1. Introduction
1. This report on legislation
pending before the Parliament of the United Kingdom was requested
by the Bureau of the Parliamentary Assembly on 23 June 2008. The
Committee on Legal Affairs and Human Rights expressed strong reservations
about preparing a report on draft legislation still pending before
the parliament of a member state. The Rapporteur shares the sentiment
of the Committee, but feels that the issues dealt with in the draft
legislation are of general importance to all member states of the
Council of Europe, and therefore merit general attention as they
are relevant in considering (future) legislation in all member states.
For this reason, the report will discuss these general issues, notably
pre-charge detention and the separation of powers, using the pending
draft legislation as the focal reference point.
2. Having had little time to prepare this report, the Rapporteur
is fully aware that he cannot provide a thorough analysis of this
subject, and that he runs the risk of inadequately and unsatisfactorily
covering all aspects of this complex subject. That said, this report,
although dealing with highly technical matters relating to the United
Kingdom, is meant to convey an important political message urging
all member states of the Council of Europe not to diminish or set
aside legal safeguards when faced by terrorist threats or acts.
This report should also be seen as a contribution to an ongoing
wider debate, within the United Kingdom (UK), as to the utility
of such legislation at a time when the House of Lords has not yet
taken a firm position on this draft legislation. It also emphasises
the need to take stock – on a comparative basis – of member states’
“great temptation to respond to terrorism with a law-and-order approach
that gives public security [undue?] precedence over respect for
human rights”.
3. This report will first present the context in which the British
anti-terrorist Bill is being looked at (section II), then it will
summarise the UK government’s position and the reactions to it (section
III). Section IV will provide an assessment of certain aspects of
this Bill’s compatibility with European human rights standards in the
light of criticism made, followed by a few concluding remarks.
2. The issue: counter-terrorism legislation
pending before the United Kingdom Parliament
4. At the outset, I would like
to clarify the notions with respect to detention which will be used
in this report:
- Arrest: The initial act of depriving
a person of his/her liberty: judicial authorisation not being required
for arrest.
- Pre-charge detention: Detention
before being formally accused of a specific offence.
- Charge: The document/statement,
issued by a prosecuting authority between arrest and trial, following
an initial police inquiry, which provides the suspect with specific elements
(“heads” “founded on facts”) on the basis of which the person has
been accused of a specific offence.
6. Also, lengthy pre-charge detention may have detrimental effects, inter alia, on private and family
life (Article 8 ECHR), freedom of movement and the employment situation
of the person detained. This can amount to, effectively, a “sentence”
on a person who may never be charged with any crime.
7. Pre-charge detention must remain subject to proper judicial
scrutiny, as has been repeatedly underscored by the UK parliamentary
Joint Committee on Human Rights (JCHR) (more details below). The suggestion
that Parliament be involved in a procedure to extend pre-charge
detention – which is inherently a judicial function – also appears
to be a slippery slope. Parliament risks being blamed for any miscarriages
of justice without having the means (in particular, detailed information
about the facts of the case) to perform such a supervisory role
properly.
2.1. The
context
8. The Council of Europe’s Human
Rights Commissioner, Thomas Hammarberg, and the UN Human Rights
Committee have, amongst others, expressed their concerns about the
British government’s proposals to allow terrorist suspects to be
detained for 42 days without charge.
In particular, the Commissioner
contends that this would be out of line with equivalent detention
limits elsewhere in Europe and urges the United Kingdom’s Parliament
to carefully review the government’s proposed Bill.
9. In view of this criticism, there appears to be a need for
an independent comparative analysis of the compatibility of Council
of Europe member states’ legal regimes on detention of terrorist
suspects
vis-à-vis the requirements
of the ECHR, and in particular its Article 5 ECHR.
Such
a comparative study could be undertaken by the European Commission
for Democracy through Law (“Venice Commission”), in the light of,
inter alia, work already commenced
on this subject within the Assembly’s Committee on Legal Affairs
and Human Rights (AS/Jur).
10. Other States Parties to the ECHR have also had to face criticism
with respect to their recent counter-terrorism legislation. For
example, the Introductory Memorandum presented by Mr Valery Grebennikov
to the Committee on Legal Affairs and Human Rights in December 2006
notes that Spanish law requires detainees to be brought before a
judge in person after a maximum period of five days and that the
length of this period raises questions in the light of the case-law
under Article 5 § 3 ECHR.
The same questions
arise with respect to French legislation which allows a terrorism
suspect to be held in police custody from four to six days before being
brought before a competent judicial authority.
Spain was also criticised for the
possibility to extend pre-trial detention in terrorist cases for
an additional two years, bringing detention before trial up to a
maximum of four years.
Human
Rights Watch recently published a report
criticising France for its repressive counterterrorism
system. The report pointed out the low standard of proof and weak
evidence upon which an arrest can be based, the limited access to
a lawyer and the long periods of police custody and pre-trail detention.
