Joint Committee On Human Rights Written Evidence

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


  1.1  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

    (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.


2.1  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 others—to 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 rea—that 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.


3.1  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.


  4.1  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 offences—say, 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 still—it 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 study—One 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 context—the special problems of investigating crime in Northern Ireland—cannot 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.


5.1  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 categories—personal injury and property or other financial loss.

  5.4.3  The aspect of personal injury is dealt with by two non-statutory schemes—the 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 residents—hostages 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, 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 Back

285 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 Back

297   42 U.S.C. §10601. Back

298   PL 107-56 Back

299   Antiterrorism and Effective Death Penalty Act of 1996. Back

300 Back

301   Section 408(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Back

302 Back

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