Anthony Barnett (London, OK): Why can't terrorist suspects be charged rather than held - or interned - without trial? This was a question I put here and here in arguing against any further extension of 28 days, taking on the case made by Matt d'Ancona. On Wednesday both Lord Goldsmith, who was Labour's Attorney General and Ken Macdonald who worked under him and remains the director of public prosecutions gave evidence to the House of Commons Home Affairs Select Committee, chaired by Keith Vaz MP. Here are some of the answers they gave from the uncorrected transcript. They seem to me to be definitive. They are long and careful as they should be. First, Lord Goldsmith
I think there is an important constraint that needs to be borne in mind which is not always remembered in this debate, that to keep somebody in detention without charging them, surely you need to continue to have reasonable suspicion, even if you cannot prove it at that stage, that they have committed an offence. Indeed, I would think that that is probably required by our international obligations. The question to my mind is: how likely is it that you get to a period like 28 days, you have been unable to find evidence of any offence, but you still believe that there is reasonable suspicion that this person committed an offence and indeed that by continuing to detain them, because this must be another requirement, you are going to find evidence with which to charge them with an offence?
and
Lord Goldsmith: I regard this as a very important consideration. It seems to me that in the fight against terrorism it is not just tough police powers that may be necessary, it is also winning hearts and minds and part of that is sending out a message about the sort of society in which we live, which is one based on tolerance and justice and fair play. I have a concern that, if one appears to send out a message, even though it is not the message that is intended, that actually we are a society that is prepared to lock people up for a significant period of time without charge and then release them after what would be the equivalent of a reasonable sentence, that will actually damage that struggle.
And Macdonald
Sir Ken Macdonald: I think there is some misunderstanding about the nature of the decision which is made by a prosecutor when he or she decides to charge. There are two tests, two alternative tests. One is the full test, and that requires the prosecutor to determine that there is a realistic prospect of conviction. That simply means that, on the basis of the evidence the prosecutor has before him or her, a court is more likely than not to convict. However, in a case where, if charged, it would be inappropriate to release the defendant on bail, a prosecutor can apply a different test which is the reasonable suspicion test, the threshold test, so, in those circumstances, if the prosecutor is considering a case in which, if there was a charge, bail would not be appropriate, and that would cover all terrorist cases, I am sure, the prosecutor can charge on the basis of reasonable suspicion, as long as the case is kept under review and the full code test can be applied as soon as practically possible. Now, two of the individuals in the recent well-known case, whose decisions were made towards the end of the 28-day period, were charged on the basis of reasonable suspicion. I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period, so that is a practical problem which could face prosecutors.
and later, this exchange with 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 the argument of the police and the Government is that 28 days is not sufficient because of all the reasons that you are familiar with which the Government and the police have advanced, having been held for a lengthy period of time, up to 28 days, 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.
