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Protecting the Right to Security - The Case for Pre-charge Detention

Commentary, 11 June 2008
Terrorism, Europe
There are sufficient judicial safeguards in place to protect civil rights and fundamental principles of liberty. The pre-charge proposals are necessary and we must make the right decision.

There are sufficient judicial safeguards in place to protect civil rights and fundamental principles of liberty. The pre-charge proposals are necessary and we must make the right decision.

Garry Hindle
11 June 2008

The extension of pre-charge detention will not provide an automatic or arbitrary power, nor will it constitute an affront to existing ideals and principles of liberty in the United Kingdom. In fact, a fixed, clearly defined, accountable period of detention will be less a threat to civil liberties than existing arrangements. Proportionality and rigorous judicial oversight are key; with these requirements satisfied we must look beyond the politics and posturing to make the right decision.

The call for an extension to pre-charge detention is to ensure against surges in demand of investigative capacity in terrorist investigations. Providing necessary additional resources to the police is one possibility offered to negate the need for this. However, significant resources have been provided and there is no need for a standing capacity to address what would be an unusual occurrence.

Early interception is a key factor in the case for extending detention. Early intervention results in weaker evidence but less risk to the public. Allowing suspects under surveillance to proceed with plans to the point that would provide the strongest evidence would present an unacceptable risk. The consequence is weaker evidence, for which extended detention compensates.

The impact upon the Government’s PREVENT strategy of extended pre-charge detention is an important consideration which has led some senior police officers to voice concerns. The UK’s preventative approach, however, has significant commitments indicating that prevention is taken seriously in the wider counter-terrorism strategy. Effective communication of the proposals has been the primary risk to preventative work and is an area of notorious Government weakness.

In current proposals, a case must be made by the Chief Constable of a police force and the Director of Public Prosecutions (DPP) demonstrating a need for detention beyond twenty-eight days. This must express confidence that investigations are being conducted ‘diligently and expeditiously’. The Home Secretary may then declare the reserve power extending detention to forty-two days, lasting for sixty days from the date it became available. If Parliament does not approve the reserve power within thirty days the power ceases to be available. This makes the power to extend available but not automatic. For individual cases an application must be presented by the DPP. This application is made to a senior judge and, if approved, lasts for a maximum of seven days. If the police are unable to demonstrate a reasonable suspicion and point to a realistic prospect of forthcoming evidence, the judge will not permit the extension of detention. The Independent Reviewer of Terrorism Legislation will subsequently assess each period of detention for each individual authorised during the period when the reserve power was active.

The DPP Sir Ken McDonald has commented that the Threshold Test as applied in terrorism cases makes the extending of detention unnecessary. The Threshold Test is applied where the suspect is to be kept in custody after being charged but, also where sufficient evidence to charge has not been obtained. Under this guidance a prosecutor may accept evidence not sufficient to take to trial on the understanding that this will become available after charging. In this case, prosecutors must have only a ‘reasonable suspicion’ that an offence has been committed and that there is a public interest in prosecution. This provides for a ‘reasonable’ period after charge in which investigators can assemble the full evidence required. This period is thus detention with charge but no evidence.

In evidence to the Joint Committee on Human Rights (JCHR) the CPS revealed that three individuals have been charged under the lower threshold on the twenty-seventh or twenty-eigth day. This, however, has two important implications. First, there is a clear need to detain beyond twenty-eight days since these individuals were held for the maximum period and adequate evidence was not obtained. Second, there is a question as to whether adequate safeguards exist around the post-charge process comparable to the current proposals for extended detention.

Following charging under the lower threshold, there is no judicial review for fourteen days. This takes the period of detention without substantial evidence to forty-two days. Extended detention would provide a judicial review at twenty-eight and thirty-five days. Evidence to the JCHR charged that in terrorism cases the judge can provide up to six months for the prosecution to serve full evidence to the defence.

This leaves suspects facing a situation where they could be detained for many months without substantial evidence against them and be subsequently released without charge. Remarkably, there is no requirement for the defence to be notified that the lower threshold is applied. The defence would surely place demands for the expeditious delivery of full evidence and possibly bring contests of the detention on human rights grounds.

The comparative lack of accountability and oversight in applying the lower threshold mean the current twenty-eight day limit arrangements are more of a threat to civil liberties than a fixed, defined, accountable period of extended detention. Abandoning reliance on the threshold test and adopting an extension of pre-charge detention will provide stronger judicial oversight and limits on detention under the authority of the DPP and judiciary.

There is no abandonment of fundamental principles in the proposals for extended pre-charge detention and no arbitrary detention. The protection of citizens and visitors to the UK is the reason for the proposals and that makes this choice a difficult but correct one.

Garry Hindle
Head, Security and Counter-terrorism
RUSI

 

 

The views expressed above are the author's own, and do not necessarily reflect those of RUSI

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