The Assault on Liberty: What Went Wrong with Rights

Equally, while the most repressive measures proposed – control orders, the offence of glorification of terrorism and extending pre-charge detention – have generated political controversy and threatened or undermined individual liberty, they have subsequently proved to be of minimal security value, if not outright counter-productive.

Of the string of measures announced, none posed a greater danger to British liberty than the new proposals to extend detention without charge, a serious threat to the ancient right of habeas corpus. In 2003, the previous seven-day limit on detention without charge – which had proved adequate for dealing with Irish terrorism for the past twenty years – was doubled to fourteen days, in response to the terrorist attacks on 9/11. While all other serious criminal cases remained subject to a four-day limit (including drug trafficking, organized crime and complex fraud cases), in 2005 Tony Blair sought to extend the time limit in terrorism cases to ninety days, offering no credible evidence as to why yet another massive increase was necessary to protect the public. In November 2005 the ninety-day proposal was rejected, Blair’s first ever parliamentary defeat, but the limit on pre-charge detention was increased to twenty-eight days – as an extraordinary emergency power to be used only in the most exceptional of circumstances.

While the proposals were rushed through without an opportunity for thorough scrutiny, evidence made available since suggests that some increase in the powers of police detention beyond fourteen days was necessary to deal with the increased terrorist threat and the growing number, and increasing complexity, of cases under police investigation. Basic details of the number of suspects and volume of evidence in police counter-terrorism investigations demonstrate some of the operational pressures on police and prosecutors. This was backed up by public briefings from the Security Service, MI5. In 2006, the Director General of MI5 spoke publicly of thirty terror plots threatening Britain and 1600 individuals under surveillance. By 2007, her successor had revised that risk assessment – the Security Service was now monitoring at least two thousand individuals thought to be involved in terrorism – and estimated that there might be a further two thousand they were unable to track.

Nevertheless, the government also increasingly relied on the shroud of secrecy that covers the work of our counter-terrorism authorities to avoid explaining the reasons for extending the powers of the police to hold suspects without charge. And while it has demonstrated an insatiable political appetite for extending the maximum period still further – beyond twenty-eight days – it has not offered any convincing evidence to demonstrate that such a step is necessary.

Between 2005 and 2008 the government put forward numerous proposals to extend the detention without charge beyond twenty-eight days. Seemingly plucked out of the air, proposals for fifty-six, fifty-eight, ninety days and even indefinite detention without charge were all mooted – with the government settling on forty-two days in the face of widespread scepticism from Parliament and the wider public. Despite some indications that Gordon Brown might prove less cavalier as Prime Minister than his predecessor, he made clear his intention to press ahead soon after taking office in June 2007. The government forced the legislation through the House of Commons on 11 June 2008 by nine votes, despite a major revolt by Labour backbenchers and amidst widespread reports of reticent MPs being bullied or offered financial inducements to silence their dissent. One estimate put the price tag on securing the vote as high as £1.2 billion. In October, the forty-two days proposal was subsequently mauled from all sides in the House of Lords. The Home Secretary reacted by accusing all those opposed to forty-two days of ignoring the terrorist threat and withdrawing the proposal from the Counter-Terrorism Bill. Yet at the same time, she published a separate new proposal, with even wider powers to extend pre-charge detention to forty-two days, and threatened to force it through Parliament in the event of another terrorist attack – an irresponsible display of sublime political brinkmanship.

While the government cites police support for forty-two days, the equivalent of a short prison sentence, it has failed to articulate any persuasive justification or present any evidence to back up its case. Nor has it explained why other less repressive measures would provide inadequate alternatives. Instead of presenting a compelling case on the merits, the government has relied on popular nervousness after the 7/7 bombings and the – increasingly abused – public trust that the government would not seek additional security powers unless it was absolutely necessary.

So what is the strength of the case for extending detention without charge in Britain beyond twenty-eight days? A cursory comparison with international practice is revealing. At twenty-eight days the UK already has by far the longest period of pre-charge detention amongst comparable democracies. In Europe, France permits only six days’ pre-charge detention and Germany only two. While the continental justice systems operate differently, these represent the limits on the period of detention without formally laying charges before an accused. In common law countries with a justice system more closely comparable to our own, Australia allows twelve days’ pre-charge detention, New Zealand two and Canada just one day. In the US, after the horrors of 9/11 – and two terms of President George W. Bush’s war on terror – two days’ pre-charge detention has proved more than adequate in dealing with ten recent complex terrorism investigations. Outside the democratic world, Russian law only allows the police to hold suspects for five days, Zimbabwe only allows twenty-one days’ detention and even China only allows police detention of suspects for thirty-seven days. Britain, once a beacon of liberty, now has the longest period of detention without charge in the free world.

