Independent safeguards
76. Although we continue to welcome the threshold
test and regard it as one of a number of important alternatives
to extending the period of pre-charge detention in terrorism cases,
we have become increasingly concerned to establish that its use
is subject to appropriate independent safeguards. In an earlier
report we expressed the view that more information is required
about the operation of the threshold test in practice, and recommended
that an appropriate body, such as the CPS Inspectorate, conduct
a review and report on the operation of the threshold test in
terrorism cases.[81]
We are
not aware of any such independent review having been carried out
and we reiterate that such a review would be valuable.
77. In the absence of such a review we have sought
to find out more about the use that has been made of the threshold
test for charging in terrorism cases. We are grateful in particular
to Sue Hemming, Head of Counter Terrorism Division at the CPS,
for the assistance she has given us in understanding the way in
which the threshold test works in practice. From her oral evidence[82]
and her response to our letter,[83]
we have established that of the eight individuals who have been
charged after being held for more than 14 days, four have been
charged on the threshold test.[84]
Of those four, one was charged after 20 days' detention, and
the other three at the end of the maximum period, at 27/28 days.
Two of the four charged on the threshold test were charged with
acts preparatory to terrorism which suggests that this new offence,
in conjunction with the threshold test, is indeed assisting with
the task of enabling appropriate charges to be brought in terrorism
cases, without the need for extending pre-charge detention beyond
28 days.
78. The further information we have received about
the use made of the threshold test in terrorism cases suggests
that the threshold test tends to be used towards the end of the
maximum period of pre-charge detention. We do not suggest that
there is necessarily anything wrong in principle about this (and
we are reassured by the fact that there appear to be no cases
in which charges brought on the threshold test have been dropped
and the suspect subsequently released),[85]
but it does raise questions as to what independent safeguards
exist to ensure that terrorism suspects are not being detained
for long periods on a low evidential threshold. We therefore asked
Ms Hemming about what independent supervision there is of the
time it takes for the full code test for charging to be satisfied.
79. Ms. Hemming pointed to two main safeguards. First,
there is continuous monitoring and review by the prosecutor him
or herself. Second, there is independent judicial scrutiny, because
14 days after charge there is a preliminary hearing before the
judge when the judge sets the timetable which he or she believes
to be reasonable for the particular case, and the defence is free
to challenge the timetable and the sufficiency of the evidence
relied on by the prosecution at that stage. The longstop, according
to Ms Hemming, is that the full code test must have been applied
before the prosecution's case is given to the defence.
80. However, we also heard evidence from Mr Ali Bajwa,
a barrister specialising in defending terrorism suspects, who
pointed out that the defence is not informed when the threshold
test is the basis for the charge.[86]
He pointed out that in major terrorism cases the judge can often
give the prosecution six months to serve its case upon the defence,
which gives it a very long period before it has to be satisfied
that the full code test (realistic prospect of conviction) has
been met, during which time the suspect will have been detained
(bail not being available for terrorism offences)[87].
As Mr Bajwa pointed out, if both the court and the defence were
informed that the threshold test were the basis for the charge,
the court might be more likely to require the prosecution to keep
the court up to date with the progress of its evidence gathering,
and less likely to allow a very lengthy period before the service
of the prosecution case without the court having an opportunity
to review the material in the meantime.
81. We asked the CPS whether it had any objection
to there being an express requirement that both the suspect and
the court be notified when a suspect has been charged on the threshold
test. The response was that the CPS can see no benefit to the
defence in such a requirement, because it becomes aware of the
evidential basis of the Crown's case at the very first hearing
before the judge, and it has the opportunity to have the case
dismissed at that early stage.[88]
However, we can see the force of Mr Bajwa's point[89]
that the judge responsible for case management is much less likely
to set a long timetable for the service of the prosecution case
if he or she is aware that the Crown is awaiting the availability
of certain evidence before applying the full code test to determine
whether there is a realistic prospect of conviction. We
recommend that the CPS be required to disclose to the suspect
and the court when it has charged on the threshold test in order
to provide the opportunity for the court to subject the prosecution's
timetable to independent scrutiny and to ensure that the defence
is in a better position to challenge the basis of the charge.
Statutory authority for lowering
charging threshold
82. We have also become increasingly conscious of
the apparent anomaly that such an important change in the criminal
justice system as a lowering of the charging threshold was brought
about by an exercise of the DPP's discretion to give guidance
to Crown Prosecutors, without any parliamentary consideration.
In our
view, although we regard the advent of the threshold test in terrorism
cases as a largely beneficial development, it would benefit from
thorough parliamentary scrutiny.
The threshold test for charging:
conclusion
83. The
Bill provides an opportunity to put the threshold test in terrorism
cases on a statutory footing and to specify some necessary basic
safeguards, to ensure that the use of the lower charging threshold
does not result in terrorism suspects being held for longer than
necessary before being released without trial. We recognise that
the threshold test for charging is not unique to the terrorism
context, but we think there is a strong case for making special
provision for this category of offence because of the extremely
lengthy period of pre-charge detention which is available.
84. We recommend
that
- the threshold test for charging
in terrorism cases is put on an explicit statutory footing;
- there is an explicit requirement
that the CPS inform both the suspect and the court when the suspect
has been charged on the basis of the threshold test;
- the timetable for the receipt
of the additional evidence is set by the court not the prosecutor.
85. We hope to be proposing amendments to give effect
to these recommendations in due course.
78 See e.g. Report on Prosecution and Pre-charge Detention
at paras 122-129; Report on 28 days at paras 180-182; Report
on 42 days at paras 44-48. Back
79
Report on Prosecution and Pre-Charge Detention at para. 127. Back
80
Ibid at para. 128; Report on 28 days at para. 182. Back
81
Report on 28 days, at para. 182. Back
82
Oral evidence, 5 December 2007, Report on 42 days, Ev 24-26, Qs
149-169. Back
83
Letter from the Chair to Sue Hemming, 20 December 2007, Appendix
8. Back
84
Letter from Sue Hemming to the Chair, 18 January 2008, Appendix
9. Back
85
Oral evidence, 5 December 2007, Q159. Back
86
Ibid. Q158. Back
87
We have previously recommended that the Government introduce bail
with conditions for less serious terrorism offences: see e.g.
Report on 42 days, at para. 51. Back
88
Ibid. Q161, 165 and letter from Sue Hemming, 18 January 2008,
Appendix 9. Back
89
Oral evidence, 5 December 2007, Q165. Back
