Liberty recently published a study that demonstrated that Britain's current 28-day limit on pre-charge detention is much longer than in 15 comparable democracies around the world, based on advice from leading lawyers and academics. Alex Carlile, the independent reviewer of terrorism legislation, dismisses this research as "mere campaigning zeal."
Yet Carlile's article actually demonstrates just how far the few remaining supporters of longer pre-charge detention have to go to justify any extension beyond 28 days. Faced with the fact that the US constitution limits pre-charge detention to just two days, Carlile's response is that the British government's proposal is not as bad as Guantánamo bay or extraordinary rendition. Surely Britain, which many used to see as a beacon of liberty, can aspire to more than that.
In a similar vein, Carlile argues that Liberty's study is too kind to the French because, he implies, suspects are often ill-treated by French police during the six days they are allowed to be held before charge. I certainly condemn any such violation of French domestic and international law, but I struggle to see how this justifies Britain holding people without charge for over a month.
Carlile's comments on Italy, meanwhile—suggesting that the suspects in the murder of the British student Meredith Kercher could spend up to a year in custody without being charged—flatly contradict the advice we have received from Italian lawyers and, I suspect, reveal confusion between pre-charge and pre-trial detention. There is a major difference between the two. In Italy, after charge, continued detention is based on hard evidence rather than mere police suspicion and, at the point of charge, the case is handed from the police to the prosecution and the suspect is formally told what s/he is alleged to have done.
Why does Britain need to hold people for over a month when so many other countries manage with pre-charge detention periods of less than a week? Rather than answer the question, proponents of longer pre-charge detention argue either that despite the international nature of the threat from terrorism, Britain's counterterror laws somehow exist in a vacuum, or that international comparisons are impossible.
Of course, comparisons can be difficult—Liberty has never pretended otherwise—but the difficulties can be overplayed. Britain's criminal justice system has been exported around the world—one of the better legacies of colonialism—meaning that comparisons are sometimes quite straightforward. No common law country we received advice on permits pre-charge detention for anything like 28 days. In civil law countries that do not have the exact concept of "pre-charge detention," like France and Germany, we asked lawyers qualified in those jurisdictions to identify the closest equivalent. They told us that the closest equivalent to a charge must happen within a matter of days; not months or years as Carlile (and Ian Blair) have suggested.
Carlile also attacks two of the more proportionate alternatives to longer pre-charge detention suggested by Liberty and many others—post-charge questioning and the use of intercept evidence in court. He rightly points out that the former might lead to abuse, which is why Liberty has said there must be proper safeguards and prior judicial authorisation and oversight. He argues that intercept evidence would only make a difference in "a tiny proportion of trials." Given the number of intercepts authorised each year, that would be surprising but, even if true, they could be exactly the "one or two" cases which, Carlile suggests, might otherwise call for more than 28 days' detention over the next five years.
And finally to Carlile's most frequently cited justification for longer pre-charge detention—Kafeel Ahmed, one of the alleged Glasgow airport bombers. In response, I quote the comments of Nick Clegg, home affairs spokesman for Carlile's own Liberal Democrats party:
"I've heard some other pretty odd arguments in favour of extension, not least that Kafeel Ahmed, one of the alleged terror attackers at Glasgow airport, who fell into a coma and then died in hospital, might have required more than 28 days of questioning. This is absurd. Not only had he been clearly caught on camera driving a blazing vehicle into the terminal building—a sound basis for an immediate charge if ever I've seen one—he was in a coma, and hardly in need of detention."
Carlile charges Liberty with "campaigning zeal." I make no apology for our campaign against longer pre-charge detention—a proposal which is unjustified, will inevitably lead to injustice and may well prove counterproductive. The energy with which the reviewer of terrorism legislation has defended the government's proposals is, however, surprising. This important role was originally envisaged as providing policymakers with impartial reports about how terrorism laws have been used in practice. It was never intended to create a single judge of the most contentious issues facing this parliament—a role which Carlile seems keen to play but which is surely too much to ask of any one person.
