CHAPTER 5: Conclusions and Recommendations
160. The following is a list of the conclusions
and recommendations that appear in the report. Their place in
the main text is indicated in the reference at the end of each
paragraph.
Is it ever justifiable to hold
a terrorist suspect for more than 14 days?
161. 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. 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 (para 35).
162. 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
(para 36).
163. 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
(para 49).
164. 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 (para
61).
Are the draft Bills the right
contingency plan?
165. We believe that the Government is right
to wish to create a contingency power to extend the maximum period
for pre-charge detention beyond 14 days up to not more than 28
days in exceptional circumstances. We understand the Government's
reasons for proposing that this power should be provided by emergency
primary legislation, to be enacted only when the need arises,
so that the need for and the provision of the power can be subject
to parliamentary scrutiny. We believe, however, that the parliamentary
scrutiny of primary legislation to this effect would be so circumscribed
by the difficulties of explaining the reasons for introducing
it without prejudicing the rights of a suspect or suspects to
a fair trial as to make the process of justifying the legislation
almost impossible for the Secretary of State and totally unsatisfactory
and ineffective for Members of both Houses of Parliament. We also
believe that that there would be an unacceptable degree of risk
that it would in practice be almost impossible to introduce and
pass the legislation required within a sufficiently short period
of time when Parliament was in recess (particularly the long summer
recess) or at the time of a general election during the period
between the dissolution of one Parliament and the opening of a
new Parliament. We are therefore not persuaded that emergency
primary legislation of the kind proposed by the Government would
prove to be a satisfactory or reliable way of creating the contingency
power (para 94).
166. On the other hand we share the Government's
belief that it is necessary to create a system for providing a
contingency power of general application which is more constrained
than the current system and contains more safeguards to ensure
that the power is provided only in exceptional circumstances and
exercised only when absolutely necessary (para 95).
The way forward
167. We 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 (para 134).
168. 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 (para 135).
169. 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 (para 136).
170. 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 (para 137).
171. 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 (para 138).
172. 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 (para 139).
173. We 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 (para 145).
174. 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 (para 150).
175. 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 sufficientpolice 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
(para 159).
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