Pre-charge detention in terrorism cases

What is pre-charge detention?

Pre-charge detention is a shorthand term for the period that a person can be detained by the police between being arrested and being either charged with a criminal offence or released.

What is the difference between pre-charge and post-charge detention?

Once a person has been charged with a criminal offence, they are eligible for bail. The rules for granting bail differ in certain cases. Generally speaking, however, there is a presumption that bail should be granted.

What is the maximum period of time a person can be detained pre-charge in non-terrorism cases?

In normal criminal cases, the maximum period is 72 hours.

Section 41(1) Police and Criminal Evidence Act 1984 (PACE) provides that the police can only detain a person for 24 hours following arrest before the person must be brought before a court or released. However, section 42 allows that – in the case of serious arrestable offences – detention can be authorised by a police officer of Superintendent rank for up to 36 hours. Further detention of a suspect up to a maximum of 72 hours can only be authorised by a magistrate.

What about terrorism cases?

Anyone arrested under section 41 Terrorism Act 2000 is subject to a special regime for pre-charge detention under Schedule 8. This includes not only longer maximum periods of detention but also restrictions on obtaining legal advice in certain circumstances.

The maximum period of detention under Schedule 8 was originally set at seven days in 2000. However, this was amended by section 306 Criminal Justice Act 2003 to 14 days. Following the 7 July 2005 bombings in London the government announced proposals to extend this to 90 days. These were defeated in the House of Commons in late 2005, but an alternative measure was passed (section 23 Terrorism Act 2006) to extend the maximum to 28 days.

In July 2007, the government announced proposals to legislate to extend the maximum period beyond 28 days.((See Options for pre-charge detention in terrorist cases, Home Office, 25 July 2007))

Why are terrorism cases treated differently?

The government argues that terrorism cases require longer periods of pre-charge detention because of the complexity of investigating terrorism cases, the difficulty in obtaining admissible evidence, and the importance of protecting the public from terrorist attacks.

But don’t the police need some evidence before they can arrest a suspect?

Section 41(1) Terrorism Act 2000 states that a police officer may arrest a person ‘whom he reasonably suspects to be a terrorist’. The requirement of reasonable suspicion means that there must be some objective basis for the police officer’s belief.((See O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286)) However, this need not be evidence that is ultimately admissible in court. In particular, police frequently refer to the need to arrest terrorist suspects based on tip-offs from intelligence rather than hard evidence:

“Because of the serious nature of the [terrorist] threat, it may be necessary to act on intelligence rather than waiting for further information, admissible as evidence, to be gathered.”((Ibid, p7))

By contrast, charges can only be laid where there is sufficient admissible evidence to support them.

What human rights are engaged by extended police detention?

Article 5(3) European Convention on Human Rights (ECHR) states that anyone arrested on suspicion of a criminal offence:

“shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.”

Okay, so what does ‘promptly’ mean?

In 1988, the European Court of Human Rights held that the detention of three IRA suspects for up to four days under the terms of the Prevention of Terrorism Act (Temporary Provisions) Act 1984 was a breach of Article 5(3) because they were not brought ‘promptly’ before a judge.((Brogan v United Kingdom 11 EHRR 117)) The Court said that:

“Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Art 5(3), which is intended to minimise the risk of arbitrariness.” ((See eg ibid, para 58))

An essential feature of this ‘judicial control’ under Article 5(3) is that the judge has the power to order the release of the suspect.((See Schiesser v Switzerland (1979) 2 EHRR 417, para 31: Art 5(3) imposes on judges ‘obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons’.))

In October 2005, in a case from South Eastern Turkey, the Court held that pre-charge detention of more than six days in custody without being brought before a judge was a breach of Article 5(3), ‘notwithstanding … the special features and difficulties of investigating terrorist offences’.((Sinan Tanrikulu and others v Turkey (application nos. 00029918/96, 00029919/96 and 00030169/96, 6 October 2005); para 41))

What are the existing safeguards against prolonged detention in terrorism cases?

As with pre-charge detention under PACE, the longer periods of pre-charge detention under the Terrorism Act 2000 can only be authorised by a judge rather than police.

However, under paragraph 32 of Schedule 8, the judge is only required to be satisfied that ‘there are reasonable grounds to believe that further detention is necessary to obtain relevant evidence’; and that the police investigation is being conducted ‘diligently and expeditiously’.

In addition, under paragraphs 33 and 34, neither the detained suspect nor his or her lawyers are entitled to see all the evidence that the police and prosecution may put before the judge in support of their application for continued detention. As the Parliamentary Joint Committee on Human Rights stated in July 2007:

“the judicial scrutiny of extended pre-charge detention is not proper judicial scrutiny: in summary, it falls well short of a full adversarial hearing because under the relevant provisions of the Terrorism Act 2000 detention can be extended in the absence of the detainee or on the basis of material not available to them.”((Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, July 2007: HL 157/HC 790))

But don’t other countries also have longer periods of pre-charge detention?

No. At 28 days, the maximum period of pre-charge detention in the UK is the longest of any common law country.

What about other EU countries?

Many European countries operate an inquisitorial system of criminal proceedings, in which the investigation is headed by a judge rather than by police. This means that the full ‘judicial control’ required by Article 5(3) ECHR is present in the investigation from a very early stage, rather than the very limited supervision that exists under Schedule 8.

What are the alternatives to extending pre-charge detention?

The most obvious alternative is to lift the ban on intercept evidence, which would allow charges to be brought against suspects rather than being detained while other evidence is gathered. The UK is virtually the only country to ban intercept evidence in criminal proceedings.

Other measures include making full use of the threshold test in terrorism cases; legislating to allow questioning of suspects post-charge; and using the power to make regulations under the Civil Contingencies Act 2004 to extend the maximum period of pre-charge detention on a temporary basis in emergencies.

Where can I get more information?

Joint Committee on Human Rights report on Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning (July 2007)

Home Affairs Committee report on Terrorism Detention Powers (July 2006)