27. Further submission from Professor
Clive Walker, School of Law, University of Leeds to the JCHR's
inquiry into counter-terrorism policy and human rights
1. INTRODUCTION
1.1 The Committee has called for evidence
on the human rights implications of developments in counter-terrorism
policy in the UK since 7 July 2005 and potential future developments
in that policy, including but not restricted to
(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;
(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 3 ECHR;
(iii) the various measures announced by the
Prime Minister at his press conference on 5 August (available
in full at www.number-10.gov.uk)
(iv) the possibility of allowing sensitive
evidence, including intercept evidence, to be adduced in criminal
trials
(v) the possibility of establishing a judicial
role in the investigation of terrorist crimes
(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.
1.2 Account should also be taken of the
measures contained in the Prevention of Terrorism Bill 2005-06,[261]
which is relevant to points (iii) to (v) above.
1.3 Point (vi) will be answered with concrete
examples in the other points. It would be wholly wrong to assume
that the courts have not been confronted with hard cases dealing
with requirements of security and rights or that they are unversed
in the difficulties posed by both values.
2. NEW LIST
OF "UNACCEPTABLE
BEHAVIOURS" FOR
EXCLUSION OR
DEPORTATION
2.1 Arguments of principle
A liberal democracy should start with the premise
that state coercion or restraint should apply in the sphere of
expression to speech which harms rather than speech which offends.
It follows that one can find principled support for measures which
seek to restrict speech which can be shown to have a dangerous
intended impact on othersto provoke them into terrorism
or to foment criminal activity. But the expression of despicable
ideas is best countered by better ideas.
2.2 Arguments under the European Convention
on Human Rights, Article 10
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.
This point will be expanded upon below in connection with proposals
in clause 1 of the Prevention of Terrorism Bill.
2.3 Arguments under the European Convention
on Human Rights, Article 14
There is a danger that placing greater restrictions
on the speech of non-citizens compared to the national population
will be found to be in breach of Articles 10 and 14 of the European
Convention on Human Rights. Just as the House of Lords applied
this principle to liberty in A v Secretary of State for the
Home Department,[262]
so it will be applied to freedom of expression. In short, unless
there is an equivalent criminal offence for British citizens,
the policy may be found to be discriminatory under article 14
of the European Convention. This danger is not solved by the proposed
offences in clause 1 of the Prevention of Terrorism Bill 2005-06.
Indeed, clause 1 highlights rather than removes the discrimination.
Offences applicable in the Bill carry a requirement of mens
reathat the offender "(i) he knows or believes,
or (ii) he has reasonable grounds for believing, that members
of the public to whom the statement is or is to be published are
likely to understand it as a direct or indirect encouragement
or other inducement to the commission, preparation or instigation
of acts of terrorism or Convention offences."[263]
But under the Home Office August 2005 guidance about "public
good" exclusions or deportations, the justification or glorification
of terrorism need only be "views which the government considers"
to be thus. In other words, there is certainly no requirement
of mens rea and, one might argue, no objective test at
all, though government opinion forming is subject to a requirement
of rationality in administrative law.
3. DEPORTATION
AND DIPLOMATIC
ASSURANCES
3.1 Arguments under the European Convention
on Human Rights, Article 3
Should the diplomatic assurances offer credible
and effective safeguards against abuse, then they would provide
an effective means of ridding the country of radical sheikhs and
others. The strategy[264]
stumbles over (i) being able to write in sufficient assurances
to be credible and then (ii) being able to trust in the assurances
which have been given.
3.2 A good example of the difficulties of
being able to write in sufficient assurances concerns the case
of Hani El Sayed Sabaei Youssef v Home Office.[265]
Youssef, an Egyptian, was detained under the Immigration Act 1971
with a view to deportation on national security grounds that he
was a senior member of Egyptian Islamic Jihad. The case relates
the efforts made in 1998 and 1999 to reach an agreement with the
Egyptian government. There is revealed the repeated insistence
of the Prime Minister that diplomatic assurances should be obtained
and that it would be sufficient to base the agreement on the simple
promise not to torture which would be taken at face value given
that Egypt was a party to the UN Convention against Torture and
had passed domestic legislation to ban torture.[266]
This line was seemingly opposed by the Home Office and Foreign
and Commonwealth Office who warned that accepting such guarantees
would not satisfy obligations under article 3 of the European
Convention on Human Rights. In any event, the Egyptian authorities
refused to make even a basic assurance, let alone the assurance
sought in earlier negotiations about procedural rights and monitoring
of conditions by British officials and lawyers.
3.3 To what extent are the agreements of
2005 more sufficient than the attempted agreement of 1999? We
have the example of the agreement with Jordan of 10 August 2005.[267]
This represents a considerable improvement on the Egyptian experience.
There are procedural safeguards, requiring, inter alia,
treatment in a humane and proper manner and in accordance with
internationally accepted standards and a fair and public hearing.
Furthermore, there is provision for visits by the representative
of an independent body nominated jointly by the UK and Jordanian
authorities, but consular visit are not permitted where the returned
person is arrested, detained or imprisoned. There is also no specific
guarantee in respect of the death penalty.
3.4 International law is rightly demanding
when it comes to state protection under Article 3, as affirmed
in a number of recent cases. In N v Finland,[268]
the European Court of Human Rights stated that:
"As the prohibition provided by Article
3 against torture, inhuman or degrading treatment or punishment
is of absolute character, the activities of the individual in
question, however undesirable or dangerous, cannot be a material
consideration."
