Opposing 42 days of pre-charge detention
Posted by: Richard in Campaigns, Glasgow, Personal, Politics, UK, tags: civil liberties, libertyI’ve been a member of Liberty for a few years now. For an organisation of its size, it makes a considerable impact in any debate on civil liberties, which I feel have repeatedly under attack by this Government, most recently with the unnecessary proposal to increase pre-charge detention from 28 to 42 days.
I find this proposal objectionable in the extreme. It further undermines fundamental liberties we used to enjoy, and despite the concessions being offered by the Government (Which, to me, smack of political desperation: Just listen to the concessions supposedly being offered to “rebels”), gives the UK the longest period of detention of any comparable democracy. That Sir Ken MacDonald, the Director of Public Prosecutions – the man who will charge the people detained – is opposed to it’s six week period.
There is a survey that suggests 60% of the public support this measure, but I worry that this reflects a knee-jerk response to a question that draws on fears which have been built up (in my view rather cynically and with political motivation, rather than based on evidence) over the years. Put simply, try to imagine what it would be like to be locked up, without knowing the reasons why, for six weeks?
The desperately frustrating thing is that there are genuine and solid alternatives that appear to be being dismissed: allowing the use of intercept evidence in court, post-charge questioning and, if needed in a genuine crisis (which the Government makes such an issue with), using powers that already exist in the Civil Contingencies Act 2004.
Whilst my MP Tom Harris is almost certain to vote for these measure (he’s a minister), to ensure that he’s properly aware of my objections and the issues I hold important when I come to decide who to vote for at the next election, I’ve today written to him through the excellent writetothem.com website. My letter appears below. I’d suggest anybody else who cares about this matter to consider writing themselves.
Some other resources:
- Sign the petition on the Prime Ministers website.
- Read Liberty’s suggestions on what to do
- Review the campaign details (PDF)
- Join Liberty.
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Dear Mr Harris
I am writing to request you oppose the increase in pre-charge detention for terror suspects. Six weeks is already a longer period of detention than any other comparable democracy, and gravely undermines key principles in our democracy and legal system.
Most importantly I feel strongly that there are more appropriate alternatives to extending detention without charge. Allowing the use of intercept evidence in court, using post-charge questioning, or even using powers that already exist in the Civil Contingencies Act.
I’d therefore request that you consider joining your colleagues and vote against any provisions or amendments in the Counter-Terrorism Bill that extend pre-charge detention.
Yours sincerely
Richard Leyton
Note – If you are going to write to your MP, please consider using your own words. Mine is structurally based on the Liberty suggestion, but I’ve tried to make it my own whilst covering the key points. Copy and pasted letters are rarely given the same attention by MP’s and their assistants that a hand-crafted letter does.
So far, I’ve always had a response from the MP’s I’ve had over the years when writing, although (ironically perhaps), they’re frequently standard responses rehashing the official line and saying very little that’s new.
Entries (RSS)
June 11th, 2008 at 5:23 pm
Tom Harris clearly employs some efficient staff in his MP’s office. Only a few hours after sending it, I’ve received a very long and certainly detailed response. Nice as it would be to think it was a personal letter, the workload of MP’s means it’s got to be reasonable standard for an issue like this.
Tom Harris’s response is therefore copied below for reference. It’s a very long and detailed response, but doesn’t surprise me that there’s no sign he’ll be voting against the governments measures.
r.
Dear Mr Leyton
Thank you for contacting me with your thoughts and concerns on certain
elements of the proposals in the forthcoming Counter Terrorism Bill.
The terrorist threat that we face in this county today is of an order
and scale not seen before. Recent estimates put the number of individual
terrorist suspects at more than 2000 and experience has demonstrated
that the nature of that threat is increasingly complex, sophisticated
and in a state of constant evolution.
To that end our security agencies are finding their resources,
considerable though they are, to be increasingly stretched by the level
of investigation required in the current climate and see no reason why
this trend should do anything but continue. In order to protect the
public it is vital that our legislation is kept under constant review to
ensure that it remains adequate and proportionate to that threat. The
government is always mindful of not seeking additional powers for the
sake of them and upholds the importance of balance between measures
necessary to counter threats to national security and preserving the
civil and human rights of the population.
In line with the need to maintain relevant and appropriate legislation
we must first understand the nature of the threat that we face and to do
this it is essential that we are in possession of a functioning
definition of that threat. In his report published 15 March 2007 Lord
Carlisle concluded that the risks posed by terrorism and its nature as
crime are sufficient to necessitate proportional special laws to assist
prosecution, disruption and detection and as such a definition of
terrorism is useful as part of such laws.
Following Lord Carlisle’s review of the current definition of terrorism
it was found that although no single definition commands international
approval, the current definition as set out in the Terrorism Act 2000 is
consistent with international comparators and treaties.
