1. Joint memorandum submitted by the
Association of Chief Police Officers of England, Wales and Northern
Ireland (ACPO) (Terrorism and Allied Matters) Committee and the
Metropolitan Police Service
This submission should be seen alongside the
more detailed proposals submitted by Assistant Commissioner Andy
Hayman with his letter to the Home Secretary on 6 October.
The October document sets out the case for extension
of pre-charge detention by judicial review and argues the case
for extension given the complexity of international terrorism
investigations requiring early interdiction; the unfolding sequence
of enquiries and sifting of considerable evidence by thorough
and painstaking investigation.
This submission contains our observations on
the alternative proposals and offers the arguments that we would
wish the Committee to consider.
We will, of course be willing to assist the
Committee further and hope that you will draw on the expertise
on counter-terrorism within ACPO (TAM) and the Metropolitan Police
Service.
1. SPECIFIC ARGUMENTS
PUT FORWARD
BY THE
POLICE IN
SUPPORT OF
EXTENDED PRE-CHARGE
DETENTION
1.1 In support of judicially sanctioned,
seven day extensions of pre-charge detention up to a maximum of
90 days, the Police Service has stated the case for extending
pre-charge detention for terrorist cases. These arguments were
set out in Assistant Commissioner Andy Hayman's letter to the
Home Secretary on 6 October 2005. The case put forward remains
the same and the police have nothing further to add at this stage.
2. JUDICIAL OVERSIGHT
2.1 We are disappointed that the recent debate
on our proposal to extend detention for some terrorist suspects
has focused on a maximum limit of 90 days, as opposed to our strong
position of extending detention in excess of 14 days, where necessary,
through judicially approved seven day periods. As has already
been accepted, extensions past seven days are used very infrequently
and only then against those suspected of serious terrorist offences.
Therefore, the focus on the maximum period is both unhelpful and
misleading.
3. POSSIBLE ALTERNATIVES
TO EXTENDED
DETENTION POWERS
3.1 This submission will focus on the possible
alternatives to extending detention powers, on which ACPO have
not yet afforded a view, unlike the extended detention pre-charge
debate.
3.2 The police have reviewed the alternative
proposals suggested and conclude that, although each alternative
could be a useful tool in the fight against terrorism, they are
not an adequate replacement or alternative to extending pre-charge
detention. None of them will provide satisfactory safeguards when
dealing with those terrorists determined to carry out the kind
of atrocity experienced in July.
3.3 All the alternatives to extended detention
suggested are resource intensive and may divert resources away
from the investigation in order to operate the alternatives.
4. CONTEXT
4.1 Before discussing the possible alternatives
to pre-charge detention, we feel it is useful to restate the very
real terrorist threat now facing us.
4.2 The threat today is very different to
that of the past, the terrorist challenge has changed.
4.3 As was set out in Assistant Commissioner
Hayman's letter of 6 October 2005, "The threat from international
terrorism is so completely different that it has been necessary
to adopt new ways of working. The advent of simultaneous terrorist
attacks designed to cause mass casualties, with no warning, sometimes
involving the use of suicide, and with the threat of chemical,
biological, radiological or nuclear weapons means that we can
no longer wait until the point of attack before intervening. The
threat to the public is simply too great to run that risk."
4.4 In the interests of public safety, we
are now compelled to disrupt terrorist activity much earlier than
before. This will normally involve arresting suspects where the
necessary evidence to support charges reflecting the seriousness
of the terrorist intentions is yet to be understood.
4.5 As Chief Constable Ken Jones, Chair
ACPO Terrorism and Allied Matters committee stated to the Joint
Committee on Human Rights in October 2005:
"the fundamental difference is that we now
have people prepared to use suicide as a weapon and have an ideological
motivation rather than as a purely political motivation which
we have seen in other forms of terrorism. The other thing that
has changed is that the organisation of terror is different. It
is shapeless, it is amorphous and it is constantly changing and
that is not inside our recent experience. That is a fundamental
difference, the suicide issue and the ideological issue."
5. PROVIDE MORE
RESOURCES TO
THE POLICE
AND INTELLIGENCE
SERVICES
5.1 Although the Police Service naturally
welcomes, and is increasing counter terrorism resources, the challenges
presented to the Service by international terrorism must be met
with the capacity to act swiftly and effectively with expertise
and diligence, rather than with a mass deployment of personnel
and equipment.
