Proposed Changes to Pre-charge Detention

Terrorism Detention Powers

 A response from British Irish Rights Watch

1        Introduction

1.1              British Irish rights watch (BIRW) is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland.  Our services are available free of charge to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

1.2       We welcome the opportunity to make a submission to the Home Affairs Committee inquiry into the police case for an increase in detention powers in respect of terrorism suspects.   We have only commented on those issues which fall within our remit.  

2        Human rights and the extension of pre-charge detention

2.1              The case, put forward by the police, in support of 90-day pre-charge

detention is ultimately flawed.   It ignores the international human rights treaties and conventions to which the UK is a signatory.   These include the European Convention on Human rights (ECHR) and the UN Convention against Torture (CAT).  

2.2       The extension of pre-charge detention contravenes Article 5 of the ECHR,

which states:

“Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.”[1] 

This violation has been noted in a previous submission to the Joint Committee on Human Rights by BIRW and by other human rights organisations.  If the case against an individual is being constructed while that individual is in custody, it is unlikely that he or she will be promptly charged with an offence.  

2.2              Article 3 of the ECHR states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[2]

BIRW argues that extended detention times constitute inhuman treatment.  The psychological implications for the detainee, who may be held for up to three months without any charge being put to him or her, are severe.  This psychological pressure may lead to self-incrimination, false confessions, self-harm and suicide attempts.  British Irish rights watch has seen testimonies from detainees in Northern Ireland, who were often held for up to 7 days; these clearly illustrate the psychological pressure brought to bear by extended detention.  In particular extended detention can lead to an increase in the consumption of anti-depressants, development of a limited appetite and weight loss.  If detention for only 7 days can have such effects, then the effects of detention for 90 days could be serious and lasting.  Recent television pictures of Abu Qatada, who recently made an appeal on behalf of Norman Kember, who was taken hostage in Iraq, demonstrated that he had lost a considerable amount of weight while in prolonged detention.  Detainees held for 90 days will almost certainly lose their jobs and their education may also be disrupted.  For the family of detainees the consequences may be psychological, social, and financial. Extended detention would also breach Article 8 of the ECHR, which protects the right to family life.

2.3              Article 16 of the CAT states:

“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”[3]

BIRW believe that extended detention would contravene this article.  Individuals held in the same police station for a prolonged period of time may be more susceptible to acts of cruel, inhuman or degrading treatment by custody officers unfamiliar with the special needs of prolonged detention.  Police custody officers are not trained prison officers, nor are they aware of the many issues which arise from extended detention.  Even with appropriate training, police stations lack the basic facilities required for detention of this nature.

2.4              Article 6 (1) of the ECHR says:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  …..”[4]

BIRW believe that an individual held for three months prior to charge will not have a fair and public hearing.  As noted above, the desire to end detention, perhaps by ‘confessing’ or some other form of self-incrimination could contaminate the case.  The admission of such evidence may ultimately lead to the case being dismissed.  This could have security implications for the UK.  If a case collapses for these reasons, it could also lead to civil action by the detainee.[5]  Furthermore, the mere fact of detaining a suspect for such a long period of time could undermine the presumption of innocence; the public perception of someone held for such a long time is likely to be that there is no smoke without fire.  Such social stigma can also attach to the detainee’s family.

2.5              Those individuals subject to extended pre-charge detention occupy a legal vacuum.  The absence of a charge against them ensures they can not be progressed to the stage of either being released on bail, or remanded in custody in a prison.  The absence of this latter stage is particularly problematic.  Individuals remanded in custody are subject to the same standards, for the most part, as convicted prisoners.  International human rights standards such as the Council of Europe’s Prison Rules (revised) clearly outline the conditions suitable for individuals in detention.  These include making provisions for access to religious representatives, and necessary books/literature for religious practice.[6]

2.6       90-day detention is, in our submission, internment without charge by any other name.  As a human rights group focussed on Northern Ireland, we can only remind the government that internment without trial was introduced there at the start of a long and appalling conflict that is not yet resolved.  We have seen the negative impact of internment in Northern Ireland.  This policy wrongfully imprisoned hundreds of people, based on faulty intelligence, and directly contributed to increased IRA recruitment.  It has been our experience that repressive laws do not defeat terrorism, they merely create miscarriages of justice and martyrs to the cause.  If we react to terrorist attacks by enacting ever more draconian measures, there is a real and present danger that we will undermine our own democratic society, and to that extent we will have assisted the terrorists in achieving their aims.

2.7       The debate around counter-terrorism measures has, in our view, largely been based on a false dichotomy between the need to protect society, on the one hand, and the need to protect human rights, on the other.  The strongest possible defence against terrorism is a robust system of human rights protection.  Developing such a system both decreases the likelihood of producing “home grown” terrorism, such as we saw in July 2005, and enhances the likelihood that the communities within which terrorists live will be prepared to provide the vital intelligence required to prevent and detect terrorist crimes.

2.8       BIRW also believes that it is a mistake to create a separate set of laws for terrorist cases.  All the crimes committed in the name of terrorism – such as murder, hijacking, illegal possession of weapons and explosives, etc. –  are already crimes under the ordinary criminal law, which is perfectly adequate for dealing with acts of terrorism.  Creating a twin-track legal system, which deprives those suspected of involvement in terrorism less rights than other suspects, poses the danger of elevating terrorism in the eyes of some and, indeed, glorifying it.

3        The Police case for extending detention time

3.1              British Irish rights watch believe that the case put forward by the police, as outlined in a letter from Assistant Commissioner Andy Hayman to the Home Secretary, is inherently weak.[7]  BIRW firmly believe that a person should not be arrested without reasonable grounds.  We do not think it is appropriate to arrest an individual and then seek the grounds which should have been established before the arrest. 

