The answer is not 42

Posted: March 20th, 2008 | Author: | Filed under: Uncategorized | No Comments »

The question is..

How long should police/security services be allowed to hold a suspect prior to charging them with an offense?

In the USA the answer to this question is 2 days; In Russia it is 5 days; In France it is 6 days; In the UK the answer is already an astonishing 28 days. No other democracy comes close. And yet the government’s latest “anti-terror” legistation (which will get a second reading in the commons on April 1st ,with a vote to follow after the May local elections), proposes to extend this period of pre-charge detention to 42 days.

The idea that someone can be held by Police for as long as 42 days, potentially without being told of the grounds for suspicion, let alone be charged with an offence, is an idea that should remain the province of Kafka and his book “The Trial”. The Judiciary serves the key role in English law providing the counter-balance to the state, allowing independent oversight and review of prosecution. Yet until you are charged with an offense there are no grounds for the Judiciary to intervene. You cannot defend yourself when there is no charge against which to defend.

…the first impression made by the defence will often determine the whole course of the proceedings. Unfortunately, though, he would still have to make it clear to K. that the first documents submitted are sometimes not even read by the court.

if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don’t have
access even to the court records, and especially not to the indictment, and that means we generally don’t know – or at least not precisely – what the first documents need to be about, which means that if they do contain anything of relevance to the case it’s only by a lucky coincidence. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it’s possible to work out and submit documents that really direct the issue and present proof, but not before. Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it’s only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that. So strictly speaking, there is no such thing as a counsel acknowledged by the court, and anyone who comes before this court as counsel is basically no more than a barrack room lawyer. The effect of all this, of course, is to remove the dignity of the whole procedure,

This is an extract from “The Trial” yet disturbingly close to what can happen in the UK should the government continue to extend pre-charge detention during which time the (yet to be) accused is allowed no meaningful defense.

What is the motivation of the government in extending this pre-charge period ?

The posited need is to allow more time to investigate “terrorism” cases. There is little-to-no evidence that the current limit of 28 days is harming such investigations, and members of the security services, police and judiciary have either directly questioned whether an extension would have any tangible benefit in terror investigations, or failed to provide any supporting evidence for the extension.
Furthermore, there are viable alternatives to this proposal which extend the powers relating to terrorism investigations. As part of the Charge or Release campaign, Liberty Human Rights have suggested & support a number of alternative powers:

  • Remove the bar on the use of intercept (phone tap) evidence because its inadmissibility is a major factor in being unable to bring charges in terror cases. Liberty welcomes the Government’s proposed Privy Council review into the use of this evidence in terror trials.
  • Allow post-charge questioning in terror cases, provided that the initial charge is legitimate and there is judicial oversight. This will allow for a charge to be replaced with a more appropriate offense at a later stage.
  • Hire more interpreters: Prioritise the hiring of more foreign language interpreters to expedite pre-charge questioning and other procedures.
  • Add resources: More resources for police and intelligence services.
  • Emergency measures in the Civil Contingencies Act 2004 could be triggered in a genuine emergency in which the police are overwhelmed by multiple terror plots, allowing the Government to temporarily extend pre-charge detention subject to Parliamentary and judicial oversight. Liberty believes that this is preferable to creating a permanent state of emergency.

Crucially these proposals do not undermine the foundations of our justice system.

What can you do about it?

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