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 4: The way forward

97. There are several possible ways to create a contingency power to extend the maximum period available for pre-charge detention in exceptional circumstances. We have come to the conclusion, however, that there is no method which would meet all of the Government's aims and address the concerns identified in chapter three. We have not been able to devise a satisfactory power of general application, which might be introduced after a terrorist incident had happened or (more particularly) after the arrest of specific individuals, which could be made subject to meaningful parliamentary scrutiny at the time of or shortly after its exercise without risking prejudicing a fair trial.

98. We believe that whichever method is chosen it needs ideally to meet all of six clearly defined aims:

First, that the maximum period available for pre-charge detention should be 14 days save in wholly exceptional circumstances;
Secondly, that any extension of the maximum time available for pre-charge detention should be as targeted as possible. Where 'exceptional circumstances' sufficient to trigger the creation of the power exist, the use of the power should be limited to those specific circumstances so far as is practicable without prejudicing a fair trial, for example by identifying individuals or investigations;
Thirdly, that the rights of those detained without charge should be protected and if possible enhanced;
Fourthly, that the Government should in some way be accountable for any decision to activate a contingency provision that extends the maximum time available for pre-charge detention. Given that Parliament could not always be told all the relevant information at the time without the risk of prejudicing a fair trial, and given that it can take years for all judicial processes to be completed, the accountability to Parliament might have to be a considerable period of time after the event;
Fifthly, that decisions to apply for and then to grant a warrant of extended detention should not be made by politicians;
Finally, that the risk that a person might cause trouble if released is not an acceptable reason for authorising detention without charge beyond 14 days: the power to detain is for the purpose of investigation, it is not for preventive detention (except so far as there is good reason to believe that the detainee, if released, would interfere with the investigation).

99. We have already explained why we believe that the draft bills do not offer a satisfactory solution, and why it would not be sufficient or appropriate to rely on powers in the Civil Contingencies Act. That leaves two options:

to introduce primary legislation to provide that the normal maximum limit for pre-charge detention is 14 days but also to make a standing provision that in exceptional circumstances, and subject to rigorous safeguards, the CPS should be able to apply to a court to extend a warrant of further detention for a specific number of days. In such a case the CPS should be required to show why that specific number of days would be reasonable, in no circumstances should that number exceed 28 days from the date of arrest (under Schedule 8, para 36 of the Terrorism Act 2000) (the standing primary legislative route).
to introduce primary legislation that states that in normal circumstances the maximum limit for pre-charge detention is 14 days but in exceptional circumstances and subject to rigorous safeguards, the Secretary of State may make an executive order which temporarily extends the maximum period available, and that once that order has been made the CPS should be able to apply to a court to extend a warrant of further detention for a specific number of days which in no circumstances should exceed 28 days from the date of arrest (under Schedule 8, para 36 of the Terrorism Act 2000) (The order-making route).

The standing primary legislative route

100. Under this proposal primary legislation would be amended to say that in all normal circumstances the maximum period available for pre-charge detention of terrorist suspects is 14 days but that if the DPP, having consulted the Attorney General, is satisfied that exceptional circumstances apply then he may make an application to a high court judge for a warrant of further extension of a specific number of days beyond 14 days (but for no more than a further 14 days). In making such an application the DPP would have to make the case for why exceptional circumstances applied, why the specific application should be granted and why the specific number of days requested would be reasonable in the circumstances.

101. New rigorous safeguards could be on the face of the primary legislation, in addition to those in Schedule 8 of the Terrorism Act 2000 (as amended). Therefore higher hurdles could be in place than were in place when 28 days was the maximum period available between 2006 and the beginning of this year. The extra safeguards that could be created under this option include:

requiring that the DPP, consulting the Attorney General, is satisfied that exceptional circumstances apply before any application for extended detention is made (see paras 114-121);
requiring that the DPP make any application to a high court judge (see paras 146-150);
requiring that an independent review of every case of pre-charge detention beyond 14 days be conducted and requiring that the work of the independent reviewer in such circumstances be properly resourced, (see paras 122-125);
requiring a parliamentary review of the legislation after each use of the power to make an application beyond 14 days (but after judicial proceedings have completed).

