Joint Committee On Human Rights Eighteenth Report


Annex A: Note prepared for the Joint Committee on Human Rights by Jago Russell of the Scrutiny Unit, House of Commons

Part IV Anti-Terrorism, Crime and Security Act 2001: Alternatives Adopted by Other Jurisdictions

Scope

1. The Explanatory Notes to the Ant-Terrorism, Crime and Security Act 2001 describe Part IV of the Act as containing measures to "deal with people in the UK whose presence is not conducive to the public good".[101] It enables foreign nationals, who cannot be removed from the United Kingdom to be detained, potentially indefinitely, if they are reasonably believed to pose a risk to national security or suspected of involvement in international terrorism.

2. These provisions are justified on the basis that they are necessary, as a last resort, where:

(a) Prosecution is impossible, including because:

(i) The material forming the basis of their case would be inadmissible, for example because it is hearsay, or because of the way in which it was obtained, i.e. intercept evidence;[102]

(ii) Disclosure of information would put sources at risk, expose and limit the effectiveness of surveillance techniques, and threaten international relations;

(b) Prosecution would not address the potential risk posed by the defendant, i.e. the available maximum sentences are considered to be too short;[103] and

(c) It is not possible to remove the person from the UK, for example, because of the risk that they would be subjected to torture or to inhuman or degrading treatment.

3. The Government has acknowledged that "it is … important that this debate [on alternatives to Part IV] is informed by an analysis of the different ways in which other mature liberal democracies have addressed this issue".[104] The aim of this note is to provide an overview of some of the ways in which the law and legal practice of other jurisdictions address the matters used to justify Part IV. It focuses, in particular, on measures that facilitate the criminal prosecution of suspected terrorists. It does not, for example, consider the ways in which other countries have adapted their immigration laws in response to the threat of international terrorism.

Overview

4. None of the countries surveyed (with the exception of the US) has resorted to the indefinite detention of foreign nationals who are suspected terrorists. Most jurisdictions have, instead, sought to deal with those who pose a threat to national security or who are suspected of involvement in international terrorism by means of criminal prosecution. A variety of special measures have been taken to facilitate prosecution in such cases and to overcome the difficulties cited by the UK Government to support of Part IV as an alternative to prosecution:

New Terrorism-related Criminal Offences: Most jurisdictions have created new offences to enable the prosecution of suspected terrorists. Some have adopted terrorist offences for the first time (Australia, Belgium, Canada, Denmark, Finland and Sweden). Others, particularly those with a history of domestic terrorism have extended existing laws following September 11th (France, Germany, Italy, Spain and the US).

New Investigative Techniques: A number of countries have extended the techniques available in the investigation of terrorist crimes. Notable examples include: (i) the use of intercept evidence (Australia, Austria, Canada, Denmark, Finland, France, Germany, Italy, Spain and the US); and (ii) extended search powers (Canada, Denmark, France, Italy, Spain and the US). Many countries have relaxed the normal procedural safeguards for such techniques in the context of terrorist investigations.

Protecting Sensitive Information: The US has adopted a procedural statute providing the state with greater control over the use and disclosure of sensitive and confidential information in court. Australia is considering the adoption of a similar procedural statute, following an Australian Law Reform Commission study of measures taken by other jurisdictions. Canada has also amended its evidence laws to protect sensitive information.

Criminal Procedure: Some countries have established specific judicial procedures in the context of terrorism-related prosecutions. For example, Canadian law now permits investigative hearings, which enable judges to compel even self-incriminating evidence; and France now allows videoconferencing technology for witness confrontations to avoid unnecessary transfers. Some jurisdictions have also relied on existing procedures that could potentially overcome some of the issues used to justify Part IV (such as the use of Juge d'Instructions in France).

Sentencing: Many countries impose higher sentences for terrorism-related offences than for equivalent offences without a terrorist motivation (Austria, Belgium, Canada, Denmark, France, Italy, Spain). France, Italy and Spain also have the statutory assurance of lower sentences for those who have committed terrorist offences but who renounce terrorism and cooperate with the police.

Detainee's Rights: A number of jurisdictions have permitted longer pre-charge detention and longer periods without access to legal counsel in cases of suspected terrorism (Australia, France, Spain and the US). Canada has also adopted a system of preventive detention, though this is subject to more time limits and safeguards than Part IV and does not apply solely to foreign nationals.

Overview of the Relevant Law and Legal Practice of other Jurisdictions

Australia

5. In 2003, the United Nations Counter Terrorism Committee (the "UN CTC"), asked "whether Australian laws dealing with terrorism provide for special courts, special conditions relating to the grant of bail to terrorists and their supporters and the use of undercover operations".[105] In its Fourth Report to the UN CTC, Australia responded that: "Australia's usual criminal justice system applies to terrorism offences."[106]

Terrorism-related Criminal Offences

6. Although Australia did not have specific terrorism-related criminal offences prior to September 11, it did have a number of general criminal offences, available for the prosecution of those involved in terrorist activities.[107] With effect from 6 July 2002, a number of new offences were introduced into the Criminal Code Act 1995. These offences relate specifically to terrorism and use new statutory definitions of "terrorist act"[108] and "terrorist organisation".[109] The new offences include, in summary:

Section 101.1: Engaging in a terrorist act - (life imprisonment);

Section 101.2: Providing/receiving training connected with a terrorist act (15 or 25 years imprisonment);

Section 101.4: Possessing a thing connected with a terrorist act (15 or 10 years imprisonment);

Section 101.5: Collecting or making a document connected with a terrorist act (15 or 10 years imprisonment);

Section 101.6: Doing things in preparation for or planning a terrorist act (life imprisonment);

Intentionally directing the activities or a terrorist organisation, knowing it is a terrorist organisation (25 years imprisonment);

Intentionally being a member of a terrorist organisation (10 years imprisonment);

Intentionally recruiting a person to a terrorist organisation (25 years imprisonment); and

Intentionally providing training to or receiving training from a terrorist organisation, knowing it is a terrorist organisation (25 years imprisonment).

New investigative powers

7. A number of new measures were introduced in Australia post-September 11 to assist in the investigation and prevention of terrorist attacks. These include:

Increased powers for the Australian Security Intelligence Organisation (the "ASIO"),[110] including:

?  To question people who may have information about terrorism, even if not themselves involved in terrorist activity;

?  The power to seek and detain people for up to 48 hours without legal representation, in serious cases and where necessary to prevent a terrorist attack;

?  The power to limit the contact that a person detained or taken into custody by the ASIO may have with legal counsel. The ASIO can prevent a suspect contacting a particular lawyer where it is satisfied that allowing access may alert a person involved in a terrorism offence to the investigation or may result in the damage or destruction of things that may be required to be produced under the warrant. Contact with a legal adviser must also be made in a way that can be monitored by a person exercising authority under the warrant.

A warrant must be sought, with the consent of the Attorney General, for such powers to be used.

The Telecommunications (Interception) Act 1979 was amended to include terrorism offences as offences for which interception warrants can be obtained. It also permits access to unread emails in some circumstances.

Classified and Security Sensitive Information:

8. The risk that confidential information will become public is a major disincentive against the criminal prosecution of suspected terrorists. In this context, the Australian Attorney General asked the Australian Law Reform Commission (the "ALRC") to inquire into and report on measures to protect classified and security sensitive information in the course of investigations and legal proceedings as well as in other contexts. A major focus of the inquiry was the use of such information in court, particularly in criminal prosecutions. The ALRC is expected to deliver its final report and recommendations to the Attorney General at the end of 2004.

