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I am aware that parties other than the noble and learned Lord have expressed concern about the vulnerability of the terrorist arrest power in the Bill to a successful challenge by the ECHR. The concern appears to focus on the fact that it was the particular circumstances of the Brogan case that resulted in the Government's case being upheld and that such a result could not be relied upon in future cases.
That gives me the opportunity to reiterate the Government's position on the way in which the specific Section 14(1)(b) terrorist power of arrest under the PTA works and how it is envisaged that the terrorist arrest power will operate under the Bill. The arrest power will be available for use where, and only where, a constable has reasonable suspicion that a person is or has been concerned in the commission, preparation or instigation of acts of terrorism; and the purpose will be with a view to securing sufficient usable and admissible evidence in criminal proceedings against the person concerned.
The Court in Brogan ruled that the reference in Article 5 to an "arrest for an offence" included arrest for this purpose, and we rely on that position. It follows from what I have said that we do not agree that it was necessary to create an individual offence of being involved in terrorism. The question therefore is whether it might be desirable for any other reason to create such an offence, and on balance the Government think not.
The activities in which terrorists engage are, we believe, already caught by specific criminal offences. The situation has moved on significantly since the Gardiner report in 1975, to which the noble and learned Lord referred earlier. That recommended the individual offence of terrorism. We now have offences of, for example, directing a terrorist organisation, recruiting and training. Indeed, we believe that the Bill plugs a few gaps in that respect in that certain of these offences have up to now been available only in Northern Ireland and their extent is now broadened to be UK-wide.
On balance the Government prefer to rely on the existing offences under the criminal law, which they believe adequately cover the ground, rather than to create an additional individual offence of terrorism, which the noble and learned Lord's approach would deliver. That approach is also consistent with our view that the occasions on which terrorists are treated differently from "ordinary" criminals should be kept to an absolute minimum. I know and understand that the noble and learned Lord, Lord Lloyd, supports that. Because of the way terrorists are organised, financed and operate, dealing with such persons requires special measures, but their acts remain the ordinary callous acts of murder, bombings, arson and so forth, and we believe that they should be recognised as such.
It is with regret that the Government have taken the view that they cannot agree with the proposals of the noble and learned Lord, Lord Lloyd, for the creation of an act of terrorism. I hope that the Committee has found my explanation of our position helpful.
I turn now to the amendment in the name of the noble Lord, Lord Avebury. This provides that the terrorist arrest power may be used only in connection with a person a constable reasonably suspects to have committed or to be about to commit an act of terrorism within the meaning of Clause 1. We believe that this amendment unduly narrows the availability for the arrest power in a very unhelpful way. First, it is not clear that all the terrorist offences listed in the Bill will be caught by the formula "have committed or to be about to commit an act of terrorism". For example, it is by no means certain that the terrorist fund-raising clauses would be caught; nor, indeed, the offence of
Also, the Government think that a move to the formula of a person who a constable reasonably suspects to have committed or to be about to commit an act of terrorism from the current formula concerning the commission, preparation or instigation of acts of terrorism again narrows unacceptably the arrest power. It does not explicitly include acts which, behind the scenes, support the commission, preparation or instigation of acts of terrorism.
The Government are not persuaded that, having accepted that there should be a special terrorist arrest power, it should be available only to respond to some of the more front-line actions in which terrorists engage. Moreover, the arrest power and the linked detention regime is of particular use when there is a reasonable suspicion of involvement in terrorism but it is not yet clear what that involvement actually amounts to. That is where the additional time to check statements, run forensic tests and carry out other operational matters is most valuable, and yet the amendment would mean that the terrorist power of arrest would not be available in those very important circumstances.
The police are firm in the view that the special arrest power has been the key to their ability to prevent, disrupt and investigate terrorism. I believe that to modify the power as the noble and learned Lord suggests would seriously hinder their effectiveness and I would hope that, on reflection, he would not wish to press his amendment.
The noble Lord, Lord Avebury, asked me a specific question. I do not have the answer to that question this afternoon, and nor do my officials. I am more than happy to carry out some research so as to provide an answer to that point. If the noble Lord is satisfied on that point, I shall write to him and provide those details to other Members of your Lordships' House.
Lord Lloyd of Berwick: I am grateful for what the Minister said, although I am not sure that he has carried the matter much further than he did on Second Reading. I shall certainly study what he said with great care. I am grateful also for what other Members of the Committee have said.
Amendments Nos. 68C and 95A require certain rules as to the time a person can be held on the authority of the police to be brought into line with the times provided in the Police and Criminal Evidence Act, generally known as PACE. Under Clause 41, the time during which someone who has been arrested can be held without charge on the authority of the police without the need for any judicial intervention is 48 hours. Under PACE, the equivalent period is 36 hours.
There is no justification or need for different time limits under this Bill and under PACE, most obviously because most of the offences which are likely to lead to arrest under Clause 41 will themselves be offences to which PACE applies. Therefore, since PACE requires the period to be limited to 36 hours, it means that the period will, in effect, be 36 hours in any event.
Thirty-six hours should be quite sufficient to enable a competent police officer to investigate an offence and decide whether or not to charge or request a further period of detention. Obviously, a suspect can be detained longer but not simply on the say-so of the police and 36 hours seems an appropriate period for this Bill as well as for PACE within which the police should be required to obtain judicial authority for the continued detention of the suspect.
The effect of Amendment No. 95A is again to ensure that a judicial review takes place not only at the end of the first 36 hours but at successive intervals of no more than 36 hours thereafter. As matters stand, an accused person may be detained for up to seven days from the time of his arrest subject to only one review by a court after 48 hours. That is under Schedule 8. This amendment would ensure that a judicial review takes place every 36 hours.
The second two amendments in the group concern a different aspect of detention; namely, the right of representation of the suspect when the question of the suspect's continued detention is being considered by the court.
Amendments Nos. 103A and 103B are alternative amendments. Perhaps I may first take Amendment No. 103B because it is more far-reaching. The effect of the amendment is to ensure that a decision on further detention is not made by a judicial authority without the authority taking into account the suspect's responses to the reasons asserted for the need for continued detention. It does so by making sub-paragraph (3) ineffective if that would prevent the suspect from responding fully to the reasons given for the request for continued detention.
The alternative is Amendment No. 103A which makes sub-paragraph (3) apply only on the application of the Crown prosecutor or authorised advocate or litigant. The purpose is to ensure that if an application is made for continued detention at a time when the suspect and his representative have been excluded, there is at least an independent and objective legal element present in the court to ensure that the matter is not dealt with solely by the police, the Crown prosecutor or the authorised advocate being the person in question.
If one or other of the amendments is not accepted, there is a serious risk of miscarriage of justice. What is required is that there should be either a representative of the suspect present or, at least, somebody who is independent of the police, legally qualified and subject to a professional duty to be fair and who has considered the public interest need for such an application. I beg to move.
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