Joint Committee On Human Rights Written Evidence

20.  Submission from Liberty to the JCHR's inquiry into counter-terrorism policy and human rights


  Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.


  1.  Liberty believes that appropriate steps must be taken to protect us all from terrorism. Security and freedom (as manifest in the right to life and freedoms of speech and against arbitrary detention) are best reconciled and advanced within the international human rights framework left to the world by the generation which survived the Holocaust and the Blitz. This framework pays considerable respect to questions of public safety, but rightly demands detailed and rigorous thinking from Governments and legislators who find themselves interfering with competing rights and freedoms.

  2.  Legislation and policy should never be devised as a blunt tool for expressing political revulsion at terrifying acts. Statutes must be drafted with greater care than speeches. It is not sufficient that the passing of a new law would send tough signals to Britain's enemies, nor that it somehow makes some of us feel safer. Each proposed interference with democratic rights and freedoms must be carefully weighed against its purported benefits.


  3.  From the list of examples of unacceptable behaviour published on 24 August 2005, Liberty has concerns over the inclusion of "foment(ing), justify(ing) or glorify(ing) terrorist violence" as a grounds for exclusion or deportation. We believe that there must be further discussion over excluding or deporting those who justify or glorify terrorism.

  4.  Firstly, what exactly is meant by "terrorism"? Section 1 of the Terrorism Act 2000 defines terrorism as (among other things) an action that involves serious violence against a person, serious damage to property or which endangers a person's life, and which is intended to influence the government or intimidate the public for the purpose of advancing a political, religious or ideological cause. This is an extremely broad definition, especially since it applies not only to the UK Government and public, but worldwide. There is no indication that this definition will be the one used by the Home Secretary when making the decision to exercise the powers of exclusion or deportation.

  5.  Secondly, what kind of behaviour constitutes "justification" or "glorification"? It is arguable that comments made in the past by Cherie Booth and the former Liberal Democrat MP Jenny Tunge[220] were justifying terrorism. As these comments show, "justification" of terrorism is a very low bar to meet. Participants in legitimate political debate about the circumstances in which it is acceptable to take up arms against non-democratic regimes across the world would run the risk of being deported.

  6.  The broad nature of this list of "unacceptable behaviours" will have the effect of stifling the freedom of expression protected by Article 10 of the Human Rights Act 1998. This right has been described as "one of the essential foundations of (a democratic) society, one of the basic conditions for its progress and the development of every man . . . applicable not only for "information or ideas" that are favourably received . . . but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society".[221] People resident in this country should not feel that they cannot legitimately express an unpopular or controversial opinion without running the risk of being deported. It is also sensitive in the context of the community relations that are vital to ongoing intelligence efforts. For example, before the war in Iraq would it have been seen as justifying terrorism for an Iraqi asylum seeker to voice his opinion that Saddam Hussain was an evil dictator who should be overthrown by violence if necessary?

  7.  People who are not British citizens do not have a "right" to come to Britain and of course removals can be justified. It is worth pointing out that some of the behaviour described, such as "provoking others to terrorist or criminal acts" or "foment other serious criminal activity" is already criminal. If we say people are criminals then it is our responsibility to put them on trial rather than send them to another country.

  8.  Whilst we welcome the positive exercise of setting out guidance and examples of when and how this broad discretion will be used, we have some concerns about the lack of clarity and explanation offered in relation to grounds that might catch a wide range of people, from those who pose a threat to the UK, to those who are simply voicing dissension about oppressive regimes across the world. Freedom of speech is a vital part of the culture of tolerance that is so celebrated in this country. We urge some clearer indication that political debate should not be restrained for fear of being caught by this broad and rather vague example of unacceptable behaviour.


  9.  Since the London bombings both the Prime minister and Home Secretary have said that "the rules of the game have changed". The first move in this "game" (an analogy of questionable taste) has been to allow easier deportation of foreign nationals it believed to represent a threat. This is being achieved by broadening the scope of existing powers allowing removal of foreign national whose presence is "not conducive to the public good", and by seeking assurances with countries not to torture or mistreat returnees.

  10.  People who are not British citizens do not have a "right" to come to Britain, and Liberty does not contest the fact that the removal of certain people is justified. However, the state has an obligation to ensure that we do not return people to countries where they will be treated inhumanly, tortured or killed. Article 3 of the European Convention on Human Rights (ECHR) is a prohibition on torture, which prevents the UK from returning anyone to a country if the government accept that it is likely that they will be so treated. Liberty is deeply concerned about the Prime Minister's statement at his press conference that in order to deport people even if there is a substantial risk of torture in the destination country, "we can amend the Human Rights Act and that covers the British Courts' interpretation of the law".

