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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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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.


Why David Davis’s stand is important

On Wednesday, not only did the government win the “42 days” votes, but prior to that opinion polls were published which suggested the public supported the government’s line on the issue.

As someone deeply opposed to the erosion of civil liberties, both of these events would be depressing events for David Davis. They also point to a wider depressing fact about the political climate in Britain. For many years now, the idea that one must erode civil liberties in order to be “tough”, or at least to be seen to be “tough”, on crime and on terrorism has influenced both the government’s political strategy, the media’s handling of the issues and many people’s perceptions of the issues.

We have had draconian measure after draconian measure pushed onto the statute books, and part of the argument against the opponents is that by opposing these measures they are being “soft” on crime and terrorism. It’s not merely a party-political thing but something that permeates the political arena generally.

And it seems to me that whilst the current government is likely to lose the next election, it is not clear that this is because people are outraged over eroded civil liberties. The issues of “spin”, sleaze and sheer incompetence on the part of this government are the more likely candidates for explaining their poor showings in the polls at this point. Civil liberties concerns may have contributed to the poor showings to some degree, but not yet as a major factor, as far as I can tell.

Thus the idea that standing up for civil liberties means being “soft” on crime or terrorism, holds enough sway in the media and with the public, that it will hamper any efforts of a would-be Home Secretary (or PM) to halt and reverse the erosion of civil liberties Davis refers to. It will need to be confronted if any lasting changes to strengthen civil liberties are to be made. I suspect it’s why, whilst we’ve heard some encouraging noises from the Tories (e.g. pledges to scrap the national identity scheme), it’s also why Cameron’s approach on these issues has had a cautious air to it.

By resigning his seat and fighting the by-election on a civil liberties platform, David Davis has created an opportunity for this idea to be challenged, and the political climate changed, before the next general election is held, thus giving an incoming Tory government a freer hand to strengthen civil liberties than would otherwise have been the case.

Thus the opportunity here is to alter the political landscape that the shadow cabinet and probable next government will be operating in, to strengthen the hand of those who believe in civil liberties. This seems to me to be Davis’s intention.

Because it involves thinking and acting outside the currently normal parameters of the Westminster “bubble”, I think those in the media and in politics who have been attacking him are misunderstanding the nature of what he is doing (or possibly understand too well and don’t like it).

But there is also a risk here for the cause of civil liberties. Suppose Davis loses his by-election. Won’t that damage the cause? I think it would, potentially seriously so and this is an outcome to be avoided.

I suspect he’ll win though. Nevertheless, I think anyone who believes in civil liberties should help Davis fight this fight, and make the debate on civil liberties he’s called for become a reality. By doing so, they will give this opportunity to alter the political landscape in favour of civil liberties the best possible chance of succeeding.

Buy David Davis a pint…

…suggests the Pub Philosopher. I may well heed his advice. He makes the following case:

At last, we may be about to have a proper debate on civil liberties in the UK. In the past couple of days I have heard about conversations in pubs, clubs, churches and round family dinner tables, discussing the DNA database, ID cards, curbs on free speech and the erosion of privacy. Previously, it seemed, these were just the hobby-horses of curmudgeonly old bloggers.

Whatever you think of David Davis, he hasn’t just got us all talking about these issues, he’s somehow made it OK to get angry about them too. He has provided a channel for a pent-up frustration that many people have felt for some time. For that alone he deserves our thanks. If I ever meet David Davis, the first round is on me.

I’d add that the whole thing is worth reading.

Pledge to support David Davis’s re-election

Over at Pledgebank.

David Davis and the “slow strangulation” of fundamental freedoms

Update: I left out the excellent Spy Blog from the list below. This site has covered the attacks on civil liberties at a detailed level.

David Davis, until yesterday the Tories’ shadow Home Secretary, has announced his resignation in protest at the Commons passing the law enabling 42 days pre-charge detention. He will fight in the resulting by-election on the general issue of civil liberties. In his speech he refers to the “slow strangulation” of fundamental freedoms in Britain.

Anyone wishing to look-up chapter and verse on the attacks on civil liberties is directed to the following links:

  • Prime recent and proposed attacks on civil liberties. This documents most of the attacks from 1994 to 2005, with direct links to the legislation concerned. For documentation of more recent attacks, the other articles in this blog, alongside the briefing documents are worth perusing.
  • UK Liberty has been documenting the attacks on civil liberties for a couple of years now and doing a sterling job of it too.
  • Taking Liberties is a documentary available on DVD, with a book to accompany it that also documents many incidents in which draconian powers have been used against peaceful protesters in Britain.
  • Henry Porter’s articles in the Observer have also been a good source of info.

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.


    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.


    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.

Anti-scientology protesters fined for handing out leaflets in Birmingham

Posted by James Hammerton @ 11:10 pm on 2 June, 2008.
Categories political liberties, freedom of speech, British politics.
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See here and here for details.

So far the laws used against anti-Scientology protesters include the Public Order Act 1986 (in London), the common law offence of “breach of the peace” (in Glasgow) and the Clean Neighbourhood and Environment Act 2005 (in Birmingham). And the Birmingham protesters were also told that if they used the word “cult” in their flyers or signs, they’d be arrested for religious hatred (i.e. under the Racial and Religious Hatred Act 2006).

Glasgow anti-scientology protestors told to bin “cult” signs

Posted by James Hammerton @ 6:35 pm on 24 May, 2008.
Categories political liberties, freedom of speech, British politics.
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Details at my personal blog.

David Cameron’s pledge to scrap the National Identity Register

Posted by James Hammerton @ 9:31 pm on 22 May, 2008.
Categories site news, privacy and surveillance, British politics, the database state.
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I had linked to this at an earlier article, but the link expired. I have now dug out the new link and updated the earlier article so that it works again.

Court summons for describing Scientology as a cult

Posted by James Hammerton @ 9:16 pm on 21 May, 2008.
Categories political liberties, freedom of speech, British politics.
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From the Register:

His sign read: “Scientology is not a religion, it is a dangerous cult.”

Within five minutes of arriving, the teenager was approached by a female police officer and told he was not allowed to use the word “cult” to describe Scientology, and that the Inspector in charge would make a decision. Soon afterwards officers again approached, read Section 5 of the Public Order Act 1986 and handed him this notice.

The Act makes it an offence to display “any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.

In response, the teenager quoted back a High Court judgement from 1984. Justice Latey repeatedly said in a family division case that Scientology was a “cult” - one that was “immoral”, “socially obnoxious”, “corrupt”, “sinister” and “dangerous”. The full judgement is here.

The City of London police again approached the protestor 30 minutes later to serve notice of a court summons, and to confiscate the sign.


City of London Police gave us this statement:

“City of London police had received complaints about demonstrators using the words ‘cult’ and ‘Scientology kills’ during protests against the Church of Scientology on Saturday 10 May.

Following advice from the Crown Prosecution Service some demonstrators were warned verbally and in writing that their signs breached section five of the Public Order Act 1986.

One demonstrator, a juvenile, continued to display a placard despite police warnings and was reported for an offence under section five. A file on the case will be sent to the CPS.”

This case should be thrown out. The Church of Scientology may not like being described as a cult but that is exactly what they are.

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