

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

CHAPTER 2: Is it ever justifiable to hold a terrorist suspect for more than 14 days?

17. Before considering the draft bills in detail it is necessary to consider whether we need a contingency plan for increasing beyond 14 days the maximum period available for pre-charge detention. This has been subject to exhaustive discussion in recent years. The Joint Committee on Human Rights and the House of Commons Home Affairs Committee have previously considered this issue in detail.[17] Here we briefly outline the evidence we received on the matter.

18. The Review concluded that 28-day pre-charge detention is not routinely required but it "accepted that there may be rare cases where a longer period of detention may be required and those cases may have significant repercussions for national security." It recommended that:

"in order to mitigate any increased risk by going down to 14 days ... emergency legislation extending the period of pre-charge detention to 28 days should be drafted and discussed with the Opposition, but not introduced, in order to deal with urgent situations when more than 14 days is considered necessary, for example in response to multiple co-ordinated attacks and/or during multiple large and simultaneous investigations".[18]

Why treat pre-charge detention of terrorist suspects differently from all other suspects?

19. Under the Police and Criminal Evidence Act 1984, people who are reasonably suspected of serious crimes may be detained without charge for a maximum of 96 hours (with periods of more than 36 hours requiring special authorization by a magistrates' court after a contested hearing). In comparison, even a 14 day maximum is an exceptionally long time. We disagree with the Review's suggestion that a pre-charge detention limit set at 14 days should be considered "the norm". As the statistics in paras 14-16 show, neither the police or the CPS treat 14 days as "the norm". We conclude that any period that exceeds 48 hours should require specific and clear justification and in all but the most exceptional circumstances 14 days should be regarded as a very high level.

20. The arguments for allowing extended pre-charge detention of terrorist suspects centre around the complexity of terrorism investigations. Assistant Commissioner John Yates, Head of Counter Terrorism at the Metropolitan Police, told us:

"In current investigations of an international nature, the issues to do with technology, translation and interpretation are matters that concern us. In a very small number of cases, and we have not used it for four years, there may be a case where a contingent power is necessary in our view".[19]

21. Assistant Chief Constable Drew Harris of the Police Service Northern Ireland, suggested there was a reasonable prospect of the powers being needed in Northern Ireland:

"I can see that a time beyond 14 days is a reasonably foreseeable prospect given the complexity of some of the cases we take on in respect of terrorist investigations. That can be to do with multiple sites and multiple suspects, and then forensic and other examinations that are necessary in respect of that. Our view is that it is reasonably foreseeable given the terrorist threat we are now managing."[20]

22. We note that in Northern Ireland, during the period we were taking evidence, several individuals were arrested under the Terrorism Act and two of these individuals were detained for 13 days without charge whilst another was charged on the 14th day of detention.

23. Lord Carlile of Berriew QC, the former Independent Reviewer of Terrorism Legislation, told us that in his opinion the nature of terrorist investigations made it very likely that it will be necessary to hold suspects for more than 14 days at some point in the future:

"I foresee there may be cases for which ... it will become apparent, possibly very late in the 14 days, that more than 14 days is needed. For that purpose, power to go beyond 14 days is required".[21]

24. David Anderson QC, the recently appointed Independent Reviewer of Terrorism Legislation, and British Irish Rights Watch both questioned whether there are valid reasons for treating terrorist suspects differently to those being held under the provisions of the Police and Criminal Evidence Act 1984. British Irish Rights Watch argued that there were no valid reasons.[22] David Anderson QC said:

"One is aware that there are some factors that tend to distinguish terrorist cases from others, most relevantly perhaps the fact that you often have to move in at quite an early stage before a bomb goes off. You do not have the luxury of waiting, assembling evidence and then coming in later. But it is still very striking to see that, even with the most complicated serious organised crimes—if you think of a people trafficking case or something of that nature—there is a maximum of 96 hours, which is four days".[23]

25. In 1974, Parliament took the view that it should be possible to hold terrorist suspects without charge for longer than other suspects and this view has been reaffirmed in various pieces of legislation since then. It is nevertheless important to bear in mind that even 14 days pre-charge detention is an exceptionally long period to hold a suspect without charge.

