APPENDIX 3
Memorandum submitted by British-Irish
Rights Watch
1.INTRODUCTION
1.1 British Irish RIGHTS WATCH is an independent
non-governmental organisation that monitors the human rights dimension
of the conflict and the peace process in Northern Ireland. Our
services are available free of charge to anyone whose human rights
have been affected by the conflict, regardless of religious, political
or community affiliations, and we take no position on the eventual
constitutional outcome of the peace process.
1.2 We welcome this opportunity to make
a submission to Government concerning their proposals for new
counter-terrorism legislation. We have only commented on the human
rights implications of the proposed counter-terrorism measures
which fall directly under our remit.
1.3 In Part I of our submission, we explore
the options for pre-charge detention; the offence of acts preparatory
to terrorism; the role of post charge questioning; the use of
intercept evidence; the use of supergrasses and the threshold
test and some counter-terrorism options proposed by the Government.
In Part II, we examine the issues of disclosure in relation to
suspected terrorist financing; measures in relation to DNA of
terrorism suspects; data sharing powers and the collection of
information likely to be of use to terrorists. We then consider
the proposed introduction of enhanced sentences; notification
requirements; the use of control orders; the suggestion of a police
power to hold passports and the transfer of functions to the Advocate
General (Northern Ireland). We have attached our response to the
Second report of the independent reviewer pursuant to section
14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of
Berriew, for reference.
1.4 British Irish RIGHTS WATCH have been
observing the development of counter-terrorism legislation since
1990. Our experience from Northern Ireland suggests that only
three mechanisms can effectively combat terrorism. The first is
preventative, and therefore preferable: the collection of accurate
intelligence and the proper use of that intelligence to prevent
attacks. The second is deterrent: the effective detection of crime.
The third is the most valuable of all: political resolution. The
clearest lesson we have drawn from our experience is that draconian
and repressive legislation does not decrease the threat of terrorism.
The aim of any government, facing such a threat, should be to
enhance the protection of human rights. By developing a strong
human rights regime, individuals and communities will be more
likely to support security mechanisms such as rigorous airport
searches in the prevention of terrorism.
1.5 British Irish RIGHTS WATCH recognise
the importance of the Government's widespread public consultation
on these counter-terrorism proposals. We believe that by engaging
with civil society, the Government should be able to build a consensus
on the issues around counter-terrorism legislation and the protection
of human rights. However, we do sound a note of caution about
the state of human rights in the UK today. We believe that the
Government should be doing more to publicly protect human rights
in the media and in discussion about the role of human rights
both nationally and internationally. BIRW draw attention to the
Joint Committee on Human Rights' (JCHR) recent report into Counter-terrorism
Policy and Human Rights, which noted their concern about the "effect
of repeated questioning of the domestic human rights law framework
by high-ranking members of the Government."[8]
We believe that the mixed messages sent by the Government on the
issue of human rights and terrorism are undermining the status
and protection of such rights. BIRW agree with the JCHR's recommendation
that the Government should make an unequivocal public commitment
to the existing international human rights law framework.
1.6 As noted above, the increasing development
of counter-terrorism legislation may not be the most appropriate
response to an increased security threat. According to research
by Sweet & Maxwell, an estimated 2,685 new laws have been
passed since 1997[9],
which could be construed as legislative overkill. It should be
sufficient for the Government to utilise the existing legislation
and increase the number of successful arrests, investigations
and prosecutions of terrorists. British Irish RIGHTS WATCH agree
with the Joint Committee on Human Rights that the introduction
of new legislation must be based on sound argument, complimented
by evidence, and that such an introduction must be transparent
and open to consultation.
PART I
2. Options for Pre-Charge Detention in Terrorist
Cases
2.1 British Irish RIGHTS WATCH is opposed
to the extension of the time during which an individual can be
held without charge. We have previously expressed our concern
that extending pre-charge detention to 28 days already pushed
the boundaries of human rights compliant policing.[10]
Detention of more than a month without charge can have serious
psychological and social implications for both the detainee and
his or her family. These factors also undermine the fundamental
principles of the British legal system, such as the presumption
of innocence and the right to a fair trial.
2.2 The Government's justification for such
an extension is that it will enable the police to gather more
evidence. British Irish RIGHTS WATCH believe that such evidence
should be in place before arrest so as to prevent protracted detention
or the holding of innocent individuals. Similarly, there is an
argument that an extension of the detention time lessens the urgency
of an investigation, thus leaving suspects in custody unnecessarily.