  11.  The government is considering legislation forcing judges to take greater account of national security when considering human rights issues. To an extent this is misleading as it implies that national security concerns are not already at the heart of human rights considerations. Most of the rights and protections covered must take into account appropriate national security considerations and the courts are obliged to appreciate this.

  12.  A solution has been sought which seeks to reach assurances with other countries that there will be no mistreatment. Assurances are infinitely preferable to opting out of human rights obligations. However, they should still be treated with caution. No country is likely to admit to maltreatment or torture. The Government recently received assurances from Libya and is seeking others. However, the US State Department has acknowledged persistent allegations of routine torture in Libya in its latest country report on human rights practices, included reported methods such as "clubbing; applying electric shock; applying corkscrews to the back; pouring lemon juice in open wounds; breaking fingers and allowing the joints to heal without medical care; suffocating with plastic bags; deprivation of food and water; hanging by the wrists; suspension from a pole inserted between the knees and elbows; cigarettes burns; threats of being attacked by dogs; and beating on the soles of the feet".

  13.  Sir Nigel Rodley, the Special Rapporteur on Torture, has stated that to send terrorism suspects to counties where they would be likely to face torture would not only be "a violation of an absolute and peremptory rule of international law, it would be also responding to a crime against humanity with a further crime under international law. Moreover, it would be signalling to the terrorists that the values espoused by the international community are hollow and no more valid than the travesties of principle defended by the terrorists".[222] The 2005 Foreign Office Report on Human Rights states that "it is vital that we expose torturers and bring them to account". It is difficult to see how this view is in any way compatible with deporting anyone to a country which widely uses torture on the basis of diplomatic assurances.

  14.  If we are to rely on assurances from other nations at the very least there must be corroboration and robust involvement from international human rights monitors. What separates us from the terrorists is that we do not torture people or send them to be tortured.


  15.  At his press conference on 5 August 2005, the Prime Minister outlined 12 measures to "set a comprehensive framework for action in dealing with the terrorist threat in Britain". Liberty's concerns with some of these measures are outlined below.

Anyone who has participated in terrorism or has anything to do with it anywhere in the world will be automatically refused asylum

  16.  To refuse asylum to such a vaguely defined group of people would be a breach of the Refugee Convention. The Convention specifically excludes people when "there are serious reasons for considering" that they have committed such grave acts as war crimes, crimes against humanity or a "serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". Liberty believes that these measures are disproportionate. Had this policy been in place in the past, if Nelson Mandela had requested asylum, it would have been automatically refused due to his association with the ANC. As he explained in his trial for sabotage in 1961, the ANC was involved in "attacks on the economic life lines of the country . . . linked with sabotage on Government buildings". Under the Terrorism Act definition, this is terrorism.

Extending powers to strip people of citizenship

  17.  Powers already exist to strip a person of British citizenship, if the Secretary of State is satisfied that he has done anything "seriously prejudicial to the vital interests of the United Kingdom"[223] or a British overseas territory. What the Prime Minister proposed on 5 August is to remove citizenship from a person "if the Secretary of State is satisfied that deprivation is conducive to the public good".[224] Liberty is concerned at the width of this proposal. It is not, as the context in which it was introduced suggests, limited to those suspected of involvement in terrorism. People could be stripped of their citizenship and removed from their homes and families without any sort of criminal charges being brought. If British citizens are suspected of crimes, then they should be charged and prosecuted in Britain, and if found guilty, punished in Britain. To attempt to remove the problem by arbitrarily declaring people "non-citizens" is not an effective solution.

  18.  Stripping a person of their citizenship is a very visible declaration of suspicion. While this in fact may be what is intended, Liberty is concerned that the measure will be counterproductive, impacting both on community relations and on the ability of the intelligence services to gather reliable information.

Extended pre-charge detention

  19.  The Prime Minister's plans to significantly extend the pre-charge detention of terrorist suspects are contained in clause 23 of the current Terrorism Bill. Liberty has profound concerns about any extension of the detention period.

  20.   Habeas Corpus is an ancient tradition of the civil law. Clause 39 of the Magna Carta states "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land." This right against unjustified detention was later enshrined in statute in the Habeas Corpus Act 1679. More recently Article 5 of the Human Rights Act 1998 provides protection of liberty and security of person.

