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David Davis’ case against a longer period of detention without trial.  Extract from remarks prepared for the Commons debate:

"Bear in mind we have already quadrupled in 5 years the maximum period of detention from 7 to 28 days the current maximum limit which this House agreed for use only in the most exceptional cases.

In non-terrorist cases the limit is a mere 4 days.
We have the longest period of detention without charge in the free world by far.

Australia allows 12 days detention without charge. France 6 days. Germany 2 days. Canada 1 day.  Even in the US after suffering the ultimate horror of 9/11 American citizens can only be held for 2 days before charge.

So if we were to extend still further which countries would be in league with?

In Zimbabwe it’s 21 days.

Even China only allows its police to hold suspects for 37 days.

So what is the evidence that might lead us to sacrifice even further this basic, fundamental freedom?

There is none.

Our senior law enforcement officers do not support an extension:

Neither the country’s most senior prosecutor the Director of Public Prosecutions,

Nor the former Attorney General nor the head of Counter-Terrorism at the CPS.

Neither this Home Secretary, nor the last one, nor the one before nor anyone else has provided a shred of evidence that we need longer than 28 days.

Even Lord West the Government’s Security Minister said he was not convinced of the need before being nobbled by Number 10.

I have spoken to the police.

They coped comfortably in every terrorism investigation Britain has faced to date.

Lord Dear, former Chief Constable for the West Midlands, writing
yesterday, said that an extension is unnecessary and that many Chief
Constables agree privately with that assessment.

And the Head of MI5 has not even mentioned pre-charge detention when
setting out the security challenges we face whether briefing in public
or private.

So the most that the Home Secretary can cite is Sir Iain Blair who
offers no evidence at all but merely draws a ‘pragmatic inference’ that
we might at some unspecified point in the future faced with an
unspecified threat require an unspecified extension of detention
without charge.

Mr Speaker, that cannot be a sufficient basis for giving up a fundamental, basic right enjoyed in this country for 800 years.

Instead of presenting evidence, the government has tried, unsuccessfully, to make two hypothetical cases.

The first is the sort of case originally laid out by Andy Hayman to justify 90 days.

He described a scenario with over 20 suspects, multiple locations,
multiple targets, multiple computers with encrypted files, in different
languages, and dependent on foreign intelligence.

A scenario posing an imminent threat and requiring early arrests.

In fact, ‘Operation Overt’, the investigation into the alleged plot to
attack ten airliners at Heathrow in 2006, had every one of these
characteristics. 

It was the biggest single terrorist plot Britain has ever faced.

And yet the police were able to charge every suspect within the 28 days.

All those facing the most serious charge, conspiracy to murder, were charged within 21 days.

Of the five held until the 28th day, two were charged with serious, but
lesser, offences … based on evidence the police obtained well before 28
days.

And three were innocent.

But what if there was someone the police felt was guilty, and all the evidence was not available?

Well, the DPP has said that in a terrorist case it is not necessary to have a 50% probability of conviction before charging.

‘Reasonable suspicion’ is the criterion for charging.

So what is the criterion for holding beyond 28 days?

It must be less than ‘reasonable suspicion’.

What is it? Unreasonable suspicion?

And if not – there are still control orders.

There is still the option of surveillance.

And that is without the ability to use intercept evidence, post-charge
questioning and the other measures we have proposed to alleviate the
pressure on the police.

Faced with this evidence, the Home Secretary’s predecessor changed ground and put a different hypothetical to me.

He conjured up the worst case, nightmare, doomsday scenario.

‘What’, he said, ‘if there were five Heathrow plots?  Five gangs of
terrorists, acting in a co-ordinated way, aiming to bring down 50
aircraft.  We could be overwhelmed’. The House must make its own
judgement of the probability of that scenario.

Yet even in those circumstances we would face a situation which could
trigger the Civil Contingencies Act, which would allow detention for a
maximum of 58 days.

Rightly, capable of being challenged by judicial review.

Rightly, subject to approval in this House within seven days.

And rightly, only available in case of genuine emergency.

And before the government says it will not work, there is a formal
legal opinion from one of the government’s own lawyers of choice, David
Pannick QC.

And he says, in terms, that it will work.