It would seem that the "rules of the game"
have certainly not changed in the eyes of international judges,
though it is understood that there might be a further attempt
to sway the Court in Mohammad Ramzy v Netherlands.[269]
3.5 Another example of the difficulties
of meeting international law standards concerns the cases of Ahmed
Agiza and Mohammed al-Zari v Sweden before the UN Committee
against Torture.[270]
These asylum-seekers were deported from Sweden to Egypt aboard
a U.S. government-leased airplane, following written assurances
from the Egyptian authorities that they would not be subject to
the death penalty, tortured or ill-treated, and would receive
fair trials and would also benefit from regular visits to the
men in prison by Swedish diplomats Agiza was tried before a military
court which patently lacked some fundamental requirements of due
process in April 2004. Al-Zari was released without charge or
trial in October 2003. Both complained of torture, and there is
evidence that the Swedish diplomats concurred in at least some
of these allegations.[271]
The UN Committee against Torture found Sweden to be in breach
of its obligations:[272]
"The Committee considers at the outset that
it was known, or should have been known, to the State party's
authorities at the time of the complainant's removal that Egypt
resorted to consistent and widespread use of torture against detainees,
and that the risk of such treatment was particularly high in the
case of detainees held for political and security reasons. The
State party was also aware that its own security intelligence
services regarded the complainant as implicated in terrorist activities
and a threat to its national security, and for these reasons its
ordinary tribunals referred the case to the Government for a decision
at the highest executive level, from which no appeal was possible.
The State party was also aware of the interest in the complainant
by the intelligence services of two other States: according to
the facts submitted by the State party to the Committee, the first
foreign State offered through its intelligence service an aircraft
to transport the complainant to the second State, Egypt, where
to the State party's knowledge, he had been sentenced in absentia
and was wanted for alleged involvement in terrorist activities.
In the Committee's view, the natural conclusion from these combined
elements, that is, that the complainant was at a real risk of
torture in Egypt in the event of expulsion, was confirmed when,
immediately preceding expulsion, the complainant was subjected
on the State party's territory to treatment in breach of, at least,
article 16 of the Convention by foreign agents but with the acquiescence
of the State party's police. It follows that the State party's
expulsion of the complainant was in breach of article 3 of the
Convention. The procurement of diplomatic assurances, which, moreover,
provided no mechanism for their enforcement, did not suffice to
protect against this manifest risk."
3.6 One must conclude that mere paper assurances
are not sufficient to give protection against breaches of article
3. Governments, including the United Kingdom Prime Minister, seem
to be engaging in cynical manipulations of international law which,
fortunately for international law, have failed. Of course, those
who are deported are still being sacrificed, despite the fine
words of the judges. Until states such as Algeria, Egypt. and
Jordan can demonstrate sustained and practical reforms, then diplomatic
assurances will not prevent the United Kingdom from being condemned
in international law for having a hand in torture.
4. PREVENTION
OF TERRORISM
BILL 2005-06, INCLUDING
(III) MEASURES
ANNOUNCED BY
THE PRIME
MINISTER (IV)
INTERCEPT EVIDENCE
(V) A JUDICIAL
INVESTIGATIVE ROLE
4.1 These issues are grouped together since
some inter-relate and since the agenda is now set by the Bill.
4.2 Offences of encouragement and glorification
and wider grounds for proscription
4.2.1 As mentioned previously, 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
us the dubious utility of "broadcasting bans" and seeking
to prohibit and demonise representative figures from political
channels of communication.[273]
The broadcasting ban of 1988 had to be lifted as part of what
became the "Peace process" in October 1994. Whilst much
of what the representatives of extreme Republicanism or Jihadism
have to say is unpalatable or even reprehensible to many people,
their views must be engaged with so that 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.
These processes cannot occur if views cannot be aired in public.
Driving such views underground leads to one-sided presentations
which are left unchallenged.
4.2.2 There exist already broad offences
relating to support for terrorism under the Terrorism Act 2000
First, even persons who cannot be
shown directly to be members of proscribed organisations but have
provided support commit an offence under section 12. The commission
can come about through an number of distinct forms of involvement.
First, forbidden by section 12(1) is the act of inviting support.
It is declared that the support is not, or is not restricted to,
the provision of money or other property (since that activity
is expressly within the meaning of section 15). Thus, the provision
of labour and services (such as helping with money laundering
or digging a hole for weapons) could fall in this category.
Secondly, by section 12(2), a person
commits an offence if he arranges, manages or assists in arranging
or managing a meeting which he knows is (a) to support a proscribed
organisation, (b) to further the activities of a proscribed organisation,
or (c) to be addressed by a person who belongs or professes to
belong to a proscribed organisation.
By section 12(3), a person commits
an offence if he addresses a meeting and the purpose of his address
is to encourage support for a proscribed organisation or to further
its activities.
By section 13(1), a person in a public
place commits an offence if he (a) wears an item of clothing,
or (b) wears, carries or displays an article, in such a way or
in such circumstances as to arouse reasonable suspicion that he
is a member or supporter of a proscribed organisation.
