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From The Times

December 18, 2007

Be liberal, but not with the facts

The opponents of 42-day detention should take account of stories from Italy and Spain

David Aaronovitch

Yesterday, the day on which the former Lord Chancellor Lord Falconer of Thoroton effectively killed the Government's 42-day detention plan, was also the 43rd day that Amanda Knox and Raffaele Sollecito spent in custody in Italy in connection with the Meredith Kercher case.

I mention Knox and Sollecito, neither of whom have been charged, because their situation casts some light on the way the debate on detention has been conducted in Britain. Readers may remember that Liberty recently released a report “carried out by lawyers and academics in 15 countries” claiming that Britain had, in effect, the most draconian detention laws in the Western world. Using the hyperbole routinely deployed on these occasions, Liberty claimed that its report “exploded self-serving assertions about extended detention in inquisitorial Europe”, and made “embarrassing reading for all of us in the land that gave Magna Carta to the world”.

Although Liberty's intervention received the usual respectful attention from the liberal press, it was still pointed out in some places that countries with different judicial systems - as in the case of Italy - seemed to permit detention before charge for much longer periods than even the Commissioner of the Metropolitan Police was minded to call for. Ah, said Liberty, you don't understand, such objections had “confused pre-charge detention with detention pending trial”. A helpful graphic in one paper repeated the Liberty figure for Italy for pre-charge detention as “four days”.

You may notice here what would seem - to the person on the Clapham omnibus - to be a semantic sleight of hand. In Italy you can be held for month after month without formal charge as long as you are understood to be “pre-trial”, during which time sufficient evidence may be found to convict you or, if not, you may be released. And Italy is lauded as being more liberal than Britain for systematically holding suspects for far longer than our Government is seeking to do on an exceptional basis.

And here is a further recent illustration. The Liberty graphic gave the Spanish detention limit as being five days. But yesterday there were reports from Spain of the case of a Moroccan-born British resident who has been held under suspicion of terrorist offences for just under two years, and whose case has been taken up by Amnesty International. “Spain is remarkable,” said one campaigner. “Things take so long and there is such a bad history of abuse by the authorities.”

Hold on, hold on, we can't all be remarkable. If Italy can extend before trial (and before charge) detention to a year or more in the relatively simple situation of a murder, where a crime has obviously taken place, how is it so much worse for the British authorities to ask for much shorter periods of time in the case of those thought to be planning terrorist attacks?

To repeat, we can't all be remarkable, but yesterday Lord Falconer certainly was. Readers may recall that, after the 7/7 bombings and the 21/7 attempted bombings, Lord Falconer was one of those pressing hardest for a 90-day detention limit. So why the volte face? True, he told The World at One yesterday, he had once been utterly convinced of the need for 90 days, but in the intervening 26 months something had altered to make an extension unnecessary.

This something was the decision, on the part of the judicial system, to ditch its own informal rule about not charging people unless there was a greater than 50 per cent chance of conviction. Now, said Lord Falconer, people were being charged earlier on the basis of less certainty, allowing the authorities to “take their time” about the collection of evidence. In the case of terrorism, then, the system was moving suspects from one category to another — from pre-charge detention to pre-trial detention.

Of course, the objection will be raised that the threshold is likely only to have been lowered in the case of terrorist suspects. And, as we know, there is a modish sentiment knocking around these islands that terrorism isn't that big a threat. On yesterday's Today programme Sir Michael Pitt, the author of the report on flooding, was asked if inundation was as serious a problem as terrorism. The background implication was, I believe, that the Government was putting too much emphasis upon, and effort into, fighting terror.

This is a fashionable, albeit preposterous risk analysis, which - if fully adopted - would mean us putting every penny we had into fighting heart disease, which kills more people every minute than have died in floods since 1945. On Saturday I was in the Middle Temple Hall listening to Mr Justice Fulford, who presided over the 21/7 case, remind his audience of lawyers just how different jihadi terrorism is from the IRA terrorism of the 1970s and '80s. Back then the targets were military or political, or else attacks followed warnings. Now the idea is to take as many kaffirs with you as you can - and the transport system, or clubs filled with immoral women, are the targets of choice.

Despite this, said Mr Justice Fulford, he had tried to give the 21/7 defendants every chance to mount a proper defence. They were given laptops, he had liaised directly with the prison governor at Belmarsh about sufficient legal access, and strenuous efforts had been made to take account of religious and cultural sensibilities.