11. Furthermore, the Grebennikov memorandum also criticises legislation
in the light of articles other than Article 5 or 6 ECHR: Turkish
security forces are authorised, when surrender orders are ignored,
to use their guns without any hesitation against the target (problematic
with regard to Article 2 ECHR: Right to life)
; France’s, Spain’s and
Italy’s legislation allows judges to expel foreigners to prevent
terrorism also to countries where they fear torture and ill-treatment
(see Article 3 ECHR: Prohibition of torture)
; Italian law permits preventive
surveillance for up to 40 days in order to prevent the commission
of a crime (see Article 8 ECHR: Right to respect for private and
family life)
;
and finally, Russia and Turkey provide for vaguely-defined and broad
restrictions on the freedom of expression and the right of association
(see Articles 10 and 11 ECHR: freedom of expression and freedom
of assembly and association)
.
12. In view of the purported lack of appropriate safeguards within
a number of other member states’ counterterrorism regimes, this
issue obviously needs further consideration. However, as this report
is confined to the specific draft legislation in the United Kingdom,
the Rapporteur proposes that the Assembly be encouraged to ask the
Venice Commission to undertake a comparative study on this subject.
2.2. The
procedural stage
13. In 2005, the British government
unsuccessfully tried to extend the maximum length of a pre-charge detention
from 14 to 90 days (the extension was eventually reduced to 28 days).
Now the government has initiated a new proposal to extend the 28
day period. In its
Counter-Terrorism
Bill 2008 , the government recommends
inter alia measures to extend the
28 days to 42 days during which a person can be detained without
charge. On 11June 2008, the House of
Commons voted by a margin of 315 to 306 in favour of what is presently
(House of Lords) Counter-Terrorism Bill 2008. It is now up to the
House of Lords to decide whether the Bill shall be adopted (with
or without amendments) or rejected. This subject was already debated
in the House of Lords in early July 2008 and is likely to be on
its agenda again in October.
2.3. The
content
15. Subsequently, the Secretary of State may by order declare
that the “reserve power” allowing to apply for and extend detention
beyond 28 days may be exercised.
Before
making such an order
, the Secretary
of State must obtain independent legal advice indicating that he
can be properly satisfied that
a. a
grave exceptional terrorist threat has occurred or is occurring,
b. the reserve power is needed for the purpose of investigating
the threat and bringing to justice those responsible,
c. the need for that power is urgent, and
d. the provision in the order is compatible with ECHR rights
within the meaning of Section 1 of the Human Rights Act 1998.
Within two days, or as soon as practicable after the order
has been made, he has to inform Parliament. The order
will lapse seven days after Parliament was informed unless each
House of Parliament approves the order. If they do so the order
will lapse 30 days after it has been issued. However,
nothing prevents the Secretary of States from making a new order
after a parliamentary refusal. When making its decision, Parliament
is not provided with any information about the name of the person
detained or any material that might prejudice a future prosecution.
16. Once the reserve power is declared
exercisable,
inter alia the
Director of Public Prosecutions can apply for the extension of the
period of detention beyond 28 days. The application has to be submitted
to a senior judge (a High Court judge in the case of England and
Wales). This judge has to verify the same two requirements mentioned
above: the need for extension in view of the ongoing investigation
and the diligence and expediency of the investigation. Where he
is satisfied with those requirements, the judge can extend the warrant
repetitively for seven days until the end of 42 days after the beginning
of the detention. Parliament must be informed if the court authorises
detention beyond 28 days.
3. Arguments
pro and contra the Counter-Terrorism Bill 2008
3.1. Arguments
pro
17. The UK government’s standpoint,
to justify extension of pre-charge detention from 28 to 42 days,
is principally two-fold. First, the government puts forward the
seriousness of the threat from international terrorism and “the
way in which that threat is developing” (
JCHR
Report on 42 days ,
§ 10). Prime Minister Gordon Brown has referred to the fact that
security services are currently investigating 2000 terrorist suspects
involved in around 200 networks and 30 potential plots (
The
Guardian ).
However, in the view of the UK Parliament’s Joint Committee on Human
Rights (JCHR), it is not clear whether the government claims that
the scale of the threat from terrorism has increased since July
2006, when the pre-charge detention was extended to 28 days (
JCHR Report on 42 Days ,
§ 26).
18. Secondly, the government emphasises the increasing complexity
(e.g., in terms of material seized, use of false identities) and
sophistication of terrorist networks and complex terror plots involving
massive amounts of evidence and data, in a great variety of forms,
often with very significant international links (
JCHR Report on 42 Days ,
§ 10). As Home Office Minister Tony McNulty MP has graphically put
it, “imagine two or three 9/11” (
Daily
Mirror ).
The government is afraid that the time required to examine a growing
number of computers, DVDs, mobile phones etc. will soon exceed the
limit of 28 days. It backs up its concern with the fact that recently two
suspects have been charged only on the 28th day
(
JCHR Report on 42 days ,
§ 34).
19. In addition to the growth in scale and complexity of terrorist
cases another factor was relied upon by the government. It expresses
the view that, because of the severe consequences of a successful
terrorist attack, the police often need to intervene much earlier
in terrorist cases and therefore often lack admissible evidence at
that stage of the investigation.
20. To the reproach that it had not provided the JCHR with compelling
evidence of the need for an extension of the pre-charge detention,
the government answers that the Counter-Terrorism Bill 2008 will
not extend the pre-charge detention limit beyond 28 days immediately
but will enable the limit to be extended by a senior judge in future
– only if there is a clear and exceptional need to do so (
Government’s
Reply to the Ninth JCHR Report of Session 2007-08 , p. 1).