102. The attraction of this option is that it is simple. The Government is of the view, which we accept, that it may be necessary to hold a terrorist suspect for more than 14 day in exceptional circumstances. The simplest thing to do therefore would be create a power in primary legislation that makes this possible and creates rigorous safeguards to ensure that the power is used only when absolutely necessary. Another advantage of this option is that it presents no risk of prejudicing the fair trial of a suspect as no action would be taken, other than through the judicial system, to detain the suspects longer than 14 days. Additionally, it does not pretend that Parliament has a scrutiny role which it cannot, in practice, properly fulfil. This does not mean that Parliament could have no role in scrutinising how the power was used. Parliamentary scrutiny could be built in by stating in the primary legislation that if a warrant of further detention beyond 14 days is ever granted then Parliament should review the legislation within six months of the conclusion of judicial proceedings (or within six months of a decision not to prosecute). Due to the potential length of judicial proceedings, the parliamentary debate could take place months, or even years, after the power was used. Nonetheless the prospect of subsequent scrutiny by Parliament would provide a strong signal of how serious a step it would be to make an application of extended detention beyond 14 days.

103. Under this option the normal maximum for pre-charge detention would be set in primary legislation at 14 days, but there would be provision in the legislation for extension beyond 14 days (for a period to be specified in the application and in no circumstances more than a further 14 days) subject to appropriate safeguards. But under this option the responsibility for deciding whether exceptional circumstances applied would rest not with Parliament, nor with the Secretary of State, but with the DPP, the Attorney General and a High Court judge. It would be possible to define in the legislation examples of what should constitute "exceptional circumstances", but (as we have explained in para 120) it would be imprudent to make such a definition exclusive because of the possibility that unforeseen exceptional circumstances could arise which would justify extended pre-charge detention. There would need to be provision in the legislation for the exercise of discretion.

104. It is clearly for a judge to decide, on an application by the DPP, whether the criterion for extended detention is satisfied in a particular case. Under this option, however, the primary legislation would already have established that there could (at least in theory) be situations in which there were exceptional circumstances which would justify extensions of pre-charge detention, and it would be for the DPP, and ultimately for a judge, to decide whether the current situation was such that the circumstances were exceptional within the meaning of the Act. These circumstances might go wider than the details of an individual case. We set out in para 119 what some of the "exceptional circumstances" might be, but there would still have to be room for discretion to take account of unforeseen situations. Exceptional circumstances could include consideration of whether the police and the Crown Prosecution Service were overwhelmed because they were engaged in a particularly large number of investigations. We think that it would not be appropriate for the DPP consulting the Attorney General, and ultimately for a judge, to make judgements and take decisions of this nature. They are decisions which should be taken by Parliament or by someone directly responsible to Parliament.

105. We have made clear elsewhere why it would be difficult and unsatisfactory to put the responsibility for making such a decision on Parliament. If it is to be taken by someone directly accountable to Parliament, that someone can only be the Secretary of State, who has access to all the relevant information and can act when Parliament is not sitting.

106. We now turn to the second of the options set out in para 99.

The order-making route

107. In considering the possible choice of an order-making route we have been mindful that the Government has committed itself to reducing the maximum period of pre-charge detention and the Review was conducted against this background.[94] The Review concluded that the limit for pre-charge detention should be set at 14 days and "that limit should be reflected on the face of primary legislation" with a contingency plan in place to increase the limit when strictly necessary.[95] We are not here to re-run the Review. We bear in mind the words of the Home Secretary who said:

"... one goes back to the question of what the norm or message is that we are giving about the expectation, which is that it should be 14 days."[96]

108. The fact is that 28 days existed as a possibility from 2007 to January 2011 but no application for detention beyond 14 days was made in that period. The police and the Crown Prosecution Service assured us that they would never seek an extension of the period of pre-charge detention beyond 14 days unless they had cogent reasons for doing so for the purposes of investigation. We believe that, provided that sufficiently rigorous safeguards can be introduced, the fact that the Secretary of State can eventually be held to account to Parliament for the exercise of such a power will make it very unlikely that the power would be exercised lightly or unadvisedly and that the Secretary of State would require to be entirely satisfied that its exercise could be justified by compelling exceptional circumstances.

