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Extending Detention without Charge

The current effort to extend the maximum time period terrorism suspects may be held before being charged reflects a long-standing interest of British authorities. The current proposals represent the fourth time in six years that the government has sought to extend pre-charge detention in terrorism investigations. The Terrorism Act 2000 instituted a seven-day period, following extensive parliamentary debate, and a 14-day maximum was secured through a last-minute amendment to what would become the Criminal Justice Act 2003. In 2006 a government effort to extend pre-charge detention to 90 days was the subject of contentious debate in Parliament. A 28-day limit was eventually established in the Terrorism Act 2006.

Twenty-eight day’s pre-charge detention is seven times longer than the maximum four days suspects may be held on suspicion of other serious crimes, inc luding murder.

The government has now set out four options for extending pre-charge detention in terrorism investigations.¹ Its stated preference is to legislate now to extend the current limit, and Prime Minister Brown has suggested adding another 28 days, taking the maximum to 56 days.² A second option would involve creating a similar power that would come into force at some future date when deemed necessary and subject to an affirmative resolution in Parliament. The third option is to leave the current limit in place and have recourse to the emergency powers under the Civil Contingencies Act 2004, which provide for 30 days’ detention, in addition to the standard 28-day period, in a declared state of emergency. Finally, option four contemplates a revolutionary change in criminal procedures by introducing judge-managed investigations modeled on the examining magistrates’ system in civil law countries such as France and Spain. We analyze these four options below.

Damaging Impact on the “Battle for Hearts and Minds”

Human Rights Watch believes that extending pre-charge detention beyond 28 days is not only unnecessary but also deeply misguided.

Soon after taking office as prime minister in June 2007, Gordon Brown acknowledged the importance of winning “the battle of hearts and minds” in the struggle against terrorism. Since the July 2005 attacks in London, preventing radicalization and recruitment (the “prevent” strand) has been at the heart of the UK’s counterterrorism strategy.³ The strategy states that one of the key elements of prevention is:

Engaging in the battle of ideas – challenging the ideologies that extremists believe can justify the use of violence, primarily by helping Muslims who wish to dispute these ideas to do so.⁴

Extended pre-charge detention runs directly counter to this goal. It is likely to feed resentment and erode public trust in law enforcement and security forces among communities whose cooperation is critical in the fight against terrorism. 

Lord Paul Condon, former Metropolitan Police commissioner, warned in December 2005 that the debate around extended pre-charge detention had already generated fears in law-abiding communities:

If we now go back and make it look as though we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women—to all other intents and purposes, they are good people—to be misguided, brainwashed and induced into acts of martyrdom.”⁵

Were detention time-limits further extended, the risk of unjust extended detention is significant. According to Home Office statistics, 669 out of 1,228 individuals arrested as part of terrorism investigations between September 11, 2001, and March 31, 2007, were released without charge.⁶ It is therefore reasonable to expect that the new powers would lead to terrorism suspects—many if not most of whom would doubtless be British Muslims—being detained for months and then released without charge. Terrorism suspects subject to pre-charge detention for more than 14 days are often held at Belmarsh prison, in southeast London.⁷

The prospect of Muslims detained for extended periods at Belmarsh without charge evokes the experience of indefinite detention of foreign Muslim terrorism suspects, mostly at Belmarsh prison, under Part IV of the Anti-Terrorism Crime and Security Act of 2001. Although extended pre-charge detention with an upper limit is of a different quality to indefinite detention without trial, it will affect far more people and risks being viewed as disproportionately targeting Muslims. Moreover, the government’s option four would, in essence, allow for unlimited pre-charge detention.

