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

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 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 (para 159).

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Prepared 23 June 2011