We note from the Joint Committee on Human Rights' report that
those suspects who were released at the end of the 28 day detention
"raise concerns about whether the power to detain for up
to 28 days is being used to detain those against whom there is
least evidence.[11]
2.3 In addition, we are concerned that conditions
at Paddington Green Police Station, where terrorist suspects are
held for questioning, may not offer the appropriate facilities.
For instance, we note that there is no dedicated space for exercise
and that there is only one room available for suspects to consult
with their solicitors. While we welcome the fact that after 14
days suspects are transferred to "better" accommodation
(a prison) we do not feel that this environment is appropriate
for individuals who have not been charged with any offence. BIRW
remind the Government of the requirements set out under the European
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment and the UN Convention against Torture,
and the issues raised in the JCHR report, and urge the Government
to improve the facilities at Paddington Green and provide better
facilities for consultations between detainees and their lawyers.
2.4 BIRW do not believe that judicial and
Parliamentary oversight of extended detention would provide suitable
safeguards to protect the rights of suspects or the rule of law.
While the safeguards introduced under the Terrorism Act 2006 have
contributed in part to protecting the rights of suspects in custody,
it is not clear how rigorous the judiciary has been in vetting
applications put forward by the Crown Prosecution Service (CPS).
British Irish RIGHTS WATCH would welcome information on the exact
numbers of applications put forward by the CPS and the Police
and the outcomes of the decisions in each case. We would also
welcome information on the any special training undertaken by
judges who assess such applications.
2.5 We have already seen the employment
of this kind of oversight with control orders. Despite the publication
of reports by Lord Carlile and the clear indications that control
orders are an unsuitable method of addressing a terrorist threat,
relatively limited changes have been made to this counter-terrorism
measure. Indeed, a ruling in the High Court by Mr Justice Sullivan,
stated that control orders violated Article 5 of the European
Convention on Human Rights (right to liberty).[12]
These problems are compounded by the fact that seven individuals,
suspected of involvement in terrorist activity and subject to
control orders, have absconded.[13]
2.6 As with many counter-terrorism proposals,
lessons can be drawn from Northern Ireland. The policy of internment,
used in Northern Ireland during the 1970s, produced similar effects
to those which could occur should pre-charge detention be extended.
The policy's aim was to combat the IRA and it involved the mass
arrest of IRA suspects. However, those in charge of implementing
the policy relied on out-of date intelligence and a proportion
of those arrested and detained were completely innocent. Allegations
of torture, cruel and degrading treatment began to emerge, and
contributed to an upsurge in violence in Northern Ireland. More
significantly, individuals who did actually pose a threat to the
security of the UK "slipped through the net" before
the raids took place. Internment ultimately failed because it
did not respect the civil liberties and human rights of one section
of society. By directly and solely targeting Catholics/nationalists/republicans,
it sent a clear message about the value of the human rights of
that community. This message was enhanced by the extent to which
the UK Government was prepared to go to elicit information, for
instance the use of degrading and inhuman treatment of prisoners
(the infamous "five techniques"[14]
regrettably still in use in other parts of the world) and an inability
to admit at an early stage that internment was an unsuccessful
policy. We cannot better the army's own assessment of internment:
"Put simply, on balance and with the benefit of hindsight,
it was a major mistake."[15]
2.7 BIRW acknowledge the fact that there
are differences between contemporary Islamic terrorism and Irish
terrorism. However, unlike the Government, British Irish RIGHTS
WATCH do believe that an application of additional resources rather
than the introduction of stifling legislation would be the best
way forward. BIRW understand that an investigation may be sequential;
however, it is not clear why increasing the number of investigators
who speak the relevant languages will not have a positive impact
upon an investigation which involves translating mobile phone
conversations, for instance. Similarly, the international nature
of terrorist investigations should not mean an increase in detention
time but rather increased co-operation between countries in tackling
terrorism for the reasons stated above. BIRW believe that the
Government's case for increasing pre-charge detention is weak
and lacks any evidential basis.
3. Acts preparatory to terrorism
3.1 British Irish RIGHTS WATCH is concerned
about the offence of Acts Preparatory to Terrorism which was introduced
under the Terrorism Act 2006. We believe that the vague language
used in the legislation and the high sentences which such charges
carry could lead to miscarriages of justice. BIRW also do not
believe that it is appropriate to use this charge as a method
of extending the detention of an individual based primarily on
the loose language which enables potentially innocent acts to
be incorporated as a criminal offence.
