Why 42 days is too long

01Jun08

In the next couple of weeks, the House of Commons will vote on the Counter-Terrorism Bill. One of the Bill’s key points is the proposal to extend the period during which suspects can be held before they are charged from 28 days (the current limit) to 42 days.

What does this actually mean? The figure of “42 days” is being banded around with increasing frequency, but what effect will this proposal actually have?

Currently in the UK, the maximum period for which an individual can be detained without charge is 28 days – if they are suspected of terrorism. If they are suspected of murder, rape, or complex fraud, the corresponding period is 4 days. The 28-day limit was enacted in the Terrorism Act 2006, in the wake of the July 7th 2005 bombings in London which killed 52 people. It represented something of a compromise between the previous limit of 14 days and the limit of 90 days proposed by Tony Blair’s Labour Government.

The proposed extensions are detailed to some extent here. But the table is a little misleading. The new powers, if approved, could be used in the event of a major terrorist operation. But they are not limited to such an event. The Bill actually allows the Home Secretary to invoke the power for individual cases, even if there is no emergency.

What this means is that someone can be arrested and held for up to 28 days. And then, if there is nothing they can be charged with, the Home Secretary can declare some form of ‘special circumstances’ and extend the detention period for another two weeks. And after that, they might still be released with no charge.

Parliament must be notified within two days of the Home Secretary being able to use these powers. They have the right to vote on whether or not it is lawful to use them in that particular case. But this vote might not take place for 30 days, by which time a person may already have been held for 42 days before Parliament has a chance to oppose the motion.

Proponents of the Bill point to the growing threat of complex terrorist plots, and say that there may one day be cases during which it is necessary to detain someone for longer than 28 days while a search for evidence on which to charge them continues. They invoke “worst-case scenarios” involving multiple terror plots stretching police resources to breaking point. They mention the growing problems caused by crucial data being stored on encrypted computer systems, which take even the smartest of police investigators considerable time to decrypt.

But police already have powers to order suspects to decrypt computer data. Failure to do so can itself be an offence, or it can be treated as contempt of court. In such cases, police can hold offenders for longer. These powers already exist.

There can be no denying the threat that global terrorism poses, and in the wake of the 2005 bombings and the 2006 alleged plot to target aeroplanes which disrupted airports in the UK for some days, it is clear the the threat to the UK is growing. But so too are the defences. MI5, the domestic security service, has doubled in size to around 4,000 people. And, crucially, in the “nightmare scenario” posed by proponents of the Bill, there are already methods by which suspects can be detained for longer than 28 days. They are provided by the Civil Contingencies Act, which allows the powers in a true emergency situation, which is when they would need to be used. They are also subject to many more safeguards than the measures proposed in the new Bill.

And a point worth mentioning is that it has never been necessary to hold a suspect for more than 28 days. There have been cases where a person has been held for close to the maximum. But it has never proved necessary to release someone simply because the limit had expired.

The human rights organisation Liberty has produced a lengthy report (pdf) detailing their objections to the proposed increases. Also telling is their report (pdf) of the number of people who do not see a need for the increases – including Sir Ken MacDonald, the Director of Public Prosecutions, Sue Hemming, the Head of Counter-Terrorism at the Crown Prosecution Service, not to mention a large number of other important figures in the field of prosecutions, law and human rights.

They point to the fact that holding suspects without charge for an considerable period of time and then eventually releasing them with no charges eventually being brought is damaging not just to the persons being held but to community relations at large. They say that a move to increase time limits on pre-charge detention would increase tensions between the police and Muslim communities, who are likely to be most affected by such proposals. They say that there is no evidence to support the need for such legislation.

In the face of such opposition, the goverment has not produced any compelling evidence in favour of increasing the limits. That in itself should be enough reason to reject the proposals. In such a situation, the burden of proof should be on the proposers to justify why the increase is necessary. They have not done so.

The latest concessions being offered by the government in an attempt to prevent a rebellion are not concessions at all. They do not, in practice, affect the ability to detain someone for 42 days, nor do they affect Parliament’s powerlessness to stop the measures coming into force until it is too late. They are a last-ditch attempt to save proposals that should, rightly, be rejected.

No-one in their right mind believes we should not be fighting the terrorism threat. But eroding the rights of people not to be detained without charge for extended periods of time is not how this should be done. The UK already has one of the longest periods of pre-charge detention amongst democracies. We should not be setting an example for other countries by detaining people for longer. The right of habeas corpus, the right not to be detained without charge for extended periods, and the right to be considered innocent until proven guilty, are all rights which should be sacrosanct. They should not be removed, eroded or otherwise affected by hypotheses of vague ‘future scenarios’ requiring such a move. They should not be removed, eroded or otherwise affected by a government seeking to appear “tough on terror”. They should not be removed, eroded or otherwise affected unless a clear and compelling case can be made to show why.

Such a case has not been made, and the proposal to increase pre-charge detention limits to 42 days should be opposed.

Contact your local MP and find out how he or she has voted in the past through www.theyworkforyou.com

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One Response to “Why 42 days is too long”


  1. 1 That’s it, I’m leaving the UK « Gin&Comment

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