If international comparisons suggest that forty-two days is excessive, experience at home points to the same conclusion. While the security environment in Britain has changed in recent years, none of the counter-terrorism investigations in the UK to date have demonstrated the need for a longer period. Twenty-eight days was enough to comfortably deal with the most complex terrorism case we have ever faced, the plot to blow ten transatlantic airliners out of the sky at Heathrow in August 2006. If successful, it would have been the worst terrorist attack in British history, almost certainly causing a greater number of casualties than the attacks in the US on 9/11. Operation Overt, the police investigation that followed, was certainly complex – involving close cooperation with international partners, sifting large amounts of evidence (including computer hard drives and forensic analysis) and reviewing a wide range of suspects. It was held up, on both sides of the debate, as the litmus test case for scrutinizing whether the police can cope with a twenty-eight-day limit.

During Operation Overt, twenty-four suspects were arrested and seventeen were charged with terrorism offences. Of the twenty-four arrested all of those charged with the more serious offences of conspiracy to murder and conspiracy to blow up aeroplanes were charged within twenty-one days of arrest. Five were detained on lesser charges of ‘acts preparatory to terrorism’ (and other related offences) to the maximum limit of twenty-eight days.

The five held for twenty-eight days formed the crux of the government’s case for an extension of the time limit. Ministers claimed the police were coming perilously close to having to release terrorists, because they were running out of time to gather the necessary evidence to charge them. But do the facts back this up? Of the five held for twenty-eight days, three were released without any further conditions. They were not placed under any restrictions on release. They were not subject to a control order, or any other related measure, limiting their movements or activities – the clearest indication that, by that point, they were now believed to be entirely unconnected with any terrorist activity relating to Operation Overt. So, the three innocent suspects released after twenty-eight days do not provide evidence that the government needs a longer period of detention to prevent real terrorists from walking free.

However, two of the five suspects were charged at the end of the twenty-eight-day period. But, in both cases, the Metropolitan Police and Crown Prosecution Service subsequently confirmed that the evidence relied upon to charge them was obtained within four and twelve days of arrest respectively. Furthermore, both suspects were subsequently bailed, which no court would conceivably have allowed if they posed a threat to public safety. The Home Secretary, Jacqui Smith, and the Minister for Security, Tony McNulty, both persistently denied these facts when they were presented to them in the House of Commons. At best, they failed to test the evidence presented to them by the police with the rigour to be expected of ministers. At worst, they disregarded – and then denied – key facts that they found inconvenient as they struggled to make the case for forty-two days. Either amounts to a serious dereliction of ministerial duty. The fact remains that, in the most challenging terrorism investigation the UK has ever had to deal with, police obtained all the evidence necessary to charge all the suspects within twenty-one days – not twenty-eight let alone forty-two days. There was never any risk that the police would have to release a serious terrorist suspect – posing a threat to the public – as a result of the twenty-eight-day limit.

On the contrary, as the Director of Public Prosecutions (DPP) made clear for all counter-terrorism investigations carried out under the twenty-eight-day limit, the law enforcement authorities coped comfortably. Far from being ‘up against the buffers’ operating within the twenty-eight-day limit, as one senior police officer would later irresponsibly claim, the twenty-eight-day maximum limit gave the police ample time to gather the evidence required to make the decision to charge or release, even in the most exceptional of cases. There has been no other evidence or cases – suggested or adduced – that support the case for extending detention without charge beyond twenty-eight days.

This explains why senior law enforcement officials have refused to back yet another extension of the maximum limit – including the DPP, the senior prosecutor at the Crown Prosecution Service, Lord Goldsmith, the former Attorney General, and a range of senior police officers. While the Commissioner of the Metropolitan Police sought to justify the move, his support was based on a ‘pragmatic inference’ that cases are getting more complicated, rather than any particular evidence drawn from police operations.

Further insights into the operational challenges faced during Operation Overt would emerge later at the end of the first trial of eight of the central suspects, which concluded on 9 September 2008. None of the suspects were convicted of conspiracy to blow up aeroplanes, although three were convicted on the more general charge of conspiracy to murder. In the aftermath of the trial, recriminations began to emerge from police, prosecutors and Whitehall, dismayed about the failure to convict anyone of the specific plot to blow the transatlantic airliners at Heathrow out of the sky. Reports trickling through the media suggested that police had been forced to arrest the suspects pre-emptively, by nervous US officials scarred by the experience of 9/11. The arrests were carried out earlier than planned, before the plotters had purchased airline tickets and obtained new passports, which would have provided valuable additional evidence of the specific plot. If this is accurate, and pre-emptive arrests prevented the police and MI5 from catching the plotters red-handed, then no amount of pre-charge detention would be able to rectify that evidential opportunity lost.

