42 Days: An "abundance of caution" -

Anthony Barnett
Anthony Barnett
7 June 2008

This essay was published on Friday 6th June, we re-ran for the oD Front page it in the wake of the Commons vote. For a roundup with links immediately after the vote see here; and here for John Jackson on the Parliament Act. 

MPs should vote down 42 days detention without charge. The innocent will suffer, the basis of law will be threatened and terrorism aided, as Brown follows Blair in counter-productive defiance of one of the fundamental principles of democracy writes Anthony Barnett.

It is not hard to imagine the situation. The police have uncovered a network of young, would-be terrorists and their supporters. It may be just after a murderous outrage they failed to prevent, or when they bust a conspiracy before anyone is murdered. As they round up suspects three innocent young men are included. They are relatives or friends of the plotters or maybe they are just around when the raids take place. Naturally, the police focus on gathering the evidence to charge the ringleaders. They hold the three on the basis of proximity and as they are not charged they can't make a case for their lack of guilt. A month goes by. Perhaps one of the three is unable to attend his exams and loses his place in his college. Finally they are released - resentful and fearful. They are exactly the sort of people who might have been persuaded to alert the security forces to future plots. Now they are unlikely ever to speak to the police again if they can help it. "Justice", they will say to their friends, family and future children, "you won't get it here! I was imprisoned for four weeks just because they didn't like my face - I was completely innocent, I wasn't charged, then they threw me out".

Where does this take place? Is it in Egypt, with its notoriously casual use of jail; or Mexico where drugs are rife; or Bulgaria with its mafia fuelled economy? No it is in the UK, more specifically England. I am not saying that it could happen here. As we will see, it has happened here, and, therefore it does happen here.

I suggest it should be stopped.

  • It undermines the fundamental principles of the rule of law
  • It weakens the historic basis of Britain's rights-based democracy
  • It destroys the serious, measured consensus that is the best aid to containing terrorism
  • It strengthens rather than weakens those who seek to organise terrorist outrages by ensuring greater support for their views
  • It aids a climate of fear
  • There are other ways of ensuring essential evidence is acquired.

Instead, Gordon Brown's government is currently tweaking its proposal to permit it to lock up people for even longer than a month, without telling them why. Anti-terrorism powers have already been extended so that people can be held prisoner without charge, from 3 to 7 to 14 to the current 28 days. A further extension to 42 days is being laid before parliament, supposedly wrapped around with safeguards whose concession is likely to win over just enough MPs to ‘save' the government. A vote is likely in the next week or so.

How should we respond to this, not just in Britain but abroad? The issue has international importance. The House of Commons is still seen as, if not the ‘mother of parliaments' then at least a symbol of parliamentary democracy and a historic place where fascism was defied. Tyrants in their palaces across the Middle East and Africa will smile at the protestation of "safeguards", and will note the permission now granted to them by the behaviour of the United Kingdom. Across Asia, from Burma to Beijing, where once Europeans saw "oriental despotism" rulers will enjoy the further demonstration of Albion's perfidy and note the useful example they have been offered.

In such circumstances it is important to set out a full case, in terms of the principles of justice and democracy; in terms of the fight against terrorism; and in terms of the politics of Britain, for saying that there must be no extension of detention without charge from 28 days to 42 days.

Protect the Innocent

One of the wicked aspects of the current wave of fundamentalist terrorism is that it is indiscriminate in its search for victims and hence arbitrary in who it murders and maims as, for example, it mows down commuters on trains. It is important therefore that the response to terrorism is itself not indiscriminate or arbitrary. But this is very difficult to achieve. Lord Carlile is the independent monitor of anti-terrorism legislation. In his report on the Operation in 2006 of the Terrorism Act 2000, he states that in that year 156 people were arrested under terrorist legislation, along with 29 others whose investigation was conducted as a terrorist one, making 185 arrests in all. Just over half of those arrested, 94, were released without charge.

Carlile argues,

"Whilst at first glance this may seem a high proportion, the nature of terrorism investigations means that those associated with or accompanying a suspect may well find themselves arrested out of an abundance of caution by the authorities. This should be avoided whenever possible, but the realities of this kind of policing increase the possibility of arrests later found to be of innocent members of the public. It may be small comfort to those arrested, but in other comparable countries the same issue arises commonly. Once again this year, I consider the level of arrests to be proportionate to perceived risk."

The latest "Facts and Figures" on the Home Office website show that this proportion seems has held steady: of 1,228 arrested on counter-terrorism charges between September 2001 and March 2007, 669 were released without charge.

