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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