In the wake of the verdicts, Andy Hayman, the former officer who ran Operation Overt, went public with a withering critique of the organization of counter-terrorism policing in Britain. He criticized the lack of effective cooperation between local police forces and the Metropolitan Police’s national counter-terrorism command, and went on to highlight a list of operational police failings that were impeding the counter-terrorism effort:

…the present arrangements are frequently clumsy: IT and communication systems are not always joined up; surveillance teams, armed response units and scenes-of-crime officers vary in expertise and capability; the lines of command and control become stretched…These factors are serious enough but they pale into insignificance compared to funding arrangements.

Hayman called for an overhaul of counter-terrorism policing. He was a supporter of ninety days’ pre-charge detention in 2005, yet in his post-mortem of Operation Overt he did not once mention the twenty-eight-day limit amongst the problems he had encountered during that investigation, or more widely.

Lacking any compelling evidence from Operation Overt or any other previous terrorism investigations that could justify an extension beyond the twenty-eight-day limit, the government shifted tack and speculated that Britain could conceivably face multiple attacks, each on the same scale as the Heathrow plot in 2006. This nightmare scenario envisaged five simultaneous attacks in Britain, each equivalent to 9/11. The scenario presented was entirely hypothetical. There was no evidence that it reflected a genuine risk analysis. Nor was there any explanation of how such elaborate, compound and complex plots could be hatched on British soil without alerting the police or security services well in advance.

Curiously, in its zeal, the government had overlooked its own legislation which already provides sweeping powers to deal with genuine national emergencies on that scale. The Civil Contingencies Act 2004 was explicitly designed to deal with terrorist threats, amongst other national emergencies. It allows the government to extend pre-charge detention beyond the twenty-eight-day limit by additional, and renewable, thirty-day periods. The extensions are subject to judicial review and parliamentary approval. If the government really needs this power, it must publicly state that there exists an emergency which makes it necessary to use it. If there existed a plot to blow fifty planes out of the sky – the hypothetical scenario posed by the government – there could be little doubt that there would exist a genuine emergency. It would also be both impossible and irresponsible to try to conceal the real situation for more than a few days. In practice, any public statement on the emergency would not need to be made in the immediate midst of a crisis. The government would just be required to make its statement before the expiry of the existing twenty-eight-day pre-charge detention limit. So, even on this hypothetical scenario, there was no need to extend the current twenty-eight-day limit – a reserve power was already in place, subject to robust safeguards.

Even human rights groups like Liberty and barristers, including David Pannick QC, confirmed that such broad emergency powers could be used, removing any conceivable justification for a further extension of the twenty-eight-day limit, even under the worst nightmare scenarios conjured up by ministers. However, the government rejected this analysis on two grounds. It suggested that there were technical difficulties in using the 2004 Act in this way. It also claimed that declaring an emergency would create panic. It is difficult to take either argument seriously. If there are technical difficulties in applying the 2004 Act, they could presumably be addressed through a minor legislative amendment providing the clarity required. Equally, the British public are not known for their disposition to panic, whether during the Blitz of 1940, the campaign of IRA violence, the London bombings in July 2005, in the aftermath of the terrorist plot at Heathrow in August 2006 or during the attacks in Glasgow and London in 2007. On the contrary, British public reaction has been consistently characterized by composure and resolve. Furthermore, the government itself has hardly been shy about publicly briefing blood-curdling assessments of the terrorist threat. MI5 now regularly briefs on the thousands of terror suspects operating in the UK and the Metropolitan Police Commissioner referred to the future terrorist threat as the coming ‘epidemic’. The government’s refusal to consider its existing powers under the 2004 Act, and insistence on draconian new powers, demonstrates its preference for placing Britain under a permanent undeclared state of emergency – rather than a temporary and transparent one, if and when the strict necessity should arise.

Finally, faced with mounting opposition in 2008, the Home Secretary based her proposals for a forty-two-day maximum limit on what she referred to as a ‘precautionary principle’. The precautionary principle is derived from environmental law, which presents a rather different set of challenges to counter-terrorism. There has been no explanation of why this environmental principle is relevant or what it might mean in the context of terrorism. It appears little more than a thin veneer to allow the government to keep returning to Parliament for additional police powers on the basis of an unspecified threat that may or may not materialize at some indeterminate point in the future.

While there is not a shred of hard evidence to support the case for extending detention without charge beyond twenty-eight days, the government has encouraged a common, but wholly misleading, assumption that extending pre-charge detention would help deal with the classic ‘ticking bomb’ scenario – that we need longer than twenty-eight days to hold terrorist masterminds or suicide bombers who might otherwise abscond to launch a terrorist attack. In fact, experience suggests the opposite. The key players in a terrorist plot are, in practice, the least likely to be held for the maximum period of detention without charge, because they are the suspects that tend to be questioned and investigated first. During Operation Overt, all the alleged ringleaders were arrested and charged within twenty-one days. It was only those either subsequently released (without further suspicion) or charged with lesser offences that were held for twenty-eight days.