5.2 The complexity of the investigative
process, the sheer volume of intelligence and seized material,
and the international dimension common to all modern terrorism
operations require a methodical, sequential investigative process
that places the onus on the quality of the work undertaken rather
than the quantity of resources deployed. This cannot, as DAC Peter
Clarke, Head of the Anti-Terrorist Branch said, be a "cavalry
charge".
5.3 Terrorist investigations form a complex
sequence of inter-related activities beginning with the intelligence,
evidence or events coming to notice, then progressing through
meticulously recorded stages of retrieval, logging and assessment.
5.4 Many investigative procedures, technical
analysis and forensic processes are the preserve of highly skilled
law enforcement and specialist agency personnel. They are inherently
time consuming for scientific reasons or because only a limited
number of people can ensure safety and continuity of the task
at any given time.
5.5 In order to identify the most productive
strategies for interviewing suspects and furthering the investigation,
it is necessary to establish a clear picture from the myriad of
sources of information and utilize the value of verified forensic
data. The Senior Investigating Officer and a small, dedicated
team complete this task. Anything more than this can create confusion
and the possibility of important evidence being missed.
5.6 During the Joint Committee on Human
Rights on 24 October 2005, Deputy Assistant Commissioner Peter
Clarke was asked about this specific point by Dan Norris and his
answer is still as relevant.
Dan Norris: "Is it fair to say that some
increase in resources would help and therefore perhaps the three-month
detention period is too long?"
Peter Clarke: "No, it would not. However
many resources we had I do not think it would cut into the basic
problem here, which is the sheer weight of material which we are
routinely recovering in these cases. This has to be analysed at
some point and then focused into an interview strategy and an
investigation strategy set by the senior investigating officer.
At some point one person has to be aware of what is emerging from
all this data. It cannot just be a cavalry charge."
6. BRINGING LESSER
CHARGES TO
ENABLE TERRORISM
SUSPECTS TO
BE HELD
IN CUSTODY
WHILE THE
MAJOR INVESTIGATION
PROCEEDS
6.1 We believe there are a number of problems
with the suggestion of charging for a lesser offence as an alternative
to extending the period of detention.
6.2 With the onset of statutory charging
in England and Wales, the emphasis is on both the Police and Crown
Prosecution Service working together as a "prosecution team"
to ensure that the person is charged with the right offence from
the outset, according to the evidence obtained. Not doing so is
contrary to this important change in the Criminal Justice System.
6.3 There is no guarantee that there will
be sufficient evidence to charge with a lesser charge in all cases.
Terrorist suspects are being arrested at a much earlier stage
than before due to public safety. Although there will be grounds
to make the arrest, this does not mean there is evidence to charge.
Evidence may not become available until forensic analysis and
computer evidence, for example, is obtained and that invariably
takes time.
6.4 Concentrating on a lesser charge would
unnecessarily divert focus and resources away from fully investigating
the offence for which the person had been arrested.
6.5 Additionally, in order to allow a remand
in custody to investigate terrorist offences, there would need
to be a change in the law, as the investigation of another offence,
for which someone is not currently charged, is not a legitimate
reason for remanding a defendant in custody or delaying proceedings.
6.6 Whereas an extension of detention would
have robust judicial oversight every seven days, a remand in custody
to allow further investigation into the terrorist offence would
not have the same level of scrutiny and the defendant could spend
longer in custody than necessary—the reverse intention.
6.7 The lesser offence might not justify
a remand in custody.
6.8 The defendant may be advised to plead
guilty and could be released unless the offence was serious enough
to attract a custodial sentence, or their conviction history would
justify it. This would allow a potential terrorist to walk free
and pursue activities unhindered.
7. USE OF
TAGGING, SURVEILLANCE
OR CONTROL
ORDERS AS
ALTERNATIVES TO
CUSTODY
7.1 Due to the nature of terrorism today
and early intervention in order to prevent unnecessary loss of
life, the use of tagging, surveillance or control orders are simply
not an alternative to detention in the most serious of cases.
Many terrorists today are willing to take their own lives and
those of others as we saw in London on 7 July.
7.2 Tagging allows Police to monitor the
suspect and identify whether they breach their curfew. Tagging
could not prevent a suspected terrorist from committing an act
of terrorism or from removing their tag and fleeing the country.
