Anti Terrorism Legislation May Infringe Human Rights

UK Anti- terrorism legislation of the past decade has been a passionately debated topic both within the media and the legislature itself. On one hand, it is argued that any nation should indeed encompass the ability to prevent any terrorist atrocity carried out against its people even if it is at the cost of human rights infringement. On the other hand, a tax on civil liberties has often been deemed an atrocity within its own rights and the recent influx of legislation has done nothing other than help with the evolution of global terrorism. [1]

That the horrific events of September 11th 2001 changed the face of Terrorism is not at all in doubt. It was the end of the terrorism the world once knew as guerrilla violence for political gain. The violence administered on the New York skyscrapers was an unprecedented act which prompted an unprecedented reaction. Legislation in relation to terrorism in the UK was eagerly debated and following the 7th July 2005 it was accepted that the UK were not immune to attack thus facilitating the new legislation into position.

Though anti-terrorist legislation has long existed in the UK and, much of which, has been incorporated within the recent developments, many new offences have also emerged creating a shift in the balance of power between the public and those forces responsible for administering the new legislation. Naturally there has been a significant increase in relation to the scope of police powers. Furthermore, the ‘Intelligence Communities’ [2] have also capitalised in the power shift, especially in relation to covert intelligence gathering.

To venture further into the effects of the recent developments to the legislation, it is important to analyse the current framework. A natural point of focus would be the definition of terrorist activity. Section 1 of the Terrorism Act 2000 outlines terrorist activity as:

“the use or threat of action where, the action involves serious violence against a person, serious damage to property, endangers a person’s life or creates a serious risk to the health or safety of the public.” The “use or threat” must be “designed to influence the government or to intimidate the public…” [3]

Section 2 of the same Act outlines a terrorist offender is someone who:

“is or has been concerned in the commission, preparation or instigation of terrorism” [4]

Since the face of terror has changed to cell based networks, certain organisations are listed under the 2000 Act [5] as terrorist organisation, a recent addition to which has been Al-Qaeeda. A recent development emerging from the new legislation is the offence of organisations ‘glorifying’ terrorism being added to the list under s. 21 Terrorism Act 2006. This is not a question of whether such a provision is an intrusion on human rights; free speech in particular, as it obviously is but rather to what extent is such taxation justifiable.

Joining or rallying support of such proscribed groups is also a punishable offence under s. 12(1) of the 2006 Act. Arranging meeting and to address meeting of proscribed groups is also punishable under ss. 12(2) and 12(3) respectively. Even clothing worn in a manner that may raise suspicion that the wearer is a member of a proscribed group may earn a maximum penalty of 6 months imprisonment as per s.13 of the 2006 Act.

Even though the need for such legislation is truly understandable, its effect and operation has raised a fair few eyebrows. Though a tax on free speech is inevitable, it is understandable why organisations promoting terrorism may be proscribed. But the offence of wearing terrorist like clothing seems a step in the direction of racial profiling. Exactly what does a terrorist look like? Those who dress wearing balaclavas and army vests may be guilty of bad taste, but distastefulness does not equate to terrorism. Those who write about beheading may be guilty of being incompetent fools, but foolishness does not equate to terrorism.

Further to this, ss. 57-58 of the 2000 Act has garnered much attention in the courts. In the case R-v-(1)Zafar(2)Butt(3)Iqbal(4)Raj (5)Malik [6] , the defendants were convicted under s. 57 of the 2000 Act, which makes it an offence to possess any article which may raise reasonable suspicion that it is attached to an act of terrorism. Their convictions were quashed at the Court of Appeal on the basis that the no direct correlation could be made between the article possessed and an act of terrorism.

Following this case, a further development came in the case R v K. [7] where the defendant who was alleged to have possessed an ‘Al Qaeeda Training Manual’ was accused to have fallen foul of s. 58 of the 2000 Act, which made it an offence to collate or process information which may be of benefit to a terrorist offender. In this case, it was argued that s.58 was not compatible with the European Convention on Human Rights (ECHR) due to lack of certainty. [8] The presiding Judge did reject the argument however s.58 may only be relied upon in relation to those exhibits which directly and practically assist an act of terrorism. Anything less, such as mere encouragement may not rely on s.58.

Terrorism legislation in the UK has given rise to many human rights concerns by international bodies including the council of Europe, the UN human rights council and the UN human rights committee.

