Be liberal, but not with the facts

Yesterday, the day on which the former Lord Chancellor Lord Falconer of Thoroton effectively killed the Government's 42-day detention plan, was also the 43rd day that Amanda Knox and Raffaele Sollecito spent in custody in Italy in connection with the Meredith Kercher case.

I mention Knox and Sollecito, neither of whom have been charged, because their situation casts some light on the way the debate on detention has been conducted in Britain. Readers may remember that Liberty recently released a report “carried out by lawyers and academics in 15 countries” claiming that Britain had, in effect, the most draconian detention laws in the Western world. Using the hyperbole routinely deployed on these occasions, Liberty claimed that its report “exploded self-serving assertions about extended detention in inquisitorial Europe”, and made “embarrassing reading for all of us in the land that gave Magna Carta to the world”.

Although Liberty's intervention received the usual respectful attention from the liberal press, it was still pointed out in some places that countries with different judicial systems - as in the case of Italy - seemed to permit detention before charge for much longer periods than even the Commissioner of the Metropolitan Police was minded to call for. Ah, said Liberty, you don't understand, such objections had “confused pre-charge detention with detention pending trial”. A helpful graphic in one paper repeated the Liberty figure for Italy for pre-charge detention as “four days”.

You may notice here what would seem - to the person on the Clapham omnibus - to be a semantic sleight of hand. In Italy you can be held for month after month without formal charge as long as you are understood to be “pre-trial”, during which time sufficient evidence may be found to convict you or, if not, you may be released. And Italy is lauded as being more liberal than Britain for systematically holding suspects for far longer than our Government is seeking to do on an exceptional basis.

And here is a further recent illustration. The Liberty graphic gave the Spanish detention limit as being five days. But yesterday there were reports from Spain of the case of a Moroccan-born British resident who has been held under suspicion of terrorist offences for just under two years, and whose case has been taken up by Amnesty International. “Spain is remarkable,” said one campaigner. “Things take so long and there is such a bad history of abuse by the authorities.”

Hold on, hold on, we can't all be remarkable. If Italy can extend before trial (and before charge) detention to a year or more in the relatively simple situation of a murder, where a crime has obviously taken place, how is it so much worse for the British authorities to ask for much shorter periods of time in the case of those thought to be planning terrorist attacks?

To repeat, we can't all be remarkable, but yesterday Lord Falconer certainly was. Readers may recall that, after the 7/7 bombings and the 21/7 attempted bombings, Lord Falconer was one of those pressing hardest for a 90-day detention limit. So why the volte face? True, he told The World at One yesterday, he had once been utterly convinced of the need for 90 days, but in the intervening 26 months something had altered to make an extension unnecessary.

This something was the decision, on the part of the judicial system, to ditch its own informal rule about not charging people unless there was a greater than 50 per cent chance of conviction. Now, said Lord Falconer, people were being charged earlier on the basis of less certainty, allowing the authorities to “take their time” about the collection of evidence. In the case of terrorism, then, the system was moving suspects from one category to another — from pre-charge detention to pre-trial detention.

Of course, the objection will be raised that the threshold is likely only to have been lowered in the case of terrorist suspects. And, as we know, there is a modish sentiment knocking around these islands that terrorism isn't that big a threat. On yesterday's Today programme Sir Michael Pitt, the author of the report on flooding, was asked if inundation was as serious a problem as terrorism. The background implication was, I believe, that the Government was putting too much emphasis upon, and effort into, fighting terror.

This is a fashionable, albeit preposterous risk analysis, which - if fully adopted - would mean us putting every penny we had into fighting heart disease, which kills more people every minute than have died in floods since 1945. On Saturday I was in the Middle Temple Hall listening to Mr Justice Fulford, who presided over the 21/7 case, remind his audience of lawyers just how different jihadi terrorism is from the IRA terrorism of the 1970s and '80s. Back then the targets were military or political, or else attacks followed warnings. Now the idea is to take as many kaffirs with you as you can - and the transport system, or clubs filled with immoral women, are the targets of choice.

Despite this, said Mr Justice Fulford, he had tried to give the 21/7 defendants every chance to mount a proper defence. They were given laptops, he had liaised directly with the prison governor at Belmarsh about sufficient legal access, and strenuous efforts had been made to take account of religious and cultural sensibilities.

This sensitivity is partly important because of the claims, made by Liberty and others, that aspects of the anti-terror campaign are alienating Muslims and are therefore counter-productive. Liberty argued, last month, that “some individuals seeking to radicalise Muslim youths also might use the disparity [in detention limits] to undermine the UK's claim to civility and moral authority”.

I heave a sigh as I write this, but something needs to be said here, in a spirit of candour, if not of reproach. This warning can be - and is - a self-fulfilling prophecy. In overstating the differences between Britain and other countries, Liberty provides the ammunition for the very forces it describes. So you will find its report approvingly quoted on the Islamist Hizb ut-Tahrir Britain website as providing “another reason why the Muslim world rejects the imposition of Western ‘liberal' values, desiring the implementation of Sharia for the wellbeing of all its citizens”.

Just another reason, for people who will always find a reason. Who found reasons under 14 days and will have no problem finding more under Charlie Falconer's jolly new dispensation.