APPENDIX 8
Memorandum submitted by Human Rights Watch
EXECUTIVE SUMMARY
1. Human Rights Watch welcomes the opportunity
to submit evidence to the Home Affairs Committee inquiry into
the government's proposals for new counterterrorism legislation.
2. This submission addresses three of the
measures set forth in the government's proposal: the extension
of pre-charge detention powers beyond 28-days; new police powers
to question suspects post-charge; and the review of the ban on
intercept evidence in court. It also reflects on the government's
policies in relation to national security deportations to risk
of torture and ill-treatment, and considers the broader impact
of counterterrorism measures that infringe human rights. Supplementary
materials are annexed to this submission.[74]
3. In our assessment, the government has
yet to make a convincing case for a further extension of the time
suspects may be held before being charged beyond the current 28
days. If the case were made that the current powers are insufficient,
then broadening the power of the police to question suspects after
they have been charged would be a better alternative, provided
it was subject to appropriate safeguards.
4. Human Rights Watch welcomes the announcement
of a Privy Counsellor review of the use of intercept evidence.
Relaxing the ban on the admissibility of intercept evidence in
court will remove a key obstacle the criminal prosecution, and
should lessen the need to resort to administrative measures to
combat terrorism.
5. Alongside efforts to enhance the criminal
justice system as a means of tackling terrorism, the government
should abandon its policy of seeking to deport terrorism suspects
to places where they face the risk of torture and ill-treatment.
In our assessment, the policy is undermining the global ban on
torture, and undermining Britain's reputation at home and abroad.
6. Human Rights Watch considers it important
to assess counterterrorism proposals in terms of their likely
effects on efforts to prevent radicalization and recruitment,
a central plank in the UK's counterterrorism strategy since the
London transport attacks of July 2005. As the Prime Minister has
said, it is necessary to win the battle of hearts and minds if
terrorism is to be confronted successfully.
7. In our assessment, abusive measures that
violate human rights—such as indefinite detention without
charge, and efforts to weaken the global ban on torture and ill-treatment—erode
public trust in law enforcement and security services, and alienate
communities whose cooperation is critical in the fight against
terrorism. [For more detail, see Hearts and Minds: Putting Human
Rights at the Center of United Kingdom Counterterrorism Policy
(attached as supplementary material)].[75]
EXTENDED PRE-CHARGE
DETENTION
8. Human Rights Watch strongly opposed the
extension of pre-charge detention from 14 to the current 28 days
under the Terrorism Act 2006. The government failed convincingly
to demonstrate that such an extension was necessary. In our view,
the case for further extending pre-charge detention to as long
as 90 days has not been made. Unless it can be shown to be strictly
necessary and proportionate, a further extension will threaten
to become a form of arbitrary detention in breach of the right
to liberty and security of the person under article 5 of the European
Convention on Human Rights and article 9 of the International
Covenant on Civil and Political Rights.
9. To our knowledge, the full 28-day maximum
has been used only once since it entered into effect, while the
police made use of the previous 14-day limit in only 3% of terrorism-related
arrests between January 2004 and September 2005. The then-Home
Secretary John Reid conceded in February 2007 that the 28 day
limit had yet to prove inadequate. It has not been satisfactorily
explained why a further extended period is necessary. The current
period is already the longest in the European Union. [For more
detail, see Hearts and Minds: Putting Human Rights at the Center
of United Kingdom Counterterrorism Policy (attached as supplementary
material)].[76]
POST-CHARGE
QUESTIONING
10. Investigation into complex terrorism
cases may take significant time and expertise. If the government
were convincingly to demonstrate that the current period of pre-charge
detention is insufficient, then broadening police powers to question
suspects after charges have been brought could be an acceptable
alternative to further extending pre-charge detention, provided
it is subject to proper safeguards.
