42 days will only be used against terrorists

So what’s the fuss about 42 days?

Take Keith Vaz (somebody, please), chair of the Home Affairs Committee, and supporter of the legislation, who wrote a letter to his colleagues saying that,

We are adamant that the legislation will affect only those who would use terrorism against our people.

An opinion voiced by many people, albeit in not so many words.

This is something fairly normal if coming from the public, who don’t make / have time to think about these things (not being patronising, just that I’ve found people change their minds after they have a think), but quite extraordinary coming from an MP, particularly one with an interest in the legal system (Keith Vaz was a solicitor before he became an MP): firstly because it’s plainly irrational if you stop to think about it  (it’s like saying the law against homicide will only be used against murderers); secondly because history suggests he will be proved wrong.

Anyone with the slightest interest in the law must be aware that some people who have been arrested and detained later turn out to be innocent – a minority I am sure, but nonetheless they are innocent. Indeed, some innocent people have been detained all the way up to the end of the 28 day detention period we have at present.

Try to imagine what happens to their mental health, their physical health, their relationships, their employment, their reputations when they are traduced by politicians and journalists.

Try to imagine what would happen to you, to your life, if as an innocent you were nevertheless detained for 7, 14, 28 days, 35 days, 42 days.

I am not impugning the motives of police officers. But the case of Lotfi Raissi is instructive. I don’t doubt that the prosecutors and police honestly believed he was a terrorist. Nevertheless they abused the legal system in order to keep this innocent man in Belmarsh prison for five months, and over six years later,

One by one, over the course of ten court hearings, Mr Raissi’s solicitor proved that the allegations and the evidence to support them were false, if not fabricated.

Five people were held for 27 to 28 days as a result of Operation Overt, the investigation into the plot to detonate liquid explosives on aircraft while in flight. Of those five, three were released without charge or further suspicion (no surveillance, no control orders). The evidence required to charge the other two suspects was obtained within four and twelve days respectively, it wasn’t encrypted, it didn’t require forensic analysis, and it didn’t require foreign intelligence.

So the issue is more complex and important than it first appears.

Now, it seems reasonable to demand a justification for any change to the law, so what is the case for a longer period of detention?

The scale of the threat

Jacqui Smith, Home Secretary, last Wednesday:

First, the threat is unprecedented in scale. Some 65 terrorists have been convicted in our courts since the start of 2007, and there are more than 200 groupings and 200 individuals of concern to agencies in the UK today. Secondly, the threat is more ruthless than any we have faced before. It aims for mass casualties, uses suicide methods, and would use dirty bombs given half a chance. Thirdly, the threat is more complex and international than ever before.

Terrorists living and working in our society have learned how to use technology to cover their tracks. They travel a network, sharing experiences and learning from mistakes. Terrorist plots in this country now almost invariably involve multiple connections to many countries overseas. That alone creates huge technological and logistical challenges for investigators.

But as Andrew Dismore said:

During Public Bill Committee it became clear that, not only have the Crown Prosecution Service (CPS) been working comfortably within the 28 day limit, but for the last nine or ten months they have been working comfortably within the 14 day limit.

Sue Hemming, the Head of the CPS’s Counter-Terrorism Division, told the Public Bill Committee that there has been no need to make an application to extend pre-charge detention beyond 14 days since the investigation into the attack on Glasgow airport in the summer of 2007.

Also Sir Ken MacDonald, Hemming’s boss as Director of Public Prosecutions, right at the top of the Crown Prosecution Service, backed up this view in his evidence to Committees.

It is important to note that Jacqui Smith accepts we do not need the measure at present – as she put it, it is for a “hypothetical need”.

Furthermore, the measure is not about the everyday ‘threat’, it is about a public emergency, or as Tony McNulty said as an example, “two or three 9/11s on the same day”.

Although the Government’s proposals are rather more broad (this fits their modus operandi).

The growing threat

The Government claims the threat is growing, but they have provided no evidence that it is, nor has anyone else.

The Joint Committee on Human Rights:

We have indicated to the Government the sort of evidence that we would like to see concerning the level of the threat. We pointed out in our Report on 42 Days that it is not satisfactory to infer an increase in the level of the threat from bare statistics about the number of convictions or the number of people charged with terrorism offences, in the absence of more qualitative analysis of, for example, the seriousness of the charges brought and the number of convictions secured in the last year compared to previous years.