This case illustrates an emerging trend: it is precisely those most likely to be innocent or least involved in a terrorist conspiracy who are most likely to be held for the longest period of detention. Far from being necessary to deal with imminent threats to public safety or terrorist masterminds, extensions of pre-charge detention are generally used to follow up secondary leads and suspects. Each extension of the maximum period of detention risks exacerbating this trend – delaying the point at which the police need either to charge or release those on the fringe of their investigation. It is often said that those with nothing to hide have nothing to fear, but the reality of police investigations suggests that those with nothing to hide may be most at risk from extensions of pre-charge detention.

If an innocent person is detained for weeks or months, the consequences can be personally disastrous, even if he is eventually released. The case of Lotfi Raissi demonstrates the devastating impact that prolonged detention without charge can have on a wholly innocent individual. Raissi was an Algerian-born pilot living in London. He was arrested in Britain after 9/11, because he had attended the same flying school as the bombers. US authorities accused him of having taught the 9/11 bombers to fly the planes that crashed into the Twin Towers in New York. The FBI quickly realized that this was unlikely to be true. However, the British police held Raissi in pre-charge detention awaiting extradition to the US on the flimsiest basis. He was not held on suspicion of terrorism offences but on trivial grounds, including that he had lied on his pilot’s licence by failing to reveal previous knee surgery – an allegation that was subsequently proved false as well.

It appears that the US authorities were still interested in questioning Raissi, but no longer thought it likely that he was involved in 9/11. The Court of Appeal in Britain later criticized both the US and UK authorities for deploying this ‘device’ to keep Raissi in detention without charge for over four months. The court went on to criticize the British police and the Crown Prosecution Service for ‘serious defaults’ in allowing this abuse of process. The court exonerated Raissi of all allegations, delivering a judgment that paved the way for him to seek compensation. The case shows how, in the wake of a terrorist attack, the police can come under considerable pressure to bend the law at the expense of a suspect who may prove to be entirely innocent.

In this instance an innocent man’s life was left in ruins. Raissi was twice stabbed by prisoners during his period of detention, because of allegations that he had links to the 9/11 terrorists. He suffered two nervous breakdowns under the strain and did not sleep properly for seven years. He lost his job and found himself blacklisted from finding a new one. He became entirely dependent on his family, although in the wake of his arrest both his wife and his brother’s wife also lost their jobs.

If extending pre-charge detention would undermine a fundamental freedom, with severe consequences for the innocent that are imprisoned – as half of all those held for twenty-eight days have been – there is an increasing number of warnings that, far from making us safer, an extension to forty-two days may actually jeopardize our security. In addition to criticisms by human rights lawyers and NGOs, a growing chorus of security experts have publicly declared their opposition to forty-two days – on the basis that it is either irrelevant as a security measure or actually risks making the terrorist threat worse.

While the government has consistently cited evidence from MI5 on the growing numbers involved in terrorism to bolster its case for forty-two days, it is striking that the current and previous two heads of MI5 have either criticized or refused to back an extension beyond twenty-eight days. In an interview in July 2007, the former head of MI5, Stella Rimington, made clear her opposition to an extension: ‘It behoves us all to question when governments want to bring in increasingly draconian measures.’

This was followed by further, more recent, criticism from her successor at MI5, Baroness Manningham-Buller, who declared she could not support the extension to forty-two days ‘on a practical basis or on a principled one’, arguing that the measure was both disproportionate and unworkable. The current Director General of MI5, Jonathan Evans, also refused to publicly back forty-two days. The subsequent riposte from ministers – that MI5 is not responsible for pre-charge detention – flies directly in the face of its regular reliance on MI5’s assessments, not to mention Tony Blair’s public claim in August 2005 that MI5 had then asked for an extension. The reality appears to be that MI5 positively backed an extension beyond fourteen days – but refused to back an extension beyond twenty-eight days.

There is further disquiet within the ranks of the police. Chief Constables and other senior officers have expressed their opposition or reservations in private, with senior officers at the Metropolitan Police letting it be known that the forty-two-day proposal is unworkable, and therefore either irrelevant or counter-productive as a security measure.

Other experts warn against two specific risks generated by prolonged detention without charge. First, the disproportionate effect on innocent young Muslim males risks creating widespread resentment and serving the twisted narrative that extremists and terrorists thrive on – Britain targeting Muslims at home as well as abroad in Iraq and Afghanistan. Such draconian measures alienate whole communities, nurturing the friendly sea within which terrorism thrives. In short, a further extension beyond twenty-eight days risks serving as a recruiting sergeant for terrorism.