BRIEFING ON THE COUNTER-TERRORISM BILL 2008

BRIEFING ON THE COUNTER-TERRORISM BILL 2008

British Irish rights watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland.  Our services are available free of charge to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

This briefing is based on British Irish rights watch’s 19 years experience of counter-terrorism measures in Northern Ireland.  We have learnt that there are three mechanisms available to governments which can effectively combat terrorism.  The first mechanism is preventative: the collection of accurate intelligence and the proper use of that intelligence to prevent attacks.  The second is deterrent and the effective detection of crime.  The third is the most valuable of all: respect for human rights and the rule of law.  The clearest lesson we have drawn from our experiences in Northern Ireland is that draconian and repressive legislation does not decrease the threat of terrorism.  The aim of any government facing such a threat should be to enhance the protection of human rights; by developing a strong human rights regime, there is more likely to be support for security mechanisms in the prevention of terrorism. 

1.         Disclosure and the intelligence services, clauses 19-21

BIRW has very serious concerns at the disclosure of information to the intelligence services and the proposals for the use of that information.  In some respects, this clause is a positive effort to encourage increased interaction between the general public and the security services, where the gathering of intelligence can play a key role in the prevention of terrorism.  However, the fact that the information can be disclosed regardless of confidentiality or other restrictions, such as legal privilege, undermines the right to a fair trial and the right to privacy.[1]  This clause places pressure on those normally bound by confidentiality such as medical professionals, clergy and solicitors to break the principle of privileged information and share it with the security services. 

2.         Pre-charge detention, clauses 22-33

British Irish rights watch have consistently opposed any extension to the time a suspected terrorist can be detained.  Indeed, we opposed the introduction of 28 day detention, which we felt was an unnecessary addition to the statute books.  Detention of 42 days without charge could have serious psychological and social implications for both the detainee and his or her family.  Inquiries on this issue by the Home Affairs Committee and the Joint Committee on Human Rights have indicated that there is no consensus in favour of this proposal within Government, Parliament or wider society, nor that the Government has made an adequate case for extension.  Key figures in the criminal justice system have indicated that they do not require or support an increase to the pre-charge detention limit, including Dame Manningham–Buller, former head of MI5 and Sir Ken McDonald, Director of Public Prosecutions. 

The Government has provided for a number of protections should the need arise for 42 extended detention.  However, although we note the fact that the Secretary of State has to take independent legal advice, and that this legal advice cannot come from a Government lawyer, we do not believe this is sufficient to prevent the abuse of this power.  An extended pre-charge detention time undermines the fundamental principles of the British legal system, such as the presumption of innocence and the right to a fair trial; it erodes our protection of civil liberties and alienates those from whom we need information and thus will increase the threat to national security. 

3.         Post-charge questioning, clauses 34-39

BIRW has concerns that post-charge questioning can lead to the harassment of suspects.  We believe that the further interviewing of suspects, after they have been charged, should only take place when fresh evidence has come to light.  In this way, suspects would be afforded the same due process of law and protections as prior to their being charged.  We are particularly concerned by the extension of the application of s. 34(1) of the Criminal Justice and Public Order Act 1994, which enables adverse inferences to be drawn from the silence of an accused.  This right is an area of controversy in Northern Ireland and has been emblematic of the problems of combating terrorism without regard to human rights.   We also therefore express our serious concern that the Secretary of State has the power to prevent the video recording (with or without sound) of such post-charge questioning.  The United Nations was previously critical of the UK on this issue and as a result, video recording with sound was introduced for all detainees in Northern Ireland.   If the Government are to learn any lessons from the 30 years of conflict in Northern Ireland, they would do well to remember the impact of the abuse of suspects’ rights. 

4.         Sentences for offences with a terrorist connection, clauses 42-44

British Irish rights watch do not think it is appropriate to consider a terrorist connection as an aggravating factor in the sentencing of an individual.  We believe that if the Government treats terrorists differently from other criminals because of the motive for their crimes, it can only create miscarriages of justice and martyrs to the cause.  An examination of the motivation behind a crime, be it the concept of jihad or animal liberation, should be considered during the rehabilitation of prisoners not in their sentencing.

5.         Forfeiture, clauses 45-50

The broadening of the basis for the forfeiture of money or other property in this Bill reflects the problems also seen with the expansion of the definition of terrorism.  The vague wording that forfeiture can be applied to property that they intended should be used or had reasonable cause to suspect might be used for terrorist purposes has the potential to undermine the rights of those wholly unconnected to the conviction of such an individual.  For instance, the home shared by the suspect with his/her family may fall into this category, despite the fact that family members may have had no idea what an individual was doing in his or her bedroom.  The implications of this clause goes beyond the original target so as to include potentially innocent individuals.