No such qualitative analysis has been forthcoming from the Government. Nor is it satisfactory to draw inferences about the level of the threat from the number of active investigations, the number of suspects, nor the number of prosecutions. An increase in the number of investigations, suspects, people charged or convictions may be consistent with an increased level of threat, or could be due to other factors.

Complexity of cases; numbers of computers, mobile phones and disks

Supporters often reel off statistics to support the argument for longer periods of detention.

Martin Salter, for example, in the Commons last Wednesday:

In 2004, some 19,000 exhibits were retrieved and registered in terrorist investigations. They rose to 51,000 in 2005 and to 68,000 in 2006. Statements, messages and documents created rose from 33,000 to 62,000 to 83,000 to 91,000 last year. Action and lines of inquiries created rose from 16,000 to 28,000 to 40,000 to 42,000. Total records for legal consideration and disclosure rose from 69,000 right up to 197,000 in 2007.

There is absolutely no doubt that terrorist networks have become more sophisticated and adept at using information technology and the latest techniques available, first to avoid surveillance, secondly to communicate with each other and thirdly to commit atrocities. We have to be cognisant of that fact.

It is a matter of public record that in 1997 the UK security services seized just 19 mobile phones, one computer and seven computer discs in their terrorist investigations. Ten years later those figures had risen to 16,000 mobile phones, 353 computers and 2,541 computer discs. Yes, we can increase resources, no, we should not deny the fact that terrorist technology is on the march.

I’m unaware of anyone of sound mind who has argued that ‘terrorist technology’ has not kept pace with that available to the public. It is, after all, the same technology available to all of us – mobile phones, personal computers, writeable CDs and DVDs, email, encryption software.

Such figures support the call for more resources, not simply more time.

Ah, supporters say, the Government has already increased funding to the police and security services.

Martin Salter again:

The Government have doubled resources for the security services and a record amount of resources are going into counter-terrorism work.

Surely any answer along those lines wouldn’t invalidate the argument – if the authorities need more resources, they need more resources!

Something worth remembering is that the police do not have to release your personal computer or mobile phone when they release you from detention.

Perhaps also it is worth considering Parkinson’s Law: “work expands to fill the time available.”

Up against the buffers

Supporters claim we are “up against the buffers” – the Government, its pet MPs, Sir Ian Blair, chief of the Metropolitan Police Service and his head and former head of counter-terrorism, and the ACPO.

They pray in aid Operation Overt. But as has been pointed out, three of those suspects were released without without charge after being detained right up to “the buffers”. Two were charged based on evidence found within four and twelve days respectively. All the suspects charged with conspiracy to murder were charged within 21 days.

Again, since the attack on Glasgow airport in 2007,

there has been no need to make an application to extend pre-charge detention beyond 14 days

The Director of Public Prosecutions says we are operating comfortably, as does the head of counter terrorism at the CPS. Surely that is “enough said”. The CPS is after all responsible for charging and prosecuting people suspected of committing criminal offences.

What if those released go on to commit an atrocity?

Chris Bryant, last Wednesday:

Surely the only evidence that there could possibly be [for the Government’s case] would be a catastrophic failure of the criminal justice system that meant that the police were unable to charge somebody before the end of the 28 days and that person then going on to commit a major atrocity.

On the face of it this is a reasonable point, but we must again pause to think.

Not only is this another argument for indefinite detention, but it also implies the police – after letting someone go – will simply give up. I have much more faith in the police than that.

We should not legislate in the heat of the moment

I totally agree. But you should bear in mind that Parliament may be expected to vote on these measures in the “heat of the moment” – at the time of a public emergency – and to be frank, I expect more legislation in the heat of the moment, because politicians must be seen to be doing something, mustn’t they?

Furthermore, as Alistair Carmichael said,

People who hope to be due for re-election in two years’ time are not the best people to trust with the liberty of the individual.

Popular opinion

Of course supporters can point to public opinion when it comes to the detention of terrorists. Around 65% of the nation appears to support detention of people suspected of involvement in terrorism for up to 42 days.

Unfortunately they are not asked if they support the detention of innocent people for up to 42 days. I am certain the vast majority would say they don’t.

