On Liberty (8 page)

The battle for ninety days pre-charge detention was unedifying. Conducted by the government for political advantage – ‘tough on terror’ policies being seen as vote-winners – rather than real operational benefit, it wrecked the previous unity in the face of the threat and set democrats against each other in a war of words and values. Senior police officers, complete with uniform, were despatched to the Palace of Westminster to persuade wavering Labour backbenchers to vote for the measure and, while the eventual stage-managed compromise amendment was for twenty-eight days rather than three months, the ‘game’ was far from over. The prospect of even longer periods of police detention without charge or trial would loom for years to come.

It may be the recovering lawyer in me (or perhaps I’m only in remission), but I’ve always been infuriated by the way in which some people use the words ‘charge’ and ‘trial’ almost interchangeably in the context of detention. In our traditional Common Law legal system, one should be arrested on reasonable
suspicion, charged with evidence and convicted only when the incriminating case is proved beyond reasonable doubt.

We understand that complex conspiracies and international terrorism, in particular, are convoluted in their preparation and no doubt involve equal or greater care and complexity in the context of proving them before a jury. But the moment of charge is the moment that you know the offence of which you are accused. Under the ordinary law of the land and in other cases, involving murder and rape for example, it only takes hours – or, at the outside, a few days – before you are formally accused or charged with the particulars of an offence. After this, you may or may not be granted bail. It may then be some months before the opportunity comes to have your day in court and defend yourself in front of a jury of your peers.

Lives are no doubt blighted by such an experience, but have you ever seen someone actually complain at the door of the Old Bailey when eventually acquitted? I suspect not. Instead, routinely flanked by their stalwart solicitor (we all love lawyers when we need them), family, friends and supporters, they deliver emotional speeches of varying eloquence about how they always knew that the truth would out and justice would be done.

Lengthy detention without charge – or ‘internment’ as it is properly called – is different. Here a person is effectively ‘disappeared’ without warning. It is the stuff of nightmares. Imagine the 5 a.m. knock on your front door: you are then taken from your life, work and loved ones on suspicion of some sort of terrorist activity – but you don’t really know, because you’re never properly told why you’ve been taken. In a short time, your life can change irretrievably. During your period of internment you can lose your job, relatives might die and children be born or go through some of those pivotal developmental moments that will never come again and which you will never experience with them. At the end of this indeterminate period, the authorities might decide that they have the wrong James
Brown, Shami Chakrabarti or Mohammad Khan. You may be let go with no more ceremony than that with which you were taken, your original clothes given to you in a plastic bag. No court door speech for you. No public vindication. Just the feeling of profound injustice festering in your heart and the hearts of those around you, who weren’t originally attracted to terrorism as a means of effecting political change but who may now feel a little more persuaded. This is why lengthy pre-charge detention is as counterproductive as it is wrong, and is a measure traditionally rooted in countries from which so much terrorism has spread.

Try telling all this to prime ministers worried about appearing ‘soft on terrorism’ – whether the charge of softness is real or imagined, and whether it comes from a genuine public debate on national security or the private insecurities and demons with which we all live. The twenty-eight-day detention power was on the statute book by 2006 and by then New Labour infighting raged and speculation about prime ministerial transition was a public sport. Number 11 Downing Street was not just the residence of Her Majesty’s Chancellor of the Exchequer, but a rival court: a government in waiting.

Emissaries from Number 11 were sent out to ‘civil society’ to develop ‘new’ New Labour thinking but also, no doubt, to commission allies for the transition to the next premiership. In the course of the year I lost count of the number of times that a minister or MP with nothing to do with the Home Office or Justice brief, but obviously associated with the Chancellor and aspiring Prime Minister Gordon Brown, wanted to have lunch or a drink and reassure me that ‘it would all be different’ when Mr Brown came to power. But there were early warnings, too. They came in the form of insights from insiders and even the odd speech from the Prime Minister-in-waiting, suggesting that things wouldn’t be quite as different on identity cards and
punishment without charge as others promised and I inevitably hoped.

When Blair finally resigned in the summer of 2007, Gordon Brown’s assumption of the premiership was accompanied by new terror plots. In June there were two attempted terrorist attacks in London and Glasgow. There was a new Home Secretary, this time Jacqui Smith, the first woman ever to fill the role. Initially, the new Prime Minister bore the various horsemen of the apocalypse – widespread summer flooding, pestilence in the form of an outbreak of foot-and-mouth disease and terrorist attempts – with a statesman-like stoicism that warmed the heart. But autumn and the return of Parliament brought the true agenda. It was groundhog day: following the terrorist attempts, and wanting to be seen as sending out a signal of its strength and decisiveness, the new government was proving as obsessive about extended pre-charge detention as the old one had been.

This time there was lots of kind and polite ‘engagement’ from the prime minister’s office: in late 2007 and 2008 I sometimes felt that I spent more time in Number 10 than in my own home or office. I was under the impression that I was being given the awesome burden and opportunity of persuading the Prime Minister that the new pre-charge detention limits under consideration – first fifty-six and then subsequently forty-two days – were unnecessary, counterproductive and wrong. No doubt, Brown and his colleagues felt that it was the other way round: that they had an opportunity to persuade me.

To be fair, I never felt completely ‘played’: during the early months of his government, Gordon Brown made some audible noises – sincere, no doubt – about constitutionalism and liberty. But when push came to shove, my colleagues and I felt as though we were having to fight the same intense battle again: trying to convince politicians, media and public alike that locking up suspects for six weeks or a thousand hours,
without telling them why, would foster a greater sense of resentful victimhood – and, ultimately, lead to more potential terrorism – than it would ever prevent. Liberty’s ‘Charge or Release’ campaign was born.

