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Joint Committee On Human Rights Twentieth Report

2 Pre-charge Detention

Background

6. We have set out our views on the human rights compatibility of the Government's proposal to extend the maximum period of pre-charge detention to 42 days at length in our 42 Days Report (published on 14 December 2007)[6] and our first Report on the Counter-Terrorism Bill (published on 20 February 2008).[7] Our view is that the Government has not made out its case for the need to extend pre-charge detention beyond the current limit of 28 days. Not only have we found no clear evidence of any likely need for more than 28 days in the near future, we have demonstrated, in a series of reports, that there is now an alternative, human rights compliant package of measures which does enough, in combination, to protect the public. Many of the elements of this package of measures are already in place; others are in train and still others are proposed in this Bill. There are also other measures which we propose in this report, which would serve the same purpose. In our view, when these alternative measures are taken in combination, and their interrelationship properly understood, there is simply no need to extend the maximum period of pre-charge detention.

7. The most important elements of the alternative package are:

The lowering of the charging threshold for terrorism cases (the so-called "Threshold Test")
The introduction of new offences, such as acts preparatory to terrorism
The introduction of post-charge questioning with adverse inferences
The availability of control orders and other forms of surveillance to limit and monitor risk
The possible future availability of bail with conditions for terrorism offences
The future admissibility of intercept evidence
Greater specialisation within the CPS and more active prosecutorial involvement in investigations
More active case management of terrorism cases by the judiciary, including a more robust approach to defence delaying tactics
Incentives to those on the periphery of terrorism offences to give evidence, e.g. in the form of better witness protection and the possibility of plea bargaining.

8. As we have said in previous reports, in our view the Government has failed to consider these alternatives to extending pre-charge detention as a coherent package. Taking these measures in combination, we do not think it can be said that there is really any gap in public protection which warrants taking the extraordinary step proposed by the Government to increase pre-charge detention up to a maximum of 42 days.

The Government's failure to respond to 42 Days Report

9. No reply to our 42 Days report was received by the end of the two month period by which Government responses are due. On 26 March 2008, however, the Government published its Reply to our later Report on the Counter-Terrorism Bill.[8] The Government's Reply responds to the chapter on pre-charge detention in our report on the Bill, but not to our earlier and much more detailed 42 Days Report, in which we had subjected the Government's 42 days proposal to detailed scrutiny after taking a considerable amount of oral evidence on the subject. We therefore enquired as to when we could expect to receive a Government response to that Report.

10. We were astonished to be told that the Reply to the Committee's Report on the Counter-Terrorism Bill is intended by the Government to respond to both reports and the Home Office has no plans to respond further to the Report on 42 days. This had not been agreed with the Committee in advance. Moreover there is no mention of the 42 Days Report in the Government Reply. That Reply contains only four short paragraphs dealing with the compatibility of the 42 days proposal with Article 5 ECHR, and fails to respond to much of the detailed analysis and a number of relevant recommendations contained in the 42 Days Report. We set out below a list of the main recommendations in that Report which have not been responded to at all by the Government:

That reasoned explanations, rather than mere "statements", be given by Ministers to Parliament concerning extensions of pre-charge detention (para. 15)
That the Government bring forward the evidence relied on to demonstrate that the level of threat from terrorism has increased in the last year (para. 33)
That the Government consider the inter-relationship between the various alternatives to pre-charge detention and bring forward a package of alternative measures in place of the 42 days proposal (para. 50)
That the Government urgently consider introducing bail with conditions for Terrorism Act offences (para. 51)
That the Home Secretary explain to Parliament why the Government has decided not to propose any additional judicial safeguards surrounding pre-charge detention, when this was one of the questions on which it consulted (para. 70)
That a number of detailed amendments be made to the statutory regime governing hearings at which pre-charge detention is extended, to make them proper "judicial" hearings (para. 89)
That the test applied by the court when deciding whether to extend pre-charge detention be amended to require the court to be satisfied that there is a sufficient basis for arresting and continuing to question the suspect (para. 96)
That legal aid be made available for representation by counsel at hearings to extend pre-charge detention (para. 98).

11. We are extremely disappointed by the Government's failure to provide a substantive response to a substantial report on the issue which has proved the most controversial in the context of the current Bill. We look forward to the Government at the very least responding to the recommendations we have identified above.

