Terrorism (Detention and Human Rights)

One thing that was unsatisfactory about the process was that when the Committee was able to look in great detail at a substantial number of cases in private evidence, the case for going beyond 14 days was compelling. There was not a compelling case for going to 90 days, but a very good case could be made for 28 days. With due respect, when most hon. Members voted for 28 days, they could not have done so on the basis of the evidence because the evidence was not in front of the House. Whatever the reason for the way in which Members voted—I was one of those who voted for 90 days, partly from having been involved in such matters as a Home Office Minister—none of us could base our votes on a considered examination of the evidence. One could argue that in some ways the police case was stronger for an extension of detention powers than came across at the time, although they could not, in our view, make the case for 90 days. We put it to Assistant Commissioner Hayman that the police were certain of the need for the maximum period to go beyond 14 days, but that the"““question of whether the maximum period should be 90 days””—" was—"““much more…an instinctive judgment of what””—" felt about right. Mr. Hayman agreed. He said:"““That is absolutely fair. I know that sounds pretty flaky. I expect members are sitting here thinking, ‘Crikey, there should be more basis for that’, but that was the question that was asked.””" To be fair, he went on to say that it was a difficult judgment and that the police gave a professional judgment. I do not disrespect him for that, but yes, I thought it was rather flaky to base the case for such an enormous extension of detention pre-charge on a maximum period without more evidence. We concluded that the extension to 28 days was convincing; we did not find the arguments for 90 days compelling at all. Ministers said that on the same limited evidence—those few bits of paper—they had found the case compelling. We found that surprising. There was no division in the Committee on the central proposition—that the nature of the threat has changed. Some witnesses said that it is not very different from the threat that we faced from the IRA. We felt, however, that the centrality of mass murder as the aim of terrorist actions, the willingness to use suicide bombings and the international links, put the threat on a different order of magnitude. That is to take nothing away from the horrific actions of the IRA and others and their willingness to take human life as part of their activities, but the centrality of mass murder as the prime political tactic of current terrorism puts it in a different category. The Committee therefore tried to understand the nature of the policing involved in trying to tackle that terrorism. My hon. Friend the Member for Hendon (Mr. Dismore) will speak for himself, but there was a slight distinction between our Committee and the Joint Committee on Human Rights, which considered the legal framework in which things took place. We, on the other hand, spent considerable time trying to understand the day-to-day practical realities of policing the threat. One of our early conclusions was that the police now inevitably move to arrest much earlier in an investigation than they would with any other type of crime. We caused a stir by suggesting that there was a preventive element to those arrests. The report by the Joint Committee on Human Rights used different language. It stated:"““Nowadays we are told arrests are usually intelligence-driven: suspects are arrested first, then the case against them can begin to be built.””" That is inevitable. One reason why there is a case for an extended period of pre-charge detention is precisely because the fear of allowing a bombing or similar event to happen requires people to act more quickly. One of our conclusions was that there should be judicial oversight of the decision to arrest early in terrorism cases. The Forest Gate raid was in part—we read in the papers, at least—prompted by the danger that authorities in other countries would trigger action that would undermine the investigation. Had there been judicial oversight of the case, however, there is no doubt that the police would have been protected from some of the subsequent criticism, which said that they moved too early and in too precipitate a way. If it had been a bank robbery conspiracy, there is no way that the police would have intervened as early as they did in their investigation, because they would have taken a different judgment of the risk involved in allowing the conspiracy to develop. Another of our early conclusions was that we should consider judicial oversight of the initial decision to undertake major arrests under the Terrorism Act 2006.