A Case against Extending Pre-Charge Detention

The issue of pre-charge detention has now become the unsophisticated but easily observed weather vane of Government intent on security. Accordingly, the Government must think as carefully about the rhetorical significance of extending detention as the operational merit.

Anthony McGee
11 June 2008

The attempt by the Blair Government in 2005 to secure a ninety-day period of pre-charge detention for terrorist suspects was sensational and controversial. The provisions of the Terrorism Bill 2004 were characteristic of a prime minister who placed great weight on being seen to be tough on terrorism, and who also felt it his duty to occasionally offend the sensibilities of those in his party. The effort to secure ninety days was defeated but the legend of pre-trial detention had been born.

Successful communication depends on simple messages, which can be quickly conveyed and easily comprehended. Nuanced debate of constitutional principles and the subjective balance between security and liberty is qualitative and complex; it does not lend itself easily to successful communication. A number between one and ninety, on the other hand, is quantitative and elementary and consequentially lends itself easily to transmission. As a result, groups on all sides have chosen to take the issue of pre-charge detention and use it to crystallise their positions in the larger debate about countering terrorism and balancing security with individual rights.

For those who discern an interest in being seen as ‘tough on terror’, pre-charge detention can entail an aspect of machismo. The length of detention you favour equates to how much you want to protect people from terrorism; forty-two days if you are serious - ninety days if you are really serious. On the other side of the debate, pre-charge detention is portrayed as having a converse but equal significance. Four days is the maximum period of pre-charge detention allocated for most offences. Here, every day that pre-charge detention for suspected terrorists exceeds this represents another blow for civil liberty, evidencing the state’s desire to subjugate the individual. These are the very extremes of the argument, but they are nonetheless indicative of the simplistic and unhelpful dialogue that has grown up around the issue.

As a result, pre-charge detention as a topic has now achieved iconic status. It has become the unsophisticated but easily observed weather vane of Government intent. That it should be a marker of the Government’s determination to protect the public was always the intention. However, the issue has now attracted such disproportionate attention that when considering pre-charge detention one must take into account its wider symbolic significance as much as its practical operational merit. The operational merits of the policy remain the subject of debate. However, as to its propensity to alienate and to inhibit intelligence flows from Muslim communities, the former Attorney General, the Director of Public Prosecutions and numerous police chiefs are all of a similar mind.

The ‘Prevent’ strand of CONTEST, the UK’s counter-terrorism (CT) strategy, is receiving greater emphasis than ever from the agencies concerned with its implementation. CT practitioners are becoming acutely aware of the care that must be taken to ensure that their work across the other strands of the strategy does not lay waste to efforts at preventing the radicalisation of individuals, which sustains the terrorist threat. For example, CT policing units are following up with individuals nuisanced as a result of their activities in order to minimise the potential for resentment. The Home Office has issued internal guidance as to the appropriately sensitive terminology for dealing with CT and announced millions of pounds of funding for programmes aimed at preventing radicalisation.

Work in the ‘Prevent’ strand is fragile, based on trust which takes time to build and must be carefully managed if it is to be sustained. At a time when so much work is being done to maintain the confidence of communities affected most by CT policies, the Government policy that has achieved the highest profile, and seemingly shapes the most opinions, threatens to overshadow and undermine its other efforts.

The trend is toward bigger and more complex terrorist plots but it is far from clear that the powers and resources available to investigators threaten to be overwhelmed any time soon. However, if the Government is determined that these resources need to be bolstered, the level of contention and sensitivity surrounding pre-charge detention means that they must now be more imaginative in the methods which they employ.

The Select Committee on Human Rights has noted the usefulness of the lower charging threshold for terrorist cases and identified a package of measures which could negate the need to extend pre-charge detention. Included in the measures were pre-charge bail and post-charge questioning. These, more subtle means, are the types of avenues the Government should have explored if it were genuinely interested in improving the powers available to the police rather than political gesturing.

The Government has now expended such vast effort and political capital to pushing the legislation through Parliament that it is impossible to imagine how it could extract itself without losing face. As a result, as the single highest profile policy now in its repertoire, the extension of detention to forty-two days, sends out a message that jeopardises vital community relations and contradicts its growing efforts to counter radicalisation.

One can only hope that, in receiving the message sent by the extension of pre-trial detention, communities that face being disproportionately impacted are more wise and circumspect than the Government has been in sending it.

Anthony McGee
Head of Risk and Resilience
Homeland Security and Resilience Department



The views expressed are the author's own, and do not necessarily reflect those of RUSI


Anthony McGee

Head of Resilience

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