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On some arguments for 42 days pre-charge detention

Posted by James Hammerton @ 11:16 pm on 11 June, 2008.
Categories democracy and the rule of law, British politics.
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Update: abelard points out that Parkinson’s law applies, which is what I was getting at with my comments about the police being likely to use up whatever limit is given to them. This law states:

Work expands so as to fill the time available for its completion.

Thus we should be very sceptical that cases where 27 or 28 days have elapsed before someone is charged, or even before someone is released but is later charged, necessarily indicate that 28 days is inadequate. Of course the same could have been said for 14 days or 7 days or 48 hours. The logic at work here would push us to extend to pre-charge detention limits to 60 days, or 100, or more.

In light of the British government’s victory in the vote on this measure in the House of Commons, I’ve decided to write a series of articles examining the arguments put forward by proponents of extending pre-charge detention, of which this is the first. Note that the Bill has still to be approved of by the House of Lords, so there is still scope to stop this measure.

In this article I examine the substantive points made in Matthew D’Ancona’s recent Spectator article, which reports on an interview he held with Jacqui Smith. Consideration of the points made in this article will set-up some issues that I’ll look at in more detail in later articles. The main substantive arguments for this measure mentioned in the article are as follows:

  • From page 2:

    The cry throughout the debate has been for ‘evidence’ that the new powers are needed. The whole point is that these powers are being sought before they are absolutely necessary but on the basis that they will soon become so.

    There are two points I’ll make here:

    • It is not unreasonable to demand evidence that the new powers are needed and several parliamentary reports have concluded otherwise, e.g. this one. From the introduction:

      It remains our view, expressed consistently in previous reports, that the Government has failed to make its case for further extending the maximum period of pre-charge detention and that there is therefore no need to make any provision for the extension of the current maximum.

      It seems to me than in failing to make its case, the government will not only have failed to demonstrate a current need for the powers but also a foreseeable future need. In fact, given the current powers the government have, I find it difficult to imagine a case where it would make a real difference to further extend the detention powers.

    • Even if a genuine future need can be foreseen, does it necessarily entail legislating now? It depends on how soon “soon” is. If they thought such cases would occur before the next legislative session (I might even allow for the one after that too), then yes clearly the legislation would be needed now. But if the timescale is say, several years, then it’s worth monitoring the situation and holding off to ensure that when the legislation is brought forward it really is adequate to the job.

      After all predicting the future is a tricky business and there’s no guarantee the current proposals will necessarily meet the anticipated need if it is still several years off from materialising. The fact that several parliamentary committees have examined this proposal and concluded it is not necessary, leads me to suspect any such need either hasn’t been foreseen or really is sufficiently far off that legislation is not needed now. I’ll return to this issue of the anticipated need in future articles.

  • Also from page 2:

    The trajectory is clear: Dhiren Barot, who was sentenced to life in November 2006 after plotting to bomb the New York Stock Exchange, the World Bank and landmark London hotels, was charged just within the 14-day limit (as it then was). Since then, the new 28-day limit has been required in 11 cases, eight of which have led to charges — in several instances going right to the wire. The plots to cause carnage are growing very quickly in scale and complexity, as are the technological and forensic challenges. In the alleged airline plot of 2006, for instance, 200 mobile phones, 400 computers and a total of 8,000 disks, containing 6,000 gigabytes of data, were seized. Ms Smith’s opponents insist that such technological problems could be dealt with under existing legislation such as the Regulation of Investigatory Powers Act 2000. Not so, says the Home Secretary: most such offences are bailable, which gets you back to square one. She is also against the US-style use of ‘holding charges’ to keep suspects in detention pending more serious evidence being uncovered. ‘I think it is a good thing for the system to be charging people with what it is you think they have actually done, you know.’ “

    One of the worries I have with this argument is that the increasing complexity of investigations applies not as a special case to terrorism but also to other types of crime, whether it be fraud, drug trafficking, the trafficking of humans or computer hacking. Thus if we accept the logic in the case of terrorism we open the door to it being extended to organised crime in general, at least when lives are at stake. I also suspect that whatever limit you give the police, they’ll hold a suspect up to the limit to maximise the chances of a confession or of strong evidence turning up whilst he’s still in custody, unless they believe they’ve got no case at all or that they have such a clear-cut case no further investigation is necessary.

    Of course these concerns don’t necessarily nullify the argument, but they show why one needs to be very careful about accepting it. The main flaw with the argument is the implicit assumption that if you release a suspect without charge then that’s the end of the story. It isn’t. If the police/security services are convinced a suspect is involved in terrorism then surely they would keep that suspect under surveillance until such a time as they can charge him? And given they’ve already arrested him, they’ll almost certainly have stopped or at least delayed whatever terrorist activities he might be involved in, simply because the suspect will know he’s under suspicion and lie low. They’ll also have revealed to his associates that he was under investigation. The point is that simply having the power to surveil someone and arrest them is sufficient to disrupt any criminal (let alone terrorist) activity they’re involved in and keep tabs on them should you not be able to charge them at the time.

    It is also worth remembering that the government can apply control orders to suspected terrorists, subjecting them to curfews and restrictions on their activities and associations. This is not a measure I support but the fact is they have this (and many other) weapons to use against terror suspects and I fail to see what difference the proposed extension of pre-charge detention will make (to the ability to detect or stop terrorist plotting) in this context.

