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Last Updated: Sunday, 9 October 2005, 21:19 GMT 22:19 UK
Lord Lloyd

Lord Lloyd of Berwick
Fancy being kept for three months without being charged. Being questioned notionally and not being charged. I think that is intolerable
Lord Lloyd of Berwick
Lord Lloyd of Berwick, a former law lord, was asked in 1995 by the then Conservative Government to review terrorist law. His report was part of the process which led to the Labour Government's Terrorism Act 2000. He feels that the government are now playing catch up by including proposals to criminalises acts preparatory to terrorism:

"When the 2000 Act was going through I implored the Home Secretary to include such an offence but he said that he thought that it was not the way ahead. But now happily he has decided that it is the way ahead and I'm very glad to see that offence now included in the bill."

"I suppose they learn by experience. Possibly also that after the last terrorist event they were looking around for things about which they could legislate. And this was one thing on which they could legislate on which they knew there would be no opposition"

"The starting point for this really is the Terrorism Act of 2000 and that came after about 30 years of Irish terrorism and it was well thought out and it was comprehensive. And it was fair. That is the act we ought to be enforcing now instead of which, whenever a new terrorist event occurs, we start adding new things to that act."

"And that I think is a mistake. It started first immediately after the Omagh bombing and then it happened again after 9/11 in America and now it has happened again as a result of the terrorist activity of 7 July."

Glorifying terrorism

When Panorama originally spoke to Lord Lloyd in mid-September 2005 the proposed draft bill contained provision for two new offences: one of "encouraging" terrorist acts and a second of "glorifying, exalting or celebrating terrorism":

"I think it's important here just to get the actual language of the proposed offence. It says that a person commits an offence if he glories, exults, or celebrates an act of terrorism whether in the past or in the future. Now to me that is a very, very odd provision. I have never seen anything like it in an Act of Parliament. And I pity the poor judge who's going to have to explain those words to a jury. Glorify, exult or celebrate. Presumably they all mean something different otherwise you wouldn't have three words instead of one. Somebody in the Home Office must have thought they mean something different. But how is a judge going to explain the difference between those three things?"

"I certainly couldn't. Or not in a way which would satisfy me and I'm sure it wouldn't satisfy a jury. And so one is left with the thought that they use three words here because they don't really know what it is they're trying to catch."

"The essence of criminal law is that it must be clear, and it must be certain. So a man knows whether he's committing an offence or not. And having an offence couched in this language I think will be in practise unenforceable."

The fundamental difficulty remains that we're trying to create a criminal offence out of something which is just too vague and too uncertain
Lord Lloyd
Panorama spoke to Lord Lloyd when the bill was revised by the Home Secretary on 6 October 2005, and asked him about the amended wording. "Exalt and celebrate" had gone from the old clause two, But the word "glorify" survived in a new clause one :

"It is just how not to legislate on a matter as important as terrorism because the original draft bill was introduced less than a month ago and was intended to form the basis of a debate in the House of Commons this month and now before the ink is even dry on that bill, er, we've got amendments."

The vice of Clause two has actually been transferred to Clause 1 with its its reference to glorifying acts of terrorism."

"The fundamental difficulty remains that we're trying to create a criminal offence out of something which is just too vague and too uncertain."

The new proposals include measures aimed at those found charged with "indirect inducement", a term which Lord Lloyd sees as being redundant and already provided for in law:

"Inducement and incitement and encouragement are all one thing. I think the phrase in the in the bill is encouragement. But all those words are covered by the ordinary common law of inciting somebody to commit a crime. They call it rather grandly indirect incitement, that was the phrase which was used I think back in June. I asked the minister 'well how does that differ from what the law already is?' And I don't think I got a very satisfactory answer. The answer is everything in Clause 1, as I can see it, is already covered."

"And that's already in the criminal law and has been in the criminal law since time immemorial. It has always been an offence to incite somebody to commit an offence whether he commits it or not."

Extending the detention period

Perhaps the most controversial proposal from the Government is that those suspected of terrorist offences may be detained and questioned, before being charged, for up to three months.

The police asked for this new power, and the Government accepted their case. They both stress that no one could be held for any longer than the present limit of 14 days without judicial authority.

As the former judge who chaired an inquiry on new legislation to replace the emergency terrorist law in Northern Ireland, Lord Lloyd draws a parallel from there:

"Here I think one has to have a little of the background in mind. That for all ordinary offences, if one could call them ordinary offences, however serious or however complex, the maximum period for which a person can be detained for questioning is four days, and that is still the law. Even in cases such as conspiracy to import class A drugs, which heaven knows do enough harm."

"What happened when the 2000 act was passed was that that period was extended to seven days, and I agreed with that, because of the various complexities that arise in terrorism cases. And seven days, so far as I know, was perfectly adequate. Then, in 2003, it appears that the police said well seven days was not enough and we want 14 days. And the reasons they gave were threefold and it's important to get these actually in the mind."

"The first was there might be a need to analyse chemical substances found on the suspect's premises. The second was the need to analyse the hard disc on his computer and the third was the difficulties which can arise in the case of languages of people not speaking any known language."

It's simply not on to keep somebody in prison not for what he is supposed to have done, but in order to discover from him what somebody is supposed to have done
Lord Lloyd
"Those three reasons were enough apparently to satisfy the Conservative Party at any rate that this should not be opposed. I opposed it at the time and the Liberal Democrats opposed it. But the Conservatives are always in a difficult position in terrorist cases because they don't want to seem to be soft on terrorists. It was agreed then, or it became the law, that they were entitled to 14 days."

"The suggestion now that the period should be three months for the same reasons as it was agreed it should be 14 days does to me now savour of something worse than just questioning a suspect about what he has done. It begins to look I'm afraid to say a little like internment. And it would certainly be seen that way by some of the ethnic minorities. Fancy being kept for three months without being charged. Being questioned notionally and not being charged. I think that is intolerable."

"And I well remember when I was writing my report I was visited by two very, very senior members of the Labour Party. One of whom has a very, very senior position in government now who said whatever you do don't recommend internment."

"It's simply not on to keep somebody in prison not for what he is supposed to have done, but in order to discover from him what somebody is supposed to have done. That is not the purpose for which people are allowed to be detained at all. The law is that as soon as the police have enough evidence to charge an individual with the offence of which he is suspected he must be charged forthwith. You can't that's absolutely clear law: he can't then be kept in order that the police can have a trawl around to see what else he might be able to reveal about other terrorists. That is simply not acceptable."



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