21. The government also faces the argument that Parliament must
in such a situation take a ‘blind’ decision, because it cannot discuss
the details of the individuals whose pre-custody detention is extended
over 28 days. The government’s response is that Parliament does
not need the details to take its decision, because it only has to
determine the exceptional nature of the investigation underway,
information about the plot and its (probable) consequences and about
the complexity of the investigation (
Government’s
Reply to the Ninth JCHR Report of Session 2007-08 ,
p. 2).
3.2. Arguments
contra
22. The JCHR has, in different
reports,
strongly
criticised the government’s proposals with regard to the length
of pre-charge detention. It repeatedly asked for evidence of the
two main claims that the government advances for the extension.
However, the government has, according to the JCHR, failed to provide
it with compelling evidence that terrorism is on the increase (
JCHR
Report on 42 Days and Public Emergencies ,
§ 9). It has also, according to the JCHR, not established that the
time needed for the initial investigation prior to making a charge
is liable to exceed the 28 days because of the growing complexity
of terrorism (
JCHR Report on 42 Days
and Public Emergencies ,
§ 11). Finally, the JCHR says that the government has not made its case
in explaining why – in view of the range of alternatives already
available like broadly defined offences, charging suspects on the
basis of reasonable suspicion, post-charge questioning, control
orders and other forms of surveillance – there is a necessity to
go beyond those alternatives and extend the pre-charge detention
period (
JCHR Report on 42 days , § 48).
24. As concerns the content of the Counter-Terrorism Bill 2008
itself, the main argument is that the envisaged length of the pre-charge
detention of 42 days may amount to a breach of Articles 3 and 5
ECHR (
JCHR Report on 42 Days and Public
Emergencies , § 44; on Article 3 ECHR see especially
CPT
Report UK: 11 to 15 July 2005 , §
24).
Human
Rights Watch has even pointed to the possibility
of rolling periods of 42-day pre-charge detention if the Secretary
of State immediately re-authorised a new extension.
25. At a hearing for Oral Evidence at the JCHR, it was argued
that a person can be arrested on the suspicion that he or she might
have been involved in the commission, preparation or instigation
of terrorism acts. The fact that instigation is not even a criminal
offence (Section 41 Terrorism Act 2000; see § 34 below) leads to
the situation that a police officer can arrest a person without
having the intention to convict him (JCHR
Report on 42 days, p. Ev 29, Q190-192).
26. The wording of Clause 22 of the Counter-Terrorism Bill 2008
– “grave exceptional terrorist threat” – has also been criticised:
This formulation is felt to be open to wide interpretation, not
least because it covers planned or executed attacks outside the
UK (Human Rights Watch
).
27. Moreover, the JCHR further deems the threshold for further
detention is set too low and is therefore in breach of Article 5
ECHR. In its view, any suspect with a computer and a mobile phone
would struggle to resist an application for an extension of detention
(
JCHR Report on 42 Days ,
§ 92 and
JCHR
Report on Control Orders Renewal ,
§ 20).
28. Additionally, the JCHR detects the lack of a fully adversarial
hearing. It criticises the fact that the suspect and their legal
representative can be excluded by the judge from any part of the
hearing and that information that is provided to the judge can be
withheld from the suspect and his or her legal representative if
the judge is satisfied that there are reasonable grounds for believing
that if the information were disclosed certain harms would be caused
(
JCHR Report on 42 days , § 79).
29. Finally, the role which Parliament is to play (see § 15 above)
has been criticised, not least by the JCHR (
JCHR
Report on 42 Days and Public Emergencies ,
§ 36). It is felt that parliamentary oversight would not be a very
significant safeguard, because the debate would be heavily circumscribed
by the risk of prejudicing future trials. Otherwise, as Lord Carlile,
the independent reviewer of terrorism legislation, has pointed out,
a parliamentary debate on the case of an uncharged person might
be unfair (
Lord
Carlile Report on Measures for Inclusion in a Bill , § 48).
Furthermore, Lord Boyd of Duncansby submits that a legislative organ
ought not to be involved in a process that determines whether a
given person’s detention should be extended.
The decision to determine
whether it is justifiable to detain individual suspects is a typical
judicial function; parliamentary and judicial functions should not
be confused.
The House of Lords’
Select Committee on the Constitution recently devoted an entire
report to this subject. They call the Bill “muddled” and “a recipe
for confusion” because it risks conflating the roles of the Parliament
and the judiciary in that these two institutions will be asked to
answer similar questions within a short space of time (
Constitution
Committee Report , § 39). The Rapporteur is of the opinion
that the proposal to involve Parliament in a decision on pre-charge
detention is in flagrant contradiction with the principle of the
separation of powers.
30. The Rapporteur also refers to the briefings of Amnesty International
and Human Rights Watch.
They not only criticise the aspect
of pre-charge detention, but also other sensitive issues under the
Counter-Terrorism Bill 2008
, such
as post-charge questioning, notification requirements, definition
of terrorism and secret inquests.
4. Compatibility
with the European human rights standards
4.1. The
need for a substantive approach
31. Now the Rapporteur will give
his assessment as to whether the length of a pre-charge detention
of 42 days or even 28 days may be contrary to the ECHR. In order
to do so, it is necessary to refer to the case-law of the European
Court of Human Rights (hereafter: “the Court”) concerning a maximum
period within which a suspect must be “charged”. Much to the surprise
of those coming from a Common Law background, the Court’s case-law
does not appear to indicate any time-limit for a charge.
