20. Submission from Liberty to the
JCHR's inquiry into counter-terrorism policy and human rights
ABOUT LIBERTY
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.
INTRODUCTION
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.
A. LIST OF
"UNACCEPTABLE BEHAVIOURS"
INDICATING SOME
OF THE
CIRCUMSTANCES IN
WHICH THE
HOME SECRETARY
MAY EXERCISE
HIS POWERS
OF EXCLUSION
OR DEPORTATION.
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.
B. THE GOVERNMENT'S
INTENTION TO
DEPORT NON-UK
NATIONALS SUSPECTED
OF TERRORISM
ON THE
BASIS OF
DIPLOMATIC ASSURANCES
AND THE
POTENTIAL CONFLICT
WITH ARTICLE
3 ECHR
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.
C. THE VARIOUS
MEASURES ANNOUNCED
BY THE
PRIME MINISTER
AT HIS
PRESS CONFERENCE
ON 5 AUGUST
2005
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.
D. THE POSSIBILITY
OF ALLOWING
SENSITIVE EVIDENCE,
INCLUDING INTERCEPT
EVIDENCE, TO
BE ADDUCED
IN CRIMINAL
TRIALS
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.
E. THE POSSIBILITY
OF ESTABLISHING
A JUDICIAL
ROLE IN
THE INVESTIGATION
OF TERRORIST
CRIMES
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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