Detention and Questioning of Terror Suspects by the Police: Role of PACE

Introduction

Terrorism is one of the most pressing issues for criminal law and policy in the present time. In the United Kingdom, the problem of terrorism is one that has been protracted over a long period of time. Clive Walker has said that in the British history with terrorism, there are three phases of legislative action that can be seen in response to terrorism (Walker, 2005). The first phase saw responses to terrorist conduct in colonial conflicts. The second phase saw the responses to the Irish Republican campaigns. The third phase, which is the recent phase in counter- terrorism legislative history, is the response to the transnational or international terrorism in the wake of the events of September 11, 2001 (9/11) (Conte, 2010, p. 220).

Each of the phase saw the British government and Parliament respond to the threat of terrorism by making laws and policy that gave greater powers to the police and investigative agencies. In the 1970s, the wide powers given to the police were called into question because of several high profile cases of miscarriage of justice, such as the Guildford Four and Birmingham Six. The need to balance the powers given to the police to detain and question terror suspects on one hand, with the rights of the suspects on the other was realised. The passage of the Police and Criminal Evidence Act 1984 (PACE 1984) was a response to the criticism of the miscarriage of justice cases. Code H of Pace 1984 seeks to provide a system of safeguards that are to be mandatorily provided to the terror suspects who are detained for questioning. However, the actual system as it is in practice is a careful exercise in balancing investigative powers of the police with due process responsibilities or duties towards the suspects.

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Due to the complexities involved in counter-terrorism, powers of detention and questioning the terror suspects are given to the police and investigative agencies. Such powers of detention bring to the fore the conflict between security of the state and the liberty of the detained. Therefore, the police are also required to imbibe certain safeguards as are provided in the PACE 1984.

This essay will critically analyse the role of the PACE 1984 in ensuring that the police is able to do effective policing in counter-terrorism, without unduly or arbitrarily affecting the human rights of the terror suspects in their custody. The essay will first discuss the nature of the problem of terrorism and then go on to consider PACE 1984 and how it is used in counter-terrorism detention and questioning of suspects.

Terrorism: Nature of the problem and legal responses

Since the events of 9/11, counter-terrorism has become one of the top priorities for law enforcement agencies. This is because terrorism is no longer situated within the borders of a state. Terrorism has now become transnational as indicated by 9/11 and subsequent terror attacks in various European cities, including London. However, as far as the United Kingdom is concerned, terrorism is not a new problem. This is not to say that 9/11 has not had an impact on the UK’s counter-terrorism strategy, because the impact of 9/11 is seen in the legislations passed by British Parliament in the wake of the event (Roach, 2011). At the same time, it is pertinent to note that the British experience with counter-terrorism goes far back.

The history of terrorism in the United Kingdom is long and protracted. The first terror attack in the United Kingdom is the infamous attempt made by Guy Fawkes to blow up both the houses of Parliament in 1605. Since then, the United Kingdom has experienced terror both domestically, as well as overseas in its colonies. Therefore, terrorism has been a constant and consistent problem for the British government and in response to this problem, the government has made legislations as well as policies.

The nature of terrorism has changed and moved from the conventional ideological, organisational structure to fundamentalist structures (Staniforth & Sampson, 2012). A contested version of ‘new terrorism’ is also being talked about, which is characterised by the growth of small terror cells, lone wolf type of terror attacks and a greater use of cyber technology (Roach, 2011). The concept of ‘new terrorism’ is contested but it is definitely worth considering briefly here. As per the concept, terrorists will carry out their activities in smaller groups making attacks harder for the states to track, predict or prevent (Sageman, 2011). Another point made with relation to new terrorism is that there is a deliberate desire for increased civilian casualties, while conventional terrorism treated civilian casualties as (Neumann, 2009, pp. 17-20). The increasing desire to inflict civilian casualties, coupled with the availability of new age weaponry and information technology, makes present day terrorism a serious threat for the state. Consequently, counter-terrorism has become a very important task for the state. Undeniably, the role of the police and investigative agencies in counter-terrorism has become very complex and difficult (Pearse, 2015).

