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28 days detention: unsound and useless in practice

If you’re suspected of murder, rape, arson or manslaughter, you can be held without charge by the police for up to four days, while the police interview you and decide whether there is sufficient evidence to charge you with a criminal offence, and take you before the criminal courts for trial.

If you’re suspected of involvement in the preparation, commission or instigation of “terrorism” – a description that might refer to activities designed to damage property not violent assault on people – you can be held for up to 28 days before either being charged or released without charge. If you are released without charge, you’ve already served the equivalent of a two month prison sentence, even though your release acknowledges that you are innocent of any offence.

The power permitting the police to detain terrorist suspects for up to 28 days must be renewed by Parliament by July 25. The coalition government announced yesterday that it intends to ask Parliament to renew it. The Liberal Democrat position before the election was that the period should be reduced to 14 days. Will that stance continue now that they are part of the Tory government?

The Prevention of Terrorism Act, passed in 1974 after the Birmingham bombs, first permitted detention before charge up to seven days for those suspected of terrorist offences. This period was entrenched in the Terrorism Act 2000, an Act which also adopted a very broad definition of terrorism: not just activities that involve violence to people but also activities that might damage property. Opponents cited the Suffragettes, Greenham Common women and anti-apartheid protesters as people who would be branded “terrorists” under that definition. In 2003, the period was extended to 14 days.

When Blair declared after July 7 2005 that “the rules of the game have changed,” he notoriously tried to introduce 90-day detention before charge. A parliamentary alliance of Labour backbenchers, the Tories, Liberal Democrats and other opposition MPs blocked the 90 day proposal. David Winnick MP’s amendment proposing a 28-day period was one of the alternatives put forward, instead of the status quo – which was 14 days. Many of the MPs who voted for Winnick’s amendment did so for tactical reasons – to prevent 90 days succeeding. Very few actually made a case for 28 days.

Brown’s government had another go – trying to extend the period to 42 days (six weeks). A similar parliamentary alliance defeated it in the House of Lords, but again very few made a positive case for 28 days.

This time round, the issue is not whether there should be a longer period than 28 days but whether 28 days is itself too long. There are no tactical reasons to vote for retaining 28 days, and plenty of arguments that the period should be shorter, perhaps even as short as the period for all other serious criminal offences: four days.

Why should terrorist offences be treated differently to other serious criminal offences, which also involve loss of life, sometimes on a large scale? If Derrick Bird, the Cumbrian mass murderer, had not shot himself and had been arrested, the police would have had to decide within four days whether he should be charged or not.

The police’s argument – deployed in support of both the 90 days and 42 days proposals – is that forensic testing and rigorous interviewing of the suspect cannot be completed in less than 28 days. Twenty-first century terrorists need to be arrested early in the process, before the police have got much of their evidence. Gathering the evidence involves a number of international organisations working together, establishing the identity of suspects can take time and the examination as does decryption of vast amounts of computer data, mobile phones etc.

Civil liberties campaigners say that all of this can be achieved, at the longest within 14 days. The delays caused by working with other agencies occur during the investigation stage, before a suspect is arrested. Once someone is arrested, the police are able to question the suspect – a process which, even at its most complicated, takes days rather than weeks – and also to seize any computer equipment, mobile phones etc that the suspect has.

Obviously deciphering encrypted computers takes some time. But there is no reason why someone should be detained once the police have seized the hardware. A suspect can be required to return, later, to be interviewed about anything found on the computer.

Since Parliament approved 28-day detention, it has been used twice. In August 2006, 25 people were arrested in connection with the airline bomb plot and the police announced their intention to use the 28-day period. In fact, the police charged 11 people after having detained them for only 12 days. Those 11 people included the three eventually convicted of plotting to blow up air planes in mid-air. The police had not needed any period longer than 14 days to decide that there was evidence to charge them.

The remaining 14 were held for longer than 14 days. Some were then released without charge. Others had charges dropped against then or were found not guilty at trial. It was therefore the innocent suspects, not those actually involved in the plot, who found themselves subject to the longest pre-charge detention period in Europe.

The second time concerned a man called Habib Ahmed who was detained for the full 28-day period. He was later convicted of being a member of al-Qaida, and acquitted of seven charges of possessing information for the purposes of terrorism. The police had been following and bugging Ahmed for months before his arrest, so most of the evidence was already known to them at the time of his arrest. The court case focused on a diary which contained writing in invisible ink. I can’t imagine that the police needed 28 days to detect and decipher invisible ink.

If 28 days was such an important weapon in the police’s anti-terrorist arsenal, why has it only been used twice since it was introduced four years ago? And, indeed, only once against someone who is later convicted of membership of a terrorist organisation? The others detained for longer than 14 days were all innocent. It is hard to see how 28-day detention without charge could be said to be necessary to prevent terrorism.

Liberty, Campaign Against Criminalising Communities, the Haldane Society and others are campaigning for MPs to vote against the renewal of 28 days. If 28 days is not renewed, the previous period of 14-day detention for terrorist suspects will apply.

Liz Davies is a barrister, political activist and chairwoman of the Haldane Society of Socialist Lawyers. She was formerly a member of Labour’s National Executive Committee. She wrote this column in a personal capacity for the Morning Star.

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