The policy of indefinite detention, ruled unlawful by the House of Lords Judicial Committee in December 2004, is widely accepted to have had an adverse impact on race and community relations in the UK. The Islamic Human Rights Commission suggested in 2004 that detention without trial of Muslims under Part IV fed into the “demonization” of the Muslim community in the UK and cautioned,

Men who are released without charge after months or years in detention may never again trust a law enforcement official... If there are indeed a handful of Muslims who may wish to use violence to resolve grievances, they may be protected by sections of the community unwilling to cooperate with the authorities... A community which perceives itself as under threat from the rest of society may sympathise with such individuals and their aims.⁸

In a major study on the link between community relations and counterterrorism published in December 2006, the think-tank Demos concluded that the “growing sense of grievance, anger and injustice [among British Muslims] inadvertently legitimises the terrorists’ aims.”⁹ It is worth noting also that any proposal for unlimited pre-charge detention has strong echoes of the disastrous policy of internment in Northern Ireland, which is widely acknowledged to have alienated communities and promoted support for paramilitarism.

Measures that undermine human rights carry an immediate practical cost. Successful policing, and preventing and prosecuting terrorism, require public cooperation, and in particular tip-offs about suspicious activity. Confidence in the police among Muslims in the UK is already low: a telephone poll in April 2007 for Channel 4 News of 500 Muslim adults found that 55 percent of those questioned said they had no confidence in the police.¹⁰ Lacking confidence that the authorities will act justly, neighbors, acquaintances, and relatives are far less likely to report suspicious behavior. The risk may be even greater if they know that those arrested as a result of their tip may face extended detention without charge. The Home Affairs Committee has acknowledged “the danger, which should not be underestimated, of antagonizing many who currently recognize the need for cooperating with the police.” ¹¹

Options 1 and 2: Extending Pre-charge Detention Time-limits

Human Rights Watch is resolutely opposed to a further extension of pre-charge custody time-limits. The current 28-day limit is already significantly longer than the maximum allowed in comparable legal systems, such as in the United States and Canada, and is by far the longest in the European Union.

Whether an extension in the time-limit to 56 days has immediate effect or requires further approval by parliament, the consequences of the power are the same. Detention for eight weeks without charge violates the fundamental right to liberty and security of the person and the associated protections against arbitrary state detention enshrined in international law. The government has failed convincingly to demonstrate that such a serious interference with the right to liberty is necessary, especially in light of existing and proposed measures for improving police investigative capabilities. The additional safeguards the UK government proposes are insufficient to meet the requirements of international law. 

Not shown to be necessary

Any interference with the fundamental right to liberty must be shown to be strictly necessary and proportionate. The government has acknowledged that there has yet to be a terrorism investigation where more than 28 days was required. As discussed below, options exist for addressing the stated concern that the complexity of terrorism investigations make it difficult to gather and process evidence within the current time-limit. Accordingly, the government has not shown the extension to be necessary.

Both the European Convention on Human Rights (ECHR, in article 5) and the International Covenant on Civil and Political Rights (ICCPR, in article 9) require that an individual arrested or detained on reasonable suspicion of having committed an offense must be “informed promptly” of the charge against him or her and “brought promptly” before a judge or other office authorized by law to exercise judicial power.¹² While international law does not establish a precise time-limit for preliminary detention, the consensus among human rights authorities is that the requirement of promptness should be interpreted conservatively. The European Court of Human Rights takes the view that “the degree of flexibility to the notion of ‘promptness’ is limited” and that consideration of the special features of any given case, including those involving terrorism investigations, cannot be taken “to the point of impairing the very essence of the right.”¹³

The government has not yet provided clear evidence that the current 28-day period is insufficient to allow police investigators to amass enough evidence to bring suitable charges in terrorism cases. In its own discussion paper on pre-charge detention, the Home Office openly acknowledges that “there has been no case in which a suspect was released but a higher limit than 28 days would definitely have led to a charge.”¹⁴ Metropolitan Police Commissioner Sir Ian Blair stated in February 2007 that “there is currently no direct evidence to support an increase in detention without charge beyond 28 days.”¹⁵ In November 2006 then-Attorney General Lord Goldsmith said he had not yet seen evidence to support an increase beyond 28 days.¹⁶

