Terrorism and Detention without Charge

What is terrorism?

Terrorism is defined by s.1 of the Terrorism Act 2000 (TA 00) as:

a)      The use or threat of serious force against person, property, health or safety or electronic system;

b)      Done for the purpose of advancing a political, religious, ideological or racial cause which:

i)  Is designed to influence a government or to intimidate the public or

ii)  Involves the use of firearms or explosives

Section 1(4) of the TA 00 specifies that the definition of terrorism applies to the use or threat of force, to governments and to the public anywhere in the world. This means that a terrorist action falling within the definition is a domestic crime whether it is intended to take place abroad.

There is no single offence of ‘terrorism.’ Section 1 TA 00 does not create that, or any other, terrorism offence. Ordinary criminal offences of violence against person or property or explosives/firearms offences ordinarily cover the most serious conduct that falls within the definition of terrorism. 

Burden and Standard of Proof Defences

Many of the TA 00 offences have a built-in statutory defence appearing to place the burden of proof on the defendant. For example, on a charge under s.39 TA 00 of prejudicing a terrorism investigation, s.39(5)(a) states:

It is a defence for a person charged with an offence under [this section] to

  • prove…that he did not know and had no reasonable cause to suspect that the disclosure or interference was likely to affect a terrorist investigation… 

Meaning of Terrorism Offences 

Some of the wording of terrorism offences within the 2000 and 2006 Act is wide and vague, perhaps deliberately so, but this has been a recipe for confusion and in some cases, injustice. 

Arrest 

By s.41(1) TA 00, a constable may arrest without a warrant person whom he reasonably suspects to be a terrorist. A terrorist is defined as a person who has committed any one of a number of terrorist offences under the 2000 Act or is or has been concerned in the commission, preparation or instigation of acts of terrorism (s. 40 TA 00).

The test of reasonable suspicion is of course an extremely low one: it is set out in the House of Lords judgement of O’Hara v Chief Constable of the RUC [1997] AC 286.   

Detention 

Following his arrest, a suspect’s detention and treatment at a designated police station (usually Paddington Green or Belgravia) is governed by scheduling 8 of the TA 00 (s. 41(2) TA 00) and Code H of the Codes of Practice issued under PACE.

Detention for up to 28 days is one of the most controversial aspects of terrorism investigations.   

Safety interviews 

A safety interview (more accurately known as an ‘urgent’ interview) is best defined as an interview conducted with a suspect before he has been afforded many of his usual pre-interview and interview rights on the grounds that there is an urgent ‘safety’ need which requires an interview to be conducted without delay.

A safety interview is permissible in any criminal investigation however, for obvious reasons, it is most likely to be used in terrorism investigations. Provision for investigators to conduct a safety interview with a suspect is made in both Code H and Code C (which governs non-terrorism criminal investigations). 

28-Day Pre-Charge Detention 

The maximum pre-charge detention period for non-terrorism cases is 4 days.

When the Terrorism Act 2000 was first brought into force, the limit on pre-charge detention was 7 days. This was increased in 2003 to 14 days. In 2006, a government proposal to increase it to 90 days was defeated but a compromise of 28days was passed. In 2008, a proposal in Counter-Terrorism Bill of a ‘reserve power’ increasing the maximum to 42days defeated in the House of Lords.

Charge

Since June 2004, in all criminal cases, the CPS has had the option to charge a suspect under a much lower test than had hitherto applied, namely the ‘Threshold Test.’ The Full Code Test requires there to be enough evidence to provide a realistic prospect of a conviction. By contrast, the CPS may also charge under the Threshold Test, set out at section 6 of the Code for Crown Prosecutors, which requires that there only be a reasonable suspicion that the suspect committed the offence and an expectation that the evidence will be available in the future. 

Sentencing

The court of Appeal judgement in R v Barot [2008] 1 Cr.App.R. (S) 247(45) is now the leading authority on sentencing for a terrorist conspiracy to murder; and it raises the sentencing bar considerably to a life sentence with a minimum term of 40 years.

Where death is not the primary object of the conspiracy but life is endangered, life imprisonment sentences are recommended, with minimum terms of between 17 ½ and 20 years to be served.