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Is “42 days” preferable to “28 days” plus thresholding?

Posted by James Hammerton @ 10:05 pm on 18 June, 2008.
Categories democracy and the rule of law, British politics.
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Update: TD reminds me that the 3 people charged at 27 and 28 days referred to by Hindle were released without further suspicion.

Gary Hindle, writing in the Guardian, defends the 42 days proposals and claims they are more respecting of civil liberties than the current arrangements. I argue that the argument Hindle puts forward to claim that “42 days” better protects civil liberties than present arrangements does not hold water.

If nothing else, it seems to me that the low threshold charges he refers could be laid towards the end of 42 days, just as they can be laid towards the end of the current 28 day detention period, thus extending the period in which a person can be held without sufficient evidence against them to charge for longer than current arrangements allow.

I fail to see how that protects civil liberties better than the current arrangements when the evidential test for extending detention is the same test as the one allowing a low threshold charge. The detailed argument follows.

The argument that the 42 days proposals will better protect civil liberties than the current 28 day limit plus thresholding is set out in the following quotations:

Real potential for abuse of civil liberties lies in the present arrangements: a threshold test that allows suspects to be kept in custody after being charged, even though sufficient evidence has not been obtained. Prosecutors may accept evidence not sufficient to take to trial on the understanding that more will become available; they must have only a “reasonable suspicion” that an offence has been committed.

Note here that two condtions must apply to enable a low threshold charge to be brought:

  • That there is “reasonable suspicion” an offence has been committed.
  • That there is an understanding more evidence will become available.

I’ll come back to these two conditions later.

This provides for a “reasonable” period after charge for investigations to continue. This period is thus detention with charge but no evidence.

Note that Hindle has moved from “sufficient has not been obtained” to “detention with charge but no evidence”. If the period is “detention with charge but no evidence”, on what basis does one have reasonable suspicion, and on what basis does the judge allow the charge to be made? I’ll return to the question of how much evidence is used in thresholding below.

The proposed 42 days would allow police the time to protect the public and build a genuine case, while enshrining a higher level of judicial and parliamentary oversight during that time.

In evidence to the joint committee on human rights (JCHR) the CPS revealed that three individuals have been charged under the lower threshold on the 27th or 28th day. This however, has two important implications. First, there is a clear need to detain beyond 28 days since these individuals were held for the maximum period and adequate evidence was not obtained.

This first implication does not logically follow from the fact that three people were charged under the lower threshold on the 27th or 28th day. For it to follow the following would also need to be the case:

  1. That the suspects were in fact guilty of a terrorist offence! The fact that they didn’t have enough evidence at 27 or 28 days to bring a full charge may be because they’re innocent.
  2. That there was enough evidence for a “full threshold” charge waiting to be found.
  3. That this evidence could not have been found within 28 days even in the most generously resourced investigation.

None of these three points are demonstrated in Mr. Hindle’s article.

Second, there is a question as to whether adequate safeguards exist around the post-charge process comparable to the current proposals for extended detention.

Following charging under the lower threshold, there is no judicial review for 14 days. This takes the period of detention without substantial evidence to 42 days. Extended detention would provide a judicial review at 28 and 35 days.

Under current arrangements judicial reviews occur every 7 days until 28 days is up, and the judge must authorise continued detention at each of these reviews for the 28 days detention to occur. For Hindle’s argument to make sense the judicial reviews beyond 28 days must apply a stronger evidential test than is the case with thresholding.

Evidence to the JCHR charged that in terrorism cases the judge can provide up to six months for the prosecution to serve full evidence to the defence.

This leaves suspects facing a situation where they could be detained for many months without substantial evidence against them and be subsequently released without charge. Remarkably, there is no requirement for the defence to be notified that the lower threshold is applied. The defence would surely place demands for the expeditious delivery of full evidence and possibly bring contests of the detention on human rights grounds.

I agree the defence should be told if the low threshold test has been applied.

The comparative lack of accountability and oversight in applying the lower threshold mean the current 28-day limit arrangements are more of a threat to civil liberties than a fixed, defined, accountable period of extended detention.

We already have a “fixed definable accountable period of extended detention” with 28 days. Hindle is trying to argue that because it can be extended to 42 days with low threshold charging, it is preferable to extend the “fixed definable accountable period of extended detention” to 42 days. This would only be true if the use of low threshold charging was disallowed beyond 28 days, if the evidential tests for detention beyond 28 days were stronger than the test for low threshold accounting and if the levels of oversight were in fact greater than with the use of low threshold charging at day 27 or 28.

Abandoning reliance on the threshold test and adopting an extension of pre-charge detention will provide stronger judicial oversight and limits on detention under the authority of the DPP and judiciary. (emphasis added)

As far as I am aware, the Counter-Terrorism Bill does not abolish the use of thresholding, nor does it prevent the use of thresholding at day 41 or 42 of detention either.

Another key question here is what criterion does the judge use to decide whether to extend detention at each 7 day review? Hindle’s article contains the answer as follows (appearing before the quotations above):

For individual cases an application must be presented by the DPP. This application is made to a senior judge and, if approved, lasts for a maximum of seven days. If the police are unable to demonstrate a reasonable suspicion and point to a realistic prospect of forthcoming evidence, the judge will not permit the extension of detention.

Note that the test for a judge extending detention under both the current arrangements and “42 days” is “reasonable suspicion” and “a realistic prospect of forthcoming evidence”. Surely this is the same test as is used in low threshold charging?!

Thus it seems to me that the two schemes operate as follows:

  • Current arrangements permit extending detention without charge at 7 and 14 days on the basis of reasonable suspicion and a prospect of forthcoming evidence, with the option of a low threshold charge (brought on the basis of the same test!) extending detention for upto 42 days before a judge intervenes again.
  • The proposed arrangements permit extending detention without charge at 7, 14, 28 and 35 days, again on the reasonable suspicion and a prospect of forthcoming evidence. There is also then the option of bringing a low threshold charge, to allow detention upto 56 days before the judge sees the evidence again. To invoke this Parliament must agree to bring the reserve power into force, otherwise the 28 days detention is available anyway!.

I fail to see how the latter protects civil liberties better than the former, and in the former the accused gets to know what he’s being charged with after 28 days at latest whilst the latter allows the charge to be held off to 42 days.

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