Select Committee on Home Affairs Fourth Report

Conclusions and recommendations

Origins and presentation of the police and Government case

1.  It will be clear from later parts of this report that we found the case for extending the maximum detention period to 28 days was convincing, but did not find the arguments for the 90 day period compelling. 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. The police should have been able to present an evidence-based analysis of the type we have endeavoured to undertake. It is clear that this was not done, despite their reliance on their 'professional judgement'. We think it is reasonable for the Prime Minister and Home Secretary to rely on advice from the police on such issues, but we would also expect them to have challenged critically that advice in order to assure themselves of the case that was being made. We heard no evidence that this had happened: this is unsatisfactory. (Paragraph 29)

2.  We recognise the value of seeking to achieve cross-party consensus on these issues. The immediate response to the July bombings was a strong cross-party approach to new counter-terrorism powers. By the time the Terrorism Bill was debated in the House, this consensual approach had broken down. (Paragraph 30)

3.  The then Home Secretary argued to us that the break-down in the cross-party consensus on measures to tackle terrorism essentially arose from a lack of flexibility on the part of the Opposition parties over the period of 90 days. We did not take evidence from the Opposition and are therefore in no position to judge the points made by the then Home Secretary. But 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. (Paragraph 31)

4.  We recognise that the public is less ready to take on trust assertions by those who have seen evidence not publicly available. However, in an area where much material cannot be published (mainly because it is sub judice), we considered it right to take some evidence in private. It is also obvious that those with responsibility for taking decisions on these issues will have access to material that is not and cannot be in the public domain: we therefore reject JUSTICE's argument that such material should not be taken into account. However, the nature of the issues under consideration mean that it is all the more important that the Government's presentation of its case be as open as possible. (Paragraph 35)

Public confidence and community relations

5.  It is important to take into account the effect on the Muslim community of a longer period of detention. Muslims were amongst the casualties in the atrocities of 7 July, and the authorities cannot combat terrorism without the confidence and trust of Muslims. Extended pre-charge detention carries the danger, which should not be underestimated, of antagonising many who currently recognise the need for co-operating with the police, and hence the need to be very cautious before extending the period of detention beyond 28 days. (Paragraph 38)

Has the nature of the threat changed?

6.  We consider that the nature of the terrorist threat has changed: while there is no sharp break in the continuum between Irish republican terrorism and terrorism today, there are a number of significant developments. The first of these is that while Irish republican terrorism was brutal, and deliberately killed or injured large numbers of people, contemporary terrorism is distinguished by the centrality of the intention to cause mass casualties indiscriminately. Secondly, suicide bombers are a new phenomenon in this country. Thirdly, contemporary terrorism has an international basis which makes conspiracies more extensive and complex and increases the likelihood that recruitment to terrorism will continue to grow. Fourthly, the nature of the current threat appears less amenable to negotiated political resolution. (Paragraph 44)

Consequences for police work

7.  It is of course the case that many non-terrorist crimes involve complex international elements over a number of countries, and that pre-charge detention is significantly shorter than in terrorism cases. But the unique feature of terrorism cases is the emphasis that has to be given to the protection of the public while the investigation proceeds. (Paragraph 51)

8.  Those investigating contemporary terrorism cases not only have to identify the individuals concerned, but also to understand the roles they played in complicated conspiracies. We therefore think that it is reasonable for the police to cite multiple identities as a complicating factor in their investigations. (Paragraph 54)

9.  Encryption of data does not appear, for the time being, to be the problem in practice that had been feared. However analysis of data on computers, both unencrypted and decrypted, is time-consuming and resource-intensive. This will be an increasing problem for all types of investigations. (Paragraph 63)

10.  Clearly, bringing Part III of RIPA into force would not solve the problem of encrypted data; it could nonetheless provide a useful instrument in some cases. We therefore welcome the Home Office's expressed intention, following consultation on a code of practice, to bring Part III into force. It should do so as soon as possible. (Paragraph 67)

11.  The police's argument that forensics are time-consuming is not disputed, and we also accept that this is not an area in which greater resources would have an effect because of the need for continuity of the investigation, which can only be ensured by using a team of skilled personnel. (Paragraph 69)