It is true that clauses 1 and 2 of the Bill
are not tied to proscribed organisations (though that is a burgeoning
category and includes al Qa'ida). But if the support for terrorism
is not specific and has no tangible outcome, should the speech
be criminalised? There is a line to be drawn between free speech
and incitement and the position in the Terrorism Act 2000 is to
be preferred.
4.2.3 The current version of the Bill (clauses
1 and 2) is certainly preferable in many aspects to the draft
produced in September. However, it should be confined to the lines
adopted by the Council of Europe Convention on the Prevention
of Terrorism,[274]
which is said to be the reason for clause 1 according to the Explanatory
Memorandum. It is clear that clauses 1 and 2 go well beyond article
5 of the Convention (Public provocation to commit a terrorist
offence):
"1. For the purposes of this Convention,
`public provocation to commit a terrorist offence' means the distribution,
or otherwise making available, of a message to the public, with
the intent to incite the commission of a terrorist offence, where
such conduct, whether or not directly advocating terrorist offences,
causes a danger that one or more such offences may be committed.
2. Each Party shall adopt such measures as
may be necessary to establish public provocation to commit a terrorist
offence, as defined in paragraph 1, when committed unlawfully
and intentionally, as a criminal offence under its domestic law."
Article 5 differs significantly from clause
1 in these respects:
it requires a specific intent in
all cases, whereas under clause 1 it is sufficient for the perpetrator
to have reasonable grounds for believing, that members of the
public to whom the statement is or is to be published are likely
to understand it as a direct or indirect encouragement or other
inducement to the commission, preparation or instigation of acts
of terrorism or Convention offences;
it requires the intended outcome
to be the commission of a terrorist offence and not just its preparation
or instigation.
4.2.4 The reasons for the restraint in Article
5 resulted from the concern during the discussions leading to
the Article that a widely-drawn provision would unduly stifle
legitimate public debate. This concern was warranted by experience
of offences of "apology of terrorism", which have been
attempted in other European 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.
An example might be Article 10 of the Spanish Organic Law 9/1984
(now repealed) is comparable, and it produced findings of unconstitutionality
within a year or so of its passing. An example of the kind of
difficulties arising (under related legislation) is the case of
Castells v Spain.[275]
The applicant was an elected Senator who represented a Basque
constituency on behalf of Herri Batasuna, the main separatist
political party.[276]
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.
4.2.5 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,[277]
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.
4.2.6 The same criticisms apply to the proposed
extension to the grounds of proscription in clause 21 of the Bill.
Once again, the criminal law should require a closer link to harms
than is present in activities such as "glorification".
Just as the government was persuaded to drop clause 2 of the draft
Bill, so this provision should be dropped.
4.2.7 In conclusion, clause 1 is too broad
and should be redrawn to reflect the precise and careful wording
of Article 5 of the Council of Europe Convention on the Prevention
of Terrorism. The result would serve some symbolic purpose, though,
like offences of proscription in general, would not make much
impact on the prevention of terrorism.
4.3 Preparatory and training offences
4.3.1 The Bill deals with these matters
in clauses 5 to 8.
4.3.2 The main question here is what practically
will be achieved by these measures? Once again, one should not
imagine that the law is a tabula rasa on such activities.
The Terrorism Act 2000, section 54(1),
deals with weapons training. A person commits an offence if he
provides instruction or training in the making or use of (a) firearms,
(aa) radioactive material or weapons designed or adapted for the
discharge of any radioactive material, (b) explosives, or (c)
chemical, biological or nuclear weapons (as amended by section
120 of the Anti-terrorism, Crime and Security Act 2001, which
added (aa)).
It is correspondingly an offence
under section 54(2) to receive instruction or training, or, under
section 54(3) to invites another to receive instruction or training
contrary to sub-section (1) or (2) even if the activity is to
take place outside the United Kingdom, such as in Afghanistan,
Pakistan and elsewhere. By way of interpretation, by section 54(4),
"instructions" and "invitations" can be general
(such as by a pamphlet or via the Internet) or to one or more
specific persons.
By section 113(1) of the Anti-terrorism,
Crime and Security Act 2001, it is an offence for a person to
use or threaten to use a noxious substance or thing to cause serious
harm in a manner designed to influence the government or to intimidate
the public.
Section 114 deals with hoaxes with
reference to "a noxious substance or other noxious thing".
4.3.3 Now one can imagine some differences
in some cases between the existing and proposed offencessay,
between section 54 and, say, clauses 6 and 8. Section 54 is essentially
concerned with munitions training whereas clauses 6 and 8 can
cover instruction in targeting and military strategy. It will
immediately be seen that the agenda of clauses 6 and 8 are extremely
wide and fail to link directly to harm, unlike section 54, and
this calls into question whether the widening is desirable. There
is a danger that the clauses will be used as a weapon to cast
suspicions on all persons attending madrasses and other foreign
institutes which are not under close state control.
4.3.4 Similar arguments apply to clause
5, which proposes to enact a new offence where, with the intention
of (a) committing acts of terrorism, or (b) assisting another
to commit such acts, a person engages in any conduct in preparation
for giving effect to his intention. How does this compare to section
57 of the Terrorism Act 2000, by which a person commits an offence
if he possesses an article in circumstances which give rise to
a reasonable suspicion that his possession is for a purpose connected
with the commission, preparation or instigation of an act of terrorism.