4. Post Charge questioning
4.1 British Irish RIGHTS WATCH has concerns
that post-charge questioning could, in certain circumstances,
lead to the harassment of suspects. We believe that the further
interviewing of suspects, after they have been charged, can only
take place when fresh evidence has come to light. In this way,
suspects will be afforded the same due process of law and protections
as prior to their being charged. The right to remain silent should
still apply in such circumstance, of course. Equally, suspects
should not be made to compromise their defence. We also believe
that by setting different standards for terrorist suspects and
criminal suspects, the Government is in danger of developing a
twin-track judicial system. We also believe it would be beneficial
for the Government to wait until the outcome of the consultation
into similar changes to the Police and Criminal Act 1984.
5. Use of intercept evidence
5.1 Given that terrorists can avail themselves
of the benefits of modern technology, on the face of it there
is an argument for giving the prosecution equality of arms. However,
careful attention needs to be paid to the human rights implications
of covert surveillance, in particular its impact on the privilege
against self-incrimination, which forms an important element of
the right to a fair trial. Care also needs to be exercised in
targeting suspects for such surveillance, because of its impact
on the right to respect for privacy, not only of the suspects
but also of third parties. Intelligence gathering of this sort
should not be used to build databases on people who are not involved
in terrorism, and records engendered in the course of combating
terrorism that involve innocent persons should be destroyed at
the earliest opportunity.
5.2 If intercepted communications are to
be allowed in evidence, then so too must information about how
such evidence was obtained, in order that the defence may challenge
evidence that was gathered improperly. The use of intercepted
material which is shrouded in secrecy because of an alleged need
to protect sources and methods is not acceptable. We draw attention
to the current legislation governing covert surveillance—Regulation
of Investigatory Powers Act 2000 (RIPA). Under this legislation,
a person who believes, for example, that his or her telephone
is being tapped without cause, can make a complaint. However,
the only outcome of the complaint is that s/he will be told that
the authorities cannot confirm or deny that the telephone is being
tapped, but can assure the complainant that, if it is being tapped,
then the tapping is in compliance with the law. There is no mechanism
for having the interception stopped. As we have seen in a recent
case[16]
in Northern Ireland, where privileged conversations between lawyers
and their clients were the subject of a covert listening device
at Antrim police station's Serious Crimes Suite, the threshold
test for the use of surveillance under RIPA is unclear and the
decision-making process opaque. The development of any new legislation
in this area must take into account the problems we have seen
with RIPA.
5.3 The use of evidence gathered by telephone
interception should be the subject of keen safeguards, with a
rigorous system for approval. We believe that such interception
should be used for the minimum amount of time necessary and therefore
be subject to regular review. The aim should be to remove it at
the earliest opportunity. A system which enables individuals to
find out if their telephones or other means of communication,
such as email, are tapped, and to subsequently challenge such
surveillance, should be put in place and must be robust and transparent.
5.4 We also have concerns regarding the
use of intercept evidence which could potentially compromise a
suspect's right to confidential access to a lawyer. The use of
evidence gained by listening to such conversations would be disproportionately
advantageous to the prosecution, and again undermine the right
to a fair trial. In our view, intercepted communications between
suspects and their lawyers should never be admissible as evidence.
We welcome the review proposed by the Government to be chaired
by the Rt Hon Sir John Chilcott and hope that they will consult
widely and that the results of their work will be made publicly
available.
6. Use of Supergrasses
6.1 BIRW has very serious concerns that
the common law practice of "Queen's Evidence" is now
on a statutory footing in England, Wales and Northern Ireland
and about the proposed use of supergrasses in terrorist cases.
We know from our experience in Northern Ireland that the use of
supergrasses is highly problematic. The Northern Ireland Court
of Appeal overturned many of the convictions which resulted from
the supergrass trials of the 1980s and international criticism
of the practice indicated that it violated the right to a fair
trial. We believe that the use of supergrasses undermines the
stability of convictions and respect for the rule of law. It also
promotes a culture of impunity, in that it encourages people who
have engaged in serial acts of criminality to avoid appropriate
sanctions. Supergrass evidence is also inherently unreliable,
as the supergrass is motivated to convict as many others as possible
in order to lighten his or her own sentence.
