8. Memorandum submitted by Liberty
ABOUT LIBERTY
Liberty (The National Council for Civil Liberties)
is one of the UK's leading civil liberties and human rights organisations.
Liberty works to promote human rights and protect civil liberties
through a combination of test case litigation, lobbying, campaigning
and research.
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rights and civil liberties. We also submit evidence to Select
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INTRODUCTION
1. Liberty welcomes the opportunity to offer
further comment on the proposed extension to pre-charge detention
time limits. Our position throughout debate on the Terrorism Bill
has been to avoid making comment on the compatibility with any
specific extension with the European Convention on Human Rights
(ECHR). The legality of pre-charge detention is governed by Article
5(3) of the ECHR. This provides that anyone arrested or detained
must be brought before a judge within a reasonable time and tried
or bailed. We have little doubt that the original 90 day period
would have breached the Convention. However, to determine any
argument over detention simply in the context of what detention
period might be permissible would necessitate predicting what
extension (if any) might be justified. Instead we have focused
on the justification for extension put forward by the police and
suggested that other, more proportionate alternatives should be
considered before any extension could be justified. We are extremely
pleased to see the Committee are asking for further evidence on
the suggestion we have put forward.
ARGUMENTS FOR
EXTENSION
2. Justifications for extension to pre-charge
limits are set out in the letter sent by Assistant Commissioner
Hayman to the Home Secretary on 6 October 2005. Before covering
these we would re-iterate two points made in our original parliamentary
briefing. First, other types of criminal investigation have similar
problems as the type referred to in Assistant Commissioner Hayman's
letter. For example, white collar fraud can involve huge amounts
of material and any number of jurisdictions. Yet pre-trial detention
is limited to a maximum of four days, less than a third of the
current time permitted for terrorism detention. Second, unless
there has been an attack or attempted attack which the police
and security services were not aware of[57]
arrests are likely to follow months of investigation and surveillance.
The difficulties described in the AC's letter seem to imply that
the arrest will be from a "standing start". In reality,
it is difficult to see how months of investigation could not mean
that there was a considerable amount of evidence available at
the time of arrest. The crucial point to be made when considering
detention time limits is that detention is the time allowed in
order to gather sufficient evidence to bridge the gap between
what is needed to arrest and what is needed to charge. This is
not a large gap.
3. This second point is countered by Andy
Hayman in his letter when he differentiates the threat of terrorism
today from earlier Irish terrorism by saying that "Public
safety demands earlier intervention. And so the period of evidence
gathering that used to take place pre-arrest is now denied to
the investigators". However, the earlier distinction drawn
in the letter is based on the fact that "Irish Terrorists
deliberately sought to restrict casualties for political reasons".
This is a distinction of scale. The Irish terrorism campaign did
result in a series of bombings causing multiple fatalities. The
letter seems to suggest that need for earlier intervention and
arrest during the Irish campaign would not have been as urgent
at the present as the likely number of fatalities would have been
fewer than the London bombings in July. It cannot be Assistant
Commissioner Hayman's intention to argue that the number of likely
casualties would be a relevant factor in deciding whether to intervene
early.
4. The Committee has asked for comment on
a number of specific points which we will address in turn. The
international nature of terrorism is the first justification.
We appreciate this could present problems but as indicated earlier
other types of offending, such as international fraud, cover multiple
jurisdictions and can involve incredibly complex evidence. Indeed
it is the nature of complex fraud that evidence is likely to be
extremely well hidden by those who may have perpetrated an offence.
However, the permitted detention period for fraud is a maximum
four days. Similar arguments can be made in relation to the argument
that time is needed to decrypt computer files. As explained later
on there are also powers available to require an individual to
hand over encryption keys including a specific criminal offence
under the Regulation of Investigatory Powers Act 2000. The government
has countered by saying that people under arrest may not have
access to encryption keys so these powers would not always help.
This may be true. However, it seems likely that if the police
have obtained sufficient evidence to arrest then it would be on
the basis of information already gained from de-encrypted data
from other computers. Once arrested it seems likely that they
would hold encryption keys to any computer in their possession.
Assistant Commissioner Hayman's letter uses similar arguments
in relation to mobile phones. Powers to require retention of,
and covering police access to, communication data are already
considerable.[58]
We imagine that communications data is of greatest use pre arrest
as an intelligence and surveillance tool.
5. We do not see how difficulties in establishing
identities of terrorist suspects would present any significant
hindrance. Multiple identities are not a new phenomenon in criminal
investigation. People can be charged under an identity they have
assumed if that is a name by which they are known. Further investigation
might establish an identity to be false but this would not prevent
charge. It is difficult to imagine any situation, especially if
it follows any period of surveillance and investigation, where
a suspect was not known by any identity.
