APPENDIX 2: Decision-making process relating
to detention and questioning before charge
Sections in italics are the current arrangements.
The police arrest a person who is reasonably
believed to be a terrorist, or a person is detained by a police
constable, immigration officer or customs officer at a port.
Under the Terrorism Act 2000, a person has a right to inform a
friend or relative of where he is detained and to consult a solicitor
privately as soon as is reasonably practicable, subject to the
power of a senior officer to authorise delay in specified circumstances.
A senior police officer may, however, direct that any consultation
with a solicitor take place within the sight and hearing of a
police officer. The person's detention is reviewed by a review
officer—who is not directly involved in the investigation—at
no more than 12 hourly intervals including oral or written representations
from the detained person or his solicitor, though such a review
may be postponed in specified circumstances.
After 48 hours in detention (or in the case
of a person detained at a port, 48 hours after the start of his
examination), the detained person must be charged or released,
unless a Crown Prosecutor applies to a District Judge (Magistrates'
Court) for a warrant of further detention for up to 7 days.
The judge may authorise the warrant if satisfied that the investigation
is being conducted diligently and expeditiously and that further
extension is necessary to obtain or preserve evidence. The person
detained may make oral or written representations to the judge
and is entitled to be legally represented at the hearing. The
judge may exclude the detained person and his legal representative
from any part of the hearing.
A Crown Prosecutor may apply for an extension
or further extension of the period specified in the warrant.
Where the period of detention is less than 14 days from arrest,
the application is heard by a District Judge (Magistrates' Court);
where detention is sought beyond 14 days from arrest, the application
is heard by a High Court judge. After 28 days from arrest, the
detained person must be charged or released.
If a chief police officer and the DPP identify
a need for pre-charge detention beyond 28 days,
they make a report of operational need to the Home Secretary stating
that there are reasonable grounds to believe that one or more
suspects must be detained beyond 28 days to enable the police,
carrying out a diligent and expeditious investigation, to obtain
or preserve evidence relating to a serious terrorist offence carrying
a life sentence (clause 24).
The Home Secretary obtains independent legal advice
on whether he/she can properly be satisfied that there is a "grave
exceptional terrorist threat", that the reserve power is
needed urgently, and that the reserve power is compatible with
Convention rights (clause 25).
The Home Secretary by order (made by statutory
instrument) declares the reserve power exercisable
in order to extend from 28 to 42 days the maximum period of pre-charge
detention (clause 23). An order lapses after 30 days but may be
renewed (clause 30).
The Home Secretary must "forthwith"
share the DPP and chief police officer's report, and independent
legal advice, with the chairmen of the
House of Commons Home Affairs Committee, the Joint Committee on
Human Rights and the Intelligence and Security Committee on a
Privy Counsellor basis (clause 26).
The Home Secretary must as soon as practicable
lay the reserve power order before Parliament (clause 28).
Within two days of making the order or as soon as practicable,
the Home Secretary lays statements before each House of Parliament
saying she is satisfied that there is or has been a "grave
exceptional terrorist threat" (as defined by clause 22),
that the reserve power is needed urgently and that the reserve
power is compatible with Convention rights (clause 27). The statement
must not include the name of the detained person or material
that might prejudice the prosecution of any person. The Home Secretary
also lays before each House a copy of the independent legal
advice obtained, redacted if necessary and the independent
lawyer agrees to prevent disclosure that would be damaging to
the public interest or might prejudice the prosecution of any
person (clause 25(6)-(7)). If Parliament stands prorogued, Her
Majesty by proclamation requires Parliament to meet on a specified
day; if the House of Commons or House of Lords stands adjourned,
the Speaker and the Lord Speaker recall the House (clause 29).
Debate in both Houses.
The reserve power order lapses after seven days unless each House
has passed a resolution approving it (clause 28).
Once the order has been approved, the DPP may apply
to a High Court judge or nominated circuit judge for a warrant
authorising detention beyond 28 days up to 42 days in respect
of a person suspected of a serious terrorist offence. If the warrant
is granted, the DPP informs the Home Secretary.
The Home Secretary lays a statement before Parliament
as soon as practicable, informing Parliament of the extension,
the court which heard the application, the place where the person
is being detained but not any details of the person detained
or material that might prejudice the prosecution of any person.
Before or at the end of the detention period authorised
by the warrant, the person is either charged or released.
Within six months of the reserve power order ceasing
to be in force, the independent reviewer of terrorism legislation
reviews whether the Home Secretary's decision to make the reserve
power exercisable was reasonable, the case of every person detained,
and whether procedural and other safeguards were complied with.
He/she reports on these matters to the Home Secretary (clause
31).
The Home Secretary lays the independent reviewer's
report before Parliament as soon as practicable
(clause 31(7)).
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