By Saleh Mamon
Saleh Mamon, a member of the Campaign Against Criminalising Communities (CAMPACC), assesses a recent report on the arrest of twelve Asian students on suspicion of terrorism.
Twelve Pakistani students were arrested on 8 April 2009 in the North-west following a security leak when confidential papers held by Assistant Commissioner Bob Quick, the head of the counter-terrorism unit, entering Number 10, were photographed. Most of the arrests were made by fully armed police in public places and received saturated media coverage. Bob Quick resigned and the prime minister made a public statement that there was a 'big terrorist plot' afoot.
One of the arrested was released immediately; eleven were detained until 21 April as terrorist suspects under Category A conditions. On 22 April, Hamza Khan Shenwari, a UK national, was released without charge. The ten others, who were Pakistani citizens, were transferred to immigration custody pending deportation. Eight voluntarily left the county and two are pursuing their cases in the courts. Lord Carlile's review of these arrests made under section 41 of the Terrorism Act 2000 (TA 2000) is timely and important since it is critical of procedures and disagrees with aspects of policy.
The national press picked up Carlile's observation that had the police consulted the Crown Prosecution Service (CPS) promptly about the evidential basis for the arrests, it could have shortened the length of detention and led to fewer arrests.
According to the report, when the CPS advised that there were no grounds for extending detention after 21 April, the police were surprised. Their understanding and experience was that it was enough for them to show more time was needed for covert intelligence to gather evidence. This suggests that the police have used 'easy' warrants for further detention (WFD), without worrying about the evidential basis which would have to be put before a judge.
At this point, intensive interviews, search of premises, vehicles and computers had provided no substantive evidence. All that remained was an ambiguous email from Abid Naseer that led police to believe that it had coded messages for an imminent terror attack. The case was built around Abid Naseer, considered to be the central figure, and four of his friends some of whom shared accommodation and all of whom frequented the same internet café. The basis for the arrests of seven other men appears to be only that they knew of each other. This is a shameful illustration of guilt by association.
Under Schedule 8 of TA 2000, the police must apply for a WFD after forty-eight hours of continued detention. An application must be made to a district magistrate who can authorise up to another fourteen days. Any further extension would have to be approved by a high court judge.
Lord Carlile is critical of police procedures during custody. After arrest, a police officer of inspector rank, not involved in the arrest, must carry out a review and appropriate custodial records have to be kept to inform the review. Carlile found that the custody records contained insufficient details to inform reviews and in some cases they were carried out by officers of low rank.
On 10 April a district magistrate granted a seven day WFD for all the arrested men. On 15 April, the same magistrate granted a further extension for seven men but extended warrants for four men for two days to 17 April because the lawyers argued that the men's rights under Article 5 of the European Convention on Human Rights (ECHR) had been breached.
Carlile repeatedly emphasises that detention should comply with Article 5 of the ECHR where the detainee must be informed promptly of the reasons for his arrest and any charges against him. On 17 April, an application was made for further extension to a high court judge. Up to this point, Lord Carlile concluded that during extensive interviews 'no accusation had been made of specific offence whether substantive or inchoate'. However, the judge granted an additional four day extension. Soon after this, consultation between the CPS and the police led to the decision that any further detention under TA 2000 would be unlawful.
Carlile recommends that all officers involved in counter terrorism policing should be trained on the law of arrest under TA 2000 and its potential effects on detentions. This means that for nine years the police have not been trained in using these powers competently. This is deplorable since police have used powers under section 41 without any restrictions thousands of times to arrest not only terror suspects but also civilian protestors.
Not surprisingly, the students in this case with one exception (a dual UK Pakistani citizen) remained in custody, in Lord Carlile's word 'within a different legal context', namely immigration detention, for more than twenty-eight days where the questioning continued. Lord Carlile states 'I have not been told of anything of estimable value that emerged during that period'. As to why and how these students came under surveillance, we will never know, since the evidence is secret and undisclosed.
In saner times, free from the politics of fear, the students would have been released so that they could continue with their studies. Four students were pursuing post-graduate studies, two were undergraduate students, one was studying accountancy, two had admissions to college and only one had been admitted to what might appear to be a 'dodgy' college as the press delighted in describing. Their education and future prospects have been irretrievably damaged. They have been branded terror suspects with all the consequences that brings.
Lord Carlile wants to see counter terrorism legislation work more fairly. But it is difficult to see how laws which have injustices inscribed within their framework can be made just through procedural improvements. The unrestricted powers granted to the police, executive and judiciary breach due process. The TA 2000 and all subsequent counter-terrorism legislation should be amended to bring them in line with standards of common and criminal law.
This is why campaigns such as CAMPACC, Cageprisoners, CASE, Justice for NW10 and others are crucial and must be supported. Injustices have to be exposed, collective action has to be mobilised. We must put an end to the avalanche of injustices that have, shamefully, become the norm.
 Article 5 of the European Convention on Human Rights provides that everyone has the right to liberty and security of person.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.
Download a copy of Lord Carlile's report on: Operation Pathway (pdf file, 215kb)
Campaign Against Criminalising Communities - CAMPACC
The Coalition Against Secret Evidence (CASE)
Justice for the North West 10