6.2 The use of supergrasses is also highly
damaging to building community confidence in policing and counter-terrorism
measures generally. If people believe there may be spies in their
midst, with the potential for settling personal scores by naming
neighbours as terrorists, communities begin to distrust their
own members. Fractured communities do not trust the police when
they cannot trust one another, and the flow of vital intelligence
can be seriously hampered.
6.3 The use of informers by the security
forces in Northern Ireland has led to tragic consequences. Most
recently, the Police Ombudsman for Northern Ireland published
the result of her investigation into the use of informers in the
1990s. Her report, Operation Ballast, uncovered information about
the murders of ten people and 72 instances of other crime, including
ten attempted murders, ten "punishment" shootings, 13
punishment attacks, a bomb attack in Monaghan, seven instances
of drug dealing, and additional criminality, including criminal
damage, extortion and intimidation. She also uncovered widespread
and systemic collusion between members of police Special Branch
and the UVF, where Special Branch had covered up the crimes of
their mole in the UVF over a period of many years. Special Branch
had been hiding Northern Ireland's dark history of collusion and
the use of informers by the security services should provide key
lessons, particularly in terms of what to avoid, to be learnt
by the Government as it develops further counter terrorism legislation.
7. Making full use of the Threshold test
7.1 British Irish RIGHTS WATCH note the
importance of making full use of the threshold test to investigate
and charge terrorist suspects. However, we caution against using
the threshold test in such a way that it results in wrongly detaining
individuals on minor charges which may later be dropped as a method
of keeping them in custody.
8. Options proposed by the Government
8.1 Option 1. This has been discussed above
in paragraphs 2.1 to 2.7.
8.2 Option 2. We do not believe that the
addition of an affirmative resolution by Parliament would provide
a secure enough safeguard to protect the rights of suspects. British
Irish RIGHTS WATCH agree with the Government's concerns that such
a vote would be unwieldy and provide operational difficulties
for the police.
8.3 Option 3. BIRW are interested by the
suggestion put forward by Liberty with regard to the Civil Contingencies
Act 2004. This would enable decisions by the Government to be
scrutinised appropriately. However, the fact that such measures
could be renewed at anytime may mean that once the use of emergency
powers has been declared that there is little incentive to return
to regular powers.
8.4 Option 4. The introduction of judge-led
investigations could provide an interesting method of tackling
terrorism. However, the cost and problems associated with re-orienting
the British judicial and criminal system to one similar to the
Magistrates' model found in mainland Europe are immense. BIRW
had particular concerns about the differing standards applied
to suspected terrorists, for instance, the fact that in the French
model, terrorist suspects could be held for six days as opposed
to four and that terrorist suspects were denied access to a lawyer
for the first 72 hours of detention.
Conclusion
We do not believe that the Government has made
a compelling case for extending the detention limit beyond 28
days. This is supported by the fact that in 2006, "there
has been no case in which a suspect was released but a higher
limit than 28 days would definitely have led to a charge".[17]
We are particularly concerned by the use of statements such as
"it will only be necessary to go beyond 28 days in exceptional
circumstances". [18]
We saw such phrasing in the request to introduce 28 day detention
and already we have seen the number of "exceptional circumstances"
spiral. If, as the government maintains, the threat from terrorism
is increasing, we do not believe that extended detention is an
adequate response. Rather, the Government should be using a holistic
approach which prevents the alienation of minority groups, builds
bridges between various aspects of the security services (both
nationally and internationally) and increases the numbers of translators
and other specialist staff to speed up investigations and high
quality police and intelligence work.
PART II
9. Disclosure in relation to suspected terrorist
financing
9.1 British Irish RIGHTS WATCH are aware
of the problems regarding the financing of terrorism. BIRW have
been supportive of the Assets Recovery Agency in Northern Ireland
because we believe that it sends a strong message to those involved
in criminal and terrorist activity. However, Lord Carlile, in
his examination of terrorism legislation illustrated the problems
with monitoring terrorist assets; citing the example of an estate
agent who may be unaware that the rent from office premises may
ultimately benefit a company operating for the purposes of a terrorist
organisation, he indicated that s.18 placed a reverse burden of
proof on the estate agent.[19]
We agree with the proposed measure to confiscate the assets of
an individual who has been convicted of a terrorist offence; however,
we caution that such measures should not impact upon the innocent
dependents of such an individual, not on those who may have become
innocently embroiled in money-laundering.
