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Socialist Lawyer > Issue 48

Socialist Lawyer interview: Imran Khan

Imran Khan talks to Sultana Tafadar about the government's proposal to extend the period of detention without charge, and his experiences of representating defendants charged with crime under anti-terrorism legislation.

Imran Khan, with Michael Mansfield QC, brought Britain's first private prosecution for a racist murder on behalf of Stephen Lawrence’s parents. Though unsuccessful, it led to the McPherson report which cited “institutionalised racism” in the police force and which resulted in unprecedented apologies, procedural changes and also vindication for the Lawrences in their pursuit for justice. He has also represented the families of Zahid Mubarek and Victoria Climbié. Imran Khan favours “impact cases… cases that are dead and buried”, done free of charge, especially in the early stages as there is no state help available. “That's why I’ve gone grey,” he says.

Sultana: The counter terrorism bill proposes extending the period of detention without charge from 28 days to 56 days. According to the Government, the period of detention needs to be increased to deal with the increasing complexity of cases – that suspects will need to be held for a longer period of time so that evidential as well as jurisdictional issues can be dealt with before charge. What are your views on the proposals and the rationale for seeking such an extension yet again?

Imran: ‘Firstly, in relation to the issue of jurisdiction the world’s getting smaller. Unlike in the past access to information now via databases, email, and telephone is easy. We saw this in the Glasgow case where we found out here in the UK what was happening in Australia within a very short space of time. So if we can get that information that quickly, I don’t see why the authorities, who co-operate on an international basis, can’t have access to information very quickly. Secondly, on the issue of complexity, 28 Complexity and jurisdictional issues don’t stop at any particular day. It has now become normal for the prosecution to serve its case against the defendant many months down the line. The argument put is that this is because of jurisdictional issues or because of the complexity of computer material, mobile telephone analysis, interrogation or getting the material into an evidential format. In most cases this is information which the police would already have at the police station. The delay is about “softening up”. The way to look at this issue is when the police arrest somebody they must be in a position to put the material that they have at that stage to them, enough for the authorities to be able to say whether the suspect can be charged or not. In the vast majority of cases, it is intelligenceled operations where there has been substantial surveillance and interception material weeks and months prior to the event. Mr Justice Calvert-Smith QC, who deals with case progression of these types of cases, has made it absolutely clear, that where there are intelligence-led operations there has to be a truncated timetable by which the prosecution need to give this material because they’ve had a head start. So I think the Government’s “justification” is a red herring. The idea that we need “x” amount of time is completely arbitrary. It allows the police to put a huge amount of pressure over a long period of time on a suspect at a police station. They feel that these individuals will crack and say things. The police and the prosecution need to do their jobs gathering the evidence without relying on pressure and confessions.’

As someone who represents defendants charged with terrorism related offences, what has been your experience of the pre-charge detention period, its impact on your clients, and its overall effectiveness in combating terrorism?

‘Seven days, in my experience, was a fairly oppressive period of time and I’ve dealt with many people who have been held beyond seven days. There invariably comes a time during that period, almost regardless of the people you are dealing with, when you sense that there are cracks appearing in the suspect’s personality. By this I mean psychological problems where people start debating whether they’ve done something wrong and you can see that the whole process is not about eliciting information but simply wearing somebody down. And what I sense you may end up getting is people being so worn down that they’ll be prepared to say anything at a police station leading to false confessions from people who may not have done anything. The “committed” individual may be able to stand up to that sort of interrogation but not the innocent ones that will be dragged in, in nearly every case. Now those individuals, those “innocents who are dragged in” may end up being the ones who would falsely confess, with or without the protection of a lawyer, in order to simply get away from what is oppressive treatment. I can’t even imagine the scenario of spending 90 days in a police station. When I go to Paddington police station, after ten days I feel pretty awful and that’s me walking in and out of the police station. But being held there, in that sort of condition where you are isolated, you don’t speak to anybody, you get very little reading material, that sense of isolation is such that it would lead to people making false confessions. People who make this kind of false confession do so in order to simply get away from the oppressive regime. So I think it’s a false economy to think that we are somehow going to be able to get all the information in that period of time. What, in fact, you may end up getting is that those who are committed to remaining silent, will remain silent whether you can put the material to them or not. Those that are likely to talk will talk within seven days or 14 days. If it’s to draw inferences from silence that doesn’t need a lengthy detention. I just don’t see the rationale for this approach. Are the police saying, “we don’t know within 14 days whether there is sufficient evidence to charge somebody?” I just can’t believe that. The police do, already, whether they admit it or not, charge on the basis that it’s easier to charge and then drop the charges later on if the evidence doesn’t quite match up. What I’ve seen with the increase of the detention period to 28 days is a lack of police focus on the cases they deal with.