As a consequence of the long experience of counter-terrorism, there are a host of temporary and permanent legislations that have been enacted by the British Parliament over the period of time. Prior to 2000, the legislations passed by British Parliament in response to terrorism in Northern Ireland, were temporary measures. The Terrorism Act 2000 (TA 2000) was enacted as a permanent counter-terrorism measure by the British Parliament, after Lord Lloyd presented his seminal report in 1996, which recommended the passage of such a permanent measure. In the context of this essay, the provision that is most relevant is section 41 of the TA 2000. Section 41 provides that pre-charge detention of terrorism suspects can be done by the police. Furthermore, TA 2000, Schedule 8 provides the process of such detention, as per which a person may be kept in detention of a period of up to seven days. PACE 1984 provides certain safeguards in its Code H for such detention cases. In fact, Lord Lloyd’s report recommended the retention of pre-charge detention; and judicial review of pre-charge detention after 48 hours in order to ensure that TA 2000 is at par with the PACE 1984 and ECHR provisions (Lloyd, 1996).

An example of policy made by the British government in response to terrorism is the Contest policy, which was first formulated in the immediate aftermath of 9/11 by Sir David Omand GCB. The first Contest was created in 2003 but there have been successive Contest policies that have been formulated from time to time (Staniforth & Sampson, 2012, pp. 267-268). Contest policy includes four elements, which are:

  • Pursue-to stop terrorist attacks;
  • Prevent-to stop people from becoming terrorists;
  • Protect-to strengthen protection against attacks; and
  • Prepare- to mitigate the impact of terrorism.

The Contest policy is used by the office for Security and Counter-Terrorism in the Home Office (Home Office, 2015). The Government publishes annual reports under Contest policy. The Contest policy shows that the government’s policy of counter-terrorism is led by the police and intelligence agencies. The lead department is the Home Office, and the Home Secretary is responsible for counter-terrorist policy and legislation, and exercises executive control over the police and UK’s domestic intelligence agency, MI5 (Foley, 2013, p. 78).

The discussion in this section has shown how terrorism is a grave security issue for the UK and also how the problem has evolved over a period of time. Today, counter-terrorism has become one of the most important security related function of the police. In order for the police to be able to perform its functions effectively, the powers of detention and questioning of terror suspects is provided under the counter-terrorism legislation. In the next section, the safeguards for the terror suspects in the form of PACE 1984 Code H is discussed at some length.

PACE and its role in the detention and questioning of terror suspects by the Police

The PACE 1984 is an essential piece of law that was enacted to establish and regulate police powers. The regulation of these police powers was thought necessary by the early 1980s due to the many police and miscarriage of justice cases that happened during that period of time. Due to these cases, it was thought that the existing structure of police powers at the time was fragmentary and inadequate. In other words, the police powers left an area open to misuse or misapplication of powers, due to which it was considered necessary that there would be some regulation of the police powers. The police perform an essential function in maintaining law and order and within the criminal justice system. Therefore, granting police certain powers that aid them in the performance of these functions is necessary. At the same time, it is necessary to ensure that the police do not overstep their powers, especially by undue interference with rights of the citizens or suspects. The PACE 1984 is an exercise in balancing the powers of the police with the rights of the suspects. In other words, PACE 1984 ensures that the police are able to exercise their necessary functions in the criminal justice system, without interfering unduly with the human rights of suspects.

There are two models in criminal justice system, which are: ‘rights based due process model’ and ‘crime control model’ (Fenwick, 2014). The United Kingdom has advanced its criminal justice model to the due process model, wherein the criminal justice process is carried out by ensuring that the due process of law is followed (Fenwick, 2014). The enacting of the Police and Criminal Evidence Act 1984 (PACE 1984) is evidence of the due process model being followed in the UK (Turpin & Tomkins, 2011, p. 39). Due process model would require the In context of rights of suspects and the balancing of these rights with the need to secure the state, the PACE 1984, seeks to create such a balance by giving necessary powers to the police while also ensuring safeguards for the suspects (Fenwick, 2014, pp. 1101-3).

