Lords reject 42 days
Once again proving how invaluable they are, by a majority of 191.
A few people have accused the opposition of trivial grandstanding over the number of days. I’m not sure an additional two weeks of anyone’s time is trivial – mine certainly isn’t, not to me anyway – but it’s not just about the number of days, it is also about the process, the further erosion of habeas corpus, and the proposed involvement of legislators in what should be a judicial function.
I think it is the Government that can be reasonably accused of grandstanding, of playing politics with people’s lives, and of trying to look tough in order to shore up the support they so desperately need.
Lord Dear (Crossbench), a former chief constable, opened last night’s debate with “six solid reasons” why he was against it:
we have never come close to running out of time, and if we did we could use the existing law; no other common-law country has more than a 12-day limit;
– no-one, as far as I can see, addressed that particular argument –
there is massive opposition to this suggestion from some of the most influential and respected quarters; the suggested mechanisms, or procedures, are unworkable; and there is a risk of a fundamental backlash. This legislation is fatally flawed, ill thought through and unnecessary. …
My sixth point is that, perhaps worst of all, the legislation seeks further to erode fundamental, legal and civil rights that have been the pride of this country for centuries. Simple mathematics will tell us that 793 years ago Magna Carta declared in one line:
“‘To no one will we sell, to no one deny or delay right or justice”.
We have recommended that principle to the rest of the world and have in part fought wars to preserve it. It set our legal system apart from the world for many years and it was held up as an exemplar. We have gone far enough. There is no proven case for change. This attempt to appear tough on terrorism is a shabby charade that is unworthy of a democratic process, and we should reject it.
Lord Thomas of Gresford raised some interesting points about what happens after arrest and during detention under the current 28 day regime:
… detainees are taken to the police station and told nothing for many days of the basis upon which they are there. In Operation Overt, it emerged that disclosure was virtually non-existent for the first week of custody. Disclosure is, of course, where the police tell the defence solicitor, if there is one, of the nature of the matters about which they intend to question the suspect.
Over the first four days of their detention, there were only three hours, on average, of total questioning of each detainee—three hours over four days each. Rather than being about any offence they may have committed, the questioning was mostly about their personal circumstances and background.
Those who were charged after 15 days—the first group—were interviewed in total for 13 to 14 hours each. That is rather less than one hour a day. Those who lingered on to the end of the 28-day period before being released spent only the same amount of time overall—13 to 14 hours—in interview. Many days of their last 15 passed without any interview at all; the average was for 10 minutes a day. So extending time limits for questioning suspects seems to encourage a very leisurely approach.
Now, we don’t know whether or not police officers are in fact approaching it in a leisurely way. But surely we should be asking why there is little time in interview? There is probably a very reasonable answer, but no-one seems to have suggested one.
(I happen to think that there is a limit as to what the suspect could or would tell you, so the bulk of the time is keeping him inside while investigating other avenues – but that is speculation.)
And he is also concerned about the weaknesses of current extension hearings, which the Bill does nothing to address (an amendment to deal with these was also debated last night, subsequently withdrawn):
[the] weaknesses are these: the applications to extend time beyond the original 14 days may be made ex parte. In other words, the hearing, or part of a hearing, may be held between the prosecution and the judge in private and in the absence of the accused, or of anybody representing him. Secondly, information may be withheld from the detainee or his lawyers so that he is not told the state of play in the investigation against him. Mr Bajwa described how in one case he was given three applications, identically worded, to support three applications for more time in respect of the same detainee—the same wording for seven to 14 days as from 14 days to 21 and 21 to 28. In other words, nothing further was disclosed as to the state of the investigation.
Thirdly, the detainee has no entitlement to be brought in person before the judge. He may be dealt with by videolink from the hallway of Paddington Green police station. The judge, who is supposed to be monitoring his welfare, has the opportunity to see the detainee only on television. It is a brave person who complains about the circumstances of his detention when surrounded by his jailers.
