Ten thoughts on 42-day detention

1) Like all restrictions on civil liberties, 42-day detention is a victory for terrorists. It shows their followers that the British state is afraid of them. It creates a permanent atmosphere of abnormality and emergency. And of course, 42-day detention is bound to create injustice and martyrs, especially in the communities whose co-operation is most needed in the fight against terrorism. For that reason, it is more likely to dry up the flow of valuable information than to promote it. [See speech at annex by Gerald Kaufman, then Shadow Home Secretary, opposing renewal of  the Prevention of Terrorism Act renewal in 1986].

2) Statements from people in long detention are notoriously unreliable. People volunteer names just to end the detention. You could easily get a chain reaction. Mr A in detention names B and C who are themselves detained for 42 days and name D and E and F and G. The number of detainees rises exponentially, with no reliable evidence against any of them.

3) An allied point: long detention gives immense scope for malicious informants to the police. If you want to put away a rival, whether in love or in business, you denounce him as a terrorist. He is never told who has denounced him, so he never has any remedy against you. (Have any terrorist suspects had any compensation for false arrest?)

4) In some cases, arrest might be based on information (or alleged information) from intelligence sources which cannot be revealed in court. Detention then triggers a search for other evidence which can be used in a trial – which is perilously close to using detention to pressure people into incriminating themselves.

5) The government has made much of the need to interpret evidence in foreign languages from and on detainees, However, a briefing from Liberty suggested that there is a shortage of interpreters for terrorist suspects. I understand that this is an acute issue for the police and the security services and that some interpreters are of doubtful quality. We have a right to know how many interpreters in relevant languages have been used by the police/security services in each of the years since September 2001. If the number has not changed much, that would be a telling point against the government. Whatever the answer, it is disgraceful for government to demand longer detention for suspects because it has not got enough time  or resources to interpret them.

6) There is a similar argument about decryption. The government has claimed that it needs more time for this. But I understood that it has the power to demand now that terrorist suspects themselves decrypt any encrypted communication.

7) This next point is a bit dodgy because it does sound like an argument for preventive arrest. But it does have a bearing on the government’s aim of preventing terrorism. Just by arresting a terrorist suspect you pretty much nullify his value to a terrorist organization (if he belongs to one).  It knows that he is suspect and it cannot afford to entrust him with any important mission or information. Detention after arrest does not add anything to the anti-terrorist struggle, except information which gets less and less reliable as the detention goes on. And of course it is wrong and totalitarian to detain people just to squeeze information out of them.

8) Unless the police have acted only on hearsay (see 2 and 3 above) they should have some solid evidence before arresting somebody as a terrorist suspect. They will have observed his behaviour, and if they have monitored his communications they must already have understood them (if in a foreign language or encrypted they should have been interpreted or decrypted before arrest). Having got enough evidence for an arrest, why do the police need as many as 28 days, let alone 42, to bring a charge?

9) The last point is all the stronger because there is such a wide definition of terrorism and there are so many inchoate and ancillary offences connected with terrorism (eg abetting, concealing, procuring, conspiracy, committing acts preparatory to terrorism). There is a big range of human activity – or non-activity – which can generate a charge related to terrorism. If the police cannot pin any of this on a suspect after 28 days they should release him.

10) The government has raised serious legal and constitutional worries with its proposals for Parliamentary scrutiny of individual detentions. In effect, Parliament will be asked to act as judge and jury in a preliminary trial of the detainee. MPs and peers will not see any evidence against him or her, for fear of disclosing security information and prejudicing a real trial. They will not see the detainee or hear legal arguments by counsel. Unlike a proper judge and jury, they will be whipped. A backbench government MP who wants to vote against a detention will have to be spectacularly brave – defying not only the whips but the inevitable tabloid headlines: “MP votes to free terror suspect.”

ANNEX: Gerald Kaufman, Shadow Home Secretary, opposing Prevention of Terrorism Act renewal in 1986