9. As part of its inquiry, the ALRC considered the existing Australian law designed to protect confidential information and measures taken by other jurisdictions. The most relevant information regarding foreign law and practice is discussed in the context of the relevant jurisdictions (namely the USA, Canada and Germany).

Existing Law

10. The ALRC Background Document and Discussion Paper[111] consider the variety of legal provisions and judicial practices in Australia designed to protect classified information in criminal proceedings. These include:

Confidentiality Undertakings and Orders: The ALRC reports that lawyers are frequently called upon to keep court matters confidential and can be bound by undertakings to the court.[112] In addition to express undertakings, parties to litigation are subject to implied undertakings to the court not to use or disclose information that they have received through the court's compulsory processes, except for the purpose of the relevant proceedings. Breach of such undertakings is punishable by the court and is also subject to procedures before disciplinary bodies.

Hearings "in camera": Section 93.2 of the Criminal Code Act 1995 allows a judge or magistrate, at any time before or after the hearing of an application or proceedings, to make any of the following orders where it is satisfied that it is in the interests of national security or defence to do so: (a) an order that some or all of the public be excluded during the whole or part of a hearing; (b) an order that no report of the proceedings be published; and (c) such order or direction as is necessary for ensuring that no person has access to documents used in the application or the proceedings. Similar powers allowing for in camera hearings also exist in other Australian legislation, including the Crimes Act 1914 and the Federal Court of Australia Act 1976.

Identity of an informant: Section 15XT(1) of the Crimes Act 1914 requires courts to prevent the identity of an informant being disclosed by ensuring that certain parts of proceedings are held in private and by making orders relating to the suppression of the publication of evidence.

Public Interest Immunity: A claim for public interest immunity is one of the most common ways in which information can be protected in Australian court proceedings:[113]

?  The common law formulation of public interest immunity provides that "the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to do so".[114] It requires the courts to operate a balancing test between the public interest and the need for disclosure, to ensure justice in a particular case.

?  The common law on public interest immunity is largely reproduced in Section 130 of the Evidence Act 1995, which applies to the admission of evidence.[115] Section 130(1) provides that the party arguing that the evidence is subject to public interest immunity must show that the public interest in preserving secrecy or confidentiality outweighs the public interest in admitting the information or document into evidence. Mechanisms available to protect evidence governed by the statute include: (a) evidence being taken in camera; (b) restriction on the publication of evidence; (c) suppressing the names of parties and witnesses; (d) limiting access to evidence to a party's legal advisors; and (e) absolute immunity.

?  The DPP's Statement on Prosecution Disclosure provides that an investigating agency is to provide the DPP with a schedule of potentially disclosable material that the agency considers may be immune from disclosure to the defence on public interest grounds, together with reasons supporting that conclusion.

Ministerial Certificates: Only the Northern Territory maintains the requirement for courts to accept, without question, a government-issued certificate that it is in the public interest for a document or secret not to be disclosed as evidence.[116] In general, the Australian courts themselves balanced the public interest in suppressing confidential information against the public interest in disclosing that information.

Security Clearances of Lawyers: Between 2002 and 2003, the Australian Government attempted to introduce security clearing for lawyers "to overcome the procedural and evidentiary problems associated with prosecuting criminal offences involving sensitive or classified material".[117] These attempts failed and, except in ASIO cases discussed above, a defendant's choice of lawyer is unrestricted and lawyers are not required to be security-cleared.

Proposed National Security Procedures Act

11. In its Discussion Paper,[118] the ALRC suggested key legislative amendments to facilitate the protection of confidential information in legal proceedings (criminal, civil and administrative). It proposed is the enactment of a statutory procedural framework for the disclosure and admission of classified and security sensitive information in court. It is intended that this would apply to all stages of proceedings in which classified or sensitive national security information is used or is likely to emerge and to cover all parties to those proceedings. It would apply to both civil and criminal proceedings and to oral and written evidence. Its main objectives are to flush out issues relating to the use of classified information early in the proceedings and to enable the case to proceed, as far as possible, with all admissible evidence.

12. The ALRC has stressed that its proposals are only intended to apply to cases where classified or sensitive national security information will arise and that they are not intended to form part of the statutes that relate to the procedural and evidential rules governing Australian courts generally. It comments that:

"[t]he abridgement of human and procedural rights in order to suppress information in the interests of national security and defence should be used only in cases where that security and defence would suffer real harm if the usual practices of open justice and the full disclosure of evidence were used."[119]

It also comments that the procedures should be subject to the overriding proviso that all parties are given a fair hearing or trial and that any departures from the usual standards of judicial process are limited to those strictly necessary to protect the national interest.

13. The ALRC has recommended that the US Classified Information Procedures Act ("CIPA") should be used as a model for the Act.[120] There are, however, some key differences between CIPA and ALRC's proposed legislation. The National Security Procedures Act proposed by the ALRC would:

Cover all national security information and sensitive national security information;

Require each party (including the defence) to any proceedings to inform the court and the other parties as soon as it becomes aware that any information covered by the new Act is likely to emerge at any stage in the case;

Require the court, once notified, to convene a directions hearing to review the issues that arise in relation to the handling of the sensitive material;

Require all parties to file and serve lists of all classified or sensitive national security information that they reasonably anticipate will be used in the proceedings, either in their own case or in rebuttal to the case of any other party;

Empower the court to make directions in relation to the detail of the lists, the recipients of the lists, the use that may be made of the information contained in them and the degree of protection that must be given to them;

Give the court power to make orders governing the handling of that information over the course of the proceedings, either on its own motion, on the motion of one of the parties or on the motion of the Attorney General. The options available to the court would include:

?  Determinations of the relevance and admissibility of sensitive information; and

?  Orders for substitution of the classified information with unclassified information; for substitution with statements of fact and statements of admission; for summaries of the sensitive information; for redacted or edited evidence; and procedures for concealing the identity of any witness or other person;

The court may decide to hear some or all of the proceedings in the absence of the public (Under CIPA this decision would be taken by the Attorney General rather than determined by the court);

Require the court to give full written reasons for the measures it takes under the Act,[121] as well as to prepare a full transcript of any proceedings heard in the absence of any one or more of the parties or of the public;[122]

Give the Attorney-General the power to issue a certificate stipulating that certain information is not to be disclosed to any, or any specified, person in the legal proceedings;[123]

Give the court the power to dismiss, stay, discontinue or strike out all or any part of a party's case, where required in the interests of justice.

14. If a party fails to comply with the requirements of the Act or of any order made under it, the court would have a wide range of powers including: preventing a party seeking to use certain information; preventing a party calling or examining certain witnesses; and staying, discontinuing, dismissing or striking out a party's case in part or whole. In addition, the ALRC recommends that the court should retain the power to require undertakings from any party to the proceedings and/or their legal representatives and that the existing law on public interest immunity should be retained.

Centralised Courts

15. The ALRC considered the option of centralising cases involving classified information in a single court (or a small number of courts) "so that expertise could be collected in one place".[124] It comments that this would enable court staff to be trained and security cleared. However, the ALRC concluded that geographical and constitutional difficulties[125] outweighed "the logical and practical attractions".[126]

Austria

Terrorism-related Criminal Offences

16. Provisions of the Austrian Penal Code, which pre-existed September 11th, criminalize a number of acts that are characteristic of terrorism, irrespective of whether they are committed with a terrorist motivation. For example, participation in a criminal organisation is illegal and carries a sentence of 6 months to 5 years (Section 278a); and recruitment of members to an armed association constitutes a criminal offence and carries a 3-year sentence (Section 279). There are also a number of offences regarding the supply and acquisition of weapons, crimes against the person and crimes of conspiracy.

