The police powers of 28-day pre-charge detention were first used in the recent arrests in the so-called "aircraft liquid bomb plot". So how did the police and courts act in practice, and what can be learned from the experience?

Background

Under the Terrorism Act 2000 (TA 2000), suspects could, subject to the grant of a warrant for further detention, be detained pre-charge for up to 14 days. After the London bomb attacks in July 2005 and lobbying by the Association of Chief Police Officers, the government introduced the Terrorism Bill which, among other things, proposed increasing the maximum period of pre-charge detention to 90 days.

In March 2006, the government was defeated in the House of Commons on the 90-day proposal and the Terrorism Act 2006 was passed with pre-charge detention increased from 14 days to a compromise of 28 days. The Police and Criminal Evidence Act 1984 (PACE) Code of Practice H: Detention, Treatment and Questioning by Police Officers of Persons under section 41 of, and Schedule 8 to, The Terrorism Act 2000 (code H) was then drawn up by the Home Office and the 28-day detention provisions were formally brought into force on 25 July 2006. A little over a fortnight later, the aircraft liquid bomb plot arrests were made.

The provisions

Detention of individuals arrested on suspicion of involvement in terrorism is governed by TA 2000, Sch 8, as amended by the Terrorism Act 2006 (TA 2006), ss 23-25.

In considering the question of detention beyond two days, the court must ask itself two questions:

That two-stage test is applied initially by a district judge at the two to seven-day and then seven to 14-day stage, and thereafter by a High Court judge to detention at the 14 to 21-day and finally, 21 to 28-day stage.

Significantly, under code H, para 14, a suspect must be transferred to a prison for the 14 to 28-day period of pre-charge detention unless:

Code H ceases to have effect once a suspect leaves a police station for detention in a prison; thereafter detention is governed by TA 2000, Sch 8 and The Prison Rules 1999 (SI 1999/728).

How 28-day detention worked in practice

A number of matters were noticeable in the police's conduct during the pre-charge stage of the aircraft liquid bomb plot case. First, the police have never been forthcoming with disclosure in terrorism cases but now, given the weeks that stretched out before them, disclosure of any value was particularly rare.

Second, questioning of the suspects slowed down to snail's pace. In the first 14 days, a single interview per day was the norm and in the period between 14 and 28 days, many days passed with no interviewing at all.

Despite lengthy submissions by the suspects' representatives to the district and High Court judge about the lack of urgency and proper disclosure by the police, in no case was there a judicial finding that the investigation was being conducted with anything other than diligence and expedition and, while in a few instances the time granted was shorter than requested, no application for a warrant or extension was refused.

A total of 24 people were arrested. The table (see below) shows how the suspects were dealt with and in what time period.

It is interesting to note that eight of the alleged "main players" in the conspiracy were charged fairly quickly-within 11 days of their arrest; well within the time frame of the old 14-day limit.

At the other end of the spectrum, it is significant that of the five people who were authorised to be detained for the maximum 28-day period, three were released without charge. A fourth was charged on evidence that was available to the police at a relatively early stage of the investigation.

All of the nine suspects authorised to be detained for more than 14 days were transferred to prison. They were returned to the police station for any interviews, but many days were spent in the prison with no attempt made by the police to question them.

The concerns about the practice of moving suspects to prison for the 14 to 28-day period, which have not been allayed, centre around the lack of any of the code H safeguards, e.g. keeping a custody record, exposure to the risk of false "cell confessions" and a risk that the prison environment will place undue pressure on suspects.

It must be recognised that transfer to prison during the 14 to 28-day detention period provided some benefits to suspects. Most of them indicated that prison provided a welcome respite from 14 days of solitary confinement at the police station; they were allowed unfettered association with other prisoners (including other suspects in the case), use of some of the prison facilities and regular legal visits. However, no social visits or phone calls were permitted, and suspects were returned to and detained at the police station for a few days at a time when there was a renewed bout of interviewing.

