Civil Liberties, Criminal Justice, Criminal Law, English Law, Human Rights, Legal System, Scots Law

Control Orders: An Abomination

Since their introduction under the terms of the Prevention of Terrorism Act 2005 (“the 2005 Act”) following the ruling of the House of Lords on the previous system under the Anti-terrorism, Crime and Security Act 2001 Control Orders have proved to be a contentious issue between the Government and Civil Liberties campaigners.

What exactly are Control Orders?

A control order is something which can be imposed upon a terrorist suspect by the Home Secretary.  Under the order the Home Secretary can place upon an individual a huge set of restrictions upon their liberty.  These restrictions include:

(a) a curfew of up to 16 hours per day

(b)  restrictions as to where the “controlee” lives and who he can admit to his home

(c) restriction on association and communications with specified people, or people in general

(d) a requirement to allow themselves to be monitored electronically and have their photographs taken (i.e. be spied upon)

The full list of restrictions that can be included in an order can be found in section 1(4) of the 2005 Act.

The issues

Control Orders were advanced by the last Government as a way of keeping the country safe from terrorist and the threat of terrorism.  By controlling the lives of those they suspected of being involved in terrorism it was felt that they could prevent terrorist attacks from taking place.

The conditions which must be satisfied before a control order can be issued can be found section 2 of the 2005 Act.  The two conditions are:

a)      has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

b)      considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.

Once the Secretary of State is satisfied that the above two conditions are met an order can be granted by him.  This is where some of the issues begin to arise around Control Orders.

The first of the issues that will be discussed in this post is the issue of who is issuing the order.  Under the 2005 Act these orders are issued by the Secretary of State, ordinarily it would be the Home Secretary who makes these orders, but as there is technically only one position of “Secretary of State” with many people appointed to it any of the Secretaries of State could grant an order.  These are not orders granted by a court having assessed evidence placed before it, but rather a member of Government issuing an order which places substantial restrictions on a person who is legally innocent (a point that will be discussed below).  We have, in effect, a member of the Executive carrying out a judicial function based on nothing more than “reasonable suspicion”.  This is an affront to the democratic process; it should not ever be within the Government’s power to carry out such functions.  In simple terms impartiality and objectivity cannot be guaranteed and these are important foundations of our justice system: it is fair, impartial and objective.

In the first issue mentioned above there was reference to the subjects of these control orders being legally innocent and this is a crucial point in the argument against control orders.  Those subjected to these orders, placing huge restrictions upon their liberty, have not been found guilty of being involved n terrorism by a court.  Furthermore, when most of the orders are granted not even accused of being involved in terrorist activities.  They are only suspected.  Reasonable suspicion wouldn’t, for example, be enough to charge a person with an offence (which could then lead to a period on remand), but yet the Secretary of State can grant an order restricting the liberties and freedom of innocent people on only a reasonable suspicion.  There has been no trial, indeed there may not ever be a trial or the trial may take place following a protracted period of time.  In Scotland, if a person is accused of a crime (i.e. they have actually been charged with an offence) and that person has then been remanded in custody the trial must commence within 110 days.  This is an important safeguard for accused people, who remain innocent until their guilt is proven by the Crown in court, as it prevents the state from holding people in prison for significant periods of time while they remain innocent.

Persons who have a control order are not kept in prison (the system was introduced to replace holding terrorist suspects in prison without charge or trial after it was ruled illegal on Human Rights grounds), but they do have some significant restrictions placed upon them by the state while they continue to investigate their crimes.  People can be kept on these regimes for years.  At the time of writing a Freedom of Information request had been submitted to the Home Office to try and identify the length of time people are being subjected to these orders.

Last week The Independent carried the story of Cerie Bullivant.  Mr Bullivant is a young man who converted to Islam.  He had a control order issued in 2006 and had it in place for two years.  The High Court quashed is order because the Home Office had failed to show reasonable suspicion that he was a security risk.  Three years on his life is still a complete mess and the label of “bomber” still haunts him.  This is an innocent man and the State have ruined his life, how many more has this happened to and how many is it currently happening to?