17. Post-September 11, the Austrian Penal Code was extended to include a number of specific terrorist offences.[127] These include the leading of and the participation in a terrorist group (Section 278b) and the financing of terrorism (Section 278d). These offences apply even if no terrorist act has been committed, for example if members are recruited with a view to committing terrorist acts later on. A more general provision was also added to the Penal Code, which applies more severe penalties to existing offences where there is a terrorist element.

Investigative Techniques

18. A wide range of investigative techniques is permitted under the Austrian Law on Police Practice (LPP) and the Criminal Procedure Code (CPC). Such techniques include undercover operations (Section 54 LPP), interception of communications (Sections 149a-149c CPC) and electronic surveillance (Sections 149d-149h CPC). These investigative techniques may only be used if they are necessary to prove a serious criminal offence and some of these powers, including the interception of telecommunications and electronic surveillance, would generally require a court order.

Belgium

Terrorism-related Criminal Offences:

19. A new terrorist law was introduced in Belgium on 19th December 2003. This added a definition of "terrorist offence" and "terrorist group" to the Penal Code and created offences of "participation in a terrorist group" and "aiding and abetting the commission of a terrorist offence" (Articles 137 to 141). These provisions criminalize the provision of information or material resources to terrorist groups or any form of financing of such groups as well as the recruitment of terrorists. The Penal Code also provides for the prosecution of attempted terrorism or the mere act of preparing for a terrorist act. Furthermore, terrorist motivation is treated as an aggravating factor in sentencing.

Canada

Terrorism-related Criminal Offences:

20. On 18 December 2001, a wide-ranging Anti-Terrorism Act was enacted in Canada.[128] The Act amended the Criminal Code, creating a number of terrorist-related offences, including:

To harbour or conceal anyone who has carried out a terrorist act or to enable a person to facilitate or carry out a terrorist act (Section 83.23);[129]

Financing of terrorism (Sections 83.02, 83.03 and 83.04);

Dealing in the assets of an entity designated as a terrorist organisation (Sections 83.08, 83.1 and 83.11);[130]

Participating in the activities or a terrorist group (Section 83.18);

Facilitating a terrorist activity (Section 83.19); and

Instructing the carrying out of a terrorist activity (Sections 83.21 and 83.22).

The penalties for terrorist offences are severe and range from up to ten years imprisonment to life imprisonment.

Investigative Tools

21. The Act provides law enforcement and national security agencies with new investigative tools. The Criminal Code allows the police to gather information and criminal intelligence by technical means for the express purpose of pursuing a criminal prosecution. Available techniques include electronic surveillance (Criminal Code, Part VI), search and seizure (Criminal Code, Part XV), personal surveillance and anonymous informants. In terrorist cases, the normal restrictions on the use and duration of electronic surveillance are relaxed.[131]

22. The use of these tools is subject to substantive and procedural safeguard and is subject to the safeguards contained in the Canadian Charter of Rights and Freedoms.[132] Search or surveillance operations must, except in emergency situations, be authorised in advance by an independent judicial officer.

Criminal Procedure

23. The Anti-Terrorism Act restricts the right to silence and to a public hearing in some circumstances:[133]

Investigative Hearings: The Act created a form of "investigative hearing" which was entirely new in Canadian law. The new section 83.28 of the Criminal Code authorizes an officer, who has obtained the Attorney General's prior consent, to apply ex parte to a judge for an order that a certain individual or individuals attend a hearing at which they are obliged to answer questions or produce evidence. These hearings may only be held where a judge is satisfied that there are reasonable grounds to believe that a terrorism offence has been or will be committed. They are held in camera. Those compelled to give evidence need not themselves be suspected of terrorist activities.

Evidence under Compulsion: The aim of the investigative hearing is to permit the state to compel testimony from a witness during the fact-finding stage of an investigation into a terrorist offence. Subsection 83.28(10) of the Criminal Code removes the general right to refuse to testify or otherwise provide evidence on grounds of self-incrimination in the context of investigative hearings. However, those compelled to give evidence are immune from any criminal prosecution arising from that evidence, other than for perjury or giving inconsistent testimony. Information given at such proceedings can be used in civil proceedings.

The Supreme Court of Canada heard a constitutional challenge to these provisions at the end of last year. The Court reserved judgment which is expected to be announced later this year.

Classified and Security Sensitive Information

24. The Act contains a number of measures specifically designed to control the disclosure of confidential information during criminal prosecutions:

Clause 34 amends subsection 486(1) of the Criminal Code to permit a judge to exclude members of the public from a court if it is "necessary to prevent injury to international relations";

Clause 43 of the Act adds several provisions to the Canada Evidence Act:

?  Subsection 38.06(1) permits a judge to order public disclosure of information arising from a judicial proceeding provided "such disclosure is not injurious to international relations or national defence or security";[134]

?  Subsection 38.13(1) allows the Attorney-General to issue a certificate ordering non-disclosure at any time "for the purposes of protecting international relations or national defence or security";

?  Subsection 38.13(2) provides that, in cases involving the National Defence Act, the Attorney-General can only order disclosure with the approval of the Minister of National Defence; and

?  Section 37.21 provides that hearings to determine objections and appeals in relation to court orders authorising disclosure of information are to be heard in camera and that the court may give any person an opportunity to make representations ex parte.

25. Where necessary, the anonymity of informants can be achieved in a number of ways:

Canadian law requires disclosure of information held by prosecutors to defence counsel to ensure a fair trial, but identities and other details of human sources who provide information are protected from disclosure unless the informant actually testifies in court;

Legal counsel would normally have a right to review sworn documents and examine the principal informant, however, there is no right to cross-examine a confidential informant;

A document used to obtain warrants and authorisation under the Criminal Code can be ordered sealed by a court and, if given to the defence, are edited by the judge to remove the identities and other information about the confidential informants; and

The Criminal Code contains provisions allowing the court, in certain cases, to order that a witness testify outside the courtroom, if the judge thinks that the order is necessary to protect the safety of the witness.

26. Where non-disclosure of sensitive information means that those accused of a criminal offence would not have a fair trial, the remedy would not be disclosure of the information but the discontinuance of proceedings. The Canada Evidence Act provides that a judge presiding at a criminal trial can make any order that s/he considers appropriate in the circumstances to protect the right of an accused to a fair trial, including: (a) an order dismissing specified counts or permitting the case to proceed only in respect of a lesser offence; (b) an order to stay the proceedings; and (c) an order finding against any party on any issue relating to information which cannot be disclosed.

Preventive Arrest:

27. The Anti-Terrorism Act provides a power to arrest and detain, on a preventive basis, where there are reasonable grounds to suspect that the arrest and detention is necessary to prevent a terrorist activity. This power is subject to significant safeguards and limits. Warrantless arrest is permitted, but only in exigent circumstances - otherwise, arrest requires the consent of the Attorney General as well as an arrest warrant. Following arrest, the subject must be brought before a judge, normally within 24 hours, and the State must show cause why s/he should not be released. If the decision is against release, the court would impose reasonable supervisory conditions. If the subject agrees to the recognisance, they must be released, otherwise they can be held in custody for a maximum of one year.[135]

Denmark

Terrorism-related Criminal Offences

28. In June 2002 a new anti-terrorism law was enacted amending a variety of existing Danish laws (Law No. 378, 6 June 2002). This created a special section on terrorism in the Danish Criminal Code (straffeloven), containing terrorism-related offences. Such offences include very serious existing offences committed with the aim of disturbing the established order and intimidating the population, the maximum sentence for which are life imprisonment. It also created a separate offence of financing terrorism, carrying a penalty of up to 10 years imprisonment.

