Background Briefing

No Further Extension of Pre-charge Detention

Human Rights Watch is deeply dismayed over renewed interest in extending pre-charge detention in terrorism cases. The “discussion document” presented to Parliament on June 7 indicates that the government intends to seek a further extension, while acknowledging the need for judicial and parliamentary oversight.

Human Rights Watch strongly opposed the provision of Terrorism Act 2006 increasing pre-charge detention from fourteen days to the current twenty-eight days on the grounds that it risked creating a form of arbitrary detention in violation of the fundamental right to liberty and security of person under article 5 of the ECHR and article 9 of the International Covenant of Civil and Political Rights.31 In our view, the case for further extending the time that terrorism suspects may be held without charge—the third such extension in as many years—has not been made.

The twenty-eight day detention period has been used only once since the provision went into effect, and Home Secretary John Reid conceded that it has not yet been the case that twenty-eight days have proven an inadequate amount of time.32  Moreover, the police did not make significant use of the previous fourteen-day limit: in the twenty months between January 2004, when the fourteen-day maximum period went into effect, and September 2005, only 3% of those arrested on suspicion of terrorism were held the full fourteen days.33    

Human Rights Watch acknowledges that the investigation of some cases may require significant time and expertise. If the government can convincingly demonstrate that the current period of pre-charge detention is insufficient, it should actively explore or increase recourse to other options. There is no shortage of ideas from parliamentary committees, nongovernmental organizations and law enforcement experts on how to facilitate investigations and prosecutions in a manner that comports with international human rights law.

The broadening of the police power to question suspects in terrorism cases after they have been charged with a crime is a possible alternative. At present post-charge questioning is only permitted to clarify new statements, where public safety is at risk, or where new evidence comes to light and the suspect agrees to be questioned.34  The government’s June 7 “discussion document” proposes expanded post-charge questioning powers.35 The House of Commons Home Affairs Committee and the Joint Committee on Human Rights have previously endorsed broader post-charge questioning powers.36 

If the scope of post-charge questioning is to be broadened, it is important to ensure that there are adequate safeguards to protect the rights of the accused, including the presence of legal counsel at all times and a  very narrow limit on the adverse inferences that may be drawn at trial from the refusal to answer questions. It may be reasonable to allow adverse inferences to be drawn from the failure of the suspect to mention key facts later relied on in his or her defense.  Anything broader would compromise the right to silence.37

31 For a detailed discussion, see Human Rights Watch, Briefing on the Terrorism Bill 2005, Second Reading in the House of Lords, November 2005,

32  “Fresh bid to extend detention period for terror suspects,” Press Association, February 1, 2007.

33  Statistics on arrests under the Terrorism Act 2000 seen by Human Rights Watch [unpublished].

34 Home Office, “Discussion Document,” para. 7.

35 Ibid.

36  House of Commons Home Affairs Committee, “Terrorism Detention Powers,” Fourth Report of Session 2005-06, Volume I, July 3, 2006, paras. 104-109,; Joint Committee on Human Rights, “Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention,” Twenty-Fourth Report of Session 2005-06, August 1, 2006, paras. 132-135,

37  The government’s June 7 “discussion paper” suggests that it is considering such an approach. The section on post-charge questioning states: “Where a subject refuses to answer questions but then later relies on something they had the opportunity to mention previously, for an example an alibi, then adverse inferences could be drawn from this where it is reasonable to do so.”