The difference is that there must be something tangible under
section 57 but not under clause 5. So, there is a real distinction
but it once again pushes the criminal law into very vague realms
where the conduct is far removed from any harm and may be equivocal.
Indeed, the drafters of clause 5 themselves find it difficult
to say where it would bite in ways where section 57 does not bite.
The Explanatory Memorandum states wholly erroneously that "At
the moment the law does not cover preparatory acts . . ."[278]
and then goes on to give as an example of its use as follows:
"Under the new offence created by this clause
acts of preparation with the relevant intention will be caught,
for example if a person possesses items that could be used for
terrorism even if not immediately and that person has the necessary
intention he will be caught by the offence."
That scenario is exactly covered by section
57.
4.4 Radioactive and nuclear offences
4.4.1 One is once again hard-pressed to
see the gaps in the existing law which are being filled. But there
are two disturbing measures hidden away.
4.4.2 By clause 12, it is proposed that
the trespassing offence in section 128 of the Serious Organised
Crime and Police Act 2005 be extended to all nuclear sites. One
might predict that this will result in the widescale arrest of
"peace" protestors and their attempted demonisation
as terrorists. Trespass to such nuclear sites as are not already
protected as prohibited places under the Official Secrets Act
1911 should be dealt with under other legislation (in the same
was as trespass on an aerodrome is dealt with under section 39
of the Civil Aviation Act 1982).
4.4.3 It is startling to find clause 15,
which deals with offences under section 53 of the Regulation of
Investigatory Powers Act 2000, in this section at all. It has
nothing to do with radioactive or nuclear issues. One might also
ask why it is necessary to increase the penalties for an offence
which the government has failed to bring into force for half a
decade. It is occasionally claimed the wickedly cunning terrorists
are using encryption to thwart the security forces. There is very
little evidence that encryption is in wide use or, where it has
been used, either that the encryption could not be broken or that
there was so much encrypted evidence as to thwart the investigation.
4.5 Commission abroad
4.5.1 A wide range of offences committed
abroad can already be tried in the United Kingdom. Such is the
effect of sections 59 to 61 of the Terrorism Act, which seek to
give United Kingdom courts jurisdiction over offences of incitement
of terrorism abroad. This notion of extended jurisdiction is builds
upon sections 5 to 7 of the Criminal Justice (Terrorism and Conspiracy)
Act 1998, giving the United Kingdom courts jurisdiction over acts
of conspiracy in the United Kingdom relating to offences committed
or intended to be committed abroad.
4.5.2 Clause 17 is broader stillit
applies to the act itself as well as inchoate offences. The result
might be calls for the British government to do the dirty work
of dubious foreign governments. For example, what if Saddam Hussein
were still in power and called upon the British government to
take action against any surviving "terrorists" of Dujail
who, in 1982, had attempted to assassinate him? Clause 19 seeks
to allow the Attorney General to discern the good guys from the
bad guys. Whilst there can be comity within the European Union
and with some other states, this universal jurisdiction is better
serviced by international courts.
4.6 Three month detention
4.6.1 The evidence for such an extended
period is weak. First, one should ask what has so radically altered
since 2003, when the Criminal Justice Act 2003, section 306 extended
the maximum permissible detention period from seven days to 14
days. The main arguments for the change were marshalled by Lord
Carlile and related to the difficulties of identifying foreigners
and interpreting what they say as well as arranging specialist
legal advice and attending to their spiritual welfare, plus the
delays in forensic testing and computer analysis.[279]
The alike ministerial explanations were challenged by Lord Lloyd:
"There is nothing new in any of those grounds. . . . Moreover,
there is nothing unique about terrorism in respect of those three
grounds . .".[280]
It is submitted that Lord Lloyd was right then, and the same applies
now. 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 the 15 September 2005, there is no evidence
produced that they are "so completely different" (p.1)
to the position in October 2003 nor that these problems have prevented
prosecution in any given case. Looking further at some of the
cases raised in that letter, one must conclude that a proportionate
case is not made out:
Does it take longer to obtain communications
data about terrorists than it does about drug dealers in the Netherlands?
The tracking of Osman after 21 July did not seem to cause undue
problems even across two or three countries. In so far as cases
founder on the lackadaisical attitude of foreign governments (as
alleged in Operation Springbourne), then of course there is a
problem. But it is part of the philosophy of the criminal law
only to proceed with clear and present dangers. Time-limited charging
procedures exist because there is a need to respect liberty and
because police suspicions about crime are not always reliable.
Operation 2005 (July bombings)These
bombings produced much evidence. The fact that some premises could
not be immediately searched is not exceptional and does not wipe
out the mounds of evidence which was recovered from searches,
including of the crime scenes and the homes of the bombers. A
similar argument applies to allegations about encrypted evidence;
only one case, Operation 2004, mentions encryption, but it does
not say how this hampered the investigation nor is it revealed
how long it took to decipher. Several of these cases suggest that
the poor management of operational resources was more acute than
any legal deficiency. Next, the paper complains that the defence
of lack of intention to kill (put forward later by Osman) might
be taken up by others, but it is too late to question them. If
other defendants wish to put this defence, they can be cross examined
at trial, and if they refuse, then section 35 of the Criminal
Justice and Public Order Act 1994 can be invoked. Silence in police
custody is also evidence under section 34 (relevant to Operation
2004). And why was there no forensic evidence within 14 days when
entire bags of explosives were found within a day or two? Did
that finding have no bearing on the questions about their intentions?