Half those arrested under counter-terrorist measures are "innocent members of the public" who are released without charge. But how many of them are punished by remaining in custody for weeks rather than days? It is difficult to find up-to-date figures and even then it is hard to know what they actually mean. But in his Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill, in December 2007, Carlile (who favours extending the limit) stated:

The current limit for detention after arrest but before charge is 28 days. This is already an exceptional provision for terrorism cases. The 28 day limit has not been reached absolutely so far: 6 suspects have been held for more than 27 days, but less than 28. Of these, three have been charged and three released without charge.

That 50/50 ratio again, this time extending for nearly a full month. Carlile was concerned to tell us that it has indeed been regarded as necessary to hold some people for nearly the full 28 days before charging them. But what about the three who were not charged at all?

I met with David Davis MP, the Conservative Party's shadow Home Secretary, who has been a strong and principled opponent of measures that might undermine the fundamentals of liberty in Britain. He's a tough looking and intelligent right-winger. As the likely future Home Secretary he is briefed by the police. He asked them whether the three who had been released without charge after 27 days in custody had then had control orders placed on them. (A control order is special, judicially overseen regime that allows the authorities to stipulate and monitor the movement and meetings of those who are suspected of connections with terrorist networks. It can be draconian.) "No", replied the police, none of the three were under control orders. Were they then at least under police surveillance, Davies asked. "No", they were not. "So they were innocent?" David asked. And there was a shrug of assent.

In presenting their case to the nation for the extension of detention without charge to 42 days, the Home Secretary Jacqui Smith and the Prime Minister emphasise how much time may be needed to gather all the evidence required to lay the necessary charges because of the immense complexity of such evidence in the age of information technology and international conspiracies. Much detail is offered about thousands of files and hundreds of computers. Their supporters say that we must not allow a terrorist to walk free just because there has not been ‘enough time' to accumulate the necessary evidence to make good his arrest. The presumption is clear. It is important to highlight this. We are supposed to accept that the argument is over how long guilty people have to be held before they are charged.

This presumption is false. Over half those arrested under the Terrorism Act are "innocent members of the public". This is officially regarded as acceptable due to the need for the police to exercise "an abundance of caution". And of the small number held for nearly a month without charge, half of them are innocent too.

To jail someone who is innocent is a crime, one done in our name.

Habeas Corpus was developed to protect society from committing this crime. It does not just protect the victims, it also protects us from becoming members of a criminal society - from being perpetrators. It says that no one shall be restrained without the reason for this being given. There is a fundamental significance to the issue of 42 days because it undermines this principle. The proposal goes beyond its stated aims as Habeas Corpus gives a distinctive character and purpose to the entire legal system by saying that the law is not arbitrary. The 42 day provision of the Counter-Terrorism Bill will undermine this. By doing so it is likely to have a systemic corrupting effect on the entire legal system as it moves us from a situation in which the law rules out arbitrariness in the name of justice, to a situation in which it sanctions arbitrariness. Here it does so in the name of security but why should it be limited to this when arbitrariness is no longer prohibited out of principle? What we are seeing is a fundamental challenge to part of the foundations of our democracy, the rule of law itself.

The complexity of terrorism

The main ‘practical' argument deployed to justify extending pre-charge detention is the sheer amount and complexity of the information police have to assess, the hundreds of computers and thousands of gigabytes of data. But charging a suspect is quite different from preparing the case for the prosecution. It is not hard to lay out the main reasons why you want to arrest someone (and if this is terrorist related there can be laws to forbid bail).

The argument has been put very clearly by the Director of Public Prosecutions whose job is precisely to decide whether or not to prosecute. Appearing before the House of Commons Home Affairs Select Committee in November 2007, he was probed on his statement that 28 days was enough time for a "threshold charge" to be put. He told the Committee, "Our experience has been that in every case where a terrorist suspect has been charged on the threshold test, the evidence to justify the full test being passed has arrived, the full test has been applied and the matter has proceeded to trial." This is an important argument and at the end of the article I reproduce a longish section of the exchange between the DPP, Sir Ken Macdonald, and a member of the committee, the Labour MP David Winnick. The Public Prosecutor concludes, "it is the prosecutor who makes the charging decision ... Our experience has been that 28 days has suited us quite nicely".

The problem is not how complicated it is to charge those who are guilty of terrorism, the problem is how easy it is to jail people who are innocent.