  21.  Naturally, liberty is not an absolute right and the state must be permitted to detain individuals for a reasonable period, without laying charges, to allow investigation. Currently terrorism suspects can be detained for a maximum 14 days. The proposal to extend this to three months is a direct response to a request by the Association of Chief Police Officers (ACPO) in a press release issued shortly after the London bombings. ACPO claimed that due to difficulties with collecting evidence, three months detention would be a more appropriate for terrorism suspects. The legality of pre-charge detention is governed by Article 5(3) of the HRA. This provides that anyone arrested or detained must be brought before a judge within a reasonable time and tried or bailed.[225] We think it is extremely unlikely that any attempt to allow three month detention could be compatible with Article 5, regardless of whether the detainee is regularly brought before a judge to authorise detention as required in the Bill. Rather than argue about how many days extension may or may not be permitted by the Convention, we choose to focus on the community impact of any extension and investigate alternative solutions.

  22.  The first proposal is one that we and others have made on repeated occasions. The bar on intercept evidence in criminal trials must be removed. We do not intend to go over arguments in favour of removing the bar again other than to point out that it must be the case that the inadmissibility of intercept must be a major factor in being unable to bring charges. We presume that much of the evidence gathered must be by way of intercept and would certainly be sufficient to meet the relevant charging standard. Continuing inadmissibility means that charges cannot be brought as easily.

  23.  Next, review the way in which people that have already been charged can be re-interviewed and recharged as further evidence is uncovered. This will allow for a charge to be replaced at a later stage of proceedings with a more appropriate offence. Given the range of offences available under the TA, under offences such as "preparation of terrorist acts" once the Terrorism Act 2005 is enacted, and under other criminal law[226] it is difficult to see how no charge could be brought. There is likely to be investigation and evidence gathering prior to arrest, followed by 14 days further investigation. In this time it must be possible to bridge the small gap between the evidence needed to arrest and the evidence needed to charge. Once an initial charge has been brought the police and Crown Prosecution Service, they can apply to the Court to remand in custody as they feel appropriate.

  24.  Arguments from the police advocating the extension of the detention period make references to difficulties arising from the need to locate and break encryption keys. A civil court can currently make an order requiring such a key to be handed over. Anyone failing to comply with such an order will be in contempt of court and can be detained in custody for a fixed period. This means they do not have to be under arrest with the custody clock running.

  25.  Section 47 of PACE already allows for people to be bailed to reappear back at a police station while the police continue investigations. This is a commonly used technique to allow time for forensic examination (for example, the testing of a substance to see if it is a narcotic). We presume that section 47 powers would not usually be used in terrorism cases due to a concern that the suspect would abscond. This problem could be addressed by attaching conditions to section 47 bail. Conditions could include curfew, reporting, or the surrender of a passport. Defendants in criminal cases will frequently have restrictions placed on their bail. Similarly, section 1 of the Prevention of Terrorism Act 2005 (PTA) suggests a range of restrictions. Part of our objection and opposition to the provisions of Section 1 PTA was that they were applied as a punishment in themselves, were not made in anticipation of any criminal proceedings, and were potentially indefinite. If conditions were time limited and made part of criminal process by being imposed in conjunction with Section 47 PACE we do not imagine the same concerns arising.

  26.  The overwhelming majority of people arrested under terrorism laws are released without charge. It is highly likely in the current context, that most of those arrested would be Muslim. At a time when the Prime Minister and others are emphasising the need for all sections of the community to work together any measure which caused Muslims to feel unfairly treated would be counterproductive. We appreciate many people will be in favour of extending time limits. It is unlikely that anyone who supports these measures would be directly affected by them. However, the impact upon those who have family, friends and neighbours arrested and then released weeks, or even months, later with no charge and no explanation will be huge.

Extensive use of control orders

  27.  The Prime Minister declared on 5 August that "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". Control orders amount to long-term punishment without trial (in violation of the right to a fair trial under Article 6 of the ECHR) and provide neither justice nor security.

  28.  Many control orders, whether restricting movement, association and communication or tagging, curfew or house arrest, will be punitive. European caselaw makes clear that if a measure punishes and has serious consequences, then it is part of the criminal process. Those subjected to control orders will suffer the badge of criminality without the benefit of a trial. They will be denied the presumption of innocence, the "golden thread" that runs back through centuries of criminal process to the Magna Carta. As with restrictions on liberty, to satisfy requirements of fair trial and presumed innocence, control orders must anticipate criminal proceedings.

