Philippe Sands
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Once again Gordon Brown has sought to explain what it is that has driven him to push on with his proposals to extend the maximum period for pre-charge detention, from 28 days to 42 days. “I will stick to the principles I have set out,” he wrote this week in The Times, “and do the right thing.” What are those principles, and what is the right thing?
The context in which this issue comes up raises points on which few will disagree. The threat of terror is real. The availability of new technologies might make it more difficult to apprehend those who seek to cause harm. Globalisation means that networks of individuals extend across national boundaries. No doubt these factors do combine to make more complex the work of those who seek to prevent attacks, but has he satisfied us on the crucial question: does the Prime Minister have evidence that the existing limit on pre-charge detention is somehow inadequate?
The most striking feature of his claim to be acting on principle is his failure to set out any compelling evidence or facts that would justify an extension. The most basic is surely the need for the most important political decisions to be justified by evidence, rather than hypothesis or instinct or expediency. Curiously, Mr Brown makes no
claim that experience since the time limit was raised to 28 days demonstrates that a further extension is needed. Vague allegations are bandied around, mention is made of 200 networks and 30 cells, but Tony Blair's legacy is that the public has long lost confidence in such claims.
His successor has not pointed to a single case in which the 28-day limit was shown to be inadequate, or why an additional 14 days would have addressed the problem. He identifies not one example of any person who has had to be released because the 28-day limit was reached before investigations could be completed. He fails to mention the number of cases in which individuals were charged on or shortly before the limit was reached (I am told he would be hard pressed to do so as the number is very small: well short of a dozen).
On his own account, the Prime Minister abandons the one principle that matters: decent evidence. What seems to have happened is that early on in his premiership Mr Brown took a punt on a number - an arbitrary 42 days - and is now stuck with it. The policy was fixed on the basis of an ill-conceived political objective - tough on terror - and not on the basis of the evidence or any proper consultation. Consequently, the principles now invoked by the Prime Minister seem almost absurd.
“There should always be a maximum limit.” Terrifically reassuring. “The Home Secretary must take [the] decision to Parliament.” If Parliament isn't sitting, are MPs expected to be recalled to vote on the question of whether to extend someone's detention for two weeks? If the event of circumstances to justify that extreme possibility, then why not just invoke the 2004 Civil Contingency Act, which already allows for detention beyond the existing limit?
It is difficult to avoid the conclusion that the manoeuvring and concessions are designed to find some way - any way - to keep the magical number of 42. Saving face, or avoiding another U-turn, is no way to make law on so vital an issue.
The 42-day debacle would be much less worrisome if it stood in splendid isolation. Let him have his 42 days, some might say, and then we can move on. Unfortunately, the Prime Minister's muddled and dangerous thinking on this issue is part of a wider pattern. Mr Blair launched an unremitting assault on the rule of law. He caused Britain to be the only one of the members of the Council of Europe to derogate from the European Convention on Human Rights to allow indefinite detention without charge or trial of certain non-nationals. The courts struck that down.
In legal proceedings in England he wanted to be able to rely on evidence that may have been obtained by torture in legal proceedings in England. The courts struck that down too. After the July 7 bombings Mr Blair's Home Secretary boldly stated that the Government “would not be constrained by international conventions or by the way the judiciary interpreted them”.
Many hoped that those days of Labour's broken relationship with the rule of law and evidence-based decision-making had ended with the arrival of a new prime minister. Sadly, they have not.
Forty-two days should be rejected for what it is, and for the kind of thinking that lurks beneath. The Prime Minister is right to raise issues of principle. However, his governing principle - political survival - should not save this measure, or those that may follow. They are not “the right thing”.
Philippe Sands QC is a practising barrister and Professor of Law at University College London. His new book is Torture Team: Cruelty, Deception and the Compromise of Law
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The same people who want more detention for terror suspects shot an innocent man 7 times in the head. The police who shot the man have since been promoted, the head of the Met who sanctioned the shooting is still in office to kill more innocent people. What next - 42 days. A joke!
Colin Patterson, Skelmerdale,
The terrorist threat is totally exaggerated.. so the govt can distract the public to allow the corporate sector to bleed them more efficiently. This 42 days business is a non-issue & only serves the purpose of giving the media something superfluous to chatter about.
Haseeb, London, UK
Lee Jones, I hope the victims of the 7/7 bombings would refuse to give in to the terrorists by surrendering more freedom. I hope they would especially refuse to surrender more freedom when 42 days won't even make them any safer.
