Professor Clive Walker School of Law, University of Leeds

Submission to the Joint Committee on Human Rights: Draft Detention of Terrorist Suspects (Temporary Extension) Bills 1 April 2011

Introduction
1 This paper responds to the call for evidence from the Joint Committee on Human Rights ('JCHR') in connection with its inquiry on the Home Office's Draft Detention of Terrorist Suspects (Temporary Extension) Bills ('the Draft Bills'). 1 2 Discussion in this paper derives from my research as an academic over many years into anti-terrorism laws and also, more recently, into the Civil Contingencies Act 2004. I also served as a special adviser to the parliamentary Special Joint Committee which was assembled to inquire into the draft Civil Contingencies Act. For fuller details and arguments on these issues, see principally: Walker, C., Terrorism and the Law (Oxford University Press, Oxford, 2011) Walker, C. and Broderick, J., The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (Oxford University Press, Oxford, 2006)

The case for contingency powers to extend the period available for pre-charge detention beyond 14 days
3 The most fundamental point to be made here is that a limit of four days detention is 'normal'. That is the limit set in the Police & Criminal Evidence Act 1984, Part IV (the period is probably shorter in Scotland). That 'normality' applies following the arrest of mass murderers or suspected fraudsters no matter how complex or internationalised their frauds. The impression is too easily given that a return to 14 day detention for terrorists is somehow a return to 'normality'. This impression should be constantly deprecated and dispelled. A detention of 14 days is well beyond the equivalent in any western democracy 2 and amounts to a grievous intrusion into personal liberty. Given that a period of 7 days for the detention of suspected terrorists was maintained from the Prevention of Terrorism (Temporary Provisions) Act 1974 until the Criminal Justice Act 2003, the focus of public debate should be more on how to return to the 'normality' of 4 days rather than going beyond 14 days or, in default, feeling comfortable with 14 days. 4 As for the justification of extended detention beyond 14 days, there are two main issues to be considered. One is the factual justification. The second is the overriding need for constitutionalism. For these purposes, 'constitutionalism' requires: that the legislative objective is sufficiently important to justify limiting a fundamental right; that the measures designed to meet the legislative objective are rationally connected to it; that the means used to impair the right or freedom are no more than is necessary to accomplish the objective. It should further be understood that these standards vary according to rights affected. For fundamental rights to liberty and due process (articles 5 and 6 of the European Convention on Human Rights), any limits must operate in very limited circumstances for the sake of the rights of others and not for 'balance' with wider societal goals. For derogation under article 15, any measure should be strictly required. The next constitutional principle is accountability which includes attributes such as information provision, open and independent debate and an ability to participate in decision making. Finally, there must be observance of constitutional governance, meaning the subjection of governmental action to norms, whether legal or extra legal (such as codes). Constitutional governance also requires that
1 2

Cm.8018, London, 2011. Foreign & Commonwealth Office, Counter-Terrorism Legislation and Practice: A Survey of Selected Countries (London, 2005); JUSTICE, From Arrest to Charge in 48 Hours (London, 2007); Russell, J, Charge or release: Terrorism Pre-Charge Detention Comparative Law Study (Liberty, London, 2007).

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the emergency laws reflect the overall purpose of the restoration of fundamental features of constitutional life. 5 In terms of factual justification, the claim is made that the Parliamentary decision to increase pre charge detention limits from 14 to 28 days has been justified. We have been able to bring forward prosecutions that otherwise would not have been possible. 3 But hard evidence that the charging rate is increased by special powers or by the elongation of detention periods could only be discerned by far more detailed case studies than currently available. Just one decided case has been put forward as definitely warranting more than twenty-eight days; in the ricin plot of 2003 (Operation Springbourne), one alleged lead conspirator had to be allowed to leave the country, and charges against the rest did not adequately reflect the severity of the plot. 4 The nearest to a full case study of 28 day detention was the inquiry by Lord Carlile into Operation Pathway in 2009. He concurred with the view that more than 14 days was not necessary in that case. There is also quantitative data as to the usage of 28 day detention in Britain: Period of detention 14 to 15 days 18 to 19 days 19 to 20 days 27 to 28 days Total No of detainees 1 1 3 6 11 Charged 1 1 3 3 8