Mr Speaker, the government has failed to demonstrate that an extension
of detention without charge is necessary either on the basis of the
evidence or any of the nightmare hypothetical scenarios Ministers have
dreamt up.
The very real danger is that extending pre-charge detention … yet again … would make Britain less safe.

The Government’s proposal carries two serious risks.

First it risks serving as a recruiting sergeant for terror, because it
is a disproportionate response that will drive young Muslim men into
the arms of extremists.

Let’s be clear. This is not a human rights point.

It is a security warning.

Lord Condon, former Metropolitan Police Commissioner, has warned about this proposal.  He says:
‘I fear that it will play into the…. hands of the propagandists, who
will encourage young men and women to be misguided, brainwashed and
induced into acts of martyrdom.’

The second risk is that extended detention without charge alienates the
local community. And that cuts off the vital local intelligence that is
crucial to our counter-terrorism effort.

Peter Clarke, the Met’s Senior Terrorism Officer until recently, said this
‘We must increase the flow of intelligence coming from communities.
Almost all our prosecutions have their origins in intelligence that
came from overseas, the intelligence agencies or from technical means.
Few have yet originated from …‘community intelligence’.

Will another extension of pre-charge detention increase the flow of community intelligence?

Just read the Home Office’s own Impact Assessment published with the Bill.

It warns that:

‘Muslim groups said that pre charge detention may risk information
being forthcoming from members of the community in the future.’

Mr Speaker, the evidence available shows that extending detention
without charge will hinder, not help, our counter-terrorism efforts.

But perhaps the greatest risk of all that prolonged detention without charge does the terrorists’ job for them.

Lord Dear describes 42 days as a ‘propaganda coup for al-Qaeda’.

Al-Qaeda want to undermine our freedoms our way of life.

It is the first step on the road towards their ultimate objective of undermining our democracy.

That is why for all the tough talk this draconian measure is a sign of weakness not strength.

The Home Secretary says her proposals will only be activated when both
the police and the CPS request it.  That is supposed to be the first
check on this process.

Well, let us consider what can happen when the police and CPS act together.

Take the case of Lotfi Raissi.

He was an Algerian pilot living in London.

A few weeks after 9/11, he was arrested by British police accused of
training the 9/11 bombers to fly because he attended the same flying
school.

The FBI knew within weeks that he was unlikely to have been involved.

The British authorities had no evidence the he was involved in any terrorist activity.

Nevertheless, they held him in pre-charge detention for nearly 5 months (5 months)

He was eventually released without charge, exonerated of every
accusation levelled at him and left to pick up the pieces of his
shattered life.

During his prolonged detention, he was stabbed twice by prisoners, who thought he was a terrorist.

He suffered two nervous breakdowns.

He lost his job and was blacklisted so he can’t find a new one.
So much for the argument that those with nothing to hide, have nothing to fear, from extended detention without charge.

Lord Justice Hooper in the Court of Appeal completely exonerated Mr Raissi, calling his continued detention without charge:

‘an abuse of process … a device to circumvent the rule of English
law…brought for an ulterior motive…based on unsubstantiated assertions.’

No-one has suggested that the British authorities deliberately detained an innocent man out of malice.

But the risk of miscarriages of justice with such devastating and
counter-productive consequences is magnified when we give the police
excessive powers that they will exercise under conditions of high
public, political and media pressure.
We should remember that injustice and repression are not always meted out by hard-faced men in jack boots.

They can be the result of grey bureaucracies, acting in haste, under enormous pressure.

The police and prosecutors who protect us are human like everyone else.  They make mistakes like everyone else.

Protecting fundamental liberties provides a critical check on those
mistakes and a vital safeguard to prevent the abuse of state power at
the expense of the individual.

Mr Speaker, we will work with the Government to strengthen this Bill.

We will press them to take the measures they’ve left out of the Bill.

But we won’t sacrifice our fundamental freedoms without the most compelling justification.

That would do the terrorists’ job for them.

And this country does not buckle, bend, or bow, to terror.

It’s not in our history.

It’s not in our character.

And it’s certainly not written in what the Prime Minister calls the next chapter of British Liberty.”

Download PDF of full speech text

6 comments for: David Davis: The Commons must not do the terrorists’ job for them by compromising on essential British liberties

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