10. Measures in relation to DNA of terrorist
suspects
10.1 The gathering and holding of the DNA
of those suspected of terrorist offences is a sensitive issue.
As with all personal information held by Government agencies,
it is vital that the information is fully protected and secure
and that there are clear protocols for the collection and destruction
of such information. While we acknowledge the importance of a
counter-terrorism DNA database, we believe that such a database
should be integrated into the National DNA Crime database. This
is linked to our view that any such database should be subject
to the same procedures that currently apply to the National DNA
Crime database. Terrorists are criminals and creating separate
mechanisms for them, such as a separate database, only feeds into
the hero complex upon which many terrorists survive, setting them
apart from the mainstream judicial process. BIRW are opposed to
the creation of legislation which would enable the retention,
storage and use of DNA/fingerprints of those on control orders.
As is clear from our submission, we do not support any measures
which would cement control orders as a suitable measure to tackle
terrorism.
11. Data sharing powers for the intelligence
services
11.1 As far as resources for the security
services are concerned, we believe that sharing information between
agencies should increase the capacity of such agencies. However,
it is vital that appropriate safeguards are laid down in the design
of such a sharing scheme. Individuals should retain the right
to know if an agency holds information about them, and what that
information is, and should have the right to challenge any inaccurate
information. There should be clear guidelines on how the information
can be shared, with whom, and for what purpose.
12. Collection of information likely to be
of use to terrorists
12.1 The addition of section 58, which deals
with the possession of documents for terrorist purposes, to the
Terrorism Act is worryingly vague in its wording.[20]
We hope that it will apply to security personnel leaking information
to terrorists.
12.2 In April 2007, Mark Thompson, a prominent
human rights activist from Northern Ireland, was one of over a
hundred people who was visited by the police and told that his
life was under threat from loyalists, presumed to be the UVF.
Two members of a loyalist flute band, one of whom was a civilian
employee with access to police computers, have been arrested in
relation to passing information to the UVF and possession of information
useful to terrorists. This indicates the need for the vetting
process used by the security forces to be as robust as possible
and to prevent private information falling into the wrong hands.
13. Enhanced sentences
13.1 British Irish RIGHTS WATCH have grave
concerns regarding the proposal to enhance the sentences for terrorists
who are convicted of non-terrorist-specific offences. As previously
noted, if the Government treats terrorists differently from other
criminals because of the motive for their crimes, it can only
create miscarriages of justice and martyrs to the cause. This
danger is increased if the Government specifies non-terrorist
offences as incurring greater penalties dependent upon the motivation
of the individual carrying out the crime. This will contribute
to the creation of a twin-track justice system, which in turn
undermines the rule of law and the protections currently afforded
to both suspects and victims by the judicial system.
13.2 There appears to be a principle of
disproportionate deterrence underpinning many of the government's
proposals for countering terrorism, of which the proposals on
sentencing are a prime example. This seems to us to be aimed at
the symptoms rather than the causes of terrorism. Once a person
has made the monumental step of deciding to kill him or herself
in order to kill others with whom he or she disagrees, fear of
a harsher sentence should that murderous endeavour fail is hardly
likely to make a difference. Introducing ever-harsher sanctions
has only one logical conclusion, which is the reintroduction of
the death penalty, to which the present government is opposed,
although the same may not hold true for some future government.
We will not rid ourselves of the scourge of terrorism by adopting
an essentially Old Testament attitude of retribution. It is only
by standing up for human rights, which includes defending the
right of others to hold their own religious beliefs, while not
accepting that any religious belief can justify the taking of
life, that we can produce a society with shared values which is
strong enough to protect itself against terrorism, whether from
without or within. In doing so, we would also create a model for
other countries to covet and emulate, thus lessening the potential
threat.
13.3 A good starting place, in our view,
would be to make human rights part of the national school curriculum,
and to provide university degrees at entry level for undergraduates.
If the threat and the dilemmas posed by terrorism were debated
by people of all ages in a human rights context, many attitudes
would be changed and many divides bridged. In our opinion, this
would be a far better use of resources than spending public money
on keeping those who have already espoused terrorism in jail for
longer.
14. Notification requirements for convicted
terrorists
14.1 Although the form of a notification
scheme has not been fully outlined by the Government, we do not
believe it is an appropriate measure. The Sex Offenders Register
currently means a convicted sex offender must register their name
and address with the police, inform them within 14 days if they
move and be the subject of a six month jail sentence and fine
should they fail to register. This ensures the continued criminalisation
of an individual.