90-day detention

It remains to be seen whether courts will find 28-day pre-charge detention to be compatible with the European Convention on Human Rights or whether, in some circumstances, evidence obtained by questioning the suspect or adverse inference from any silence during the 14 to 28-day period of detention will be ruled inadmissible.

However, the issue of increasing 28 days to 90 is back on the political agenda. On 20 June 2006, the House of Commons Home Affairs Committee report, Terrorism Detention Powers, concluded: "...the growing number of [terrorism] cases and the increase in suspects monitored by the police and security services" meant that "the 28-day limit may well prove inadequate in the future". Both the Prime Minister and the Home Secretary have both made clear their continued support for 90 days.

In considering the acceptability of 90-day pre-charge detention, one should recall the three people detained in the aircraft liquid bomb plot case for the maximum permissible period of detention, only to be released without charge. Under a 90-day regime, they might easily have remained in custody for many more weeks. Another of the suspects, referred to in custody as P, who was released without charge after "only" 14 days, remains traumatised by his experience.

In the early hours of the morning on 10 August 2006, police officers burst into the home P shared with his wife and newborn baby, arrested him on suspicion of involvement in terrorism and transported him to Paddington Green Police Station. When P's assets were frozen, his name, like most of the other suspects, was released by the Treasury and widely reported. He was kept in virtual solitary confinement at one of highest security police stations in the UK for 14 days during which time not a shred of evidence implicating him in the aircraft liquid bomb plot or any other terrorism was disclosed to him. At the end of all this, he was released with no explanation, apology or promise that it would not happen to him again. Imagine what state P would have been in after 90 days of detention. Imagine the effect upon his family, his reputation and employment.

In P's case, on what basis did the court grant a warrant of further detention to seven days and then an extension to 14 days? The answer lies in the way in which the court's two-stage test is framed. There is at no stage in the whole process a requirement for the police to demonstrate to the suspect's representative or the court that there is sufficient evidence to justify the decision to arrest and detain. All that the court is required to be satisfied of is that the police are awaiting the result of an examination or analysis of any relevant evidence, and that the investigation is being conducted diligently and expeditiously. This can, in most cases, be established even where the detainee is manifestly innocent.

Some of the reasons given by the police for seeking an extended period of 90-day detention-such as hold-ups in the investigation because of time allowed for prayers and consultation time with solicitors and delay in finding suitable interpreters-are too feeble to merit a detailed response. Suffice it to say that the police are able to cope with all of these difficulties in all other serious and complex criminal cases where the maximum period of detention is only four days.

The other reasons given-principally, the complexity of the investigation-simply do not stand up to scrutiny. Computer, mobile phone and scientific examinations can be, and are, prioritised. The fact is that the police will always have more than enough time to interview, and evidence to rely on, within 14 days to justify a decision to charge, whereupon a judge will give the Crown virtually as much time as it needs to complete investigation before the case is tried. If there is insufficient evidence to charge after 14 days, surely the suspect should be given the benefit of the doubt and released.

No justification

One cannot escape the suspicion that all 24 people arrested in the aircraft liquid bomb plot case would have been dealt with in exactly the same way had the maximum period of pre-charge detention remained at 14 days. If a case for 28-day detention cannot be made in a case as complex and substantial as this, there is little justification for seeking to increase the maximum beyond 28 days, less still to 90 days.

In fact, advocates for 90-day detention have not been able to point to a single case in which an erroneous decision about charge or release was made because of difficulties encountered in making a decision within 14 days.

When TA 2000 was first brought into force, the limit on pre-charge detention was seven days. This was increased in 2003 to 14 days. Each of these moves to single out terrorism cases for a higher maximum detention period was highly controversial. Now, in 2006, it is 28 days. Attempts to increase it further must be vigorously resisted.

Ali Naseem Bajwa is a barrister at 25 Bedford Row and Bernie Duke a solicitor at Attridge Law. Both act for one of the defendants, G, in the aircraft liquid bomb plot case.

Key Points

Source: New Law Journal (20th October 2006) [printed media]

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