109. We have considered four variants of an order-making option:

(i) to retain the order-making power under section 25 of the Terrorism Act 2006, implementing it now, and seeking annual renewal from Parliament (effectively creating a continuous power to extend detention without charge beyond 14 days subject to a maximum of 28 days);

(ii) to retain the order-making power under section 25 of the Terrorism Act 2006, but make an order only if and when necessary and for a strictly limited period;

(iii) to give the Secretary of State in primary legislation the power to increase the maximum period to 28 days by making an order that does not require parliamentary approval before it is used, but does require Parliament to vote on it within 40 sitting days of the order being made;

(iv) to give the Secretary of State in primary legislation a power, renewable annually, to make an executive order which would expire after three months to extend the maximum period of pre-charge detention to 28 days in exceptional circumstances and if necessary for purposes of investigation.

110. Option (i) is the status quo. It is clear that this is no longer politically acceptable and will not be retained. It is our view that options (ii) and (iii) are not viable because they raise all the same problems as the draft bills in terms of risking prejudice to a fair trial, requiring scrutiny at a time when Parliament would not have access to relevant information, and possibly being needed when Parliament is not sitting. We consider that the only order-making option worth considering in further detail is variant iv.

111. It would be possible to amend the Protection of Freedoms Bill so as to limit the maximum period available for pre-charge detention to 14 days but to create a power for the Secretary of State to make an executive order which would expire after three months, the purpose of which would be to extend the maximum period available for pre-charge detention to 28 days in exceptional circumstances. The order would be of general application even if it were being introduced in the context of a specific investigation. The Secretary of State would not be involved in individual applications for warrants of extended detention beyond 14 days which could be made under the order.

112. We recognise that there could be occasions when an order needed to be introduced in the context of a specific case or cases even though the order would be of general application. Despite the general application the Secretary of State would be likely to consider the details of the case or cases when deciding whether to make the order. There would be likely to be speculation in the media as to which case or cases had triggered the decision. The Secretary of State would have to resist pressure to respond to this speculation. Although prejudice to a fair trial is therefore still a risk, the risk is considerably smaller than under the draft bill route when a public parliamentary debate would take place on the need for the powers.

113. The Secretary of State's power to make such an order could be made subject either to annual review and re-approval by Parliament.

How to ensure an order would only be made in exceptional circumstances

114. During the course of our inquiry many witnesses made the point that it is hard to define clearly the circumstances in which it might prove necessary to introduce a contingency power. Keir Starmer QC told us:

"... what we have asked ourselves is: is there a paradigm, a blueprint or a sort of case where we can reasonably anticipate that a power beyond 14 days will be needed? We think it is impossible to define that sort of case because the three in question had different features. The other 35 operations had some of the features but not all, and different features."[97]

115. Assistant Commissioner John Yates agreed, saying that "you cannot necessarily correlate the nature of the catastrophe with what you require for the investigation" and gave a "Mumbai-style attack" as an example,[98] echoing Lord Macdonald's evidence.[99]

116. The Government have outlined three broad scenarios which we set out in para 46, but the Home Secretary also told us, "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." [100]

117. Several witnesses were concerned about the lack of "triggers" in the draft bills. Professor Walker said: "If you did put in a trigger it gives the basis for argument, does it not, and you are then expected to adduce evidence to show that you have met the trigger? Therefore, by leaving it at large it is rather easier, perhaps, to convince people."[101] Liberty said: "our key concern is about the trigger for such legislation. Our key concern with the current provisions is that they would be used when it is operationally convenient for a precharge detention to be extended rather than when there is a genuine emergency."[102] Liberty also said, "we think that that kind of framework [of the Civil Contingencies Act], where legislation is on the statute book in advance and which has an appropriate trigger for when these types of measures should be brought forward, is preferable ..."[103]

118. We agree with the Government that it is not sensible to try to draft an exhaustive list of exceptional circumstances. It would be possible, however, to require that the Secretary of State must be satisfied that certain types of exceptional circumstances apply before making an order and that the Secretary of State must also have regard to certain factors when deciding whether those types of circumstances applied. In specifying some of the factors which must be taken into account, the legislation would provide the opportunity for Parliament to hold the Secretary of State accountable in a meaningful way, once there was no risk of prejudicing judicial proceedings, for the decision temporarily to extend the available maximum period. As already acknowledged this could well be not for a period of many months or even years given the possible length of the judicial process. These factors could be formulated to make it clear that the power to extend the maximum period of pre-charge detention is for the purpose of investigation and not preventive detention and to ensure that the other principles outlined in para 98 were adhered to.