    Regarding the comments about offences in existing legislation being bailable. Firstly, if this is a real problem, why doesn’t Jacqui Smith propose ending, or at least restricting the use of bail for suspects charged with terrorist offences? Secondly, I don’t see it as a problem because bail conditions can be applied which are similar to those conditions control orders can impose, the difference being that a suspect has actually been charged and is thus awaiting a trial, and imposing such conditions has a stronger justification.

    On ‘holding charges’, if the idea is that you bring forward “pretend” or otherwise petty charges purely to hold someone until you can charge them with something juicy, then I agree with Jacqui Smith’s reported comment. However, I’m not aware of any laws preventing additional charges being brought against someone after they’ve been charged with some other offence. Nor am I aware of any laws preventing suspects being questioned about those additional charges. If you can charge someone with an offence, on the genuine basis that you can make a strong case that they committed the offence, then I see no problem with holding out the possibility of further charges being brought. Given the wide range of offences the government has created regarding terrorism, it seems improbable to me that a suspect could not be charged for some of the lesser offences (if they had strong enough evidence to arrest in the first place), with the investigation continuing to see if more serious charges are warranted. This option should be available, if it currently isn’t. If it is, then that weakens the case for extended pre-charge detention simply because if you’ve genuinely caught a terrorist, you are unlikely not to be able to charge him with a terrorism related offence.

  • From page 5:

    The irony of the present parliamentary row over 42 days is that her opponents seem willing to accept almost any crackdown other than this particular measure: reform of the Civil Contingencies Act (CCA); post-charge questioning; more aggressive use of so-called ‘threshold charging’ to allow prosecutors to charge suspects on the basis that stronger evidence is likely to turn up; the use of ‘holding’ charges; the admissibility of intercept evidence; and so on. ‘Using the CCA without having put in the safeguards that we put in is massively draconian,’ she says. ‘First of all, there is the argument about whether or not legally it can be used, I think that’s question- able. But, fundamentally, what they are arguing is that it should be possible in an emergency situation to hold somebody for up to a maximum period — for an additional 30 days — up to a maximum of 58 with no reference to a judge for individual detention, with no scrutiny by the Independent Reviewer of Terrorism and report back to parliament.’

    Leaving the CCA to one side, it seems to me that all of the proposals are less draconian than extending pre-charge detention to 42 days. That does not mean I’d support them in every case, I’d prefer them to 42 days and would only actively support admitting intercept evidence since that seems to me a reasonable and sensible move. Even Israel, with their experience of terrorism, allow intercept evidence in court.

    As for the comments about the CCA, it seems to me that the only situation where extended pre-charge detention is justifiable would be a genuine national emergency, e.g. an insurgency or a sustained major bombing campaign on a scale that the police and security forces simply cannot cope with. In both cases, the use of emergency powers would be proportionate, because it would be necessary to use the army to round-up those suspected of engaging in the insurgency/bombing campaign in order to actually stop it. The fact that the government claims that the 42 days proposals would only be invoked in a grave terrorist emergency seems to me to suggest that, if the test genuinely applies, we already have emergency powers legislation that is more than adequate for the job. After all it gives the government whatever powers it sees fit and a state of emergency can even be declared in a localised area. I’m not sure the 42 days proposal would necessarily be adequate in such circumstances. Yes, the CCA is more draconian than the 42 days proposal, but it is ostensibly aimed at circumstances where draconian action would be necessary. And the powers invoked can be tailored to the situation.

    This highlights a tension in the government’s case. On the one hand the government’s arguments about terrorism cases becoming more complex presumably applies to terrorism cases in general, and not merely those carried out in a state of emergency, yet on the other hand they seem to be claiming that the powers would only be used in what would amount to a state of emergency!

  • Finally, I deal with a comment made in the Comments section, from a commenter called “Cupcake”, responding to Guy H who points out that a plot is stopped by the initial arrest:

    ““A plot is stopped by the initial arrest” Duh, yeah, and what if they can’t sort through the evidence in time to bring a charge before the custody time limit expires?

    The answer is simple: the suspect is released, and the plot has been stopped, and the suspect can be either put under a control order or put under surveillance to see if a stronger case can be made later. If the suspect should try and resume carrying out terrorist attacks, then that would trigger another arrest! The story doesn’t have to end with the release of the suspect, if the police genuinely believe they’ve targetted the right suspect.

    And:

    This happens now in non-terrorist cases, in which people are released without charge and then picked up later. This cannot be allowed to happen, though, when the stakes involve mass murder. TIme won’t wait.

    To which I say (1) after release a genuine terrorist will most likely lie low for a while until he thinks the coast is clear, and thus is unlikely to pose a threat during this period (2) the authorities can keep the suspect under 24/7 surveillance and/or impose control orders in order to prevent them from resuming or starting another plot after release anyway. To assume the suspect will be allowed to drop off the radar if the police or security services believe him to be genuinely up to no good, is ridiculous.

    And:

    Some of the cases we’ve already seen involved locating, retrieving and going through computer files in Australia for heaven’s sake.

    42 days is the maximum. Not everyone arrested will be in custody for 42 days and then the police decide whether to charge.

    The law is designed for particularly convoluted cases, in particular picking up the brains and assistants behind plots who may not have left much of a trail but whose may crop up in computer documents that have to be put together in jigsaw fashion with other bits of evidence to determine whether there is a case to answer.”

    Once you’ve disrupted a plot with the original arrest, you’ve bought time for the investigation and can keep any subsequently released suspects under surveillance if you believe it is necessary. However, I grant the initial arrest might see some suspects lie low as a result of it becoming clear the police are aware of them. Even so, at minimum this delays, if not prevents, the plots from being carried out and either way buys the time for the charges to be made.

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