Theoretical case studyOne
can all imagine hard cases but it has not been shown that they
occur in reality. As mentioned above, if the police are being
overwhelmed, then that is more a matter for operational management
of resources than changes in the law.
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.
4.6.2 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 for a criminal prosecution.
4.6.3 If points, 4.6.1.and 4.6.2 are not
accepted, and it is felt that more pre-charge time is required
for effective terrorist investigations, then it is next submitted
that the tactic adopted of extending police detention is an inappropriate
answer. 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. It is fundamentally
contrary to notions of liberty that persons should be held for
so long without charge and judicial control of their fate.
The fact that a judge periodically
sanctions the detention does no more than alleviate these concerns.
The English judge who periodically reviews and approved detention,
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[281]
was of the view that it was only fair to detain for the purposes
of interrogation for four days.
The useful survey recently published
by the Foreign and Commonwealth Office[282]
reveals that no other country allows three month detentions for
the purposes of interrogation by the police and in pursuance of
an investigation under police control. Two other jurisdictions
not mentioned in that paper are Sri Lanka and Zimbabwe, neither
of which has garnered a reputation for showing great restraint
in the use of emergency measures. Section 7 of the Sri Lankan
Prevention of Terrorism (Temporary Provisions) Act allows for
police detention limited to just 72 hours. As for Zimbabwe, in
February 2004, President Mugabe used regulations under the Presidential
Powers (Temporary Measures) Act 1990 to amend the Criminal Procedure
and Evidence Act 1974, section 32. The result was to allow for
pre-trial detention of 28 days (up from 7 days) of people suspected
of certain economic crimes or certain offences under the Public
Order and Security Act 2002. This period was later reduced to
21 days by the Criminal Procedure and Evidence (Amendment) Act
2004.
4.6.4 If, contrary to the view expressed
at 4.6.1, it is felt that lengthy investigative periods are inevitable,
then two problems must be overcome.
One is to ensure the availability
and security of the suspect throughout the period of police investigation.
The other is to allow for questioning
even after the normal period of questioning must have ceased.
This will be 14 days under the Terrorism Act. At the end of that
period the person must be charged or released. But the police
will then rightly point out that, if the person is charged with
such evidence as they can muster at that point, they cannot question
further about the evidence since Code C para.16.5 of the Police
and Criminal Evidence Act 1984 states that "A detainee may
not be interviewed about an offence after they have been charged
with, or informed they may be prosecuted for it, unless the interview
is necessary: to prevent or minimise harm or loss to some other
person, or the public; to clear up an ambiguity in a previous
answer or statement; in the interests of justice for the detainee
to have put to them, and have an opportunity to comment on, information
concerning the offence which has come to light since they were
charged or informed they might be prosecuted."
4.6.5 It is submitted that the first problem
can be overcome through the use of control orders. These require
a lower burden of proof than a criminal conviction and can certainly
guard against uncontrolled release. In any event, the complaint
of the police has primarily concerned the inability to charge
with a comprehensive range of offences rather than an inability
to charge with any offences. So this problem may not arise in
most cases, since the suspect will be remanded on other charges.
4.6.6 Later post-charge questioning 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 and by subjecting the "witness"
to the same conditions as to compulsion as would apply in the
police station. This would require an amendment to section 6(2)
by which "A witness examined under this section shall not
be excused from answering any question on the ground that the
answer thereto may criminate, or tend to criminate, [that witness
or the husband or wife [spouse or civil partner] of that witness];
but any statement made by any person in answer to any question
put to him [or her] on any examination under this section shall
not, except in the case of an indictment or other criminal proceeding
for perjury, be admissible in evidence [against that person or
the husband or wife [spouse or civil partner] of that person]
in any proceeding, civil or criminal." The purpose is to
make the answer admissible, so this clause should be replaced
by the usual provisions about silence in the Criminal Justice
and Public Order Act 1994, sections 34, 36 and 37. Another reason
for avoiding compulsion is that it may contravene article 6 of
the European Convention where other criminal proceedings are pending.
In Shannon v United Kingdom:[283]
"If the requirement to attend an interview
had been put on a person in respect of whom there was no suspicion
and no intention to bring proceedings, the use of the coercive
powers [to examine and demand answers] might well have been compatible
with the right not to incriminate oneself . . . The applicant,
however, was not merely at risk of prosecution in respect of the
crimes which were being examined by the investigators: he had
already been charged with a crime arising out of the same raid.
In these circumstances, attending the interview would have involved
a very real likelihood of being required to give information on
matters which could subsequently arise in the criminal proceedings
for which the applicant had been charged. The security contextthe
special problems of investigating crime in Northern Irelandcannot
justify the application of the [coercive powers]."
The same case conduces against the proposed
use of disclosure notices under clause 32 of the Bill.
4.6.7 It should be emphasised that a judicial
examination of this kind is not the same as appointing a judge
as investigator. Under the proposal, the judge can retain the
role of umpire, with a prosecutor putting the questions. It is
submitted that this is far preferable to the confusion of roles
which would be represented by a judge-investigator. Judges have
no training in police investigation. Furthermore, they would have
to rely on police sources of intelligence and evidence, assuming
they were forthcoming from the police which may not always be
true where an "outsider" is involved, and so could not
really act independently. To be viable, a judge-investigator would
therefore need independent resources as well as training. Furthermore,
it would be contrary to the rules about bias if such a person
appeared at the same time as a judge in other cases, for their
independence would be fatally compromised during the period of
office as investigator.