The number of interviews cuts down, the number of personnel involved cuts down. There’s a complacency involved in the investigation which I think would definitely expand during the extra period of time. If you count up the number of hours somebody’s being interviewed over a 28 day period and a seven day period, you’ll probably find that they’ve been interviewed the same number of times. I’ve dealt with ‘seven day’ cases where there were three or four interviews during the course of the day but with the increase to 14 days, you had maybe one interview during a single day. When it went to 28 days you had some days with no interviews. It was about pressure – pure and simple.’

Some see post-charge questioning, another measure outlined in the new bill, as an alternative to pre-charge detention. What are your views on this proposal?

‘We already have a situation where identity parades and some questioning can take place after charge and it’s been the thin end of the wedge. Would it be the case that such questioning after charge is allowed if there’s some issue that needs to be put and it is viewed by the police as a last resort? Or are they simply going to rehearse the same arguments and put forward the same questions simply to try and force somebody into saying something? I suppose it could be argued that suspects dealing with the evidence in interviews once it is all available and dealing with subsequent discrepancies would be better than having a long initial period of detention. However, it seems to me that post-charge questioning serves no practical purpose. Having determined that there is enough to charge somebody and this means (particularly with the CPS now involved in this decision) the police have decided that there is a “reasonable prospect of conviction”, what purpose does the ongoing questioning serve other than a dress rehearsal for the trial? So whilst there may be an argument, that this a pragmatic approach and perhaps the lesser of two evils (in that it is better than a long period of initial detention) because suspects are bound to have lawyers post-charge whereas pre-charge they may not, it is simply a device for the police to draw more adverse inferences, as defendants are more likely to be advised to exercise their right to silence knowing that the police already believe they have committed the offence by charging them.’

As you well know, having represented two of the defendants, in the Fertiliser Bomb Plot trial, supergrass and intercept evidence were a crucial part of the Crown’s case. The Government envisages the use of such evidence in future cases and is therefore seeking to place them on a statutory footing. What are your views on the Government’s proposal?

‘Supergrass evidence is completely and utterly unreliable. To have people give information on the basis of an incentive means that the likelihood of that evidence being reliable is non-existent. To have people convicted on the basis of that type of testimony alone is a recipe for disaster. Scores will be settled and all sorts of deals could be done in the back rooms of the security services. I think it will end up being a real deep cesspit of lies and deceit against individuals so I certainly wouldn’t advocate that as a means of dealing with terrorism.

The problem with intercept evidence is that it is incredibly difficult to challenge. We already have a situation where there’s lots of covert audio material in terrorism cases when there has been a substantial period of time from when that surveillance took place. I can imagine intercept material which has been taking place over a period of time eventually coming to court a year or two years later. The ability of the defendant to challenge that becomes quite difficult given the length of time that’s involved. Given that the authorities would choose what to intercept, when to intercept and edit the intercept in such a way that what you eventually get is a picture which is prosecution-loaded and because you don’t have it at the time, the defendant would have great difficulties in contextualising the conversations or otherwise dealing with the issues present at the time which would explain what was said. At the moment we have a huge problem with obtaining, from the Crown, all audio probe material that was taken, relying on their discretion and the CPIA rules as to what we are given or not given and that argument is going to keep going. What the prosecution will do is choose what they want to put forward and the defence will have to draft defence case statements and hope to bring out conversations that may or may not have been recorded or which are open to interpretation by disclosure officers and prosecution lawyers, a year to two years after the event.’