119. The requirement for the Secretary of State to consider specific factors in deciding whether exceptional circumstances apply could be on the following lines: the Secretary of State should consider:

whether an act of terrorism had been or was being committed, or was imminent;
whether, as a result, the police and the Crown Prosecution Service were engaged or would shortly be engaged in either an exceptionally large number of investigations, or an investigation or investigations of exceptional complexity;
whether it was likely to be impossible for the Crown Prosecution Service to decide whether or not to charge a suspected person following arrest for a terrorist offence within 14 days of his arrest; and
whether it was reasonable to expect that the Crown Prosecution Service would be able to make that decision if the person suspected were to be detained for a further period of days, specified in the application, which would in no circumstances exceed a further 14 days.

This would not be an exhaustive list and the Secretary of State could be empowered to take account of any other circumstance that appeared relevant.

120. As a list of exceptional circumstances could not be exclusive, it would be important to build in other safeguards. One such safeguard should be that before the Secretary of State makes the order, the Attorney General must certify that he agrees that exceptional circumstances apply. The Secretary of State's judgment would thus be informed and fortified by an opinion from the Law Officer to whom the Director of Public Prosecutions is responsible. As a further safeguard independent review of the decision to make the order should be a mandatory requirement. This would be in addition to mandatory review of any applications to the court for extended detention beyond 14 days made when an order was in effect (see paras 122-125).

121. We believe that, if the Secretary of State were to be empowered to make an order only under exceptional circumstances, with the prior agreement of the Attorney General, with the certainty of future independent review of the decision, and with the prospect of being required to account to Parliament for his decision once there was no longer any risk of prejudicing judicial proceedings, there would be little danger that any Secretary of State would make an order except when absolutely necessary. This should allay the concerns of those who suggested that giving the Secretary of State an order-making power would make it too easy for the police and CPS to request that an order be made. Lord MacDonald of River Glaven stated that, with an order-making power instead of emergency primary legislation, "the police and prosecutors would treat themselves as still being subject to 28 rather than 14 days".[104] The representatives of the police and the Crown Prosecution Service told us emphatically that they would never seek an extension of pre-charge detention unless there were compelling reasons to do so for the purposes of pursuing an investigation: they assured us that they would not, and they should certainly not be allowed to, seek authority for such detention merely for the purpose of keeping a terrorist suspect off the streets. In our opinion, with these additional measures, it is very unlikely that 28 days would come to be thought of by the police or by prosecutors as being readily available.

Mandatory independent review

122. There has hitherto been no requirement for an independent review of the use of extended pre-charge detention beyond 14 days. The Review stated that part of the Independent Reviewer of Terrorism Legislation's role should include publishing reports following any use of pre-charge detention beyond 14 days, but it stopped short of suggesting this be a statutory requirement.[105] The DPP said that he would have "no difficulty" with making this a statutory requirement.[106]

123. Lord Carlile of Berriew did not conduct any reviews of the 11 cases when suspects were held for more than 14 days. We outlined Lord Carlile's reasons for this in paras 33 and 34 where we explained that in the absence of independent reviews we cannot come to a firm conclusion about whether pre-charge detention beyond 14 days was absolutely necessary in the cases in which it was used. We believe that mandatory independent review of the Secretary of State's decision to make an order and of any applications for extended detention beyond 14 days would be an important safeguard. For that safeguard to be adequate the Independent Reviewer needs to be assured of the necessary resources and arrangements.

124. The current Independent Reviewer, David Anderson QC, told us that, although he was happy with the principle that all cases of pre-charge detention beyond 14 days be independently reviewed, the independent reviewer post itself might not always have the time or resources:

"If I may sound a note of caution, it would simply be about the capacities of the independent reviewer which, as you know, remains a part-time function ... I am not sure I could necessarily guarantee that, in the heat of the moment, this particular independent reviewer would have the ability to do a report which, in a case like Operation Overt—the airline plot—would have to be an extremely detailed piece of work ..."[107]

125. The Joint Committee on Human Rights has previously recommended that the post become a 'panel of independent reviewers' to address the potential lack of resources.[108] Another way to address this would be to empower the independent reviewer to appoint someone to act on his behalf. Either approach would retain the nature of the post and the reviews provided by it, but provide greater capacity to fulfil the additional tasks which might come from another statutory requirement.