4.6.8 A number of substantial advantages
would flow from judicially-managed examinations. The person would
have to be released from police custody after 14 days, meaning
that existing limits could be respected. At that point, the person
would be charged or be subject to a control order or be 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 and ensuring respect for the independence
of the judiciary. It would also ensure clearer circumstances of
fairness and humanity for the suspect.
4.7 Intercept evidence
4.7.1 It would assist in many cases to have
intercept evidence as admissible. No serious debate on the issue
can be held without information. As a first step, the Home Office
should publish the reports from the inquiries held to date, including
the most recent in 2004. It should be explained why the normal
procedures for dealing with public interest immunity cannot satisfactorily
deal with any concerns.
5. MISCELLANEOUS
5.1 Review
5.1.1 It is vital that counter terrorism
measures be kept under close review. Clause 35 is inadequate in
two respects:
There is no mention of relevant measures
in the Anti-Terrorism, Crime and Security Act 2001, nor in the
Prevention of Terrorism Act 2005.
The sole reviewer, Lord Carlile,
is an excellent choice. But the work should be undertaken by a
panel of three reviewers, appointed to different terms, to ensure
that a fresh look is constantly taken.
5.2 Public justice
5.2.1 The Terrorism Act 2000 was designed
to consolidate all measures into one Act. But there are now, or
will be, four different sources. The government should commit
to tidying up the statute book so that citizens can readily ascertain
their legal position.
5.2.2 The government should be open about
its use of powers such as detention without trial or deportation
on grounds of national security. Just as the courts must operate
under the principle of open justice, so should executive decision-making
which affects the rights of individuals. Thus, the spectacle of
a Home Office Minister refusing to name the deportees on spurious
or undisclosed grounds should not be repeated. The rule of law
requires accountability and accountability requires information.
5.3 Judicial justice
5.3.1 Since many of the powers in the counter-terrorism
legislation can be expected to last indefinitely, normal principles
of constitutionalism should apply. These require that decisions
affecting the rights of individuals should be subject to judicial
decisions and not executive decisions so far as possible. Thus,
there should be no warrant powers exercisable by Ministers. This
principle has been recognised in relation to search warrants in
Schedules 4 and 5 of the Terrorism Act. It should also apply to
Part I of the Regulation of Investigatory Powers Act 2000.
5.4 Victims
5.4.1 The counter-terrorism legislation
ignores the plight of victims, the shabbiness of which has been
highlighted by the July 7 bombings in London. There is a need
for special regulations for various reasons. One is that mass
casualties can otherwise be kept waiting for unacceptable periods.
The other concerns the principles of social solidarity with the
victims of an attack on the public and also the need for the recovery
of normality. Finally, they types of losses from terrorism may
be different to other crimes.
5.4.2 It is the contention of this paper
that the laws and policies on this topic are grossly under-developed.
Such laws as do exist fall broadly into two categoriespersonal
injury and property or other financial loss.
5.4.3 The aspect of personal injury is dealt
with by two non-statutory schemesthe Criminal Injuries
Compensation Authority[284]
and the Compensation Agency (Northern Ireland).[285]
So far as personal injury is concerned, the schemes are both very
similar. A victim may make an application if:[286]
(a) a victim of a crime of violence, or injured
in some other way covered by the Scheme;
(b) physically and/or mentally injured as
a result;
(c) in England, Scotland or Wales at the
time when the injury was sustained; and
(d) injured seriously enough to qualify for
at least the minimum award available under the Scheme; or
(e) a dependant or relative of a victim of
a crime of violence who has since died."
There is a variety of limitations inherent in
this scheme which make it neither generous nor wholly appropriate
when dealing with the victims of terrorism. Consider the following
shortcomings.
5.4.4 One is that the emphasis on "crime
of violence" does not capture the whole of the definition
of terrorism. Though part of the controversy surrounding the definition
in section 1 of the Terrorism Act 2000 is that it extends well
beyond violence, there seems to be a mismatch between what is
criminalised as terrorism and what might be compensated as terrorism.
For example, the definition includes actions which creates a serious
risk to the health or safety of the public or a section of the
public or which is designed seriously to interfere with or seriously
to disrupt an electronic system. According to the rules of the
system:[287]
There is no legal definition of the term but
crimes of violence usually involve a physical attack on the person,
for example assaults, wounding and sexual offences. This is not
always so, however, and we judge every case on the basis of its
circumstances. For example, the threat of violence may, in some
circumstances, be considered a crime of violence.
5.4.5 Next, there is the problem that the
victim must be in England, Scotland or Wales at the time when
the injury was sustained. This leaves out, for example, of British
diplomats or military attache[acute]s who have been targeted abroad
(such as in Greece in 2000) and also persons unattached to the
British state who are selected for attack simply as British or
even Western European residentshostages in Lebanon, for
example. Though many other Western European countries operate
similar schemes of state compensation,[288]
the victim may find that to make claims abroad is cumbersome,
and outside Western Europe and North America one cannot be sure
that such systems exist at all.