At the outset, it is important to consider that the regulation of police powers is a complex and complicated exercise. Police work by itself is complicated in the sense of it requiring flexibility at times and clear direction for most part. This is especially true in case of counter-terrorism work as counter-terrorism requires a high degree of intelligence gathering as most of the terror outfits are de-centred as the nature of terrorism has changed after 2001 (Maguire, 2012). The police need to be enabled to react promptly if confronted with a possible terror attack. At the same time, as counter-terrorism also involves building up evidence against terror suspects, there is a need to ensure that there are rules guaranteeing that evidence obtained is admissible in court. This is where PACE 1984 is essential not only for the safeguarding of suspects’ rights but also in ensuring that the due process is followed under the PACE 1984 for interviewing of terror suspects and collecting evidence. This ensures that the evidence collected by the police would be admissible in court.

The PACE 1984 includes safeguards related to right to information and right to legal counsel (Masferrer & Walker, 2013). The safeguards are mandatory to be followed and if they are not followed, the entire process of questioning is vitiated. It can be said that through the making of these safeguards mandatory, the PACE 1984 creates a structure that balances considerations of security with the rights of the suspects (Fenwick, 2014). The PACE 1984 provides certain safeguards for the terror suspects who are being questioned or detained by the police under the TA 2000 or other relevant counter-terror legislations. The value of these safeguards is that these seek to protect the rights of the detained against arbitrary action of the police. At this point, it is worthwhile to consider the background of PACE 1984 and the reasons why it came into effect in the first place.

The report of the Royal Commission on Criminal Procedure (Philips Commission) in 1981 led to the enactment of PACE 1984 (Starmer & Woolf, 1999). The setting up of the Philips Commission by the British government was in the backdrop of three cases that brought to light severe miscarriages of justice. These three cases were all related to the Irish insurgency. The Guildford Four, Birmingham Six and Maguire Seven, were all responsible for frustration of the public with the criminal justice system. The Birmingham pub bombing of 21st November 1974, killed 28 people and injured more than 180 (Mullin, 1997). Six accused men spent 17 years in prison only to be found innocent later in 1991 (Edmond, 2002). These cases are now well documented as miscarriages of justice. The fact that many men spent years in jail added to the pressure for criminal justice review, which ultimately led to the enactment of the PACE 1984.

Another important event that led to the enactment of PACE 1984, was the Maxwell Confait case, which highlighted the problems with the interviewing of the suspects by the police. Irrespective of the law that required underage suspects to be interviewed by the police in presence of parent or guardian, the police interviewed two underage suspects for Maxwell Confait’s murder, without their parents or guardians being present. Due to the lapses by the police in their interviewing of the underage suspects, there was a lot of criticism and this was also instrumental in the setting up of the Royal Commission on Criminal Procedure in 1981. Ultimately, due to the serious shortcomings in the existing system, the PACE 1984 was enacted. One of the key purposes behind the enactment of PACE 1984 was the need to monitor the integrity of evidence production (Maguire, 2012, p. 450). The PACE 1984 consists of Codes of Practice for the detention and questioning of suspects while they are in the custody of police (Maguire, 2012). The PACE 1984 established an office for the ‘custody officer’ who determines on the justifiability of detention and also maintains a custody record. The custody officer is also responsible for the welfare of the suspects while they are in police custody. All the safeguards that are provided under the PACE 1984, such as, period of detention, access to legal advice during the questioning of the suspects and the recording of the interview with the suspect, are to be ensured by the custody officer (Maguire, 2012).

