Joint Committee On Human Rights

Joint Committee On Human Rights Eighteenth Report

6. Submission from JUSTICE

Summary

1. JUSTICE is an independent all-party human rights and law reform organisation. It is the British section of the International Commission of Jurists.

2. JUSTICE welcomes the Joint Committee's review of counter-terrorism powers, particularly its focus on potential alternatives to Part 4 of the Anti-Terrorism Crime and Security Act 2001 ('ATCSA').

3. JUSTICE supports:

the repeal of indefinite detention without trial under Part 4 of ATCSA;

dealing with persons suspected of terrorism offences by way of the mainstream criminal justice system;

lifting the ban on the use of intercept evidence in criminal proceedings to enable more prosecutions to be brought for terrorism offences; and

having terrorism as an aggravating factor in sentencing.

4. JUSTICE is prepared to support in principle:

the creation of an offence of acts preparatory to terrorism.

5. JUSTICE would support consideration of:

the use of restriction orders on terrorist suspects but only if such measures were shown to be strictly required; proportionate to an identified threat and subject to tight judicial control and close parliamentary scrutiny.

6. JUSTICE doubts the benefit of:

the use of security-cleared judges in inquisitorial proceedings as part of the prosecution of terrorism offences;

promoting greater court involvement in plea-bargaining.

Background

7. When Part 4 was first put forward in November 2001, JUSTICE said that the courts were likely to accept the government's assessment[178] that the threat of terrorism from Al-Qaeda amounted to a 'public emergency threatening the life of the nation'.[179] This prediction has so far proved accurate, with the government's finding having been upheld by both the Special Immigration Appeals Commission[180] and the Court of Appeal.[181]

8. At the same time, we cautioned that any exceptional measures that the government adopted under its derogation from Article 5(1)(f) of the European Convention on Human Rights must be 'necessary and proportionate' to the particular situation at hand.[182]

9. However, the ability of civil society groups such as JUSTICE to assess either the necessity or proportionality of the government's counter-terrorism measures following September 11 is severely limited by the fact that much of the evidence used by the government to justify its decision to derogate[183] cannot be disclosed for reasons of national security.[184] Although we accept the government's claim (upheld by SIAC and the Court of Appeal)[185] that disclosure of such material is not in the public interest, government secrecy remains a significant obstacle to informed public debate on counter-terrorism powers. Bearing in mind these limits on effective public scrutiny, JUSTICE has had particular regard to judicial scrutiny of Part 4 by SIAC and the Court of Appeal, as well as independent assessment of its operation by the section 28 reviewer Lord Carlile of Berriew QC and the Privy Counsellor Review Committee chaired by Lord Newton.

10. JUSTICE therefore welcomed the report of the Newton Committee in December 2003, particularly its recommendations that:

Provisions for the indefinite detention of persons suspected of terrorism under Part 4 of the Act should be replaced as a matter of urgency;[186]

Terrorism should be dealt with, as far as possible, by way of the mainstream criminal justice system;[187]

The blanket ban on the use of intercept evidence should be lifted so that more prosecutions for terrorist offences can be brought within the mainstream criminal justice system;[188]

Special counter-terrorism legislation should not be mixed with mainstream criminal justice legislation;[189] and

The government should seek to avoid, so far as possible, any measures that would require it to derogate under Article 15(1) of the European Convention of Human Rights ('ECHR').[190]

11. JUSTICE has also considered various alternatives to Part 4 suggested by the Newton Committee (see below). In general, it is fair to say that, while we welcome new ideas, we are sceptical about alternatives that represent a significant departure from established procedures and principles of criminal justice. In particular, we would only be prepared to support 'restriction orders'[191] in the most exceptional circumstances and with tight safeguards governing their use.

Bringing the prosecution of terrorist offences within the mainstream criminal justice system (Newton Report, para 205)

12. While the Newton Report rightly stressed the importance of addressing terrorism within the context of the ordinary criminal law (on the basis that terrorist acts are crimes), we feel it is important to emphasize the corollary of that principle: that existing safeguards should not be watered down to make it easier to prosecute terrorism offences under the ordinary criminal law than it would be to prosecute other similar criminal offences. In other words, if the basis for treating persons suspected of terrorism on the same basis as other suspected criminals is because they are equally suspects, then it follows that they are equally entitled to the same protections and safeguards as exist in the criminal justice system in general. It is particularly important to bear this in mind in the context of reports of ministerial comments suggesting that the standard of proof in criminal cases ('beyond reasonable doubt') could be lowered to allow the prosecution of terrorist offences in ordinary courts.[192]