What are your views on the measure outlined in the bill that seeks to extend the ambit of section 58 of the Terrorism Act 2000 to cover the collection of information of service personnel?

‘Collection of information as an offence is just surreal. You could write a whole book on how wide section 58 is in terms of its ability to catch any act. It is an almost strict liability offence. The new proposal takes it to the completely surreal level. On the face of it, if I were to Google the names of the head of the army, then I could be committing an offence. Where the State has already said in cases and in terms that section 58 allows the arrest, in theory, of an old lady carrying an A-Z on a London bus, then I dread to think who might be subject to this discretionary arrest and prosecution. Legitimate enquiries ought to be allowed to be made about our service personnel. Journalists, researchers, members of the public, should be entitled to ask questions. Its all about making Government accountable and transparent. You already find difficulties when asking questions about service personnel. This would make it a criminal offence to do so. People mock the idea that we’re living in some sort of police state but we’re getting pretty close to it when you can’t even ask legitimate questions about service personnel.

One may ask “what’s the harm in making this an offence? If it’s for a legitimate purpose they should be able to prove it?” There are all sorts of reasons why you might collect information. Shouldn’t it be that they ought to be able to prove that it was for a terrorist purpose? But the onus has shifted and in a climate in which it’s assumed you’re guilty and you’ve got to prove your innocence, it becomes really difficult. Who knows what you were thinking about when you were Googling a particular thing. I’m particularly concerned about students at colleges and university who may be exploring the world around them and that really is what we’ve seen in the deployment of section 58. It’s targeting young Muslim men in particular who are naturally eager to explore the world around them in the same way that all young people in all corners of the earth do in an almost given rite of passage to adulthood. Arrest and prosecute when people act against clear laws. What this is trying to do is to get people at the time they’re simply thinking about their environment. I never thought I’d see the day when our thoughts were policed in Britain. But essentially that’s what this legislation is about. It sounds like a fiction that you’d read in a book by George Orwell but it’s getting pretty close to that reality.’

The Government also seeks to apply enhanced sentences for terrorism related offences? Is this justified?

‘This is complicated because I was certainly in favour of stiffer penalties when there was a racist element to an offence. However, the reason why we were asking for increased sentences in race-related crimes was because it was part of a campaign to force the police to take action in those sorts of cases. We’re not living in the sort of environment where the courts and the prosecuting authorities are reluctant to investigate and prosecute offences where there is a terrorist element. What used to happen in race-related crimes was that the police would deem them as minor crimes because of the low sentences they attracted. There wasn’t the motivation to proceed with the investigation and prosecution. It seemed like too much trouble for very little. That’s not the case here. I think again this is one of those where the cart’s been put before the horse. With racially aggravated offences, it was about sending out a signal, it was about making sure that racism wasn’t allowed to flourish and the Government wanting to be clear about its stance on racism. All very well and the Government should be lauded and applauded for all of that. I don’t think that this Government in particular has any problem in its so called anti-terrorism credentials and the sentences which have been given out are undoubtedly the strictest sentences you’re going to get. That’s been set very clearly by the Court of Appeal in the case of Dhiren Barot which sets out precisely the sort of sentences people would get for being involved in terrorist-related crime. So I don’t think we have a problem that needs to be sorted out here. It looks like this is window dressing, giving the Government extra credibility to show they are tough on terrorism. As a result, the sheer length of the sentence, whether you plead guilty or not, is not encouraging people to admit liability. Rather, its discouraging people from admitting liability. In fact what you’re probably going to get is more and more people saying, “well we might as well fight it because we’re going to get a lengthy sentence in any event”. What the Government and the courts should say is “if you co-operate, if you admit to this and in particular if you move away from what you were going to do”, then we need to reflect that in sentences. One of the ironies in the section 58 case of the “Bradford students” was that the lad who went with his family to the police station and admitted that he had tinkered with this idea of extremism but actually got homesick and came back, was himself prosecuted. It would have been an opportune moment for the state to say, “you are exactly the sort of person who we should credit”, and not prosecute. The message has gone out that it doesn’t matter whether you admit to it or not, the State is going to prosecute first and talk later.’

