Joint Committee On Human Rights Written Evidence

19.  Further submission from the Law Society to the JCHR'S inquiry into counter-terrorism policy and human rights

  The Society entirely agrees that it is vital that we have effective measures to combat terrorism and we fully recognise that it is the Government's responsibility to protect its citizens. However, we continue to believe that protection against terrorism can be achieved without serious intrusion on human rights standards.

(i)   the new list of "unacceptable behaviours" drawn up after consultation indicating some of the circumstances in which the Home Secretary may exercise his powers of exclusion or deportation;

  We will comment on this in our submissions regarding the Immigration and Asylum Bill.

(ii)   the Government's intention to deport non-UK nationals suspected of terrorism on the basis of diplomatic assurances and the potential conflict with Article 3ECHR;

  The Society has serious concerns about proposals to deport non-UK nationals suspected of terrorism on the basis of diplomatic assurances.

  There are existing powers allowing the Secretary of State to exclude or deport people where their exclusion or deportation would be conducive to the public good. It has been suggested that these powers can only be used against those who pose a direct threat. However, the relevant immigration rules do not specify that the threat must be direct in order for the powers to apply. Indeed, the existing powers have been successfully used in the past to exclude those who may cause others to commit public order offences through their use of words or behaviour[207].

  The Society believes that it is preferable to charge and prosecute those who are suspected of being terrorists or involved with terrorism. As the Newton Committee commented, "terrorists are criminals, and therefore ordinary criminal justice and security provisions should, so far as possible, continue to be the preferred way of countering terrorism"[208].

  Criminal prosecution of suspected terrorists remains the most effective and human rights compliant counter-terrorist measure.

  The Society has grave concerns regarding the Government's use of diplomatic assurances to deport people to countries where they may be subject to torture or inhuman and degrading treatment. The right in Article 3 of the ECHR not to be subjected to torture or inhuman or degrading treatment or punishment is an absolute right and so does not allow the state to balance the right against national security interests. We believe that individual suspects should not be deported to countries where they are at risk of torture as a result of who they are, or what they have done.

  The countries which may receive deportees are in the main party to one or both of the UN treaties which absolutely prohibit torture and ill-treatment. Unlike the death penalty, the use of which is limited but not proscribed by international law, torture or ill-treatment must not be used at any time or under any circumstances.

  Blanket diplomatic assurances are not reliable. Reports from human rights organisations including Amnesty International, show that countries regularly breach international treaties they have signed up to, even if post-return monitoring arrangements are put into place[209]. Reports from the United States Department of State[210] and Human Rights Watch[211] show that human rights violations and serious torture are still prevalent in these countries. Individual assurances might go some way to easing this problem but there remain difficulties in monitoring whether or not countries adhere to individual assurances and all the evidence we have would lead us to believe that they cannot be relied upon to do so. The courts should thus decline automatically to accept that an inter-Governmental agreement can be relied on when it is clear that the country concerned continues to engage in torture.

(iii)   the various measures announced by the Prime Minister at his press conference on 5 August

  Some of the measures announced by the Prime Minister on 5 August have been dealt with in the Terrorism Bill, on which we have commented separately, and some will be included by way of Government amendments to the Immigration and Asylum Bill. We will forward our comments on the amendments to the Immigration and Asylum Bill as soon as possible after they have been published.

  We note the publication on 6 October 2005 of a consultation paper on Places of Worship, but have not yet had time to consider it.

  We currently have the following comments:

Prime Minister: Fifth, cases such as Rashid Ramda, wanted for the Paris Metro bombings 10 years ago, and who is still in the UK whilst France seeks extradition are completely unacceptable. We will begin consultation on setting a maximum time limit for all future extradition cases involving terrorism.

  Extradition proceedings are now subject to the Extradition Act 2003 (EA 2003) which introduces a fast-track procedure in respect of Category 1 countries, which includes France, without the need for intervention by the Home Secretary.

  Rashid Ramda is an Algerian man suspected of terrorism offences involving the bombing of the Paris Metro some 10 years ago. France has applied for his extradition. As this is a pre-EA 2003 case, the proceedings are taking place under much slower pre-EA 2003 law, as the new procedures and much quicker "fast track" time limits that apply under the 2003 Act, particularly for Part 1 EU countries where the European Arrest Warrant is in force, are not applicable. Criticism of the delays inherent in the old system led to the introduction of the EA 2003.