The table reveals a restrained usage and a high rate of charging. But no convictions were sustained against any of the three detainees held for the full 28-day period arising out of the 'Liquid Bomb' plot. Furthermore, the powers have not been required for the past three years, a feature which convinced Lord Macdonald to recommend repeal. 5 Of course, there are arguments from common sense rather than proof that more incriminating evidence is likely to be uncovered if more time is afforded to investigators, as a result of which observation it follows that there is no logical answer to setting a maximum which might be required for operational reasons. 6 Lord Carlile has also used the common sense argument that it is impossible to rule out circumstances where more than 14 (or 28) 7 days' worth of investigative time might be needed to ensure public safety either in the case of a major catastrophe involving many perpetrators or in an individual inquiry. But a western democratic society should be wary of adopting a 'no risks' solution when it knows that to do so is not justified by the facts of recent history. 6 In summary, there is no compelling empirical case for an extension beyond 14 days. Probably the best one can say is that police experience does show that arrest up to 14 days has been constantly utilised and valued. But the need for such powers should be, and is, diminishing because of new offences (the offence of the preparation of terrorism in the Terrorism Act 2006, section 5 is
3 4 5 6

Home Office, Possible Measures for Inclusion into a Future Counter-Terrorism Bill (London, 2007) para 12. R v Bourgass [2005] EWCA Crim 1943, [2006] EWCA Crim 3397. Lord Macdonald, Review of counter-terrorism and security powers (Cm.8004, London, 2011) p.4. Lord Carlile, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill (Cm 7262, London, 2007) para 46. Lord Carlile, Report on Proposed Measures for Inclusion in a Counter Terrorism Bill (Cm 7262, 2007) para 46.

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especially significant), the threshold charging policy, 8 the greater resourcing of specialist policing and prosecution units, and the fallback of alternatives in terms of control orders (which have been used when trials have collapsed) or surveillance (which is now being given more funding). Too often, proponents of longer detention confuse the problems of the completion of an investigation in the face of a mass of evidence or the difficulties of liaison or translation, which may indeed take many months to complete, with the ability to bring charges, where the practice increasingly coheres around a 14 day limit. A surfeit of untrawled evidence is not a reason for more detention time. 7 Moving to the overriding need for legality and the observance of other constitutional principles, is it possible to secure these values if pre-charge detention is extended beyond 14 days (or indeed if pre-charge detention remains at 14 days)? This paper shall leave to one side the potential drawbacks in terms of the generation of miscarriages of justice and also of community distrust. Instead, the provisions of Article 5 of the European Convention will be considered in turn. (a) Article 5(1): No time limit is set in Article 5(1)(c). But it is misleading to assert that therefore there is no limit, so long as there is occasional judicial review to satisfy Article 5(3). This wrongful interpretation, seemingly shared by this very Committee, 9 assumes an unerring priority over personal liberty for the polices reasonable suspicion and would invite them to find a conveyor belt of new reasons for suspicion or to refuse to accept that old reasons have been dispelled. The better view is that the European Court would place a strong value on liberty and would notice the important fact that the detainee remains in police hands under Schedule 8 rather than under the competent legal authority, as reflected in the Continental inquisitorial model. Precisely when judicial tolerance of genuine police endeavours should terminate will be determined on a case-bycase basis. But a police-led investigation, even under the circumstances of regular judicial audit, cannot be tolerated just because reasonable suspicion persists. This point was made in McKay v United Kingdom: 10 'For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a moment when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time-frame applicable to each case.' A 28 day detention is more susceptible to challenge than a 14 day detention on this ground. As indicated in Re Duffy (no.2), 11 there is a need to show necessity and proportionality at all times. One factor mentioned in that case which would count against further detention is an absence of any

9 10 11

Code for Prosecutors (Crown Prosecution Service, London, 2010) para 5 (which represents a tighter formulation in so far as it requires identifiable evidence). See House of Commons Home Affairs Committee, Detention Powers (200506 HC 910) para 112; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention (200506 HL 240, HC 1576) para 131; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill (2007 08 HL 50, HC 199) para 77; House of Commons Home Affairs Committee, The Governments CounterTerrorism Proposals (200708 HC 43) para 67. Joint Committee on Human Rights, Criminal Justice Bill (200203 HC 724, HL 119) para 102. App no 543/03, 3 October 2006, para.45. [2011] NIQB 16 para.30.

