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

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СКАЧАТЬ 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.

      During the debate on ninety days, Lord Condon, former head of the Metropolitan Police, raised this concern in explicit terms: ‘If we now go back and make it look like we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women…to be misguided, brainwashed and induced into acts of martyrdom.’

      More recently, Lord Dear, former Chief Constable of West Midlands Police and a former Chief Inspector of Constabulary, delivered an even starker warning:

      Make no mistake, extending pre-charge detention would most certainly be a propaganda coup for al-Qaida…The immediate danger if we travel down this road is that we will lose the battle for hearts and minds abroad, and particularly in the minority groups in this country, whose long-term support is vital if we are to counter and remove the threat of terrorism.

      Even the government’s own Security Minister, Lord West, expressed concerns about extending pre-charge detention before being forced to retract them by the Prime Minister:

      I want to have absolute evidence that we actually need longer than 28 days. I want to be totally convinced because I am not going to go and push for something that actually affects the liberty of the individual unless there is a real necessity for it. I still need to be fully convinced that we absolutely need more than 28 days and I also need to be convinced what is the best way of doing that.

      A growing list of security experts, with front-line experience in the fight against terrorism, are warning that extending pre-charge detention will aggravate, not mitigate, the terrorist threat level.

      The second security risk in extending pre-charge is that it will cut off the flow of human intelligence to the police. In 2007, the head of counter-terrorism at the Metropolitan Police, Peter Clarke, made the case publicly that improving public understanding and trust represents the greatest current challenge we face in addressing the terrorist threat. While Clarke supported the Metropolitan Police’s line in favour of forty-two days, he has also pointed out that very few terrorism prosecutions originate from ‘community intelligence’ – namely members of local communities coming forward to the police with information or cooperation about suspected terrorist activity. This is in marked contrast to the high level of cooperation and intelligence derived from local communities in France and other countries. Clarke warned that: ‘…the lack of public trust in intelligence is in danger of infecting the relationship between the police and the communities we serve. Trust and consent are two concepts that lie at the heart of the relationship between the British police and the public.’

      It is increasingly evident that the disproportionate impact of police powers on the Muslim community risks undermining their confidence in and cooperation with the police and security services. This has a direct bearing on our operational capability, choking off vital ‘community intelligence’, which is critical to counter-terrorism investigations. Even the government’s own impact assessment, accompanying the proposal for forty-two days, acknowledges this: ‘Muslim groups said СКАЧАТЬ