The Government's response

12. The Government's Response to our Counter Terrorism Bill Report is, for the most part, a restatement of the case it has already made in favour of the 42 days proposal, rather than a response to specific points made by us in our Reports. The Government argues that its proposal will ensure that the higher limit can only be made available when there is a clear and exceptional need to do so, that it will be temporary and subject to "strong oversight from Parliament" and "stringent judicial safeguards". The only new argument contained in the Government Response on this issue is in the form of a more detailed elaboration of the Government's reasons for arguing that the proposed parliamentary oversight of pre-charge detention would be meaningful.

Parliamentary safeguards

13. In our previous reports we pointed out that, because the power to extend the period of pre-charge detention will be exercised in relation to a specific, ongoing investigation, any parliamentary debate about the justification for exercising the power will necessarily be so circumscribed as to be virtually useless as a safeguard against the wrongful exercise of the power.[9] We also pointed out that the order by which the Secretary of State can make the reserve power available is a wholly executive order which is not subject to any parliamentary procedure, and that by the time Parliament expresses a view on whether the reserve power should be made available it is likely that the full 42 day period will have expired.[10] The Government argues that its proposal does contain "substantial and meaningful opportunities" for Parliament to consider whether a higher limit of pre-charge detention should be made available and to ensure that any such extension is accompanied by adequate safeguards. It argues that Parliament will have four opportunities to exercise such meaningful oversight:

(1) when debating and scrutinising the proposal contained in the Bill itself;

(2) when the Home Secretary makes a statement to Parliament as she would be required to do within 2 days of making the higher limit available;

(3) when Parliament is asked to approve the Home Secretary's decision to make the higher limit available, following a debate in both Houses, which must be within 30 days of that decision; and

(4) when it debates the report of the independent reviewer of terrorism legislation on the way in which individual suspects were detained and on the reasonableness of the Home Secretary's decision.

14. The Government argues that there would be meaningful debates on these occasions, which would not be mere "rubber-stamping" exercises. Although such debates could not discuss details relating to individual suspects, and the Government accepts that "the continued detention of individual suspects is a matter for the courts, not Parliament", the Government would nevertheless expect debates on the Home Secretary's decision to make the reserve power available to be "serious and detailed", and so provide a meaningful opportunity to hold the Home Secretary to account for her decision. It is envisaged by the Government that such debates would be able to cover such things as the exceptional nature of the investigation under way, information relating to the incident or plot involved and the complexities involved in the investigation. It also envisages that the debates following publication of the independent reviewer's report would provide an opportunity "to raise questions about whether individual suspects had been held in accordance with the correct procedures."

15. In our view, while it would clearly be possible for there to be a parliamentary debate of some kind on the Home Secretary's statement to Parliament about having made the 42 day limit available, it would not be possible for that debate to go into the details of the justification for extending the time limit for the purposes of the particular, ongoing investigation. The nature of that decision requires justification by reference to the particular circumstances of the investigation of the individual suspects. The Home Secretary would tell Parliament that she has been advised by the police and the CPS that more time is required in order to investigate the individual suspects who are already being detained. In order for Parliament meaningfully to debate the correctness of that assertion, it will be necessary to refer to the detailed factual circumstances of the individual suspects, but such reference will be impossible because, as the DPP made clear in his evidence to the Home Affairs Committee, it might prejudice subsequent prosecutions. In our view, the fundamental flaw in the Government's proposal therefore remains: it confuses parliamentary and judicial functions by attempting to give to Parliament what is unavoidably a judicial function, namely the decision about whether it is justifiable to detain individual suspects for longer.

16. The same problem arises with any parliamentary debate on the report of the Government's reviewer. The Government suggests that this will provide an opportunity "to raise questions about whether individual suspects had been held in accordance with the correct procedures." But that is precisely the sort of issue likely to arise in the course of subsequent prosecutions or other court proceedings, and the scope for parliamentary debate about that issue will therefore inevitably be severely circumscribed by the same concerns about prejudicing future trials.

17. We have also found nothing in the Government's Reply responding to the criticism that by the time Parliament expresses a view on whether the reserve power should be made available it is likely that the full 42 day period will have expired. It has been suggested in the press that the Government might be prepared to agree to an amendment which would guarantee Parliament an opportunity to debate the justification for invoking the reserve power before the expiry of the 42 days. In our view, however, even if the Bill were amended in this way, it would not meet the objection above that any parliamentary debate will be so circumscribed by the need to avoid prejudicing fair trials as to be a virtually meaningless safeguard against wrongful exercise of the power.