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power to grant conditional release on bail under section 41 of the Terrorism Act 2000. 12 As noted again in McKay v United Kingdom: 13 ' there must exist the opportunity for judicial consideration of release pending trial as even at this stage there will be cases where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds. such consideration, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum.' In R (I) v City of Westminster Magistrates Court, 14 Mr Justice Collins considered whether this absence of bail breached Article 5 of the European Convention. Formal reviews at, and after, fortyeight hours were considered to meet the requirements of Article 5 on the facts of that case. It was even suggested that a police review officer could impose conditions on continued detention for specific terrorist offences. 15 The Home Office review presented to Lord Macdonald was favourably disposed to a new bail power, especially for those suspected of 'less serious offences', though not entirely as a substitute for extended pre charge detention. 16 However, the Macdonald Report rejected conditional release on bail as akin to control orders. 17 Yet, given that there must be a far clearer link to an investigation and more possibility of court intervention than for control orders (or their successors, Terrorism Prevention and Investigation Measures), it is hard to accept this argument. (b) The detention powers are even more vulnerable to challenge under the remainder of Article 5. Article 5(2) requires prompt disclosure of the reasons for the arrest and the charges against the detainee. 18 If the latter is taken literally, as requiring charges to be laid promptly, then the reasoning in Brogan 19 hints that police detention without charge for more than a few days cannot be acceptable. At the same time, case law suggests that reasons can be given through the process of interrogation rather than expressly, as in Sher v Chief Constable of Greater Manchester Police. 20 (c) As for Article 5(3), the European Court held in McKay v United Kingdom, 21 that there must be review which is prompt, automatic, and without requiring action by the detainee, conducted by an independent officer who can order release, and examining the lawfulness of the detention as well as due diligence. The mechanisms under Schedule 8 go a long way to meeting these criteria. However,

12 13 14 15 16 17 18

19 20 21

Ibid. para.31. App no 543/03, 3 October 2006, para.46. [2008] EWHC 2146 (Admin). Ibid. paras 9, 22. Home Office, Review of Counter Terrorism and Security Powers (Cm.8004, London, 2011) p 11 Review of Counter Terrorism and Security Powers (Cm.8003, London, 2011) p 4. Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill (200708 HL 50, HC 199) para 18. App nos 11209, 11234, 11266/84, 11386/85, Ser A 145-B (1988). [2010] EWHC 1859 (Admin) paras 91, 94. App no 543/03, 3 October 2006.

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whether judicial inquiry during detention extending well beyond seven days is sufficiently regular, sufficiently extensive, and, above all, sufficiently transparent, 22 remains to be tested. (d) As for Article 5(4), the form of judicial hearings is not fully adversarial since disclosure is limited and might be conducted ex parte. 23 Nor are the hearings expressly based on a full review of the merits of the detention, 24 although the terms of paragraph 32 are broad enough for the merits to be raised, and the decision by the Northern Ireland High Court in Re Duffy asserts that it would amount to neglect if the lawfulness of the basis for the arrest was not considered. 25 In Sher v Chief Constable of Greater Manchester Police, the argument that the Schedule 8 scheme breached Article 5(4) of the European Convention was rejected on the ground that, although there could be secret hearings, the judge was an active participant. 26

The procedure for introducing a contingency power to extend the period available for pre-charge detention
8 The following solutions to introducing a contingency power to extend the period available for pre-charge detention will be explored as to their respective merits: the current statutory order system under the Terrorism Act 2006, section 25, either as an existent power or as a contingent power the model of the Draft Bills the utilisation of the Civil Contingencies Act 2004 Terrorism Act 2006, section 25 9 In many ways, the current system, the annual renewal of the disapplication order under the Terrorism Act 2006, section 25, is administratively the most convenient. That system is in place, so no further debate is needed as to its design. But it seems forlorn to suggest that this model might be revived into current force. There is insufficient political will to support continuance, and, as already discussed, there is no evidence for a clear or present risk in the light of the history of the actual application of section 25. Terrorism risk will sometimes increase, such as during the London Olympics 2012. Yet, even then, to invoke a range of draconian security powers to welcome participants and visitors hardly seems the best strategy for holding a successful event, although it may generate the least risky environment. 10 As for using section 25 as a contingent power, by leaving it on the statute book but reviving it as and when necessary, that approach would incur the same disadvantage as arise with the Draft Bills as the mechanism for contingency, namely the problem of Parliamentary discussion at a time
22

23

24

25 26

See Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 42 Days (200708 HL 23/HC 156) paras 83, 84 (in three out of seventeen cases of detention beyond fourteen days the suspect was excluded); Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, CounterTerrorism Bill (200708 HL 108/HC 554) paras 3133. See HC Hansard Public Bill Committee on the Counter-Terrorism Bill, Evidence from Susan Hemming, col 56 (22 April 2008). The use of ex parte hearings is said to be very limited: col 56. See Garcia Alva v Germany, App no 23541/94, 13 February 2001, para 39; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Counter-Terrorism Bill (200708 HL 108/HC 554) para 21. [2009] NIQB 31 at para 26. Compare R (Hussain) v Collins [2006] EWHC 2467 (Admin) at para 16. [2010] EWHC 1859 (Admin) at para 123.