  Under the EA 2003 if a judge decides that a person's extradition would not be compatible with their Convention rights the person must be discharged. There is a right of appeal against this decision to the High Court, and thereafter to the House of Lords.

  Therefore, although a decision to order extradition made under the EA 2003 is subject to a right of appeal on human rights grounds, the extradition proceedings of someone in Ramda's position would now be much quicker. If no appeal is lodged the person must be extradited within 10 days if it involves a category 1 country. The effectiveness of the new process was recently demonstrated in the speedy extradition of the 21 July bombing suspect from Italy to the UK.

  We would oppose any change to allow for the extradition of a person charged with a terrorist offence who successfully claims that their human rights would be violated, particularly their right not to be subject to torture or inhuman and degrading treatment in breach of Article 3 ECHR.

Prime Minister: Sixth, we are already examining a new court procedure which would allow a pretrial process. We will also examine whether the necessary procedure can be brought about to give us a way of meeting the police and security service request that detention, pre-charge of terrorist suspects, be significantly extended.

New court procedure—see paragraph (iv) below

Extension of detention

  We do not think that the case is made out for such an extension. 14 days is a serious length of time without charge. Powers to detain are already longer in terrorism cases. The 14 day limit applicable to terrorist offences was enacted by the Criminal Justice Act 2003 which amended schedule 8 of the Terrorism Act 2000. It came into effect on 20 April 2004 and involves an application to a senior District Judge. There is an initial period of 48 hours, then an application under paragraph 29 (7 days) or paragraph 36 of schedule 8 must be made. In relation to other offences, under PACE the limit for pre-charge detention is 24 hours, extendable to 36 hours by an officer of superintendent rank or above, detention in respect of an arrestable offence[212]. A magistrate can then extend the period to 72 hours, followed by a further extension to 96 hours at most. This proposal will therefore allow suspects to be detained more than 20 times longer than the maximum period that a suspect can be detained for any serious non-terrorist offence, for example murder, rape or serious fraud.

  It appears to a large extent that the call for an extension of detention powers relates to the question of resources. Speed is of the essence in these cases where there may be evidence that could lead to prosecution for such serious offences, and the preferable option is surely therefore to ensure that investigations can be carried out as quickly as possible, in case they yield further useful information. We therefore believe that the more appropriate and proportionate way to deal with these concerns would be to ensure that the police and security services are properly resourced, rather than to extend the period of detention before charge.

  Furthermore, under PACE[213], the police are required to have some reasonable grounds to arrest, and so there must be evidence to ground that suspicion. We have seen no clear explanation as to why it is not sufficient to charge a suspect with a lesser offence to ensure that they do not have to be immediately released from custody whilst other matters are still being investigated. Charges can always be upgraded at a later stage and suspects questioned in relation to those further charges. Even if suspects are granted bail, courts have the power to impose strict conditions.

  Three months detention prior to charge is a length of time tantamount to internment. The government has stated that any extension would be used in extremely rare circumstances and would only apply to a tiny number of people[214]. In view of the serious nature of an extension and the few cases in which it should be necessary, should any extension beyond 14 days be made possible, it should be granted and reviewed at very short intervals by a High Court, rather than a District, Judge.

Prime Minister: Seventh, for those who are British nationals and cannot be deported, we will extend the use of control orders any breach of which can mean imprisonment.

  Whist we welcomed the Government's change to the Prevention of Terrorism Bill, now Act, to place the making of a derogation order depriving an individual of their liberty within the jurisdiction of a High Court judge, rather than the Home Secretary, we do not believe this goes far enough.

  We are disappointed that no concession was made with respect to non-derogation orders. We acknowledge that in certain cases the imposition of restrictions on liberty will not necessarily amount to a deprivation of liberty engaging Article 5 of the European Convention on Human Rights. However, to argue that this obviates the need for initial judicial control misses the point that severe restrictions, in some cases constituting penal penalties such as tagging or a curfew, will have a significant effect on the controlled person's liberty.

  In other cases, the restrictions listed in the Act may, in combination, be so restrictive as to amount to a deprivation of liberty. To argue that such an order may be overturned on appeal, if indeed it does in reality amount to a deprivation of liberty, does not provide the affected person with an effective remedy against the initial decision that will have breached their right to liberty.

  We maintain that the rule of law requires that the initial decision regarding the imposition of all control orders must be made by a judge, not an elected politician.