There is also a proposal that, after completing their sentence, persons convicted of terrorist offences should be required to notify the authorities of their identities, their whereabouts and foreign travel plans. What are your views on this proposal?

‘I think the problem is putting them in the same category as sex offenders, who also have this notification requirement. It sends out the wrong message to the Muslim community. Whether we like it or not there are people who see themselves righting wrongs. We’ve seen in Northern Ireland that these sorts of repressive measures don’t actually work in the long term. What is particularly pernicious about this idea, not just of a thought police but a control police, is that you’re never going to get rid of the shackles of the State having done your sentence. With sex offenders, the issue is that they are seen to have a pathological condition which means that they live with it for the rest of their lives. How are we to equate that with somebody who holds certain political ideological views? Does that mean that the Government has completely given up on prisoners’ rehabilitation? If it is, then we might as well just not send anybody to prison because what they’re assuming is that anybody who is punished for this is going to be, for a very long time, maybe the rest of their life, an extremist. So measures are not put into place to rehabilitate but simply to control. An assumption is made that once an extremist always an extremist.

Ideologies are by their very nature complex nuanced thoughts and processes. One day you may believe a particular argument, the other you may not. Just because you’re meeting somebody who holds extremist views doesn’t mean you share them and the whole point of ideological discussions is about trying to understand your religion and trying to understand the world in which you live. Why shouldn’t people be allowed to consider a range of views? The problem arises when they do something about it. This provision is trying to predict what somebody does before they do it and poses a huge problem.’

What are your views on the storage of DNA of terrorist suspects on a database?

‘I am in principle against mass storage of DNA. DNA is already kept as soon as anybody is arrested and in terrorism cases there’s no way that you can prevent that at the moment. One of the problems is, or will be, that people who have not done anything wrong will have their DNA going onto the database. Just by the mere fact of your DNA being on what’s called a counter-terrorism database, is going to be enough of a stigma to stop all sorts of things happening or cause things to happen. Just imagine you travel from here to another country and a search is carried out or there’s a whisper that your DNA’s on the database, despite the fact that you’ve not done anything, you’ve not been charged with anything, you’ve not been convicted of anything. There already exists the ability to cross-reference it on a database to see whether any other offences have been committed and targeting individuals in this way is further stigmatisation.’

Finally what do you think will be the impact of such measures on, firstly, the Muslim community and secondly, the effectiveness in dealing with terrorism?

‘To effectively deal with terrorism, the approach you need to have is intelligence coming from the community in which those suspects are operating. There has to be a two-way dialogue. The authorities need to give the community confidence so that individuals can come to them and tell them about what’s going on. At the same time the authorities have got to say that we’re not going to treat the whole community as potential suspects. If we’re to learn lessons from what happened in the past – and it doesn’t look like we have – if you look at what happened with the African-Caribbean community and what the whole Lawrence Inquiry brought out, was that you need to police by consent and that’s something which has been completely forgotten. What we’re doing with the Muslim community is that we’re policing by coercion – we’re forcing people into a corner. The number of times I’ve gone into communities and people say they want to go and give information to the police, they want to trust the police and the security services but the problem is that whenever they do try that, it is they themselves who end up under suspicion. That was what happened, and is still happening in the African-Caribbean communities but it’s now happening more and more within the Muslim community. We have to see these issues in context. If our Government, in our name, carries out reactionary wars and targets a whole community at home as a potential “fifth column” there is an inevitable consequence. History is littered with examples: the Irish community in the 1970s and 1980s; German Jews in the Second World War; the list goes on. In ten years time we do not want to have to apologise to people whose lives have been wrecked and families destroyed by a State that was promoting fear.’

Sultan Tafadar is a barrister at Tooks Chambers

This article can be found in the print edition of Socialist Lawyer number 48, December 2007.