But regardless of polls, Parliament should not be enslaved to public opinion – the public is not always right. Of course elected representatives will be mindful of public opinion, but the current proposals were not in Labour’s manifesto and therefore they have no formal mandate from the electorate.

Furthermore, Parliament has a duty to defend our liberty against ‘the mob’, the ‘tyranny of the majority’, and politicians should be forthright and principled enough to make a stand.

What if the legislation isn’t passed by Parliament?

Having built up the threat, and staked so much on it, and despite having made no case for it, the Government is unlikely to back down now. They might back down if the House of Lords kicks it out – they might say, “well, we tried to be tough, we tried to do what you wanted us to do, but those nasty unelected politicians wouldn’t let us.”

They would save face, which at the moment seems to be their primary aim, and score some popularity points against the Lords.

If they did give up, among other things they could:

use Article 15 of the European Convention on Human Rights

The Government already has the legal power to detain for longer than 28 days, indeed indefinitely, in a genuine public emergency. This power comes from Article 15 of the European Convention on Human Rights, and our Human Rights Act.

The Government derogated from the Convention two months after 9/11, when Tony Blair was Prime Minister, and several people suspected of involvement in terrorism were as a result indefinitely detained in Belmarsh.

The Joint Committee on Human Rights wrote of Article 15:

We have no difficulty in accepting that a co-ordinated, large-scale attack on a nation’s political, military and financial institutions, which of course is what happened on 9/11, constitutes a public emergency threatening the life of the nation. In such an extreme scenario, human rights law already provides the framework in which exceptions from the usually applicable norms are permitted, in the form of derogations.

The ECHR provides for such a derogation where there is a “public emergency threatening the life of the nation” and the measures taken are “strictly required by the exigencies of the situation” and consistent with the UK’s other international obligations.

The right to liberty in Article 5 ECHR is not one of the Convention Rights from which no derogation is permitted. Such a derogation requires a public statement by the Secretary of State that there is an emergency threatening the life of the nation, and of the justification for the measures taken in response to that emergency.

Incidentally, the UK is the only country out of 45 in the Council of Europe to have derogated from Article 5 and the only country in the world to have derogated from Article 9 of the International Covenant on Civil and Political Rights.

The Government’s examples of an emergency meeting the definition in this proposal include “two or three 9/11s on the day”. That seems a reasonable example, doesn’t it? So why wouldn’t they use Article 15?

Perhaps because it involves a tighter definition of public emergency than the one in the legislation as it stands, and rather more safeguards than the Government would like.

put threshold charges on a statutory footing (or let them proceed ‘as is’)

There are today two different types of charge. The norm in criminal cases (including terrorism) is a “full code charge”, or “full test”, where the charge is only made if a conviction is thought “more likely than not” to succeed. This is to protect us against cases with no realistic chance of success, for example those proceeded with frivolously.

But half of terrorism cases in the past few years have proceeded from “threshold charges” – a charge based on reasonable suspicion the individual committed the offence, based on admissible evidence (note that an arrest itself may be based on inadmissible evidence). 92% of such cases have resulted in convictions.

Chapter and verse is available from the JCHR website, as is the JHCR’s explanation.

More suggestions, such as post-charge questioning, making intercept evidence admissible, and using the Civil Contingencies Act, can be conveniently found in the JHCR’s publications.

What is at stake?

We have (or had) a tradition of liberty in this country: the presumption of innocence, habeas corpus (the right to challenge the circumstances of your detention), the right to a fair trial and so on.

All are hallmarks of a civilised society and great principles that we have exported around the world.

These are not principles to lightly get rid of, especially when there is no case for change.

The proposals seem unworkable, illegal, illogical, and just plain wrong.

The extension of detention proposals come from a desperate Labour Government trying to outflank the Tories on law and order issues, trying to look tough on terrorism.

They have spent some time propagandising the threat – I’m not claiming there isn’t one, I’m saying that they have done well out of making us be more afraid than we should be – but they ran out of reasonable suggestions a long time ago.

In addition, as Michael Mates put it,

The trouble is that the moment the Government realised that they had to start making concessions, they did not make the Bill better—they made it rather worse.

Last Wednesday it became a matter of saving Gordon Brown. That is hardly a justification for increasing detention without charge or for eroding the rule of law.

The Labour Government has been salami-slicing away our liberties for the last eleven years.

But the law should not punish wrongdoers – it must also protect the innocent from the authorities.

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