The PACE 1984 sought to create a structure that would ensure that suspects’ rights are also protected by ensuring them the necessary due process safeguards. These safeguards are also relevant to counter-terrorism detention and questioning. That is the reason why when the first comprehensive counter terrorism law was being mooted upon, the specific application of the PACE 1984 to detentions and arrest of terror suspects was spoken about. In fact, Lord Lloyd’s report, ‘Legislation against Terrorism’, stated:


“If the police have proper cause to suspect that a person is actively engaged in terrorism, they must have sufficient information to justify an arrest under PACE...the absence of any requirement for reasonable suspicion of a specific offence effectively allows the police free reign to arrest whomsoever they wish without necessarily having good reason, including those who should not be arrested at all” (Lloyd, 1996, p. 1147).

Therefore, Lord Lloyd also recommended that detention under TA 2000 must be justified as per the provisions of the PACE 1984. This was suggested in view of making the process of detention and questioning less liable to arbitrariness. In the light of recent miscarriage of justice cases, this was particularly important.

The purpose of the PACE 1984 was unification of police powers and the ensuring of a balance of powers of the police with the rights of the individual. The Codes of practice are provided under the PACE 1984 under which the powers of the police officers as well as the extent of such powers, is clarified.

The PACE Code H, is applicable to detention under TA 2000, section 41 read with Schedule 8. These safeguards supplement the safeguards that are provided under TA 2000, Schedule 8 itself. Together, PACE Code H and TA 2000, Schedule 8 form the body of safeguards applicable to detentions of terror suspects. The TA 2000 safeguards are discussed briefly here. First, TA 2000 Schedule 8, Para 6, provides that the detainee shall have the right to have one named person informed of the detention ‘as soon as practicable’. Second, TA 2000 Schedule 8, Para 7, provides that the detainee shall have the right to consult a solicitor ‘as soon as reasonably practicable’. There are certain qualifications that are also provided with these rights. TA 2000 Schedule 8, Para 8, allows a police officer of a rank of Superintendent or above to cause delay in informing a named person of the detention or legal counsel. Such a delay has to be justified however, as being subject to a reasonable cause. However, such delay cannot exceed 48 hours. A warrant of further detention has to be applied for if the police believes such detention as necessary to secure or preserve evidence (Hannibal & Mountford, 2014, p. 81). It is necessary that reasonable suspicion criteria is met. This was also held in a case, where the court found that even though allowances are made due to complexities of counter-terrorism, the police should still be able to meet the objective satisfaction requirements including the satisfaction of reasonable suspicion (Costorina v. Chief Constable of Surrey [1988] 138 NLJ 180. , 1988). Reading this judgement in the larger context of counter-terrorism and PACE 1984 safeguards, it is clear that the focus is on the ensuring that the rights of the suspects are not arbitrarily done away with. Moreover, the detention, treatment and questioning of those who are detained under TA, 2000 Section 41 is to be regulated by PACE 1984, Code H (Masferrer & Walker, 2013, p. 152). The safeguards that are provided under the PACE 1984 are next explained in more detail.

The first safeguard under PACE 1984, Code H is provided in para 1.5, which states that all persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies. Therefore, the emphasis is on expeditious process with respect to detention and questioning of the suspects and there is a bar on keeping an individual detained beyond the maximum time period provided by the law. Second, PACE 1984, Code H provides in Para 2.5 that the detainees’ solicitor or an appropriate adult must be allowed by the authorities to inspect the detainee’s custody record. This inspection can be done as soon as practicable and at any time on request until the suspect in in detention (Masferrer & Walker, 2013, p. 152). Both the rights mentioned in paras 1.5 and 2.5 are due process rights. While, para 1.5 relates to the expeditious handling of the case, and the release of the detainee; para 2.5 relates to right to legal help and the right to inspect the custody record.