Recent changes such as extending the pre charge detention periods for terrorist suspects from 28 to 42 days have been met with much criticism and defeat. Criticisms have included incompatibility with human rights.

Case Study 1: R v Samina Malik

The Court of Appeal has quashed multiple convictions for terror offences such as the case R v K. The courts also reversed the conviction of Samina Malik in the case R v Samina Malik [9] . The appellant was convicted under section 58 of the 2000 Act and was herself dubbed as the lyrical terrorist. Subsequently the ruling was over turned as the presiding judge held that though her character was an “enigma” and the charge was “on the margins of what this crime concerns”, it was held that mere propaganda did not amount to a terrorist offence. As an aside, it is important to note that the jury did not benefit from the R v K test and therefore it was not distinguished as to what offence may or may not fall foul of s.58.

Naturally the R v Samina Malik case garnered much media attention and was met with a diverse response. Thus it seems that convictions under the 2000 act were seen as desperate use of the legislation in order to deter similar actions without real consideration into possible human rights violations or correct judicial interpretations. Many viewed such tactics as an attempt to “bully the judiciary to cover up evidential inadequacies.” [10]

The Terrorism Act 2006 came into effect subsequent to the Terrorism Bill 2005 and from which many new offences have been created. The Bill was met with strong contestation both by the media and several stages of its passing. Much of the controversy raised human rights concerns and issues regarding religion and ethnic minorities. The Bill introduced the crime of ‘glorifying terrorism’ as well as extending police powers in relation to detention, investigations and intelligence gathering.

Although the Bill introduced the offence of glorifying terrorist activity, the 2006 Act incorporated this within the extensive offence of encouragement under section1.

s.1 makes it an offence for a person to make a statement seemingly “a direct or indirect encouragement or other inducement” to commit an act of terrorism. This includes glorification of a terrorist activity where the public may be encouraged to imitate such an act. [11]

s.2 of the 2006 Act provides that it is an offence to distribute terrorist articles. This section also defines a “terrorist publication” as;

“(a) likely to be understood as directly or indirectly encouraging terrorism, or

(b) includes information which is likely to be understood as being useful in the commission or preparation of an act of terrorism”

R-v-(1)Abdul Rahman(2)Bilal Mohammed [12] raised the perception as to how extensive the s.2 range of sentences were. It was held that s.143 of the Criminal Justice Act 2003 will apply. [13] The court also highlighted that if sever sentencing is imposed, it is “likely to inflame rather than deter extremism.” [14]

Case Study 2: Gillan and Quinton v UK

There has been a significant rise in police powers especially in relation to stop and search techniques which have been subject to severe criticism. Once again the issues of racial profiling and breach of civil liberties have risen as a direct effect of counterterrorism measures. Case law in this area has been rampant with controversy and as such, it is important to gain critical understanding of the legal framework of this contentious power.

s.43 of the Terrorism Act 2000 provides that a police officer may stop and search an individual with reasonable suspicion of terrorist activity, in order to discover whether or not the alleged terrorist is in possession of any material which may constitute evidence that the individual is indeed a terrorist. Further to this, if an arrest is made, the accused may be searched by an officer of the same sex and anything which may kindle suspicion of terrorism, may be appropriated as evidence.

s.44 of the 2000 Act allows senior officers to appropriate stop and search policies in specific areas, though such an order may only be authorised if the Home Secretary is notified.

The case Gillan and Quinton v UK [15] was a case held in the European Court of Human Rights and concerned s.43 of the 2000 Act. In this case, the applicants were stopped and searched on their journey to a demonstration in 2003. The applicants argued that this was a breach of Articles 5, 8, 10 and 11 of the European Convention on Human Rights. In a rare occurrence the Court ruled that stop and search powers carried out by the police in the UK as per legislation constituted to a violation to the right of privacy. As of July 2010, stop and search tactics have ceased.

Paragraph 57 of the determination [16] provides;

“The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/09, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention”

Further to this, the Court did not deem it necessary to observe the remaining complaints under Articles 10 and 11. The Court did however provide that the exercise of a police power under s.44 was a breach of Article 8 rights.

