Argument for 90 days is flawed

4.48.05pm UTC (GMT +0000) Wed 9th Nov 2005

"Professor Spencer clearly shows that one of the government's main arguments for an extension beyond 14 days is flawed."

The Liberal Democrats today published advice on the Terrorism Bill they have received from one of the country's leading experts on criminal procedure, Professor John Spencer. The advice confirms that there is no basis for the Government's claim that the police have to wait until forensic evidence is available before they charge a suspect, so that questions can be put to the individual. The Government has claimed that the police are hampered by rules which prevent them from charging first and asking questions afterwards.

Commenting, Liberal Democrat Shadow Attorney General, Simon Hughes MP said "Professor Spencer clearly shows that one of the government's main arguments for an extension beyond 14 days is flawed. It is in fact possible to question terror suspects after they have been charged. This means that someone suspected of serious terrorist involvement could be held on a lesser terrorist charge, then questioned further when more evidence becomes available."

"The key question is how quickly can an individual be brought before the courts for the police case against them to be heard in full. The government wants suspects to be held in the limbo of police detention for up to 90 days while the police wait for evidence to come in. It would be far better to use lesser terrorist charges to get the suspect remanded into custody within 14 days and to bring them back for questioning at a later date."

The full text of Professor John Spencer's advice, provided to the Liberal Democrats on Tuesday 8th November, is below.

1. The "rule" that suspects may not be questioned after charge is one that has no clear legal basis, whether in statute or case-law. As regards statute, Parliament significantly omitted to include it in PACE in 1984. As regards case-law, the House of Lords refused to accept that it was any kind of overriding principle of justice in R v Director of the Serious Fraud Office ex pte Smith [1993] AC 1: a case in which they ruled that the statutory power of the Director of the SFO to question people and require answers, including from persons themselves under investigation, need not be read subject to the implied limitation that it ceased after the person in question had been charged.

2. The legal basis for it, insofar as there is one, is at present nothing more elevated than PACE Code C, paragraph 16.5 (a code which, of course, is written by the Home Secretary - who has power to rewrite it when he wants to, as periodically he does: see PACE s.66). Before that, a similar statement to similar effect appeared in the famous "Judges' Rules".

3. The "no questioning after charge" rule was thought to be a valuable safeguard against miscarriages of justice because it prevented/prevents innocent defendants being continually pressured by repeated questioning, until in the end they "crack". It is usually justified in this respect with reference to "the inquisitorial procedure" supposedly in force on the Continent, where suspects can be repeatedly questioned after charge by various official figures: in France, a juge d'instruction, and in some other countries, the public prosecutor.

4. This reaction to the evils of "the inquisitorial system" dates back, of course, to the days when in Continental Europe the defendant did not have the right of silence even in the most rudimentary sense, he was legally required to answer the questions so put to him, and if he refused could be (legally and officially) put to torture.

5. All that ended about the time of the French Revolution, and in Continental criminal procedure the defendant who is questioned after charge (i) is entitled to refuse to answer questions and (ii) is allowed to have his lawyer present when questions are put to him.

6. I suspect that what is largely behind the desire of the Government (and of the police) to have the police questioning period extended to 90 days is the fact that the fruits of telephone-tapping can't be used in evidence: and the Government (= successive Home Secretaries) won't hear of changing the law to allow this to be used in evidence at trial - for fear, I believe, of exposing the practices of the Home Secretary in issuing warrants to tap telephones to uncomfortable scrutiny by the courts.

7. The police are legally permitted to ARREST people on "reasonable suspicion" that can be based on something OTHER THAN admissible evidence. But they are only supposed to CHARGE a suspect when they have evidence against him/her that would stand up in court (= be legally admissible).

8. In my view, they wouldn't need 90 days police detention if the telephone-tap evidence were admissible in evidence: they could arrest them, and then charge them on it, and produce them to court where they would be remanded in custody pending the eventual trial.