6. A lack of interpreters is also cited
as a justification for extension. Anyone arrested will either
be a UK or EU/non EU national.[59]
Any non British national arrested on suspicion of terrorism is
likely to be detained in any event as we presume the Home Secretary
would determine that their presence is non conducive to the public
good. A UK national is likely to speak English. If they do not
then it is difficult to imagine a situation where they do not
speak at least one relatively commonly spoken national language.
Difficulties in obtaining interpreters demonstrate why it is important
that the goodwill of differing racial and religious groups within
the UK is vital. Liberty has expressed concerns on numerous occasions
that the some of the legislative and policy excesses in anti terrorism
policy will proved counterproductive as they will alienate sections
of society.
7. The need for time for forensic analysis
would appear to be one of the more persuasive arguments justifying
detention extension. However, it is quite common in criminal cases
for the majority of forensic evidence to be accumulated post charge
as it will often take weeks of analysis. We imagine forensic evidence
is likely to be one of several sources of evidence in terrorism
cases. Even in situations where the only evidence is based on
forensic analysis (such as when suspected drugs are sent for assessment)
it is common to bail suspects back to the police station. As we
explain later, this might be coupled with powers similar to those
used in the Control Order regime under the Prevention of Terrorism
Act 2005.
8. The last two justifications relate to
detention conditions. We do not believe the need for religious
observance should create any significant problem. The need to
pray should not have any particular impact as the Police and Criminal
Evidence Act 1984 (PACE) specifies the need for regular breaks
anyway. Similarly delays arising from the same firm. Any delays
caused by solicitors acting for several clients are unlikely to
be overly problematic as more than one representative from a firm
is likely to be involved in taking instructions. We note that
there do not seem to have been any suggestions of a more proportionate
approach if there is indeed a problem here. One thing that might
be considered is to look at PACE code rules about interview timings
to consider whether detainees who insist on speaking to a particular
solicitor to the exclusion of others might have the "clock
stopped" for a period if that representative is temporarily
unavailable. We are hesitant to suggest this as a possibility
as there would be considerable potential for abuse. We therefore
mention it here in the spirit of offering more proportionate alternatives
as requested by the Committee and raise it simply as a matter
for consideration. We would also re-emphasise that terrorism suspects
can already be delayed far longer than normally permitted and
do not accept that having to wait for a few hours in itself justifies
any extension.
ALTERNATIVES
9. Liberty has publicly stated on many occasions
that we believe that the most effective way of combating terrorism
is to ensure that the police and security services have the appropriate
resources and powers to investigate and deal with those who are
planning terrorist acts. Many of the justifications for increasing
the pre-charge detention limits referred to in Andy Hayman's letter
can be attributed to a lack of resources. One area of huge public
spending in the coming years will be the Government's ID card
scheme. It is estimated that the cost of introducing ID cards
could cost anywhere between £6 billion (the Government's
estimate) to £18 billion (the estimate given by the LSE in
a study carried out in June 2005). Whatever the final cost, Liberty
believes that the money would be better spent directly on police
and security services resources. It is hard to see how an ID card
could help with intelligence gathering against suspected terrorists.
It is safe to assume that British intelligence agencies have gathered
information on anyone that they believe could constitute a risk
to national security. We cannot imagine what information held
on the National Identity Register would add to that possessed
by the Security Services. For the vast majority of people who
are not involved in terrorist activity, their entry is irrelevant
in combating terrorism.
10. The next proposal is to review the way
in which people that have already been charged can be re-interviewed
and recharged as further evidence is uncovered. In most terrorism
investigations there is likely to be investigation and evidence
gathering prior to arrest, followed by fourteen days for questioning.
In this time it must be possible to bridge the small gap between
the evidence needed to arrest and the evidence needed to charge.
Once an initial charge has been brought the police and Crown Prosecution
Service, they can apply to the Court to remand in custody as they
feel appropriate.
11. It is necessary to look at the existing
powers there are to re-question and recharge both to appreciate
the scope of what is currently allowed, and to identify any amendments
that might be appropriate. Under current legislation the police
can arrest a terrorist suspect, question him for up to 14 days
and then charge him. Normally once the suspect is charged, the
police do not re-interview him. However, there is an exception
provided under Paragraph 16.5 of Code C of the Police and Criminal
Evidence Act 1984 which allows for re-interview (i) to prevent
or minimise harm or loss to some other person, or the public (ii)
to clear up an ambiguity in a previous answer or statement or
(iii) 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 or
informed they might be prosecuted. It is not clear that all cases
involving terrorism suspects would fall into one of these categories.
Therefore it might be appropriate to widen the list of exceptions.
For example, an amendment to this provision could allow for re-interviewing
in cases in which the Secretary of State considers it to be in
the interests of national security or if the person is arrested
in connection with terrorism.
