Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 90-99)


31 OCTOBER 2005

  Q90 Chairman: Good evening, everybody. This is the second of our evidence sessions in the initial phase of our inquiry into counter-terrorism policy and human rights. We are examining the human rights implications of the legislative and non-legislative measures introduced or proposed by the Government since the 7 July bombing and the 21 July attempt at bombing. We are not investigating the events of those days or the shooting of Mr Menezes on 22 July but for the avoidance of doubt I should make clear at the outset to our witnesses and to the press and public that discussion of those events and any other active criminal or civil proceedings is prevented by the sub judice rules of both Houses. These rules prevent discussion in Parliament of cases which are active before the courts, including coroners' courts, in order to safeguard the rights to a fair trial and fair consideration of events at an inquest. It is also important that Parliament and the courts give mutual recognition to their respective roles and do not interfere in each other's affairs, so if necessary I will intervene to ensure that the sub judice rules are not broken. Can I welcome our various witnesses. I hope that we have found the right name plates. We have got quite a few people here so I would ask my colleagues when asking questions to make it clear to whom the questions are directed. We are joined by Mr Livio Zilli of Amnesty International, by Dr Metcalfe of JUSTICE, by Mr Crossman and Mr Welch of Liberty, and by Ms Marks of the Law Society. Welcome to you all. Perhaps I can start with a general question and perhaps it is best directed towards Liberty in the first instance. What do you say is the overall relevance of the attacks of 7 and 21 July in London to the application and interpretation of the relevant human rights standards?

Mr Crossman: I think an initial reaction would be that we hope that one of the consequences of the attacks on London is that they demonstrate how the human rights tenets that we have in this country can be successfully and properly applied. In any interpretation of human rights considerations the need for necessity and proportionality all go to the heart of any legislative process which ensues. Obviously, the purpose of Parliament is to consider what action is necessary and what new laws should be brought in in order to deal with any new threat as a consequence of the attacks. What we hope to do and what we have tried to do when we have written parliamentary briefings is apply the human rights standards to run throughout consideration of the Convention and apply them to the various proposals that the Government is putting forward.

  Q91  Chairman: So do you accept that human rights law imposes on the state a positive obligation to ensure that its laws provide sufficient protection for the life and physical integrity of the population within its jurisdiction against the threat of terrorism?

  Mr Crossman: Of course. A positive obligation goes to the heart of any consideration of the Convention. In the first or second paragraph of the two briefing papers that I have written I have said that it is the duty of the state to consider what steps it is appropriate to take as a consequence, so I would not have any disagreement with that in principle at all.

  Q92  Chairman: And also to bring suspected perpetrators to justice?

  Mr Crossman: Indeed.

  Q93  Chairman: You all make the general point that there is always a risk of any government action being counter-productive in terms of alienating the Muslim community. The Home Secretary told us that the Government has worked closely with the Muslim community, and we will be hearing from the Muslim Council of Britain later on. What measures in your view do you think carry the greatest risk of being counter-productive and what positive steps do you think the Government should take to earn the trust and co-operation of the Muslim community at the same time?

  Mr Crossman: The two proposals which I think are of greatest concern are clause 1, the offence of encouragement to terrorism, which I believe, because in my view it criminalises careless talk, will be considered disproportionate and excessive by the Muslim community, although I hesitate to use the word "community" when talking about the Muslim community. There is no Muslim community in the same way as there is no other community. I use that because you use those words in your phrase to me, but I am always a bit cautious of a few representatives of several million people in this country being put forward as community representatives. That said, and you can probably predict what I am going to say here, the other major concern is the extension of pre-charge detention to 90 days which, as we have said, is the equivalent of a six-month custodial sentence. Any group of individuals within this country wants to feel that if, as the Prime Minister has said (and we all must agree), we all have to be combating terrorism in the best way possible and we are all together in this, it is also vital that every part of this country and every person in this country feels that the steps that are taken are fair. It is all very well to look objectively at 90 days and say that it might be necessary, but, if it is the people on your street, if it is the people who are your friends or your family who have been subjected to those custody time limits, you are not going to feel that you are being treated fairly and you are not going to feel that those laws are being fairly applied.

  Q94  Chairman: Does anybody disagree with that?

  Dr Metcalfe: I agree with everything that Gareth has just said and think it underlines a very important point. Yes, it is likely that the counter-terrorism measures that are being proposed will impact disproportionately on members of the "Muslim community", but the idea that we have measures that limit free expression or due process impacts on us all and diminishes us all. This is a point that we made particularly in our evidence in relation to freedom of expression, that if one section of the community feels afraid to speak out, to express controversial points of view, then everyone's freedom of expression, everyone's interest in free expression, is diminished.

  Mr Zilli: Many thanks for giving the opportunity to Amnesty to address you today. I commend the committee for conducting such an important and timely inquiry. If the question is which measures are counter-productive, Amnesty's answer is any measure which violates human rights, including those that result in arbitrary detention, stop and search without reasonable suspicion that a person is about to commit or has committed a criminal offence, discriminatory policing, detention without charge or trial, overt, broad and unlawful infringement of the rights to freedom of association and expression, which obviously are some of the measures concerned in this Bill. Your inquiry is very timely and I would urge the committee to look at what has been happening, at least since 9/11, in this country in relation to the legislative and other measures that have been put in place. I refer in particular to Part 4 of the now lapsed Anti-Terrorism, Crime and Security Act by which people were unlawfully detained for up to three and a half years. The measure that replaced Part 4, the Prevention of Terrorism Act, although facially is non-discriminatory, in its application may raise concerns with respect to its discriminatory effect. I would urge the committee to consider not necessarily simply the measures that have been proposed since the events in July but also the measures that the Government put in place before the events in July.