12.  It is clear from the evidence we received that the analysis of data such as records of calls made from mobile phones can be an important part of an investigation, but that the process is also lengthy and complicated. We therefore think it is reasonable for the police to support their case by pointing to the difficulties caused by the analysis of mobile phones. (Paragraph 72)

13.  We received evidence that each of the above factors complicated the investigation of terrorism offences. We also received evidence that it was the combination of the issues in individual investigations that created the real problems. Opponents of extended detention tended not to address the complexity of the issues involved and to understate the challenge faced by the police. In our view, the important point about the above elements is that recent terrorist investigations have involved all of them. Their individual impact is often significant but it is their cumulative effect on investigations that is central to the case for an extension of maximum pre-charge detention. (Paragraph 73)

14.  We were not convinced by the evidence that provision of interpreters is a significant difficulty. (Paragraph 76)

15.  We recognise that the need to allow time for religious observance complicates the organisation of an investigation: we do not, however, accept that it justifies an extension of the maximum detention time. (Paragraph 78)

16.  We asked the police to provide us with an analysis of at least ten recent terrorist investigations showing how many suspects in each inquiry were represented by the same solicitor or the same firm. They provided this material in confidence, but it is clear that on more than one occasion a single firm with a small number of solicitors has represented more than double that number of suspects, who were the large majority of those arrested. We doubt therefore whether those suspects were represented to the highest legal standards: this of course raises questions of whether justice has been properly served. But the police are also concerned that such multiple representation may hinder effective investigation, for example by making it more difficult to schedule interviews of a number of suspects represented by the same solicitor. Be that as it may, it is not clear to us that the problem provides a strong case in itself for the extension of pre-charge detention. (Paragraph 81)

17.  It is disgraceful that any lawyer should encourage the public not to co-operate with the police as a matter of course. It is for the Law Society to decide whether Arani & Co.'s conduct has breached professional standards, but given the obvious terrorist threat we find that conduct particularly reprehensible. (Paragraph 83)

18.  The assertion by Gareth Peirce that in the large majority of cases the police do not conduct even preliminary interviews with suspects was rejected by the police. In the absence of any supporting evidence from Ms Peirce, we cannot give any weight to her claim. (Paragraph 88)

19.  We accept that some of the 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 are not sufficient to justify a change. (Paragraph 89)

20.  In general it cannot be expected that interviews of suspects during extended detention will lead to significant additional information that can be used in court. While we can understand that there may be cases in which confrontation of a suspect with new evidence might lead to admissions, it appears that the case for extended detention rests on two arguments: first, the need to seek and analyse evidence from a complex range of sources and, second, the need to ensure the protection of the public. This latter point has been referred to in our evidence and the Parliamentary debates. It does not, however, form any part of the legal basis for an application for extended detention. (Paragraph 90)

Disruption and prevention

21.  It is clear that the change in the nature of the terrorist threat has led 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. (Paragraph 93)

22.  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. Arrests whose main purpose is to disrupt terrorist conspiracies are a result of the changed nature of terrorism, and, as Assistant Commissioner Andy Hayman of the Metropolitan Police told us, there is now "a vast amount" of such cases. We believe that this form of detention could be used appropriately on occasions to disrupt conspiracies. Hence we agree with the decision to increase the period of detention. But preventive detention is a significant new development, and one that was not made explicit during the passage of the Bill, during which extended detention was primarily justified on the grounds of the time needed to collect and analyse evidence. Any legislation should recognise in terms this important new purpose of pre-charge detention. (Paragraph 94)

23.  We repeat that preventive detention is a major step. At present, the police have to decide on both 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 judgment should be left to the police alone. (Paragraph 95)

Alternatives to longer detention

24.  There is no dispute that further increases in resources for counter-terrorism work by the police and security services would lead to quicker results in some cases. But we are satisfied that the nature of investigations is such that greater resources alone are not the answer. (Paragraph 100)

25.  The use of lesser charges was opposed by a wide range of witnesses, who raised serious practical and moral objections. We do not think it would be an appropriate response to the challenges of counter-terrorism investigations. (Paragraph 103)