Removing the self-imposed blanket ban on the use of intercepted communications as evidence in criminal cases (Newton Report, para 208)

13. In our view, lifting the ban on the use of intercept evidence in criminal proceedings (currently contained in section 17(1) of the Regulation of Investigatory Powers Act 2000) would allow for an increase in the number of prosecutions that could be brought for terrorist offences and other serious crimes.[193] As the author of the 1996 review of counter-terrorism legislation,[194] the former Law Lord, Lord Lloyd of Berwick noted during debates on RIPA:[195]

"We have here a valuable source of evidence to convict criminals. It is especially valuable for convicting terrorist offenders because in cases involving terrorist crime it is very difficult to get any other evidence which can be adduced in court, for reasons with which we are all familiar. We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted; and we are the only country in the world to do so."

14. Lifting the ban on admitting intercept evidence would also bring UK criminal procedure into line with that of the great majority of common law jurisdictions, including Canada, Australia, South Africa, New Zealand and the United States.[196] If the use of intercept evidence is admissible on a regular basis in these other jurisdictions, it seems difficult to conceive of a compelling reason for the government to maintain the current self-imposed ban while at the same time seeking to justify a departure from ordinary criminal principles in other areas. We therefore welcome media reports that the Home Office review currently underway on the use of intercept evidence will recommend lifting the current ban.[197]

Terrorism as an aggravating factor when sentencing (Newton Report, para 216)

15. JUSTICE agrees that this is an appropriate measure. However, we are concerned at any suggestion that the standard of proof for establishing a link to terrorism may be less than the standard for any other element of a criminal offence (i.e. 'beyond reasonable doubt'). We also agree with Lord Carlile's analysis that, since "the terrorist element factually and logically would have to be the major element of the crime as a whole", the prosecution of offences aggravated by terrorism will likely encounter similar evidential difficulties as the prosecution of other terrorist offences.[198]

The creation of an offence of 'acts preparatory to terrorism'

16. Along with the recommendations of the Newton Report, we also note the suggestion of Lord Carlile that the creation of an offence of acts preparatory to terrorism may help overcome some of the current obstacles to effective prosecution of terrorist offences.[199]

17. JUSTICE notes that the Terrorism Act 2000 already contains a very broad range of offences, including support for terrorism.[200] There is also the law on attempted offences,[201] which greatly increases the scope for criminal prosecution, as well as the offence of conspiracy.[202] Accordingly, it is at first glance difficult to see how the creation of an additional offence covering 'preparatory acts' would overcome either the current evidential problems in prosecuting terrorist offences or the legal difficulties of prosecuting inchoate ones. Nonetheless, JUSTICE would be prepared to support the creation of such an offence if it were shown that it would meet a genuine gap in the law.

The use of an investigative approach, e.g. security-cleared judges to assess evidence on a more inquisitorial basis (Newton Report, paras 224, 228)

18. While we agree with the Newton Committee's call for a more structured system of disclosure of evidence,[203] it is wholly unclear how the use of security-cleared judges screening evidence[204] would improve on the admissibility of material from the current system. It is particularly unclear what weight the 'fair answerable case' assembled by one judge would have in full criminal proceedings before another, particularly if the preliminary hearing were conducted on an inquisitorial rather than adversarial basis. The findings of a judge (particularly one who has seen evidence not disclosed at trial) are likely to carry great weight with a subsequent judge and jury, and would effectively preempt much of what ought properly to be determined in-trial. The unfairness of determining guilt or innocence, be it by a judge or jury, on evidence that is not disclosed to an accused and upon which he or she cannot make comment or challenge should be manifest and is likely to breach the right in Article 6(3)(d) ECHR to "examine or have examined witnesses against him".

19. We also note the Canadian system of using judges to hold investigative hearings under the Anti-Terrorism Act 2001 prior to criminal charge has raised significant concerns under the Canadian Charter of Rights and Freedoms,[205] particularly the right against self-incrimination.[206]

Promoting greater involvement of the court in plea-bargaining cases (Newton Report, para 240)

20. JUSTICE opposes any suggestion that the courts should become more involved that they are at present in assisting with, or entering into, agreements about the appropriate criminal charge. Plea-bargaining can be seen as a system of incentives and rewards for a guilty plea, one which arguably serves the interests of speed and efficiency of administration ahead of the interests of justice. To formally involve the judicial branch in such arrangements would potentially compromise its integrity.