This sensitivity is partly important because of the claims, made by Liberty and others, that aspects of the anti-terror campaign are alienating Muslims and are therefore counter-productive. Liberty argued, last month, that “some individuals seeking to radicalise Muslim youths also might use the disparity [in detention limits] to undermine the UK's claim to civility and moral authority”.

I heave a sigh as I write this, but something needs to be said here, in a spirit of candour, if not of reproach. This warning can be - and is - a self-fulfilling prophecy. In overstating the differences between Britain and other countries, Liberty provides the ammunition for the very forces it describes. So you will find its report approvingly quoted on the Islamist Hizb ut-Tahrir Britain website as providing “another reason why the Muslim world rejects the imposition of Western ‘liberal' values, desiring the implementation of Sharia for the wellbeing of all its citizens”.

Just another reason, for people who will always find a reason. Who found reasons under 14 days and will have no problem finding more under Charlie Falconer's jolly new dispensation.

Most people will change their views when they have had their house windows blown out by a terrorist's bomb, or a child killed by gangland scum. They will scream for hanging to be brought back not only to rid the world of such murders but to discourage others as we know it mostly will.

B J Deller, Marbella, Spain

"If Italy can extend before trial (and before charge) detention to a year or more in the relatively simple situation of a murder, where a crime has obviously taken place, how is it so much worse for the British authorities to ask for much shorter periods of time in the case of those thought to be planning terrorist attacks?"

I think you answered your own question there. If they already know who they believe the person to have murdered, they have charged them and the person is awaiting trial.

If, however, the person is suspected of plotting a terrorist attack, but we don't know how or why and have no good evidence to back up our suspicions, it is quite clearly a very different situation.

Let's not forget the case of Mouloud Sihali. He was put under house arrest as a terrorist suspect for no other reason than that he had been previously charged and aquitted from the 'ricin' case (in which he was found not guilty due to the rather important factor that there wasn't any ricin).

Andrew Clarke, Nottingham,

Yeah Dave, but remember all this detention costs tax payers money - I think 28 days is perfectly sufficient to encourage a confession from a suspect

john motor, london, london

Don't agree with extended detention whether it be pre-trial or pre-charge. The point is we shouldn't be banging people up at all without evidence. Mere suspicion is not good enough. A month is long already and it can be extended anyway if there's a strong case. Of course the police are keen on this - it makes their job easier. I don't buy the argument about the time being required because of the complexity of the modern world. The world isn't going to get any simpler so the police will have to learn to cope, otherwise they'll be back in a decade saying 42 days is no longer enough. Nonsense.

J Stalker, Cheshire,

I read that in Scotland, some 1000 people had been stopped since the Glasgow airport incident and that 12% were non-white. However, the police assure us that 'target-profiling' was not employed? Why not? (Just kidding, we all know why). When I was involved in hunting the I.R.A. in the 80s and 90s we targeted a) Irishman with known republican sympathies b) their associates and contacts of whatever background. It worked well enough then, why not now? (Sorry, I'm kidding again). By the way, I am totally against Id. cards and do resent the mis-use of power by this government to compensate for the weak mechanisms they and previous governments put in place. Let us not forget that the Labour party always voted against the Prevention of Terrorism (temporary powers) Act. Now these very same people profess to know how to handle the current situation, which, despite David Aaronovitch's assertion, is being oversold to the public for the purpose of government getting its own way.

Un-P.C. Plod, London.,

Our recent experience in Australia with the Haneef case shows that you can't trust the authorities to discriminate between real terrorists and people who have an accidental connection to them. They must be given a limited time to put up or shut up.

Michael Tomlinson, Melbourne, Australia

We do not need longer detention to bale out the government for its policy of welcoming to our shores terrorists and criminals and its failure to deport them. What we need is a reversal of the stupid laws we have enacted which stop us from ejecting foreign terror suspects and criminals as PNG. We need to use phone tap evidence to help convict suspects. We then need to automatically deport the guilty on completion of their sentence.
Our liberal laws have been tested and shown to be toothless in the face of foreign threats from without and within. Remove the laws tying our hands from deportation and preventing electronic evidence being used and secure the borders.
Unlawful detention is the governments answer to the failed human rights liberal legislation infecting the legal system.