  We are not persuaded by the Government's argument that allowing the Home Secretary to make the initial decision will allow greater speed of decision making. If they concede the power to make derogation orders to judges, which presumably will be required where the subject is considered to present a greater risk, practical arrangements will be in place so that cases can be listed before a judge very quickly.

(iv)   the possibility of allowing sensitive evidence, including intercept evidence, to be adduced in criminal trials

  The Newton Committee has noted a reluctance to adduce sensitive intelligence- based material in open court due to concern about compromising their source or methods[215]. The Society has repeatedly called for intercept evidence to be admissible as we believe that this would help with the prosecution of alleged terrorists. Evidential tools, similar to public interest immunity certificates, could be used to deal with what evidence is actually revealed to a jury and protect sources.

  The majority of common law jurisdictions, including Canada, Australia, S Africa, New Zealand and the United States admit intercept evidence[216]. In the light of the use of such evidence by other common law jurisdictions, the use of foreign intercept evidence in UK courts[217] and greater EU co-operation, the introduction of intercept evidence is the logical next step. Indeed, the Society agrees with the Joint Committee that the case for relaxing the absolute ban on the use of intercept evidence is overwhelming[218].

(v)   the possibility of establishing a judicial role in the investigation of terrorist crimes

  In the Law Society's response to the Government's consultation "Reconciling security and liberty', we said:

    "We reiterate our preference for CPS Special Caseworkers, rather than the judiciary, having a greater role in the assembling of a case. The judiciary have a key role in the management of criminal cases but to extend this into the assembling of criminal cases may adversely impact on their independence.

    We endorse the Joint Committee's recommendation[219] for a greater role for security cleared prosecutors to help translate sensitive intelligence into evidence. The Criminal Justice Act 2003 introduces a greater role for prosecutors generally, in the early stages of criminal proceedings and the White Paper on organised crime considered using specialist prosecutors in assembling cases. The Society believes that any concern about impartiality could be met by extending the pool of Special caseworkers to include defence specialists."

  If what is being suggested is a continental-style system, where the investigating magistrate basically directs the police to gather the evidence, both for and against the accused, that would constitute a major change from the adversarial system, in which the investigation and prosecution of serious offences is performed by the police and CPS, who then present the evidence to a magistrate who commits the case to the Crown Court for trial by jury.

  It is not clear what the advantage of such change is thought to be, as the prosecution/state would still have to disclose all the evidence upon which their case relies to the accused person, who has a fundamental right to know the case against them. This principle applies equally in an inquisitorial system. We acknowledge that in serious terrorist cases there may be a case for restrictions on the rights of the defence, such as the use of anonymous testimony, provided that the restriction is strictly proportionate to its purpose, does not undermine the very essence of a fair trial and the conviction is not based solely or decisively on evidence from such a source.

(vi)   the overall social and political context in which human rights standards are understood and applied by the courts, the Government and others, and in which the requirements of security are reconciled with those standards.

  No comment.

October 2005

207   In the case of R (on the application of Farrakhan) v Secretary of State for the Home Department [2002] 4 All ER 289 the Home Secretary excluded Mr Farrakhan from entering the UK on that basis. The ban was upheld by the Court of Appeal despite Article 10 of the ECHR being engaged. Back

208   Para 1, Report of the Privy Council Review Committee on Anti-Terrorism, Crime and Security Act 2001. Back

209   See Still at Risk: Diplomatic Assurances No Safeguard against Torture Human Rights Watch, 2005. Back

210   Eg 2004 Country Report: Jordan, US Department of State, 28 February 2005. Back

211   Eg Mass Arrests and Torture in the Sinai, Human Rights Watch, February 2005. Back

212   This distinction is to be abolished when the Serious Organised Crime and Police Act arrest powers come into effect in January 2006, and the power to arrest will exist for any offence. Back

213   S 24 Police and Criminal Evidence Act 1984, as amended by s 110 of the Serious Organised Crime and Police Act 2005. Back

214   Charles Clarke, Today programme, 27 September 2005. Back

215   Paragraph 207, Privy Councillors Review Committee. Anti-Terrorism Crime and Security Act 2001 Review Report (HC100: 18 December 2004). Back

216   Page 9 JUSTICE Response to Counter Terrorism Powers: Reconciling Security and Liberty in an open society. Back

217   RvP [2002] 2WLR463. Back

218   Paragraph 56, Joint Committee on Human Rights, 18th Report, 4 August 2004, HL158/HC713. Back

219   219 Joint Committee on Human Rights, Eighteenth Report, 4 August 2004, HL 158/HC713. Back

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