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of ongoing investigations against identifiable individuals. These problems were fully canvassed by the House of Lords Constitution Committee's report on Fast Track Legislation. 27 Of course, the level of parliamentary scrutiny and discussion might be diminished under section 25 since it demands only that 'a draft of the order has been laid before Parliament and approved by a resolution of each House' (section 25(6)). Yet, that affirmative resolution process might be viewed as offering inadequate scrutiny and accountability in the circumstances compared to the passage of a Bill. Draft Bills 11 The Draft Bills represent above all a political signal that the Home Secretary of the day is not to be trusted with the initiation and direction of detention periods. Instead, Parliament must be fully engaged if any change is to be made. This new disposition should be supported if the premise is adopted that 14 day detention is the new 'normal' and that the only likely future direction of travel is upwards to 28 days. Yet, if the institution of 28 day detention is to become much more exceptional than hitherto, the Draft Bills mechanism might be attacked on two grounds: for not setting the triggers for invocation; and for not specifying enough safeguards around those triggers. 12 As for the triggers for invocation, quite simply there are none within the Draft Bills. The Home Secretary's best effort in the Draft Bills consultation paper is to mention 'urgent situations'. 28 Lord Macdonald can offer no better, with his formulation of 'exceptional events'. 29 The prime safeguard is that Parliament may not be convinced, though since the grounds are not specified, any decision may be somewhat confused. A further safeguard, less immediate, is that there may be a judicial declaration of incompatibility under the Human Rights Act 1998, section 4. This power has more limited impact than the power which might be asserted against a statutory order under section 25. Secondary legislative instruments can be declared outright to be invalid to the extent of their incompatibility under section 3. Whether a more or less extensive judicial power based on human rights review is desirable is of course itself a matter of some ongoing controversy. Since there are no triggers specified, should some be inserted into the Draft Bills? Herein resides a fundamental problem. On the one hand, a political signal is being given that the Home Secretary of the day is not to be trusted. On the other hand, if triggering grounds are rehearsed, then two detriments follow to the Home Office sponsor. First, they will point clearly to the need for evidence to show that the trigger has been met, but the revelation of hard evidence might endanger the investigation and indeed the security situation more generally. Second, the triggers are bound to be of a lower order than those in the Civil Contingency Act 2004. Thus, there would be a need to create some nebulous category of 'second order crisis' unrelated to an emergency situation, especially as it may relate to just a single individual. The attempt to create such a category is fraught with definitional problems and would encourage legal challenge on grounds of proportionality. 13 Regarding safeguards for invocation, one might again argue that there should be more safeguards than under section 25, since the intention is to make the use of 28 day detention more exceptional. Yet, the current formulation compares very poorly with the Civil Contingencies Act 2004 (discussed below) or even with the draft Counter-Terrorism (Temporary Provisions) Bill 2008. It may be recalled that this Bill was flourished by the Home Secretary 30 within hours of
27 28 29 30

House of Lords Constitution Committee, Fast Track Legislation (200809 HL 116). (Cm.8018, London, 2011) para.3. Lord Macdonald, Review of counter-terrorism and security powers (Cm.8004, London, 2011) p.4 para.7. See HC Hansard vol 480, col 620 13 October 2008.