5.4.6 Thirdly, the victim must be injured
seriously enough to qualify for at least the minimum award available
under the Scheme. According to note 12 in the Tariff of Awards:
Minor multiple physical injuries will qualify
for compensation only where the applicant has sustained at least
3 separate physical injuries of the type illustrated below, at
least one of which must still have had significant residual effects
6 weeks after the incident. The injuries must also have necessitated
at least 2 visits to or by a medical practitioner within that
6-week period.
In addition to the minimum, there is also a
maximum payment of £500,000.[289]
It is also the case that compensation is not payable for the first
28 full weeks of lost earnings or earning capacity,[290]
and that persons convicted of an unspent offence are disqualified,
even if the offence is wholly unrelated to terrorism.[291]
5.4.7 Even greater qualifications apply
to the second aspect of victimology, property or other financial
loss. The troubled situation in Northern Ireland, and the fact
that it has for many decades scared away insurance companies from
offering cover for terrorist-related damage means that the Northern
Ireland scheme (which is based on the Criminal Damage (Compensation)
(Northern Ireland) Order 1977)[292]
does allow for compensation for terrorist acts. However, there
are again limits. The terrorism must arise from activities by
or on behalf of an unlawful association. It follows that isolated
individuals, such as David Copeland, who planted three nail bombs
in 1999, may not be covered.[293]
In addition, Compensation will not be paid in respect of:[294]
(a) any damage to, destruction or theft of
(i) coins, bank notes, foreign currency, postal
orders, money orders, or any postage stamps;
(ii) any articles of personal adornment, including
watches and jewellery unless kept by the owner as part of stock
in trade; or
(b) property taken from a damaged vehicle
or building except in certain circumstances eg if the property
was stolen from a damaged building in the course of a riot.
As far as claims within Great Britain within
the purview of the Criminal Injuries Compensation Authority, there
is no scheme whatsoever for compensation where the property or
other financial loss is unrelated to personal injury. In such
cases, the only state aid is by way of the Pool Re scheme which
is designed to ensure that, unlike in Northern Ireland, insurance
cover remains available. The scheme arose from bombings in the
City of London in St Mary Axe 1992 and Bishopsgate in 1993 which
produced a response from the government, concentrated around the
Reinsurance (Acts of Terrorism) Act 1993.[295]
5.4.8 In conclusion, it could be argued
that the present structures for dealing with the victims of terrorism
suffer from two defects. First, there are the gaps and shortcomings
which have already been listed. Provision and cover are far from
total or generous. The second issue arises from a wider perspective
and is the overall impression given of a legalistic and grudging
attitude, in which victims must fight every step of the way to
win compensation. It may be that in context of the victims of
crime, no other stance is affordable. However, the same attitude
in regard to terrorism arguably fails to give due prominence to
social solidarity and the state's interest in restorative measures
as an aspect of anti-terrorism policy.
5.4.9 One might contrast, with some hesitation,
the US Department of Justice's Office for the Victims of Crime,[296]
which has a Terrorism and International Victims Unit to provide
positive assistance to individuals and communities, as well as
responding to financial claims. A whole array of changes to the
Victims of Crime Act of 1984, as amended, [297]affecting
the Antiterrorism and Emergency Assistance Program, were brought
about by the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001
(commonly called the USA PATRIOT Act). [298]The
list of potential applicants has been expanded to include not
only eligible State crime victim compensation and assistance programs,
but also victim service organisations, public agencies, and non-governmental
organisations that provide assistance to victims. Prior amendments
allowed for payment to victims of international terrorism outside
the US. [299]The
scheme also encourages support for victim participation in criminal
justice proceedings against terrorists by including travel costs
to court or closed-circuit viewing facility, counselling, and
advocacy. Available funding includes:
A. Crisis Response Grant. Funding to help
rebuild adaptive capacities, decrease stressors, and reduce symptoms
of trauma immediately following a terrorism or mass violence incident.
B. Consequence Management Grant. Funding
to help victims adapt to the trauma event and to restore the victims'
sense of equilibrium.
C. Criminal Justice Support Grant. Funding
to help facilitate victim participation in an investigation and
prosecution related to an act of terrorism or mass violence.
D. Crime Victim Compensation Grant. Funding
to reimburse victims for out-of-pocket expenses related to an
act of terrorism or mass violence. Emergency Fund dollars may
not be used to cover property loss or damage.
E. Training and Technical Assistance. Funding
to assist in identifying resources, assessing needs, coordinating
services to victims, and developing strategies for responding
to an act of terrorism or mass violence.
Moving to business and property victimisation,
this aspect is taken up by the recently maligned Federal Emergency
Management Agency (FEMA). [300]The
agency co-ordinates emergency planning and response but also makes
Federal grants to assist state governments to overcome disasters.
In the case of September 11, one might compare Pool Re and the
ad hoc UK government grants to FEMA's Mortgage and Rental Assistance
(MRA) Program. [301]The
program covers the rent or mortgage payments for those who suffer
financial hardship as a result of a major disaster declared as
such by the President. [302]The
household must have suffered at least a 25 per cent loss of income
and be in peril of eviction, dispossession, or foreclosure as
a result of the disaster. In the case of New York, this could
apply to a business (or its employees) in the World Trade Center
area that was either physically damaged or inaccessible or even
someone who suffered because their company did business with a
World Trade Center area firm, even someone outside New York and
even a non-US national.
