Prevention and Suppression of Terrorism

My right hon. Friend says that it is also the DPP's assurance, and that might well be the case. However, that does not give the same guarantee as an independent assessment would give, which I think will be necessary in future to ensure public confidence that a case has been scrutinised as effectively and in as much depth as possible. My Committee would like to see an independent review, perhaps by the Metropolitan Police Authority, although the Government's previous response to that proposal was that it would not be appropriate because of prosecution decisions. Perhaps a review by the CPS inspectorate, working with the MPA—most of these cases end up being prosecuted in London—would be a good way of carrying out a combined analysis of what has been going on behind the scenes. There has been no assessment of the impact of the provision on individuals. We are told in the explanatory notes:"““An Impact Assessment has not been prepared for this instrument as it has no impact on business, charities or voluntary bodies.””" We are also told that the impact on the public sector is likely to be negligible. We know nothing about the impact on the individuals who have been held for 28 days: the three who were released and who were innocent, and the three who were charged. We know nothing about the impact on their mental health, their families or their employment position. The Government told us in their last letter to us that they had obtained no independent medical evidence on the psychological effects on the individuals concerned or, more generally, on what could be expected on an objective view. It is my Committee's view that the Government ought to obtain and make available to Parliament general advice on the psychological impact of being held without charge for such long periods and—when it is possible to do so—to provide an actual assessment of the impact on the individuals concerned, in terms of their mental health and of the broader impact on their lives. We could do that now in relation to the three who were released without being charged. Our main concern relates to the so-called judicial hearings around the extension process. We do not believe these hearings to be fully adversarial, there is limited disclosure, and the suspect and the lawyer are excluded for much of the hearing. The focus is on whether the investigation is conducted efficiently rather than on whether there is sufficient evidence to justify the arrest and continued detention in the first place. The case of Garcia Alva v. Germany in the European Court of Human Rights sets out in detail what is expected and goes on to say:"““The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the 'lawfulness'…of their deprivation of liberty…the court has to examine 'not only compliance with the procedural requirements…but also the reasonableness of the ""suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention…The proceedings must be adversarial and must always ensure 'equality of arms' between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention…The court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information…is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice.””" The decision goes on to say that"““this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence.””" If we look at the proceedings that we now have under schedule 8, we see that it is clear, on any objective analysis, that what is now happening does not meet the requirements of the European Court of Human Rights and, by extension, article 5. It is also interesting to note that Lord Carlile, in paragraph 105 of his report, seems to agree. He says that"““judges should be permitted to intervene more and make greater demands as the length of detention is extended.””" More importantly, he goes on:"““The government should consider empowering judges to scrutinise the reasons for detention, and the adequacy of the work done to bring the case to charge, from the 7th day after arrest.””" So we should be concerned not only with the procedure and the fact that the case has been conducted efficiently, which is what we have already. Lord Carlile is saying that we should also scrutinise the reasons for the detention in the first place, which is something that I have advocated in the House on previous occasions. The last time we debated these issues, a number of amendments were tabled on that point. It is not true to say that these proceedings have not been challenged in the courts. They were challenged in the case of Naseel Hussein, but he was caught in a Catch-22 situation when the High Court said that it would not review the decision of a High Court judge to extend his detention. That could also have the effect of excluding a potential habeas corpus application as an abuse of process. Habeas corpus requires the person doing the detaining clearly, directly and with sufficient particularity to provide the facts relied on as constituting a valid and sufficient ground for the detention of the person concerned. It is pretty clear that the schedule 8 application does not do that, because the focus is not on the reasons for detention—which is what habeas corpus requires—but on the course of the investigation. That reinforces the point about schedule 8 not meeting the requirements of article 5 or habeas corpus. I think that we need to see amendments to the procedure to make sure that we comply. We need to see a statement of the basis of the arrest given to the detainee and the gist of the material forming the grounds of suspicion given to the suspect. We need special advocates for the closed part of the hearing and, importantly, we need entitlement for the judge to look at whether there are reasonable grounds for the belief that the suspect was involved in terrorism in the first place, and reasonable grounds to justify the arrest and the continued detention. I am not going to oppose my right hon. Friend the Minister today and I hope that he will see my comments in the intended light—as an attempt to make a constructive contribution to the debate. I think that we need a lot more information about what has been going on in a qualitative way in the cases that we have already seen. I also think that he needs to look at the judicial safeguards as these provisions will be challenged ultimately in the European Court and I do not think that they will stand up.