14.2 Our remit does not permit us to comment
on whether such measures are justified in the case of sex offenders,
but in the case of those convicted of terrorist acts, such labelling
would almost certainly be counter-productive. It is unclear who
would have access to the information on a "terrorist register".[21]
Such access could prevent convicted terrorists, who have served
their sentence, from rebuilding their lives and hinder their ability
to find a job or home. We believe such legislation will lead to
ongoing discrimination against individuals and would negate the
rehabilitative role of the prison system.
15. Control orders
15.1 BIRW has previously made a detailed
submission to Lord Carlile on the subject of control orders, a
copy of which can be found at Appendix 1. We agreed with Lord
Carlile's assessment that control orders are "not very far
short of house arrest, and certainly inhibit normal life considerably".[22]
We assert that if there is enough evidence to charge an individual
and bring them before a court then this should be done; if there
is not enough evidence, then an individual should be released.
The "limbo" in which suspects exist while subject to
control orders creates the potential for the abuse of due process.
15.2 BIRW believe that the proposed "self-standing
power of entry and search of promises" is an unnecessary
and invasive measure. The need for such a power indicates that
those subject to control orders should be in conventional secure
accommodation (assuming correct judicial process has been observed).
Such a power would undermine an individual's right to respect
for his or her private and family life. The rights of those residing
with such an individual would similarly be undermined. This police
tool serves only to increase the pressure on those subject to
control orders. There are no details of the threshold of suspicion
that would have to be reached before the police were authorised
to employ such a power.
15.3 BIRW agree with the Joint Committee
on Human Rights' assessment of the use of Special Advocates in
control order cases. In reference to submissions made by several
Special Advocates, the JCHR stated "we found their evidence
most disquieting, as they portrayed a picture of a system in operation
which is very far removed from what we would consider to be anything
like a fair procedure".[23]
The fact that an individual is not able to know all of the evidence
against them, the lower standard of proof; the fact that a Special
Advocate cannot tell an individual the nature of the evidence
against him or her and the fact that the provenance of the closed
material may not be fully explored clearly undermine Article 6
of the ECHR, which protects the right to a fair trial, and the
control order system as a whole.
16. Police power to hold passports and travel
documents at ports
16.1 BIRW disagree with the proposed power
to hold travel documents for those individuals of whom it is believed
are travelling aboard for terrorist purposes. We do not believe
that an additional power to hold documents is appropriate. As
with control orders, either the police should have enough evidence
to arrest an individual, or an individual should be able to travel
unhindered.
16.2 The Government's proposals do not specify
the length of time for which individuals could be held nor the
nature of this detention. Would individuals be held in a secure
room at the port? Would they have access to legal advice? Would
they be held in police custody? What protections and rights would
such individuals be afforded? The implementation of such measures
will hinder the travel of innocent people, place an undue burden
on police at ports, and encourage the stigmatisation of communities.
BIRW consider that it would be more appropriate for the Government
to focus resources on gaining accurate and reliable intelligence
about suspects rather than introducing cumbersome legislation
which will prove unwieldy and bureaucratic in practice. The general
public are already beginning to rebel against the relatively non-intrusive
security measures adopted at airports, and to resent being treated
as potential terrorists on a regular basis. If travel is to be
make even more irksome for all passengers in order to deal with
a small number of terrorist suspects, there is a real risk that
people will begin to subvert security measures in order to avoid
hassle and delay, with the result that overall security will be
undermined.
16.3 We are also concerned that the use
of such a policy may lead to the employment of racial profiling.
We have seen the negative implications of this policy, when one
community is excessively targeted by the security forces, with
the Irish community in Britain in the 1970s[24].
This resulted in the gradual alienation and disaffection of young
people from this community which impacted upon the number of them
prepared to engage in terrorism. The revival of the "sus
laws" (based on s.4 and 6 of the Vagrancy Act 1824) in the
1970s contributed to Afro-Caribbean discontent and eventual rioting
in the 1980s. We caution the security agencies to be wary of utilising
racial profiling in the use of stop and search and in the wider
development of counter-terrorism strategy. We draw their attention
to a recent resolution on combating racisms and racial discrimination
in policing from the European Commission[25];
this makes several clear recommendations about racial profiling,
including that Governments should ensure police are adequately
trained to avoid racial discrimination.