A sunset clause

126. Giving the order a maximum life of only three months would reflect the three month sunset clause in the draft bills. The sunset clause was broadly welcomed by those witnesses who commented on it and we received no evidence that a longer period would be necessary. A short period in force would ensure that the powers were only available while the exceptional circumstances of which the Secretary of State was aware when making the order applied and that 14 days remained the maximum period normally available.

Parliamentary scrutiny

127. Parliament would grant the order-making power in primary legislation but any order made by the Secretary of State would not be subject to approval by Parliament. This is for the same reasons as already discussed: any order subject to parliamentary approval would risk prejudice to a fair trial, require scrutiny at a time when Parliament would not have access to relevant information, and possibly be needed when Parliament is not sitting.

128. It might seem unsatisfactory to give the Secretary of State such a fundamentally important power and not subject it to parliamentary approval. The alternative of full parliamentary scrutiny, however, is not feasible. Parliament could not be given all the information which it would need in order to scrutinise the Secretary of State's decision effectively. In place of the illusion of parliamentary scrutiny, the power to make an order would be subject to the more effective safeguards outlined above.

129. Parliament would still need to be informed about any use of the Secretary of State's order-making power. It would be appropriate if, as soon as possible after having made an order, the Secretary of State informed Parliament by means of an oral or written statement. Any statement that the Secretary of State might make and any subsequent discussion of it in either House would be subject to the sub judice resolutions of both Houses of Parliament.

130. Parliament could also have a role in keeping the order-making power under review. It could be required to review the order-making power annually in the light of an annual report by the Secretary of State on the use of the power (if any) during the previous year.

131. The key feature of an order-making power granted to the Secretary of State would be that he would be responsible for deciding whether there were exceptional circumstances justifying a temporary extension of the maximum period available for pre-charge detention to 28 days. The Secretary of State has access, in a sense and to a degree that Parliament cannot be given access, to the full range of reasons why it should be made possible for the police and prosecutors to apply for a warrant of extended detention beyond 14 days. This was clearly the view of the three former Home Secretaries from whom we heard.[109]

132. A system on these lines would provide significant extra constraint and safeguards in comparison to the system that was in force under the Terrorism Act 2006. Under the Terrorism Act 2006 Parliament annually approved an affirmative instrument that had the effect of making it possible for a police officer (of the rank of superintendent or higher) or the prosecution to apply for an extended warrant of further detention of up to 28 days. Once Parliament had approved the affirmative instrument it was open (in practice) to the CPS to make a case to a High Court judge in whatever circumstance they thought appropriate. Under the system we are recommending, Parliament would pass primary legislation which stated that 14 days is the maximum period at all times save when the Secretary of State, after consulting the Attorney General, is convinced that exceptional circumstances apply that necessitate a strictly temporarily extension of the maximum period to 28 days and an order is made to that effect. The making of the executive order would be subject to rigorous safeguards. It would be subject to judicial review[110] and would also be reviewed by the Independent Reviewer of Terrorism Legislation. Once an order had been made it would be for the DPP, rather than any policeman of the rank of superintendent or higher, to make a case to a High Court judge that a warrant of further detention beyond 14 days should be granted. The judicial process would be as rigorous as before—indeed more so because the court would have specific guidelines as to the types of circumstances in which Parliament intended that pre-charge detention beyond 14 days might be used.

Conclusions

133. We have narrowed down the choice to the two options in para. 99:

what we have called the primary legislative route, whereby primary legislation would restate the maximum period of pre-charge detention of terrorist suspects as 14 days save in exceptional circumstances but would authorise the Director of Public Prosecutions, with the consent of the Attorney General but without reference to Parliament or to the Secretary of State, to decide subject to rigorous safeguards whether circumstances are sufficiently exceptional to justify extending detentions to a maximum of 28 days and to apply to a High Court judge for consent to extended detention in an individual case (or individual cases) accordingly; and
what we have called the order-making route (variant iv of the order-making options listed in para 109), whereby the primary legislation would restate the maximum period of pre-charge detention of terrorist suspects as 14 days save in exceptional circumstances but would give the Secretary of State power, with the agreement of the Attorney General and subject again to rigorous safeguards, in case of need to make an executive order limited to three months' duration declaring that circumstances are sufficiently exceptional to justify extending detentions to a maximum of 28 days, and allowing the Director of Public Prosecutions to apply to a High Court judge for consent to extended detention in an individual case (or individual cases).

