I admire the campaigning organisation Liberty. Charismatic leadership has given it refreshing visibility and importance. I share its desire to protect civil liberties, especially those threatened by potentially arbitrary actions by the state. Liberty's concern about counter-terrorism law is justified. The threat of terrorism instills in government a sense of foreboding at least as great as that felt by the public at large. Guardians are needed to protect us from repressive and disproportionate laws. It takes courage to stand up for potentially unpopular causes. Liberty does so by instinct.
Liberty recently published a report comparing periods of pre-charge detention in Britain with those of other countries. Unfortunately, the report, and Liberty's presentation of it, fell below the group's high standards. Informed debate, not mere campaigning zeal, is required for matters as weighty as the increase in the maximum period of detention before charge.
Since 2001, I have looked closely at practices in other countries. What can happen abroad has been illustrated by recent events in Italy. The murder of the student Meredith Kercher was an act of appalling brutality. However, the fact that the arrested suspects could spend up to a year in custody without being charged is something I know Liberty would regard as unacceptable legal process—a blot on the civil liberties of suspects, some of whom might be innocent. Yet Liberty's report implied that this was not possible in Italy.
Liberty's report cites US practice in terrorism cases as fairer than ours. In response, one needs only two phrases—Guantánamo bay, and extraordinary rendition. Moreover, the US Patriot Acts give the government sweeping powers over citizens that no British government would stand a chance of passing. In one executive act, the US government deprived a US citizen, José Padilla, of his rights as a citizen and locked him up in what the American media call a "brig"—in fact a purpose-built military establishment. America offers no template of civil liberties where terrorism is concerned.
Liberty's approval for French law is also misplaced. It reminds us that in France it is only possible to hold a terrorism suspect without charge for up to six days. This is strictly true, but what actually happens in France includes the detention of suspects for at least three days without the right to have a lawyer present; interviews during that period without tape recording (a French investigating magistrate described tape recording to me as "technically problematic"); and detention for periods often up to a year without any trial taking place, followed by release. Unsurprisingly, the three-day interrogation period was described to me by the same expert magistrate as "a productive period of interrogation." In 1984, the Police and Criminal Evidence Act brought that kind of interviewing to an end in this country, with the explicit support of Liberty (I was a member of its management committee at the time).
The French do charge suspects after a maximum of six days' detention. They charge them with the offence of association de malfaiteur (criminal association), an offence risibly vague, which is then replaced in cases that reach trial by far more serious accusations. Liberty should regard such holding charges as totally unacceptable, and a device designed merely to keep suspects in custody.
In this country, the police are expected to charge suspects with what they are believed to have done. I hope that this will continue. The police must proffer a realistic charge at the earliest possible time. Our leading civil liberties lobby group should not allow itself to diminish genuine and, it is to be hoped, informed debate by offering a false picture to the public of the very different continental system. Australia offers a fairer comparison, but the circumstances there are unlike ours.
In the argument about detention periods, two measures are being offered as silver bullets which would negate any need for extended detention time. These are post-charge questioning, and the use of intercepts as evidence. As to the former, it might encourage holding charges; and, as the respected terrorism barrister Ali Bajwa rightly told the BBC last week, it would make little difference, as those charged may refuse (on advice) to answer such questions anyway.
As to intercepts, I support their admissibility subject to the protection of national security and sound rules to govern the use of the evidence. However, almost all those with profound knowledge of the workings of terrorists expect that intercept evidence will be of material assistance in only a tiny proportion of trials.
Neither of those proposals is a silver bullet. Neither displaces the essentials of the argument about longer detention.
Kafeel Ahmed, an aeronautical technologist, was injured fatally while allegedly involved in the Glasgow airport incident in late June. He survived more than 28 days after the attack, but was never fit to be interviewed. Although not formally arrested, he might have been. Is it right that the entirely foreseeable event of a terrorist being injured in an incident or at the time of arrest should lead to his escaping questioning by the police? In some cases, the arrest of a large group, especially if some are poor English speakers, can result in delays in police processing. In some investigations, heavily encrypted computers can take weeks to read. These are three examples of the situations in which 28 days may be insufficient for the bringing of a meaningful charge.
It is true that as yet, there has been no case tried in which 28 days has been demonstrably insufficient. Many have yet to be heard. From my position as independent reviewer, I can foresee the possibility of the occasional, but extremely dangerous, terrorist slipping through the net because of the current 28-day limit.
Nevertheless, I think that some suspects may be detained for too long under the current rules. So what I suggest is a new set of rules, with the maximum period to be set by parliament. This is likely to be no longer than 56 days, but it is the rules that are important, not the arbitrary number of days. The new system should involve greater day-to-day supervision by judges to ensure that nobody is detained for a day longer than necessary in the interests of justice, nor a day shorter.
National security is an important civil liberty for each of us. It is too serious for party lines or campaigning zeal. Inaccurate comparisons with the laws of other countries do nothing to illuminate this debate.
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