As a senior Labour figure sympathetic to the government said to me, the arguments about complexity are nonsense. A lawyer himself he complained that "not enough of them are lawyers". You don't need to watch every minute of CCTV and scan every disk to make a case. And cases are always changing after charges are made.

But he Home Secretary Jacqui Smith told the Spectator's Matthew d'Ancona in a revealing interview this week, that she is "against the US-style use of ‘holding charges' to keep suspects in detention pending more serious evidence being uncovered". In her view, "I think it is a good thing for the system to be charging people with what it is you think they have actually done, you know".

That Blairite "you know" is a classic, dressing up an outrage in the everyday language. Of course it's a "good thing" to charge people as completely as possible if you can. But if, given the complexity, you can't, what then? Before the gravity of undermining Habeas Corpus there is the triviality of a "you know".

In addition to the complexity of evidence in terrorist plots, there is the problem of numbers; of finding out how many people are involved. This is why Carlile considers an "abundance of caution" justified - he refers not to the amount of time people can be held but the numbers of innocent arrested at first. And put yourself in the place of a police commander whose officers have apprehended a terrorist on a bus and think she might have an accomplice with her. You might well order the arrest everyone on the bus for questioning. But if we must accept an "abundance of caution" in terms of the initial numbers of innocent held under counter-terrorist powers this makes it all the more important that we are not generous about the time they are held. Otherwise, before we know it, collective punishment and internment will be seen, with some justification, as the order of the day. Then we can be confident, the ‘war' to protect our liberties and way of life will be lost.

There are Terrorists

One of the worst aspects of the current situation is the climate of fear being generated by anti-terror legislation. It is being used to prevent legitimate forms of protest and even everyday activity, not to speak of academic research. The Prime Minister writing in The Times to defend his 42 Days proposal solemnly asserts that "Today in Britain there are at least 2,000 terrorist suspects, 200 networks or cells and 30 active plots." Frankly, I don't believe it. At least 30 active plots? This is designed to spread alarm rather than good judgement amongst the electorate. How does he know? How active are they? If he knows they are active, why aren't the culprits being arrested?

In the age of cynicism, such alarmism generates disbelief about the actual threats. There are serious plots being hatched. The most serious are those the police do not know about, cannot count, and about which Prime Minister cannot possibly tell us.

It is right to assume that there are indeed some horribly dangerous, racist terrorists at large, with funding, who remain convinced that their bloody martyrdom will advance their twisted cause and are planning to take as many people with them as they can.

Preventing such terrorists from launching successful attacks does create new problems for our security. Just as we need to resist attempts to exploit the threat of terrorism to create an intrusive regime that confines our freedom and moves the UK in the direction of a police state, under the banner of security, so we need to resist those who would deny the novel dangers of terrorism in the age of high technology, because it has been exploited by Blair and now Brown and sections of the media.

What is needed is focus. The law has already been strengthened with respect to the intention of terrorism and two measures not yet taken have wide support: to permit post-charge questioning and the need to allow intercept evidence to be used in court. A specific aspect of contemporary terrorism calls for special attention to a traditional need, gaining what the Americans call HUMINT, human intelligence.

The security services are being asked to identify and pre-empt small groups that may spring up spontaneously and aim to go out of existence as quickly as they can. The perpetrators don't worry about being caught afterwards as they intend to martyr themselves. The normal fear of being found out does not apply as it did to secular organisations like the IRA that neded to keep its command network intact. 9/11 might have been prevented when one of the plotters told the instructors on his flying course that he didn't want to learn to how to land! But usually the fact that the terrorist do not make long-term preparations makes it harder not easier to detect them - which makes human intelligence and tip-offs vital.

it is almost impossible to penetrate fundamentalist-inspired groups that seek no afterlife on earth other than the videos of their farewell messages. Instead, the hope has to be that regular members of their communities will alert the police to suspicious behaviour.

But the more they feel members of their community are being victimised, and that unjust laws and regulations are being directed against them, the less likely they are to do this. They certainly won't if they think that innocent people will be treated without justice. This is why we have to go out of our way to persuade them that indiscriminate and arbitrary measures will not be used.

This issue was carefully studied by Andrew Blick, Tufyal Choudhury and Stuart Weir in their Democratic Audit report, The Rules of the Game, Terrorism, Community and Human Rights. They assessed the opinion surveys and conducted three focus groups with Muslim youths.