A further issue with these orders that was briefly touched upon above is that they are indefinite in nature.  Once they are imposed they remain there until a legal challenge against it is successful, the Secretary of State lifts it or the subject is charged and either convicted or acquitted of terrorist offences.  There is nothing else within the criminal justice system which allows the removal or restriction of an innocent person’s liberties and rights on an indefinite basis, especially with so little evidence required.  There are issues relating to the evidential matters, which will be discussed later.  The very nature of these things being indefinite is an affront to the justice systems in operation of the United kingdom, which are based upon the idea that a person is innocent until they are found guilty by a court or by their own admission.  These abhorrent control orders are simply a contradiction of those fundamental principles of justice in Scotland, and the UK at large.

On the evidential front, much, if not all, of the evidence used to secure a control order is secret.  In some cases it may not even exist, there is just simply no way of knowing.  If there is evidence, it can be of no real value at all.  Looking at the case cited above, Mr Bullivant had some small connection to an individual who had actually been convicted of terrorism and that, coupled with what appeared to be a legitimate trip to Syria looks to have been enough to justify two years of strict restrictions on his freedoms and liberties.

The courts have been had a deluge of cases before them on this fact.  The Crown was simply not releasing the evidence to the suspect which had lead to the control order.  It is another fundamental aspect of the legal system in this country that the Crown must prove its case and not only that but for the accused to know exactly what it is he is being accused of.  This makes representation of any challenge against them.  The standard state answer appears to be that to reveal the evidence woukd put National Security at risk.  This is simply not right, there cannot be a situation where people are detailed in their own homes on state authority which has been granted based on evidence which is secret and has not been seen by any individual other than the Secretary of State who granted the order.  This represents a police state.

These are the kinds of abuses that are more commonplace in China, Iran, North Korea and so on.  Indeed were stores of such practices to come from these countries the UK Government would be one of the first to condemn them, but instead they see fit to have laws that allow such practices on the statute books in the United Kingdom.

The Future

After several challenges in the Courts to control orders and a change of Government to one that includes the Liberal Democrats, changes are on the way for control orders.  Nothing has been confirmed by the Government at the time of writing as to exactly what will replace these orders, but it would be wise to assume that something not to dissimilar will be brought in with a different name.

The public at large should oppose any alternative that does not ensure due process is followed in a timely manner.  The powers for terrorist offences are already far beyond those of normal criminal procedure, with pre charge detention of 28 days, no automatic right to access to a solicitor before interrogation by the police.  Any replacement for control orders that does not put a suspect before a court to answer the accusations against him (and to date all control orders issued have been to males) and stop persecuting people for years on little more than “reasonable suspicion”.  If these people really are as dangerous as the Government would like us to believe then the only place for them to be is in prison where they can do no harm.

These control orders can be issued to anyone for the weakest of suspicion.  Mere association with someone who themselves is associated with someone who has, is or may be involved in terrorism could, in theory, be enough for the Secretary of State to issue a control order.

It must not be acceptable for us to trade our freedom and liberties for a perceived security.  Do not be fooled, these control orders do not keep the country secure.  It is something invented by the last Government, like so much of its criminal justice policy, to make it look as though it was doing something.  Often the only effect of these actions was to make people feel safer and more secure, regardless of whether they actually were any safer or more secure.  Control Orders are simply an example of this.  Think about it:  if these people were actually as dangerous as the Government makes them out to be by placing control orders on them, do you really think they would leave them on the streets?  No, if there was the evidence that they were actually involved in terrorism they would be prosecuting them and ensuring they do no harm by keeping them in prison.

Civil Liberties, Criminal Justice, Criminal Law, Human Rights, Legal System, Scots Law

Access to Solicitors while in Custody in Scotland

I wrote earlier this month about the Interim Guidelines issued by the Lord Advocate relating to suspects rights to access a solicitor while in police custody in Scotland.  Generally I agree with what is contained within these guidelines, however, there are a number of practical issues with them currently.