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defeat of the government's 42-day detention proposal in the House of Lords. 31 The CounterTerrorism (Temporary Provisions) Bill 2008, allowing 42-day detention, itself embodied few of the previous safeguards embodied within the defeated Counter-Terrorism Bill version. That version entailed independent legal advice, a favourable report from the DPP and the police, a statement by the Home Secretary, secret briefings of the chairs of the Home Affairs and Joint Human Rights select committees, as well as requiring debate and approval from Parliament on the implementing order within seven days, and a subsequent report from an independent reviewer. There would even be ex gratia compensation for those released without charge between 28 and 42 days. These were pared down in the draft Counter-Terrorism (Temporary Provisions) Bill 2008 to an application by the Director of Public Prosecutions and an independent review of every case. Several of these devices were controversial - illusory and constitutionally illiterate. 32 The review of Parliament of the application of detention to named individuals was considered to be constitutionally illadvised. 33 In theory, the draft Counter-Terrorism (Temporary Provisions) Bill 2008 remains on the table, unloved and ignored. But the Draft Bills surely deserve no better fate. They entail all the same problems, as underlined in the later report on Fast Track Legislation by the House of Lords Constitution Committee, and yet contain none of the safeguards. Civil Contingencies Act 2004 14 As for the utilisation of the Civil Contingencies Act 2004, Part II can be invoked in the circumstances of a defined emergency within section 19, which expressly and intentionally includes a terrorism emergency. 34 The hindrances to open debate of emergency regulations again arise, 35 though, unlike other options, the Act deals with the logistics of putting an order before Parliament even in times of prorogation (sections 27 and 28). The definition of emergency contends against intervention in individual cases, since emergency requires a degree of scale it 'threatens serious damage to the security of the United Kingdom'. Thus, most terrorist attacks cannot justify a declaration of emergency. This is a problem if, like Lord Carlile, it is desired to hold open the possibility of 28 day detention for an individual problem case. It is not problematic if one believes, like Lord Macdonald, that 28 day detention is only conceivable in the case of a concerted set of serious terrorist attacks. Another advantage of Part II is that it contains details in sections 20 and 21 as to the triggers for the powers, all of which can be reviewed in Parliament and by the courts. There are also safeguards as to parliamentary scrutiny, a sunset clause, and the promise of subsequent independent review. More safeguards could certainly be imagined and would be worthwhile. Amongst the wider problems in Part II, there are the following of relevance: There is no express requirement of objectivity in any of the tests or in the actual power to make emergency regulations the Minister is allowed to use powers on the basis of satisfaction without the qualification of reasonableness. The condition of necessity is also left unexplained, except in section 21(5) and (6). Proportionality is not sufficiently explained aside from in geographical terms. The term is baldly stated when an emergency is declared (section 20(5(b))
31 32 33

34

35

See HL Hansard vol 704 col 491 (13 October 2008), Lord Dear. HL Hansard vol. 703 col.687 (8 July 2008) Lord Steyn. House of Lords Constitution Committee, Counter-Terrorism Bill: The role of ministers, Parliament and the judiciary (2007-08 HL 167) at para.39. See further Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Counter-Terrorism Bill (2007-08 HL 108/HC 554) para.13. See Draft Civil Contingencies Bill Consultation Document June 2003 (Cabinet Office, 2004, Supplied free of charge with Cm 5843 para.5. It would be possible to avoid Parliamentary debate in advance of action under the Civil Contingencies Act 2004 ss.20(2) and 27(1)(a), but to plan to do so would weaken the safeguards of the legislation.

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and when the regulations are issued (section 23(1)(b)), but there is no requirement when the regulations are applied. There is no temporal cut off point for either dealing with the aftermath of emergencies which have occurred or anticipating emergencies which are in the future. It would have been very helpful to impose statutory duties to disclose the evidence and intelligence which convinced the Minister to intervene. There is no such duty in the Act beyond the assertive statement in section 20(5). An unresolved issue is whether the conditions in section 21 apply as a trigger to the totality of regulation-making powers in section 22 or whether the conditions must be satisfied for every exercise of each regulation-making power. Parliamentary scrutiny is designed to bite at a number of stages under section 27. But none of these forms of oversight affects the powers of Ministers to make new regulations or affects anything done by virtue of regulations before they terminate. A proposal for an Emergency Powers Select Committee was made during the parliamentary passage 36 but to no avail. The matter was settled at the last hour by a concession that: 37 within one year of the end of the point at which the emergency regulations fall, a senior Privy Councilor appointed by the Government will review the operation of the Act in that instance. 38 It is regrettable that the review and the appointment of the reviewer are not based on statute and that the reviewer is afforded no statutory powers to gather evidence.

