Background

10. We reported in December on the human rights compatibility of the Government's outline proposal to extend the period of pre-charge detention from 28 to 42 days.[6] We concluded that the Government had not made a compelling, evidence-based case for extending pre-charge detention beyond the current limit of 28 days because:

i)  we could find no clear evidence of likely need in the near future, and considered the evidence of the Director of Public Prosecutions and the Head of the CPS's Counter Terrorism Division, that the CPS had managed comfortably so far with a 28 day limit, to be devastating to the Government's argument that there was a demonstrable risk that the present limit is inadequate;

ii)  alternatives to extension, such as the threshold test and broad offences like acts preparatory to terrorism, and possible future developments such as post-charge questioning and the admissibility of intercept, do enough, in combination, to protect the public and are much more proportionate;

iii)  there are no additional judicial safeguards accompanying the new power; and the existing judicial safeguards are inadequate because they do not provide a proper opportunity, at a truly judicial hearing at which the parties are on equal terms, to challenge the reasonableness of the suspicion on the basis of which they are detained;

iv)  the proposed parliamentary safeguards are virtually worthless because the risk of prejudicing the fair trial of suspects is likely to prevent Parliament from considering the justification for the exercise of the power in specific, ongoing cases, and because Parliament is only likely to consider the matter after the suspects have already been detained for the full 42 days.

11. To date, we have received no reply to our report from the Government.

12. The Bill gives effect to the Government's outline proposals by introducing a "reserve power" to extend further the maximum period of pre-charge detention.[7] The detailed provisions in the Bill are substantially the same as the proposals we considered in our report in December and we therefore refer back to our analysis in that report rather than repeat it here.[8] Most of the detail in the Schedule to the Bill concerns the parliamentary safeguards. The Bill acknowledges the danger of reports to and debates in Parliament prejudicing the future trial of individuals who are detained at the time of the extension, by expressly providing that the Home Secretary's statements to Parliament about the need for an extension of the limit and about actual extensions beyond 28 days must not include the name of any person currently detained or any material that might prejudice the prosecution of any person.[9]

13. These limits on the scope of the Home Secretary's statements are a welcome recognition of the danger of prejudicing future trials, but only serve to demonstrate the very limited extent to which Parliament will be able to provide any meaningful safeguard against the wrongful exercise of the power. It also remains the case 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,[10] and 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.

Compatibility with the right to liberty

14. The Explanatory Notes to the Bill state that the Secretary of State considers that the provisions in the Bill for extending pre-charge detention of terrorist suspects to 42 days are compatible with the right to liberty in Article 5 ECHR.[11] They point out that there is no specific European Court of Human Rights jurisprudence on the length of time that a person can be detained before he is charged, but accept that detention under Article 5 must not be arbitrary and must be proportionate to the attainment of its purpose.

15. The Notes state that detention for up to 42 days is not arbitrary in light of the following safeguards:

i)  the 42 day limit will only be available when the Home Secretary is satisfied that there is an operational need for it, a judgment which she can only make if she has received a report from both the DPP and the police that this is their view, and which she is required to report to Parliament;

ii)  the 42 day limit will only remain in force for 60 days, and then only if Parliament has positively approved its continuance in force within 30 days;

iii)  extensions of pre-charge detention must be authorised by a High Court judge at least every 7 days and applications for extensions beyond 28 days require the consent of the DPP;

iv)  extensions of detention up to 42 days can only be made if the existing grounds for extension[12] are made out, namely if the judge is satisfied that there are reasonable grounds for believing that further detention is necessary to obtain or preserve relevant evidence or pending the outcome of an examination or analysis of relevant evidence or that could lead to relevant evidence, and that the investigation is being conducted diligently and expeditiously;

v)  a suspect must be released immediately if at any point their detention no longer meets the test for detention;[13]

vi)  there is parliamentary oversight in the form of requirements that the Home Secretary must report to Parliament on each occasion pre-charge detention is extended beyond 28 days, and that the reviewer of terrorism legislation report annually to Parliament on the exercise of the power, a report which will be debated.

16. The Notes also state that pre-charge detention for up to 42 days is proportionate for three main reasons:

i)  the need to ensure public safety in the face of attacks designed to cause mass casualties means that arrests need to be made at an earlier stage in investigations, when less evidence has been gathered, so more time is needed to gather sufficient evidence to charge a suspect;

ii)  terrorist networks are often international, requiring enquiries to be made in many different countries and often requiring hard-to-find interpreters;

iii)  terrorist networks are increasingly using sophisticated technology and communications techniques, sometimes requiring searches of encrypted data on hundreds of computers and hard drives.

