UK Liberty

It’s for your own good

Posted in detention without charge by ukliberty on June 4, 2008

[hat-tip Harry’s Place]

Peter Clarke, former head of the Yard’s counter terrorism unit, in the Telegraph, implicitly asking for indefinite detention (as long as it takes).

Longer detention is about saving the public

In August 2004, Scotland Yard Anti-Terrorist Branch officers spent a fortnight sleeping on their office floor. Why? Because they had been given the job of winning the race against time to find evidence of terrorist planning buried in the encrypted files of dozens of computers seized during Operation Rhyme – the investigation into a terrorist network led by Dhiren Barot, the al-Qa’eda planner.

Let’s not pretend this debate is about encryption – if we have someone in custody who refuses to give us the key to decrypt his files we can put him away for up to five years.

Barot was a career terrorist who had been to training camps in Pakistan and the Far East. But we didn’t know what stage his plans had reached. We could not be sure that he or other members of his group were not going to launch attacks, even as we watched. The decision was made to arrest them, and they were promptly rounded up in London and Blackburn.

There was not a shred of evidence against them. The intelligence was clear – that he and his gang were planning attacks in this country, but there was no evidence that could be used in court.

The Barot case is a bit special because there was no funding, no bomb-making materials and so on. They planned a lot of attacks but didn’t have the resources to do it. No-one was in any immediate danger.

Not saying that is ‘right’; just saying that it isn’t like those terrorists who exploded their rucksack bombs on London transport, maiming and murdering, or the terrorist who drove his car into Glasgow airport.

At the time, terrorist suspects could be detained for 14 days. In this case, the pieces of the jigsaw fell into place on the morning of the 14th day. It was a very close call. We were minutes away from having to release a group of terrorists. Two years later, they pleaded guilty to plotting to make a dirty bomb and to kill fellow citizens in huge numbers.

Are we supposed to infer that the police would have sat on their hands had the suspects been released? I have more faith in the police than that.

Worth noting that the suspects would not have been able to set off their dirty bomb – they did not have one.

And yet, as Parliament prepares for the debate on the second reading of the Counter Terrorism Bill, we have to brace ourselves for another deluge of politicised comment on the proposal to extend the time terrorist suspects can be held.

It is politicised because that is how our representative democracy works and because of the subject matter. It is even more politicised because Gordon Brown has been pigheaded about ramming this through instead of – as was promised at the beginning – reaching a consensus (which turned out to be against extension).

The cross-party consensus that, for many years, helped guide the thinking on such issues evaporated in 2005. The parties blame each other for this, but the quality of the public debate has suffered. It is now difficult for counter-terrorist professionals to offer a view without being accused of political partiality.

That’s because some of you got involved with politics.

This case told us that things had to change. Plots that have been uncovered since Barot, and the attacks on London in 2005, show the terrorist threat is growing in scale and complexity. The argument has boiled down to this: is the perceived infringement of freedom proposed by the Bill so serious that to legislate on a precautionary basis cannot be justified?

In other words, is it a proportionate response?

This is a serious question, but finding the answer has been made difficult by the intrusion of party politics and an entire barrel of red herrings.

The use of telephone intercept evidence, post-charge questioning and shallow comparisons with foreign jurisdictions are examples of the latter. They have all been cited by MPs as reasons why the current period of 28 days could and should be enough.

No, they have been cited as other avenues we should be exploring as possible alternatives to extension of detention. Should we not be listening to legal professionals about law as we listen to counter-terrorism professionals about counter-terrorism?

But the linkage is artificial, founded on misunderstandings. Anyone who is involved in counter-terrorist investigations could tell you this.

It would help if we could shove aside both the politics and the fish.

For instance, critics claim that the proposal is a draconian extension of police powers. It is not. Detention would be a judicial discretion,

It is the police/CPS who will apply for it, the judge will decide whether or not to grant the application.

to be exercised following an adversarial hearing with both sides legally represented.