International comparisons

26. Whilst comparisons are not easy regarding countries with different legal systems, comparisons to countries with similar systems are relevant. David Anderson QC pointed out that in comparison with the United States, Australia, Canada and Ireland, 14 days pre-charge detention seems an exceptionally long period.[24] This point has been made repeatedly by Liberty.[25] The Review noted the criticism that the UK was out of step with other Western democracies in this respect but responded only with the comment that "these comparisons were not always accurate or appropriate given the differences in the criminal justice systems".[26] Even in countries with similar legal systems it is hard to make direct comparisons because of other differences in the way terrorism cases are handled. For example, in Canada and the United States the lead body in charge of investigating terrorism cases is a prosecuting one[27] and in the United States, intercept evidence can be used in court and other options to bringing a terrorist charge exist, these includes the use of holding charges and even extradition to places such as Guantanamo Bay.[28]

Has it ever been really necessary to hold a suspect for more than 14 days?

27. Those who oppose extended pre-charge detention beyond 14 days argue that even in the 11 cases where extensions beyond 14 days were granted, they may not have been strictly necessary. Liberty, JUSTICE and Lord Macdonald of River Glaven QC all made this suggestion.

28. Liberty asserted that three of the six people held for up to 28 days were released without charge and have not since been placed under surveillance, under a control order or rearrested. Isabella Sankey, Director of Policy at Liberty, went on to suggest that the other three suspects, "from speaking to lawyers involved in those cases, could have been charged at a much earlier point of their detention based on the evidence that the police had."[29]

29. The statistics show that, on the occasions when the power has been used, it has not always led to convictions even when charges were brought (see para 16 above). Lord Macdonald of River Glaven QC, who was DPP at the time of Operation Overt, no longer believes that it was necessary to detain the suspects in that case beyond 14 days:

"Even in Operation Overt ... I am satisfied now, having looked at all the documentation and material which the CPS and police provided, that the job could have been done within 14 days."[30]

30. David Blunkett MP, a former Home Secretary, who is firmly of the belief that the powers were needed and will be needed again, pointed out that this quote from Lord Macdonald contrasts with his view when he was DPP: he supported the applications for each of the warrants made in Operation Overt. Lord Goldsmith QC, who was Attorney General at the time of Operation Overt, told us that he remembered Lord Macdonald being in favour of 90 day pre-charge detention and had to intervene to stop him publicly arguing in favour of 90 days.[31] Earlier, however, Lord Macdonald told us that although he did support 28 days when he was DPP, "we never asked for 90 days; we never asked for 42 days."[32]

31. The CPS strongly disagreed with the suggestion that they could have managed with 14 days in the 11 cases where an extension beyond 14 days was requested. The current Director of Public Prosecutions, Keir Starmer QC, told us "there was a genuine need in the past to apply for detention in excess of 14 days".[33] Sue Hemming, the Head of Counter Terrorism at the CPS, explained:

"I have been back over all the material in all three cases. I have been back to the original warrants of further detention and my original notes of everything that was done at the time in order to assist the Counter Terrorism review, because clearly they were interested and wanted to know exactly what had been done in each case. I am satisfied, as was the High Court judge at the time, that in all three of those cases it was necessary."[34]

32. When trying to make this assessment it would be useful to have access to a detailed independent review of each of the 11 cases where an extension beyond 14 days was granted. No such review was ever conducted and therefore it is very hard for those outside the police and the CPS to judge whether extended detention was absolutely necessary.