17. Transfer of Functions to the Advocate
General (Northern Ireland)
17.1 BIRW has no objection to the transfer
of functions to the Advocate General (Northern Ireland) as outlined
in the Justice (Northern Ireland) Act 2002. However, we are interested
to know what inspection and accountability mechanisms will be
responsible for this office. It is unclear which of the Attorney
General's functions, with regard to reserved and excepted fields,
will stay with the Attorney General for England and Wales. It
appears to us that the Attorney General will not have any power
in relation to issues to national security or to supervise the
activities of the Public Prosecution Service.
18. Conclusion
18.1 British Irish RIGHTS WATCH have expressed
concerns, in submissions to both the Joint Committee on Human
Rights and the Home Affairs Committee, about the enactment of
draconian legislation in response to the threat of terrorism.
The ill-effects of such a policy can be clearly seen in the conflict
in Northern Ireland. The Government would be well-advised to examine
developments in this conflict and to draw key lessons from that
experience, rather than simply repeating the mistakes of the past.
18.2 We draw the Government's attention
to the need to take a holistic approach to counter-terrorism measures.
Many of those involved in terrorism are second-generation British
nationals. To prevent the development of violent extremism, the
Government should be looking, in parallel with legislation, at
issues such as housing, employment, education, especially in human
rights, and political representation to understand and mitigate
the alienation of young British Muslims. This alienation is not
going to be solved solely by restrictive legislation but rather
by the positive, inclusive policies which engage with young Muslims
and bring them into the mainstream. Criminalising or demonising
communities via specific policies such as the use of higher sentences
for terrorists who are convicted of non-terrorist-specific offences
is not appropriate. Similarly, allowing the rule of law and protection
of human rights to be submerged by counter-terrorism legislation
will only fuel rather than prevent future terrorist attacks.
August 2007
8 Nineteenth Report of Session 2006-07, Counter Terrorism
Policy and HumanRights: 28 days, intercept and post-charge questioning,
Joint Committee on Human Rights, July 2007, p. 2 Back
9
Cited at Research reports "dramatic jump" in new
law since 1997, Legal Action Group, July 2007,http://www.lag.org.uk/Templates/Internal.asp?NodeID=91991 Back
10
BIRW submission to the Home Affairs Committee's Inquiry into Counter-Terrorism
Proposals, July 2007 Back
11
Nineteenth Report of Session 2006-07, Counter Terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning,
Joint Committee on Human Rights, July 2007, p. 14 Back
12
JJ and others v Secretary of State for the Home Department [2006]
EWCA Civ 1141; Government's control order "problem",
by Jon Silverman, BBC News, 28 June 2006 Back
13
Q & A: Control orders, by Dominic Casciani, BBC
News, 24 May 2007 Back
14
Hooding, sleep deprivation, white noise, food deprivation, and
physical abuse Back
15
Operation Banner: An analysis of Military Operation in Northern
Ireland, by General Sir Mike Jackson GCB CBE DSO ADC, Ministry
of Defence, July 2006 Back
16
In the matter of Coleman, Avery and Others, Court of Appeal,
Belfast 26 and 28 June 2007 Back
17
Options for pre-charge detention in terrorist cases, Home
Office, 25 July 2007 Back
18
Options for pre-charge detention in terrorist cases, Home
Office, 25 July 2007 Back
19
Report on the operation of the Terrorism Act 2000 by Lord Carlile
of Berriew Q.C, June 2007 Back
20
Section 58 addresses the offence of collecting information likely
to be of use to terrorists, where such information may include
a photograph and electronic, as well as paper record. Back
21
Under the terms of the Sex Offenders Register, Head teachers,
doctors, youth leaders, sports club managers and others, including
landlords, are notified on a confidential basis of the existence
of a local sex offender Back
22
Second report of the Independent Reviewer pursuant to section
14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of
Berriew Q.C, 19 February 2007 Back
23
Nineteenth Report of Session 2006-07, Counter Terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning,
Joint Committee on Human Rights, July 2007 Back
24
Suspect Community, People's experience of the Prevention of
Terrorism Acts in Britain, Paddy Hillyard, Pluto Press: 1993 Back
25
ECRI General Policy Recommendation No. 11 on combating racism
and racial discrimination in policing, European Commission
against racism and intolerance, adopted 29 June 2007 Back
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