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Pre-charge Detention

Human Rights Watch is resolutely opposed to any lengthening of pre-charge detention. We believe the current 28-day period is already excessive and in violation of the UK’s obligations under international human rights law. The proposed safeguards are wholly inadequate to meet the requirements of international protection against arbitrary, unjust detention. Moreover, the government has failed to provide convincing evidence that a power to detain individuals for up to 42 days before charge is necessary. Instead of extending pre-charge detention, the House of Lords should improve the safeguards for the current 28-day period.

Clauses 22-33 (Part 2) of the bill give the Home Secretary a reserve power to temporarily authorize 42 days of pre-charge detention in terrorism cases. She would act on advice from the Director of Public Prosecutions and a chief police officer (or their equivalents in the case of Scotland and Northern Ireland) that an extension beyond current upper limit of 28 days is needed to investigate properly. In order to take the power, she would have to declare the existence of an “exceptionally grave terrorist threat.” Parliament would have to approve the authority within seven days, and the power would lapse after 30 days.

It is well established in international human rights law that any interference with the fundamental right to liberty must be shown to be strictly necessary and proportionate. The government has acknowledged that there has yet to be a terrorism investigation where more than 28 days was required. Indeed, the Crown Prosecution Service has not made any application to extend pre-charge detention beyond 14 days since the summer of 2007. The government has failed to provide any evidence that the 28-day limit, when used, either prevented the police from bringing charges at all or forced them to bring lesser charges. Nor has it provided convincing evidence that the level of the threat is growing to support its thesis that a power to detain suspects for six weeks may become necessary in the future.

The exercise of a power to detain terrorism suspects for up to six weeks creates a significant risk of unjust detention. According to Home Office statistics, 669 out of 1,228 individuals arrested as part of terrorism investigations between September 11, 2001, and March 31, 2007, were released without charge.¹ It is therefore reasonable to expect that the new powers would lead to terrorism suspects—many if not most of whom would doubtless be British Muslims—being detained for the equivalent of a three-month prison sentence and then released without charge.

The measure is likely to have a damaging impact on the battle for “hearts and minds.”  Since the July 2005 attacks in London, preventing radicalization and recruitment (the “prevent” strand) has been at the heart of the UK’s counterterrorism strategy.² The strategy states that one of the key elements of prevention is:

Engaging in the battle of ideas—challenging the ideologies that extremists believe can justify the use of violence, primarily by helping Muslims who wish to dispute these ideas to do so.³

Extended pre-charge detention runs directly counter to this goal. Dr. Muhammad Abdul Bari, Secretary-General of the Muslim Council of Britain, has said he is “very concerned” that the measure could negatively impact relations between Muslim youths and the police, and warned that while “it is right that we take proper precautions against the threat of terrorism…it is our view that this legislation will be counterproductive and will play into the hands of extremist groups.”⁴

Extending pre-charge detention also risks undermining community confidence in the police, thereby jeopardizing a crucial source of cooperation for successful counterterrorism policing. The House of Commons Home Affairs Committee has acknowledged “the danger, which should not be underestimated, of antagonizing many who currently recognize the need for cooperating with the police.” ⁵

A broad consensus of individuals and groups in Britain oppose the measure. This includes the current Director of Public Prosecutions Sir Ken MacDonald, former Lord Chancellor (Justice Minister) Lord Falconer, former Attorney General Lord Goldsmith, some senior police officers currently in service, civil rights groups Liberty and Justice, and Muslim organizations. The Parliamentary Joint Committee on Human Rights (JCHR) has called the 42-day detention plan “fundamentally flawed” and warned that it violates “on its face”  the European Convention on Human Rights.⁶

The government’s efforts to extend pre-charge detention—already the longest in Europe and among countries with comparable legal systems—have attracted international concern and criticism. In April, Justice Minister Michael Wills was questioned repeatedly about pre-charge detention at the United Nations Human Rights Council during its Universal Periodic Review of the UK’s human rights record.

The UN Human Rights Committee, which will consider in its July session the UK’s sixth periodic report on compliance with the International Covenant on Civil and Political Rights (ICCPR), has asked the UK to explain how 28 days pre-charge detention is compatible with the ICCPR, and to provide information about plans for a further extension. While the Parliamentary Assembly of the Council of Europe plans to draw up a detailed report on pre-charge detention in the UK, the Council of Europe’s Commissioner for Human Rights Thomas Hammarberg has said that 28 days without charge is already far too long and warned that the plan to extend the period to 42 days is “not in line with the spirit of the [European] Convention.”⁷

Inadequate judicial safeguards

Both the European Convention on Human Rights (ECHR, article 5) and the International Covenant on Civil and Political Rights (article 9) guarantee that every person has the right to liberty and security of the person. Any person lawfully arrested on suspicion of having committed an offense must be “informed promptly” of the reason for the arrest and the charges, and be “brought promptly” before a judge or other officer authorized by law to exercise judicial power. Finally, such persons must have the right to challenge the lawfulness of the detention.