According to government information, the power to detain suspects beyond 14 days has been used in the course of three terrorism investigations since the power went into effect in July 2006.¹⁷ In the 2006 airline plot investigation, 9 of the 24 individuals arrested were detained for over 14 days. Of these, six were charged and three were released without charge. Those three were held for 24 days, 27 days and 16 hours, and 27 days and 20 hours, respectively.¹⁸ A recent report by the parliamentary Joint Committee on Human Rights (JCHR) notes that the fact that these three were released without charge very close to the end of the period “could be said, on the face of it, to raise concerns about whether the power to detain for up to 28 days is being used to detain those against whom there is least evidence.”¹⁹ Eleven of those charged in connection with the airline plot were charged within 12 days.

In the absence of evidence that the 28-day limit either prevented the police from bringing charges at all or forced them to bring lesser charges, the arguments in favor are all set in the conditional tense. Prime Minister Brown has said “there may be circumstances in which detention beyond 28 days could be necessary” while Metrop0litan Police Commissioner Blair has argued that “the complexity and scale of the global terrorist challenge, sophisticated use of technology, protracted nature of forensic retrieval and potential for multiple operations may lead to circumstances in which 28 days could become insufficient.”²⁰ Minister of State for the Home Office Tony McNulty has cautioned against focusing too much on evidence in the “narrow literal sense” as “this issue is as much about looking at where we are going over the next couple of years, in terms of the threat, as it is about assessing where we have come from.”²¹

Human Rights Watch takes the view that measures that seriously impact fundamental human rights should not be introduced on the basis of possible future need. We agree with the Joint Committee on Human Rights that any proposal to extend the current period of pre-charge detention “should … be justified by clear evidence that the need for such a power already exists, not by precautionary arguments that such a need may arise at some time in the future.²²

Alternatives exist

Even if the government were to convincingly demonstrate that the current period of pre-charge detention is insufficient, it should pursue human-rights-compliant alternatives before considering a measure with such grave consequences for human rights.

There are a number of options for improving police capacity to obtain and analyze evidence within existing pre-charge detention time-limits. Some of the powers, such as the offense of acts preparatory to terrorism, already exist. The impact of such measures should be fully assessed before any further attempt to interfere with the right to liberty.

These options include, most notably:

Post-charge questioning

The government has indicated its intention to seek legislation that will authorize investigators to question terrorism suspects after they have been charged.²³ It acknowledges that the power would “reduce pressure on investigators.”²⁴ Under the government proposal, consent of the suspect is not required, and any answers provided may be used as evidence at trial. Questioning must be limited to aspects relating to the terrorism offense with which the person has been charged. If the case goes to trial, in respect of post-charge questioning the jury may be invited to draw adverse inferences only if an individual has refused to answer questions and has failed to mention facts that he or she later relies on in his or her defense, provided the person has been able to consult with a lawyer beforehand. This is already the position for pre-charge questioning. Provided that adverse inferences are limited to those circumstances and a lawyer is present at all times, the proposed change does not unduly compromise the right to silence.

The House of Commons Home Affairs Committee, the Joint Committee on Human Rights, and the nongovernmental organizations (NGOs) Liberty and Justice have endorsed broadening post-charge questioning powers. Appropriate safeguards should be in place, including the presence of legal counsel at all times and a warning that adverse inferences may be drawn from a failure to answer questions.

