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Counter-Terrorism Bill

We on these Benches support the amendment so powerfully moved by the noble Lord, Lord Dear. Anyone who has travelled from British airports over the past two years will know that they have had to carry their toothpaste, shaving cream and toiletries in a clear plastic bag and they have been reduced to carrying one item of luggage. It has not been the easiest time for travellers. This is a result of Operation Overt. Twenty-four suspects—young Muslim men—were arrested on the night of 9 August 2006. After 12 days, on 21 August, 11 were charged with conspiracy to blow up aeroplanes in flight by mixing liquids together, carried, it is said, in Lucozade bottles, into an explosive concoction. An application to extend time beyond 14 days was granted in respect of another nine. Of these, six were subsequently charged—two on 15 August, some 16 days after arrest; three on 30 August, after 21 days; and three were released after being held for, respectively, 24 days, 27 days and 27-and-a-half days. Of the 21 who were charged, only eight eventually faced trial some 18 months later. On 8 September, only four weeks ago, two years after the original arrests, the jury, after more than 50 hours of deliberations, was unable to agree any verdict against seven of the defendants relating to the plot to blow up aircraft. Three were, however, found guilty of other conspiracy to murder charges; one was acquitted entirely. So the total bag out of the 24 who were originally arrested was three convictions unrelated to the airline plot. I say no more about it for the reason the intervention was made just now. I am told that there may be retrials and that the Government are facing expensive civil litigation from airlines who lost millions from the restrictions imposed upon them. But would the outcome of these trials have been any different if those people had been kept without charge for 42 days? The period for detention in Spain is 14 days. Twenty-nine suspects were arrested for the Madrid bombings and there were 21 convictions. I made the point at Second Reading that the charging of a suspect does not for a moment inhibit the continuing investigation of an alleged offence. So there is no case whatever for suggesting that 42 days will bring about a conviction when 28 days will not. The Home Office agrees because, in its consultation paper, Options for Pre-Charge Detention in Terrorism Cases, published in July 2007, it acknowledged that there has been no case in which a suspect was released but a higher limit than 28 days would definitely have led to a charge. My noble friend Lord Carlile put it more elegantly in his evidence to the Commons Home Affairs Committee in October last year when he said, "““in an intelligent argument on this issue a number of days is entirely arbitrary, so that you cannot say with logical empirical analysis that 14 or 28 or 30 or 56 or 90 days—or any particular number of days—is actually the perfect cut-off ””," although he recognised that Parliament would impose a cut-off. His sayings and writings have been pored over on the Government Benches with a zeal matched only by Scotland’s famous son, Alexander Cruden, when he created his 1737 concordance of the Bible. But they seem to have missed this one. I sincerely hope that my noble friend Lord Carlile will develop the argument he advanced last October for a proper and fully human rights-compliance system of judicial control of detention before charge. He does not need any help from me. A fundamental concern arises from the proposition that a young Muslim—and they all have been young Muslims—should be arrested on nothing more than the words of an officer, ““I believe you to be a terrorist””. According to the highly experienced defence barrister, Ali Naseem Bajwa, who gave evidence to the Joint Committee on Human Rights, detainees are taken to the police station and told nothing for many days of the basis upon which they are there. In Operation Overt, it emerged that disclosure was virtually non-existent for the first week of custody. Disclosure is, of course, where the police tell the defence solicitor, if there is one, of the nature of the matters about which they intend to question the suspect. Over the first four days of their detention, there were only three hours, on average, of total questioning of each detainee—three hours over four days each. Rather than being about any offence they may have committed, the questioning was mostly about their personal circumstances and background. Those who were charged after 15 days—the first group—were interviewed in total for 13 to 14 hours each. That is rather less than one hour a day. Those who lingered on to the end of the 28-day period before being released spent only the same amount of time overall—13 to 14 hours—in interview. Many days of their last 15 passed without any interview at all; the average was for 10 minutes a day. So extending time limits for questioning suspects seems to encourage a very leisurely approach. The essential thing to remember is that if a detainee is held without charging, it means that the police