Alternatives to indefinite detention without trial

21. JUSTICE welcomes the conclusion of the Newton Committee that the powers under Part 4 for the indefinite detention of suspected international terrorists 'should be replaced as a matter of urgency'.[207]

22. We also agree its recommendations that the government should ideally:[208]

deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and

not require a derogation from the European Convention on Human Rights

23. As noted above, it has been difficult for civil society groups to second-guess the assessment of the government that a derogation is necessary, given that much of the evidence for its decision to derogate is secret. We note that the Newton Committee had access to that evidence, as has Lord Carlile and SIAC.[209] The Newton Committee's recommendation is therefore slightly ambiguous, as it does not address the question of necessity directly. On one view, saying that the government 'should not require a derogation' is possibly otiose: the scheme of Article 15(1) ECHR makes clear that a government can only derogate to the extent 'strictly required by the exigencies of the situation' (and compatibly with its other international obligations). As such, if a measure were 'strictly required' by the existence of an emergency then it would be arguably irrational for the government not to adopt it. We do not take the Newton Committee to be stating the obvious on this point. Rather, we understand the Committee as indicating they do not regard the measures under Part 4 (indefinite detention without trial) as strictly required by the current emergency.

24. While the evidence justifying the derogation is closed, the logic of the government's scheme of indefinite detention remains open to question. First, indefinite detention under Part 4 applies only to foreign nationals and yet it is apparent from the SIAC proceedings that the threat of terrorism comes from UK and foreign nationals alike. Indeed, it was on this point that SIAC found the derogation to have breached Article 14 ECHR as discriminatory on the ground of national origin:[210]

There are many British nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists', and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined.

25. Thus, if terrorist suspects who are UK nationals pose the same threat as those terrorist suspects who are foreign nationals and the government does not consider it necessary to detain the suspects who are UK nationals, then it becomes impossible to see how the detention of only foreign suspects can be justified as 'strictly necessary'. The Court of Appeal disagreed with this conclusion, noting as follows:[211]

As the [detainees] accept, the consequences of their approach is that because of the requirement not to discriminate, the Secretary of State would, presumably, have to decide on more extensive action, which applied to both nationals and non-nationals, than he would otherwise have thought necessary. Such a result would not promote human rights, it would achieve the opposite result. There would be an additional intrusion into the rights of nationals so that their position would be the same as non-nationals.

26. The difficulty with this reasoning is that it cuts both ways: if one agrees that it was not necessary to detain certain suspects (i.e. those who are UK nationals) and it is conceded that they pose the same risk as suspects who were detained (i.e. foreign nationals), then this invites the conclusion that it was not strictly necessary to detain the foreign suspects in the first place. For his part, the Home Secretary has not conceded that UK terrorist suspects pose the same risk,[212] but it appears to be one of SIAC's findings of fact and not in itself disputed by the Court of Appeal.

27. Secondly, the recent release of one of the Part 4 detainees on bail[213] also seems to undermine the government's claims that indefinite detention is 'strictly required' in the circumstances. For if it is possible to effectively address the threat of terrorism posed by G and others by way of a series of stringent bail conditions (including "electronic tagging and house arrest without outside communication") then this suggests that indefinite detention in Belmarsh is not necessary. It may be that the surveillance required in such situations is more resource intensive than incarceration in Belmarsh, but if it avoids the UK having to maintain a system of indefinite detention without trial then it seems surely a price worth paying.

28. In this light, should Parliament consider that the current threat of terrorism is sufficiently serious to justify exceptional measures being taken, we consider that the Newton Committee's suggestion of imposing 'restriction orders' on terrorist suspects may be an appropriate way forward. Specifically, we note the Committee's observation that:[214]

It would be less damaging to an individual's civil liberties to impose restrictions on:

a. the suspect's freedom of movement (e.g. curfews, tagging, daily reporting to a police station); and

b. the suspect's ability to use financial services, communicate, or associate freely (e.g. requiring them to use only certain specified phones or bank or internet accounts, which might be monitored

subject to the proviso that if the terms of the order were broken, custodial detention would follow.

29. In our view, the extent to which a scheme of restriction orders could be sustained without derogation depends very much on the kinds of restrictions imposed (e.g. reporting requirements, electronic tagging, or full-scale house arrest) and its overall scope (i.e. whether it applies only to foreign nationals or to foreign nationals and UK nationals alike). It seems to us that restriction orders could, in general, be imposed without derogation on those subject to immigration control. To a lesser extent, certain restrictions could be placed on UK nationals (e.g. movement restrictions) without derogation, on a similar basis to the use of anti-social behaviour orders.[215] However, we note that the more serious restrictions on liberty currently applied under UK law are done so by way of a punishment for a criminal offence (e.g. football banning orders).[216] As such, we doubt that UK nationals not charged or convicted of a criminal offence could ever be subjected to the kinds of sweeping restrictions applied in the case of G without further derogation from Article 5 ECHR being sought.