33. The Independent Reviewer of Terrorism Legislation had the power to conduct such reviews if he judged them necessary. Lord Carlile of Berriew QC did not judge them necessary. When asked about this, Lord Carlile told us he did not consider it necessary because nobody suggested to him that the police had acted inappropriately:

"The reason I did not investigate those three instances was because nobody suggested to me that the police had acted inappropriately. Furthermore, if you look at transcripts and accounts of the trials—to the extent that those persons were tried—that was never part of any attack on the admissibility of evidence. Indeed, I can go further than that. It was asserted, when 28 days was permitted, that the police would treat 28 days as the norm. It never happened. The police have always tried to keep the period of arrest down to the minimum. If you look at the Operation Pathway report I prepared, you will see why. These extended periods have been supervised most diligently by the judiciary."[35]

34. He also said:

"There didn't seem to me to be any need because there was absolutely no complaint, at any stage, about the process that had been followed. I did follow those cases in some detail. Had I thought there was a need for a review, as I did, for example, in Operation Pathway where nobody was charged, I would have carried one out."[36]

35. Lord Carlile did produce a detailed report on the Operation Pathway case. Operation Pathway did not involve pre-charge detention of suspects beyond 14 days, but did involve the pre-charge detention of 11 individuals for up to 14 days, none of whom were charged. The Joint Committee on Human Rights has previously recommended that similarly detailed reviews should be conducted in respect of the all operations that lead to pre-charge detention of more than 14 days. That Committee said that such reviews were necessary to ensure that Parliament has the information required to evaluate properly the need for the power.[37] We agree that it would have been useful had independent reviews of cases of extended pre-charge detention beyond 14 days been conducted. We think it is essential that if any suspect is ever held beyond 14 days in the future that detention is followed by a detailed independent review (see paras 122-125). While there is a proven need for the power to detain terrorist suspects for longer periods than is generally allowed for within the Criminal Justice System, the existence of that power needs to be balanced by the certainty of keen scrutiny.

36. We note the different views held about those cases where detention has gone beyond 14 days. In the absence of independent reviews we decided that rather than form our own view on each case we should concentrate on whether it may be necessary in the future to detain terrorist suspects for more than 14 days.

Do recent changes eradicate the need for extended pre-charge detention?

37. We were told of several changes which have reduced the likelihood of needing to detain people for over 14 days.

The improved relationships between the police and the CPS;
The CPS's accumulation of "a wealth of experience"[38] in dealing with terrorism investigations;
The Threshold Test, enabling earlier charging;
Improved resources being made available for investigations;
'Lower level' terrorism offences having been introduced, such as doing things preparatory to an act of terrorism (section 5 of the 2006 Act).

38. Keir Starmer QC said that these factors had all mitigated but not extinguished the need for extensions beyond 14 days:

"Ultimately, we think that, although those things mitigate the need for anything beyond 14 days, they do not extinguish the need for some sort of contingency because there is nothing in the four years that we can identify, such as a different type of investigation technique and a different approach to terrorist cases, to which we can point to say that, while it was genuinely needed then, there is no prospect of it ever being needed in the future. We cannot find a piece of evidence in what has happened in the past four years to say that no contingency can conceivably be needed going forward. Therefore, on that analysis, we arrive at the view that some contingency may be needed in the future.[39]

39. David Anderson QC agreed that these changes make it "easier for the Crown Prosecution Service to manage within 14 days." He also said, however, that they did not allow him to "utterly rule out the possibility that a longer period might be necessary".[40]

40. The police took a similar view. Assistant Commissioner John Yates told us:

"The expertise and resources that have been applied to counter-terrorism over the last five years have grown hugely. We have 3,000 or 4,000 counter-terrorist officers working in England and Wales and high-tech units; we have a much better working relationship with the CPS born of the experience of numerous cases. The expertise has developed considerably, which is probably why in the past four or five years fewer cases have gone beyond the threshold of 14 days. That does not take away from the fact that I think it would still be wise to have a contingent capability in case of some extraordinary circumstances if we needed to go beyond that".[41]

41. We note that there are a number of possible future changes which could further minimise the need for extending the pre-charge detention maximum beyond 14 days. These include the use of intercept evidence, if the difficulties inherent in that could be overcome, and post-charge questioning, which was included in section 28 of the Counter Terrorism Act 2008 but which has not yet been commenced. We also note the suggestion made particularly by Lord Carlile of a system of judge supervised bail.[42] These suggestions are beyond the remit of our inquiry but we note that the DPP and the police did not think that future changes could completely remove the need for a contingency provision.

Might a power be needed in the future?