Neither of these alternative options is free from difficulties; but our judgement is that the order making route is the least objectionable.

134. We therefore recommend a new order-making arrangement whereby the maximum period available for pre-charge detention is 14 days unless the Secretary of State makes an executive order, under powers conferred by primary legislation, that the maximum period be extended to 28 days for a three month period. This order could be made only if the Secretary of State was satisfied that exceptional circumstances applied and had obtained the agreement of the Attorney General. This order-making power should be created by amendment to the Protection of Freedoms Bill. The order itself would not be subject to parliamentary procedure so as to avoid prejudicing fair trial rights and to avoid asking Parliament to consider something without the necessary information being available to enable scrutiny to be effectively carried out. In place of parliamentary approval of the order itself, the order-making power must be subject to regular review informed by an annual report laid by the Secretary of State on his use of the power in the preceding year. This could be effected by consideration of an affirmative instrument which could have a life of no longer than one year.

135. Examples of the "exceptional circumstances" that the Secretary of State would need to assess could be on the face of the primary legislation that created the order-making power, although that list should not be exhaustive. We recognise, however, the force of the Home Secretary's view that "once you try to enshrine something like that in legislation very often you can create more difficulties than you solve." It may therefore be preferable that any detailed definition of "exceptional circumstances" should be set out in the course of the process of putting the legislation through Parliament but not incorporated in the legislation itself. In deciding whether "exceptional circumstances" applied the Secretary of State and the Attorney General should be required to consider whether:

(a) an act of terrorism had been or was being committed, or was imminent;

(b) as a result, the police and the Crown Prosecution Service were engaged or would shortly be engaged in either

(i) an exceptionally large number of investigations, or

(ii) an investigation or investigations of exceptional complexity having regard to the nature, location or quantity of evidence to be collected and examined, or the number and location of suspected persons;

(c) in consequence of the exigencies of those investigations, it was likely to be impossible for the Crown Prosecution Service to decide whether or not to charge a suspected person following arrest for a terrorist offence within 14 days of his arrest;

(d) it was reasonable to expect that the Crown Prosecution Service would be able to make that decision if the person suspected were to be detained for 28 days or less; and

(e) there was any other circumstance that appeared relevant to the Secretary of State.

136. Any order made by the Secretary of State would need to be of general application (so as to avoid the risk of prejudice to a fair trial). This means that while it was in force it could potentially apply to any suspect arrested under Section 41 the Terrorism Act 2000 (as amended). Any application to extend the detention of a specific individual beyond 14 days would however be subject to the judicial authorisation process in Schedule 8 to the Terrorism Act 2000.

137. As soon as possible after making an order the Secretary of State should inform parliament. The aim of this is not to seek parliamentary approval but simply to keep Parliament informed. Any statement that the Secretary of State might make and any ensuing parliamentary proceedings would be subject to the sub judice resolutions of both Houses.

138. Review of any use of the new power is an essential safeguard and would help inform parliamentary debate on whether to grant the Secretary of State's executive order-making power (which would be likely to be an annual debate, as it has been for the last five years). It must be a statutory requirement that any extension of detention beyond 14 days is followed by an independent review which would be published as soon as possible without risking prejudice to judicial proceedings. We think that the Independent Reviewer would be the appropriate person to conduct such reviews. We note, however, that it might be necessary to consider the resource implications of adding this task to his duties and that it might prove necessary to give him the power to appoint others to conduct reviews on his behalf.

139. Once all judicial proceedings in any case affected by the extension of the maximum period of pre-charge detention were finally concluded, the Secretary of State could be required to account to Parliament for his use of the power. He would have to demonstrate that before making the order he and the Attorney General had satisfied themselves that one or more of the "exceptional circumstances" applied.