Rowan, Oxford,
I work in Baghdad Iraq, seeing many Victims of explosive devices etc. I think if you ask the victims of the september bombings in London what is their view? how would you feel if this potential terrorist was sat next to your children? chance it?get real its 42days not years! lawyers what hypocrites
lee jones , leeds, uk
If the British were not so stupid as to refuse identity cards, mandatory in most countries, the police and security forces might have a simpler job catching the bad guys and speed up the process of obtaining sufficient evidence to convict or eliminate(from enquiries) suspects
peter fieldman, paris, france
Terrorists attack government's, hence why the government is scared. The government wants to protect the government, simple as that.
Arthur, Newcastle,
The question of whether Parliament needs evidence that the existing limit on pre-charge detention is somehow inadequate isn't "crucial" and may be inappropriate, given the level of trust which citizens invest in our democratic processes. We trust in our democracy and it's elected representatives.
Mrs.Josephine Hyde-Hartley, Bacup, UK
Why not make it a year?
That gives the police plenty of time and allows for holidays and sick leave and so on.
I'm sure anyone wrongly detained will be quite understanding about having their life completely trashed just for the convenience of the police.
Mike Carter, Bristol,
The question of whether Parliament needs evidence that the existing limit on pre-charge detention is somehow inadequate isn't necessary and may be inappropriate, given the level of trust which citizens invest in our democratic processes. Our trust informs Parliament and our elected representatives.
Mrs.Josephine Hyde-Hartley, Bacup, UK
to Philip of Ipswich, well said! Absolutely spot on.
Edgar, Eastbourne, England
The claim of arbitrariness is absurd; any number will appear arbitrary. The evidence is also very clearly stated - the measures are designed to anticipate the necessity of longer detention, as expected by legal experts. If you can see no reason- y do you think GB is spending this political capital?
Simon, Bristol,
How about we just track what everyone's doing all the time - effectively imprison everyone constantly, but in their own homes and workplaces and everywhere in between? That will make us all very very safe, and of course, it's the direction in which we're heading.
Christine Padgham, Aberdeen,
No, but it is thoughtful. It has a more complicated pedigree than the Hitchhiker s Guide to the Galaxy, as the figurative inverse of 24. But that is a long story.
Henry Percy, London, UK
And precisely the same observations apply to the extension from 14 to 28 days (2006) and from 7 to 14 (2003). No evidence was produced at all on either occasion, and no coherent explanation offered of the rationale for a particular period. It was just the most increase that could be sold.
Guy Herbert, London,
Gordon Brown has his own agenda for the uk, its his country and he will do what he likes with it. you don't matter !
Chris Houghton, Wigan,
"The man who trades freedom for security does not deserve nor will he ever receive either"
-Benjamin Franklin
Matt, Texas, USA
You must have forgotten that 42 was the final answer in Douglas Adams' Hitchiker's Guide to the Galaxy.
Andre Sharp, Los Angeles, USA
Surely if the alleged terrorists have to be released, as the detention period is over, with no evidence forthcoming, then the police can continue to covertly monitor the individual in the same manner that led to arrest in first place. So why extend the detention period to 42 days ?
John Taylor, London,
Detention - imprisonment - without trial is contrary to the Magna Carta and just plain wrong ! No ifs, no buts,....just wrong - and another brick in the wall. We are witnessing the accelerating death of freedom in this badly-governed country..
J. Staccato, Birmingham, UK
The threat of terror is greatly exaggerated and is only at the level it is now because of the various western governments' actions in the middle east and S. E. Asia.
Tim, Toronto,
Sands, do you not think that it might not be the safest thing to do in the interests of national security give a fully detailed litany of evidence for the Government's proposal of 42 days. There could have been many averted plots that are not divulged to the public and the threat increasing
Seebohm, Campbeltown, Scotland
"42 is the Answer to Life, the Universe, and Everything "Hitch Hikers Guide to the Galaxy. Also from the same book "DONT PANIC"
Unfortunately Gordon Brown is a person who thinks that he knows best and that all he has to do is keep repeating a statement for it to be fact and accepted as such
Alan Jones, Portsmouth,
PM GB again acts without proper forethought. Sadly for him, but not for the majority who just want him to go, he's boxed himself into an absurd & impossible position. He lacks broad support for 42 days & is challenged by powerful forces but another U-turn is not an option. He loses whatever the vote
Tony, London, UK
Exactly the same "arguments"/reasons as are being put forward now could also be used to justify 56 or 90 days detention because they consider a hyperthetical situation. Until some concrete evidence is produced as to why 28 days is inadequate and that 42 is the correct figure, Parliament: do nothing.