Investigative Powers

29. Chapter 71 of the Administration of Justice Act permits the police to intercept telephone calls or other communications to obtain information about the destination and source of communications and to intercept and read letters and other mail deliveries. These powers may only be used where they are of crucial importance for the investigation of a serious crime. They also require a court order, which sets limits on the scope and timescale of the interceptions.

30. The June 2002 law introduced amendments to Section 786 of the Administration of Justice Act, aimed at ensuring rapid and effective police access to the information provided by the interception of communications. They require telecommunications companies and internet service providers to record and store information on telecommunications and internet communications, which are of relevance to police investigation, for 12 months. These requirements to not, however, extend to the content of communications. The law also permits law enforcement agencies to install monitoring software on the computers of persons suspected of serious crimes, subject to the issue of an interception warrant.[136] Other investigative powers which were enhanced include a right to make secret searches in some serious cases, the right to carry out several individual searches over a period of up to four weeks and a power to order a third party to surrender documents.

Finland

Terrorism-related Criminal Offences:

31. A number of terrorist offences have been introduced into Finnish law since September 11:

An Act on the implementation of the Convention for the Suppression of the Financing of Terrorism was approved by Parliament in June 2002. Amongst other things, it amended Section 34 of the Penal Code to establish the financing of terrorism as a criminal offence.

In January 2003, the Finnish Parliament passed a Bill, inserting a number of new terrorist offences into the Penal Code. The new chapter 34a of the Penal code sets out the sentences to be applied to terrorist offences and their planning. It contains offences of directing a terrorist group and of promoting a terrorist group.[137]

Investigative Techniques

32. The Finnish Coercive Measures Act has been amended to increase the means available to the police in the context of criminal investigations. A general condition for the use of these investigative methods is that the information obtained can be assumed to be significant in the investigation of the offence. Many of these methods also require court authorisation. Two key means of acquiring information in the context of suspected terrorism include:

Telecommunication interception and monitoring; and

Technical listening, viewing and homing, which may, in limited circumstances, be used in homes.

33. The Office of the Prosecutor General, the central administration for the prosecuting service, is responsible for the prosecution of terrorist offences. In 2003, the Office designated one of its state prosecutors as responsible for the prosecution of offences relating to organised crime and terrorism. Finland has reported to the UN CTC that that prosecutor regularly participates in strategy and investigation meetings organised by the police.[138]

Classified and Security Sensitive Information

34. The Code of Judicial Procedure provides that a witness or injured party may be heard in court without the presence of a party or the public if the court deems this appropriate and necessary, inter alia, to protect the person against a threat to life or health. In such cases, a witness may also be heard in the main hearing by means of video or other applicable technical means. The Criminal Procedure Act and the Code of Judicial Procedure lay down certain restrictions on the disclosure of the contact information of parties and witnesses.

35. The Police Act provides for the right of police officers to remain silent. When being heard as a witness or otherwise, police officers are not obliged to reveal the identity of any person who has provided them with confidential information during their employment or to reveal confidential tactical or technical methods. Nor are police officers under an obligation to reveal the identity of a person who was involved in undercover activities if the disclosure of the information would endanger the undercover activities concerned or would significantly endanger the handling of similar future duties.

France

36. Since September 11, France has built upon its extensive, pre-existing anti-terrorism legislation, the cornerstone of which is Law No 86-1020 passed on 9 September 1986. The 1986 Law contains a body of substantive legislation and procedural measures designed to counteract terrorism.

Terrorism-related Criminal Offences

37. French law provides for the prosecution of all terrorist acts. These are defined as independent offences and carry heavy penalties. The offences normally consist of an existing criminal offence, committed "in relation to an individual or collective undertaking that has the aim of seriously disrupting public order through intimidation or terror". The French definition of a terrorist offence is, therefore, wider than an actual terrorist attack. The list of basic offences was extended throughout the 1990s to include deliberate attacks upon the life or physical integrity of the person, abductions, hijacking, theft, extortion, destruction, damage or deterioration, certain computer related crimes, offences in relation to combat groups and the manufacture or possession of weapons. Insider trading and money-laundering were also added by an Act of 15 November 2001.

38. Some offences have an autonomous legal definition including, since 1994, environmental terrorism. The financing of terrorism is also a stand-alone criminal offence under Article 41-2-2 of the Penal Code, making it possible for the offence to be prosecuted as a separate case and processed more quickly.

"Association with a wrong-doer"

39. Act 96-647 of 22 July 1996 created a new and controversial terrorist offence in France. Article 421-2-1 of the Penal Code was modified to state that: "[t]he following shall also constitute a terrorist act: participation in a group or an understanding established for the purpose of preparing, by means of one or more material actions, one of the aforementioned terrorist acts". The offence has been described as consisting:

"of preparatory participation; participation in a group or an understanding; preparation of a subsequent or ecological act of terrorism. The association therefore remains independent of the actual commission of the offences, which are its object. This is significant since it means that, as long as it is sufficiently realised, the preparation alone is enough to constitute the punishable offence".[139]

There is no requirement to link the alleged participation with any actual execution of a terrorist offence or even with a verifiable plan for the execution of an offence.[140] The offence is sufficiently widely defined to allow the prosecution of someone with only a passing interaction with a terrorist group. This is not counted as a serious offence and is subject to a maximum sentence of 10 years and to the jurisdiction of the Tribunal Correctionel rather than the Cour d'Assises. Nevertheless, as it is a terrorist offence, it is subject to the same procedural rules and investigative techniques discussed below.

Sentencing

40. The statute of limitation on prison sentences is extended in the case of terrorist offences (to life where the sentence was previously 30 years, from 20 to 30 years for serious crimes and from 15 to 20 years for other offences).[141] Rules of ordinary criminal law concerning aggravating circumstances are also applicable. Under the rules relating to the criminal responsibility of accomplices or of those who attempt to commit serious terrorist offences, life sentences are often imposed on those prosecuted for their participation in terrorist acts such as assassination, murder, serious attacks or abduction (Article 706-25-1 of the Code of Criminal Procedure).

41. A special mechanism is also available for "reformed" terrorists. This involves the remission of sentences for terrorists who change their minds and help to prevent a terrorist act, and the halving of sentences for terrorists who enable the authorities to prevent illegal activities or help the authorities prevent an offence causing loss to life.

Criminal Procedure

42. Centralised agencies: The 1986 Anti-Terrorism Law centralised the agencies responsible for counter-terrorist action within the penal system (Articles 106-16ff of the Code of Penal Procedure). The powers in question relate to the prosecution, investigation and trial of terrorist offences as defined by Articles 421-1 to 421-5 of the Penal Code.

43. Total control of the counter-terrorist offensive is concentrated in the Paris judiciary. The bodies involved include:

The Procureur de la République (the prosecuting authority);

The Juge des Libertés et de la Détention (which decides whether to detain the suspect at the request of the investigating magistrate);

The Juge d'Instruction (the investigating magistrate)—the role of the Juge d'Instruction is discussed below; and

Le Tribunal Correctionel and la Cour d'Assises (the two higher criminal courts).

