Pre-Charge Detention: Countering the Threat?

“Neither the police nor the government have made a convincing case for the need to extend the 28-day limit on pre-charge detention. We consider that there should be clearer evidence of need before civil liberties are further eroded, not least because without such evidence it would be difficult to persuade the communities principally affected that the new powers would be used only to facilitate evidence gathering and not as a form of internment.” House of Commons Home Affairs Committee, December 11 2007

The amount of time police can hold terror suspects without charge is a contentious political issue which been condemned by civil liberties campaigners, opposed by MPs of all parties and questioned by experts from across the field.

In 2005, Tony Blair was voted down by MPs when he attempted to push through legislation to increase the limit of pre-charge detention to 90 days. The former prime minister had wanted to increase the detention limit from 14 days to 90 days, but some 322 MPs – including 49 Labour backbenchers – rebelled against the move.

Parliament later opted to double the limit to 28 days, but opposition parties claimed Blair had lost his authority. The divisive issue has returned to Parliament under Gordon Brown, who looks set to face a similarly humiliating defeat. In December 2007 home secretary Jacqui Smith said police should have 42 days to question suspects in “exceptional circumstances”.

But if a survey of Labour MPs by the Independent newspaper is anything to go by, at least 38 MPs are planning to vote against the move – enough to wipe out Brown’s majority of 67. Previously, ministers had expressed a preference for a 56 or 58-day limit and many are questioning just where the 42 day figure came from.

The Conservatives, Liberal Democrats, civil liberties campaigners, prosecutors, the former attorney general and for a short while the security minister have all come out in opposition to any increase. And Brown’s determination to press ahead with the plans – despite widespread opposition to them – is seen by many as an attempt by the prime minister to flex his political muscles. “Political machismo will not defeat the global terror threat,” shadow home secretary David Davis said in November last year.

Parliamentarians are also yet to be convinced of the need to extend the limit of pre-charge detention, with the Commons home affairs committee saying in December there was “no evidence” for such moves. MPs on the committee warned that raising the limit without proper evidence could be perceived as a form of “internment” by the Muslim community.

The joint committee on human rights has also added its voice to the calls for the government to abandon the 42 day figure, saying this was the only way it would build a consensus on counter-terrorism policy.

Sir Ken MacDonald, the director of public prosecutions, has said that prosecutors had managed within the current limit, and former attorney general Lord Goldsmith said he would have resigned from Tony Blair’s government had the former prime minister been successful in his 90-day bid.

Other dissenting voices come from former lord chancellor Lord Goldsmith, London mayor Ken Livingstone and mayoral hopefuls Tory candidate Boris Johnson and Liberal Democrat former police chief Brian Paddick. The government attempted to appease critics by saying that any extra powers for the police would be coupled with parliamentary safeguards and judicial scrutiny. However, these were exposed as something of a sham when it emerged that a suspect could already have been held for 42 days before Parliament started debating the case.

Labour MP David Winnick – a member of the Commons home affairs committee and a key player in the revolt against Blair’s terror laws – described this measure as a “cosmetic exercise”. Figures from Liberty show that, at 28 days, Britain has by far the longest pre-charge detention limit compared to similar democracies. In Canada, police can hold suspects for only one day; while in Turkey it is 7.5 days. If ministers succeed with their proposal for 42 days, police in Britain would be able to hold terror suspects for six times longer than those in Ireland.

Not only can prolonged detention have devastating consequences for an individual’s personal and professional life, it also contravenes some of the most basic human rights. Amnesty International published a list of 10 reasons against extending the existing limit, which points out that terror suspects do not have the right to be told why they are being held and what they are charged with. It also notes that the move undermines the presumption of innocence, and points to concerns that policing and intelligence gathering could be negatively affected, as the Muslim community becomes increasingly alienated.

So what are the options? Countering terrorism does not have to involve an attack on our civil liberties. More prosecutions could be secured through various other means, including removing the ban on intercept evidence in court and introducing post-charge questioning in terror cases. Some have suggested using emergency measures in the Civil Contingencies Act to detain suspects, although MPs have said that this could pose “significant legal problems”.

No-one is disputing the fact that terrorism poses a very real threat to Britain, or belittling the experiences of victims. But as Rachel North, a survivor of the July 7 London terror attacks, said: “It’s fundamentally important to us as a country that we do not hold people without them knowing what they’re being charged with and why.”

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This post was written by Martha Moss