The reason may
be the absence of a common definition of what is meant by “charge”
applicable in all Contracting State Parties to the ECHR. As Stefan
Trechsel, the President of the (now defunct) European Commission
of Human Rights, points out: “If the international bodies were to
rely on the categorisation made in domestic law, states would have
the possibility to manipulate the length of proceedings by ensuring
that the formal ‘charge’ occurs at a late stage in the proceeding,
such as following the end of the investigation.”
Therefore the Court is forced to adopt
an autonomous definition of the term “charge”, saying that it “has
to be understood within the meaning of the Convention” and that
it “is very wide in scope” (
Deweer v.
Belgium, § 42).
In
other words, the Convention does not require a formal charge to
be taken within a specific time, but only sets out procedural requirements that
must be fulfilled during any detention prior to conviction, as stipulated
in Article 5 ECHR.
32. This approach – to consider substantive content rather than
sticking to a formal (as in Common Law) notion of “charge” – also
preempts the argument that different national legislations cannot
usefully be compared because Civil and Common Law systems are so
different.
As
the rules governing criminal procedure in State Parties are so different,
the ECHR cannot and does not intend to create a “common judicial standard”,
but rather a set of minimum standards applicable
mutatis mutandis to all legal systems
under the ECHR’s jurisdiction.
Consequently,
the initial question needs reformulation. In ECHR terms, the crucial question
is not that of how long a terrorist (or any other) suspect can be
detained without “charge”, but rather whether the conditions and
circumstances and the safeguards under which a suspect may be held
are in compliance with the minimum common procedural requirements
of Articles 5 § 1(c), 5 § 2, 5 § 3 and 5 § 4 of the ECHR.
4.2. Overview
of the case-law of the European Convention on Human Rights (ECHR)
33. In so far as the ECHR is concerned,
the Rapporteur is of the opinion that the following questions must be
answered:
- Is the detention
lawful?
- Is the reason for the arrest provided promptly and in
sufficient detail?
- Is there prompt judicial review?
- Is there the possibility for habeas
corpus proceedings?
- Is the hearing fully adversarial?
- Could the length and the conditions of the detention amount
to inhuman treatment?
- Is parliamentary oversight compatible with the principle
of the separation of powers?
- Would invoking an “exceptionally grave terrorist threat”
require a derogation of the Convention?
The following is an attempt to see whether, and if so on what
basis, the Counter-Terrorism Bill 2008 may be incompatible with
the ECHR, as interpreted by the Court.
4.3. Lawfulness
of the detention (Article 5 § 1 ECHR)
34. The Counter-Terrorism Bill
2008 does not deal with the arrest itself, as it covers only the
possible extension of detention in the case where a suspect has
already been detained for up to 28 days. According to the existing
legislation which will also be applicable alongside the Counter-Terrorism
Bill 2008, a police officer may only arrest without warrant a person
“whom he reasonably suspects to be a terrorist” (
Section
41 (1) of Terrorism Act 2000). According to
Section
40 (1), a terrorist is defined as a person who has committed
a terrorist offence, or is or has been concerned in the commission,
preparation or instigation of acts of terrorism. The fact that instigation
is not even a criminal offence under UK criminal law leads to the
situation that a police officer can arrest a person without having
the intention to charge him or her of any criminal offence (
JCHR Report on 42 days , p. Ev 29,
Q190-192). The Convention, by contrast, requires that a person may
only be arrested on a reasonable suspicion of having committed an
offence. Additionally, the public authority must have the intention
to charge the person concerned and bring him/her before the competent
legal authority (
Brogan and Others v.
United Kingdom ,
§§ 52-53). In this regard, the present and future legislation seem
to be contrary to the Convention’s requirements.
35. Article 5 § 1 ECHR is not only applicable to the initial arrest,
but also during the entire period of detention. If – after analysis
of the procedural requirements of Articles 5 § 2, 3 and 4 ECHR –
it appears that a once lawful detention may have subsequently become
arbitrary, the lawfulness of the detention as defined in Article
5 § 1 ECHR must be reviewed again. In assessing the compatibility
of a detention, especially with Articles 5 § 3 and 4 ECHR, the following
case-law of the Court pertaining to Article 5 § 1 has to be kept
in mind.
36. The ECHR guarantees the right to liberty and security under
Article 5. Article 5 § 1 ECHR specifies a limited number of grounds
for detention. In the case of terrorist offences, as in other cases,
any arrest and subsequent detention must be based on a reasonable
suspicion of commission of specific offences (Article 5 § 1(c) ECHR).
In
Fox, Campbell and Hartley v. United
Kingdom ,
the Court acknowledged that in terrorist cases the “reasonableness”
of the suspicion has a lower standard, as the government cannot
be asked to establish the reasonableness “by disclosing the confidential
sources … or even facts which would be susceptible of indicating
such sources or their identity” (§ 34). However, the Court does
not allow for the essence of the safeguard afforded by Article 5
§ 1 (c) ECHR to be impaired. It requires the government “to furnish
at least some facts or information capable of satisfying the Court
that the arrested person was reasonably suspected of having committed
the alleged offence” (§ 34).