44. Juges d'Instruction: The examining magistrate (juge d'instruction) hears witnesses and suspects, orders searches and authorises warrants. The magistrate's duty is to look for both incriminating and exculpating evidence and their role is independent (Code de la Procédure Pénale, art. L81). The Juge d'Instruction works in close liaison with the Public Prosecutor in the 14th Section of the Paris Court and prepares a case dossier to which both the prosecution and defence have access. As the investigation proceeds, both the defence and prosecution may request actions from the magistrate.[142]

45. If the juge d'instruction decides that there is a valid case against a suspect he puts the case to court (presided over by a different judge). On the basis of the Juge d'Instruction's case dossier, the Procureur or Avocat Général prepares a "Réquisitoire" which is presented to the court of trial. The case is then argued on the basis of the evidence which the examining magistrate has assembled and which the parties have had the opportunity to contest.

46. Rights of suspect: The special procedural regime developed in the context of the investigation and prosecution of terrorist offences has the following characteristics:[143]

Extension to four days maximum duration of police custody without charge, following which they must be presented to a judge who can extend the detention for a week (Article 706-23);

The right to see a lawyer only after 72 hours have passed (twice the time which applies under ordinary legislation);

Once the case is passed to a juge d'instruction the suspect can be detained 'indefinitely' with the regular agreement of the judge; and

The application of provisions designed to deal with the criminal trial of military matters in peace time. These remove the right to a trial by jury. For example, when the Cour d'Assises hears terrorist cases, there are seven professional judges and six assessors. Furthermore, decisions of the court are reached by a simple majority (Article 706-25).

Investigative Techniques

47. Under an Act of 10 July 1991, interceptions by security forces are authorised for the purposes of preventing terrorism. These must be carried out under the supervision of the National Commission for the Monitoring of Security Interceptions.

48. The Loi sur la Sécurité Quotidienne extended the investigative techniques available in the context of terrorism.[144] The Act:

Requires internet service providers and telecommunications companies to retain data-traffic for one year for law-enforcement purposes;

Requires that the government be given access to cryptography keys upon request;

Provides that video recordings can be made during interviews;

Provides that videoconferencing technology may be used for witness confrontations for offences relating to terrorism, in order to ensure rapid transmission of information to the investigating magistrate and to avoid unnecessary transfers;

Extends search powers in relation to vehicles and unoccupied premises;

Gives investigating magistrates unlimited discretion to issue search warrants - but these require the juge d'instruction to provide written reasons for authorising such searches (Article 706-24-1); and

Increases the power of private security firms.

49. Internal Security Law (Loi Pour La Sécurité Intérieure) became law on 12 Feb 2003. This gives the police the power to remote access, monitor and seize computers. The power is restricted to use in official investigations and requires the authorization of a magistrate. It also permits the development of a national DNA database of ordinary criminals, allows data sharing between security forces and gives foreign law enforcement agencies access to police databases.

Protection of Witnesses

50. In cases involving an offence punishable by at lease three years' imprisonment, where the hearing of a witness may endanger the life or physical integrity of the witness or of his/her family members, the magistrate can authorise the person's statements to be taken without his/her identity appearing in the case file. The defendant may question the witness using a device that renders the witness' voice unidentifiable.

Germany

Terrorism-related Criminal Offences

51. In Germany there is a general offence of terrorism. It is also a criminal offence to be a member of any terrorist association, including foreign terrorist associations; to form a terrorist association; to be a member of a terrorist association; and to support or recruit members or supporters of a terrorist association. Supporting a terrorist who is not a member of an officially proscribed group can be punished under the provisions on aiding and abetting.[145] Anyone accused of participating in terrorist activities can also be punished according to the underlying criminal provisions, depending on what specific crimes have been committed (i.e. murder, manslaughter, kidnapping). In deciding the sentence, the German courts will take the terrorist motivation of a crime into account as an aggravating factor.

52. A number of changes have been made to German terrorism laws since September 11th. The criminal offence of forming terrorist organisations has been extended to organisations based outside the country (Section 129a of the Penal Code).[146] The law on private associations has also been amended to enable religious or ideological groups to be banned.

Investigative Techniques

53. Since September 11, the investigative powers of the security authorities have been extended:

The Federal Criminal Police Office has the power to initiate investigations in serious cases of data sabotage;

The power to gather banking and telecommunications information has been accorded to the Federal Intelligence Service;

Personal and biometric data may be collected by the Government;

Surveillance regulations have been passed designed to facilitate government surveillance of fixed-line and mobile telephone calls, email, fax and SMS; and

Telecommunications operators are required to install and maintain electronic bugging equipment that can be accessed by law enforcement agencies wishing to obtain traffic data relating to named individuals, for which a court order is required.

Protection of Witnesses

54. German courts have devised a way of dealing with evidence provided by informants who have been given a new identity and can no longer appear in court. Courts accept the non-availability of these witnesses, do not require disclosure of their identity and accept, in substitution, written statements made by them combined with the in-court testimony of the police officers that interrogated them. If the court requires additional information, it formulates written questions, which are answered by the declarants without disclosing their identity to the court or the judge.

55. The Federal Constitutional Court has found this practice to be constitutional and set out requirements for the validity of a conviction based on the procedure. These include that: (a) the decision about non-availability must be made at the highest level; (b) full reasons must be given as to the non-availability; (c) evidence is required to corroborate the hearsay evidence; and (d) in evaluating the evidence the court must take account of the fact that hearsay evidence is less reliable than evidence heard in court. It is worth noting that the German civil law system is non-adversarial and that Germany does not have a hearsay rule.[147]

Ireland

Terrorism-related Criminal Offences

56. Irish law has not defined terrorism. Instead, terrorism is addressed through the general criminal law, in particular the Offences against the State Acts 1993- 1998. These Acts, inter alia, made it an offence to be a member of an unlawful organisation (7 years imprisonment). They also make specific provision in relation to evidentiary matters connected with the question of membership of such organisations. The Criminal Law Act 1976 makes it an offence to recruit another person to an unlawful organisation or to incite or invite another person to join an unlawful organisation or to take part in or support or assist its activities (10 years imprisonment). Other relevant offences include directing an unlawful organisation (10 years imprisonment) and making use of firearms or explosives (10 years imprisonment). Other general offences that could be applicable to terrorism include murder, explosives and firearms offences, hijacking as well as the criminal law governing conspiracy, aiding and abetting, and attempting to commit offences.

57. The Government introduced a Bill in 2002, which would, for the first time, provide for terrorist offences as a separate and distinct category of offence under Irish law and also provide for enhanced penalties for these offences. The Bill contains definitions of "terrorist activity", "terrorist-linked activity" and "terrorist group". An offence of engaging in terrorist activity would be created as well as an offence of attempting to engage in terrorist activity or terrorist-linked activity. These offences would require an underlying offence in Irish law to be committed with specific intent for that to be become a terrorist offence or terrorist-linked offence. This legislation has not yet been enacted and the Bill is currently at the Committee stage.

Italy

58. Under Law No. 375 of 18 October 2001, Italy expanded its existing Anti-mafia Act (Law 575/1965) to cover international terrorism.

Terrorism-related Criminal Offences

59. The Italian Penal Code has been amended to establish criminal liability for involvement in an "association with the purpose of international terrorism" (enacted as Law No. 438 of 15 December 2001). The sentence for promoting, establishing, organizing and financing terrorist associations is 7-15 years imprisonment. Participation in such an association carries a penalty of 5-10 years imprisonment and provision of transport, refuge and/or communication to such associations carries a punishment of up to 4 years imprisonment. The 2001 Law also makes it a crime merely to take part in any preparatory activities in association with others for the commission of acts of terrorism. Article 270-ter of the Penal Code introduces the crime of aiding and abetting conspirators, punishable with imprisonment for up to 4 years.