18. The Government also states in its Response that the purpose of legislating now, away from the heat of any operation, is so that Parliament can ensure that the law contains the appropriate and meaningful safeguards against the wrongful exercise of the power, but "so far we have received no suggestions for how the safeguards contained in the Government's proposal might be strengthened." In fact, we have made a number of very specific suggestions in our Reports about how to strengthen both the parliamentary and the judicial safeguards which accompany extended pre-charge detention.

19. As far as parliamentary safeguards are concerned, we made detailed suggestions about how to strengthen the safeguards in July 2007 in our Report on 28 days, intercept and post-charge questioning.[11] We recommended that, whether or not the current limit of 28 days was further extended, parliamentary oversight be improved by:

(i) requiring annual renewal of the power by affirmative resolution in both Houses;

(ii) the Home Secretary providing, at least a month before the annual renewal debate, a detailed annual report to Parliament on the use which has been made by the police of the power to detain without charge for more than 14 days;

(iii) an independent reviewer providing, at least a month before the annual renewal debate, an annual report on the operation in practice of pre-charge detention for more than 14 days and on the necessity for the power.

20. The Government's Response to that report, in September 2007, did not respond at all to these recommendations.[12] To date, no response to them has been received. In our recent report on the renewal of the control orders legislation, we expressed our disappointment at the Government's failure to respond to our constructive proposals for improved parliamentary review, especially in light of the Prime Minister's renewed commitment to the importance of parliamentary oversight in relation to the unusual powers required to counter terrorism.[13]

Judicial safeguards

21. As for judicial safeguards, we made a number of detailed suggestions for improving the judicial safeguards which currently apply to extended pre-charge detention in our Report on 42 days.[14] 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.[15] 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.[16] These detailed recommendations were made after hearing evidence from both the Head of the Counter-Terrorism Division at the CPS and a defence barrister with experience of pre-charge detention hearings in terrorism cases. The Government has not responded at all to these recommendations.

Compatibility with the right to liberty

22. The Government's Response to our detailed consideration of the compatibility of its proposal with the right to liberty in Article 5 ECHR comprises four short paragraphs.[17] These largely comprise counter-assertions that, in the Government's view there is no incompatibility with Article 5(1), 5(2), 5(3) or 5(4). However, they also contain two inaccuracies.

23. First, the Government asserts that "no challenge has ever been made" on grounds of incompatibility with Article 5 where suspects have been held under the existing maximum period of 28 days "and if there was even an arguable case you would expect there to have been such a challenge." In other words, the Government is inviting Parliament to infer from the fact that there have not been any Article 5 challenges under the existing law that there is not even an arguable case that the regime of extended pre-charge detention is in breach of Article 5. In fact, there has been such a challenge, by one of the first people to have their pre-charge detention extended beyond 14 days, a suspect arrested in connection with the alleged Heathrow bomb plot in August 2006. In the case of Nabeel Hussain, referred to in the Committee's Report on 42 Days,[18] the suspect applied for judicial review of the High Court Judge's decision to extend his pre-charge detention from 14 to 21 days.[19] All applications to extend detention beyond 14 days are decided by a High Court Judge. However, there is no right of appeal against a judicial decision extending pre-charge detention. As the judgment records, in the case of Nabeel Hussain, the suspect sought to challenge the decision to extend his detention:

"on two grounds: namely, (1) that insufficient particulars were provided of the justification for continued detention; and (2) the judge failed to supply adequate reasons demonstrating that he had considered whether there was sufficient evidence to charge the applicant. Those submissions draw heavily upon the jurisprudence under Article 5(3) and (4) of the European Convention on Human Rights."[20]

24. The application for judicial review was rejected on the basis that the High Court does not have jurisdiction to review a decision of a High Court Judge acting in his capacity as a High Court Judge.

25. Second, the Government asserts that there is no incompatibility with the right to a judicial hearing under Article 5(4) ECHR because a detainee "may also issue habeas corpus proceedings if appropriate." In our view, this is incorrect. In fact, as we pointed out in our Report on 42 Days,[21] the High Court in Nabeel Hussain's case held that a warrant of further detention hearing is the "judicial hearing" to which a suspect is entitled under Article 5(4) ECHR.[22] There is no doubt, in light of this case law, that a detainee who applied for habeas corpus after a court had extended his detention would have his application struck out for abuse of process.