6.         Notification, clauses 51-68

British Irish rights watch do not believe a notification scheme is an appropriate method of addressing terrorism.  We believe this scheme will lead to ongoing discrimination against individuals and will negate the rehabilitative role of the prison system because it continues to criminalise those who have served their sentences and may well have rejected their violent past.  We believe that the fact that the notification scheme may last for life, in the case of sentences of five years or more, is unnecessary.  It is unclear who will have access to the information held in this “terrorist register”[2]; such access could prevent convicted terrorists, who have served their sentence, from rebuilding their lives and hinder their ability to find a job or home.   We have particular concerns with the fact that this scheme can be applied to those who were under 18 when they committed their offence – essentially criminalising children for life and contributing to serious isolation and social stigma.  The intrusiveness of the scheme, whereby fingerprints, and photographs of any part of the individual can be taken, arguably invades an individual’s right to a private life.  We believe that the need to apply notification to addresses where an individual has stayed from a combined total of 7 days over a 12 month period is an onerous burden both on the police and the individual, and may impact on wholly innocent persons with whom someone on the register has stayed.  Finally, the application of the scheme to those convicted outside the jurisdiction is highly problematic.  It is an established fact that torture is used to secure convictions in countries such as Egypt and Pakistan, throwing into question the validity of such convictions and compounding our concerns about this scheme.[3] 

7.         Inquests and Inquiries, clauses 77-81

The UK Government has consistently failed to adequately comply with judgments from the European Court of Human Rights in Article 2 cases where the right to life was breached.  The proposals to change the nature of inquests including the appointment of special coroners or dispensing with a jury undermines the legitimate expectation of a number of families in Northern Ireland specifically, but also in England, of receiving an independent, effective, open and accountable investigation into a death. 

We have particular concerns that specially appointed coroners can be appointed to inquests already open, which will have particular pertinence in Northern Ireland, causing further delays and secrecy.  For example, in the death of Pearse Jordan, an inquest into his death was opened in 1995, delayed by the obstruction of the RUC and later PSNI over the disclosure of documents, the subject of a ruling at the European Court of Human Rights in 2001 and a House of Lords judgment in 2007, and may now be further delayed by these new measures.  The hurt and frustration for families such as those of Pearse Jordan cannot be underestimated.

Some of the measures introduced by this legislation are mirrored in the controversial Inquiries Act 2005, which placed control for inquiries in the hands of the Secretary of State, undermining any attempts for such inquiries to be independent or compliant with the European Convention on Human Rights. 

The use of intercept evidence in an inquiry would require careful attention to be paid to the human rights implications of covert surveillance and its disclosure, including a duty of care to those recorded, innocently or otherwise, during the collection of intercept evidence and the need for the Secretary of State to share all the information possible through the inquest and inquiry system with the family and wider public. 

BIRW are seriously concerned that these clauses will wreak havoc on those seeking the truth behind the often contentious deaths of their loved ones, and further erode the coronial and inquiry system

8.         Armed Forces, clause 83

In Northern Ireland, we have seen the deadly consequences when sensitive personal data about the security services falls into the wrong hands.  However, we have also seen similar consequences when information is passed from the security forces to paramilitaries.  Most recently, in April 2007, a prominent human rights activist was one of over a hundred people who was visited by the police and told that his life was under threat from loyalists, presumed to be the UVF.  Two members of a loyalist flute band, one of whom was a civilian employee with access to police computers, were arrested in relation to passing information to the UVF and possession of information useful to terrorists.   We also have concerns that this clause may be misused to prevent research or legitimate investigative journalism by those examining the work of the security forces or subversive groups.  This clause could easily be considered to create a chilling effect on such work, which could ultimately be counter-productive to countering terrorism. 

9.         Definition of terrorism, clause 82, 98-99

We have strong concerns about the woolly language used in the clauses relating to 42 day detention, for example, clause 24 (4) (2) refers to an offence with a terrorist connection.  The vagueness of the definitions could have a serious impact on the validity of any convictions.  This is matched by the definition as set out in section 1 of the Terrorism Act 2000 which has been controversial since its inception, and has sparked growing concern about the breadth of this definition as the quantity and severity of legislation reliant upon this definition has grown.  Broadening an already unsatisfactory definition does nothing but exacerbate claims that it may encompass activity that would otherwise by lawful.[4]  As Professor Conor Gearty has noted, much of the anti-terrorism legislation enacted is “predicated on a definition of terrorism so vague that it permits action against persons whose only offence is that of radical political activity”.[5]  This broadening of the definition only increases this concern and threatens to further erode civil liberties.

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21 July 2008