UK Liberty

another broken promise

Posted in detention without charge by ukliberty on December 17, 2007

From the JCHR report on the 42 day proposal:

64. The importance of the judicial safeguards which accompany pre-charge detention has been consistently emphasised by the Government throughout its consultation on whether there should be an extension beyond 28 days. Indeed, the Government’s preferred option has always been to extend the current 28 day limit with “additional safeguards”. Both the Prime Minister in his statements to the Commons and the bill contents paper refer to enhancing the judicial safeguards which already exist and about “further” judicial scrutiny, and the pre-charge detention options paper talked of balancing any increase in the limit by “strengthening the accompanying judicial oversight”. Judicial safeguards continue to be part of the Government’s description of what it proposes: in the Home Secretary’s letter of 5 December to the Chairman of the Home Affairs Committee, she emphasises that “the higher limit would be … subject to … strong judicial safeguards.”

65. In our last report, we welcomed the Government’s apparent commitment to enhancing the judicial safeguards surrounding pre-charge detention, and in particular the Prime Minister’s acknowledgment that proper judicial scrutiny is essential in order to guarantee against arbitrariness in the exercise of powers which take away liberty.[54] Our welcome proved misplaced: there are no additional judicial safeguards proposed as part of the Government’s preferred option for extending pre-charge detention.

66. We have been puzzled by this aspect of the Government’s proposals since the beginning of the consultation in July, for although there are repeated references in the consultation documents to increased judicial safeguards, no specific proposals were made in any of the consultation papers which amount to improving judicial scrutiny or strengthening the judicial safeguards. We were particularly concerned because we had very recently made detailed and specific recommendations about how to improve the current judicial safeguards surrounding pre-charge detention.[55] When the Minister, Tony McNulty, gave evidence to us in September he again referred to there being stronger judicial safeguards if the power to detain pre-charge were to be extended beyond 28 days,[56] so we pressed him as to exactly what sorts of additional judicial safeguards the Government had in mind.[57]

67. We received a disarmingly candid answer from Mr David Ford, Head of the Counter Terrorism Bill team. He said:

    “In terms of judicial safeguards, they are not really extensions. What we are saying is that it would be a High Court judge who would hear extensions beyond 28 days. The only change in terms of judicial safeguards would be that you could not apply for an extension beyond 28 days without the consent of the Director of Public Prosecutions. So you would continue with a High Court judge for any extension hearings beyond 28 days but there would be the additional thing that you would require the consent of the Director of Public Prosecutions.”[58]

Elsewhere in his evidence, however, Mr. Ford said that there may also be an additional role for the judiciary in terms of oversight of the pre-charge detention period.[59] We therefore wrote to the Minister again asking what stronger judicial safeguards the Government has in mind when it talks of strengthening those safeguards.[60] In the Minister’s response, he said that one of the options set out in the consultation papers was increased judicial involvement in the pre-charge detention period, and he said that the Government was now considering the nature of the judicial safeguards for any extended period of pre-charge detention and would keep the Committee informed of developments.[61]

68. In the event, Mr. Ford’s candid answer proved correct. In the Government’s announcement of its preferred way forward, the only additional “safeguard” surrounding applications for warrants of further detention is that applications for extension would require the consent of the DPP. It hardly needs pointing out that this is not a “judicial” safeguard, and it hardly seems a very substantial safeguard as it is already the case that applications for extension of detention are made by the Crown Prosecution Service not the police,[62] and it is inconceivable that the DPP would not be asked to consent to the making of such an exceptional application as one to extend pre-charge detention beyond 28 days.

69. The Home Office’s summary of consultation responses states that any support for an extension of pre-charge detention was on the understanding that there would be additional oversight to ensure that any further detention beyond 28 days was justified, and that most respondents echoed the view that there should be added judicial or Parliamentary scrutiny should the Government decide to go beyond 28 days.[63]

70. In light of the Government’s previous statements of intent to provide additional judicial safeguards surrounding pre-charge detention, and the apparent views of most respondents to the Government’s consultation that such additional judicial safeguards should be provided if any extension to 28 days is proposed, we recommend that the Home Secretary provide Parliament with a full explanation as to why the Government has decided not to propose any additional judicial safeguards.

And they wonder at the lack of trust in politicians.

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2 Responses

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  1. […] hearing or an opportunity to challenge the basis on which someone is being detained”.  Despite promises, no additional safeguards have been proposed for 42 day […]

  2. […] see this earlier article about the broken promise regarding ‘judicial safeguards’ – ie there are no proposals for judicial safeguards, despite lots of talk about “there will […]


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