13. Memorandum submitted by the Secretary
of State for the Home Department
The Government is grateful to the Home Affairs
Committee for carrying out this important inquiry and for the
opportunity to submit written evidence.
SPECIFIC CASE
FOR 90 DAYS
PRE-CHARGE
DETENTION IN
TERRORIST CASES
The case for extending the maximum pre-charge
detention period in terrorist cases to 90 days has been set out
by Ministers during the course of the debates on the Terrorism
Bill and by the police, most notably in Andy Hayman's letter of
6 October 2005.
The Government has nothing further to add to
what has been said previously. In the course of the Third Reading
debate in the House of Commons on the Terrorism Bill, I indicated
that the Government accepted the decision taken on this matter
by the House of Commons.
JUDICIAL OVERSIGHT
OF EXTENDED
DETENTION
Pre-Charge detention for terrorist suspects
is currently supervised by specially designated District Judges
(Magistrates' Courts) at Bow Street Magistrates' Court. While
the Government is confident that they have been performing this
duty highly professionally, it sees the case for increased supervision
of the period of detention pre-charge. The Bill provides for detention
beyond the current 14 days to be sanctioned by a High Court judge
who will have all the facts of the case before him. The police
will need to provide full justification of continued detention.
The Government believes that the involvement of the higher judiciary
will bring fresh and rigorous supervision to any extended period
of detention.
RESOURCES FOR
POLICE AND
INTELLIGENCE SERVICES
The Government is absolutely committed to ensuring
that the Police Service is effectively funded to meet its Counter
Terrorist commitments. In 2005-06 specific CT funding for the
Police Service in England and Wales amounted to £96 million
of revenue and £8 million capital of which £61 million
revenue was allocated to the Metropolitan and £35 million
Revenue and £8 million capital was allocated to provincial
forces. This compares to the 2002-03 figures of £59 million
(£47 million MPS and £12 million provincial forces).
In the 2004 spending review the Security Service
received an average increase of around 60% over baselines. This
will allow for a growth in capacity and for staff numbers to increase
from around 1,800 in 2001 to 3,000 in 2008.
I think it is also important to recognise that
resources of themselves are not a complete solution. During his
appearance before the Joint Committee on Human Rights on 24 October,
Peter Clarke, Deputy Assistant Commissioner, Head of the Metropolitan
Police Anti-Terrorist Branch and National Co-ordinator of Terrorist
Investigations was asked specifically about this point:
"Q72 Dan Norris: Is it fair to
say that some increase in resources would help and therefore perhaps
the three-month detention period is still too long?
Mr 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."
LESSER CHARGES
The Government believes that there are a number
of problems with the suggestion that charging with a lesser offence
would be a suitable alternative to extending the period of detention.
The most fundamental of these is that it will
not always be possible to bring a lesser charge. There may simply
be no usable evidence which sustains a charge until, for example,
an encrypted computer has been cracked.
If the charge is a minor one there is a possibility
that the person will be granted bail and will be freed either
to abscond or commit a terrorist crime. As some have suggested,
it may be possible to change the rules surrounding bail but changing
the presumptions surrounding bail or allowing matters unconnected
with the offence for which a person has been charged to be taken
into account at a bail hearing would be both difficult and probably
very contentious.
Bringing lesser charges may also hamper the
process of the investigation. The first few days of any investigation
are crucial. It would be very unfortunate if the police were required
to divert attention from investigating a terrorist crime just
so they could gather sufficient evidence to bring a charge of,
say, benefit fraud against a suspect.
I also wonder whether this approach would offer
less protection for the suspect. Under the Terrorism Act continued
pre-charge detention is subject to regular judicial oversight
and can only be granted if the Judge is satisfied that it is necessary
and that the investigation is being conducted as expeditiously
as possible. Once a person had been charged with a lesser offence
there would not be the same imperative on the police to move so
quickly.
Finally, there must be doubts about the honesty
of this. Bringing lesser charges as a ruse simply to keep someone
in custody smacks of abuse and I dare say many people would condemn
other countries which operated in this way.
USE OF
TAGGING, SURVEILLANCE
OR CONTROL
ORDER AS
ALTERNATIVES TO
CUSTODY
Again I do not believe that these options would
be suitable way of treating those arrested for serious terrorist
crimes. The person may know that it is only a matter of time before
evidence implicating him in terrorism comes to light so if he
is released into the community he may feel he has nothing to lose
by carrying out a terrorist act.
Tagging does not physically prevent a person
from carrying out an act. It may be possible to establish that
a person had breached his curfew but that could be after the person
has committed a terrorist act If a person seeks to remove his
tag a signal will be sent to a control centre but by the time
the police have arrived on the scene he may have disappeared.
Unless a person's dwelling is surrounded by
a team of police officers around the clock, control orders and
surveillance can not guarantee 24 hour protection. There will
always be a possibility that a person who is subject to a control
order evades the control and is then able either to disappear
or to carry out a terrorist act.
QUESTIONING POST
CHARGE
As has been made clear during the Parliamentary
passage of the Terrorism Bill, the Government is willing to look
again at the issue of post-charge interviewing to see if the current
provisions in paragraph 16.5 of PACE Code C (Detention, treatment
and questioning of persons by police officers) best suit the needs
of achieving a successful outcome to an investigation. We intend
to publish a consultation paper on this issue in Spring 2006.
That paper will also consider the existing caution provided for
in Code C, paragraph 16.5 and the potential for amending that
to the caution given to a suspect during the pre-charge of the
investigation.
However, post charge interviews are only relevant
if it has been possible to lay a charge in the first place. They
cannot therefore be a substitute for extending the maximum pre-charge
detention period.
INTERCEPT AS
EVIDENCE
My Written Ministerial Statement on 26 January
2005 on the outcome of the review of the use of intercept as evidence
made clear that the use of intercept as evidence is not a "silver
bullet". The review showed that there may be a modest increase
in convictions of some serious criminals but not terrorists. For
example it would not have made a difference in supporting criminal
prosecution of those were detained under the powers in Part 4
of the Anti-terrorism, Crime and Security Act 2002. It is also
important to recognise that not all cases involve intercept material.
Even if such a change could be made it would not apply in every
case and could not therefore, of itself, remove the need for an
extended pre-charge detention period. For these reasons, intercept
as evidence would not remove the need for an extended pre-charge
detention period.
In the light of the review of the use of intercept
as evidence, we concluded that the risks of changing the law to
allow it outweighed the benefits of doing so. The review noted
in particular that new technologies would revolutionise communications
in the UK over the next few years and that now was not the right
time to move to an evidential regime. A current study into the
impact of these technologies on interception will report to Ministers
shortly.
The Government will continue to keep the ISC
informed of significant developments in this area.
Rt Hon Charles Clarke MP
12 December 2005
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