An unconventional Bill

The political events of the government’s achieving a wafer-thin majority in the House of Commons on the statutory provisions authorising the pre-charge detention of terrorist suspects for up to 42 days, including securing the support of the nine Ulster Democratic Unionist MPs, and making numerous concessions to back-bench Labour rebels, has rather obscured the concrete details of the legislation. The purpose of this briefing is to set out the substance of the provisions as the Bill emerged from the House of Commons on 12 June 2008, to explain their effect, and to analyse them critically.

The provisions of Part 2 of the Bill.

The present law on the detention of those suspected of terrorist offences is contained in section 25 of the Terrorism Act 2006, which extends the maximum pre-charge detention period from 14 to 28 days. The Counter-Terrorism Bill provides that ‘the reserve power’ for a judge to extend to 42 days the maximum period of pre-charge detention will become exercisable, by legislative order made by the Home Secretary, but only if certain conditions are fulfilled.

Those conditions are that there must be ‘a grave exceptional terrorist threat’, that the Home Secretary must have received a report of operational need from the Director of Public Prosecutions and the Chief Officer of a police force, and that the Home Secretary must have sought and received independent legal advice from a lawyer other than a government lawyer, which advice must be published by laying before parliament.

On the making of such an order, the Home Secretary must notify the chairmen of the Home Affairs Select Committee, the Joint Select Committee on Human Rights and the Intelligence and Security Select Committee, following which he must as soon as reasonably practicable provide each of those chairmen with a copy of the operational need report and the independent legal advice.

Within two days of making the order, or, if that is not possible, as soon as reasonably practicable, the Home Secretary must lay before parliament a statement that a grave exceptional terrorist threat has occurred or is occurring, that the reserve power is urgently needed to investigate the threat and to bring to justice those responsible, and that the order is compatible with Convention rights under the Human Rights Act 1998. The statement may include a statement of reasons for the order, but must not include the name of any person detained at that time under the existing 28 day detention power, nor any material which might prejudice the prosecution of any person.

In addition to this statement, the Home Secretary must, as soon as is reasonably practicable, lay the order before parliament for affirmative resolution by both Houses within seven days of laying, failing which the order lapses and any detainee held under the reserve power must be released, but a new order may be made where an initial order has so lapsed. Any order made under these provisions lapses after 30 days from the day the order was made, but a new order may be made after the initial order lapses.

The actual decision to extend the period of detention of a particular suspect held under the existing 28 day detention power must be made by a senior judge on the application of the Director of Public Prosecutions or a Crown Prosecutor acting with the consent of the DPP. Where such a judicial decision is made, for the extension of a warrant of further detention beyond the existing 28 days, the Home Secretary must lay before parliament a statement specifying the details of the extension.

The effect of the provisions of Part 2 of the Bill

The legislative provisions concerning pre-charge detention and the extension thereof are currently contained in two Acts, the Terrorism Act 2000, (Section 41 and Schedule 8), and the Terrorism Act 2006 (Section 25). Should the Counter-Terrorism Bill become law, there will be a third Act and its schedule which it will be necessary to consult in order to ascertain the law on pre-charge detention of terrorist suspects. These provisions are highly complex and extremely difficult to find, let alone read and understand, because of the oft-criticised drafting technique of legislating by reference to existing legislative provisions.

The effect of these combined provisions will be to extend to 42 days the pre-charge detention period from the original seven days, first established in the Prevention of Terrorism (Temporary Provisions) Act 1974 after the Birmingham pub bombings, later extended to 14 days in 2000, then to 28 days in 2006, and now finally to 42 days in 2008. An attempt to extend pre-charge detention to 90 days was defeated in 2006.

The Bill effectively divides the responsibility for the extension between a senior judge and the Home Secretary, with parliamentary overview of the Home Secretary’s decision. Technically, the Home Secretary must act first, on the basis of the report of operational need from the DPP and Chief Constable, by making what is in law a delegated legislative order, but which is in reality an administrative act or decision, since although it must not name the particular individual whose detention will be extended, there must already be such an individual already being held in extended detention for 28 days before the Home Secretary can make such an order.

The Home Secretary’s order is the necessary pre-condition to the exercise by the senior judge of the reserve power of extending the pre-charge detention, of a person or persons already in detention, from 28 days to 42 days. The judge can only exercise this reserve power if the conditions exist which are required for the detention of the person for 28 days under the existing power, so no extra conditions are required for the judge to extend detention from 28 to 42 days, other than the making of an order by the Home Secretary.

Where a judge makes an order under the reserve power, the Home Secretary must inform parliament by laying a statement before it specifying the details of the extended period of the warrant of further detention, such as the date of the order, the court which made the order, the length of the extended period and the total number of days for which the person’s detention has been authorised, and the place of detention, but excluding any details of the person detained and any material which might prejudice the prosecution of any person.

Critical Analysis

The purpose of the provisions of Part 2 of the Counter Terrorism Bill is to enable the police to hold terrorist suspects for a longer period of time to enable the police and other anti-terrorist authorities to obtain evidence of the alleged terrorist offences committed by the detained suspects, in order to charge them before the Courts with those offences.

