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THE charge rate for people arrested by the Police Service of Northern Ireland (PSNI) under a counter-terrorism law has more than halved over the last two decades, amid continued calls for a review into police’s use of their powers.
During the first five years that the Terrorism Act 2000 was in effect (2001-2005), 1,254 people were arrested in connection with the security situation in Northern Ireland under section 41 of the act. A total of 394 people, 31% of those arrested, were later charged.
However, The Detail has found that the charge rate has been declining steadily.
In the last five years (2017-2021), just 82 (12%) of the 675 individuals arrested were subsequently charged.
The Northern Ireland Human Rights Commission has previously called on the UK Government to launch a review into how the PSNI uses its powers under section 41 of the Terrorism Act “to ensure compliance with its human rights obligations".
However, the Home Office – which is responsible for counter-terrorism policy – has refused to launch a review.
A Home Office spokesperson told The Detail: “Our police and intelligence agencies continue their tireless work to keep us all safe from the evolving threat of terrorism.
“The government is committed to giving them all the necessary tools to do this and has one of the most robust counter-terrorism frameworks in the world.”
Jonathan Hall KC, the UK's Independent Reviewer of Terrorism Legislation, told The Detail he believes the PSNI is using the Terrorism Act's robust powers of detention “unnecessarily” and in a manner which has "implications for human rights".
Section 41 of Terrorism Act enables police to arrest people without warrants if officers ‘reasonably suspect’ them to be ‘terrorists’. It also allows suspects to be held for up to 48 hours, rising to a maximum of 14 days if the courts grant police a warrant.
A separate law, the Police and Criminal Evidence (PACE) Act, allows all UK police forces to hold suspects for 24 hours but this can be extended to up to four days with a court warrant.
While the PSNI relies on section 41 for security-related arrests, police forces in Britain mainly rely on the PACE Act.
Northern Ireland accounts for around three quarters of all arrests made under section 41.
Although the number of people arrested in Northern Ireland under this terrorism power has fluctuated over the last two decades, 130 were arrested last year under it compared to 359 in 2003.
“Anomalous”
Mr Hall noted in his annual report, published earlier this year, that the “charge rate following a section 41 arrest in Northern Ireland” also “appears to be anomalous” in comparison with figures from Britain.
His report shows Britain has a charge rate of around 50%.
Mr Hall told The Detail that while he has seen no evidence to suggest the PSNI is carrying out section 41 arrests “where there is no genuine suspicion of terrorism”, he has "good reason to believe" the PSNI is using its terrorism act powers "unnecessarily” and in a manner which has "implications for human rights".
The senior barrister added that the PACE Act provides “sufficient powers to detain and question”.
“In Northern Ireland, the PSNI have adopted the practice of using section 41 Terrorism Act arrest powers even when the Police and Criminal Evidence Act would be sufficient,” he said.
He also said: “I think the PSNI would say that they are taking into account community safety in its widest sense and that using section 41 powers allows them to demonstrate the importance of counter-terrorism, thereby securing the support and confidence of the affected community.”
However, he also said “there is no getting around the fact” that this involves “second-guessing what the community reaction may be”.
Mr Hall added: “It is far too fragile a basis for deciding what sort of police power to use. In human rights terms, public perception does not feel like a convincing justification for using a more intrusive power.”
Jonathan Hall KC, the UK's Independent Reviewer of Terrorism Legislation.
“DIfferent environment”
Mr Hall’s report referenced the arrests linked to the 2021 alleged loyalist ‘show of strength’ in Pitt Park in east Belfast.
His report states: “The recent Pitt Park arrests were followed by a PSNI announcement that the arrests were conducted under the Terrorism Act.
“Whilst this does offer some explanation for the rate of section 41 use in Northern Ireland, it is dismaying that the choice of arrest power is affected by reasons relating to public perception.”
Mr Hall recommended in his report that the PSNI "should not take account of public perception when deciding on the appropriate arrest power for terrorist-related activity”.
A PSNI spokesman told The Detail: “While both public perception and community impact are a consideration in all that we do, they are by no means the deciding factor nor the priority when making terrorism-related arrests – rather elements that are considered and managed if appropriate.”
He also said “first and foremost” the PSNI is bound by responsibilities to “protect life and property, preserve order, prevent the commission of offences and where an offence has been committed, to take measures to bring the offender to justice”.
“Due consideration is always given to the facts on an individual case-by-case basis,” he added.
The force said decisions on whether or not to apply Terrorism Act powers rely upon whether officers believe someone is engaging in terrorism. It also said it welcomes Mr Hall’s scrutiny.
However, the PSNI added that it “continues to operate in a different environment” to police forces in Britain “which requires a different approach and the most appropriate, and considered, use of available legislation”.
“Unlike terrorism in Great Britain, ideological violence in Northern Ireland continues to be perpetrated with munitions and explosives,” a spokesman said.
“As the Independent Reviewer of Terrorism Legislation highlights in his report, of the 62 terrorist incidents reported to Europol in 2020 – 56 were ‘security-related’ incidents in Northern Ireland.”
Mr Hall’s report highlighted that the PSNI was considering whether it should commission a working group to review the use of section 41.
However, the PSNI said no group has been established.