In this Annex, we suggest amendments to give effect to some of our recommendations in this Report.[54]

Pre-Charge Detention: Strengthening the judicial safeguards

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.[55]

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,'

(5) Sub-paragraph (1) of paragraph 33 (Representation) is deleted and there is inserted in its place -

'(1) The person to whom an application relates shall be entitled -

(a) to appear in person before the judicial authority and make oral representations about the application,

(b) to be legally represented by counsel at the hearing,

(c ) to legal aid for such representation,

(d) to be represented by a special advocate at any closed part of the hearing of the application, and

(e) through his representative, to cross examine the investigating officer.

(6) After sub-paragraph (3)(b) of paragraph 33 there is inserted -

'if the judicial authority is satisfied that there are reasonable grounds for believing that the exclusion of the person and/or his representative is necessary in order to avoid any of the harms set out in sub-paragraphs (a)-(g) of paragraph 34(2) below.'

Pre-Charge Detention: 42 days

For the reasons we have given this Report and in our previous reports, we remain of the view that the Government has not made out its case for extending the period of pre-charge detention beyond the current limit of 28 days, In our view, there is a package of human rights compatible alternatives to extending pre-charge detention. We therefore recommend the deletion of the relevant provisions from the Bill and suggest the following amendment:[56]

Page 16, line 14, leave out clause 22.

Page 61, line 2, leave out schedule 1.

Lowering the Charging Threshold

This amendment would place the threshold test for charging on a statutory footing and would insert some necessary basic safeguards.[57]

New clause

'Lower threshold for charging in terrorism cases

(1)When deciding whether there is sufficient evidence to charge a person with an offence having a terrorist connection, a Crown Prosecutor may apply the "Threshold Test" for charging if the conditions in subsection (3) below are satisfied.

(2) The "Threshold Test" for charging is met where there is at least a reasonable suspicion that the suspect has committed an offence having a terrorist connection.

(3) The conditions which must be satisfied for the Threshold Test to apply are:

(a) it would not be appropriate to release the suspect on bail after charge

(b) the evidence required to demonstrate a realistic prospect of conviction is not yet available, and

(c) it is reasonable to believe that such evidence will become available within a reasonable time.

(4) The factors to be considered in deciding whether the Threshold Test of reasonable suspicion is met include

(a) the evidence available at the time;

(b) the likelihood and nature of further evidence being obtained;

(c) the reasonableness for believing that evidence will become available;

(d) the time it will take to gather that evidence and the steps being taken to do so;

(e) the impact the expected evidence will have on the case;

(f) the charges that the evidence will support.

(5) Where a Crown Prosecutor makes a charging decision in accordance with the Threshold Test, the person charged shall be immediately informed of the fact that they have been charged on the standard of reasonable suspicion.

(6) When the person charged on the Threshold Test is brought before the Court it shall be the duty of the Crown Prosecutor to inform the Court of that fact.

(7) The Court shall set a timetable for the receipt of the additional evidence and for the application of the normal test for charging as set out in the Code for Crown Prosecutors.

(8) The Chief Inspector of the Crown Prosecution Service shall report annually on the operation of the Threshold Test in terrorism cases.'

Making Bail Available in Terrorism Cases

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:[58]

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.".'

Post-Charge Questioning

This amendment would supplement the provisions in the Bill dealing with post-charge questioning with a number of additional safeguards.[59]

New clause

'Post-charge questioning: safeguards

"(1) Reference in this section to "post-charge questioning" relate only to post-charge questioning for terrorism offences.

(2) Post-charge questioning must be judicially authorised in advance.

(3) Post-charge questioning shall be confined to questioning about new evidence which has come to light since the accused person was charged and which could not reasonably have come to light before.

(4) The total period of post-charge questioning shall last for no more than 5 days in aggregate.

(5) Post-charge questioning may only take place in the presence of the defendant's lawyer.

(6) Post-charge questioning shall always be video-recorded.

(7) The judge who authorised post-charge questioning shall review the transcript of the questioning after it has taken place, to ensure that it remained within the scope of questioning under subsection (2) and was completed within the time allowed under subsection (3).

(8) Post-charge questioning for a terrorism offence shall never be permissible after the beginning of the defendant's trial for that offence.".'

Control Orders

PRIORITY OF PROSECUTION

We therefore recommend that the Prevention of Terrorism Act 2005 should be amended to provide that, except in urgent cases, the Secretary of State may only make a control order where the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. We also recommend that the Secretary of State should be subject to an express statutory duty to review the possibility for prosecution on a regular basis.[60] We suggest the following wording to give effect to these recommendations:[61]

New clause

'Control orders: pre-conditions

After sub-paragraph (b) in section 2(1) of the Prevention of Terrorism Act 2005 there is inserted -

"; and (c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.".'

New clause

'Control orders: ongoing review of possibility of prosecution

After subsection (6) of section 8 of the Prevention of Terrorism Act 2005 there is inserted -

"(6A) The Secretary of State shall, throughout the period during which the control order has effect

(a) ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every 3 months;

(b) consult the police prior to such review;

(c) share with the police such information as is available to him which is relevant to the prospects of a successful prosecution.".'

This amendment proposes to amend the Prevention of Terrorism Act 2005 to increase the transparency of decisions that prosecution is not possible.[62]

New clause

'Control orders: reasons for decisions on prospects of prosecution

After subsection (2) of section 8 of the Prevention of Terrorism Act 2005 there is inserted -

"(2A) If the chief officer advises the Secretary of State that there is no realistic prospect of prosecution, he shall give reasons for his view.