The rules governing solicitors’ practice in Scotland mean that solicitors are only able to take instructions directly from clients.  So this has caused problems for solicitors when being asked to attend a police station by a Police Officer.  While the Police Officer is making the request on behalf of the suspect, it is not coming directly from the suspect (i.e. the client).  This has lead to solicitors in the highlands boycotting the guidelines.  Lawyers in Glasgow almost followed the example of the solicitors in the highlands, however, the Glasgow Bar Association decided not to issue guidance.

It has been reported that there has been wide-spread disruption to custody suites across Scotland and has lead to calls by the Association of Chief Police Officers in Scotland (ACPOS) to request more time to question suspects in light of the interim guidelines.

The Law Society of Scotland (the body responsible for regulating the legal profession in Scotland) has also had issue with this and issued a letter to members (which can be viewed here) stating the following:

“The Society is of the view that the Lord Advocate’s guidelines infringe the Code of Conduct for Criminal Work, which states that instructions can only be accepted from the client directly.”

The above is not really the whole point of this post.  The point of this post is to look to the future.  This issue is not going to go away with the decision in Cadder v HMA still being awaited and due on 20 October 2010.  It is likely, in view of recent European Court of Human Rights (ECtHR) rulings that the current practices set out within the legislation governing Scotland’s criminal procedure will be held to be incompatible with the right to a fair trial afforded by the European Convention on Human Rights (ECHR), Article 6.

It would be in the best interest of the Profession for the Scottish Law Commission to begin looking at the issue and reporting back to Scottish Ministers by the end of the year.  This would allow all interested parties to have their say in the matter and for recommendations to be made to Ministers that are workable and have been consulted on.  We then need to see legislation being laid before parliament in time to be passed before the elections in May 2011 and coming into force after enough time has elapsed for the necessary procedures to be put into place.   This does seem like a very tight timeline, but it can be done and done properly.  Only this way can we be in situation that works and does not put solicitors at risk of breaching their Codes of Practice.

We do need to make changes to our Criminal Procedure in Scotland, it is not good practice to be detaining and questioning suspects without access to legal advice.  As I said in my last post, I do not for a minute believe that there is a problem of corruption in Scotland’s police forces.  Allowing early access to a solicitor can only be a good thing for justice.

Of course, if we do introduce the right to access legal representation into our Criminal Procedure fully and properly, it would only be right and proper to allow the Police more time to detain and question suspects for.  Adding in the right to consult a solicitor and seek legal representation is of course going to eat into the very tight time limits the police in Scotland currently have.

Civil Liberties, Criminal Law, English Law, Human Rights

Terrorism Act 2000 (s.44)

Section 44 of the Terrorism Act 2000 has courted much controversy since its introduction to the law in England and Wales.  Much of the controversy surrounded figures released by the Ministry of Justice suggesting that fewer that 0.1% of those stopped and searched under this power were arrested (never mind charged and convicted) for a terrorism related offence.  Another statistic, also from the Ministry of Justice, causing controversy around the power was that a person was up to four times as likely to be searched under s.44 if they were of Asian or Black ethnic origin.  Figures clearly showing that the power was being abused and over used.

The power has frequently been used against peaceful protestors including the octogenarian holocaust survivor Walter Wolfgang who was unlawfully ejected from the Labour Party conference in 2005 after heckling the then Foreign Secretary (now Justice Secretary) Jack Straw.

More controversy arose when it was revealed that the whole of the Greater London Area had been designated under s.44 for “Stop and Search” without suspicion on a rolling basis since 2001 – at time this had meant a significant length of time.