Sentencing

60. The seriousness of terrorism-related offences is indicated by the length of the maximum sentences, the fact that the Court of Assizes has jurisdiction, the fact that attenuating circumstances to reduce penalties are applicable to a lesser extent and the fact that sentences are served in high-security prisons.

61. Sentence reduction in return for co-operation (misure a favore di chi si dissocia dal terrorismo— "measures in favour of those who dissociate from terrorism"), was created in Italy in 1987 (Law of 18th February 1987, no. 34). This law provides for substantial reductions of penalties for those criminals who dissociate themselves from terrorist organisations and who give evidence to support a prosecution and cooperate with judicial enquiries. Italy has commented that "[s]uch collaboration, and what in Italy is known as "repentance", have made a fundamental contribution to combating domestic terrorism".[148]

Investigative Techniques

62. In their Second Report to the UN CTC, Italy commented that:

"Particularly important among the new legislative provisions in terms of prevention is the fact that during the course of investigations into terrorist crimes, it is now possible to carry out undercover operations under the control of the courts. The right to carry out preventive wire-tapping, under the responsibility of the Public Prosecutor and for an appropriate period of time, allows the collecting of intelligence with respect to situations which may pose a serious threat to domestic and international security."[149]

63. Law No. 375 of 18 October 2001 extends the investigative powers of the police, including as follows:

Article 3 expands the application of the regime for judicial wire-tapping and the searching of buildings or blocks of buildings to cover cases of crimes committed for the purposes of terrorism;

Article 4 introduces ad hoc provisions to permit undercover operations, to delay the issue of arrest warrants, as well as other provisions relating to the arrest of individuals and the seizure of property;

Article 5 permits "preventive surveillance"/wiretapping of communications for up to 40 days when necessary in order to prevent a crime; and

Article 6 permits the interception of communications between persons present in the same place, in connection with the search for fugitives from the law.

64. Wiretapping: The provisions with respect to wiretapping fall into two categories:

The first applies only to preventive or pre-emptive purposes, i.e. gathering intelligence and information. Evidence obtained pursuant to this set of powers cannot be used in criminal proceedings.

The second applies to the investigation and prosecution of crimes and is an instrument used to gather evidence to be used in a criminal trial. Wiretapping in the context of criminal investigations requires an order issued by the Investigating Magistrate. Section 3 of the Law of 2001 relaxes the normal rules on wiretapping (under Articles 266 et seq of the Penal Code), where the proceedings relate to crimes connected with terrorism. The amount of evidence needed in support of the wiretapping order is lower in the case of a terrorism related investigation. The evidence required to obtain an order in relation to the interception of communications in private houses is also significantly lower and, with the authorisation of the courts, it is possible to hack into computer systems or networks or intercept data exchanges between several systems.

The Netherlands

Terrorism-related Criminal Offences:

65. Recruitment to a terrorist group is dealt with under criminal law in the Netherlands as incitement to a criminal offence or violent action against public authorities (Articles 131 and 132 of the Criminal Code). It can also be prosecuted as actual or attempted incitement to commit a criminal offence (Articles 46a and 47 of the Criminal Code). Under Article 140 of the Criminal Code it is an offence to participate in a criminal organisation (this includes organisations that commit offences outside of the Netherlands).

66. Under a Terrorism Bill, which is currently before the Dutch Parliament, a separate criminal offence of participation in a terrorist organisation would be created under Article 140a of the Criminal Code, the penalty for which is more severe than the basic Article 140 offence. In addition, the maximum sentences for major offences such as murder would be increased by 50% where committed with a terrorist aim.[150]

Spain

Terrorism-related Criminal Offences

67. The Spanish Penal Code (approved pursuant to Organic Law 10/1995 of 23 November) contains a number of offences that would apply to terrorist activities. For example:

Article 576 makes it an offence to collaborate with armed groups or terrorist organisations or groups (this would include recruitment of members); and

Article 573 creates an offence of storing or possessing weapons or explosives at the service of or in collaboration with armed groups, organisation or terrorist groups.

Sentencing

68. Terrorist offences are specifically defined in the Penal Code. The penalties for those offences are more severe than for the underlying offences, committed without a terrorist purpose (i.e. Normal Murder is 15-20 years and Murder for terrorist ends is 20-30 years).

69. Article 579 of the Spanish Penal Code also provides for sentence reductions in return for co-operation.

Criminal Procedure

70. Prosecution for terrorist offences may be carried out through either ordinary or summary proceedings, depending on the penalty imposed for the act. The Organic law of the judiciary branch assigns responsibility for considering terrorist offences to a judicial body that has competence throughout Spain (the Audiencia Nacional).

71. The Spanish Criminal Prosecution Act relaxes a number of fair trial guarantees in the context of investigations pertaining to terrorism, including:

Detention by the police may be extended 48 hours beyond the initial 72 hours, provided that this is authorised by the judge (art 520 bis of the Criminal Prosecution Act);

Detainees may, by court order, be kept incommunicado (art 520 bis of the Criminal Prosecution Act);

Police authorities may detain suspected terrorists in whatever place or domicile they may be hiding or taking refuge and, in connection with the detention, may conduct searches in those places and seize effects and instruments which might be linked to the offence committed (Art 553 of the Criminal Prosecution Act); and

The interception of communications is permitted when ordered by the Minister of the Interior, provided that the relevant order is immediately transmitted in writing to the competent judge, who must either revoke or confirm it with a maximum of 72 hours and give reasons for his decision.

72. In addition, the Law on Information Society Services and Electronic Commerce (approved 27 June 2002) requires registration of all websites from which the operator derives some income. Article 12 requires communications data to be collected and automatically retained in a form to which the network provider does not have access but which can be used by law enforcement agencies if necessary for a criminal investigation.

Sweden

Terrorism-related Criminal Offences

73. Prior to the Swedish Antiterrorism law no.146 2003, Swedish legislation contained no reference to terrorist acts as special criminal offences. Persons committing terrorist acts would have been punished in accordance with the general provisions of the Penal Code, for example murder, hijacking, kidnapping, arson. The Anti-Terrorism Law of 2003 sets a distinct tariff of sentences for "ordinary" offences when there is a terrorist link.

United States

74. The American treatment of suspected terrorists is well documented. There follows a brief discussion of some of the legal measures taken by the US to address the issues used to justify Part IV. This note does not discuss the development and application by the United States of "enemy combatant" and "unlawful combatant" status or the use of military tribunals.

Terrorism-related Criminal Offences

75. In October 2001, America introduced the USA PATRIOT Act[151] as a response to the September 11th attacks. The Act creates the following criminal offences:

Harbouring or concealing terrorists: if a person harbours or conceals a person he knows or has reasonable grounds to believe has committed, or is about to commit, certain terrorist offences (10 years imprisonment); and

Providing material support for terrorism: this prohibits the provision of material support or resources where it is known and intended that it be used to prepare for, or carry, out certain terrorist related crimes.