(2B) The chief officer's reasons shall be disclosed to the controlled person to the extent that such disclosure would not be contrary to the public interest.".'

DEPRIVATION OF LIBERTY

This amendment is intended to clarify the approach to be taken by courts when deciding whether the effect of a control order is to deprive a person of their liberty in the Article 5 ECHR sense.[63]

New clause

'Control orders: cumulative effect of restrictions relevant to determination about deprivation

After subsection (10) of section 3 of the Prevention of Terrorism Act 2005 there is inserted -

"(10A) In determining whether the effect of a non-derogating control order is to deprive a person of their liberty, the factors to which the court shall have regard must include,

(a) the nature, duration, effects and manner of implementation of the restrictions, and

(b) the cumulative effect of the obligations.

(10B) The combination of obligations may amount to a deprivation of liberty even if no individual obligation amounts to such a deprivation.".'

This amendment is intended to impose a 12 hour maximum limit on daily curfews imposed by control orders to make it less likely that control orders will be in breach of Article 5 ECHR.[64]

New clause

'Control orders: maximum limit on daily curfews

After subsection (5) of section 1 of the Prevention of Terrorism Act 2005 there is inserted -

"(5A) The duration of any prohibition or restriction on the controlled person's movements shall not exceed 12 hours in any 24 hour period.".'

DUE PROCESS

This amendment is intended to include express references to the right to a fair hearing for those subject to control orders in the Prevention of Terrorism Act 2005.[65]

New clause

Control orders: right to a fair hearing

(1) At the end of subsection (13) of section 3 of the Prevention of Terrorism Act 2005 there is inserted -

'except where to do so would be incompatible with the right of the controlled person to a fair hearing'.

(2) At the end of paragraph 4(2)(a) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'except where to do so would be incompatible with the right of the controlled person to a fair hearing'.

(3) At the end of paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'except where to do so would be incompatible with the right of the controlled person to a fair hearing'.

(4) After paragraph 4(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights.'

This amendment is intended to create a statutory obligation for the Secretary of State to give reasons for make control orders.[66]

New clause

'Control orders: obligation to give reasons

After subsection (4) of section 2 of the Prevention of Terrorism Act 2005there is inserted -

"(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in s. 2(1) above are made out.".'

This amendment is intended to give full effect to the judgment of the Court in MB; on information available to a controlled person and the right to a fair hearing. It intends that the Secretary of State should be obliged to provide a summary of any material on which he used to rely.[67]

New clause

'Control orders: obligation to provide gist of closed material

"(1) At the end of paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

"and must require the Secretary of State to provide a summary of any material on which he intends to rely and on which fairness requires the controlled person have an opportunity to comment."'.

This amendment intends to allow a High Court judge to sanction communication between special advocates and controlled persons, on application by the special advocate.[68]

New clause

'Control order: communications between special advocate and controlled person

After subparagraph 7(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

"(5A) Rules of court must secure that persons appointed under this paragraph may apply to a High Court judge, without notice to the Secretary of State, for permission to communicate with the controlled person after the service of closed material.".'

The judgments in MB make clear that the standards of procedural protection are to be commensurate with the seriousness of the consequences for the controlee, and in our view this must include the standard of proof. We consider that this should be made clear in the legislation itself. The following amendment would give effect to this recommendation.[69]

New clause

'Control orders: proportionality of procedural protection

After subsection 3(11) of the Prevention of Terrorism Act 2005 there is inserted -

"(11A) In a hearing to determine whether the Secretary of State's decision is flawed, the controlled person is entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person.".'

This amendment is designed to allow special advocates to call expert witnesses.[70]

New clause

'Control orders: Power of special advocates to call expert witnesses

After paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

"(ea) that, where permission is given by the relevant court not to disclose material, persons appointed under paragraph 7 may call witnesses to rebut the closed material.".'

MAXIMUM DURATION OF CONTROL ORDERS

This amendment is designed to set a statutory maximum duration of 2 years for a non-derogatory control order.[71]

New clause

'Control orders: maximum duration

After section 3 of the Prevention of Terrorism Act 2005 there is inserted -

"3A   Duration of non-derogating control orders

A non-derogating control order ceases to have effect at the end of the period of two years from the date on which it was made, unless there are exceptional circumstances justifying its renewal.".'

Coroners' inquests and national security

We recommend that the clauses concerning coroners' inquests be deleted from the Bill and the issue returned to in the context of the forthcoming Coroners Bill. We suggest the following amendments:[72]

Para 44, line 35, leave out clause 64.

Para 46, line 1, leave out clause 65.

55   Paragraph 33 of this Report. Back

56   Paragraph 36 of this Report. Back

57   Paragraph 49 of this Report. Back

58   Paragraph 56 of this Report. Back

59   Paragraph 65 of this Report. Back

60   Paragraph 79 of this Report. Back

61   Paragraph 76 of this Report. Back

62   Paragraph 81 of this Report. Back

63   Paragraph 85 of this Report. Back

64   Paragraph 89 of this Report. Back

65   Paragraph 97 of this Report. Back

66   Paragraph 100 of this Report. Back

67   Paragraph 103 of this Report. Back

68   Paragraph 106 of this Report. Back

69   Paragraph 108 of this Report. Back

70   Paragraph 111 of this Report. Back

71   Paragraph 114 of this Report. Back

72   Paragraph 120 of this Report. Back