On Tuesday 12 January 2010 the European Court of Human Rights ruled that s.44 was unlawful.  This doesn’t strike the law down and s.44 powers are still available to the Police, however, in the longer term it will probably mean that the section will be repealed (or at least amended).  This is a good decision by the ECtHR.  It’s far too wide ranging a power and infringes far too much upon the rights and freedoms of innocent individuals.  I return to one of my favourite quotes when it comes down to the curtailment of civil liberties, freedoms and human rights:

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Benjamin Franklin, 1759

Civil Liberties, Human Rights, Politics

ID Cards will not be compulsory

National ID cards are in the news again, but this time because the new Home Secretary, Alan Johnson MP, has said that they will not be compulsory and that holding an ID card should be a choice for every citizen.

On the face of it this seems like good news, however, the Home Secretary will have to clarify whether citizens will be automatically entered onto the Identity Register when applying for a new passport, because if they are this will effectively mean compulsion by the backdoor!

I will not have to remind regular readers of my blog that I am against this abhorrent and draconian scheme.  All it serves to do is destroy our fundamental freedoms and help us along the slippery path to an Orwellian society, which would be an absolute nightmare!

Civil Law, Civil Liberties, English Law

Nightjack

I used to link to a blog called Nightjack.  It was written by a, then, anonymous Detective Constable and was about his working life as a DC.  I even once published one of his posts on my blog.  However, in a case setting legal precedent, The Times has been allowed to reveal who this officer is and it has transpired that the officer, DC Richard Horton, has been issued with a written warning by his force.

The paper reports that many of his posts could be traced back to specific prosecutions.  However, that in itself wouldn’t be an issue as much of the information about a case becomes public knowledge throughout the process and by the time the verdict has been delivered everything (or just about) is in the public domain.  So, really, as long as the information wouldn’t have been with held by the court, was breaching injunctions or was released (and tracable) at an inapropriate time I fail to see where the issue is (and the paper certainly does not make this clear).

The legal precedent set effectively means that every blogger writing under a pseudonym, like I do, is at risk of having their identity revealed at any time and has little protection under the law.  Some food for thought about exactly what we blog about.

Civil Liberties, Criminal Justice, English Law, Human Rights, International Law, Legal System, Scots Law

Human Rights

Those of you who read my blog on a regular basis are probably, one would imagine, fed up with my topics on Human Rights, Fundamental Freedoms and Civil Liberties.  I can’t seem to stop writing about it though.  If I do decide to continue pursuing law as a career I’m looking at doing an LLM in Human Rights (now, there’s a surprise…not).  They are fundamental to our lives and without them we would live in a very different place.  It annoys me when people just seem to sit back and not care enough to fight for their protection!

I was reading The Student Law Review (Summer 2009 edition, Volume 57) and came across a number of article concerning Human Rights and it has lead me once again to blog on the matter.

Graham Arnold (a Barrister at Farringdon Chambers) wrote some very interesting things on the subject in an article entitled “Time for change:  Human rights and counter terrorism policies”.  He writes about a report called “Assessing Damage, Urging Action” which was prepared by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights.  He wrote:

The panel points out that the framework on international law is being seriously undermined by states reneging on their treaty or customary law obligations.  Of particular concern is the fact that the erosion of such principles is being led by liberal democratic states with long histories of developing and protecting such principles.

This is an observation that I have made many times before.  Countries such as the United States of America and the United Kingdom have been blatantly failing in their obligations with regards to Human Rights.  In the United States we have seen, inter alia, The Patriot Act, Guantanamo Bay, military tribunals instead of criminal trials for those suspected of terrorism and extra-judicial rendition.  While in the United Kingdom we have seen, inter alia, the introduction of Biometric ID cards, control orders and increased pre-charge detention for terror suspects.  At the same time these countries have been parading round the world trying to impress upon other nations the need for them to observe human rights – such hypocrisy.

Mr Arnold continues:

The panel concludes that many states have fallen into a trap set by the terrorists.  Ignoring lessons from the past, some states have allowed themselves to be rushed into hasty responses, introducing an array of measures which are undermining the international legal framework carefully developed since World War II.

Again, this is another observation that I have made on numerous occasions.  The terrorists openly declare that they want to destroy our way of life.  Our rights and our freedoms are part of our way of life.  People died fighting to protect them, and 60 years later they are being desecrated by Governments under the guise of counter terrorism.  All the national governments are doing is making the population less safe and allowing the terrorists to win.  When will they see that their responses are meeting the aims of the terrorists?