15 Nevertheless, even as it stands, Part II offers safeguards in advance of what is offered by the Draft Bills. The Civil Contingencies Act 2004 includes 'Triple Lock' safeguards that restraints will be imposed on the triggering definitions by reference to seriousness, necessity, and geographical proportionality. There is also the requirement of an affirmative Parliamentary resolution within seven days of the laying of an order in council which makes emergency regulations (section 27). In one sense, it is perplexing to be seen as encouraging the potentially widespread use of the Doomsday powers in Part II. However, it should be appreciated that the exceptionality of the powers amounts to a strong safeguard. Despite the difficulties of terrorist attacks such as on 7 and 21 July 2005 or the Liquid Bomb conspiracy, Part II has not been invoked, even though resources were then stretched and, in 2005, there was no 28 day detention power. The fact that the Civil Contingencies Act 2004 requires the establishment of an emergency is itself a powerful safeguard, setting a high bar which should not be lowered by the Draft Bills. 16 Despite its attractions, there are two severe problems with using Part II as the contingent vehicle for 28 day detention: first, there is no clear power to issue detention regulations; second, there are no available drafts as to the details of those regulations. 17 The second point can be dealt with in brief. The government has refused to publish any drafts in regard to its potential response to any contingent emergency. In this case, if it believes that 28 day detention would be part of a set of contingent regulations to respond to a terrorism emergency, then it should publish the plans not only for 28 day detention but also for the other regulations which it envisages. It would be nave to believe that such contingent plans do not exist.
36

37 38

Hansard (HC) Standing Committee F col.298 (10 February 2004) and Hansard (HC) vol.421 col.1388 (24 May 2004). Hansard (HL) vol.666 col.1655 (18 November 2004), Lord Bassam. Hansard (HC) vol.426 col.1515 (18 November 2004), Ruth Kelly.

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They would become better plans if subjected to the sunshine of public scrutiny. By contrast, the Civil Contingency Act 2004 becomes a very dangerous option as a vehicle for 28 day detention if the intended regulations are to remain state secrets. 18 Returning to the first point, the lack of clear power to issue detention regulations, the relevant powers in section 22(3) of the Civil Contingencies Act 2004 are expressed to be 'particular' powers flowing from the more general purposes in section 22(2), which include '(a) protecting human life, health or safety'. It is true that the listed powers in section 22(3) refer to restrictions of movement and travel rather than detention, but these are only 'particular' powers. The contention that detention without trial can be authorised under civil emergency legislation has not been ruled out by the courts. 39 The sponsor of the 2004 Act also refused to rule out the possibility of detention without trial, 40 and, in terms of interpretation, there is a difference between creating an offence punishable without trial (expressly disallowed under section 23(4)(b)) and a power of detention without trial which can then be enforced through disciplinary offences tried in the usual way. One can envisage its use, for example, in connection with terrorist emergencies or during pandemics. Nor does section 22(3) rule out powers of summary arrest, such of all persons in the vicinity of a terrorism incident or in an area affected by disease or a chemical, biological, radiological or nuclear (CBRN) incident. It may be concluded that it would be a welcome reform to clarify further the detention powers under Part II of the Civil Contingencies Act 2004. Summary 19 In summary, the Draft Bills involve the worst of all worlds. The government should have the courage of its convictions in the Protection of Freedoms Bill 41 and truly bring about the 'Permanent reduction' there mentioned of the detention period by simply abolishing section 25 without feeling the need to wave the shroud of the Draft Bills. There are sufficient protections through special offences, the threshold test, control orders or their successors, and the high professionalism of the police, security services, and prosecutors to give confidence to Ministers, Parliament and the public that liberty should not be put at further risk by the Draft Bills. If reassurance is nevertheless felt necessary for faint hearts, it should arise through two means. One is fuller contingency planning under the Civil Contingencies Act 2004. The government should take seriously the measures in Part II of that Act. They were well debated and contain sufficient safeguards to deal with the only situation in which special detention powers beyond 14 days are in truth likely to be invoked - in circumstances of national emergency rather the operational bottlenecks. The second reform measure would be to provide for the possibility of bail under the section 41 arrest power. As already indicated, there are strong human rights arguments for the necessity for such a power. In these circumstances, the device might allow for the continuation of an investigation in relation to a suspect who, while no longer in police detention after 14 days, could be released on bail conditions set by a judge akin to control orders for a period of up to 14 days. The transfer of power to judicial hands and away from either a Minister or Parliament is the best solution of all in regard to the fair treatment of the liberty of an individual.

39

40

41

R v Halliday, ex parte Zadig [1917] AC 260; Attorney-General of St. Christopher, Nevis and Anguilla v Reynolds [1980] AC 637. Letter from Douglas Alexander to the Joint Committee on the Draft Civil Contingencies Bill, 31 October 2003. 2010-11 HC 146 cl.57.