Enhancing judicial safeguards

140. The evidence we received constantly underlined the importance of the judicial process in granting warrants of extended detention. We agree that the judicial process should be as rigorous as possible and that all the safeguards in Schedule 8 of the Terrorism Act 2000 (as amended) should apply. Several witnesses were at pains to emphasise that the process is already rigorous. Keir Starmer QC told us:

"This is not an application to a court that is dealt with very quickly and on paper. It is a rigorous exercise involving very good and very rigorous High Court judges. I have no doubt that if there was any laxity in the internal mechanism, which I don't think there was, it would have been picked up by a High Court judge who would have said, 'Maybe you are doing the best you can, but I simply don't accept it's necessary.'" [111]

141. Lord Carlile used Operation Pathway as an illustration of the rigorous judicial process in action:

"As a result of Mr Justice Blake's views, the Crown Prosecution Service were able and had to advise the police that it was not good enough to arrest someone for being a terrorist under section 41 of the Terrorism Act 2000—being a terrorist is not a crime—but that, during the period of arrest up to 14 days, the police had to actually describe the offence they suspected people of carrying out. That is a result of the judicial protection and there is a real example of it, performed by Mr Justice Blake with Sue Hemming, the head of terrorism at the CPS, which led to people being released without charge."[112]

Criteria for judicial consideration (in addition to schedule 8)

142. One way of enhancing the judicial process would be to include specific criteria for the judge to apply. Regarding the current arrangement, David Anderson QC said:

"... it is important to remember what the judge is actually looking at under schedule 8. He has only two criteria to apply: first, whether further detention is necessary for relevant evidence to be obtained, preserved or analysed; and, secondly, whether the prosecutors and police have acted with reasonable diligence and expedition. The case law has added to that to some extent, so the judge can also look to see whether the arrest was lawful, for example, but they are fairly limited criteria for the judge to apply."[113]

143. JUSTICE criticised the fact that under current arrangements the judge does not have to consider the evidence in the case:

"There is an additional set of problems to do with what the judge is asked to decide when authorising further detention. He or she is not, for example, being asked whether the detention is necessary because there is sufficient evidence to suspect the person of having committed a crime. That is not a question the judge is posed under the legislation."[114]

144. Including on the face of the primary legislation some considerations for the judge to take into account would give the judge more useful criteria against which to assess an application. It would draw attention, over and above the existence of common law, to the substance of many of the requirements of article 5 ECHR, and to the fact that extended detention must not be for preventive purposes. Again, it would not be possible to provide a narrow set of criteria, but we suggest some broad principles which must be satisfied in order for the court to grant an application for an extension to a warrant for further detention beyond 14 days.

145. We therefore recommend that a provision in the primary legislation should be created which requires a High Court judge hearing an application for a warrant of further extension for more than 14 days to be satisfied that criteria such as the following are fulfilled:

(a) the person detained has been lawfully arrested on reasonable suspicion of having committed a specified terrorist offence;

(b) it would be exceptionally difficult to decide whether to charge the suspect with a terrorist offence unless the suspect were to be detained without charge for more than 14 days;

(c) there are reasonable grounds for expecting that it would be possible to decide whether to charge the suspect with a terrorist offence if the suspect were to be detained without charge for more than 14 days but no more than 28 days; and

(d) the public interest in the administration of justice would be defeated if the suspect were to be released without charge.

These requirements would be in addition to the requirements of Schedule 8 to the Terrorism Act 2000.

The role of the DPP

146. The Terrorism Act 2006 provided that once Parliament agreed to the annual power being in force, a police officer of the rank of Superintendent or higher could apply to the court for warrants to detain suspects beyond 14 days.[115]

147. Lord Macdonald of River Glaven was of the view that the police should be required to get authorisation from a prosecutor before applying to a judge for an extended warrant of further detention beyond 14 days. He said that it would be "a very big mistake to have applications authorised simply by a police officer, because, while the police obviously understand the evidence they are gathering, it is the prosecutor who has to make the determination as to whether the evidence can justify a charge."[116] Lord Carlile said he favoured "the inclusion of the DPP's signature as a safeguard."[117]

148. We were told that the police do apply for warrants of further detention for up to 14 days, though not, in practice, for extensions beyond that. In practice, the CPS applies for all warrants for pre-charge detention beyond 14 days. Indeed, Sue Hemming, the Head of Counter-Terrorism Prosecutions, has dealt with each of them to date. In each case the DPP was directly involved.[118]

149. We accept that in practice the DPP would be involved in any application to extend a warrant of further detention beyond 14 days. Making the DPP's explicit consent a statutory requirement would however ensure that this practice continues and would highlight its importance as a safeguard. This was included in the previous Government's 2008 draft legislation to extend pre-charge detention to 42 days in an emergency.

150. We recommend that the judicial authorisation process be strengthened so that it becomes a statutory requirement that application to the High Court for extension beyond 14 days could be made only by, or with the consent of, the Director of Public Prosecutions.

