UK Liberty

JCHR – still no case for 42 day detention without charge

Posted in detention without charge, law and order, politicians on liberty by ukliberty on May 17, 2008

On Wednesday the Joint Committee on Human Rights published its Counter-Terrorism Policy and Human Rights (Tenth Report): Counter-Terrorism Bill.

The Committee seems annoyed that the Government continues to fail to make a case for extending the period of pre-charge detention, that the Government failed to substantively respond to an earlier JHCR report on the issue, and that the Government has dismissed “an alternative, human-rights compliant package” and other recommendations.

Worth quoting verbatim one particular section:

In our view, while it would clearly be possible for there to be a parliamentary debate of some kind on the Home Secretary’s statement to Parliament about having made the 42 day limit available, it would not be possible for that debate to go into the details of the justification for extending the time limit for the purposes of the particular, ongoing investigation. The nature of that decision requires justification by reference to the particular circumstances of the investigation of the individual suspects.

The Home Secretary would tell Parliament that she has been advised by the police and the CPS that more time is required in order to investigate the individual suspects who are already being detained. In order for Parliament meaningfully to debate the correctness of that assertion, it will be necessary to refer to the detailed factual circumstances of the individual suspects, but such reference will be impossible because, as the DPP made clear in his evidence to the Home Affairs Committee, it might prejudice subsequent prosecutions.

In our view, the fundamental flaw in the Government’s proposal therefore remains: it confuses parliamentary and judicial functions by attempting to give to Parliament what is unavoidably a judicial function, namely the decision about whether it is justifiable to detain individual suspects for longer.

In our view, however, even if the Bill were amended in this way, it would not meet the objection above that any parliamentary debate will be so circumscribed by the need to avoid prejudicing fair trials as to be a virtually meaningless safeguard against wrongful exercise of the power.

The Government also got its own case wrong:

First, the Government asserts that “no challenge has ever been made” on grounds of incompatibility with Article 5 where suspects have been held under the existing maximum period of 28 days “and if there was even an arguable case you would expect there to have been such a challenge.”

In other words, the Government is inviting Parliament to infer from the fact that there have not been any Article 5 challenges under the existing law that there is not even an arguable case that the regime of extended pre-charge detention is in breach of Article 5. In fact, there has been such a challenge, by one of the first people to have their pre-charge detention extended beyond 14 days, a suspect [Nabeel Hussain] arrested in connection with the alleged Heathrow bomb plot in August 2006.

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