7.3 The Home Secretary may make a Control
Order (with permission of the court, renewable after 12 months)
if he has reasonable grounds for suspecting that an individual
is or has been involved in terrorism-related activities and is
satisfied that it is necessary to make an order for the purposes
of protecting members of the public from terrorism. A control
order is likely to be made, for example, when there is no likelihood
of an individual being charged with a terrorist offence. Derogating
control orders (ie those where the obligations imposed are incompatible
with Article 5ECHR) can only be made by the court.
7.4 Whilst control orders may be effective
against those suspects on the periphery of terrorism, and may
provide the adequate form of control that is required, they are
not an alternative for those suspects that have been arrested
for serious terrorist offences. Control orders do not replace
detention as the ultimate measure for protection.
7.5 Monitoring and surveillance are highly
resource intensive and in order to be successful and to minimise
the risk to the public it would require a team of police officers
watching a person 24 hours a day, seven days a week. Not even
that level of control would ensure the prevention of a suspect
from planning or carrying out an attack. This is simply not practicable.
8. POWER TO
QUESTION TERRORIST
SUSPECTS AFTER
CHARGES HAVE
BEEN BROUGHT
8.1 The Police Service welcomes the decision
by Government to examine whether there is any possibility of extending
generally the ability of police to conduct interviewing post charge.
8.2 There are, however, a number of problems
with this being considered an alternative to extended detention
in terrorist investigations.
8.3 The detention process is not about interviewing
alone as many people do not answer questions in any event. It
is about a structured investigation and interview strategy, doing
things in the most effective way and questioning, when the evidence
has been obtained and assimilated, for maximum effect and maximum
inference if the suspect fails to answer.
8.4 At present, a suspect cannot be interviewed
about an offence after they have been charged unless the interview
is necessary, for example, in the interests of justice, for the
detainee to have put to them, and have an opportunity to comment
on, information concerning the offence which has come to light
since they were charged.
8.5 In order to be able to question suspects
further after charge, a charge must first of all be preferred.
As already stated, this is often one of the difficulties complex
terrorist cases present. It may not be possible to collect all
the evidence to charge someone with an appropriate offence within
the permitted time.
8.6 Any interview must be voluntary. In
the majority of suspect interviews, terrorist suspects are advised,
and exercise, their right to remain silent, from which no adverse
inferences can be drawn. This is because the offence for which
they have been charged is no longer being investigated and the
caution under section 34 Criminal Justice and Public Order Act
1994, relating to adverse inferences, is not applicable. This
provision, however, may be changed following a Government review
of the position.
9. PERMITTING
THE USE
OF TELEPHONE
INTERCEPT EVIDENCE
IN THE
COURTS
9.1 In relation to our ability to investigate
terrorist offences, we welcome any development, which will allow
us to put more evidence before the courts.
9.2 From the ACPO perspective, there are
three key issues:
— best evidence should always be sought
and, in some circumstances, that includes intercepted communications;
— ACPO should move to a position where
a selective approach to the evidential use of intercepted communications
can be taken, with some areas excluded; and
— the opportunities involving interception
of communications currently available should be better exploited.
This would require higher levels of investment than currently
exist.
9.3 A group within ACPO is reviewing the
intercept issue. The Group includes representation from the CPS
and all the Security Services.
9.4 The purpose of the ACPO working group
was to develop guidance on interception of communications as a
law enforcement technique and identify opportunities for enhancing
current and future use by police; this will include advising in
respect of appropriate legislation and other matters.
9.5 The perspective was that there are a
number of specific problems to be overcome:
— In respect of disclosure, this issue
is currently being worked on by the CPS and in many respects is
catered for in the decision in the case of "R v H and
C".
— Delivery of Foreign Language interception
translation to an evidential standard given the difficulties in
securing adequately vetted listeners.
— Delivery of product to an evidential
standard in the voice over internet environment subject to the
technical difficulties, which are still to be overcome.
— Security issues currently being worked
on by the Home Office led Intercept Advisory Group.
— ACPO do not see any differentiation
between the use of interception in relation to serious crime and
terrorism.
9.6 Pre-emptive arrests made as a direct
result of intelligence has meant that many investigations do not
have the time frames to use intercept as an investigative tool.
Therefore allowing intercept as evidence within the court will
only be of value to those cases where we have been in a position
to obtain such evidence before arrest.
13 December 2005
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