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Clauses 23 and 24: Extension of Detention Period

The bill as amended by the Commons also proposes that the current maximum period that a person suspected of involvement in terrorism may be held before being charged be doubled to twenty-eight days. Human Rights Watch is strongly opposed to any extension beyond the existing maximum of fourteen days. In our view, the case for extending the time that terrorism suspects can be held without charge has not been made. Britain already has the longest such period in Europe. The present fourteen-day maximum, seven times longer than is permitted for similarly complex offences involving fraud, drugs and organized crime, came into force less than two years ago.

While provisions designed to tackle the threat of terrorism pose particularly difficult issues, the balancing process between defending public safety and the protection of individual rights cannot be stretched to the point when the very essence of individual rights is impaired. The fundamental right in question here is the right to liberty and security under article 5 of the ECHR and article 9 of the ICCPR. Unless it is shown to be strictly necessary and proportionate, a further extension in the period that suspects can be held without sufficient evidence even to warrant a criminal charge will threaten to become a form of arbitrary detention in breach of this fundamental principle. An extension is also likely to infringe a suspect’s right under both treaties to be informed promptly of any case against him or her.

The history of the U.K.’s decisions to extend the pre-charge detention period for terrorist suspects is relevant to whether a further extension is necessary and proportionate. After thirty years of U.K. counter-terrorism legislation, a series of cases in the ECtHR, and extensive parliamentary debate, a period of seven days detention was confirmed in the Terrorism Act 2000. The recent extension to fourteen days was a very different matter. In May 2003, a government amendment was tabled at a late stage during parliamentary deliberation of the Criminal Justice bill.³¹ The arguments put forward by the government were the same as those advanced today: the need for time to examine substances, to extract computer materials, and to undertake international investigations. At the time, concerns were expressed at the late timing of the amendment and consequent lack of parliamentary debate. And even though the Parliamentary Joint Committee on Human Rights suggested that more reasons for such an extension needed to be forthcoming, the Home Office Minister, Beverley Hughes, was unable to provide at that time the number of occasions during the previous twelve months that the police had had difficulties in completing their inquiries within the seven-day maximum.

Despite its rushed introduction into law, the measure only became effective in January 2004. The statistics show that between January 2004 and September 4, 2005,—a period of twenty months—three hundred and fifty-seven people were arrested under this provision, of whom only thirty six were held in excess of seven days and only eleven were held for the full fourteen days.³² It has not been satisfactorily explained why, when the present fourteen-day period is only rarely resorted to by the police, that a further extended period is necessary. As already noted, it is seven times longer than that allowed for any other crime, including murder and drug trafficking, for example. It is equivalent to the average time served for a two-month prison sentence. As a point of comparison, one of the most criticized of the recently announced counter- terrorism measures in Australia is the proposal to extend their detention period from seven to fourteen days so as to bring it in line with the U.K.

The police and the Crown Prosecution Service (CPS) have sought to justify an extension on the same grounds as put forward for the fourteen-day extension in 2003, arguing that an extension is necessary to review complex material, with the problems of encryption, international networks, and possible hazardous materials being cited as examples. While the latest annual reports of both the Intelligence Services Commissioner and the Interception of Communications Commissioner throw doubt on the presumed difficulties surrounding decryption of data,³³ it is accepted that the investigation of some cases may take significant time and expertise.

But the government has not explained why these difficulties cannot be resolved with other tools at the disposal of the police. In many cases, the police should be able to charge suspects with a lesser offence, continuing their investigations and amending the charges later to reflect more serious offences. Where there is insufficient evidence for even a lesser criminal charge to be brought after fourteen days and suspects need to be released, police can seek permission to conduct forms of surveillance sanctioned by law.

It has been argued that charging suspects with lesser offenses will not work because police cannot continue to question a suspect once he or she has been charged. But Human Rights Watch can see no obvious obstacle in the rules contained in the Police and Criminal Evidence Act 1984 (PACE) to continued questioning of a suspect on matters with which he or she has not been charged. PACE certainly allows questioning of suspects on matters with which they have been charged if it is necessary “to prevent or minimise harm or loss to some other person, or the public.”³⁴ If there are indeed serious obstacles either to upgrading charges later, or continued questioning after charge, then it is far better to look at adjustments in that area, rather than further interference with the right to liberty.  

Counterproductive

The overarching objective of the “Preventing Extremism Together” initiative referred to above is “to address the problem of young people being drawn into extremism.”³⁵ Yet there appears to be a disconnect between this laudable objective and the proposal to extend powers of detention. Since many of those held for extended periods are likely to be Muslim, extended detention without charge has the potential to alienate a community whose members already feel disproportionately affected by counter-terrorism measures.

This concern will be exacerbated if the majority of those detained for an extended period are subsequently released without charge. A report from the Institute of Race relations indicates that hundreds of Muslims arrested under terrorist powers since the introduction of the 2000 Act were subsequently released without charge.³⁶ The Home Office’s official statistics give further cause for concern. They show that of the 756 people arrested under the 2000 Act between September 11, 2001 and June 30, 2005, almost two-thirds were released without charge and less than twenty-five were convicted.³⁷ The significant disparity between the numbers of arrests and prosecutions suggests that any extension of pre-charge detention is likely to result in many of those being held for extended periods being released without charge.

It is important to note that previous counter-terrorism measures, including the indefinite detention of foreign terrorism suspects, have been regarded by many British Muslims as having had a manifestly disproportionate impact on their community. The majority of the groups proscribed under the 2000 Act are of Islamic origin, for example.³⁸ And the stop and search powers introduced by the same Act have resulted in reports of the disproportionate stop and search of young Muslims. A 2004 report from the Metropolitan Police Authority says that current stop and search practice in London has created deeper racial tensions and severed valuable sources of community information and criminal intelligence.³⁹

The first test for any proposed counter-terrorism measure should be to balance the positive impact of its introduction in addressing the threat against its potential to alienate further communities upon whom an effective strategy most depends—a very real concern underscored by the “Preventing Extremism Together” report. The measure falls at that first hurdle and poses a serious threat to basic human rights.