50. As the law currently stands, there is no provision for bail under the Terrorism Act 2000 prior to charge.[39] A suspect who has been arrested on suspicion of having committed a non-terrorism offence can be bailed, subject to conditions, while the police continue to investigate the case, but not if they have been arrested in relation to a terrorism offence. Since 2006, conditions attached to the grant of police bail can include various restrictions similar to those contained in control orders, such as curfews, tagging, limits on the places a person can visit, or on people with whom they can speak or meet.[40] There is also no provision in the Terrorism Act 2000 for bail to be granted by the judge who hears the application to extend the period of pre-charge detention.[41]

51. In an earlier report we pointed out that the police at Paddington Green police station had indicated to us that they would often prefer to bail a person who is being detained in respect of a less serious terrorism offence rather than keep them in lengthy pre-charge detention.[42] We thought it highly significant that the police who are most closely involved in dealing with terrorism suspects consider that some of the suspects with whom they deal do not pose a risk to public safety and could therefore be released on bail.

52. We also asked both Sue Hemming of the CPS and Mr. Ali Bajwa, a barrister specialising in terrorism cases, whether they agreed that making bail available in terrorism cases would relieve the pressure for longer pre-charge detention.[43] Mr. Bajwa agreed that bail should be extended to terrorism investigations, and said that if there were a power to grant bail with conditions,

"it would help at least to answer some of the arguments mounted to make a case for more than 28 days because then the persons that it is claimed are too dangerous to be released after 14 or 28 days whilst the investigation continued can be at least monitored and controlled to a certain extent if bail is granted."

53. Ms. Hemming also agreed that bail with conditions would be an alternative to pre-charge detention "for some individuals." She said:

"I think there is a real argument for there being the ability to bail people with conditions, particularly people that the police do not necessarily believe would cause any harm to public safety. They can look at the computers and see if what they expected to be there was there while they were bailed."

54. In our view, there is a compelling case for making bail available in principle for terrorism offences. The current unavailability of bail has become increasingly anomalous as the number of terrorism offences has grown significantly. The range of terrorism related offences now includes many activities at the periphery which are not inherently of such a nature as to make the suspect's release on bail a threat to public safety. The withholding of information by a family member, for example, or the wearing of a T-shirt expressing support for a proscribed organisation, may constitute terrorism offences, but there seems to us to be no good reason why pre-charge bail should not be available in respect of such offences.

55. We also consider that the power to grant bail should include the power to impose conditions. Those conditions should not be so severe as to amount, cumulatively, to a deprivation of liberty, which, in the absence of a derogation, would be contrary to the right to liberty in Article 5 ECHR. Subject to that important constraint, however, we see no reason in principle why the range of conditions available should not be as extensive as those which can currently be contained in a control order. If the range of possible conditions is to be that wide, however, we consider it important that the power is exercised by a court rather than the police, so that the suspect has the benefit of a full adversarial hearing before what may be onerous bail conditions are imposed.

56. In our view, the availability of bail with conditions would enable the police to continue their investigation of those suspected of terrorism offences who do not pose a risk to public safety or a flight risk, while at the same time maintaining some control over them through bail conditions. We therefore recommend that the Bill be amended to make court-ordered pre-charge bail with conditions available in relation to terrorism offences. We acknowledge that this will be a significant reform which will require careful and detailed drafting, but we suggest the following amendment to the Bill to give Parliament an opportunity to debate our recommendation in principle:

New clause

'Bail for terrorism offences

(1) The Terrorism Act 2000, Schedule 8, is amended as follows.

(2) After paragraph 37 there is inserted:

"Part IV: Bail

38. The judicial authority with power to extend detention under section 41 has power to release the suspect on bail, with conditions.".'

40   Police and Justice Act 2006. Back

41   Under Schedule 8 to the Terrorism Act 2000. Back

42   28 days Report paras 173-175. Back

43   42 Days Report, Ev 23, Qs 137-140. Back