Andy, London,
When times are good "thats due to me"
When times are bad "thats due to the rest of the world"
Good old Gordon, how many times in his budgets did he use the cop-out "global conditions" to avoid taking responsibility.
Assumed office, 'his vision' to be revealed. Is 42 days it?
PATHETIC
DISGUSTED OF TUNBRIDGE WELLS, NOTTINGHAM,
I agree with Philip Bobbitt that we should use the current period of non-activity by our jihadist enemies to "stockpile laws" so when the next outrage occurs we are ready with properly considered laws on the statute book. Sands' approach is the opposite: wait till the worst happens, then react.
Bob, London,
There is one explanation for the period of forty two days and that is Gordon being stuck on any rationale thought must have watched Hitchhikers Guide to the Galaxy one night and found that the answer to the World, the Universe & Everything IS 42.
Mike, Alicante, Spain
This would be a uniquely British law among all the EU countries. Is it because our police are less efficient than theirs or that we just care less than them about civil liberties?Does our government believe that its only role is authoritarian control of an increasingly disillusioned population?
McSpode, lowestoft,
90 is the magic number, 2 weeks at a time.
Re. Europe and detention without trial, the people suspected of killing Meredith Kercher are still being held in Italy without trial.
Although they do get periodic court hearings.
Perhaps we should lock up Mr Brown for 42 days? See how it improves things.
JonB, Manchester, UK
The predicament GB finds himself on this issue is a product of his arrogant and petulant personality. He cannot possibly ever contemplate backing down and admitting he was wrong. To do so would terminally shatter his fragile ego. It's more to do with him that what's best for the country, as always.
Brian Roberts , Plymouth, Devon UK
Comrades, be reasonable. Our leader needs the 42 days to save face. His authority is at stake. Besides, the suspects might well turn out to be terrorists after all. We absolutely promise not to go for more days, be it 90 or 180, unless the police themselves tell us that they really need it.
A.P.Paratchik, Erewhon,
I thought that he told us the Prison population is far too overcrowded at this time. Maybe he should just charge them anyway, and face the consequences in court like everyone else. This PM doesn't care about the country or peoples rights when other crimes are committed.
Neil Brown, Maidstone,
Is this the same government that sent two MP's half way around the world to plead for the release of Gillian Gibbons who was serving a legitimate sentance of 15 days for breaking a law in Sudan?
Breathtaking hypocrisy from a bankrupt administration.
Tony Hockley, Bristol, England
Let us propose some compensation to be payable to unfortunate individuals caught up in this madness,say £1000 per day, that should speed things up a treat !
J Goffin, York,
Under the current system most people who are arrested are released without charge. So there is a good chance that innocent people could be held for 42 days. These people could become vulnerable, losing their jobs and reputation. Thus creating a perfect recruiting ground for the terrorists!!
james, falkirk, uk
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Neil Brown, Maidstone,
yes it does add up; 6 weeks. a nice round figure.
Philip Barnes, Preston, england
since when do Stalinists base their decisions on evidence? Apart from that, any detainee could just not answer any questions, whatever the length of detention. Support dirdem.org to stop out-of-control politicians
Heinz Geyer, London,
Jaqui Smith has doubted whether the Civil Contingencies Act is legally acceptable in the case of a complex terrorist plot. Surely, would not parliamentary time be better spent amending this Act so it can be used, rather than trying to pass just another piece of divisive legislation?
Peter Stroud, Hook, England
The proposal to throw away the key for 42 days in the remote event that it will one day be needed when we already have the power to extend existing detention in extremis is possibly the most unprincipled attack on the individual by this appalling administration to date.
philip, Ipswich,
Just read The Hitchhiker's Guide to the Galaxy and you will understand the meaning of 42 !
Croma, Bremen,
Brown doesn't do evidence. He just keeps making the same baseless assertions about every subject he is questioned on. 'The right thing' is not an argument or a reason. This supposedly clever man seems to be intellectually bankrupt. Does he think we haven't noticed?
Paul Owen, Birmingham, UK
Well said that man ! I'm all in favour of principles - staying in power is not one of them
Tony, Cardiff,
He must be a fan of Hitch Hikers Guide to the Galaxy.
Richard, Stockport,
PM is getting obsessed with any kind of idea to prove that he is doing something.
He is picking fight with everybody over anything, like if he is trying to damage himself even more.
He insisted on 10p, with co many after-concessions that it was better not to touch it. He would look much better.
savo, london, uk