4.4. The
right to be informed of the reasons for the arrest (Article 5 §
2 ECHR)
37. As pointed out above
,
there is no case-law to be found on the length of time that a person
can be detained without being charged. By contrast, one could expect
that the case-law under Article 5 § 2 ECHR would provide an answer,
as it requires that the detainee must be promptly informed of the
reason for his arrest and of any charge against him. However, the
Court has never interpreted this provision literally, but instead tends
to reiterate the interpretation of
Fox,
Campbell and Hartley v. United Kingdom , in which the Court has summarises the
relevant principles as follows:
“Paragraph 2 of Article 5 contains the elementary
safeguard that any person arrested should know why he is being deprived
of his liberty. This provision is an integral part of the scheme
of protection afforded by Article 5: by virtue of paragraph 2 any
person arrested must be told, in simple, non-technical language that
he can understand, the essential legal and factual grounds for his
arrest, so as to be able, if he sees fit, to apply to a court to
challenge its lawfulness in accordance with paragraph 4 [...]. Whilst
this information must be conveyed ‘promptly’ (in French: ‘dans le
plus court délai’), it need not be related in its entirety by the
arresting officer at the very moment of the arrest. Whether the
content and promptness of the information conveyed were sufficient
is to be assessed in each case according to its special features.”
(§ 40, emphasis added)
38. This interpretation requires the government to give the suspect
enough information to organise his/her defence, but it cannot necessarily
be inferred from this that there exists an obligation to formally
“charge” a person within a certain period of time.
39. The applicants in the case of
Fox,
Campbell and Hartley v. United Kingdom were arrested
on grounds of suspicion of being terrorists, which the Court deemed
insufficient to justify the arrest (§ 41). However, the Court acknowledged
that the reasons why they were suspected of being terrorists were
brought to the detained persons’ attention indirectly, through the
questions they were asked during their interrogations (§ 41). Those interrogations
were terminated within not more than seven hours after the arrest,
which the Court accepted as “prompt”. Whereas a delay of a few hours
was deemed to be compatible with Article 5 § 2 ECHR, this was not the
case with a delay of 76 hours (
Saadi
v. United Kingdom (Grand Chamber) ,
§ 84). Consequently, the threshold of an acceptable delay for being
informed of the reasons for the arrest must lie between 7 and 76 hours.
40. Again, the Counter-Terrorism Bill 2008 does not cover this
issue, as it concerns only the extension of an already instituted
detention. Although the present legislation does not require explicitly
that the detainee has to be informed of the reason for his arrest,
it cannot be concluded that it is contrary to Article 5 § 2 ECHR,
as the Court accepts that, in specific cases, the reason of arrest
might also be brought to the attention of the detainee indirectly,
in the course of his interrogation. However, Stefan Trechsel, one
of the foremost authorities on Article 5 of the ECHR, has strongly
criticised this case-law, indicating that “the essence of the duty
to give reasons for the arrest is, in my view, to prevent the person
concerned from having simply to guess but to get a clear answer to
the question ‘why have I been arrested?’”
. Indeed, according the evidence taken
by the JCHR, this is exactly the point at issue. At the time of
arrest, a suspect is only told that he or she is suspected of being
a terrorist or suspected of being involved in the commission, preparation
or instigation of a terrorist offence, which tells the arrested
person nothing except “I believe you are a terrorist” (
JCHR Report on 42 days , § 85). The Rapporteur
suggests that the approach taken by the JCHR be endorsed by the
Assembly, namely the JCHR’s recommendation of the need to impose
more stringent requirements about information which must be contained
in the statutory notice given to a suspect before a hearing (§ 89).
4.5. The
right to be brought before a judge (Article 5 § 3 ECHR)
41. Article 5 § 3 ECHR contains
the right of an individual to “prompt” judicial control of the lawfulness
of his detention. To define “promptness”, the former European Commission
on Human Rights adopted the general yardstick of four days (
Egue v. France , p.
70), whereas the Court accepted four days and six hours (
Brogan and Others v. United Kingdom ,
§§ 61-62). For an extensive overview of the case-law to Article
5 § 3 ECHR, see
McKay v. the United Kingdom ,
§§ 30-47.
42. As to the time-limit for being presented to a judge, there
appears to be,
prima facie,
no incompatibility between the proposed legislation and Article
5 ECHR. The person suspected of terrorism has to be brought before
a judge within 48 hours after his arrest (Section 41 of Terrorism
Act 2000
). The detention can then be continued
for periods up to seven days at a time (Part 1 of Schedule 2
of
Counter-Terrorism Bill 2008).
43. However, access to a judicial authority is not sufficient
on its own. The crucial problem lies in the scope of the judicial
review, defined by the Court as follows (
T.W.
v. Malta ):
“It is essentially the object of
Article 5 § 3, which forms a whole with paragraph 1 (c), to require provisional
release once detention ceases to be reasonable. The fact that an
arrested person had access to a judicial authority is not sufficient
to constitute compliance with the opening part of Article 5 § 3.
