26. Submission from Professor Clive
Walker, School of Law, University of Leeds on the Terrorism Bill
1. OFFENCES OF
ENCOURAGEMENT AND
GLORIFICATION AND
WIDER GROUNDS
FOR PROSCRIPTION
1.1 The policy of closing down channels
of political discourse may be counter-productive in the long-term.
Surely, the experience with Sinn Fein has taught the United Kingdom
government the folly of proscription of political fronts (and
Sinn Fein was proscribed until 1974), of "broadcasting bans"
and of seeking to prohibit representative figures from political
channels of communication. The broadcasting ban of 1988 had to
be lifted as part of what became the "Peace process".
Whilst much of what the representatives of extreme Irish Republicanism
or Jihadism have to say is unpalatable or even reprehensible,
their views must be engaged with. In this way, the onlooking public
(including those who might be influenced by them, such as the
bombers from Leeds) can be educated and can hear opposing views.
In addition, the representatives can be engaged with in political
processes. These processes cannot occur if views cannot be aired.
1.2 Offences of "apology of terrorism"
have been attempted in other jurisdictions and have fallen foul
both of their national constitutional guarantees of free speech
and also article 10 of the European Convention on Human Rights.
Article 10 of the Spanish Organic Law 9/1984 is comparable, and
it produced findings of unconstitutionality within a year or so
of its passing. An example of the kind of difficulties arising
(not under that Act) is the case of Castells v Spain.[258]
The applicant was an elected Senator who represented a Basque
constituency on behalf of Herri Batasuna, the main separatist
political party. He wrote an article in a weekly magazine, Punto
y Hora de Eskalherria, voicing severe criticisms of the state
security agencies in the Basque region, including allegations
that they had murdered separatists. He was convicted of criminal
libel under an offence which did not admit truth as a defence.
On conviction, the applicant was imprisoned and disbarred from
public office. The Court found a breach of Article 10(1), especially
having regard to the importance of political speech by elected
politicians: "While freedom of expression is important for
everybody, it is especially so for an elected representative of
the people. He represents his electorate, draws attention to their
preoccupations and defends their interests. Accordingly, interferences
with the freedom of expression of an opposition Member of Parliament,
like the applicant, call for the closest security on the part
of the Court . . . In the case under review Mr Castells did not
express his opinion from the senate floor, as he might have done
without fear of sanctions, but chose to do so in a periodical.
That does not mean, however, that he lost his right to criticise
the Government." More generally, it felt that "the dominant
position which a government occupies makes it necessary for it
to display restraint in resorting to criminal proceedings, particularly
where other means are available for replying to the unjustified
attacks and criticisms of its adversaries or the media."
The Court was further disturbed that he had not been allowed to
prove the truth of his factual allegations, since truth was legally
inadmissible as a defence, a restriction which was not compatible
with a democratic society. One might argue that had the allegations
been made by a private individual, then their offensiveness and
implied incitement to violence against the police may have convinced
the Court otherwise.
1.3 It is clear that there is already a
myriad of offences which circumscribe extremist speech relating
to proscribed organisations, of which al Qa'ida is deemed to be
one. One is not doubting that speech directly encouraging violence
is harmful and should be stopped. One might here contrast the
Castells case. In Gunduz v Turkey,[259]
the leader of Tarikat Aczmendi (an Islamic sect) criticised in
a newspaper an Islamic intellectual known for his moderate views
and called his supporters comic and deserving to have "one
brave man among the Muslims to plant a dagger in their soft underbelly
and run them through twice with a bayonet". Even as a metaphor,
such language will not rouse any support from the European Court.
But one can easily foresee that in existing UK law such a threat
would amount to an incitement or a threat to murder or some form
of criminal harassment, all already covered by the law without
resort to anything in the Prevention of Terrorism Bill. The Government
has not clearly explained where there are gaps in the law where
harm can be caused. In so far as the proposed crimes and powers
deal with the causing of offence, however keenly felt, then that
should be distinguished as not a proper use for the criminal law.
2. THREE MONTH
DETENTION
2.1 The evidence for such an extended period
is weak. Whilst one can concede that terrorism investigations
can be complex in many of the ways suggested in the Annex to the
Letter of the Home Secretary of 15 September 2005, there is no
evidence produced that these problems have prevented prosecution
in any given case. If one takes the Leeds bombers of 7 July as
an example, if they had survived the bombing, there would surely
have been ample evidence for a charge aside from what might have
been gathered later from computers or from searches of houses.
So, the first submission is that there is a lack of proportionality
between the claim of a need for three months' detention and the
progress in actual cases to date.
2.2 This point can be underscored by the
fact that control orders can to some extent fill any gap. Control
orders can provide strict regimes of limited liberty whilst at
the same time allowing further evidence gathering to proceed.
Furthermore, the control order is not subject to the standard
of proof of a criminal prosecution.
2.3 If points, 2.1. and 2.2 are not accepted,
and it is felt that more powers are required for effective terrorist
investigations, then it is next submitted that the tactic adopted
of extending police detention is inappropriate. It is unacceptable
that persons should be held for lengthy periods on the authority
of the police. There are several reasons for this view:
— It gives the impression that the
liberty is enjoyed at the behest of the police—the United
Kingdom government would no doubt call this practice a characteristic
of a repressive police state if, for instance, "extremist"
opposition figures were arrested in Zimbabwe and held for three
months without charge. It is fundamentally contrary to notions
of liberty that persons should be held for so long without charge
and due process of law.
— The fact that a judge periodically
sanctions the detention does no more than alleviate these concerns.
The judge, unlike in Continental Europe, will not be in charge
of the investigation, and will find it difficult to gainsay what
the police contend about the exigencies of the investigation.
— The police do not have the physical
facilities to hold people in humane conditions for such a length
of time. As a result, a breach of article 3 is likely.
— Any statement obtained in circumstances
where a person has been subjected to the extraordinary conditions
of detention for beyond, say, four days, is likely to be viewed
as inadmissible by reasons of unfairness under section 78 of the
Police and Criminal Evidence Act 1984. Even with all the safeguards
of PACE, the Royal Commission on Criminal Procedure[260]
was of the view that it was only fair to detain for the purposes
of interrogation for four days.
2.4 There may be a more proportionate alternative
to the proposal in the Bill. If it is the case that (i) evidence
is being found at a point later than the current 14 day limit
and (ii) the police want to ensure that the suspect is available
for interrogation (the issue of uncontrolled release being averted
by control orders), then this could be achieved by adapting the
procedure under section 6 of the Explosive Substances Act 1883
by which a judicial examination can be conducted on the order
of the Attorney General when it is reasonably suspected that an
offence under the Act has been committed. The 1883 Act could be
amended by extending the range of possible offences for which
examination is permitted. A number of substantial advantages would
flow from this tactic. The person would have to be released from
police custody after 14 days, meaning that existing limits could
remain. At that point, the person would be charged or be subject
to a control order or set free. If further evidence arose from
investigations, further questioning would be possible by reference
to judicial examination, which would have the major benefit of
ensuring that the responses would be admissible evidence. It would
also ensure clearer circumstances of fairness and humanity for
the suspect.
October 2005
258 App. No. 11798/85, Ser. A, vol. 236 (1992). Back
259
App.no.59745/00, 2003-XI. Back
260
Cmnd.8092, 1981. Back
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