Article 5, ECHR requirements

151. Several witnesses argued that the current regime under Schedule 8, on which extended pre-charge detention would continue to rely, is not compatible with Article 5 of the European Convention on Human Rights.

152. The JCHR has repeatedly raised concerns about the human rights compatibility of Schedule 8:

"... we made a number of detailed suggestions for improving the judicial safeguards which currently apply to extended pre-charge detention ... These included a number of suggested amendments to the statutory regime to ensure that hearings for warrants of further detention are truly adversarial in nature, e.g. by providing for special advocates to represent the interests of the detained suspect at any closed part of the hearing, and by providing that any restrictions on disclosure to the suspect or on the suspect's participation in the hearing be subject to the overriding requirement that the hearing of the application be fair. The suggested improvements also included amending the test to be applied by the court when deciding whether or not to authorise further pre-charge detention, requiring that the court be satisfied that there exists a sufficient basis for arresting and continuing to question the suspect."[119]

153. The JCHR went on in that report to recommend

"that the relevant part of the legal framework (Schedule 8 to the Terrorism Act 2000) be amended to ensure that the judicial safeguards which apply at hearings to extend pre-charge detention comply fully with the requirement in Article 5(4) ECHR that there be a truly "judicial" procedure."[120]

154. JUSTICE believes the provisions of Schedule 8 are incompatible with the right to liberty under Article 5 and the common law. In particular, that Schedule 8 violates article 5(2)—the right to be informed promptly of the reasons for arrest and any charge—and article 5(4)—the right to take proceedings by which the lawfulness of detention shall be decided speedily by a court.[121]

155. JUSTICE stated that one of the most serious flaws in the safeguards for extended pre-charge detention is judicial authorisation procedure under Schedule 8:

"Our view is ... that even schedule 8 protections are not sufficient. Schedule 8 appears to be, to us, at least in relation to the right to know the case against you, incompatible with Article 5.4. If you are going to make changes to schedule 8, the changes you need to make are changes to improve the authorisation procedure rather than the maximum periods."[122]

156. Lord Carlile was of a different view, arguing that the courts already read Article 5 requirements into Schedule 8. He suggested that amending Schedule 8 to expressly include Article 5 requirements would be "stating the obvious in legislation". In his report on Operation Pathway, however, Lord Carlile comments on the erroneous interpretation of arrest law by the police, saying that he was surprised the police did not realise the need to consider Article 5:

"Given the long history of arrest law as described above, and the provisions of the ECHR, I am surprised 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. In relation to arrest and charge, it is a matter for the Courts as to what can properly be characterised as 'promptly' in a particular context: it is likely to be case specific and therefore elastic, but in every case there must be a point at which continued and (particularly) extended detention, far beyond the normal periods for non-terrorism cases, will be subjected to a requirement to set out the evidential basis."[123]

157. The JCHR were not surprised at the police's interpretation of the law:

"It is ... 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."[124]

158. The courts have so far found that Schedule 8 provisions are not incompatible with Article 5 requirements: the powers of the courts are sufficient to protect suspects' Article 5 rights, but only on the basis that the courts were prepared to perform their duty under section 3 of the Human Rights Act 1998 to read and give effect to the legislation in a manner compatible with Convention rights so far as it was possible to so do, by reading the legislation as if it incorporated the due process requirements of Article 5 of the ECHR.[125] However, the case of Duffy is awaiting appeal in the Supreme Court.

159. The safeguards in Schedule 8 are critical to making extended detention human rights compliant in each case; the longer the detention the more important they become. The courts have so far held that the legislation is compatible with Article 5 of the ECHR as long as the courts read the Article 5 requirements into the legislation. Lord Carlile's report on the Operation Pathway case made it clear that this is not sufficient—police have assumed that the hurdles to securing extended detention are lower than is actually the case. We echo the JCHR's recommendation that Article 5 requirements be included on the face of Schedule 8. Our recommendation at para 145 goes some way towards this point.

94 Review, paras 23 and 24 Back

95 Review, para 26 Back

96 Q 391 Back

97 Q 198 Back

98 Q 320 Back

99 Q 3 Back

100 Q 365 Back

101 Q 172 Back

102 Q 106 Back

103 Q107 Back

104 Q32 Back

105 Review, para 30 (iv) Back