This provision enjoins the judicial officer before whom the arrested
person appears to review the circumstances militating for or against
detention, to decide by reference to legal criteria whether there
are reasons to justify detention, and to order release if there
are no such reasons … In other words, Article 5 § 3 requires the
judicial officer to consider the merits of the detention.” (paragraph 41,
emphasis added)
44. According to
paragraph
32 (1) of Schedule 8 of the Terrorism Act 2000, the judicial authority seized within
the first 48 hours has only to examine whether the detention is
necessary to obtain or preserve relevant evidence and whether the
investigation is conducted diligently and expeditiously. It is questionable
whether this narrow scope of review can live up to the broadly defined
review required by Article 5 § 3 ECHR following which the judge
must be in a position to decide on the merits of the detention,
i.e. whether there are reasonable grounds for suspicion that the
detainee may have committed the alleged offence and whether there
are sufficient grounds to justify detention as a measure of restraint.
4.6. The
right to habeas corpus proceedings (Article 5 § 4 ECHR)
45. Article 5 § 4 ECHR provides
that a detainee has the right to a
habeas
corpus proceeding to determine the lawfulness of his
detention. Additionally, periodic review of the lawfulness of the
continuing detention must be available to ensure the particular
objectives of the court imposing deprivation of liberty are still
being met. Following the case-law of the Court in
Garcia Alva v. Germany the
minimum content of this judicial hearing comprises
“not
only compliance with the procedural requirements set out in domestic
law but also the reasonableness of the suspicion grounding the arrest
and the legitimacy of the purpose pursued by the arrest and the
ensuing detention.” (paragraph 39, emphasis added)
46. According to
Clause
40 (1) of the Counter-Terrorism Bill 2008, paragraphs 31-34
of Schedule 8 of the Terrorism Act 2000 apply
mutatis
mutandis. Accordingly, the senior judge deciding on the
extension of detention beyond 28 days is required to perform the
same test as the judicial authority of the first 48 hours, namely
to examine whether the detention is necessary to obtain or preserve
relevant evidence and whether the investigation is conducted diligently
and expeditiously (paragraph 32 (1) of Schedule 8 of the
Terrorism Act 2000). The government
is of the view that it is not the role of the court to decide on
the full lawfulness of the detention (
Government
Reply to the Nineteenth Report of Session 2006-07 ,
§ 13). Essentially, judicial scrutiny is limited to the necessity
of detention for investigation rather than “reasonable suspicion
of having committed an offence” (Article 5 § 1 ECHR), which gives
the impression that detention might be used as an instrument to
peaceably pursue a further investigation. Consequently, the judicial
review does not encompass the test of the reasonableness of the
suspicion of having committed an offence and therefore appears to
be contrary to the requirements set out by Article 5 § 4 ECHR.
47. The government is of the view that the detainee has two possibilities
to challenge the lawfulness of his detention: at the hearing for
extending his detention and at a possible
habeas
corpus proceeding (
Government Reply
to the Ninth Report of Session 2007-08 ,
p. 3). As the hearing does not appear to live up to the requirement
set forth by Article 5 § 4 ECHR, it remains to be determined whether
the
habeas corpus procedure is
a remedy which is “sufficiently certain, not only in theory but
also in practice” (
Öcalan
v. Turkey ,
§ 69). That said, it is not even certain whether
habeas corpus proceedings can be
initiated in the cases covered by the draft legislation. In
Nabeel Hussain v. The Hon. Mr Justice Collins , the England and Wales High Court stated that
the requirements of Article 5 § 4 ECHR were satisfied by the extension
hearing procedure (paragraph 26). Assuming that the High Court will
adhere to this case-law also under the proposed 42-day legislation,
the detainee would not be able to apply for
habeas
corpus after the court had extended his detention, because
his application would be struck out for abuse of process (
JCHR
Report on Counter-Terrorism Bill , § 25). In conclusion, there seems
to be reasonable ground to believe that the remedy of
habeas corpus is not sufficiently certain
and therefore no sufficient judicial review, as required by Article
5 § 4 ECHR, appears to be foreseen in the present and future legislation.
4.7. The right to an adversarial hearing
(Articles 5 § 3, 5 § 4 and 6 § 3 ECHR)
48. In addition to the requirements
mentioned above, the Court has ruled that Article 5 § 3, “like Article
5 § 4 – must be understood to require the necessity of following
a procedure that has a judicial character” (
Brannigan
and McBride v. United Kingdom ,
§ 58). This opens a more general debate about the right to a fair trial
of which three aspects – legal assistance, legal representation
and access to information – will be examined below.
49. First, since
John Murray v. United
Kingdom it
is clear that the right to legal assistance required by Article
6 § 3 ECHR
may
be relevant before a case is sent to trial if and in so far as the
fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with its provisions” (paragraph 62). In
Brennan v. UK the Court
reiterated: “although Article 6 will normally require that the accused
be allowed to benefit from the assistance of a lawyer already at
the initial stages of police interrogation, this right, which is
not explicitly set out in the Convention, may be subject to restriction
for good cause. The question in each case is whether the restriction,
in the light of the entirety of the proceedings, has deprived the
accused of a fair hearing” (paragraph 45).
50. In the present and future legislation as presently drafted,
access to a lawyer can be delayed for up to 48 hours if the police
believe that, for instance, such access would lead to interference
with evidence or alerting another subject (paragraph 8 of Schedule
8 Terrorism Act 2000). So far, the legislation seems to be in accordance
with the
Murray interpretation
of Article 6 § 3 Convention, as it specifies for which reasons (“good causes”)
the officer can delay the right to legal assistance. In this respect,
it has to be noted that the (former) UN Human Rights Commission
has demanded that access to a lawyer shall follow immediately after
the arrest.