Fourthly, according to the Crown Prosecution Service, cross-examination of the senior investigating officer to test the strength of the application is not a legal entitlement. The senior officer who is making the application is not required to answer questions by the detainee or his lawyer on the reasonableness of the application that he is making.
It is therefore no surprise that no application for extension has ever been refused and there has been only one occasion on which the number of days has been reduced. You can see why. The police tell the judge that they have plenty of irons in the fire. They say, “The investigation’s going well. You must trust us. If anything should turn up in our investigations, we want the detainee there so that we can question him about it”.
These are not proper, full, adversarial hearings. As the Joint Committee on Human Rights put it in its ninth report, issued on 7 February, the Bill contains,
“no additional judicial safeguards … and the existing … safeguards do not provide a proper opportunity, at a truly judicial hearing at which the parties are on equal terms, to challenge the reasonableness of the suspicion on the basis of which they are detained”.
In other words, the Government are using the judiciary as a convenient cover to give an aura of respectability to what is essentially executive detention.
I don’t understand Lord Carlile’s (Liberal Democrat) position, in particular:
We have heard it said that we are talking about the thin end of the wedge, but I see no such argument here. I see finality in the law of detention with appropriate protection from the judges.
He seems to be so sure, but he can only be speculating. We have already had debates on extending the number of days from 2 to 7 to 14 to 90 to 60 to 28 to 56 and now 42. Why on earth wouldn’t a future Government ask for a further extension, using the same argument as it is using now, that the time we currently have may not be enough in the future? We don’t know, and neither does Lord Carlile (unless he can see the future) what will happen.
He also said that,
As regards proportionality, how many people are these new proposals likely to affect adversely? Let us assume that the overall effect is adverse in terms of keeping people in custody. I believe that these laws might affect a maximum of five or six people in the next four or five years.
I would oppose the Bill if it was only one person in ten years who would be affected. Suppose you were locked up for 42 days and had done nothing wrong. Would you think that it’s fine, it was only one person who had been locked up? Of course not. You want to be able to challenge your detention before a judge and, while of course you want to cooperate with the authorities, you don’t want to be locked in a cell in Paddington. I don’t believe that the small number of suspects is an adequate justification, and besides, the small numbers is also speculation in itself – we don’t know how many suspects there will be in the future.
He did however say that “nothing would be lost” if the Parliamentary involvement in extension were to disappear from the Bill, so he’s not all bad!
Lord Anderson of Swansea (Labour) and Lord West, among others, made pretty much the same inadequate point as each other. Lord Anderson:
Would not a distinction between the normal limit and this one be that, if one is wrong, the consequences are quite horrific? This is not long firm fraud or a matter of that sort of complexity; multitudes of people could be killed and even more killed as a result, for example, of an al-Qaeda cadre obtaining dirty bombs.
Lord Tebbit (Conservative):
If the lack of this provision causes the police to fail to prevent a major terrorist outrage, what then? It might mean multiple fatalities, a strike against economically important infrastructure with great consequences, or it might mean that we fail to prevent an outrage as great as the detonation of a dirty nuclear device in a city centre, leaving it uninhabitable for years.
Another, Lord Imbert (a former Commissioner of the Metropolitan Police and former Chief Constable of Thames Valley Police), mentioned that no-one seemed to be considering the human rights of victims and potential victims:
I have been in contact with three of the senior officers who, following the 7 July 2005 terrorist attacks, were responsible for supervising the rescue operations and collection of evidence, which included the ghastly task of retrieval of body parts from trees, railway tracks and gutters. One of these officers has forwarded to me 17 foolscap sheets giving particulars of those who have no human rights at all, as they are all dead. He sent more pages giving details of the dreadful injuries to others, one of whom is a young woman who, some might argue, theoretically retains her human rights. The pity is, however, that she has no legs and, as for others who lost eyes, limbs and internal organs, that is how she will spend the rest of her life. Nothing became any better after 28 or 42 days; the pain and suffering get worse. These are the people about whose human rights I also care.