17. We have addressed all of these arguments in detail in our Report on 42 days. Here we simply summarise the main reasons why, in our view, both the legal framework which will be created by the Bill is not compatible with the right to liberty in Article 5 ECHR, and that framework will inevitably lead to breaches of the rights in Article 5 in individual cases.[14]

18. First, a person arrested on suspicion of terrorism has a right under Article 5(2) ECHR to be informed "promptly" not only of the reasons for his arrest but also "of any charge against him." Although it is correct to say that there is no decision of the European Court of Human Rights establishing precisely how promptly a suspect must be informed of the charge against him, we consider that on any view a period of more than 28 days cannot be considered to be "prompt". We are fortified in this view by the evidence we have heard that terrorism suspects are often provided with very little information about the reasons for their arrest other than that they are a suspected terrorist,[15] and by the very limited opportunity to challenge the reasons for detention at the hearings to extend pre-charge detention.[16] We therefore think that charging suspects only after more than 28 days in detention is likely to be in breach of Article 5(2) ECHR.

19. Second, we do not consider that pre-charge detention for up to 42 days is proportionate to the stated purpose of protecting the public from the risk posed by suspected terrorists being at large while an investigation proceeds. For the reasons we have given in our Report on 42 days, we consider the evidence of the Director of Public Prosecutions and the Head of the CPS's Counter Terrorism Division, that the CPS has so far managed comfortably within the 28 day limit, to be fatal to the argument that there is any proven need to go beyond the current limit. We also consider that there are more proportionate alternatives which achieve the Government's aim, especially the combination of the threshold test for charging, broad offences such as acts preparatory to terrorism, post-charge questioning and allowing intercept to be used in evidence. We note that the Explanatory Notes to the Bill do not seek to justify the longer limit by reference to any increase in the level or seriousness of the threat since the increase to 28 days. We therefore think that providing for pre-charge detention up to a maximum of 42 days is disproportionate.

20. Third, we have given very careful consideration to all of the safeguards which would apply to extensions of pre-charge detention up to 42 days under the Bill, including the judicial safeguards which already exist, and we are firmly of the view that the legal framework as a whole does not provide sufficient guarantees against arbitrariness in the exercise of the power. Article 5(1) requires that deprivations of liberty must be "lawful", which means there must be sufficient guarantees against the detention being either arbitrary or disproportionate. Article 5(3) requires a person arrested on reasonable suspicion of having committed an offence to be brought promptly before a judge. Article 5(4) guarantees the right of an arrested or detained person to a judicial hearing to determine the lawfulness of their detention. In our view the legal framework which the Bill would put in place would be incompatible with each of these requirements, because, for the reasons we give in detail in our Report on 42 days, the suspect does not have a guaranteed right to a truly judicial hearing before the judge, on equal terms with the prosecution, and the test for further detention is set too low.[17] The Government has not yet explained why our analysis of the inadequacy of the judicial safeguards is wrong. The Bill, however, contains no additional judicial safeguards. The parliamentary safeguards proposed do not make up for the inadequacy of the judicial safeguards for the reasons given above. We therefore think that the legal framework does not provide sufficient guarantees against arbitrariness and is incompatible with Articles 5(1), 5(3) and 5(4) for that reason alone.

21. As we indicated in our report on 42 days, we will be proposing amendments to the Bill to amend Schedule 8 of the Terrorism Act 2000 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 is a truly "judicial" procedure, that is, one in which 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.

7   Clause 22 and Schedule 1. Back

8   JCHR Report on 42 days, above. The Government's outline proposals are summarised at paras 13-23 of that Report. Our assessment of the human rights compatibility of those proposals is set out at paras 24-101 of that Report. Back

9   Schedule, paras 41(5) and 44(5). Back

10   Schedule, para. 40(3). Back

11   Bill 63-EN paras 269-273. Back

12   In para 32(1) and (1A) of Schedule 8 to the Terrorism Act 2000. Back

13   Para 37 of Schedule 8 to the Terrorism Act 2000. Back

14   See Report on 42 days at para 74 for a summary of the specific rights under Article 5 ECHR which are relevant. Back

15   Ibid. at para. 85. Back

16   Ibid. at paras 90-96. Back

17   As we reported in our Report on 42 days, at para. 92, Mr Bajwa's evidence was that the test is set so low that anyone with a computer and a mobile phone would struggle to resist an application for an extension of detention up to 28 days. Back