Time to stop shilly-shallying on detention without charge: 48 hours should be plenty

Gordon Brown continues to struggle over his proposals to create a possibility of detaining people without even telling them what they are accused of for 42 days.  John Major wrote in the Times, as reported on ConservativeHome yesterday, that this is part of a pattern whereby New Labour has engaged in a sustained assault upon traditional English liberties.  He's right.  Our frontbench has opposed this proposal, and before it the proposal to extend detention to 90 days, very effectively.  But I still have a problem with our approach.

In my view, the truth is this: in recent years, mainly during a period of extraordinary political weakness for the Conservative Party we have felt unable to set out our true position and instead satisfied ourselves with being on a particular side of the discussion.  If the government said that it wanted 90 days, we were liberal by favouring 28 and so we did.  John Major was arguing against extending the period to 42 days, so to seem reasonable he felt he had to say the following (which reflects the Conservative Party's position):

After terrorist attacks on London, Parliament doubled the time that suspects could be held without charge from 14 days to 28 days. Probably, that was justified.

But the logic of our arguments, and surely unquestionably the classical liberal position of which Tories imagine themselves the defenders, is that this is wrong: there was no justification (and neither could there be) for having people detained for 28 days without being charged with something specific.

John Major quotes a list of the sort that has become popular in this debate:

pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

But then we shy away from the clear implication: civilized, advanced, liberal countries facing terrorist threats every bit as serious as ours have detention without charge limited to only 24 or 48 hours - as we did ourselves during most of the period of Irish terrorism.  48 hours is plenty.

Think for a moment what is the point of detention before charge, and consider the argument offered for the extremely long periods we now have.  I submit that the argument for long periods goes something like this: it can take us a few weeks to put together enough evidence to feel that we could take someone to trial and probably get a conviction; if we had to let people wander around during this period, they might kill someone or warn their colleagues.

So the essence of the argument is this: the policeman thinks you did or planned something, but he can't prove it yet.  And until he can prove you did something he wants you sitting there out of harm's way.

But that is not the point of pre-charge detention in a liberal society.  The idea isn't to grant policemen discretion just to lock people up for a while, with it only being necessary to have a formal process of charges and trials if the policeman wants to lock you up for longer than a certain period (longer than 28 days, say).  Pre-charge detention has two purposes:

• It gives the policeman the power to take you away from your normal business so that he can question you.
• It gives a period for administative niceties, such as the policeman showing to senior authorities (in the UK, the Crown Prosecution Service) that he actually has a case against you.

In truth, it is debatable whether more than 24 hours should really be required for this, but one might perhaps imagine a complicated case in which those questioning someone need to think through the answers given before coming back with further questions.  So I'm happy to accept 48 hours.

But aren't I saying that sometimes the police might stop someone, then not be able to prove that he did something, then he goes off and kills someone, perhaps tens of people?  Of course.  No-one disputes that in a liberal society, in which we stop the police from being able to just lock up whomever they want, there will be cases in which the police will have to let bad people do bad things.  Of course, it's not as though the police are just going to ignore a terrorist suspect if they have to let him go, pending being able to accumulate evidence.  They will presumably place him under close surveillance.  They can pick him up and question him again later.  However, occasionally this will not be enough.

But that's the deal.  That is - or at least was until a few years ago - our society.  We didn't used to walk the streets just because the police or a Home Secretary happened not to fancy locking us up.  We used to think that in order to justify imprisoning me for anything longer than a day or two the policeman had to show someone that I had probably done something.

One last thought.  My understanding is that a charge can only be made if the police can show to the CPS a case that is believed to have a better than 50:50 chance of achieving a conviction.  Now of course if charging were just completely gratuitous then that would be a threat to liberty.  But I see no reason for particular attachment to this 50:50 number.  Perhaps, in terrorist cases, the CPS could be more conservative, say agreeing to charge if there is at least a prima facie case and it seems like the chances of a conviction are at least 25 per cent at the time of charge.  One could still insist that, if it is ever to be taken as far as trial, this probability of conviction must rise above 50 per cent.  But the initial decision to charge could have a lower threshold.

With such a provision, and also post-charge questioning (as much discussed elsewhere), I believe that we should not content ourselves with merely being on the liberal side of Labour, favouring 28 days to their 42.  We should accept the logic of our own arguments, and urge a reduction back to 48 hours.  For the proper basis for pre-charge detention, 48 hours is plenty.