This
statement is in line with the general trend to recognise the right
to immediate access to a lawyer.
Although the current
and future legislation do not appear –
prima
facie – to infringe the Convention, the concern remains
whether such broadly-phrased exceptions to this right might not
lead to the risk of abuse.
51. Second, according to the Court’s case-law, “proceedings conducted
under Article 5 § 4 of the Convention should in principle also meet,
to the largest extent possible under the circumstances of an on-going investigation,
the basic requirements of a fair trial, such as the right to an
adversarial procedure” (
Garcia Alva v.
Germany , § 39). Therefore, under Article 5
§ 4 ECHR, “the person should have … the opportunity to be heard
either in person or, where necessary, through some form of representation”
(
Winterwerp v. The Netherlands ,
§ 60).
52. Under Paragraph 33 (1) of Schedule 8 Terrorism Act 2000, which
will equally apply to detention beyond 28 days (paragraph 40 [1]
of Schedule 2 Counter-Terrorism Bill 2008), the detainee has the
right to make oral or written representations to the judicial authority
and is entitled to legal representation. The judge, however, may
exclude the detainee and his or her representative from any part
of the hearing. The legislation therefore covers the possibility
that a detention might be extended without the suspect having been
heard, a situation which is likely to infringe the Convention.
53. Third, the principle of “[e]quality of arms is not ensured
if counsel is denied access to those documents in the investigation
file which are essential in order effectively to challenge the lawfulness
of his client’s detention” (
Garcia Alva
v. Germany , § 39). The Court, at the same time,
acknowledges that, when national security is involved, the use of
confidential material may be unavoidable (
Chahal
v. United Kingdom ,
§ 131). The Court qualifies this finding in saying that “[t]his
does not mean, however, that the national authorities can be free
from effective control by the domestic courts” and subsequently
draws the attention to techniques which satisfy both the individual
interest of access to information and the societal need for national
security.
54. With respect to the access to information, Section 34 of Schedule
8 Terrorism Act 2000 specifies a wide range of instances in which
the judge is entitled to withhold information from the detainee
and his representative. The legislation conclusively appears to
allow a situation in which no effective judicial control is exercised.
This would be unacceptable in the light of the above-mentioned
Chahal v. United Kingdom judgment.
The same judgment suggests that this deficiency could be compensated
by the introduction of a security-cleared special representative
who in the absence of the suspect and his/her representative would defend
the interests of the detainee and would also have access to the
confidential material (paragraph 144). In the case of control orders
, the UK has already
chosen this solution. However, although the use of special advocates
can help enhance procedural justice, the controlled person does
not know the allegations made against him and cannot give meaningful
instructions. Once the special advocate knows what the allegations are,
he cannot tell the controlled person or seek instructions from him
without permission, effectively denying the controlled person an
opportunity to challenge or rebut allegations. In such a case, as
the House of Lords (the highest court in the UK) has pointed out
, even involving
a special advocate would impair the very essence of the right to
a fair hearing set out in Article 6 ECHR.
4.8. Inhuman treatment because of length
of detention (Article 3 ECHR)
55. A very long period of pre-charge
detention could, in certain circumstances, amount to inhuman and degrading
treatment under Article 3 ECHR. Already in the debate about an increase
beyond 14 days, the JCHR repeatedly drew attention to the risk that
because of the length of the detention, detainees may suffer inhuman and
degrading treatment given the inappropriateness of police custody
facilities (
JCHR
Report on Counter-Terrorism Bill 2006 ,
§ 86; criticism to Counter-Terrorism Bill 2008 in
JCHR Report on 42 Days ,
§ 78). In that respect, the CPT noted – after visiting a police
station in London – that conditions had not been adequate for such
prolonged periods of detention (CPT Report UK: 11 to 15 July 2005
,
§ 24). After each of the following two visits to the UK, the CPT
has reiterated its concern (
CPT
Report UK: 20 to 25 November 2005, § 28 and
CPT
News Flash UK: 2 to 6 December 2007)
. Although the likelihood
of inhuman treatment increases the longer the detention lasts, the
detention itself cannot in itself,
prima
facie, be regarded contrary to Article 3 ECHR. But the
suffering caused by the detention itself can be compounded by the
detainee’s lack of knowledge of the reasons for which he or she
is detained.
4.9. Parliamentary oversight
56. Parliamentary oversight is
proposed in the draft legislation as an additional and unusual safeguard
for the protection of the right to liberty of the detained, even
though such oversight would not be automatic.
First,
in view of the importance that the Assembly attaches to the effective
separation of powers
, the proposal to allow a legislative
organ to decide on the justification of an assessment of the Secretary
of State declaring the “reserve power” exercisable seems to be out
of place. Second, the Bill specifies that “[t]he statement must
not include the name …, or any material that might prejudice the
prosecution of any person” (Clause 27 [4] [a] Counter-Terrorism
Bill 2008). In view of the small amount of information furnished
to the legislature, the Rapporteur doubts Parliament’s ability effectively
to provide an additional safeguard to a terrorist suspect. Finally,
the alleged ‘parliamentary safeguard’ does not in any way curtail
the 7-day period during which a pending order made by the Secretary
of State remains valid.