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The judicial authorisation process for extending pre-charge detention beyond 14 days
20 Recent cases have explored the bounds of the judicial role and extended the duties which the judges expect to undertake. In Ward v Police Service for Northern Ireland, 42 the House of Lords upheld the exercise of the power under paragraph 33 to exclude the detainee and lawyer from sensitive aspects of police representations. Their Lordships warned that judges who allow exclusion in this way take upon themselves an enhanced duty to check what the police are demanding. The decision by the Northern Ireland High Court in Re Duffy asserts that it would amount to neglect if the lawfulness of the basis for the arrest was not considered. 43 In Re Duffy (no.2),44 it was emphasised that issues of proportionality are fundamental to the review process. In Sher v Chief Constable of Greater Manchester Police, 45 the court again imposed strict requirements as to inquiry and review. Challenges to decisions to extend detention might be possible by way of judicial review or habeas corpus within fourteen days. Thereafter, a decision of a High Court judge cannot be reviewed in these ways according to R (Hussain) v Collins. 46 21 Overall, the testing of the necessity and proportionality of the loss of liberty are now firmly recognised as part of the judge's remit. This development is vital to ensure compliance with Article 5. As a result, the demands of the judicial scrutiny have increased. As a result, the police were caught out in Operation Pathway and treated judicial authorisation as too much like a bureaucratic exercise rather than a searching examination. 22 At the same time, scrutiny under Schedule 8 does not necessarily amount to a fair process because of the possibilities of suppression of evidence and exclusion of detainee (and lawyer) under paragraph 36. Some suggestions to make hearings more effective and fair include: a presumption of detainee presence at review hearings; the use of special advocates in cases of exclusion; the greater structuring of hearings beyond fourteen days with more explicit checklists to encourage judicial involvement. 47

Safeguards
23 As for the sufficiency of safeguards during pre-charge detention, many other reforms or changes could be conceived and would be beneficial, though this list is not to imply that high standards of treatment in police detention do not already prevail.

42 43 44 45 46 47

[2007] UKHL 50. [2009] NIQB 31 at para 26. Compare R (Hussain) v Collins [2006] EWHC 2467 (Admin) at para 16. [2011] NIQB 16. [2010] EWHC 1859 (Admin). See [2006] EWHC 2467 (Admin). See Lord Carlile, Report on the Operation in 2007 of the Terrorism Act 2000 (Home Office, London, 2008) para 105.

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(a) Since the availability of defence lawyers can be a significant factor which produces delays and thereby prolongs detention, it is counter-productive that changes in legal aid funding arrangements will decimate the number of available solicitors. 48 (b) One recurrent proposal has been independent inspection of detention facilities and processes. Independent custody visitors may attend under the usual rules, 49 a scheme extended to Northern Ireland in 2005 by the Independent Custody Visiting Scheme of the Northern Ireland Policing Board. 50 The Independent Custody Visiting Association in England and Wales is intent on drawing up a special protocol for contacts with suspected terrorists in police custody. 51 Although the lay visitors are allowed to witness interviews, 52 they do not review the rules nor meet with detainees. Therefore, independent oversight of detention conditions could be made more effective by reviving the office of the Independent Commissioner for Detained Terrorist Suspects. 53 The concept of an Independent Commissioner was conceded by the government in debates on the Counter-Terrorism Bill. 54 However, the government later reneged on this promise because of feared delays to investigations. 55 Instead, by the Coroners and Justice Act 2009, s 117, the remit of the Independent Reviewer of Terrorism Legislation under TA 2006, s 36, is modified to make explicit that the officer may in particular investigate the treatment of persons detained under s 41 for more than 48 hours, including by real time observation. Aside from the fact it has not been brought into force, this scheme suffers from several limits. The additional burden is placed upon the single, part-time independent reviewer. Even the government expects attendance at no more than the odd extension hearing and the most serious investigations. 56 In addition, the exclusion of scrutiny during the first 48 hours puts beyond review around a half of detentions. (c) Relatively small-scale reforms which build upon existing features could include more detailed rules as to living conditions, shorter time limits, and police internal reviews continuing after 48 hours. There should also be verification of any application beyond seven days by a higher police officer such as an Assistant Chief Constable. 57 (d) The arrest power itself in section 41 could be subject to reform. There is no guidance equivalent to PACE Code G (for the statutory power of arrest by police officers). Another deficiency is that
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There is also the problem that legal aid is not available for barristers at hearings under Schedule 8: Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 42 Days (200708 HL 23/HC 156) para 97. Police Reform Act 2002, s 51; Code of Practice on Independent Custody Visiting (Home Office, 2003). Human Rights Annual Report 2006 (Belfast, 2006) pp 11624. Monitoring Places of Detention, First Annual Report of the United Kingdom's National Preventive Mechanism (Cm.8010, London, 2011). Lay Visitors Reports Order 2005 SR (NI) 420. See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UNGA 43/173 of 9 December 1988) Principle 29; Walker, C and Fitzpatrick, B, Holding Centres in Northern Ireland, the Independent Commissioner and the rights of detainees [1999] European Human Rights Law Review 27; Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland (Northern Ireland Office, Belfast, 1999), para 8.16. HL Hansard vol 705 col158 (4 November 2008), Lord Lloyd. See Horne, A, An Independent Commissioner for Terrorist Suspects (House of Commons Library, London, 2009). Hansard HL vol 714 col 867 (11 November 2009), Lord Tunnicliffe. Ibid col 872. Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters (200506 HL 75, HC 561) para 102.

