Supplementary evidence to the Home Affairs Committee Inquiry into Counter-terrorism Proposals

Introduction

1. The comments below concerning the anti-terrorism proposals announced by the Government on 25 July 2007 are made in addition to the written evidence we submitted to the Committee on 10 July 2007.

2. We note with approval the Government’s expressed desire that consideration of the latest anti-terrorism measures occur in as consensual a manner as possible.

We welcome the approach of treating those who are alleged to engage in acts of terrorism as criminals, who should be prosecuted in the normal way in the criminal courts. 

Extension of pre-charge detention powers beyond the current limit of 28 days

3. As the Government has rightly acknowledged,  there is a fine balance to be struck between individual liberty and national security.

To increase the time for pre-charge detention without good cause risks alienating and deterring the cooperation of the very people who may otherwise supply information to prevent terrorist crimes.  

4. The Law Society, like the Joint Committee for Human Rights,  is not convinced by the arguments for increasing the period of time for which a person can be held before they are charged. 

On the contrary, the evidence contained in the Options paper  indicates that the current period, one of the longest periods of pre-charge detention in any comparable system,  is sufficient even in cases of great complexity (such as the airline plot).

5. We share the concern of the Joint Committee on Human Rights that the proposed extension to the pre-charge detention period is being sought on the precautionary basis that 28 days will possibly be inadequate in the future.

Any increase in the pre-charge detention period must be justified by evidence, rather than being based on the Government’s belief ‘that there will be cases in the future, possibly quite soon, in which more that 28 days will be needed for charges to be brought’.  

6. In our view, initiatives that have already been taken, as set out in pages 6 and 7 of the Options paper (new offences, use of the threshold test), should be allowed time to bed down, and be combined with other initiatives not yet in place, such as the use of intercept evidence and post-charge questioning with appropriate safeguards. 

The cumulative effect of these measures should be evaluated before embarking on the draconian course of a further increase in the length of pre-charge detention.
 
Post-charge questioning

7. We note that the power to question after charge already exists in certain circumstances, particularly in relation to complex terrorism-related investigations, questioning to minimise the risk of harm, or where it is in the interests of justice to allow the detainee to comment on information which has come to light since charge. 

To prevent any suggestion that post-charge questioning is oppressive it should only be undertaken in relation to new information that has arisen since charge, and not simply be repetition of previous questioning. 

It should be authorised by a police officer of Inspector rank, and the defendant must be entitled to challenge any requests for questioning before the court, which should have the power to prevent it if it is not satisfied it would be in the interests of justice. 

The defendant must have access to legal advice by a solicitor in person during any such questioning.

Enhanced sentences

8. While the Law Society is not opposed in principle to enhanced sentences for non-terrorist specific offences that are motivated by a terrorist purpose, we suggest that the breadth of newly created offences, such as ‘acts preparatory to terrorism’, will mean it is unlikely that an appropriate terrorism related offence could not be charged.

For example, the forger of passports referred to in paragraph 38 could be charged with acts preparatory, or the burglar raising funds to buy weapons for terrorist purposes could be charged with terror finance offences.

We note that the Possible Measures paper suggests that it would be ‘the courts who would determine whether or not an offence was terrorism related’ for the purpose of imposing an enhanced sentence for non-terrorist specific offences.  

However, the paper does not propose increasing the maximum penalty, and suggests a right of appeal in relation to such a determination for both the defence and the prosecution. 

We are therefore unsure what exactly is being proposed. 

If there is to be the possibility of an enhanced sentence due to the presence of so serious an aggravating factor as the commission of an offence for terrorism related purposes, this must be an element of the offence, to be either admitted as part of a guilty plea, or proved beyond doubt at trial, in a similar way to a racially or religiously aggravated offence