26. The Government has not addressed the Nabeel Hussain case because it has not replied to our Report on 42 Days. Until it does so, and explains why our interpretation of that case is wrong, there is a risk that these inaccuracies in the Government's Reply may mislead Parliament.

The view of the Law Officers

27. On 21 November 2007 the former Attorney General, Lord Goldsmith, giving evidence to the Home Affairs Committee about the proposal for 90 days pre-charge detention in the 2006 Terrorism Bill, said:

"if the 90-day proposal had come from the Commons unamended, I would have not found it possible to vote for it in the Lords and that would have had an obvious consequence in terms of my position within government."[23]

28. Although Lord Goldsmith said that his view was not that the proposal for 90 days was illegal,[24] he explained that his reason for thinking that 28 days is the right limit was that, to keep somebody in detention without charging them, you need to continue to have reasonable suspicion that they have committed an offence, and that "this is probably required by our international obligations".[25] He thought it unlikely that there could still be a reasonable suspicion if no evidence had been found of any offence after a period as long as 28 days. This was also the view expressed by the DPP in an interview with The Times newspaper.[26]

29. It is also a matter of public record that the Law Officers will be called upon to advise Ministers about the human rights compatibility of measures in Bills in difficult or sensitive cases. As Lord Goldsmith explained in his public lecture, Government and the Rule of Law in the Modern Age, at the LSE on 24 February 2006:

"the Minister giving the certificate needs to be satisfied that it is more likely than not that the courts will uphold the proposal as compliant. The Minister's judgment is necessarily made on the basis of legal advice. That advice comes from departmental lawyers, sometimes supplemented by external advice or advice from the Law Officers. The Law Officers will normally only be called upon to advise in the most difficult or sensitive cases. But called upon, we are."

30. In the light of the Government's failure to respond to our detailed proposals in our 42 Days Report and Lord Goldsmith's candid admission that extending the period beyond 28 days may fall foul of our international obligations, we wrote to the Law Officers to ask for their view, including whether they disagree with our analysis of the human rights compatibility of the 42 day proposal in our 42 Days Report.[27]

31. The Attorney General refused to answer our questions, citing "the long-standing convention, set out in the Ministerial Code, that neither the fact that the Law Officers have advised (or have not advised), nor the content of any advice they may have given, is disclosed outside Government" and referring to the Home Secretary's s. 19 certificate and the Explanatory Notes to the Bill as providing Parliament with the Government's views on this issue.[28]

32. We would not expect to have received the legal advice provided by the Law Officers to the Home Office, which we accept would be legally privileged. However, we are disappointed that the Law Officers were not even able to confirm that, in their view, the Bill is compatible with the UK's human rights obligations and does not risk giving rise to breaches of human rights in individual cases. We see no reason why Parliament should not have received at the very least a summary of the reasons why the Law Officers regard the Government's 42 days proposal as being compatible with the UK's human rights obligations. In our view, on a matter as significant and sensitive as the proposal to increase the maximum period of pre-charge detention, it is important that Parliament is fully informed about the views of the Law Officers, especially in light of what has subsequently been learned about Lord Goldsmith's view at the time of the 90 day proposal.

Strengthening the judicial safeguards

33. In the absence of any explanation from the Government as to why we are wrong in our analysis in our previous reports that the existing judicial safeguards are inadequate, we now 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. We suggest below some amendments to the Bill which are designed to ensure that the suspect has an effective opportunity, at an open hearing and with access to the relevant material, to challenge the reasonableness of the suspicion on which the prosecution relies as the basis for the original arrest and continued detention.

New clause

'Extension of detention under section 41 Terrorism Act 2000

(1) The Terrorism Act 2000, Schedule 8, Part III (Extension of Detention under Section 41) is amended as follows.

(2) After sub-paragraph (6) of paragraph 29 (Warrants of further detention) there is inserted -

'(7) Nothing in this Part is to be read as requiring the judicial authority to act in a manner inconsistent with the right of the specified person to a fully judicial procedure in Article 5(4) of the European Convention on Human Rights.'

(3) After sub-paragraph (d) of paragraph 31(Notice) there is inserted -

'(e) a statement of the suspicion which forms the basis for the person's original arrest and continued detention, and

(f) the gist of the material on which the suspicion is based.'

(4) Before sub-sub-paragraph (a) of sub-paragraph 32(1) (Grounds for extension) there is inserted -

'(aa) there are reasonable grounds for believing that the person has been involved in the commission, preparation or instigation of a terrorist offence,'