3.2              The police assert that the role of international networks in contemporary terrorism is problematic, since reliance upon other law enforcement and judicial authorities, scattered globally, hinders effective and prompt police investigation.  However, such an assertion ignores the post-9/11 steps taken to promote international co-operation in criminal investigations, most pertinently in terrorist investigations.  British Irish rights watch does not believe that the way to address cross-jurisdictional issues lies in the introduction of draconian domestic legislation.  Rather, the UK government should be utilising and strengthening international mechanisms and processes for extradition, information sharing, and cross-border policing.[8]  The UK government should also draw on its experience of combating IRA terrorism, which utilised international networks for funding and weaponry, and implement the lessons learned.[9]

3.3              The principle of increasing collaboration in police investigations can be applied to mobile telephone companies.  The Assistant Commissioner states, “Obtaining data from service providers and subsequent analysis of the data to show linkages between suspects and their location at key times all takes time.”[10]  If so, then the resources must be provided to develop faster technology.

3.4              BIRW has previously acknowledged a need for the use of telephone intercepts in terrorist investigations.  However, we have always emphasised that careful attention needs to be paid to the human rights implications of covert surveillance, in particular its impact on the privilege against self-incrimination.  Care also needs to be exercised in targeting suspects for such surveillance because of its impact on the right to privacy, not only of the suspects but of third parties.  If intercepted communications are to be allowed in evidence, then so too must information about how such evidence was obtained, in order that the defence may challenge evidence that was gathered improperly.  The use of intercepted material which is shrouded in secrecy because of an alleged need to protect sources and methods is not acceptable.

3.5              The use of telephone intercepts should be the subject of keen safeguards; with a rigorous system for approval.  British Irish rights watch believe that such intercepts should be used for the minimum amount of time necessary and therefore be subject to regular review, with a view to removing them at the earliest opportunity.  A system which enables individuals to find out if their telephones or other means of communication, such as e-mail,  are tapped, and to subsequently challenge such surveillance, should be put in place and must be robust and transparent.   

3.6              The Assistant Commissioner draws attention to the fact that one firm of solicitors represents the majority of terrorism suspects detained.  Our experiences in Northern Ireland indicate that, while the number of solicitors representing suspected terrorists was relatively limited, this did not have an impact upon investigations.  Rather, the attitude of the police towards the solicitors, and their ability to access and take instructions from their clients, violated the rights of the detainees and also their solicitors, many of whom were abused and threatened by police officers before safeguards were introduced to prevent such abuse.[11]  BIRW would strongly caution against any restrictions placed upon contact between lawyers and their clients, under the guise of hastening a criminal investigation. 

3.7              The crux of the Assistant Commissioner’s arguments appear to be centred on a lack of resources, but he also argues that increased resources would not reduce the time taken by pre-charge procedures.[12]  BIRW disagree with his approach.  On matters such as the need to employ interpreters, increasing financial and personnel resources will undoubtedly help.  BIRW acknowledge that the presence of rare languages and dialects as the primary means of communication for a percentage of terrorist suspects is problematic.  However, the Assistant Commissioner appears to be ignoring the highly multi-cultural nature of Britain’s cities; where interpreters are used across a wide range of public services.  BIRW would also draw attention to the use made by the British army of UK university students; who were persuaded to put their degrees on hold to translate for the army in Iraq.[13]  An increase in resources would also contribute to the development of faster decryption of computers and hard drives as well as increasing forensic examination capacity.  BIRW believe that increasing resources should not be as swiftly dismissed as it appears to have been here. 

3.6              BIRW do not agree with the argument that religious observance delays investigations.  Nor are we comfortable with the racial and religious profiling the Assistant Commissioner appears to be employing.  We understand that the average prayer time for Muslims is approximately 7 minutes, including the cleansing ritual, five times per day.[14]  We find it hard to believe that 35 minutes of religious observance per day can delay a criminal investigation.  Affording prisoners of any religion the courtesy of allowing them to practice their customs ought to be taken for granted in any civilised country, while depriving people of these rights would rightly be interpreted by the wider community as oppressive and offensive.

4        Alternatives to extending detention powers

4.1              BIRW is opposed to the idea of charging suspects with more minor offences to enable the police to continue their investigations.  We believe this would contravene the right to due process, and undermine the judicial system.  In Northern Ireland, this principle has been applied (either by design or accident) and the result has often meant that suspects have to be granted bail as the time taken to get to trial has been deemed to take too long.  In some cases this has enabled suspects to commit further offences. 

4.2              BIRW is similarly opposed to the principle of the police being able to continue questioning terrorist suspects after charges have been brought.  BIRW believe this could lead to the harassment of detainees.  If there is not enough evidence at the time of charging, then no charge should be applied.  The vulnerability of detainees should not be utilised to build further cases against them. 

5                    Conclusion

5.1       British Irish rights watch encourages the Home Affairs Committee to collaborate with the Joint Committee on Human Rights on the issue of extended detention.  Their investigation into detention concluded “that three months would have been clearly disproportionate and, in view of the deficiencies in the procedural safeguards for the detainee, which the original Bill did nothing to improve, would have also been accompanied by insufficient guarantees against arbitrariness.”[15] BIRW agrees with this opinion. 

5.2       As we have stated elsewhere, draconian legislation is not an effective method of combating terrorism.  The police appear to believe that limiting the application of the CAT and ECHR will serve to enhance their investigations into terrorist activity.  As this submission has indicated, the argument for these limits is ultimately flawed. 

DECEMBER 2005

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  19 December, 2005