Greater use of the “Threshold Test”

Normally, prosecutors must be satisfied that the evidence before them discloses a “reasonable prospect of conviction” before charging a suspect with a particular offense. This is referred to as the “Full Code [for Crown Prosecutors] Test.” In cases where there is insufficient evidence to meet this requirement, but authorities are convinced of the need to keep an individual in custody, prosecutors may apply a lower test (known as the “Threshold Test.”) This may be applied when there is reasonable suspicion, based on evidence admissible in court, that a suspect has committed a crime and there is a reasonable prospect that further evidence will become available.²⁵ The Code for Crown Prosecutors stipulates that the threshold test may be applied for a “limited period” and requires that the Full Code Test be applied “as soon as reasonably practicable.”²⁶ The use of the Threshold Test, for a limited period, could assist in complex investigations while preserving the rights of the defendant. Greater use of the Threshold Test in terrorism cases has been endorsed by the Joint Committee for Human Rights, the House of Commons Home Affairs Committee, and the NGO Justice.²⁷

Use of intercept evidence at criminal trials

Relaxing the ban on the use of phone tap and other intercept evidence would bring two benefits in the context of complex investigations. First, it would make it easier for prosecutors to assemble the evidence necessary to bring charges, since they could rely on intercept materials. Second, it might allow greater use of the Threshold Test since intercept evidence could provide a sufficient evidential basis for a “reasonable suspicion” of wrongdoing in terrorism cases (see below for a more detailed discussion of the intercept ban).

The government contends that the above measures “cannot do more than reduce the risk [that investigation teams will come up against the limit of pre-charge detention] – they cannot eliminate it entirely.”²⁸ It is challenging to think of any measure, with the unacceptable exception of unlimited detention, that would eliminate this risk.

Inadequate judicial safeguards for pre-charge detention

Judicial control is an essential feature of the requirements of article 5 of the ECHR and article 9 of the ICCPR. This is reflected in the government’s proposals to strengthen judicial oversight and parliamentary scrutiny under any further extension of pre-charge detention. In our view, however, neither the scope of judicial oversight currently in place for the 28-day period nor the additional safeguards proposed by the government are adequate to protect against violations of fundamental rights.

Under the current procedure, the police must apply to the District Judge for extensions of detention beyond 48 hours up to 14 days. For extensions beyond 14 days, the Crown Prosecution Service (CPS) must submit an application to a High Court Judge. The detainee is entitled to have a lawyer represent his or her interests before the judge. However, the judge can deny the detainee and legal representative the right to be present at any part of the hearing, and the judge can deny the detainee and legal representative access to material used by the CPS to argue for further detention.²⁹ We echo the repeated concern of the Joint Committee on Human Rights that these provisions deny the detainee the right to a full adversarial hearing under fair t rial standards.³⁰

Reviewing detention in the absence of the detainee or his/her legal representative does not meet the requirements of adequate judicial supervision. In the case of Brogan and others v. United Kingdom, the European Court of Human Rights found that the detention of suspected IRA members for periods ranging from four days and six hours to six days and sixteen hours before an appearance before a judge could not be justified without “an unacceptably wide interpretation of the plain meaning of the word ‘promptly.’”³¹ The United Nations Human Rights Committee has clarified that article 9 of the International Covenant on Civil and Political Rights requires that delays in bringing an arrested individual before a judge “not exceed a few days.”³²

Article 5(4) of the European Convention guarantees the right to challenge the legality of detention. The judicial review to determine this question should be, according to European Court case-law, “wide enough to bear on those conditions which are essential for the ‘lawful’ detention of a person according to Article 5(1).”³³ The current scope of judicial scrutiny in terrorism cases in the UK does not meet this requirement. In applications for extending pre-charge detention under the Terrorism Act 2000, the judge—either the District Judge or the High Court Judge—is asked to assess two things: first, whether there exist reasonable grounds for believing that continued detention is necessary to obtain, preserve, and adequately analyze evidence; and second, whether the police are showing due diligence and expediency in the conduct of the investigation.³⁴ Effective judicial supervision of pre-charge detention would require a judge to evaluate whether reasonable grounds exist to believe the individual being detained has committed a terrorist offense before renewing any order to detain a person without charge.

The additional safeguards proposed by the government for extensions beyond 28 days neither remedy the existing shortcomings, nor make further extension acceptable. The government proposes that 1) the Director of Public Prosecutions (DPP) approve all requests before applications are made to the High Court judge; 2) the Home Secretary notify parliament each time an extension beyond 28 days is granted, and provide a further statement on the individual case, with parliament having the option to scrutinize and debate; and 3) the Independent Reviewer of terrorism legislation present a report on individual cases of extensions beyond 28 days.