  29.  Under Clause 2 (1) (a) of the Prevention of Terrorism Act 2005, the Secretary of State merely needs "reasonable grounds for suspecting that the individual has been involved in terrorism related activity". This is an extremely low threshold. We cannot imagine a situation where material that is put before the Home Secretary by the police or security services does not raise suspicion. Otherwise, it is unlikely to be placed before him. The ease with which this test will be satisfied is compounded by the fact that there is no mechanism for testing the strength of the material on which his suspicion will be based.

  30.  Once the Secretary of State has reasonable suspicion, he may make a control order if he considers it necessary to protect the public from the risk of terrorism (Clause 1 (1) (b)). This might appear to more stringent test. However, once satisfied that there is reasonable suspicion that a person is or has been involved in "terrorism related activity", it is not difficult to establish that the control order is necessary to protect the public from the risk of terrorism. There does not have to be any factual basis for this assessment of risk. Even if the suspicion is based on totally inaccurate and misleading information all that is required is that the suspicion of the Secretary of State be reasonable according to what is placed in front of him. If satisfied that there is reasonable suspicion it follows that there must be at least some risk, however slight that risk may be. The standard required to make a control order is exceedingly low.

  31.  Given the range of control orders they are extremely easy to breach. For example, if the person under an order meets someone who he is barred from contacting (Under Clause 1 (4) (d)) he will be in breach. As it is likely that these people will be from the same community, possibly from a small geographic location, it is difficult to see how any contact could be avoided. This means there is prospect of a criminal conviction and lengthy custodial sentence arising from a chance meeting. It is important to remember that the person subject to the order never has to be accused of any criminal offence. Breaching an order will involve an act which in normal circumstances would not be in any way improper, such as being out at a certain time or meeting a particular person. It will, therefore be easy to be criminalised and incarcerated without having ever committed a "crime".

Extending powers to proscribe organisations

  32.  The Government has the power to proscribe organisations concerned with terrorism under Part II of the Terrorism Act 2000. The suggestion now appears to be to ban extreme political parties and groups who are not involved with violence or its incitement. This is contrary to rights of free association, entirely anti-democratic and counter-productive to the priority of engaging young Britons in democratic discourse. This would violate Article 11 (freedom of association) of the ECHR.

  33.  Once organisations linked to terrorism has been proscribed, any type of contact becomes a serious criminal offence. Doing anything to further the aims of the organisation, such as speaking at a meeting or wearing a T-shirt expressing support for the proscribed organisation, will be an offence. It is one thing to prescribe organisations that are actually involved in terrorist activity. Once political organisations with no links to terrorism are banned, then fundamental democratic traditions of free speech and free expression are threatened. We may find the views of some extremist organisations to be distasteful. However, a ban will achieve nothing apart from further disenfranchisement. The current Terrorism Bill extends the grounds for proscription our briefing on the bill goes into further detail.

Closing Down Places of Worship

  34.  One of the most terrifying of the Prime Ministers proposals was to close down places of worship which the government considers to be centres of extremism. Religious freedom is a fundamental right which the state must respect. Any individual who is inciting other to commit offences can be prosecuted. Closing down places of worship is a broad-brush approach that can only be counterproductive. Those who hold extreme views will not change them but will instead become more resentful. Those involved will simply find other venues and forums to meet. Extremism needs to be confronted not driven underground.

Securing our Borders

  35.  Liberty has no problem with secure visa systems or with excluding those rationally believed to be dangerous from the United Kingdom. However we are disappointed in the repeated suggestion that combating terrorism is a matter of immigration control. Terrorists are not exclusively foreign nationals who may be legitimately denied entry to or deported from Britain. Serious questions must be asked about how terrorist organisations are able to successfully recruit among Britons and non-Britons alike. Creating "Fortress Britain" will not solve these problems.


  36.  Liberty has never supported an absolute bar on the admissibility of intercept evidence in criminal trials. The imperative behind the historic bar was the protection of Security Services' sources and methods rather than concern for the fairness of the trial process.

  37.  Legally the bar is an anomaly. The UK and Ireland are the only countries in the world to have a ban. The Regulation of Investigatory Powers Act 2000 (RIPA) forbids the use of domestic intercepts in UK court proceedings. However, foreign intercepts can be used if obtained in accordance with foreign laws. Bugged (as opposed to intercepted) communications of the products of surveillance or eavesdropping can be admissible even if they were not authorised and interfere with privacy rights. There are no fundamental civil liberties or human rights objections to the use of intercept material, properly authorized by judicial warrant, in criminal proceedings.