30. JUSTICE considers that the adoption of any scheme of restriction orders would be wholly exceptional. As noted before, the only circumstances in which we might be prepared to support the introduction of such orders is if Parliament was satisfied that such measures were strictly required by the terrorist threat facing the UK, proportionate in all the circumstances having regard to fundamental rights, and that the same aim could not reasonably be achieved by less intrusive means. Such a scheme would have to be attended by strict safeguards. As a bare minimum, we would suggest the following:

Application procedure: a restriction order should be made by the High Court[217] on application by the Secretary of State. This is in contrast to the current procedure under Part 4 whereby SIAC merely reviews the legality of a certificate issued by the Secretary of State. The application procedure must be adversarial, allowing suspects to challenge the legality of any order sought and the evidence upon which it is based. Evidence established to have been obtained as a result of torture would not be admissible.

Powers of the court: the court must have the power to dismiss any application. The court should also have the power to assess the proportionality of specific restrictions sought by the Secretary of State in respect of a suspect, and substitute less restrictive measures than those sought where justified by the evidence.

Breach of order: where an order is breached, the court should have the power to determine the appropriate sanction, including imprisonment. The appropriateness of the sanction should be governed only by the seriousness of the breach itself, rather than any other considerations.

Order time-limits: any order made by the court must be time-limited, so that its effect will lapse after a certain period unless renewed (preferably not more than 12 months). Renewal proceedings should be subject to the same procedures and safeguards as an original application.

Sunset clause: the statutory scheme for any such restriction orders would itself have to be subject to regular parliamentary review and independent scrutiny, and the legislation itself subject to a sunset clause of a maximum of 3 years.

31. As an aside, we note one objection raised by the Home Office to less restrictive measures is that it may not prevent terrorist suspects from using telephones or computers.[218] While provision could be made in the most exceptional circumstances—as in G's case—for closer regulation of communication (e.g. use of specified devices), it seems difficult to square such objections with the Home Office's willingness to allow the voluntary removal of terrorist suspects to their home country or a safe third country where their access to telephones and computers, etc would presumably be unimpeded and unmonitored.

32. JUSTICE wishes to make clear that our support at this stage is for consideration of the idea of restriction orders only, and not the implementation of any such scheme. Support for restriction orders themselves will depend on the particular proposals brought forward, certain conditions being met (i.e. the ending of provision for indefinite detention, Parliament being satisfied that the measures are strictly required and proportionate to an identified threat), and detailed discussion of proposed safeguards.

23 June 2004

178 See Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 3644). Back

179 See JUSTICE opinion on the proposed derogation from Article 5 of the European Convention on Human Rights by David Anderson QC and Jemima Stratford (November 2001): we did note that the original scope of the derogation extended to even those 'international terrorists' who did not threaten the UK, e.g. Tamil Tigers, and would not be lawful to that extent. However, the Attorney-General subsequently gave an undertaking that the powers under Part 4 of the Act would be only used for the emergency which was the subject of the derogation. Back

180 A, X, Y and others v Secretary of State for the Home Department (unreported, 30 July 2002). Back

181 A, X, Y and others v Secretary of State for the Home Department [2002] EWCA Civ 1502. Back

182 Article 15(1) ECHR states that a derogation is only permitted 'to the extent strictly required by the exigencies of the situation'. Back

183 As well as the subsequent decisions to indefinitely detain particular individuals as suspected terrorists under Part 4. Back

184 See e.g. the Chairman of the Special Immigration Appeals Commission in A, X, Y and others v Secretary of State for the Home Department (see FN 180 above), para 14: "It is obvious that the closed material is most relevant to the issue whether there is such an emergency". Back

185 See e.g. A X Y and others, FN 181 above, para 87, per Brooke LJ: "if the security of the nation may be at risk from terrorist violence, and if the lives of informers may be at risk, or the flow of valuable information they represent may dry up if sources of intelligence have to be revealed, there comes a stage when judicial scrutiny can go no further". Back

186 The Newton Report, para. 203. Back

187 The Newton Report, para. 205. Back

188 The Newton Report, para. 208. Back