DPP approval of all applications to the High Court adds a welcome filter; indeed, this could usefully be instituted for all extensions beyond seven days. It does not, however, address the key concern about inadequate judicial scrutiny. Similarly, parliamentary scrutiny and independent DPP review are no substitute for a proper judicial review. In particular, Parliament is ill-suited to scrutinizing individual cases. By their very nature, these safeguards involve post-facto analysis of CPS decisions and court rulings, likely well after an individual has been detained for a significant amount of time, and in any event with no power to intervene directly to remedy the harm. The most effective way to protect against arbitrary detention is to impose strict, and short, detention time-limits.

Option 3: Reliance on Emergency Powers

The government has included recourse to the emergency powers set out in the Civil Contingencies Act of 2004 as a possible alternative to a further extension to pre-charge detention time-limits. Human Rights Watch acknowledges that genuine emergencies may require exceptional responses, and international human rights law allows for derogations from certain human rights obligations in such situations. Derogations allow states to impose serious restrictions on rights and freedoms, such as the freedom of movement, freedom of association, and the right to liberty. In the UK, the Civil Contingencies Act (CCA) 2004 authorizes the government to enact emergency regulations during “an event or situation that threatens serious damage to human welfare … or the environment” in the United Kingdom or in the face of “war or terrorism that threatens serious damage to the security of the United Kingdom.”³⁵

Parliament must be seized of the emergency regulations as speedily as possible, and the powers taken will lapse if not approved by parliament within seven days of notification. The broad range of powers arguably includes the ability to detain without charge for the duration of the declared emergency.³⁶ Powers taken under the CCA may last up to 30 days, meaning pre-charge detention under these circumstances could last 58 days (the current 28-days plus 30 days). Because these powers may be renewed at any time, subject to parliamentary approval, pre-charge detention ordered under the CCA could conceivably last much longer.

The use of the powers and mechanisms created under the CCA in the context of the regular law enforcement response to the threat of terrorism would be both disproportionate and unsustainable. We note that these powers, which entered into force in December 2004, were not invoked in response to the July 2005 attacks in London. The availability of these powers is of limited assistance in informing the debate about a proper limit on pre-charge detention under normal circumstances.

Option 4: Judge-managed Detention without Time-limits

As a fourth option, the government has put forward the idea of introducing judge-managed investigations modeled on the French system of specialized terrorism examining magistrates. Under the government’s proposal, specialist circuit judges would be assigned to cases after suspects had spent 48 hours in detention, and would oversee the investigation until its conclusion. The Privy Counsellor Review Committee (commonly known as the “Newton Committee”³⁷) first recommended in 2003 importing certain aspects of the inquisitorial approach in terrorism cases, and the idea has since been endorsed and developed upon by Lord Carlile and the House of Commons Home Affairs Committee.³⁸

In the French inquisitorial system the examining magistrate determines whether an official judicial investigation is warranted and then oversees such investigations with a view to protecting both the public interest and the rights of the suspect. Examining magistrates are supposed to be impartial arbiters who seek to establish the truth, and are entrusted with uncovering both incriminating and exculpatory evidence. Since the mid-1980s France has centralized terrorism cases among a specialized cadre of counterterrorism examining magistrates who work in close cooperation with the French domestic intelligence service, the Direction du Surveillance Territoire (DST), as well as with a specialized corps of counterterrorism prosecutors.