42. The statistics on the number of applications for warrants of extended detention (given in paras 14-16) show that there is not a regular need to hold terrorist suspects for more than 14 days. The majority of witnesses did, however, think that there may be circumstances in the future when the need might again arise. There was less consensus around what those circumstances might be.

43. Some witnesses could only envisage the powers being justified in truly catastrophic circumstances. Professor Clive Walker of the University of Leeds, Professor Conor Gearty of the London School of Economics, Lord Macdonald of River Glaven QC, David Anderson QC, Liberty and JUSTICE all shared the view that the only circumstances in which pre-charge detention beyond 14 days would be necessary would be in the case of a major emergency that would completely overwhelm the police. The sort of situation they were envisaging was "the kind of situation where there are threats of nuclear bombs in five British cities"[43] or "a mass casualty attack simultaneously on a number of large cities within the United Kingdom".[44] Lord Macdonald said:

"... in reality the only circumstances in which we would need to do this would be if we were involved in a national catastrophe, a serious national state of emergency, therefore justifying emergency legislation.

I do not think this is a case of the police, after seven days, saying, "well, we might not quite be able to manage it in 14; we might need 15 or 16." If that is the case, the answer is to put in more resources and work harder to meet the law as it stands."[45]

44. Other witnesses envisaged a wider range of situations being relevant. Lord Carlile thought it was possible that the police would need the power to detain terrorist suspects for more than 14 days if major public events, such as the Olympic Games, led to multiple plots and a diversion of resources. He could also envisage needing the power in relation to a particularly complex investigation of a single individual.[46] Keir Starmer QC also challenged the suggestion that the powers would only be needed in a catastrophe:

"In our view it is a little hard to say that it is only the "catastrophe" situation that would need a contingency because, if you look at what you might call catastrophes where bombs have actually gone off, in one case it was not available to us and was not used, while in two cases it was, and in one of those we used it and in one we did not. Therefore we are driven back to the fact that this is about very challenging cases where there is a peculiar combination of circumstances and, doing the best we can, it is very difficult to predict when, if ever, you are likely to need a contingency power in relation to those challenging cases. But, for my own part, I think that, historically, the "catastrophe" analysis has some difficulties".[47]

45. Several witnesses, including Lord Macdonald and the police, made the point that the size of an actual or possible terrorist incident does not necessarily correlate with the length or complexity of the investigation. They used the Mumbai terrorist attacks as an example and agreed that, although they were significant atrocities, they would not require extended detention.[48] Assistant Commissioner John Yates said:

"It was an awful incident, but the evidence available to charge Kasab would probably have been available in about two or three days in terms of CCTV, eyewitnesses and the like. You cannot necessarily correlate the nature of the catastrophe with what you require for the investigation."[49]

46. The Home Secretary emphasised that "It is not possible to set out in very specific terms the exact circumstances in which it would be necessary to move to 28 days" but she went on to suggest three broad scenarios:

When the nature of the threat level made it likely that a number of very complex investigations would be required;
When several complex investigation were under way but no arrests had yet been made;
Part-way through an investigation in relation to one or more individuals when it became clear that more time was needed.[50]

47. The draft Bills themselves do not include a 'trigger' which would indicate when the Government intends the powers to be introduced. The Home Secretary explained that this is because it is not "possible to define an absolute set of criteria for the use of 28 days ... I also tend to the view that once you try to enshrine something like that in legislation very often you can create more difficulties than you solve".[51]

48. The lack of a trigger was of primary concern to some witnesses. Liberty said: "Our fear, with a Bill of this kind, would be that, because there is no trigger in legislation, this could be something which is brought forward when it is not strictly necessary."[52] Amnesty International argued that this Committee could not conduct scrutiny of the draft bills "at least from the point of view of their human-rights-consistency, in the absence of particular circumstances of emergency against which the measures contained in the bills could be meaningfully assessed; and second, on the basis that passing draft legislation through the committee processes in the absence of any meaningful specification of the circumstances in which the laws would be enacted can only be prejudicial to the proper processes to be followed in the event of an actual emergency in which legislative amendments might be proposed".[53]

49. Whether it is ever necessary to detain a terrorist suspect for an extended period before charging them is an issue that has been exhaustively covered in reviews and debates over recent years. The balance of opinion in the evidence we received was that a maximum period of 14 days is adequate save in exceptional circumstances, and no such circumstances have arisen since 2007. It is very difficult, however, for those outside the police and prosecution services to judge whether it might ever again be necessary to extend pre-charge detention beyond 14 days. Having heard the views of the Government, the police and the Crown Prosecution Service we agree that it would be irresponsible not to provide for a power to extend the maximum period beyond 14 days in exceptional circumstances. We have therefore concentrated on the question how power for such an extension should be provided.

