Moderator: this is a long post - on a very important issue
Geoffrey Bindman: (London, BIHR): On 3 June Gordon Brown attracted easy headlines, announcing his desire for tough security measures to prevent terrorist incidents; including using phone-tap evidence in court, allowing questioning of suspects after charge and extending the permitted period of detention without charge beyond the current 28 days to as much as 90 days.
In fact new measures were already in preparation by John Reid and have been published today. One encouraging element in Brown's contribution is his insistence that "at no point will our British traditions of supporting and defending civil liberties" be put at risk. But these words have a hollow sound when set against the erosion of civil liberties which has already taken place in the plethora of recent anti-terrorist legislation: the Terrorism Act 2000, Anti-Terrorism Crime and Security Act 2001, Prevention of Terrorism Act 2005 and the Terrorism Act 2006. These create a range of new offences targeted at virtually anyone remotely linked to the possibility of terrorism, a term so widely defined as to embrace virtually any kind of political activity the state regards as hostile.
Anyone suspected of any of the offenses these Acts have created can be arrested, charged, brought to trial before the courts, and if found guilty, appropriately punished. Why is this not enough to protect the public? Every demonstrable terrorist has committed an offence. If it cannot be proved then he must go free; otherwise no innocent person is safe.
I agree there are still two procedural problems. First, that evidence that could prove an offence may exist but the court may not be allowed to hear it. It seems that some in our Security Services still lobby for secrecy when it comes to intercept evidence, so as not to jeopardise intelligence-gathering techniques. But other countries allow it and it is preferable for phone-tap evidence to be used openly for juries to assess. Reid says he is not convinced and has proposed the Privy Council consider it.
Second, it is proposed to allow questioning after charge. Provided the accused retains the right to refuse to answer questions, has access to legal advice and judicial supervision at all times, this proposal is not objectionable in terrorist cases. It also meets(and makes redundant) the only justifiable demand for a longer period of pre-charge detention, namely that at present, after charge questioning must cease.
The only good reason at all for detaining a suspect without charge is to allow time for the charge to be properly formulated. Once this has happened the suspect is brought before the court which can grant bail or order further detention until trial can take place. In recent years the notion has gained acceptance that a short period of detention before charge is justified to give police a chance to question the suspect, and more recently still, and even more dubiously, to allow time to collect evidence from other sources. Hence the current 28 day period, very long by international standards.
Far too long. The disruption to family and employment; the psychological damage of incarceration to an innocent person; the violation of the fundamental right to personal freedom; are unnecessary and unacceptable. There is no evidence that any guilty person has had to be released uncharged as a result of the time limit (or indeed the previous 14 days). The Home Office itself has published figures (up to 2006) which suggest that the great majority of those detained have committed no offence. Of 1,126 people arrested under the various Acts of anti-terror legislation since 9/11, 652 were released without charge, and of the remainder only 221 charged with terrorism offences.
Provided we refuse the pressure to extend the 28 day limit and create detention without trial, today’s proposals get us closer to the optimum reconciliation between the protection of our liberties and the protection of our security.