We could use such arguments in support of any terror-related proposal. Suppose we were considering indefinite detention, and all I need as a police officer is reasonable suspicion to keep you locked up. If I think you are not a terrorist, but you go on to detonate a bomb on a bus, is that an argument for indefinite detention? Of course not. We cannot wholly prevent these things from happening.
There is also the implication, as I have said a few times before, that the police will just sit on their hands and let a suspect blow up a bus. I have rather more faith in the police than that – if they know there is a plot, they will prevent it from succeeding. The problem with praying in aid the 7 July 2005 bombings is that we apparently had no idea they were going to occur. There is nothing we can do to prevent the dreadful success of plots that we know nothing about, no matter how many days people can be locked up for.
A few of the supporters mentioned the amount of evidence that the police have to work through – Lord Harris, for example, who sits on the Metropolitan Police Authority, so someone we should pay heed to. I have touched on this before, and it is a fair point, but it is also an argument for an increase in the amount of resources – the numbers of interpreters, computer analysts, or forensics analysts, for example – not just a matter of time.
The Government say, “Well, we have already given N billions more to the police and security services”, but I think the billions they plan to spend (of our money) on the ID card scheme would be much more usefully spent on interpreters and analysts and so on. Not to mention that it also seems to raise a question of public money against individual detention without charge.
I could also use the same arguments as Anderson, West, Tebbit and Imbert: suppose we chose to spend billions on the ID scheme instead of on interpreters and analysts, and then someone detonated a bomb on a bus? We wouldn’t forgive ourselves for not re-assigning those billions, would we?
Encryption was also mentioned – well, decent encryption is practically impossible to break in a reasonable amount of time, so that isn’t an argument for detention for N days but indefinite detention… alternatively we could use Part III of the Regulation of Investigatory Powers Act – power to require disclosure of the key, and if the key isn’t disclosed the suspect can be imprisoned for up to two years.
There is also the argument that it takes time for information to go back and forth, particularly internationally (e.g. I might talk with the authorities in Pakistan about a suspect). These are choke-points or bottlenecks. Well, again, that’s not an argument for a particular amount of time, 28 days, 42 days or whatever, it’s just an argument for time in general, and it’s based on speculation about the future.
Lord West said,
42 days is about right, bearing in mind that we are looking at going beyond 28 days, and at the moment, using my professional judgment, pragmatism and common sense, I do not envisage additional complexities that would require more than that.
This seems inconsistent because he – like Lord Harris – mentioned N computers, disks, addresses, jurisdictions, that have to be dealt with, for example 8,000 disks in a recent case. If X man-hours are needed to analyse one disk, 8,000 man-hours will be required to deal with 8,000 disks. If we seize 16,000 disks, we will need 16,000 man-hours. In this sense, I don’t see how 42 days can remain “about right” – you either need more time or you don’t, or you accept that the time is all you can have, and do the best with it that you can. But it is important to note that we don’t have to return the evidence after 42 days, just the suspect’s liberty.
Lord West also said,
I am convinced that there will be a complex case in the future where the police will need more than 28 days to bring the appropriate charges.
Now that could be a sticking point – “appropriate charges”. What are “appropriate charges”?
I recall the liquid bombing plot, where the authorities and some journalists (see also this and this) were upset that no-one was convicted of planning to blow up aircraft. However, three suspects were convicted of conspiracy to murder and conspiracy to cause explosions, the former will be punished by a life sentence and up to 40 years in prison, and the latter could be punished by up to 35 years (without their discount for pleading guilty to that particular charge).
So are the authorities interested in imprisoning people for offences that have been made a big fuss of (blowing up aircraft) but are harder to prove, or for offences that are a bit less interesting (conspiracy to murder) but apparently easier to prove?