As they stand the judicial safeguards are inadequate, even for 28 days at present.

Parliament will be involved as well, under the current proposals. Again, this confuses the legislative and judicial functions. It damages the rule of law to have uninformed and biassed decision-makers involved in what should be the job of informed and neutral decision-makers.

This would be no rubber stamp. Indeed, the record of the judiciary in challenging the Government in terrorism cases suggests that any application for extended detention will be subject to the sharpest scrutiny.

I have also heard arguments that certain proposals in the Bill would remove the need to extend detention – this is a useful excuse for MPs looking to justify their support for 90 days in 2005, but who are now opposed to 42. The fact that there is a plan to allow suspects to be questioned after they have been charged is irrelevant. The vast majority of terrorist suspects maintain their right to silence, however long they are in custody. There is no reason to suppose this would change after they have been charged. The walls of Paddington Green police station rarely reverberate with outpourings of guilt and contrition.

Yet Barot & co. plead guilty!

And so to that other alleged panacea, the use of telephone intercept evidence. Of the dozens of terrorist investigations that I led over nearly six years, I can only recall a handful where the use of intercept would have made a difference. That’s not to say I don’t favour its use in evidence, but there would have to be fundamental changes to our criminal justice process in order to accommodate it, and that is a different discussion.

It’s a discussion we should be having in addition to (perhaps instead of) extending detention.

Comparisons with foreign jurisdictions are regularly rolled out, but as often as not they are looking at apples and pears. The assertions are often simplistic, selective and at times plain wrong.

But sometimes useful, particularly when we look at countries with similar legal systems and similar concerns about terrorism where the period of detention has not been extended to anything like 28 days. It begs the questions:

  • why don’t they do it?
  • what do they do differently?
  • could we do that here?
  • would that be better? etc

In this country, a suspect must be produced before a court within 48 hours of arrest. Whatever the fate of the Government’s 42-day proposal, this will not change. To suggest, as some do, that what is being proposed amounts to internment or the suspension of habeus corpus is extraordinary and misleading.

If the suspect is prevented from challenging his detention in a fair hearing that is a suspension of habeas corpus for him by definition!

The police have been accused of exaggerating the terrorist threat, supposedly for political purposes.

I wouldn’t accuse them of that. I accuse the Labour Government of doing that. I think one or two senior police officers have been rather more involved with the Government than they should, but I don’t accuse the whole service of playing politics.

The fact that this is untrue doesn’t matter – it creates a perception that resonates with some in the Muslim communities. In fact, the sheer weight of convictions and guilty pleas in terrorist cases has actually opened the door to a more useful discussion than was previously possible with those who were sceptical about the scale of terrorism in the UK. Will extending pre-charge detention put that at risk? My experience is that, as long as police actions are explained as soon as possible and result in convictions in due course, they receive the overwhelming support of all communities. I firmly believe the risk to community relations is overplayed.

When I was asked, in 2005, by the home affairs select committee how many terrorists I had been obliged to let go through lack of time to investigate, I inwardly despaired. It was the wrong question. We should look forward, not back. The fact that we have been able to convict more than 60 terrorists in the last year or so is irrelevant.

The better question would have been: “Is it likely that there will come a time when the present 28-day limit is insufficient?” The answer would have been, “undoubtedly”. That is why we should legislate now, and not in panic in an emergency.

No, the question should be, is it a proportionate response? it is the only sensible question.

The details of the 42-day detention plan may not be perfect, but the principle of being able to protect the public in extremis must be right. The checks and balances in our system prevent arbitrary detention. The judiciary have repeatedly shown their vigilance and independence. We should trust the judges and give the public the protection they deserve.

And while we’re at it – could we try, just for a moment, to take the politics out of this?

Easier said than done at this stage.

Can we also think about those we suspect who turn out to be innocent (eg Lotfi Raissi)? Will they be compensated after being wrongly detained, possibly traduced, losing their jobs…

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