Let judges decide

Observations on detention

Gordon Brown used his first New Year message as Prime Minister to pledge "real and serious changes", reflecting the challenges that have already blighted his premiership. Addressing one of those concerns, the ongoing terrorist threat, Brown will try to extend the length of time terror suspects can be held without charge, from 28 days to 42, during the next parliament.

The debate so far has focused almost exclusively on the number of days a suspect should be held. But what are the factors that make 42 right, but 44 or 40 not? It is all too arbitrary. The right balance may lie in a bold proposal from Ken Jones, president of the Association of Chief Police Officers (Acpo), who suggests holding suspects for "as long as it takes". Replacing an upper limit on the duration that suspects can be held with judicially supervised detentions could streamline the process.

Lord Carlile of Berriew, the government's independent reviewer of anti-terror legislation, warns that an upper limit can "very quickly become the norm". Judicial supervision overcomes such administrative complacency. Requiring investigating officers to make regular submissions before a judge at which suspects are also entitled to representation makes the police accountable for the pace of their investigations. Crucially, it moves away from the jaundiced debate about pre-charge detention, allowing judges to determine the length on an evidential basis from case to case.

Although evidence suggests that such a system could help reduce the length of pre-charge detention - rather than extend it - civil libertarians are appalled at the idea of removing an upper limit.

Responding to Acpo's proposals, Shami Chakrabarti, director of the human rights group Liberty, said: "We expect chief constables to uphold the rule of law, not campaign for internment."

Liberty's proposed alternatives, which include allowing for post-charge questioning and making intercept evidence admissible in court, would be of "material assistance in only a tiny proportion of trials", according to Lord Carlile.

It is argued that detention periods in the UK are the longest in the western world, but this is disingenuous. Though technically true, the argument skirts over the nuances of foreign legal systems.

In France, for example, suspects are often charged with association de malfaiteur (criminal association), a wide-ranging and vague holding charge. Police then have a year to decide what charges to bring.

Irfan Raja was convicted on terrorism charges last July after laborious deciphering of encrypted computer hard drives - vital in establishing his guilt. His plans to fight jihad in Pakistan seemed fanciful until computer records showed he was in contact with a fixer who planned to organise a place for Raja at a training camp in Pakistan's lawless North-West Frontier Province.

The case typified al-Qaeda's growing use of the internet to bring British Muslims within its sphere of influence. It may be uncomfortable, but, to streamline the process of bringing terror suspects to trial, there are few credible alternatives to judicially supervised detention.

Ensuring that the state does not trample upon the rights of citizens is an important liberty. However, just as al-Qaeda is evolving ways to respond to a changing world, so too must we. Organic evolution is a hallmark of Britain's common law system, which has safeguarded our civil liberties for centuries.

Shiraz Maher is a New Statesman contributing writer and the director of the International Centre for the Study of Radicalisation at King’s College London. 

This article first appeared in the 07 January 2008 issue of the New Statesman, Pakistan plot