Is a new contingency provision needed?

50. Once it is accepted that a power may in exceptional circumstances be needed to allow longer than 14 days pre-charge detention, it is necessary to consider whether this requires new legislation or whether the powers can be provided under the United Kingdom's existing framework for emergency law-making: the Civil Contingencies Act 2004.

51. Part 2 of the Civil Contingencies Act empowers the Queen in Council (or a senior Minister of the Crown) to make emergency regulations "for the purpose of preventing, controlling or mitigating an aspect or effect" of an emergency.[54] The person making the regulations must therefore be satisfied that certain conditions have been met. These are:

that an emergency has occurred, is occurring or is about to occur; and
that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect of the emergency (necessity being defined by reference to the risk of serious delay if another course is chosen); and
that the need to make such provision is urgent.[55]

52. 'Emergency' is given a very broad meaning by section 19 of the Act; the threshold for saying that an emergency exists is fairly low. Therefore emergency regulations could deal with a broad range of circumstances. They can be made if it is necessary to make provision for the purpose of 'preventing, controlling or mitigating an aspect or effect of the emergency' and the need to make such provision is 'urgent'.[56] It is necessary if existing legislation 'cannot be relied upon without the risk of serious delay', or 'it is not possible without the risk of serious delay to ascertain whether the existing legislation can be relied upon', or 'the existing legislation might be insufficiently effective'.[57]

53. Several witnesses argued in favour of relying on the Civil Contingencies Act if it is ever necessary to extend the maximum period available for pre-charge detention. JUSTICE and Liberty both like the fact that the Civil Contingencies Act has clear triggers for use and they believe that this provides a significant safeguard. JUSTICE argued that:

"if it were ever thought necessary to extend the maximum period of pre-charge detention in an emergency, then we believe it should be effected by way of the Civil Contingencies Act rather than by enacting special emergency legislation. As flawed as the Civil Contingencies Act is, it nonetheless contains greater protection for fundamental rights than either of the draft Bills. Bespoke legislation should only be used where it improves on the existing statutory framework, not as a means to evade the safeguards it contains".[58]

54. Professor Walker thought that the Civil Contingencies Act is assurance enough and that there is no need for an "in-between" like the draft Bills:

"I prefer, therefore, that there should be quite a large gap between 14 days and what you might see as the next step. If 14 days is not enough, then the Civil Contingencies Act is quite long distant from 14 day detention in terms of the kind of triggers, proof and processes that have to be gone through, which make it quite difficult to use. There is thereby on purpose a cost to using the Civil Contingencies Act. It is not a cost free option and it is a more costly option than using the draft Bills. I find that attractive because, like Professor Gearty, I am not currently persuaded that there is a need for this in-between option, which is the draft Bills, which does not have the same range of triggers and safeguards. At present, I prefer the position in the Protection of Freedoms Bill, which talks about the permanent reduction of section 14. I think the Government should have the courage of its convictions and implement a permanent reduction without having this contingency of the draft Bills. It already has the assurance of the Civil Contingencies Act if doomsday happens."[59]

55. Lord Carlile told us that, in his opinion, the Civil Contingencies Act is a "non-starter". He did not understand why Liberty and JUSTICE proposed the use of the Civil Contingencies Act as suspects detained under that Act would not be protected by any of the safeguards contained in Schedule 8 of the Terrorism Act 2000.[60] We do not agree with this interpretation as any Civil Contingencies Act regulation could simply amend 14 to 28 days in Schedule 8 and therefore all the same safeguards would apply. Regulations made under the Civil Contingencies Act would reduce the level of judicial and other protection for suspects only if they did so expressly and unambiguously.