Paragraph 63 of the determination [17] continues;

“The Government argue that in certain circumstances a particularly intrusive search may amount to an interference with an individual’s Article 8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court’s view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”

This case provided an extremely striking element in that the judgement provides that the sections concerned are neither “sufficiently circumscribed neither are they subject to adequate legal safeguards against a human rights violation.” [18] Thus sections 43-5 of the 2000 Act are not in “accordance with the law” [19] due to the violation of the Convention. The Court outlined that safeguards provided through domestic law were not effective against the wide powers provided to the legislature and thus defeated any nuance of adequate protection against a Human Rights interference.

Case Study 3: A v Secretary of State for the Home Department.

One particular piece of legislation that has been criticised for its incompatibility with ECHR is Part IV of the Anti-Terrorism Crime and Security Act 2001 (ATCSA). This in turn leads to an analysis of the Secretary of State’s powers of deportation of suspected terrorists.

Under the Immigration Act 1971 the Secretary of State may deport an individual in the interest of public safety so as long as deportation is proportionate and in accordance with ECHR. Case law regarding this has looked at a possible breach of Article 3 ECHR. One such case was Chahal v UK [20] in which the European Court of Human Rights outlined the duties of a state “to control the entry, residence and expulsion of aliens”. The case Soering v UK [21] gave rise to an Article 3 claim in relation to an extra-territorial consequence. It was held that this case engaged “the responsibility of that state under the convention, where substantial grounds have been shown for believing that person concerned, if extradited, faces a real risk of being subjected to torture or to inhumane or degrading treatment or punishment in the requesting country” the effect of this case was further affirmed in Cruz Varas v Sweden. [22]

Therefore, as in Chahal, deportation of a suspected terrorist fell afoul of the ECHR Article 3 thus the right to deport for public benefit may not be used if there is a possibility of an ECHR breach.

Further to this, the right of indefinite detention without trial of those who cannot be deported may fall foul of Article 5. In Chahal the situation presented was that the detention would only last as long as the proceedings. Upon deciding that the individual would not be deported, the individual must be released in order to prevent a breach of Article 5. Thus ss. 21-23 of the ATCSA is seen to be in breach of Article 5.

Detention has long been key issue of human rights breaches of suspected terrorists. Pre-charge detention is directed by the Terrorism Act 2006. Under this Act, suspected terrorists may be detained for up to 28 days without charge. The suspect is charged or released [23] thereafter.

Extension of the pre-charge period came amid fears of large-scale terrorist attacks equal to 9/11. Naturally, national security issues were high on the political agenda and as such, a new framework for indefinite detention without trial was introduced through s.23 Part IV ATCSA 2001. Controversial from birth, this law meant that suspected ‘international terrorists’ could be detained where extradition was not an option.

This was heavily criticized and subjected to deep scrutiny within the case A v Secretary of State for the Home Department. [24] This case saw on one hand, a justification of the legislation as a matter of “public emergency” while on the other hand, there was seen to be a gross breach of Article 5 ECHR. Eventually, it was held that s.23 could not apply due to the discriminatory breach, following which the House of Lords issued a Declaration of Incompatibility

Subsequent to this case Part IV ATCSA 2001 was repealed. Though the law was contentious, some provision was needed in relation to such cases. This gave rise to “control orders” which were administered through the Prevention of Terrorism Act 2005 (PTA 2005).

s.1 PTA 2005 outlines that the home secretary may undertake “an order against an individual that imposes obligations on him for the purposes connected with protecting members of the public from a risk of terrorism”.

Under the PTA 2005 there are two types of such orders;

Non Derogating Control Orders [25]

These orders enforce obligations which are compatible with civil rights to liberty under Article 5 ECHR.

Derogating control orders

These are orders which enforce obligations which are not compatible with Article 5 ECHR.

It seems that the courts have demonstrated the current legal framework can be incompatible with the Human Rights Act 1998 due to violations of Articles 5, 8, 10 and 11 ECHR. However it must be understood that counter terrorism legislation can in no way conscionably exist without some taxation on human rights since “some erosion of what we value may be necessary to improve the chances of our citizens not being blown apart as they go about their daily lives” [26]

Bibliography

Books

Bradley. Anthony B, K & Ewing, D, Constitutional and Administrative Law, 14th Edition, 2008

Lee. Robert G, Blackstone’s Statutes on Public Law and Human Rights 2009-2010, 19th edition, 2009

Martin. G, Understanding Terrorism, 3rd Ed, 2009

Neuman. P, Old & New Terrorism, Cambridge: Polity 2009

Taylor. C, Constitutional and Administrative Law, 2nd Edition, 2010