  Q95  Lord Lester of Herne Hill: I would like to ask about clause 1, glorifying terrorism. As I understand it what the Home Secretary says is that people should not be allowed to go on television without being guilty of a serious offence if, after 7 July, they would say it was praiseworthy to bomb London or, for that matter, after the bombing in Hedera in Israel, the same thing, or after the bombing in New Delhi in India. It is said that the existing criminal law does not reach that. The first question I want to ask, and it is best if only one NGO answers because we have to get through a long exam paper and if anyone disagrees they might say so, is this. Do you think that people should be permitted to make such outrageous statements without being guilty of a criminal offence? I am talking about a statement which, immediately after, let us say, the London bombing, glorifies that and in effect advocates it for future use.

  Dr Metcalfe: If I can put myself forward as answering on behalf of the panel, I would say that it is quite dangerous to suggest a criminal offence that subjectively assesses the extent to which a person is seen to be praising or glorifying terrorism and attaches criminal liability to that. If someone goes on television and praises the bombers in such a way with the intention of inciting further acts of terrorist violence I have no hesitation in saying that that person should be prosecuted to the full extent of the law and I am happy to go into detail about the full extent of laws that are available to allow that person's prosecution.

  Q96  Lord Lester of Herne Hill: Would you elaborate further?

  Dr Metcalfe: You have section 4 of the Offences against the Person Act 1861, which prohibits the encouragement, persuading or endeavouring to persuade any other person to murder any other person; you have section 8 of the Accessories and Abetters Act 1861, which prohibits a person from counselling or procuring any other person to commit any other indictable offence. It is also an offence at common law, in addition to statute, to solicit or incite someone to commit any other indictable offence. Section 59 of the Terrorism Act prohibits a person from inciting another person to commit an act of terrorism wholly or partly outside the United Kingdom. Section 1(a) of the Criminal Law Act 1977 makes it an offence to conspire with others to commit offences outside the United Kingdom. Lastly, section 12 of the Terrorism Act prohibits anyone inviting support for a proscribed terrorist organisation. It seems to me from that list that a person who goes on TV immediately in the wake of the 7 July bombings and praises terrorist violence can certainly be considered for prosecution under that and could be convicted of one or more of those offences on the basis that a jury was satisfied that that person had the intention of inciting further terrorist violence. On that basis we say that the offence that is drafted in clause 1, if this is the harm that you are concerned about, is simply not necessary. There is no gap in the existing law.

  Q97  Lord Lester of Herne Hill: That is very clear. Suppose that it was said that you were wrong and that there is a narrow but important gap, call it the public provocation, to commit a terrorist act. Do you think that clause 1 could be redrafted in a way that would meet the basic requirements of, say, the European Human Rights Convention by narrowing the scope of it so that it does not suffer from such over-breadth, or by including a specific criminal intention by being more precise so that it satisfies legal certainty? Can it, in other words, be in your view made compatible?

  Dr Metcalfe: Yes. I would say that the best way to make clause 1 compatible with the convention that you referred to, and also, I should add, to bring it in line with Article 5 of the Council of Europe Convention on the Prevention of Terrorism (which is, after all, according to the Government's own explanatory notes to this Bill the reason why they introduced this measure in the first place), would be a requirement of intention on behalf of the person making the statement to encourage or promote further acts of terrorism because it would bring it in line with the rest of our criminal law that says that no person should be punished except for those things that they intend to do, not for things that they inadvertently might happen to bring about because they were perhaps misunderstood by someone else. I think it is particularly important that you have that requirement of intention. It is also found in international law. If you look at the United Nations Principles, the Johannesburg Principles as they are known in shorthand, in relation to freedom of expression in relation to terrorist activities, they make very clear that you have to have a requirement of an intention; otherwise you risk penalising people who had no intention of inciting terrorism and were merely misunderstood.

  Q98  Lord Lester of Herne Hill: Finally, do any of you know enough about French or Spanish or Danish criminal law to be able to express a view about what weight we should give to the fact that those three countries have an offence of, in French, apologie du terrorisme?

  Dr Metcalfe: I am grateful that you mention that. I have had the opportunity to look at the Council of Europe Committee of Experts' report in relation to terrorism that was released in 2004. That report refers to those three countries. The situation is somewhat ambiguous in relation to French and Spanish law but in Denmark it is clear that you have to have the intention to contribute to the execution of a concrete offence, that is to say, a mere indication that more criminal activity in general would be a good thing would not be sufficient to commit apologie du terrorisme in Danish law.

  Q99  Lord Lester of Herne Hill: Is it not right that in Spain the Spanish Constitutional Court has imposed restrictions on a rather wide offence by case law?

  Dr Metcalfe: Yes. I have had a conversation with Professor Walker, and I understand he is giving evidence later to this committee and his answers I think will be more illuminating, but as I understand it a previous Spanish offence did not contain the relevant requirement of intention and was found to be unconstitutional.

  Ms Marks: I would like to add one point, which is that the Home Secretary's own press release on 6 October said that this particular part of the Bill was to be clarified to make it clear that the new law would be focused on those who intend to incite further offences. That has not been reflected in the body of the Bill that we have been looking at.

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