56. There are however significant problems with using the Civil Contingencies Act to cover all of the situations when the Government think it could prove necessary to extend the maximum period available for pre-charge detention. In an Opinion provided for Liberty, Lord Pannick QC and Mr Javan Herberg said that in the right conditions the Civil Contingencies Act could be used for extending pre-charge detention but also said that the detention of suspects would have to be "necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency".[61] Therefore: "if the emergency no longer existed and there was no continuing threat, it would be difficult to contend that the aim of processing suspects through the criminal justice system of itself amounted to mitigation or control of an aspect or effect of the emergency. The criminal justice aspect is separate from the emergency."[62]

57. Many of our witnesses opposed the use of the Civil Contingencies Act for extending the maximum period available for pre-charge detention on the grounds that it was not designed for the purpose and might not cover all the circumstances in which it could be necessary to seek to extend the maximum. Keir Starmer QC explained the view of the CPS:

"Our view is that there are circumstances in which the Act might be useful but, looking at its provisions, it certainly was not intended as a measure to deal with pre-charge detention. In a sense, we would not rule out that it might be of some use if necessary, but it is clearly not designed to deal with this specific issue and there may be some difficulties in using it to that effect".[63]

He went on:

"The one [problem] that appears to us is that it may well be that, by the time arrests are carried out, any emergency is over and what you are dealing with is the fast real-time investigation and prosecution of those you think may have been responsible for some atrocity. I am not here to talk about the vires of anything that can be done under the Act because that is a very complicated matter of law and we have not looked into it, but we would have some concerns that it was not really intended as a vehicle for this sort of provision".[64]

58. An additional issue is that section 23 of the Civil Contingencies Act states that regulations may not alter procedure in relation to criminal proceedings.[65] The Civil Contingencies Act does not define 'criminal proceedings' and some have questioned whether pre-charge detention is not part of such proceedings. The Opinion of Lord Pannick QC and Mr Javan Herberg notes that in other statutes 'criminal proceedings' usually begin when someone is charged, concluding that this is the better interpretation of the words in the 2004 Act.[66] If this interpretation were correct it would mean that section 23 would not prevent the use of Civil Contingencies Act regulations to amend the permitted period of pre-charge detention.

59. Although the Civil Contingencies Act does not require a formal declaration of a state of emergency, emergency regulations must be prefaced by a statement specifying (inter alia) the nature of the emergency in respect of which the regulations are made. This would make it politically very difficult to use the Civil Contingencies Act for the purpose of extending pre-charge detention in any scenario that was not recognised by the nation as being an emergency situation.

60. We note the possible problems with using the Civil Contingencies Act for the purposes of extending pre-charge detention. We also note, and have some sympathy with, the view of the House of Lords Constitution Committee which argued that "If there is doubt about the scope or utility of the UK's framework for emergency legislation, this strongly suggests that that framework needs to be revisited. From a constitutional point of view it is hardly satisfactory for a framework for emergency law to have been created (in 2004) only to find (in 2011) that it is not clear whether it can be used to make rules specifically designed to deal with one aspect of an emergency".[67]

61. It may be possible in some circumstances to use the Civil Contingencies Act 2004 to make emergency regulations to extend the maximum period available for pre-charge detention, although it is not clear that its use would be appropriate even in those circumstances. It is not however certain that the provisions of the Civil Contingencies Act could be used in all the circumstances when such an extension might be needed. We conclude therefore that, if it is considered necessary to have available at all times a contingency provision to increase the maximum pre-charge detention period, the Civil Contingencies Act cannot be relied upon.

18 The Review, para 29. Back

19 Q 320 Back

20 Q 321 Back

21 Q 65 Back

22 DTS 5 Back

23 Q 248 Back

24 Q 248 Back

25 See, for example, Liberty, Terrorism Pre-Charge Detention Comparative Law Study, July 2010. Back

26 The Review, para 12 Back

27 Q 109 Back

28 Q 142 and Q 174 Back

29 Q 108 Back