The key to successfully combating terrorism lies in winning the trust and cooperation of the Muslim communities in the UK. However, the government's counter terrorism legislation and rhetorical stance are between them creating serious losses in human rights and criminal justice protections; loosening the fabric of justice and civil liberties in the UK... harming community relations... having a disproportionate effect on the Muslim communities... prejudicing the ability of the government and security forces to gain the very trust and cooperation from individuals in those communities that they require to combat terrorism. The impact of the legislation and its implementation has been self-defeating as well as harmful.

Their findings are reinforced by the Demos Report Bringing It Home which sets out a six point strategy for combating terrorism in the community. The biggest danger comes from the possible radicalisation of the large younger generations of Muslims in the UK. But it is young people who are being arrested. If it is inevitable that innocents will be hoovered up, then their treatment should be exemplary, and the innocent sorted and released as soon as possible. 42 days will make what is bad worse. Its immediate effect will be a permission to use 28 days more fully. Should the police feel they have more time, they will use it. And it is not just the young people held and released without charge who will become disaffected. So will many of their friends and families. The Democratic Audit researchers found decent young Muslims of good will who abhorred terrorism were nevertheless reluctant to pass on information to the police. Can this be turned round?

Jacqui Smith, handed the softest of questions, told d'Ancona that passing 42 Days would not act as a "recruiting sergeant", and "in any case with Islamic extremists everything is a potential recruiting sergeant". This is just sloppy, failing to cite any of the research (again a legacy of Blair who regarded evidence as a traitor to his sincerity). The issue that matters most is not whether passing the 42 Days proposal will recruit people into becoming terrorism, on its own it can't - it is whether it will win or lose the support of those whose help is essential to isolating terrorists.

The Importance of Consensus

In the days after the 7/7 attacks moves were underway to create a political consensus that would bring Muslim communities on board. Tragically, this was destroyed by Tony Blair on 5 August 2005 when, to the disgust and contempt of at least one of his senior counter-terrorist advisors, he announced at a press conference that "the rules of the game have changed". As Peter Oborne has shown in a careful pamphlet The Use and Abuse of Terror (opens as pdf) published by centre for Policy Studies, Blair's was a tabloid-led intervention, greeted the next day with the headline VICTORY FOR SUN OVER NEW TERROR LAWS. One of the proposals made that day by Blair was the extension of pre-charge detention which became the 90 day clause that was defeated in the Commons.

Two years later Gordon Brown replaced Blair as premier. His arrival in his new role was greeted by an abortive terrorist attack in London outside a nightclub and in Glasgow airport. His calm response contributed to the turnaround in Labour's fortunes in the public opinion polls and to a very high approval rating for Brown himself. On going into 10 Downing Street he had promised change and this seemed like an immediate delivery. Instead of the bling and bust attitude of Blair and his constant macho posturing, we had a calm seriousness, a ‘British' lack of panic. It created a formidable and welcome consensus, closer to the spirit of the Blitz rather than the Falklands War, or Blair's farcical attempt to contrive the militant, polarising ‘conviction' of a Thatcher.

It is odd, even baffling. Why, having gained so much in popularity from being different to his predecessor by getting it right and being principled, is the Prime Minister so determined to be both wrong and unpopular, by returning to the ways of Blair?

What matters now is that Labour MPs are not drawn into supporting him for the sake of their government. For what seems clear after the disastrous mismanagement of the issue is that Brown is determined to please the Murdoch press. In the process whatever case there might have been for extending detention without charge has been lost. Even if there once was a case for 42 days (for which there is no evidence) and even if it is plausible to have ‘parliamentary safeguards' (which seems most implausible), keeping to 28 days now is clearly the more effective way to prevent terrorism. Why? Because only this would put the government at the head of the widespread consensus needed to win the vital support of minority communities.

I say this with some feeling as OurKingdom worked with Sunny Hundal and his Liberal Conspiracy campaign to persuade the Brown government to see sense. We drafted an open letter published in Comment is Free. It called on Brown to revert back to his original call for consensual approach quoting his own words, "The very freedoms we have built up over generations are the freedoms terrorists most want to destroy". We gathered an impressive list of experienced people of good will, the sort who welcomed Brown's replacement of Blair. It made no difference.

Another open letter with more glamour signatories was also sent to the Prime Minister. Matthew d'Ancona launched a withering attack on it. A long standing advocate of ‘robust' measures he even supported 90 days pre-charge detention; denouncing in his Sunday Telegraph column the "introspection and decadence, in which the political class reaches for the psychological comfort blanket of Blair-bashing and declines to confront the scale of the threat that we are truly facing". This year he was enraged by the source of the opposition. It was OK for David Davis or Shami Chakrabati of Liberty to criticise Brown's government, but: "What I can't be doing with is a bunch of authors, clothes-makers and luvvies muscling in on the act.... Please: this is a serious business".