October 2005
261 2005-06 HC 55. Back
262
[2004] UKHL 56. Back
263
The absence of mens rea from clause 2 of the previous
draft Bill (glorification offence) was one of the reasons for
widespread criticism. Back
264
It was proposed in Home Office, Counter-Terrorism Powers (Cm.
6147, London, 2004) para. 38. Back
265
[2004] EWHC 1884 (QB). See also the survey by Human Rights Watch,
Still at Risk: Diplomatic Assurances No Safeguard Against Torture
(New York, 2005). Back
266
Ibid. para. 38. Back
267
Memorandum Of Understanding Between The Government Of The United
Kingdom Of Great Britain And Northern Ireland And The Government
Of The Hashemite Kingdom Of Jordan Regulating The Provision Of
Undertakings In Respect Of Specified Persons Prior To Deportation.
A corresponding agreement with Libya was reported on 18 October
2005. Back
268
App.38885/02, 26 July 2005 para.159. The applicant was seeking
asylum from the Congo. Back
269
App. no.25424/05. He is accused of fomenting terrorism on behalf
of the GSPC. Back
270
CAT/C/34/D/233/2003, 24 May 2005. Back
271
Human Rights Watch, Still at Risk: Diplomatic Assurances No
Safeguard Against Torture (New York, 2005) fn.178. Back
272
para.13.4. Back
273
See: Michael, J., "Attacking the easy platform" (1988)
138 New Law Journal 786; Thompson, B., "Broadcasting
and terrorism" [1989] Public Law 527; Jowell, J.,
"Broadcasting and terrorism, human rights and proportionality"
[1990] Public Law 149; Halliwell, M., "Judicial review
and broadcasting freedom" (1991) Northern Ireland Legal
Quarterly 246; Morgan, D.G., "Section 31: the broadcasting
ban" (1990-92) 25-27 Irish Jurist 117; Parpworth,
NJ, "Terrorism and broadcasting" (1994) 15 Journal
of Media Law & Practice 150; Banwell, C, "The courts"
treatment of the broadcasting bans in Britain and the Republic
of Ireland" (1995) 16 Journal of Media Law & Practice
21. The ban was attacked both in domestic courts and under the
European Convention: R. v. Secretary of State for the Home
Department, ex p. Brind [1991] 2 W.L.R. 588, In re McLaughlin's
Application (1991) 1 B.N.I.L. n. 36 (1990) 6 NIJB 4; Purcell
v. Ireland, App. no. 15404/89; Brind v UK, App no.18714/91,
McLaughlin v.UK, App no.18759/91; R v BBC ex p McAliskey
(LEXIS,1994). Back
274
ETS 196, 2005. Back
275
App. No. 11798/85, Ser. A, vol. 236 (1992). Back
276
The party was banned under LEY ORGA[acute]NICA 6/2002, de 27
de junio, de Partidos Pol[doti][acute]ticos (the ban was upheld
in Sentencia Tribunal Supremo, de 28 de Marzo de 2003, Recurso
n 6/2003 y 7/2003, Ponente Francisco Jose[acute] Hernando
Santiago, Id. vLex: VLEX-BA313) but is being contested before
the European Court of Human Rights. Back
277
App.no.59745/00, 2003-XI. Back
278
para.49. Back
279
House of Lords Debates vol.653 col.957-9 15 October 2003. Back
280
House of Lords Debates vol.653 col.955 15 October 2003. Back
281
Cmnd.8092, 1981. Back
282
Counter-terrorism legislation and practice: a survey of selected
countries (2005). Back
283
Shannon v United Kingdom, App. no.6563/03, 4 October 2005. Back
284
http://www.cica.gov.uk. Back
285
www.compensationni.gov.uk. Back
286
Guide to the 2001 Criminal Injuries Compensation Scheme, para.2.3. Back
287
Para.7.9. Back
288
European Convention on the Compensation of Victims of Violent
Crimes of 1983 (ETS 116, 1983; Cm.1427, 1991; Katsoris, C.N. (1990-91)
"The European Convention on the Compensation of Victims of
Violent Crime", Fordham International Law Review 14:
186; Greer, D.S. (1996) (ed.) Compensating Crime Victims,
Freiburg: Edition Iuscrim. Back
289
Criminal Injuries Compensation Scheme 2001, para.24. Back
290
Guide to the 2001 Criminal Injuries Compensation Scheme, para.4.13 Back
291
Criminal Injuries Compensation Scheme 2001, para.13(e) Back
292
SI No. 1247. See Greer, D.S. and Mitchell, V.A. (1982) Compensation
For Criminal Damage, Belfast: SLS Legal Publications Back
293
(2000) The Times 1 July p.1; Wolkind, M., and Sweeney,
N., "R v David Copeland" (2001) 41 Medicine
Science and Law 185. Back
294
A Guide to Criminal Damage Compensation in Northern Ireland,
para.10 Back
295
See Walker, C., "Political violence and commercial risk"
(2004) 56 Current Legal Problems 531. Back
296
http://www.ojp.usdoj.gov/ovc/familycallcenter.htm Back
297
42 U.S.C. §10601. Back
298
PL 107-56 Back
299
Antiterrorism and Effective Death Penalty Act of 1996. Back
300
http://www.fema.gov/ Back
301
Section 408(b) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act. Back
302
http://www.fema.gov/diz01/d1391tp07.shtm. Back
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