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section 41 is not limited by the necessity criteria, as specified by PACE, section 24(4). 58 Next, the excessive use of section 41 for intelligence-gathering could be curbed by a scheduled offence approach in place of reliance on the trigger of 'terrorism'. (e) More fundamental changes directly related to the arrest and detention processes could include, first, more restrictive rules as to the admissibility of any statements or silences. For example, if there was a rule that any statement obtained after four or seven days was inadmissible, then it might speed up the investigation process. (f) Special rules should be instituted to allow for the growing practice of the safety interview - an off-the-record interview in order to protect life or avert serious property damage. 59 In R v Ibrahim, 60 the defendant, one of those charged with the attempted attacks in London on 21 July 2005, wanted to exclude from trial as unfair evidence obtained in a safety interview. During the safety interview, the police had warned that his statements would be recorded and used in evidence, though, at trial, they were not the prime evidence of the offence. The court admitted the evidence, even though legal advice had also been improperly refused. 61 These safety interviews are acceptable in principle. They allow for questioning without legal advice and some of the documentary formalities but occur in well-monitored circumstances. However, in the light of the Ibrahim decision, such statements should invariably be treated as being without evidential merit. (g) Moving to reforms indirectly related to the arrest and detention processes, an initial issue is what happens before the arrival at the police station. It is all very well to have regulatory perfection at Paddington Green only to find that abusive behaviour has occurred before arrival, as sustained in the case of Barbar Ahmad. 62 (h) Arising from his review of Operation Pathway, Lord Carlile called for a clear protocol between police and CPS in relation to the handling of applications for the extension of detention. 63 No such protocol has been published. (i) Another issue raised by Lord Carlile is the case of Kafeel Ahmed who died on 2 August 2007 from burns in the Glasgow Airport attack on 30 June 2007. Lord Carlile points out that no interrogation was possible during a 14 day period (though one might observe that a 28 day period also would have not have sufficed). However, there is a real defect in section 41. Unlike under the Police and Criminal Evidence Act 1984, absences from police detention spent in medical care do not stop the 'detention clock'. This defect should be remedied, but by copying the Police and Criminal Evidence Act 1984 rather than allowing 28 days detention for all.

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See Serious Organised Crime and Police Act 2005, s 110; Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007, SI 2007/288, art 15. Code H, paras 6.7 and 11.2. [2008] EWCA Crim 880. Ibid. para104. Four officers of the TSG unit at Paddington Green are being prosecuted for excessive force in the arrest of Babar Ahmed: The Times 13 August 2010 p.15. This followed the Metropolitan Police's admission of civil liability and offer of 60,000 damages for injuries in March 2009. (Home Office, London, 2009) paras.81-88.

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(j) The final, and broadest, issue to raise concerns the respective roles of police and security agencies in dealing with terrorism. The security agencies have been accorded since 1992 64 a more leading position in this country than many others. This priority for intelligence-led approaches reflects a greater emphasis on risk management for the sake of public safety than prosecution for the sake of justice. Whether the order of priority is right or not, one effect is that police's evidential starting point at the time of arrest under section 41 is at a lower level than for other serious crimes, exemplified also by the inadmissibility of intercept evidence. 65 The effectiveness of terrorism policing and security agencies is beyond the current inquiry but is worthy of future attention.

Contact details Professor Clive Walker Centre for Criminal Justice Studies School of Law University of Leeds Leeds LS2 9JT 0113 2335022 law6cw@leeds.ac.uk

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House of Commons Debates, vol. 207, col. 297, 8 May 1992. See Privy Council Review of intercept as evidence: report to the Prime Minister and the Home Secretary (Cm.7324, London, 2008).

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