David Thijm, Stourbridge, UK

To me, what Spain or Italy does with regard to pre- trial detention is irrelevant.

The point is that we are turning into a police state and no-one seems to care. If people are prepared to blow themselves up to propogate their nutty belief system then they are unlikely to find detention any deterrent, whether it is 10 days or 100 days. So the people who will be harmed the most are the suspects who are actually innocent.

V Glass, Bath, UK

Another part of Sham Chakrabarti's propaganda campaign is to assert that increased security powers threaten the liberty of all of us. She says that - exactly that.

And it is just slippery propaganda.

The fact is, Muslim terrorism is the threat we all face, not being locked up and interrogated about trips to Pakistan, meetings with hate preachers, and how we feel about Jihad.

But that narrows it down to the people under suspicion - because, funnily enough, it is no one else who is a terrorist threat - and Liberty doesn't like that although it is the simple truth.

Check it out, Sham Chakrabarti's propaganda campaign with yours truly, Joe, making the same comment:

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/12/03/nosplit/view03c.xml

Joe, Manchester,

'Liberty' is run by a Muslim for Muslims. But UK Tax payers are paying for it. That is the irony. Each age has its own challenges that is different from the one before. And different measures are needed. Most people do not understand global jihad.

Akbar, Cambridge, UK

Could any one tell me how many people the organisation liberty represents? It seems to me that in a democratic society, with the number of members of this organisation, does it recieve too much coverage in the UK media? I also suggest that they may do more harm than good for their reputation representing the rights of this fringe group and start to fight for the rights of people in desperate need, like the people of Dafur.

Spence, Liverpool,

length of detention does not really give more info, anybody sane in mind would just refuse to say anything - whatever length of detention, and if only written replies to written questions and after legal advice

Josef Riegler, Nuernberg, Germany

salman, the experience of most people is that moslems are most oppressed by other moslems. and those oppressors are generally from the same camp as the ones trying to blow us up.

liberty talk utter nonsense and the labour government can't be trusted. which makes any argument between them utterly ridiculous.

jem, london, uk

Is there the equivalent of the anthesis of Liberty I could join? Before any wisecrack quips, I'm not joining the Labour party.

i.e., Norwich, England

David you are so right.Next time we have another bombing and mass murder of innocent people in the UK you wont see a comment from Liberty or the UK press.Only comments will be blaming the government of the day for lack of security.If it does happen the blame lays 100% at the door of Liberty and the so called Liberal UK press.Shame on them have they forgot the attempted massacre at Glasgow Airport and the people killed and injured on the London Underground.Also David you forget to mention the detention in France which is longer than the UK.

Bill Rees, Truro, Cornwall

What relevence the Islamist Hizb ut-Tahrir website has to this I fail to see. This organisation is run by a bunch of fifth columnist extremists and gangsters who wish to turn the UK into a fundamentalist Islamic caliphate and subject us all to Sharia law. I don't care what their opinions are any more than I used to care what Pravda and Izvestia used to say when the last big threat to us was the USSR and communism. It was always lies.
The reason also why in countries where Sharia law prevails confessions are obtained more easily is that they use torture. It always works - badly.
The government has never been able to make a case for detention of longer than 28 days and still cannot. Even Lord Falconer seems to have realised it.

Dave, slough,

You might have mentioned "liberal" Scandinavia - Norway and Sweden, where there is no limit on how long you can be held in remand without being charged. The press doesn't seem to mind, because they've been brought up to believe that their countries are the best and their policians incorruptible. At least in the UK, you are having a civilised debate on the issue. Here there is no debate.

Anders Bolstad, Trondheim, Norway

Habeas Corpus. The bedrock on which all our (diminishing) liberties are founded. To dilute or circumscribe it in any way is just plain wrong. Period. Yes, this makes life more difficult for the police and MI5 etc - but that's part of living in a (relatively) free country. It goes along with such things as the requirement for the authorities to obtain search warrants or phone taps.
Under the Nazis the Gestapo enjoyed unlimited powers of arrest and entry (as did its successor, the Stasi).
People of goodwill are unreservedly against terrorism. Let's also remember and defend what we're fighting FOR !

Jeff Palmer, Norwich, UK

The difference between pre-charge detention and pre-trial detention is not semantics - its nuance, and nuance is everything.

