Pre-Charge Detention in Terrorism Cases

The current counter-terrorism legislation (the Terrorism Act 2000, as amended) allows the police, in certain specified circumstances, to arrest individuals reasonably suspected of being terrorists. Once arrested, these suspects may be detained, without charge, for extended periods to allow the police to obtain, preserve, analyze or examine evidence for use in criminal proceedings.

Extended pre-charge detention of terrorism suspects was introduced in permanent legislation by section 41 and Schedule 8 of the Terrorism Act 2000. The period of detention was increased from 7 days to 14 days under the Criminal Justice Act 2003. It was further extended, to a period of 28 days, under the Terrorism Act 2006. The 28 day detention period was introduced as a compromise as the Government had initially sought a 90 day period, but this was defeated in the House of Commons. In addition to increasing the pre-charge detention limit from 14 to 28 days, the 2006 Act introduced a series of new procedural protections for suspects. It was also subject to a further safeguard, insofar as it provided that the maximum period of pre-charge detention would reduce to 14 days, after one year, unless renewed by an affirmative order.

The extended pre-charge detention limit was subject to sustained criticism by NGOs and others. The Labour Government had sought to extend detention limits even further, to 42 days, under the Counter-Terrorism Bill of 2008. In June 2010, the Coalition Government announced its intention to renew the 28 day period for “a period of six months” and laid an order to that effect. It also indicated that it would be conducting a review of the counter-terrorism legislation and that “the 28-day maximum period should be a temporary measure and one that we will be looking to reduce over time.” The Draft Terrorism Act 2006 (Disapplication Of Section 25) Order 2010 was debated on 14 July 2010.

Although the counter-terrorism review had been due to be published in November 2010, this did not occur. The effect of the 2010 Order expired on 25 January 2011. In answer to an urgent question on 20 January, the Home Office Minister, Damien Green confirmed that the Government would not be seeking to extend the order allowing the maximum 28-day limit, and accordingly the current order lapsed on January 25 and the maximum limit of pre-charge detention reverted to 14 days.

The Counter-Terrorism Review reported on 26 January 2011. It concluded that the limit on pre-charge detention for terrorist suspects should be set at 14 days, and that limit should be reflected on the face of primary legislation. At present, an order making power (contained in s 25(2) of the 2006 Act) could be exercised at any time to restore extended 28 day pre-charge detention - if the Government laid a draft of the order before Parliament (and it was approved by a resolution of each House). The Government has indicated that should an emergency situation arise, it would like to replace this procedure with emergency powers contained in primary legislation.

Draft legislation was published on 11 February 2011 as the Draft Detention of Terrorist Suspects (Temporary Extension) Bills. The Explanatory Notes to the Draft Bills indicate that both would have the effect of extending the maximum period of pre-charge detention to 28 days for a period of three months, should either of them be introduced and approved by Parliament. “One bill could be used immediately while the order-making provisions of the 2006 Act are still in force and the other once those provisions have been repealed.” The Order making power contained in the 2006 Act is due to be repealed by provisions in the Protection of Freedoms Bill.

The draft legislation was subject to pre-legislative scrutiny by a Committee of both Houses, which reported at the end of June 2011. The Committee was critical of the practicality of proposals. The Government made some amendments to the Protection of Freedoms Bill, but did not accept the entirety of the Committee’s conclusions.

Extensive material about the earlier debate on extended pre-charge detention can be found in the Library Research Papers prepared for the various stages of the Counter-Terrorism Bill, copies of which can be located in the ‘Further Reading’ section at the end of this note.