The Assault on Liberty: What Went Wrong with Rights. Dominic Raab

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СКАЧАТЬ 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 СКАЧАТЬ