Control orders versus extended detention for investigation: which is worse?
The following letter is published in The Times of 23 September 2005:
The Times, September 23, 2005
LETTERS TO THE EDITOR
Custody for terror suspects
From Sir Brian Barder
Sir, One of the most controversial of the Government’s latest anti-terrorism proposals is to extend the period in which a suspect may be held without charge for questioning and investigation from two weeks to three months (report and leading article, September 16).
This is clearly undesirable and the Home Secretary has signalled his willingness to consider a shorter period.But the present regime of control orders, unwillingly swallowed by Parliament last March on condition that it would be reviewed and could be amended or repealed late this year or early in 2006, is yet more undesirable. There is a strong case for trading the repeal of control orders, whose purpose is similar, in exchange for firm guarantees that terrorist suspects detained for questioning and investigation without charge for longer than two weeks would be effectively monitored by a security-cleared judge. The judge would have full access to the relevant investigation, and be mandated to order the suspect’s release at any time unless satisfied that longer detention was proportionate and genuinely necessary on security grounds, that the investigation was being pursued with maximum speed and vigour, and that specific charges and a jury trial were likely to follow.
Some of these safeguards are already included in the Government’s proposals. Detention in a limited number of cases under these conditions would be far preferable to the effective deprivation of liberty without charge or trial or prospect of trial that the pernicious control orders entail. It would be for the police and the security services to satisfy Parliament and public opinion that the three-month maximum which they seek is really necessary. But to end up with both control orders and extended detention for investigation would be intolerable.
BRIAN BARDER
Wandsworth, London
brianlb[at]ntlworld[dot]com
I recognise that those who are unshakably opposed to the idea of detention without charge or trial for longer than two weeks (or at any rate for as long as three months) may view the ‘deal’ that I propose in this Times letter – extended detention for investigation in exchange for repeal of the control orders legislation – as a betrayal. But we know that we are going to have to swallow some new measure in response to the London bombings, and an extension of investigative detention, if accompanied by rigorous judicial monitoring on the lines suggested in my letter, and if explicitly aimed at an eventual charge and trial, seems much less obnoxious than a renewal of the control orders régime. A case can undoubtedly be made for the former, especially if the 3-month maximum can be bargained down to 6 or 8 weeks. By contrast, there can be no case for control orders: harsh and indefinitely renewable restrictions on a person’s everyday life, imperilling his job, his relationships with family and friends, his reputation, his social life, his privacy – and all without any need to establish that he has committed or is even planning to commit any offence. There is a crucial difference between limited detention for investigation of a possible offence for which a suspect will ultimately be tried in court or else released, and the imposition of a control order which may permanently wreck his life without allowing him the opportunity to answer any charge against him. The first involves an obligation on the state to satisfy a court that a specific action in the past has been committed and that it is an offence under the law. The second depends on a politician’s suspicion, based on the suspicions of the security services, that a suspect is likely to commit an unspecified offence in the future, without any need to show that any offence has so far been committed, even under our increasingly sweeping anti-terrorism laws. Ruining the lives of people who have committed no offence, because of a politician’s belief that he can foretell the future, is no kind of justice. It should be swept away at the earliest opportunity, and that opportunity will arise in just a few weeks’ time.
Brian
23 September 2005
As a minor postscript, I should perhaps report having received just one reaction to my Times letter (text above) via the e-mail address appended to my letter. It came from someone in Scarsdale, New York, and read as follows:
I haven’t replied to this, not particularly fancying the sort of dialogue that a reply might precipitate, but I think it’s the first time I’ve been accused of being a Luddite. The name of the signatory looks like a pseudonym, and also perhaps like a reference to the place where Lord Archer lives, where still stands the clock at ten to three. If you happen to read this, Grant, or Jeffrey, or whoever you are, why not post a comment?
Brian
Of course the better course would be to demand honesty and accountability from our political servants.
The urgent surveillance that is needed is towards the political strategies and tactics of power.
Some attention to the historical record of manufactured terror might also be timely.
If ever an example of media spin was required for study the recent Basra “undercover” incident fits the bill.
Brian, the “war on terror” is just Orwellian propaganda.
Robin Cook admitted Al Qaeda was a covert intelligence strategy. Unfortunately he is dead now.
Why pretend it is real when the evidence says otherwise?
So no function for either counsel or solicitor in this process? I’m not sure I would be happy for a judge-even a security cleared one- sitting alone to determine whether my client remains incarcerated.
There are circumstances in which sensitive information cannot be disclosed, but you if want to go along that route to what is essentially a bail decision, the detained person as a minimum, requires a special advocate to challenge both judge and presumably prosecution. Not perfect, but at least there is an attempt at what human rights jurisprudence calls “ equality of arms”.
t
An interesting question to ask is why three months? A possible clue is to be found in today’s Sunday Telegraph: Matt’s Stats column. Mathews (Fellow of the Royal Statistical Society) makes the point that, when questioned, Charles Clarke’s first reason was to give the intelligence services time to “de-encrypt communications”.
It’s been reported in both broadcast & print media that encrypted email is regularly used by jihadist groups, presumably PGP or variants thereof, so have GCHQ/NSA cracked public key cryptography as Matthews suggests? Alternatively, does it take that long to break the passphrase that protects the key pair or sweat the passphrase out of the terrorist?
Intriguing, but I’m sure we’ll never know.
Tony: I don’t see how you can introduce a Special Advocate system at such an early stage in the proceedings, when the suspect, even though detained, is merely being investigated prior to a possible charge and trial. The investigation (and the monitoring of it by the supervising judge) would be hopelessly hampered by the intervention of the Special Advocate. At this stage it would surely suffice for the detained suspect to be entitled to a solicitor in the same way as anyone else held for questioning but not yet charged?
It’s a tricky question whether the solicitor should be entitled to have access to the supervising judge! Presumably not: in ordinary cases a suspect still under investigation but not yet charged (whether or not detained), and his solicitor, surely have no right to be kept informed of the progress of the investigation or to have details of the possible charges being considered?
Patrick: It’s my understanding that the security authorities are entitled by law either to possess or to demand to be given copies of all encryption keys used for electronic and other communications, but I may be wrong on that (Tony?). I agree that it’s unlikely on the face of it that decryption could take more than a few days even if they don’t have the keys. An interesting and relevant article on the Web on this says, among other things:
However, recovering a mass of data that has been deleted by a reasonably sophisticated program from a computer hard disk can, I believe, be a very lengthy process: and once recovered and then decrypted, it can then take a long time to analyse, select significant passages from it, connect them to other evidence, draw conclusions from them, edit and print it all out in usable form. Moreover, if the investigation requires detailed enquiries overseas, often via liaison with foreign intelligence agencies which may be much less efficient than ours (no, no irony intended) and waiting for their replies and for material that they may be slow to provide, it seems to me easy to accept that this could take a good deal longer than two weeks. I suspect C Clarke would settle for six or possibly eight weeks. Provided that there is genuine judicial supervision, I don’t myself think that would be unreasonable. And if it can be used as a lever for abolishing the indefensible control orders, it’s surely a price worth paying. A big ‘if’, though.
Brian
25 September 05