Liam Sullivan, Southend,

The law as it stands in the UK allows (in certain circumstances) detention without charge for up to 58 days. All inluding Liberty accept this, so it not really a matter of priciple, just a matter of defining the circumstances to which it applies

Anthony Jaynes, Alton, UK

"But yesterday there were reports from Spain of the case of a Moroccan-born British resident who has been held under suspicion of terrorist offences for just under two years". What rubbish is this??? He's being held because he has been formally charged by a Judge and because the Judge thinks there is enough evidence and releasing him might be dangerous or he might try to escape. But it is the Judge that decides (not a government official) and it is an exceptional measure (not the norm, the norm is 5 days).

David, London,

As with any negotiation so long as some people can ask for more, without consequences, they will. Under these circumstances, the detention period will inevitably be ratcheted up over time.

My suggestion - when these matters are brought to Parliament again, all options should be on the table. It should be as possible to reduce the detention time as to extend it. This way we stop the gratuitous demands and encourage a more responsible approach to policy-making.

Charles, London, England

Of course you have a right to defence in Italy before going before the judge deciding on the detention. In fact if you don't have a lawyer, you are given one, and one can ask for a translator. In addition, you have a right to two appeals. Perhaps your friend should have become more accustomed with the law of the country, and maybe the language, before deciding to break it.

Marco, Rome, Italy

Nicola is quite wrong, or naive. A friend of mine was arrested without charge and without any formal evidence that a crine had taken place. Yes there was a magistrate within 48 hours but she was given no chance for a defence nor advised of her rights. The magtistrate allowed her to be returned to imprisonment. Not were there any preparations for a trial. In practice the system in Italy (and other EU countries) is quite different to what nicola makes it out to be and the danger is that under the corpus juris proposals we will get it it the UK

Tim Hedges, Rome,

Frankly I'm not interested that Italy has a more draconian legal system than the UK, nor any other country. What I do care about is that we currently have a government who is quite happy to obliterate several hundred years worth of accumulated rights for the sake of a quick fix and a few headlines. If organisations such as Liberty are prepared to speak up to try to prevent Britain sleepwalking into a police state then I'm happy for them to present their case in colourful terms. After all when it comes to sexing up claims, they have all the precedent they need from the present government.

Dan Richmond, Sydney,

You don't seem to know much about the law in Italy,

There is a huge difference between behind held because you
are formally accused of having comitted a crime - and you
are told exactly why, you have a lawyer and there is a public
and open trail being organized ... and behing held because
a government official (not a judge!), for example a police
officer or a minister - has a "suspicion" that you may have
done something wrong.

In Italy the police/government can only hold you up to 48 hours
(and only in exceptional circumstances) before handing your case over to a judge for formal accusations - see Constitution, art. 13.

In the case of Amanda Knox & co, they are accused of having killed the UK girl. There are enough proofs (which are public) that it's likely they did it. A judge has signed their arrest, they have lawyers, the case is being argued in courts etc.

This is completely different from the UK holding people with no charge and secret evidence

Nicola, Milano, Italy

Nor is it a convincing or enlightened contribution to presuppose that anti-terror laws are only applicable to
Muslims - since you mention it Salman.
Of course,however, the evidence seems to suggest that 28 days is far too long. It appears that in countries where Sharia law operates, confessions are obtained far quicker. Indeed, it does not even need a confession to create an execution (which can take place in supermarket car parks at the whim of a 'royal' family member), simply the unchallenged opinion of a non-accountable judge.
I mention this as it appears that the vast majority of Muslims in the world live under such 'vague' systems of law.

Keith, Dalsland, Sweden

Well giving examples of other European countries that detain people without charge or trial is hardly a convincing or enlightened contribution to this debate.

The fact is that the experience of innocent Muslims held under these draconian terror laws is that by the end of 28 days there are prepared to confess to almost anything-hardly inspiring confidence in the application of justice!

Salman, london, UK

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David Aaronovitch is a writer, broadcaster and commentator on international politics and the media. He writes for The Times Comment page on Tuesdays. He has previously written for The Guardian, The Observer and The Independent, winning numerous accolades, including Columnist of the Year 2003 and the 2001 Orwell prize for journalism. He has appeared on the satirical TV current affairs programme Have I Got News For You and made radio broadcasts on historical topics

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Fighting Fit

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Be liberal, but not with the facts

The opponents of 42-day detention should take account of stories from Italy and Spain