The UK government’s consultation document does not provide concrete details of how judge-managed investigations might operate with respect to pre-charge detention in the UK. But were the policy to be further developed, it would likely be informed by the proposal developed by Lord Carlile in 2005 during the debate leading up to the adoption of the Terrorism Act 2006.³⁹ At that time, Lord Carlile recommended that detention beyond 14 days be overseen by an examining judge drawn from “a small group of security-cleared designated senior circuit judges.”⁴⁰ On the basis of full access to all details of the investigation, the judge would determine on a weekly basis whether further detention is warranted. The defense would be given “suitable opportunity” to contest extended detention, though the judge would have the discretion as to whether to hold oral hearings; appeals against extended detention would be decided by the High Court. As in the traditional inquisitorial system, the senior circuit judge in charge of the case would have the power to order specific investigations.⁴¹

Grafted onto the adversarial system in the UK, judge-managed investigations under these terms would essentially introduce unlimited pre-charge detention. In July 2007 Lord Carlile called the debate on the maximum number of days of pre-charge detention “sterile” and repeated his recommendation that judges determine the length of pre-charge detention in each individual case “on an evidence basis.”⁴² His comments came shortly after the president of the Association of Chief Police Officers (ACPO), Ken Jones, advocated “judicially supervised detention for as long as it takes.”⁴³

The French and UK systems cannot be easily compared. In France, police custody in terrorism cases may last up to six days, during which time suspects have severely limited access to counsel and may be interrogated at will. By the end of the maximum prescribed length of police custody, the suspect must be brought before the examining magistrate for an interrogation at which he or she is represented by a lawyer. At this stage, the examining magistrate must decide whether there is sufficient evidence, based on the entire case file including the prosecutor’s preliminary findings (réquisitoire introductif), to warrant placing the suspect under official investigation (mettre en examen). Whereas traditionally it was the examining magistrate who determined whether to remand the suspect into pretrial detention, since January 2001 this responsibility is in the hands of a “liberty and detention judge” (juge des libertés et de la détention). Months and in some cases years may go by before the examining magistrate concludes the investigation, the prosecution draws up the official indictment (requisitoire définitif), and the case file is passed to the trial chamber.

In our view, it is the opening of the official investigation in France, after a maximum of six days in police custody—and not the indictment—that is most analogous to the determination of the charge in the UK. The standard applied by the examining magistrate at this stage is comparable to the Threshold Test for charging available to crown prosecutors (see above): a reasonable suspicion that a specific offense has been committed based on available evidence and a reasonable expectation that further evidence will become available in the course of the investigation.⁴⁴ And it is at this stage in both systems that the suspect is removed from police custody and placed in appropriate facilities for those awaiting trial.⁴⁵

Human Rights Watch has serious concerns about criminal procedures in terrorism investigations in France.⁴⁶ The proposal for judge-managed investigations in the UK, however, appears to do away with even the most basic safeguards built into the French system. Whereas in France there is a clear limit on the length of police custody (six days) and it is a special “liberty and detention judge” who makes decisions with respect to pretrial detention, judge-managed investigations in the UK would apparently involve unlimited pre-charge detention authorized by the same examining judge supervising and directing the investigation.

Human Rights Watch is opposed to the introduction of a wholly exceptional criminal procedure in terrorism cases. There is a very real danger that such an approach in the UK would quickly give rise to a system of preventive detention. Preventive detention—where the purpose is to prevent and disrupt criminal activity rather than investigate activity with a view to prosecution—is an abuse of state power in direct violation of article 5 of the European Convention. The House of Commons Home Affairs Committee concluded in 2006 that arrests under the Terrorism Act 2000 are being used, in its view appropriately, as a kind of preventive detention to disrupt terrorist conspiracies. The committee recommended that this preventive purpose be given “explicit recognition” and new forms of judicial oversight implemented “to enable proper independent consideration to be given where an arrest is to be made for its disruptive and preventive value.”⁴⁷ It is worth noting that the committee looked to Lord Carlile’s suggestion of judge-managed investigations as a sensible approach in these cases.

The government rightly rejected in 2006 the suggestion that “prevention” be included as a statutory ground for detention, on the grounds that it would run foul of international human rights law.⁴⁸ It must remain steadfast in this position and reject any option that would effectively introduce preventive detention powers.