76. The Act broadens the definition of "terrorist organisation" to include a group of two or more people, whether organised or not, that commits or incites terrorist activity with intent to cause death or serious injury or prepares or plans terrorist activity or gathers information about potential targets.[152]

77. The USA PATRIOT Act also extends the provisions of the Racketeer Influenced and Corrupt Organisations Law to federal terrorist crimes, enabling multiple acts of terrorism to be dealt with as a form of racketeering. This enhances range of investigative powers (and sentences) available and can avoid the need to use sensitive material during prosecution.[153]

78. The Home Office has reported that the US also makes use of "material witness" status. This allows a person to be detained indefinitely as a witness to offences. Some argue that material witness warrants have been used as a form of preventive detention when authorities lack sufficient evidence that an individual committed a crime or immigration violation.[154]

Suspected Foreign Terrorists

79. Section 412 of the USA PATRIOT Act amends the US Immigration and Nationality Act, permitting the Attorney General to certify foreign nationals as "suspected terrorists" or a threat to national security if they are deportable or inadmissible. Suspects can be detained for 7 days after which they must be released, charged or deportation proceedings must be commenced. Certification decisions are subject to judicial review. The Act requires that the Justice Department report to Congress on the use of certification every six months. If the person cannot be removed, the Attorney General must review his detention every six months. The detention is only permitted to last as long as the person is judged to be a threat.[155]

80. On 17th September 2001 the Immigration and Naturalization Service (INS) issued regulations doubling the period for which the INS could detain a person without charge from 24 to 48 hours.[156] It also permits the INS "in the event of an emergency or other extraordinary circumstances" to detain someone for an additional "reasonable period of time". No criteria are given as to the meaning of these terms. These regulations permit the INS to detain foreign nationals indefinitely without charge, without the protections afforded to those detained in connection with a criminal offence. A detainee can apply to an immigration judge for release on bond or file a habeas corpus petition in a federal court. There is, however, no right to a state-appointed lawyer. This power has been far more frequently used than the certification power under Section 412 of the USA PATRIOT Act.

Investigative Techniques

81. Newton reports that the USA "has published details of its intercept capability of landlines, mobile phones, satellite phones, diplomatic correspondence, and satellite intercept of foreign communications"[157]

82. The USA PATRIOT Act enhanced the wiretapping and other surveillance powers of the FBI. It also extended the use of "Pen registers" which are orders allowing the source and destination of calls to and from a particular telephone to be monitored without the need for a court order or "probable cause". The "probable cause" requirement was also removed for e-mail monitoring. In addition, wiretaps authorised by a court in other jurisdictions can be used in the US and US courts can issue "roving wiretaps" which apply to an individual rather than a communications device.[158]

Classified and Security Sensitive Information

83. The USA has enacted a procedural statute called the Classified Information Procedures Act ("CIPA"). CIPA is designed to prevent unnecessary or inadvertent disclosures of classified information and to ensure that the Government is in a position to assess the national security "cost" of proceeding with a legal case. It does not change the substantive rights of defendants or the discovery obligations of the Government and does not curtail the admissibility of classified information. Instead, it aims to balance the rights of a defendant with the interest of the state to know in advance the extent of the potential threat to its national security from pursuing a case. For example, to the extent that the court rules that certain classified material is discoverable, the prosecutor may seek the court's approval to use alternative measures such as deletion of sensitive information, substitution of summaries, closing the court, allowing witnesses to remain anonymous, requiring the defence to make its case known earlier in the process, and only allowing the defendant's security-cleared counsel to have access to the sensitive material.[159] The requirement to know the defence case in advance can also facilitate plea-bargaining.

84. The procedure set out under CIPA includes the following steps:

The Court must be satisfied that classified information is discoverable;

On the Government's request, the court is required to issue an order to "protect against the disclosure of any classified information disclosed by the United States to any defendant in a criminal case" (Section 3). The US Department of Justice has noted that the "protective order must be sufficiently comprehensive to ensure that access to classified information is restricted to cleared persons";[160]

The court may (a) authorise the Government to delete specified items of classified information from discoverable documents; (b) substitute summaries of information; (c) substitute a statement admitting relevant facts that the classified information would tend to prove. The Government can demonstrate that the use of such alternatives is necessary in an in camera or ex parte submission to the court (Section 4);

The defendant must notify the Government and the court in writing if they reasonably expect to disclose classified information at trial or in pre-trial proceedings. This must specify in detail the classified information on which the defendant intends to rely. Failure to comply with this procedure may lead to the court precluding the disclosure of classified information that was not the subject of prior notification and preventing the defendant examining any witness in relation to such information (Section 5);[161]

If the Government so requests, the court must hold a hearing to determine the use, relevance and admissibility of classified evidence by the defence (to be held in camera if the Attorney General certifies that a public hearing may lead to a disclosure of classified information) (Section 6);

Following the court's findings on admissibility, as an alternative to declassification and release of the information by the defendant, the Government may move an order permitting (in lieu of full disclosure) either substitution with a statement admitting relevant facts that the classified information would tend to prove or substitution with a summary of the classified information. The court is required to grant such an order if it considers that the alternative information "will provide the defendant with substantially the same ability to make his defence as would disclosure of the specific classified information";

If the defendant is able to use classified information in his defence, the Government is required to provide the defendant with the information that it anticipates it will use to rebut such information; and

In addition, under CIPA, the Government may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible. The court must then take action to determine whether the response is admissible to safeguard against the compromise of any classified information. This could include the US providing the court with a proffer of the witness' response to the question or line of enquiry and requiring the defendant to provide the court with a proffer of the nature of the information he seeks to elicit (Section 8(c)).

Main Sources:

State reports to the Counter-Terrorism Committee of the United Nations ("UN CTC") pursuant to paragraph 6 of Security Council Resolution 1373 (2001) of 28 September 2001.

Anti-terrorism, Crime and Security Act 2001 Review: Report, 18 December 2003, HC100 (The "Newton Report").

Counter-terrorism powers: Reconciling Security and Liberty in an Open Society: A Discussion Paper, Home Office, February 2004, Cm 6147.

Australian Law Reform Commission, ALRC Background Paper 8: Review of measures designed to protect classified and security sensitive information in the course of investigation and proceedings, 2003. (http://www.austlii.edu.au/au/other/alrc/publications/bp/8/bp8.html)

Australian Law Reform Commission, ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004. (http://www.austlii.edu.au/au/other/alrc/publications/dp/67/)

Anti-terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11, International Helsinki Federation for Human Rights, April 2003.

International Human Rights Law Institute, DePaul University, "National Laws and Measures for Counter-Terrorism and Regulation of Biology". (http://www.law.depaul.edu/institutes_centers/ihrli/publications/national_laws.asp)

International Federation of Human Rights Leagues (FIDH), International Mission of Inquiry: France: Paving the way for arbitrary justice, January 1999.

International Helsinki Federation for Human Rights (IHF), Anti-terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11, April 2003.

4 June 2004


1 101  01 Anti-Terrorism, Crime and Security Act 2001: Explanatory Notes, Para. 69. Back

102   Prohibited by the Regulation of Investigatory Powers Act 2000. Back

103   Although the Government does not cite this as a justification, it was highlighted as a reason in Anti-terrorism, Crime and Security Act 2001 Review: Report, 18 December 2003, HC 100, and para. 181 (the "Newton Report"). Back

104   Home Office, Counter-terrorism powers: Reconciling Security and Liberty in an Open Society: A Discussion Paper, February 2004, Cm 6147, para. 53. Back

105   Following September 11th, the UN Security Council resolved to establish a special UN Counter-Terrorism Committee (the UN CTC). Security Council Resolution 1373 (2001) requires all States to report to the UN CTC on steps taken to implement the Resolution. These State Reports provide a valuable source of information on state actions to address terrorism. Back

106   Australia's Fourth Report to the UN CTC, S/2003/1204, p.6. Back

107   For example: (i) Section 6 of the Crime (Foreign Incursions and Recruitment) Act 1978 makes it an offence to enter a foreign state to engage in hostile activity in that foreign state (14 years imprisonment); (ii) Section 7 of the 1978 Act makes it an offence to contribute o the preparation or promotion of the commission of an offence under Section 6 (10 years imprisonment); (iii) Section 8 of the 1978 Act makes it an offence to recruit persons to a group, the objectives of which include the commission of an offence under Section 6 (7 years imprisonment); and (iv) a number of other offences relating to hostage-taking, and chemical and biological weapons. Back