The argument made is that the evidence of such offences is so voluminous, and in such a variety of media from which it is extremely difficult and time-consuming to extract such evidence, that neither the normal periods of detention under the Police and Criminal Evidence Act 1984 (24 – 96 hours), nor the extended period of 28 days under the current anti-terrorist legislation, are sufficient to enable the authorities to gather the necessary evidence to charge the suspects. There is therefore, it is claimed, a risk that the police will be required to release terrorist suspects for lack of evidence of offences with which to charge them.

With respect, such arguments are highly dubious. The government has been unable to provide a single example of such a case, though in one case apparently the police did not charge the suspect until he had been detained for 27 days. No suspect has had to be released for lack of evidence which would have been available had the suspect been detained longer than 28 days.

One reason for this is that in law, the level of evidence required to charge a suspect is relatively low. The police and the Crown Prosecution Service do not need to have obtained all the relevant evidence in order to charge a suspect, they need only sufficient evidence to found a prima facie case, which though more demanding than the reasonable suspicion required for arrest, is far below the proof beyond reasonable doubt required for conviction. There must be sufficient evidence to provide a reasonable prospect of conviction, but that is not a particularly demanding standard.

So even though all the possible evidence may not have been obtained at the end of the 28 days’ extended detention period, it will usually be possible to charge the suspect with some at least of the offences of which he is suspected, and to continue to gather the evidence to support the other offences.

That task, of gathering evidence post-charge, may be made more difficult by the prohibition upon police or prosecution questioning of suspects once they have been charged. The exact status and authority of this rule is debateable, but arguments for extended detention based on its effect on evidence gathering are completely undermined by subsequent provisions of Part 2 of the Counter-Terrorism Bill itself, which authorise post-charge questioning by the police. Given this new authorisation of post-charge questioning, the argument that the police need to detain suspects for more than the existing 28 day extended detention period, in order to question such suspects, is simply without foundation.

The provisions of the Bill authorising pre-charge detention are at least arguably incompatible with Convention rights, despite the statement by the minister introducing the Bill that in his view the provisions were compatible with the Convention rights.

First, Article 5 of the ECHR requires that a person detained has the right to have the legality of his detention expeditiously determined by a judicial authority, i.e. to be brought before a judge to determine whether there are grounds for his detention. Usually this takes the form of bringing an arrested person before a court to charge that person with an offence. This is the first opportunity for challenging whether there are sufficient grounds for detaining that person with a view to bringing a criminal prosecution against him.

The first question raised by the proposed extended detention period is whether 42 days meets the requirement that the person detained should be brought before a judge expeditiously. Six weeks is an excessively long period to detain a person without the opportunity to be informed of and to challenge the substance of the allegations against him, before a court of law, and this may infringe Article 5. Detention for six weeks is likely to have seriously adverse consequences for those detained and subsequently released for lack of evidence. Family life, employment and financial security may be seriously jeopardised for such individuals.

Equally, the provisions raise a further problem, namely whether the involvement of the Home Secretary and of parliament in the determination of whether a person should be detained for such an extended period satisfies the requirement of a determination by a judicial authority. Although the Bill seeks to present the order of the Home Secretary as a legislative act, it will in fact be a key pre-condition of the actual exercise of the reserve power to detain individual suspects, and it is clear from the requirement of a statement of operational need from the DPP and Chief Constable, that the Home Secretary’s order will and indeed can only be issued when individual terrorist suspects are being held in police custody on suspicion of having committed terrorist offences. Not only may this infringe Article 5, but it equally offends against the separation of powers. Neither the executive, nor the legislature, should be involved in decisions about the legality of detention of criminal suspects. This should be the exclusive preserve of the judiciary.

A further criticism of the extended detention powers are that they are likely to be used predominantly against the members of a particular religious and racial minority, in this case the Muslim community. Although the Roma decision precludes the use of race as the sole basis of exercising state powers, the Gilman decision permits the use of race as one factor to be taken into account in exercising extraordinary stop and search powers for the detection of terrorist activities. The discriminatory use of the reserve detention powers may violate both Article 9 (freedom of religion) and Article 12 (freedom from discrimination). Furthermore, the discriminatory exercise of the reserve detention powers may alienate the very community whose co-operation is necessary if the police are to succeed in the fight against terrorism.

An equally disturbing aspect of the provisions is that the definition of the ‘grave exceptional terrorist threat’, as to the existence of which the Home Secretary must be properly satisfied, both through taking independent legal advice, and in his statement to parliament, is extremely wide. There is a substantial list of consequences which may flow from the threat, and these events may occur or be occurring in the UK or elsewhere. These consequences include human illness or injury, homelessness, damage to property, disruption of a supply of money, food, water, energy or fuel, or the disruption of communication systems, transport facilities or health services. Such wide definition gives the Home Secretary power to make an order bringing the reserve detention power into operation in an unacceptably broad range of circumstances.

On balance, therefore, it is the conclusion of this author that the reserve power of pre-charge detention of terrorist suspects for 42 days which the Counter-Terrorism Bill will create is difficult to justify, is excessively complex in its drafting, is undermined by its own provisions as to post-charge questioning, is likely to be used in a discriminatory manner against a particular religious and racial minority, may well be counter-productive in the fight against terrorism, is unacceptably wide in its scope and application, and possibly violates a number of Convention rights and the constitutional principle of separation of powers.