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In this report we consider the police case for an increase in detention powers in respect of terrorism suspects, and, in particular, the strength of the specific arguments put forward by the police in support of 90-day pre-charge detention.
We outline the provisions for pre-charge detention and how they will be changed by the Terrorism Act 2006. We examine the origins and presentation of the police and Government case for extended detention. We conclude that on such a major issue, with very significant human rights implications, we would have expected the case made by the police to have been better developed and, while we think it is reasonable for the Prime Minister and Home Secretary to rely on advice from the police on such issues, we would also expect them to have challenged critically that advice in order to assure themselves of the case that was being made. In our view the primary origin of the difficulties experienced by the Government lies in the lack of care with which the case for a maximum 90 day detention period was promoted.
We consider that the nature of the terrorist threat has changed. The police base their case on a number of specific features of modern terrorism. In concluding that an extension beyond the existing 14-day limit was justified, we assessed the issues raised by the police. We accept that some aspects of the process of detaining and interviewing suspects pose practical difficulties for the police. They contribute to the case for extended detention, but on their own they are not sufficient to justify a change. We do take the view that the individual impact of those which relate to aspects of the investigation, such as computer decryption, mobile phones and forensics, is often significant, and it is their cumulative effect on investigations that is central to the case for an extension of maximum pre-charge detention.
It is clear that the change in the nature of the terrorist threat has lead to an increasing number of cases in which the arrest has come earlier than would be otherwise the case, because these arrests are primarily intended to protect the public by disrupting terrorist conspiracies. One of the key conclusions of our inquiry is that the preventative element of some arrests under the Terrorism Acts should be given clearer and more explicit recognition. Preventive detention is a significant new development, and one that was not made explicit during the passage of the Act. At present, the police have to decide both on the action needed to protect the public and on the action required to pursue ultimately a successful criminal prosecution. We do not believe that this judgement should be left to the police alone.
Lord Carlile has proposed a strengthened system of judicial oversight once a suspect has been arrested. We support the thrust of his proposals, but believe they should be extended. Firstly, we believe that supervision should provide for a continual reassessment of whether alternative methods, such as tagging and control orders, would be appropriate. Secondly, we believe that there should be appropriate judicial oversight when arrests are made under the Terrorism Act, to enable proper independent consideration to be given where an arrest is to be made for its disruptive and preventative value rather than primarily for its investigative purpose.
Current and recent investigations have gone sufficiently close to 14 days to show that an extension of the maximum period of pre-charge detention, as agreed by Parliament, is justified. None of the evidence we have reviewed of current and recent investigations would have justified a maximum detention period longer than 28 days. But the growing number of cases and the increase in suspects monitored by the police and security services make it entirely possible, and perhaps increasingly likely, that there will be cases that do provide that justification. We believe, therefore, that the 28 day limit may well prove inadequate in the future. We have seen no evidence that a maximum of 90 days pre-charge detention is essential, rather than useful.
The process of the Terrorism Bill through Parliament was divisive and did not increase public trust in the police or the Government. If 28 days proves inadequate in due course, new primary legislation to extend the maximum pre-charge detention period is likely also to be divisive. We suggest that a committee independent of Government be created to keep the maximum detention period under annual review and to recommend the introduction of new legislation as necessary. New legislation on terrorism should be extensively examined in draft, either by this Committee or by a joint committee of both Houses.
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