26.  Post-charge questioning alone would not be sufficient to replace extended pre-charge detention, but it could be a useful addition. We therefore urge the Home Office not to allow its consultation to slip any further. (Paragraph 109)

27.  The Threshold Test does not enable charges to be brought without the knowledge that further evidence will certainly become available. In the large majority of counter-terrorism investigations this will not be the case. Nonetheless, the Threshold Test should be used where possible. (Paragraph 112)

28.  Outside the Government there is universal support for the use of intercept evidence in the courts. The Home Office has not produced convincing evidence that the difficulties are insuperable: they have presumably been tackled in other jurisdictions. We therefore urge the Government to conclude its review of the issue, with the aim of reporting as soon as possible. In the absence of any new information, we assume that it will recommend the use of intercept evidence. (Paragraph 116)

29.  We accept the police's argument that measures such as tagging and control orders cannot protect the public from the threat of terrorism to the same extent as do arrests and detention. But we believe that such measures can be used to disrupt terrorist conspiracies. We therefore reject as entirely wrong the arguments of those who oppose any use of control orders against terrorism suspects. It is clear to us that there are circumstances in which it is not possible to charge individuals yet an arrest or other preventative measures are necessary to protect the public and ensure the successful investigation of terrorism. We believe that the use of control orders, tagging and bail should be considered at each stage of the process of judicial oversight of arrest and detention. (Paragraph 119)

Existing provisions

30.  We do not doubt that district judges perform their duties impartially and to a high standard and that the police have to take the utmost care in preparing applications for extensions to periods of pre-charge detention. However we share the wide-spread unease at the prospect of the existing system being used to provide judicial oversight of even longer pre-charge detention. (Paragraph 124)

New circumstances

31.  Lord Carlile proposes 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, as we have argued in the section on disruption and prevention, we believe that there should be appropriate judicial oversight when arrests are made under the Terrorism Act. This would 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. It would also enable consideration from the outside of alternatives to arrest and detention. We recognise that this would bring some procedures more common in other jurisdictions into our criminal justice system. (Paragraph 129)

32.  We acknowledge that we cannot simply import elements from abroad that would not work in the common law system. But there should be no bar to adapting such approaches to our needs. The principle of independent judicial oversight from the time that arrest is first considered should be adopted. This would also ensure that the police alone do not have to bear responsibility for arrests intended to protect the public. For judicial oversight to be effective, there must be adequate support for the judge, including through the provision of appropriate technical expertise. (Paragraph 131)

33.  The recent police raid in Forest Gate and subsequent release without charge of those arrested did not involve extended pre-charge detention, but it clearly would have been of benefit to police and public alike if there had been independent oversight of the decision to intervene. (Paragraph 132)

Detention periods

34.  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. We repeat, however, that effective judicial oversight of detention is essential. (Paragraph 139)

35.  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. (Paragraph 143)

36.  We have seen no evidence that a maximum of 90 days pre-charge detention is essential, rather than useful. The police did not press strongly for this maximum, while technical witnesses, generally in favour of as long a time as possible, did not seek to argue that 90 days was in itself a significant period. (Paragraph 145)

37.  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 very divisive. But it would be unacceptable for the Government to use secondary legislation. 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. The committee might follow the model of the Newton Committee of Privy Counsellors, appointed in April 2002 to review the operation of the Anti-Terrorism, Crime and Security Act 2001. (Paragraph 148)

Future legislation

38.  Many of the difficulties the Government experienced in the passage of the Terrorism Bill arose from the speed with which it was drafted and presented to Parliament: this inquiry did the job of examining the police arguments for extended detention which the Home Office should have done before introducing the Terrorism Bill. Any new legislation on terrorism should not in our view propose a longer period of detention than 28 days unless there is such compelling evidence as we have already referred to earlier. The new legislation on terrorism, including the promised consolidation of existing measures, should be extensively examined in draft, either by this Committee or by a joint committee of both Houses. The Government should ensure that it meets the commitment to build this into the timetable. (Paragraph 151)

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