Accordingly terrorism is defined as the use or threat of action
involving: serious violence against a person; serious damage to
property; risk to a person’s life other than that of the person
committing the action; serious risk to the health or safety of the
public or section thereof; or, serious interference or disruption to an
electronic system where that use or threat is designed to influence the
government or to intimidate the public or section thereof, and/or is
made for the purpose of advancing a political, religious or ideological
cause.
The use or threat of action involving the use of firearms or explosives
against person or property or which endangers public health and safety
or which is designed to interfere with or seriously disrupt an
electronic system is classed as an act of terrorism whether or not it is
designed to influence the government or to intimidate the public or
section thereof.
This definition does not limit such actions to the population or
government of the UK and includes any action taken for the benefit of a
proscribed terrorist organisation.
Wherever possible, non-terrorism specific criminal law should be
employed in the prosecution of relevant offences and that where special
laws are used, the discretion vested in the authorities involved is a
real a significant element of protection against the abuse of rights.
Threats against property are included so as to encompass actions against
essential infrastructure such as air traffic control facilities,
strategic transport networks and utility installations as an attack on
such property would pose grave consequences for national security and
public health and safety.
The Bill proposes the introduction of new terrorist offences relating to
the eliciting, publishing or communication of information relating to
members of the armed forces where that information is of a kind likely
to be useful to a person committing or preparing to commit an act of
terrorism. Though this behaviour or activity would likely result in the
attention of the relevant security agencies it would be a defence for a
person suspected of such an offence to prove that they had a reasonable
excuse for their actions.
Persons or groups found to be for example financing or disseminating
propaganda on behalf of or for the benefit of such proscribed groups are
promoting and facilitating the goals and practices of terrorism and
whilst not actually committing such acts themselves should be prosecuted
in a manner that reflects the gravity of the crimes intended or
committed.
With regard to your concerns on proposals to extend the period of
pre-charge detention let me assure you that there are no government
plans to extend the period of pre-charge detention on a permanent basis.
After considerable consultation it has been confirmed that the only
permanent statutory provision for pre-charge detention, 14 days – which
itself must be authorised after 48 hours by a judge – remains adequate.
It has also been confirmed that the present temporary provision on 28
days remains appropriate in terrorist related cases and will continue to
be reviewed annually by parliament. However, the consultation also
presented a requirement to address the projected evolution of the
terrorist threat and given that there are already cases that have
involved the use of the full 28 day period before a charge could be
secured, the government feels it prudent now to prepare and provide our
security services with the tools they will need in the coming years.
This Bill does not propose a permanent statutory pre-charge detention
period of 42 days. The Bill proposes a RESERVE POWER that would provide
an ability to temporarily extend the current temporary upper limit of 28
days on an incremental basis to a maximum period of 42 days. It has been
made very clear that this provision would only be made available in the
most serious of circumstances and then would have to satisfy a number of
safeguards and oversight procedures.
Primarily a clear and comprehensive case would have to be made by the
relevant agencies to the Home Secretary based upon the prevalent threat
assessment. If the government was satisfied that this assessment merited
the implementation of the proposed RESERVE POWER the temporary extension
of the pre-charge detention period would come into force for no more
than two months and would be subject to full parliamentary scrutiny as
soon as was practicable.
If the temporary power was enabled by parliament the pre-charge period
would still operate in exactly the same way as it does at present – any
extension past 48 hours requires the express approval of a judge who
would only be empowered to grant up to 7 days extension at a time based
upon their assessment of the case as it was put to them. Should the
powers be approved and then utilised parliament will be told of any
person or persons held under them and will retain the right to quash its
implementation and then order the release of those held therein.
Further, each application for extension, successful or not, will also be
subject to full independent review.
With regard to proposals on post-charge questioning, under the current
Police and Criminal Evidence Act 1984 suspects can be questioned after
charge in defined circumstances with particular emphasis on the
prevention or minimisation of harm or loss to the individual, the public
or any section thereof. Such circumstances are inherent in most
terrorist investigations and as such it is proposed that the ability to
question post-charge be afforded subject to several safeguards.
The government has proposed that a given terrorist suspect may be
questioned post-charge on any aspect of the offence for which they have
been charged and would retain the same rights as do currently apply to
pre-charge questioning, i.e. the right to legal advice, the right
against self-incrimination and freedom from oppressive questioning.
Should further or new evidence come to light during the course of
post-charge questioning the suspect should be re-arrested and processed
accordingly.
Where a suspect employs the right to remain free from self incrimination
and remains silent during post-charge questioning it is proposed that an
empirically supported case can be made using negative inferences from
said silence but that such evidence would remain subject to a judge’s
direction of or advice to a jury. In short, the time sensitive nature of
possible real-time terrorist investigations could and does require the
ability to employ inferences when supported by evidence but which must
and will remain subject to the discretion and guidance of the relevant
judicial authority.