Also, if the
Parliament refuses to give its approval, nothing “prevents the making
of a new order” (Clause 28 [3] [a] Counter-Terrorism Bill 2008)
before the order lapses. As a result, if on the 28th day
of detention the Secretary of State issues the order, he is to submit
it “as soon as is practicable” to Parliament. Assuming that this
happens on the 29th day, the order will
lapse seven days later, i.e. on the 36th day.
If a new order is issued on this day, the 7-day period will start
again a day later on the 37th and will
end on the 44th day. This would enable
the detention of a terrorist suspect up to the 42nd day
without the approval of the Parliament (see time-line in appendix).
Rather then instituting a quasi-judicial parliamentary oversight
which can in any case be circumvented, more attention and energy
should be concentrated on the need for appropriate judicial review.
4.10. Derogation under Article 15 ECHR
57. The reserve power can only
be declared exercisable in the case of a “grave, exceptional terrorist
threat” (
Clause
22 Counter-Terrorism Bill 2008). As to the meaning of this
notion, Andrew Dismore MP, the Chairman of the JCHR, suggested two
different interpretations
: Either a substantial
threat against the nation, like for example the two or three 9/11s
suggested by Home Office Minister Tony McNulty MP
,
or a less extreme terrorist case, like the London bombings in July
2005. In the latter case of a less extreme terrorist threat, a detention
beyond 28 days would not be needed at all, as the July 2005 bombings
were dealt with under the 14-day regime. Hence, in view of this
reasoning combined with the fact that the UK government continually stresses
the growing scale and complexity of the terrorist threat, it must
have adopted the former interpretation. In such a case of a substantial
threat against the nation, however, the UK government would be justified
to file a derogation under Article 15 ECHR (from Article 5 ECHR)
and would thus not need to declare a “reserve power” exercisable.
Consequently, it seems wise to follow the suggestion of the JCHR
to
include the possibility of derogation in the Bill instead of creating
a complicated system, not to say a legal ‘monstrosity’, of “reserve
power”.
5. Conclusion
58. In the view of the Rapporteur,
the question is not whether the length of 42 days and even perhaps
28 days detention without charge is
per
se compatible with the Convention, but whether the pre-charge
detention is accompanied by sufficient legal safeguards. He refers,
in this connection, to the 2002 Committee of Ministers’
Guidelines on Human Rights and the Fight against
Terrorism, which, based on the established case-law of
the Strasbourg Court, are designed to serve as a guide for anti-terrorist
policies, legislation and operations which are both effective and
respect human rights. From the analysis of the safeguards proposed in
the draft legislation, the Rapporteur draws the following conclusions:
- Contrary to Article 5 § 1 ECHR,
the present and future legislation may be “unlawful” detention in
that a person can be arrested without the intention to charge him
or her with a criminal offence.
- Contrary to Article 5 § 2 ECHR, the existing legislation
does not expressly provide that the detained person is informed
at all of the reasons for his or her arrest. This deficiency could
be corrected by imposing more stringent requirements about the information
which must be contained in the statutory notice given to a suspect
before a hearing.
- By contrast, the short delay foreseen for the suspect
to be presented to a judge might well comply with the requirements
of Article 5 § 3 ECHR.
- That said, if a person is arrested or continuously detained
on the basis of participating in the preparation of grave terrorist
offences, the judge has to be able to review whether the underlying
facts at least give rise to a reasonable suspicion that the detained
person has committed an offence. Under the present and future legislation,
it does not appear that the limited review that the judge shall
undertake reaches the standards laid down in Articles 5 § 3 and
5 § 4 ECHR.
- Furthermore, for there to be proper judicial scrutiny
of applications for pre-charge detention and its extension, logic
suggests that there must be an adversarial hearing before a judge
(subject to the law of public interest immunity to protect sensitive
information). It appears that the current and future legislation would
enable a person to be continuously detained without, in certain
cases, having immediate access to a lawyer, without having been
legally represented and without having had access to relevant information
in proceedings that concerns his or her right to liberty. This situation
gives rise to serious concerns as to compatibility with Articles
5 §§ 3 and 4 and 6 §§ 1and 3 ECHR.
- Additionally, the length of time during which the person
may be detained and the suspect’s lack of information on the reasons
for his detention increase the risk that the threshold of inhuman
or degrading treatment may be exceeded.
- These shortcomings cannot be compensated by a complicated
system of parliamentary oversight which seems to be ineffective,
easy to circumvent and which appears to infringe the separation
of powers.
- Instead of instituting such a questionable parliamentary
‘safeguard’, the government might want to follow the recent recommendation
of the JCHR (JCHR
Report on Annual Renewal of 28 Days 2008 ,
§ 32-34) and improve the existing judicial safeguards whilst at
the same time including the possibility of a derogation from the
Convention in its counter-terrorism legislation, in order to be
able to prevent an exceptionally grave terrorist attack.
59. In view of the important principles involved in the questions
discussed and analysed in this report, the Rapporteur recommends
that the Assembly invite the Venice Commission to examine the United
Kingdom’s anti-terrorist legislation in the framework of a comprehensive
comparative study. Such a study could address the different issues
raised above, placing the “42-day pre-charge detention” initiative
that has given rise to the present report in the wider context of
the need to provide appropriate ECHR legal safeguards for all persons detained,
even those suspected of such serious crimes as acts of terrorism.