Control orders versus extended detention for investigation: which is worse?
The following letter is published in The Times of 23 September 2005:
The Times, September 23, 2005
LETTERS TO THE EDITOR
Custody for terror suspects
From Sir Brian Barder
Sir, One of the most controversial of the Government’s latest anti-terrorism proposals is to extend the period in which a suspect may be held without charge for questioning and investigation from two weeks to three months (report and leading article, September 16).
This is clearly undesirable and the Home Secretary has signalled his willingness to consider a shorter period.
But the present regime of control orders, unwillingly swallowed by Parliament last March on condition that it would be reviewed and could be amended or repealed late this year or early in 2006, is yet more undesirable. There is a strong case for trading the repeal of control orders, whose purpose is similar, in exchange for firm guarantees that terrorist suspects detained for questioning and investigation without charge for longer than two weeks would be effectively monitored by a security-cleared judge. The judge would have full access to the relevant investigation, and be mandated to order the suspect’s release at any time unless satisfied that longer detention was proportionate and genuinely necessary on security grounds, that the investigation was being pursued with maximum speed and vigour, and that specific charges and a jury trial were likely to follow.
Some of these safeguards are already included in the Government’s proposals. Detention in a limited number of cases under these conditions would be far preferable to the effective deprivation of liberty without charge or trial or prospect of trial that the pernicious control orders entail. It would be for the police and the security services to satisfy Parliament and public opinion that the three-month maximum which they seek is really necessary. But to end up with both control orders and extended detention for investigation would be intolerable.
I recognise that those who are unshakably opposed to the idea of detention without charge or trial for longer than two weeks (or at any rate for as long as three months) may view the ‘deal’ that I propose in this Times letter – extended detention for investigation in exchange for repeal of the control orders legislation – as a betrayal. But we know that we are going to have to swallow some new measure in response to the London bombings, and an extension of investigative detention, if accompanied by rigorous judicial monitoring on the lines suggested in my letter, and if explicitly aimed at an eventual charge and trial, seems much less obnoxious than a renewal of the control orders régime. A case can undoubtedly be made for the former, especially if the 3-month maximum can be bargained down to 6 or 8 weeks. By contrast, there can be no case for control orders: harsh and indefinitely renewable restrictions on a person’s everyday life, imperilling his job, his relationships with family and friends, his reputation, his social life, his privacy – and all without any need to establish that he has committed or is even planning to commit any offence. There is a crucial difference between limited detention for investigation of a possible offence for which a suspect will ultimately be tried in court or else released, and the imposition of a control order which may permanently wreck his life without allowing him the opportunity to answer any charge against him. The first involves an obligation on the state to satisfy a court that a specific action in the past has been committed and that it is an offence under the law. The second depends on a politician’s suspicion, based on the suspicions of the security services, that a suspect is likely to commit an unspecified offence in the future, without any need to show that any offence has so far been committed, even under our increasingly sweeping anti-terrorism laws. Ruining the lives of people who have committed no offence, because of a politician’s belief that he can foretell the future, is no kind of justice. It should be swept away at the earliest opportunity, and that opportunity will arise in just a few weeks’ time.
23 September 2005