Joint Committee On Human Rights Written Evidence

26.  Submission from Professor Clive Walker, School of Law, University of Leeds on the Terrorism Bill


  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.


  2.1  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, 2003-XI. Back

260   Cmnd.8092, 1981. Back

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