Third, para 3.1 provides that the custody officer is under a duty to inform the detainee their rights under the PACE 1984, Code H. These rights are the right to consult privately with a solicitor; their right to have someone informed of their arrest and their right to consult Code H. While similar rights are provided under TA 2000, Schedule 8, Code H is the standard procedure that is to be followed by the police in cases involving detentions under TA 2000, section 41. Fourth, para 3.2 provides that a written notice has to be served on the detainee. Such a notice is to include all relevant information including the following:

  • General rights of the detainee;
  • the arrangements that can be made for accessing legal counsel;
  • right to copy of the custody record; right to remain silent;
  • right to have access to records and documents essential for effectively challenging the arrest or detention, as the case may be;
  • the maximum period for pre-charge detention, and information on review of detention;
  • right to medical assistance;
  • right, if they are prosecuted, to have access to the evidence in the case before their trial in accordance with the Criminal Procedure and Investigations Act 1996, the Attorney General’s Guidelines on Disclosure, the common law and the Criminal Procedure Rules (Masferrer & Walker, 2013, p. 152).

Code H, para 3.4 relates to disclosure of material to the detainee and clause (b) is essential here and provides:

“Any available documents and materials which are essential to effectively challenging the lawfulness the detainee’s arrest and detention must be made available to the detainee or their solicitor. Documents and material will be “essential” for this purpose if they are capable of undermining the reasons and grounds which make the detainee’s arrest and detention necessary” (Masferrer & Walker, 2013, p. 152).

Clearly, Code H contains the necessary instructions for the detaining authority. It is important to reiterate that the safeguards are also provided in TA, 2000 Schedule 8. However, Code H strengthens the safeguards from the procedural aspect. Code H is also a direct instruction to the police or the detaining authority which needs to be followed by the authority.

PACE 1984 Code H also contains some qualifications on the rights and safeguards that are provided to terror suspects. These qualifications are made to allow senior officials to delay the provision of these rights, specifically right to be informed, right to legal representation and right to disclosure of all material (Masferrer & Walker, 2013).

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The counter-terrorism done by police in context of centrally directed and hierarchical Irish Republican terrorism is very different from the threat posed by the al Qaeda styled terrorism that counter-terrorism had basically dealt with since 2001. British police and government quickly realized this after the 9/11 attacks in America that it was ill-suited to conduct counter-terrorism against the de-centred kind of terrorism that was threatened by al Qaeda (Maguire, 2012, p. 560). Consequently, Intelligence came to be recognised as one of the most important methods for gaining visibility of otherwise series of invisible threats. Over the period of time, Intelligence has come to become the ‘lifeblood’ of counter-terrorism in the UK (Maguire, 2012, p. 567). The police powers related to the detention and questioning of terror suspects are necessary for the purpose of counter-terrorism considering the challenging nature of the problem and the greatly de-centred nature which makes it difficult for the police to remain vigilant against possible terror attacks. In view of this, the powers under TA 2000 and other relevant laws are necessary. At the same time, counter-terrorism does put great stress upon human rights of the terror suspects. In this, the safeguards provided under the PACE 1984 are essential for ensuring due process for terror suspects.

Conclusion

The PACE 1984 was enacted after a series of controversies involving criminal investigations, especially with respect to counter-terrorism. The need for regulating police powers was felt and after due review of the criminal justice system, the PACE 1984 was enacted. The Code H of the PACE 1984 is applicable to counter-terrorism detention and questioning of terror suspects. This Code provides for certain safeguards that are applicable for the terror suspects. These safeguards include detention only for the time provided under the law; access to legal counsel; informing of arrest or detention to a named person and maintaining of custody record. PACE 1984 also requires the appointment of a custody officer and the custody officer is responsible for ensuring that these safeguards are provided to terror suspects. The system created under the PACE 1984 is a due process model, which ensures two things. First, the police is enabled to conduct counter-terrorism and in that PACE 1984 does not impede police functions. Second, the safeguards provided to the terror suspects ensure that the evidence collected by the police satisfies due process requirements due to which its admissibility before the courts is not threatened. The entire system is meant to strengthen counter-terrorism.

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