While international law does not establish a precise time-limit for preliminary detention, the consensus among human rights authorities is that the requirement of promptness should be interpreted conservatively. The European Court of Human Rights (ECtHR) takes the view that “the degree of flexibility to the notion of ‘promptness’ is limited” and that consideration of the special features of any given case, including those involving terrorism investigations, cannot be taken “to the point of impairing the very essence of the right.”⁸

Judicial control is an essential feature of the requirements of article 5 of the ECHR and article 9 of the ICCPR. In our view, the scope of judicial oversight currently in place for the 28-day period fails to meet these requirements, and the provisions in the bill for 42-day detention do nothing to remedy the failing. Individuals detained on suspicion of terrorism do not now have, nor would they have under the terms of this reserve power, an effective right to challenge the legality of the detention.

Under the current procedure, the police must apply to the District Judge for extensions of detention beyond 48 hours up to 14 days. For extensions beyond 14 days, the Crown Prosecution Service (CPS) must submit an application to a High Court judge. The detainee is entitled to have a lawyer represent his or her interests before the judge. However, the judge can deny the detainee and his or her legal representative the right to be present at any part of the hearing, and the judge can deny them access to material used by the CPS to argue for further detention.⁹ We echo the repeated concern of the Joint Committee on Human Rights that these provisions deny the detainee the right to a full adversarial hearing under fair trial standards. Under the bill currently before the House, a senior judge reviewing an application for extension beyond 28 days would have the same authority to exclude the detainee and his or her counsel.

In applications for extending pre-charge detention under the Terrorism Act 2000, the judge—either the District Judge or the High Court Judge—is asked to assess two things. First, whether there exist reasonable grounds for believing that continued detention is necessary to obtain, preserve, and adequately analyze evidence. Second, whether the police are showing due diligence and expediency in the conduct of the investigation.¹⁰ Crucially the judge is not required to assess whether reasonable grounds exist for believing the individual detained has committed a terrorism offense. This violates article 5(4) of the ECHR guaranteeing the right to challenge the legality of detention. The judicial review to determine this question should be, according to European Court case-law, “wide enough to bear on those conditions which are essential for the ‘lawful’ detention of a person according to Article 5(1).”¹¹

We welcome the stipulation that the Director of Public Prosecutions (DPP) approve all applications to a senior judge for extension beyond 28 days (Schedule 2, Part 1). Indeed, we argue that this could usefully be instituted for all extensions of pre-charge detention beyond seven days. However, like parliamentary oversight (see below), review by the DPP is no substitute for proper judicial scrutiny.

Inadequate additional safeguards

It is our view that the duration and lack of proper judicial safeguards render the 42-day detention plan wholly incompatible with the ECHR. It is worthwhile, nonetheless, to examine the other safeguards the government has introduced: the “exceptionally grave terrorist threat” trigger, parliamentary oversight, and the 30-day limit on the power. None of these safeguards stand up to scrutiny.

Under the bill, the Home Secretary must declare that an “exceptionally grave terrorist threat” exists in order to take the power to detain terrorism suspects for up to 42 days. The bill defines this as “an event or situation involving terrorism which causes or threatens serious loss of human life; serious damage to human welfare in the United Kingdom, or serious damage to the security of the United Kingdom” (clause 22). “Damage to human welfare” is defined as including “human illness or injury, homelessness, damage to property, disruption of a supply of money, food, water, energy or fuel, disruption of a system of communication, disruption of facilities for transport, or disruption of services relating to health.” The concept covers events or situations anywhere in the world, and those still in the planning or preparation stage.

In our view, this definition is far too broad and open to discretionary interpretation. The threshold for what constitutes “exceptional” remains undefined, since any terrorist attack would presumably involve the threat of serious loss of life, while the definition of damage to human welfare includes a very wide variety of vaguely defined consequences. We note too that there is no basis for challenging the Home Secretary’s assertion that an “exceptionally grave terrorist threat” exists; it is enough for her to make a statement to this effect to Parliament.

Finally, the power to detain for up to 42 days would affect all individuals in custody or taken into custody while the power is in force. This means that individuals who are arrested in the course of terrorism investigations unrelated to the declared “exceptionally grave terrorist threat” that triggered the power could potentially be held for the six weeks.

The government has emphasized the role of parliamentary oversight. Parliament must approve the power within seven days lest it lapse, while it would cease immediately if Parliament were to vote against the power (clause 28). Human Rights Watch is not convinced that this parliamentary scrutiny amounts to a proper safeguard. As an elected body, Parliament is not the appropriate institution for scrutinizing decisions on individual cases. That is a judicial function properly exercised by the courts. Under the terms of clause 27, the statement to be laid before Parliament must not include any information that could prejudice future prosecution of any individual.

The bill, as amended in the House of Commons, stipulates that the authority to hold suspects for up to 42 days will lapse after 30 days. We acknowledge that the government responded to concerns and shortened its original proposal from 60 days. However, there is nothing in the bill to prevent the Home Secretary from immediately reauthorizing a new extension. This raises the potential for rolling periods of 42-day pre-charge detention, which would affect not only those arrested in connection with an investigation into an “exceptionally grave terrorist threat” but any individual arrested under Terrorism Act 2000.

Human Rights Watch urges the Lords to reject absolutely any extension of pre-charge detention. We believe the current 28-day period already violates article 5 of the European Convention, and that section 23 of Terrorism Act 2006 should be repealed. Until section 23 is repealed, safeguards during the 28-day period should be improved, including by broadening the scope of judicial scrutiny to require any judge authorizing extensions to detention to be satisfied that reasonable grounds exist to believe the detainee has committed a terrorist offense, and requiring the Director of Public Prosecutions to approve all applications for detention beyond seven days.

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