Which missed the point, which was not that Brown should seek their guidance on issues of government, but that he should expect to gain their support on as grave a matter as terrorism. They have every right to state publicly that he has not - and it is important and significant that they do so. The Muslim communities need to know that the government and the Sun are not speaking on behalf of the rest of us.

Innocent until proved Guilty

The heart of the case against 42 days is that to hold people in jail for weeks without telling them why is a form of punishment that presumes their guilt. As Shami Chakrabati puts it, "After charge, innocents may still be held for months pending trial for a complex conspiracy, but at least they know why. At least they and their family and lawyers can prepare a defence in the hope of vindication in court. Contrast the nightmare of a thousand hours in custody followed by unceremonious release back into the community".

Although it is mostly minorities who are affected, anyone who is standing at the wrong bus-stop might find themselves held without charge. The threat of 42 days goes deeper than whether it could effect you directly. If any fellow citizen is jailed for arbitrary reasons - and not being told why your liberty is being restrained makes it arbitrary - the liberty and honour of us all is diminished.

As a practical matter, this principle is most obvious to those on whom the burden of draconian laws will fall. The minorities who wonder if they are indeed fellow citizens assured of equal justice, even though born here. The lure of self-realisation through terrorism will shimmer and attract those who sense this grievance. To prevent this we need to address the grievance not exacerbate it. They and those around them need to know that we will live by our principles - and that no one is presumed guilty let alone punished ahead of a fair trial before their peers.

Instead we have the profoundly alarming situation of a government which, in face of all the arguments and appeals, insists that the historic principles of liberal democracy are wrong and that the state knows best.

To return to the international dimension. There is a doubly positive case for making sure the proposal to extend arrest without charge is voted down. The UK seeks a persuasive role internationally in arguing for fair-elections and human rights. Its new Foreign Secretary, David Miliband, made a case for intervention saying that if one wants to do good at home one must be willing to do good abroad. A country should indeed live by the values it espouses. To defeat the 42 day proposal will not only relieve the country's reputation of the charge of hypocrisy, it will provide a positive demonstration of a democracy in action. The Foreign Secretary's argument works both ways: if we want to earn the right to do good abroad we must be willing to do good at home - a test of this will be whether Labour MPs are willing to strike down the proposal to extend detention without charge.


Amnesty have a 'Not a Day Longer' petition to No 10, you can sign it here.

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The following is a short extract from:


Wednesday 21 November 2007

It is part of the the exchange between the Director of Public Prosecutions, Sir Ken Macdonald, and a member of the committee, the Labour MP David Winnick.


Mr Winnick: Can I put it to you as a layman, Sir Ken, that, if someone is being held within the 28-day period... and there is a pretty strong feeling and more amongst the police that this person should be charged, but the evidence is not there at the moment, are you telling us that a charge of reasonable suspicion can be made?

Sir Ken Macdonald: And has been.

Mr Winnick: Has been made?

Sir Ken Macdonald: What the test says is that the threshold test is applied to those cases in which it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the full code test, which is the realistic prospect of conviction, is not yet available. The threshold test requires Crown prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence. In those circumstances, he can be charged, but the prosecutor has to consider the likelihood of further evidence being obtained, the time it would take to gather the further evidence and the charges that that further evidence is likely to support. If the further evidence is not forthcoming and the full code test cannot be passed, then the prisoner will have to be released. Our experience has been that in every case where a terrorist suspect has been charged on the threshold test, the evidence to justify the full test being passed has arrived, the full test has been applied and the matter has proceeded to trial.

Mr Winnick: Does that not tend to undermine the case for extending the 28 days? The very fact that there are these provisions and the likelihood, and the police are pretty strongly of the view, that evidence will be forthcoming, they cannot be certain obviously, but there is this provision which you have just explained again to the Committee, does that not rather undermine the view that 28 days is totally inadequate and we need more to protect our country?

Sir Ken Macdonald: First of all, it is not the police view which counts at this time, it is the prosecutor's view because it is the prosecutor who makes the charging decision, and whether it undermines the case is really a matter for your judgment rather than mine. I do repeat, there are respectable arguments for an extension and I respect those arguments. Our experience has been that 28 days has suited us quite nicely.

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