  38.  Rules of criminal evidence will apply to ensure that evidence is not admitted in such a way as to unfairly prejudice the case. Section 78 of the Police and Criminal Evidence Act (PACE) gives the court the discretion to exclude evidence if "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission . . . would have such an adverse effect on the fairness of proceedings that the court ought not to admit". There is a further common law power to exclude though this is rarely used. If there are concerns over protection of the State's sources then clearly established rule of Public Interest Immunity allow disclosure to be withheld from the defence and the public. This is particularly applicable when there are state interests that require protection of when informers and undercover sources have been used.

  39.  There may be further practical issues to overcome, but there is no principled reason why the bar cannot be lifted. The Government has stated that it is not a magic bullet solution. This may or may not be true. Lifting the bar would, however, remove the primary obstacle to bringing trials in criminal cases.


  40.  In Lord Carlile's Report on the Terrorism Bill 2005, he recommended the adoption of measures suggested by the Newton Committee in 2003, principally "to make a security cleared judge responsible for assembling a fair, answerable case, based on a full range of both sensitive and non sensitive material". This system of "examining magistrates" is currently in use in France. Liberty believes that to adapt this continental approach to the English system would be a flawed idea. It is not possible or desirable to simply transpose part of another State's legal system onto our own, especially when the framework underlying that part is so fundamentally different to our current legal system.

  41.  The French inquisitorial method has some problematic features, and we should at all costs avoid replicating any of these into English criminal law. The duties of the examining magistrate in France formerly involved both examination of the case, and the authorisation of detention. In 2000, the power to authorise detention was removed, and another judicial role was created for this purpose. The necessity to separate these roles is indicative of conflict in the original duties imposed on the examining magistrate. Any attempt to import this system into English law would be likely to require a similar division of responsibilities, perhaps requiring an examining judge with a separate judge to authorise detention, and a further judge to conduct the trial. This is an unnecessary and inefficient duplication.

  42.  The Home Office has in the past suggested the use of an investigating judge in order to combat its reluctance to disclose certain sensitive material. However, if the French model is followed, the lawyer for the person charged is kept informed of the information held by the investigators. Consequently, special procedures would still be required in order to deal with the disclosure of sensitive information.

  43.  Liberty believes that there exist uncomfortable parallels between the role of examining magistrates proposed by the Newton Committee and the "Diplock" courts used in Northern Ireland. The essential feature of the Diplock courts was a single judge sitting without a jury. The judge in this role is the sole and final arbiter of the law and of the facts of the case, which creates the possibility of the judge adopting a more pro-active or interventionist approach to the trial. Studies of Diplock courts have found evidence suggesting that judges did adopt such an interventionist approach.[227] Placing a judge in the position of deciding on both fact and law means that they must hear evidence before deciding whether it is admissible. If evidence is found to be inadmissible, the judge is still in the artificial position of having to forget what he has heard.

  44.  In the Diplock courts, criminal rules of evidence were relaxed in order to admit evidence using a lower standard than that in normal criminal courts. This relaxation led to a number of people being convicted on the basis of uncorroborated testimony of informants. By its very nature, intelligence evidence is unlikely to be corroborated. Liberty is concerned that any move towards a closed, Diplock style system—such as the French system of examining magistrates—will create the same problems and the same injustice.

October 2005

On Palestinian suicide bombers: "If I had to live in that situation—and I say that advisedly—I might just consider becoming one myself" Jenny Tunge, January 2004.

220   "As long as young people feel they have got no hope but to blow themselves up you are never going to make progress" Cherie Blair, June 2002. Back

221   Handyside v. U.K (1976) 1 E.H.R.R 737. Back

222   Statement by the Special Rapporteur to the Third Committee of the General Assembly, delivered on 8 November 2000, Annex II, E/CN.4/2002/76, at p14. Back

223   Section 40, British Nationality Act 1981. Back

224   Proposed Government amendment to the Immigration, Asylum and Nationality Bill 2005. Back

225   The person arrested can of course be charged and application made for remand in custody. Back

226   Presumably terrorist activities would include other offences of dishonesty such as fraud and deception. Back

227   Doran S and Jackson J, Judge Without Jury: Diplock Trials in the Adversary System (Oxford, Clarendon Press 1992). Back

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