108   "Terrorist act" is defined in Section 100.1 of the Criminal Code Act 1995 as an act, or threat of action that is done or made with the intention of advancing a political, ideological or religious cause; and done or made with the intention of either coercing or influencing by intimidation an Australian government or the government of another country; or intimidating the public or a section of the public. The act must also cause a person serious physical harm or death, or involve serious risk to public health or safety, serious damage to property, or serious interference with an electronic system, or be a threat to do any of these acts. Back

109   "Terrorist organisation" is defined in subsection 102.1(1) of the Criminal Code Act 1995 as including an organisation which a court believes beyond reasonable doubt to be directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act; or an organisation which is specified as such by regulation. In March 2004, controversial laws were enacted extending the ability to prescribe organisations as terrorist, thereby criminalizing their members (A new Section 102 of the Criminal Code). Back

110   The Australian Security Intelligence Organisation (ASIO) is Australia's security service. Its main role is to gather information and produce intelligence that will enable it to warn the government about activities or situations that might endanger Australia's national security. The ASIO does not investigate lawful protest activity nor does it investigate purely criminal activities. Back

111   Australian Law Reform Commission, ALRC Background Paper 8: Review of measures designed to protect classified and security sensitive information in the course of investigation and proceedings, 2003 (http://www.austlii.edu.au/au/other/alrc/publications/bp/8/bp8.html).

Australian Law Reform Commission, ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004 (http://www.austlii.edu.au/au/other/alrc/publications/dp/67/).  Back

112   It reports that such undertakings are frequently used to protect commercially sensitive information. Back

113   It relates to both oral and written evidence. Back

114   Sankey v. Whitlam (1978) 142 CLR 1 , 38 (Gibbs ACJ). Back

115   Section 130 does not apply to pre-trial hearings, which are still covered by the common law. Back

116   Section 42D of the Northern Territory Evidence Act 1939. Back

117   The Hon Daryl Williams AM QC MP, News Release: Protecting Classified Information in Court Proceedings, 3 April 2003. Back

118   Australian Law Reform Commission, ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004, Chapter 10. Back

119   ibid, para. 10.8. Back

120   CIPA is discussed in the context of the US below. Back

121   The ALRC comments that "whenever there is any restriction on the basic principles of open courts and the right to a public hearing, the court's judgment of those issues should be set out in a statement of reasons" (Australian Law Reform Commission, ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004, para. 10.84). Back

122   The ALRC recommends that the court should ensure that all parties receive a copy of the transcript and of the reasons for measures taken under the Act to enable them to pursue any appeal that may be possible (Australian Law Reform Commission, ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004, paras. 10.85-10.86). Back

123   The court would then be required to determine whether that means that the proceedings should be stayed, discontinued, dismissed or struck out in part or in whole Back

124   ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004, para. 10.142. Back

125   Section 80 of the Australian Constitution provides that "every [criminal trial] shall be held in the State where the offence was committed". Back

126   ALRC Discussion Paper 67: Protecting Classified and Security Sensitive Information, 2004, paras. 10.142-10.146. Back

127   These came into force on 1 October 2002. Back

128   An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities in order to combat terrorism. The Act is subject to a three-year review with a mandate to recommend changes to the legislation if appropriate. It also requires the powers of preventive arrest and investigative hearings to be subject to annual reporting requirements. Back

129   The Act defines "terrorist activity" broadly such that anyone planning, facilitating or committing terrorist activity in Canada with a view to acting against another state or its citizens would be committing an offence in Canada. Back

130   The Act enables the Government to designate a list of terrorist groups. Back

131   Other investigative techniques are allowed pursuant to warrants under the Canadian Security Intelligence Act but these cannot be used in criminal cases. Back

132   The procedures differ according to whether the investigation is conducted by a law enforcement agency for the purposes of prosecuting a criminal case or by a security agency for national security purposes. Back

133   These provisions have received much attention. See, for example: http://www.nacdl.org/public.nsf/0/394ea3fc15e467e285256e760071baf2?OpenDocument Back

134   This creates a presumption against public access, permitting a judge to order disclosure only when satisfied that there is no threat to international relations, national defence or security. Back

135   The Canadian Government is required to report to Parliament annually with respect to the use of these powers of preventive arrest. It reported that between 2001 and 2002 there were no instances in which this power was used (see: http://www.psepc-sppcc.gc.ca/publications/national_security/ARC36_2002_e.asp). Back

136   This enables the capture of data without being present at the location where a computer is used. Back

137   It is interesting in the context of the French "association with a wrongdoer" provision (discussed below) that the Finnish parliament added a requirement that the main offence must actually be committed or its planning or attempt actually be effected. This had not been a requirement of the Government Bill but was not thought by the Parliamentary Constitutional Law Committee to be sufficiently clear to satisfy international human rights law. Back

138   Fourth Finnish report to the UN CTC, S/2004/118. Back

139   Yves Mayaud , le Terrorisme, Dalloz 1997, p. 29, cited in International Federation of Human Rights Leagues (FIDH), International Mission of Inquiry: France: Paving the way for arbitrary justice, January 1999, paras. 3-6. Back

140   The Finnish Parliament has rejected a Government proposal to introduce a comparable offence. Back

141   The statute of limitation on bringing actions is also extended from 10 to 30 years for serious crimes and from 3 to 20 years for other offences. Back

142   The role and independence of the Juge d'Instruction has been criticised. See, for example: International Federation of Human Rights Leagues (FIDH), International Mission of Inquiry: France: Paving the way for arbitrary justice, January 1999. Back

143   References to Articles are to Articles of the Code of Penal Procedure. Back

144   This legislation was originally designed pre-September 11th but a raft of anti-terrorism changes were presented and approved by Parliament in November 2001. Back

145   Counter-terrorism powers: Reconciling Security and Liberty in an Open Society: A Discussion Paper, Home Office, February 2004, Cm 6147, paras. 63-64. Back

146   The previous law had required the existence of an independent branch organisation within Germany. Back

147   Australian Law Reform Commission, ALRC Background Paper 8: Review of measures designed to protect classified and security sensitive information in the course of investigation and proceedings, 2003, pp. 51-52. Back

148   Second Italian Report to the UN CTC, S/2002/8, p. 11. Back

149   Second Italian Report to the UN CTC, S/2002/8, p. 10. Back

150   Third Report of the Netherlands to the UN CTC S/2003/897.  Back

151   The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. Back

152   Counter-terrorism Powers: Reconciling Security and Liberty in an Open Society: A Discussion Paper, Home Office, February 2004, Cm 6147, para. 77. Back

153   ibid., para. 78. Back

154   ibid., para. 80. Back

155   Ibid., para. 79. Back

156   8 CFR 287, INS No. 2171-01. Back

157   Anti-terrorism, Crime and Security Act 2001 Review: Report, 18 December 2003, HC100, Para. 211. Back

158   See International Helsinki Federation for Human Rights (IHF), Anti-terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11 April 2003, pp. 205-206. Back

159   Anti-terrorism, Crime and Security Act 2001 Review: Report, 18 December 2003, HC100, paras. 237-238. Back

160   Department of Justice (USA), Criminal Resource Manual, 2054. Back

161   This imposes an unusual level of disclosure on the defence. Back


 
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