11. If the scope of post-charge questioning
is broadened, it is important to ensure that there are adequate
safeguards to protect the rights of the accused, including the
presence of legal counsel at all times and a very narrow limit
on the adverse inferences that may be drawn at trial from the
refusal to answer questions. It may be reasonable to allow adverse
inferences to be drawn from the failure of the suspect to mention
key facts later relied on in his or her defense, as is currently
allowed under pre-charge questioning. Anything broader would compromise
the right to silence. [For more detail, see Hearts and Minds:
Putting Human Rights at the Center of United Kingdom Counterterrorism
Policy (attached as supplementary material)][77]
INTERCEPT EVIDENCE
12. Human Rights Watch welcomes the announcement
of a Privy Counsellor review of the ban on intercept evidence
in court. There is a broad consensus that the ban is a disproportionate
response to a genuine concern over disclosure of intelligence
sources and methods, and that relaxing the ban would remove what
the Director of Public Prosecutions has described as "one
of the main obstacles" to prosecuting terrorism suspects.
13. The UK is the only western nation with
a total ban on the use of intercept evidence. The effective use
of such evidence to prosecute terrorism offenses in other common
law jurisdictions (including the United States, Canada and Australia)
demonstrates that the fear that intercept capabilities would be
compromised by lifting the ban is unfounded. Reasonable protocols,
similar to the public interest immunity safeguards that already
exist in the UK, are in place to protect methods, sources and
informants. The procedures vary from country to country, but all
essentially allow the court to adopt measures, upon application
by the prosecution, to prevent the unnecessary disclosure of sensitive
intelligence material.
14. For example, the court may allow the
prosecutor to delete any material that would compromise the identity
of confidential informants or intelligence officers or negatively
affect ongoing investigations (Canada), or allow the use of summaries
in lieu of actual documents provided that the summaries give the
defendant substantially the same ability to make his or her defense
(United States). Moreover, timely reviews and legislative amendments
can address rapid changes in communications technology to ensure
that interceptions are carried out lawfully and usefully for the
purposes of prosecution. [For more detail, see Hearts and Minds:
Putting Human Rights at the Center of United Kingdom Counterterrorism
Policy (attached as supplementary material)].[78]
THE PROHIBITION
ON RETURNS
TO RISK
OF TORTURE
AND ILL-TREATMENT
15. As it makes more effective use of the
criminal justice system in the UK, the government should abandon
its efforts to deport foreign terrorism suspects it has thus far
been unwilling or unable to prosecute. The UK has signed Memorandums
of Understanding (MoUs) with Jordan, Libya, and Lebanon to permit
the deportation of terrorism suspects based on assurances of humane
treatment upon return, and sought to negotiate similar agreements
with Algeria and other North African and Middle Eastern governments.
All of these countries have a known pattern of torture, particularly
for those suspected of involvement in terrorism or radical Islamism.
The memos include arrangements for post-return monitoring, which
the UK government wrongly claims provides an added measure of
protection. Experience shows that diplomatic assurances from governments
that routinely practice torture are an ineffective safeguard against
such abuse. [For more detail, see "Diplomatic Assurances"
against Torture—Questions and Answers (attached as supplementary
material)].[79]
16. The UK government has intervened in
at least two cases before the European Court of Human Rights (Ramzy
v. The Netherlands and Saadi v. Italy) in an attempt to convince
the justices of the Court to introduce a "balancing test"
in national security cases that would weigh the risk of ill-treatment
against the alleged risk posed by the person subject to removal.
These interventions are an effort to overturn the landmark 1996
judgment in the case of Chahal v. UK, in which the European Court
of Human Rights reaffirmed the absolute prohibition on sending
people back to the risk of torture and ill-treatment.
17. The government's reliance on untrustworthy
diplomatic assurances and its manifest effort to weaken the European
standard on non-refoulement effectively undermine the international
prohibition on torture and ill-treatment, and are damaging to
the UK's standing at home and abroad. [For more detail, see Dangerous
Ambivalence: UK Policy on Torture since 9/11(attached as supplementary
material)].[80]
July 2007
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