With regard to inter-agency information exchange, a government review of
existing counter-terrorism legislation has identified enhanced
information sharing as a key response to the terrorist threat. The Data
Protection Act 1998 and Article 8 of the European Convention on Human
Rights affords the right to privacy to the individual and prohibits the
use of personal information for any purpose other than for which it was
provided or obtained without the express permission of said individual.
The Bill proposes enabling the inter-agency exchange of relevant
information without an individual’s consent subject to approval from a
Minister of the Crown, Attorney General or Advocate General and will
carry the right of appeal to the Information Commissioner by any
individual directly affected.
On the matter of Control Orders and increased powers to limit the
freedoms of convicted terrorists upon completion of their sentences, the
discretionary application of travel prohibitions or notification orders
relates specifically to the perceived risk that remains post-sentence.
The Bill proposes that people convicted of terrorist or terrorist
related offences and who have been sentenced to more than 12 months
imprisonment, should be subject to notification requirements and could
be made subject to foreign travel orders where there was reasonable
cause to believe that they had acted in a way that made it necessary for
an order to be made to prevent them from taking part in terrorist
activity outside the UK.
Terrorism is a motivated crime and it is not uncommon to closely monitor
serious offenders post-sentence. For example, many sex offenders are
required to make themselves and there whereabouts known to the local
authorities; also, convicted football hooligans are sometimes subject to
travel restrictions to prevent violent conduct oversees and are also
prevented from attending certain sporting events domestically for the
same reason. Despite conviction and sentencing, it is a fact that
certain criminals retain the motivation or desire to commit further such
actions. It is therefore not unreasonable to provide the security
services with the ability to monitor and or restrict such behaviours or
potential activities where they relate to terrorism.
In line with information exchange and control orders this Bill proposes
the taking and retention of fingerprint and non-intimate samples, such
as saliva, from recordable offenders and persons subject to relevant
control orders without consent and the provision of powers to check this
information against relevant national and international databases in
conjunction with relevant law-enforcement and security authorities. The
collection and retention of this information from persons subject to
control orders who have not received custodial sentence or who cannot be
prosecuted or deported would remain subject to the prevalent threat
assessment and public interest. As with all issues regarding personal
information, any individual directly affected would retain the right of
appeal to the Information Commissioner.
With regard to the freezing or seizing of assets suspected or known to
be used in connection or support of terrorists or terrorism, this Bill
proposes an amendment to the Regulation of Investigatory Powers Act 2000
that would enable the use of closed source material, such as intercept,
as is currently the case in control order, proscription and deportation
cases, without compromising that evidence by making it public AND will
put in place procedures to govern legal challenges to asset freezing
decisions, which will afford the appropriate protection to sensitive
material and capabilities – namely the statutory provision of special
advocates in closed hearings. While the power to seize or freeze such
assets remains an executive action and the responsibility of HM
Treasury, the use or proposed use of closed source material and its
retained confidentiality would remain subject to court approval, and ,
in the instance of approval HM Treasury would be required to provide a
summary of materials used, subject to public interest.
Finally, on the matter of inquests and inquiries, the Bill proposes the
amendment of the Coroners Act 1988 to enable the Home Secretary to
certify, subject to threat assessment and public interest, that the
inquest would involve the consideration of material that should not be
made public in the interests of national security, international
relationships or otherwise in the public interest. Such a certification
could be made at any time before or during an inquest and would involve
a hearing without jury and could likewise be revoked at any time before
the conclusion of that inquest.
Article 2 of the European Convention on Human Rights establishes the
right to life and requires states to protect life proactively and to
refrain from taking life intentionally. According to Article 2 any death
in state custody must be independently investigated as a matter of
initiative in prompt and transparent manner so as to ascertain
responsibility with a view to prosecution and to involve the full
participation on the next of kin. Whilst this Bill proposes an ability
to conduct such an inquiry in private, subject to matters of national
security and public interest, it does so with the understanding that
Article 2 remains paramount.
I do hope that you find this information of use and would certainly
welcome your further thoughts.
Best wishes
Tom Harris
June 15th, 2008 at 12:18 am
I noticed Tom Harris, like most of the people who voted for the measure, didn’t even try to explain where the 42 days comes from. Why not 52? Why not 32? His arguments would allow him to make a case for 942 days, and someday somebody will try for that.
It reminds me of South Africa, in the bad old days.
The vote succeeded; another blow for liberty, justice and freedom in the UK. Now it’s up to the Lords.
June 20th, 2008 at 2:07 pm
[...] a weblogger myself(!), and a constituent with no party affiliations (but plenty of opinions, as Mr Harris himself will have recently discovered after I wrote to him about 42 days detention), I plan to keep a bit more of an eye on his weblog in future. It’s certainly to be commended [...]