12. It has never been the case that all
the evidence to mount a trial must be in place before the suspect
can be charged. All that is required is for the officer in charge
of the investigation to reasonably believe there is sufficient
evidence to provide a realistic prospect of conviction for the
offence. If that is the case, then the officer in charge of the
investigation informs the custody officer who is then responsible
for considering whether the detainee should be charged.[60]
Once the suspect has been charged there is nothing to stop the
police from continuing their investigations in order to gather
more evidence. The police will have ample opportunity to make
enquiries into international terrorist networks, decrypt and analyse
data held on computers, carry out forensic investigations and
so on between charge and trial.
13. The point has been made by the Government
that there is the potential for abuse as the police could bring
an essentially frivolous charge, seek to remand in custody and
therefore assure months of detention while seeking evidence for
further charges. This might be true but misses the point that
the potential for abuse is not in itself justification for not
considering later questioning and re-charge where appropriate.
We would hope that the police would not seek to abuse their powers
and trust that magistrates considering bail will give proper consideration
to the police case put before them. We raised the scope for re-interview
and recharge not as a device which would allow easier detention
of terrorism suspects but to demonstrate the range of options
available.
14. Section 47 of PACE already allows for
people to be bailed to reappear back at a police station while
the police continue investigations. This is a commonly used technique
to allow time for forensic examination (for example, the testing
of a substance to see if it is a narcotic). We presume that section
47 powers would not usually be used in terrorism cases due to
a concern that the suspect would abscond. This problem could be
addressed by attaching conditions to section 47 bail. Conditions
could include curfew, reporting, or the surrender of a passport.
Defendants in criminal cases will frequently have restrictions
placed on their bail. Similarly, section 1 of the Prevention of
Terrorism Act 2005 (PTA) suggests a range of restrictions. Part
of our objection and opposition to the provisions of Section 1
PTA was that they were applied as a punishment in themselves,
were not made in anticipation of any criminal proceedings, and
were potentially indefinite. If conditions were time limited and
made part of criminal process by being imposed in conjunction
with Section 47 PACE we do not imagine the same concerns arising.
15. We presume that one of the principle
reasons why the police might have difficult bridging the gap between
the evidential standard required for arrest and that required
for charge is the inadmissibility of intercept evidence in criminal
proceedings. Liberty has never supported an absolute bar on the
admissibility. The imperative for introduction seemed to be the
protection of the Security Services' sources and methods rather
than any obvious concerns for the fairness of the trial process.
Legally the bar is an anomaly. The UK is the only country in the
world, apart from Ireland, to have a ban. The Regulation of Investigatory
Powers Act 2000 forbids the use of domestic intercepts in UK court
proceedings. However, foreign intercepts can be used if obtained
in accordance with foreign laws. Bugged (as opposed to intercepted)
communications or the products of surveillance or eavesdropping
can be admissible even if they were not authorised and interfere
with privacy rights. There is no fundamental civil liberty or
human rights objection to the use of intercept material, properly
authorised by judicial warrant, in criminal proceedings.
16. If intercept evidence is admitted, existing
rules of criminal evidence will apply to ensure that the case
will not be unfairly prejudiced. Section 78 of PACE gives the
court a discretion to exclude evidence if "having regard
to all the circumstances, including the circumstances in which
the evidence was obtained, the admission . . . would have such
an adverse effect on the fairness of proceedings that the court
ought not to admit it". At common law a judge has discretion
"to exclude evidence if it is necessary in order to secure
a fair trial for the accused."[61]
17. In addition, the doctrine of public
interest immunity (PII) prevents material from being disclosed
and adduced in the normal way, whenever it is held that the public
interest in non-disclosure outweighs the public interest of full
disclosure. Thus, if there are concerns over protection of the
state's sources then the Crown Prosecution Service can make a
PII application to the court to allow disclosure of certain evidence
to be withheld from the defence and the public. This is particularly
applicable when there are state interests that require protection
or when informers and undercover sources have been used. There
may be further practical issues to overcome, although these do
not appear to have presented a problem in any of the countries
where evidence is admissible. The Government has stated that it
is not a magic bullet solution. This may or may not be true. Removal
would, however, remove the primary obstacle to bringing trials
in criminal cases.
Gareth Crossman
Director of Policy
Samantha Palmer
Research Assistant
19 December 2005
57 In which case we imagine there would be a considerable
amount of evidence. Back
58
Covered by Part 11 Anti Terrorism Crime and Security Act and
Part 1 Chapter 2 of the Regulation of Investigatory Powers Act
respectively. Back
59
Powers to deport EU nationals who are suspected of involvement
in terrorist activity are roughly similar to those relating to
non EU nationals. Back
60
Police and Criminal Evidence Act 1984 Code C 16.1. Back
61
Per Lord Griffiths in Scott v R. [1989]
AC 1242 at 1256. Since the enactment of PACE, this common law
power is now rarely used. Back
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