I remember meeting with senior colleagues for a day’s strategy session and saying that this was a seminal moment for human rights in the United Kingdom and wider world. Lengthy pre-charge detention was a hallmark of tyrants: it was a symbolic issue around which all civil libertarians must coalesce or fragment irretrievably. The issue, in other words, was important in itself, but it also presented a line-in-the-sand moment for human rights more generally. What’s more, if Britain were to take such a step in the face of the perennial threat posed by terrorism, what kind of example would it be setting for lesser, younger and putative democracies? Of course it was a risk for us to dedicate so much of our limited resources to this one issue – but we had no option, it was that important.

My close friend and colleague Liberty’s long-time Legal Director James Welch had some typically wise words. ‘I am afraid that we will put all our eggs in this basket, Shami. You know we might lose, and, if we do, I am worried about the impact on all of us and our organization. I am worried about the emotional effect on you.’ It was kind, wise counsel indeed, but with comrades like him and values like ours, how could we possibly lose?

The government’s significant signposting of the proposed measure meant that we, for once, had a little time to prepare. The Home Secretary announced the proposal in December 2007 – although we had been aware for some months that it was coming – and it would begin its journey through Parliament in 2008. Polling, fundraising and alternative policy development bolstered our effectiveness. We commissioned a poll which revealed that 54 per cent of the public believed the motivation for extending pre-charge detention was to look ‘tough on terror’ and only 13 per cent supported an extension to
forty-two days, belying the assertion that the people of Britain will accept any measure if it is said to tackle terrorism. My colleague Sabina Frediani was the architect of the campaign and her private-sector marketing, sales and project management skills proved invaluable. One thing was clear: this campaign was far too important to contemplate simply winning the moral argument while the government got on with the business of enacting the legislation. The introduction of ninety-day pre-charge detention in one of the world’s oldest democracies would only have been a victory for the terrorist. We were determined to win with our values, our rational arguments and the solidarity of minds and voices from across political and civil society.

Our position was straightforward. The new internment proposals were unnecessary, counterproductive and wrong. Unnecessary, because there were already a number of existing and potential policy measures that would better equip police and prosecutors in complex anti-terror investigations and trials than the proposed legislation. We think, for example, that it is madness that, blanket surveillance notwithstanding, material gained from intercepted telephone calls and emails is
not
admissible in a criminal trial in the UK. Wire-tap evidence is used to great effect almost everywhere else, including in the US, and while Liberty consistently calls for greater legal safeguards in its use – such as a judge signing a warrant, as she would do before your home or office is subject to physical search – we do not see the point of ever greater snooping if it cannot be proportionately and practically used in bringing criminals to justice. The argument against the admissibility of such evidence was never one about civil liberties. Instead, it stemmed from a time when the public at large was oblivious to the surveillance capability of the intelligence agencies more concerned with espionage against enemy governments (as in the Cold War) than traditional law enforcement. Thus inflexible cultures, kingdoms and mindsets develop that prevent the kind of
innovation and cooperation that the various authorities so need in the face of evolving threats.

The new proposals were counterproductive. Interning in the name of ‘freedom’ people who then might turn out to be completely innocent is hardly the best advert for democratic values in a battle for hearts and minds.

And as for plain wrong – well, what can I say? You can be the judge. But before you pass sentence, look around the world at the company that you keep historically and geographically. International solidarity played an incredibly important part in this campaign. Early on, we commissioned lawyers to talk about the length and nature of pre-charge detention in their various jurisdictions. This was relatively straightforward in Common Law jurisdictions – such as Canada and Australia – where the moment of charge was as transparent as our own. As far as other legal systems were concerned – Civil Law jurisdictions such as France, Italy and Germany – we provided the various legal experts, whose credentials and advice we published in full, with a description of how our system works and the significance of the moment when an accused is told of the charge against them, in order that they can begin preparing their legal defence in earnest, even if this will take some time.

The results of this legal survey were astonishing and demonstrated just how out of touch the UK debate was with the rest of the democratic world. In Canada, the time limit for pre-charge detention was just twenty-four hours – a single day. Despite the continuing legal black hole for foreign nationals that is Guantanamo, in the US the criminal pre-charge detention limit was two days; in Russia, it was five and in France and Ireland, six and seven days respectively. So the UK’s existing twenty-eight-day pre-charge detention period was already staggeringly disproportionate by international standards. The hard data made for a dramatic bar chart that, reproduced on billboards and in newspaper adverts, became the iconic image of Liberty’s campaign.

It clearly shook the government: various apparatchiks were sent out to rubbish our research and even threatened a complaint to the Advertising Standards Authority. For my exhausted colleagues and me this provided a much needed moment of hilarity. Funnily enough, neither the complaint – nor an alternative international comparative analysis which might have been expected from a government that had pooh-poohed our findings and had embassies and high commissions all over the globe – was ever forthcoming.

There was another way in which the world came to the aid of our campaign. Human rights campaigners from across the globe voiced their solidarity and concern with what the United Kingdom government was proposing and the appalling example that, should the legislation pass, it would set for governments in their own homelands. Working with colleagues from Egypt, South Africa, the US, Hungary and elsewhere has been one of the most humbling and inspiring aspects of this work. Britain’s might is no longer imperial or militaristic rule, but the soft power of rule of law values survives. If only our sometimes short-termist politicians could see it in front of their noses.

Liberty’s campaign gathered momentum with media outlets, political pundits and civil society organizations as diverse as the trade union movement and the General Synod of the Church of England lending their voices in support. It was significant, we thought, that, despite London’s particular history of terrorist attacks, all three major candidates in the 2008 mayoral election – Ken Livingstone, Boris Johnson and Brian Paddick – provided statements of solidarity with our campaign and against the government’s proposal.