It is high time that we moved from the language and analysis of 'civil liberties' to one of post-Second World War universal and fundamental 'human rights'
There is no excuse for longer periods of pre-trial detention, argues Shami Chakrabarti
I often feel like a portent of doom: as the director of Liberty, when you see me in the news, you can be sure that something ominous is happening. Such as the suggestion – all too frequently hitting the headlines these days – that priority be given to extending beyond 28 days the period for detaining suspects for questioning before they are charged with any offence.
The long and dark days of the ‘war on terror’ have taken their toll on our civil liberties; though we have had moments of optimism in rational and non-partisan leadership, we have also lived through years of lost opportunity, division and despair. While our new prime minister responded calmly and without knee-jerk reaction to the attempted terrorist attacks earlier this year, his recent consideration of extending the period of time which suspects can be detained for before they are charged with anything is disappointing. And it is something that should concern us all, because its potential effects on British society may be very dangerous.
Any extension of pre-charge detention is simply internment by another name – and we should have learned a painful lesson about internment from the disastrous example of Northern Ireland. At 28 days, we already have the longest pre-charge detention period for terror suspects in the free world. The proposed safeguards of judicial supervision and parliamentary oversight are mere fig leaves, which cannot remedy the fundamental arbitrariness of this policy.
The idea that judicial supervision will act as a safety measure is flawed: we had ‘judicial involvement’ in the infamous Belmarsh internment policy, and we have it with the now discredited control orders. Judicial supervision is necessary for fair trials and lawful detention, but simply having the necessary is not always enough. The heart of a fair trial comes with knowing the accusation against you and having the opportunity to contest it.
Imagine a young (probably Muslim) man or woman detained for 56 days without charge. If they are charged following confessions on the 55th day of their detention, for example, there may be real or perceived concerns about their treatment and the validity of any such admissions.
And what is the effect upon the innocent set free at two months? They have served the equivalent of a custodial prison sentence, without ever having been charged with a criminal offence. They have been clearly labelled terrorists. They may have lost their jobs, their homes and quite possibly the trust of some family and friends. And most worrying of all, extremists may have sidled onto the scene, filling the legal vacuum, visiting parents and younger siblings. ‘There's your so-called British justice’, they will claim, in an echo of Northern Ireland. ‘It won't protect you. Only we will.’
Excessive pre-charge detention, with or without judicial supervision, leads to injustice and alienation. It divides society and cuts off vital intelligence and support from the police and security services. The veneer of legality provided by judicial supervision merely compromises our judges by involving them in executive detention.
Where judicial oversight can play a useful role in the response to terrorism is once a person has been charged. As an alternative to extending pre-charge detention, independent judges could provide a vital safeguard against abuse or oppression during post-charge questioning – which is already permitted in some circumstances. The crucial concerns here are to ensure that a person has been properly detained and charged in the first place and that he or she is not being subject to constant, lengthy and oppressive questioning between an initial charge and any subsequent charges or trial.
Other measures, like the use of intercept evidence and post-charge questioning, have long been suggested by other parties, including Liberty, as more proportionate alternatives to what is effectively internment.
With regards to intercept evidence, it is high time that judges, rather than politicians, issued warrants for telephone tapping (as had long been the case in pre-Bush America). And given that it is sometimes necessary and proportionate to intrude on people’s privacy, why on earth should there be an absolute legal bar to using relevant material in court? The concerns relate to security rather than privacy. Some have raised fears that sources or techniques may be compromised, but democracies the world over use the products of interception successfully in fair criminal trials, and I would argue that we are equally capable of doing so.
If I place a listening device in your bedroom, any evidence gained from doing so is potentially admissible in court. If I listen in on your mobile phone conversation, I can never use the material, however relevant. This is not just nonsensical, but also hinders proper cooperation with the many other countries who allow intercept evidence to be used in court.
In addition, before looking to introduce new and frightening legislation, we should be considering what is already on the statute book. The Civil Contingencies Act 2004 already provides for true and temporary emergencies. It contains a broad power to make emergency regulations subject to parliamentary and judicial oversight – including a power to extend pre-charge detention periods for up to 30 days at a time. Politicians should review the chilling emergency powers they already have before seeking to change the law and take Britain into a permanent state of emergency that terrorists would relish.
The previous prime minister viewed the rule of law as an old-fashioned inconvenience. This seemed to apply to international and domestic policy, to terrorism and petty crime alike. Our new prime minister has an opportunity to change this vision. He can be truly tough on terrorism by leading a democratic consensus based upon rights, freedoms and the rule of law.
In a democracy, it is inevitable that more people are arrested than charged and more are charged than convicted. But the message that extending pre-charge detention in the UK would send to other countries would be devastating to our proud reputation for tolerance, fairness and justice.
If the Brown government really wants to open the next 'chapter of British Liberty', it is high time that we moved from the language and analysis of 'civil liberties' to one of post-Second World War universal and fundamental 'human rights'. This builds on the great Magna Carta tradition, but adds the lessons of the Holocaust - that freedom and fairness without dignity and equal treatment are insufficient protection against those who would abuse their power.
After all, not only would plans to lock up terror suspects for longer than 28 days without charge violate the human rights declarations and conventions of Eleanor Roosevelt and Winston Churchill, they would take us back to life before 1215.
Shami Chakrabarti is director of Liberty. Find out more about Liberty’s campaign ‘Charge or release’.