Chris Mullin: Extended detention without trial will be abused

The rise of Islamist terrorism should not be an excuse for throwing away the rule book
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The Independent Online

I shall not be supporting the Government's Terrorism Bill on Wednesday for one very simple reason - I do not accept that it can be justified to hold suspects for up to 90 days without trial on the say so of a district judge.

I do accept that there is a problem that needs addressing. The events of 7 and 21 July mean that we are facing a terrorist threat quite unlike any we have previously faced and exceptional measures will be needed to deal with it.

I am willing to go along with the other measures in the Bill. I accept the creation of new offences - encouraging terrorism, training terrorists, disseminating terrorist publications and acts preparatory to terrorism. These are reasonable and proportionate responses to the threat we now face. Indeed some might argue they are long overdue. My only slight caveat is that a degree of common sense will need to be exercised by the prosecuting authorities if we are to avoid making martyrs of the merely foolish rather than the malign or dangerous.

My problem is with 90-day detention without trial. This will inevitably be abused. Firstly, because the overwhelming majority of those arrested in connection with terrorism, often with great fanfare, are later released without charge. To be mistaken for a terrorist and held for up to 14 days (as the police have power to do at the moment) is a traumatic experience at the best of times. To be held for up to three months - during which time you might lose your job, your home, your friends - and then quietly released is a trauma of a wholly different order.

Secondly, because once the pressure to make their case and either charge or release is off, the police and prosecutors will inevitably string out the process. Quite apart from which, it is only natural given the other pressures on their resources, to put on the back-burner anything that does not have to be dealt with immediately. One can foresee people being held for weeks before any serious attempt is made to process their case.

I do not accept that having to apply to a district judge for extended detention is a sufficient safeguard. The lower judiciary - and in times gone by, the higher judiciary too - have a shocking record of accepting whatever nonsense is put in front of them by the police or prosecuting authorities. In the final appeal of the Birmingham Six, even though the case had all but collapsed, the prosecution spent months prevaricating over disclosure and were entirely unembarrassed by the displeasure of the court. And this involved some of the highest judges in the land. What junior judge is going to stand up to the police and prosecution in a serious case of terrorism?

Finally, one is bound to ask why - if 90 days is now so essential - the police requested only an increase from seven to 14 days just two years ago?

I have read the letter from Assistant Metropolitan Police Commissioner Andy Hayman to the Home Secretary, setting out the case for an extension. I concede that there may well be a case for a modest extension of the time limit on the grounds that time is often required to examine hundreds of hours of CCTV footage, to decrypt material on a computer hard drive or to make inquiries abroad.

But some of Andy Hayman's arguments - the need to find interpreters and solicitors, to allow time for prayers, to search premises - are less compelling. Most solicitors and interpreters are drawn from a relatively small group of specialists, well known to the police. There is no reason why this cannot be done within the existing 14 days. Indeed, until now it has been. I note that Alex Carlile, the Government's own adviser on these issues, who is generally supportive of the proposed changes, dismisses these arguments out of hand ("I do not regard extra time for interviews as being a sound basis for the extension of the time period ... the reality is that most suspects exercise their right of silence").

Terrible though it is, the rise of Islamist terrorism should not become an excuse for throwing away the rule book. That is what is happening in America where, for example, suspects are being deported to regimes which routinely use torture. It could happen here, too, if we are not careful. Witness the fact that, after the shooting of the innocent young Brazilian at Stockwell, one of the first actions taken by the Metropolitan Police Commissioner, Ian Blair, was to quietly write to the Home Secretary asking that there be no independent inquiry. Mercifully, he was rebuffed, but the lesson is clear. If we are to remain a civilised society, there has to be a bottom line.

Ninety days detention without trial is far too long and I will not support it.

The writer is a former chairman of the Home Affairs Select Committee

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