The Assault on Liberty: What Went Wrong with Rights. Dominic Raab
any evidence to back up its case. Nor has it explained why other less repressive measures would provide inadequate alternatives. Instead of presenting a compelling case on the merits, the government has relied on popular nervousness after the 7/7 bombings and the – increasingly abused – public trust that the government would not seek additional security powers unless it was absolutely necessary.
So what is the strength of the case for extending detention without charge in Britain beyond twenty-eight days? A cursory comparison with international practice is revealing. At twenty-eight days the UK already has by far the longest period of pre-charge detention amongst comparable democracies. In Europe, France permits only six days’ pre-charge detention and Germany only two. While the continental justice systems operate differently, these represent the limits on the period of detention without formally laying charges before an accused. In common law countries with a justice system more closely comparable to our own, Australia allows twelve days’ pre-charge detention, New Zealand two and Canada just one day. In the US, after the horrors of 9/11 – and two terms of President George W. Bush’s war on terror – two days’ pre-charge detention has proved more than adequate in dealing with ten recent complex terrorism investigations. Outside the democratic world, Russian law only allows the police to hold suspects for five days, Zimbabwe only allows twenty-one days’ detention and even China only allows police detention of suspects for thirty-seven days. Britain, once a beacon of liberty, now has the longest period of detention without charge in the free world.
If international comparisons suggest that forty-two days is excessive, experience at home points to the same conclusion. While the security environment in Britain has changed in recent years, none of the counter-terrorism investigations in the UK to date have demonstrated the need for a longer period. Twenty-eight days was enough to comfortably deal with the most complex terrorism case we have ever faced, the plot to blow ten transatlantic airliners out of the sky at Heathrow in August 2006. If successful, it would have been the worst terrorist attack in British history, almost certainly causing a greater number of casualties than the attacks in the US on 9/11. Operation Overt, the police investigation that followed, was certainly complex – involving close cooperation with international partners, sifting large amounts of evidence (including computer hard drives and forensic analysis) and reviewing a wide range of suspects. It was held up, on both sides of the debate, as the litmus test case for scrutinizing whether the police can cope with a twenty-eight-day limit.
During Operation Overt, twenty-four suspects were arrested and seventeen were charged with terrorism offences. Of the twenty-four arrested all of those charged with the more serious offences of conspiracy to murder and conspiracy to blow up aeroplanes were charged within twenty-one days of arrest. Five were detained on lesser charges of ‘acts preparatory to terrorism’ (and other related offences) to the maximum limit of twenty-eight days.
The five held for twenty-eight days formed the crux of the government’s case for an extension of the time limit. Ministers claimed the police were coming perilously close to having to release terrorists, because they were running out of time to gather the necessary evidence to charge them. But do the facts back this up? Of the five held for twenty-eight days, three were released without any further conditions. They were not placed under any restrictions on release. They were not subject to a control order, or any other related measure, limiting their movements or activities – the clearest indication that, by that point, they were now believed to be entirely unconnected with any terrorist activity relating to Operation Overt. So, the three innocent suspects released after twenty-eight days do not provide evidence that the government needs a longer period of detention to prevent real terrorists from walking free.
However, two of the five suspects were charged at the end of the twenty-eight-day period. But, in both cases, the Metropolitan Police and Crown Prosecution Service subsequently confirmed that the evidence relied upon to charge them was obtained within four and twelve days of arrest respectively. Furthermore, both suspects were subsequently bailed, which no court would conceivably have allowed if they posed a threat to public safety. The Home Secretary, Jacqui Smith, and the Minister for Security, Tony McNulty, both persistently denied these facts when they were presented to them in the House of Commons. At best, they failed to test the evidence presented to them by the police with the rigour to be expected of ministers. At worst, they disregarded – and then denied – key facts that they found inconvenient as they struggled to make the case for forty-two days. Either amounts to a serious dereliction of ministerial duty. The fact remains that, in the most challenging terrorism investigation the UK has ever had to deal with, police obtained all the evidence necessary to charge all the suspects within twenty-one days – not twenty-eight let alone forty-two days. There was never any risk that the police would have to release a serious terrorist suspect – posing a threat to the public – as a result of the twenty-eight-day limit.
On the contrary, as the Director of Public Prosecutions (DPP) made clear for all counter-terrorism investigations carried out under the twenty-eight-day limit, the law 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