have no reasonable suspicion that he has committed any terrorist offence at all, even the mildest form of terrorist offence—that of preparation for committing a terrorist offence. If they do have such evidence, they are under a legal duty to charge him. In September 2005, the Director of Public Prosecutions, Sir Ken Macdonald, issued to prosecutors an explanatory guide on the application of the threshold test, which allows the prosecutor to charge where there is no more than a reasonable suspicion that an offence has been committed. In terrorist cases, that reasonable suspicion may arise on evidence which would be inadmissible in court—for example, intelligence or intercept evidence. That guide was, however, not made public. Indeed, it does not seem to have reached its intended target for some time: Deputy Assistant Commissioner Clarke, head of the Met terrorist branch, told the Home Affairs Committee in February 2006 that he did not think the threshold test was at all applicable to these cases. However, Sir Ken Macdonald, the retiring DPP, told the Home Affairs Committee last December that, "““given the nature of the threshold test, the evidence is only required to demonstrate a reasonable suspicion that the defendant committed the offence. I can only say to you that our experience so far has been that we have managed and managed reasonably comfortably””." In my Second Reading speech, I outlined the practical reasons why detention without charge will lead to a drying up of intelligence to the security services, upon which all investigation depends, and how that will inevitably increase terrorism and diminish the security of the people of this country. Today I focus upon the weaknesses and the so-called extension hearings, where the DPP or a Crown prosecutor acting with his consent, can apply to a senior judge for extensions of time. Those extensions will continue to be governed by Schedule 8 to the Terrorism Act, which the Bill seeks to amend. Those weaknesses are these: the applications to extend time beyond the original 14 days may be made ex parte. In other words, the hearing, or part of a hearing, may be held between the prosecution and the judge in private and in the absence of the accused, or of anybody representing him. Secondly, information may be withheld from the detainee or his lawyers so that he is not told the state of play in the investigation against him. Mr Bajwa described how in one case he was given three applications, identically worded, to support three applications for more time in respect of the same detainee—the same wording for seven to 14 days as from 14 days to 21 and 21 to 28. In other words, nothing further was disclosed as to the state of the investigation. Thirdly, the detainee has no entitlement to be brought in person before the judge. He may be dealt with by videolink from the hallway of Paddington Green police station. The judge, who is supposed to be monitoring his welfare, has the opportunity to see the detainee only on television. It is a brave person who complains about the circumstances of his detention when surrounded by his jailers. Fourthly, according to the Crown Prosecution Service, cross-examination of the senior investigating officer to test the strength of the application is not a legal entitlement. The senior officer who is making the application is not required to answer questions by the detainee or his lawyer on the reasonableness of the application that he is making. It is therefore no surprise that no application for extension has ever been refused and there has been only one occasion on which the number of days has been reduced. You can see why. The police tell the judge that they have plenty of irons in the fire. They say, ““The investigation’s going well. You must trust us. If anything should turn up in our investigations, we want the detainee there so that we can question him about it””. These are not proper, full, adversarial hearings. As the Joint Committee on Human Rights put it in its ninth report, issued on 7 February, the Bill contains, "““no additional judicial safeguards … and the existing … safeguards do not provide a proper opportunity, at a truly judicial hearing at which the parties are on equal terms, to challenge the reasonableness of the suspicion on the basis of which they are detained””." In other words, the Government are using the judiciary as a convenient cover to give an aura of respectability to what is essentially executive detention. I will not weary the Committee with pointing out the innumerable breaches of the European Convention on Human Rights; the injustice and the lack of fairness are obvious. Nor do I propose to dwell on the farce of asking Members of Parliament to vote on whether an individual should be held in custody on the basis of a redacted statement provided by the Home Secretary to the obvious prejudice of any future trial, which is not just unconstitutional but contemptible. I join all noble Lords who care for fairness and justice in calling for these proposals to be thrown out and for our real security to be maintained by sticking to the values on which the civilisation of this country depends.