UK Politics

42 days is the wrong focus

I’m listening to Tony McNulty talking about the government’s anti-terror legislation on Radio 4. Apparently, we are beyond the pale again. In The Times Gordon Brown outlines the principles of that legislation.

So our first principle is that there should always be a maximum limit on pre-charge detention. It is fundamental to our civil liberties that no one should be held arbitrarily for an unspecified period. After detailed consultation with the police, and examination of recent trends in terrorist cases, we propose the upper limit of 42 days.

Our second principle is that detention beyond 28 days can be allowed only in truly exceptional circumstances. The decision is made by the Home Secretary but must be backed by the Director of Public Prosecutions as well as the police. And this would allow the higher limit only for a temporary period, and only where there is a specific terrorist incident or threat under investigation that warrants it.

Our third principle is that the Home Secretary must then take this decision to Parliament for approval. If Parliament refused to sanction the decision, the existing 28-day limit would stand.

Fourthly, the judiciary must oversee each individual case. As happens now for detention beyond 14 days, a senior judge will be required to approve the extension of detention in each individual case every seven days up to the new higher limit.

Fifthly, to enhance accountability there must be independent reporting to Parliament and the public on all cases. That is why the independent reviewer will now report publicly not just in general on the operation of the legislation but on each individual case.

Why not just oppose the legislation as it is, rather than misrepresenting it? The judicial and parliamentary oversight protect people from just being locked up for 42 days for no reason. Why don’t critics acknowledge this?

Remember, the UK’s proposed legislation is far better than that existing in France:

France permits prosecution under a crime called association de malfaiteurs (criminal association), which allows charges to be brought when there is an “understanding” between two or more people to carry out a crime and the group has taken at least one material step toward its goal. This resembles U.S. conspiracy law but is harsher because it allows charges to be lodged on the basis of information gained through interrogation without the presence of a lawyer — often supplemented by hearsay evidence — and a suspect can then be held in pretrial detention for more than three years. In terrorism cases, such detention has been common. France thus stays within a criminal justice paradigm but requires far less evidence before allowing the state to place a suspect in long-term detention.

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