Mr Arnold continues:

The panel notes that there has been a rash of ill and broadly defined anti-terrorism measures which have encroached upon fundamental rights in an unprecedented way.  Such measures have frequently interfered with the rights of genuinely innocent people in a way that would not otherwise have been possible.

I’ve never made this point expressly, but it has been implicate in my many blog entries on the matter.  The measures which are passed through parliament are done so in such a rush that proper scrutiny is not given to them.  All this ends up with is a heap of bad law on the statute books which is badly defined and so wide in its application that it could be applied to the granny going to buy her messages from the supermarket.  Mr Arnold recalls the case of Walter Wolfgang.  He was, of course, the man who was detained under s.44 of the Terrorism Act 2000 after heckling the then Foreign Secretary, Jack Straw MP, during a speech at the Labour Party conference in 2005.

In his article, Mr Arnold writes:

The panel also warns of the risk of seepage of special laws into normal legal procedures and practices.  Extraordinary measures to address terrorism, such as reliance on secret information that is difficult to challenge, are already seeping into the normal functioning of the state and the ordinary justice system, with long-term consequences for the rule of law and respect for human rights.

We have already seen this.  I remember a case where a local authority used powers under the Regulation of Investigatory Powers Act 2000 to track a family to ensure that they were indeed living in a school catchment area.  RIPA was designed to assist the security services in the collection of evidence in their work (i.e. national security and counter terrorism).

Another article contained within the Student Law Review, this time written by Helen Fenwick (Professor of Law, Human Rights Centre, University of Durham) entitled “The breach of the peace doctrine and public protest”.  I’m not going to spend too much time writing about this article as the first one mentioned was my main impetus for this blog entry.  However, it was a very interesting read and made very points on the cases mentioned.

A final article on Human Rights was on the UK Government’s slow reaction to decisions of the European Court of Human Rights (ECtHR).  It used the example of Hirst v United Kingdom (No2) to illustrate this point.

Hirst v United Kingdom (No2) was, of course, the case that challenged the blanket ban on convicted prisoners from voting contained within s.3(1) of the Representation of the People Act 1983.  The challange was based on the reasoning that it was disproportionate and indiscriminate and therefore was not in compliance with the European Convention on Human Rights and Fundamental Freedoms (ECHR).  The argument was accepted by the ECtHR, but as yet the position remains unchanged.  Right at the end of the article it makes, what I think is, a very good point.  It says:

The government’s response to the decision in Hirst casts doubt on its commitment to human rights for all and the provision of effective legal redress for those whose rights have been found to have been violated by the independent courts.  Specifically it is inconsistent with a recent UN report which suggests that the domestic law in this area may be in breach of the UN Covenant on Civil and Political Rights 1966, and unless the consolation and legislative process is carried out soon the next general election is in danger of being held in breach of the European Convention.  More generally, it shows that a swift and genuine response to judicial pronouncements is essential to the effective protection of human rights. (“Reacting slowly to human rights judgements; the government’s response to the prisoner’s right to vote”, Steve Foster PhD, Student Law Review, Volume 57, 2009)

I have absolutely no comment to make on that extract.

Civil Liberties, Human Rights, Legal System, Politics

UK Bill of Rights?

Those of you who read this blog frequently will by now know, unless you don’t really pay that much attention or are actually blind, that I write a lot on the subject of Human Rights and Civil Liberties and in particular their importance and what more we can do in this area.  Well, this post sees a return to what is probably my most frequently written about topic.  It is also a return to a specific part of the large subject of Human Rights that I’ve written about many a time before:  A UK Bill of Rights.

I am a big supporter of a more inclusive bill of rights than what we have contained within the Human Rights Act 1998, which only incorporates specific articles of the European Convention on Human Rights and Fundamental freedoms 1950 (ECHR) into domestic law.  I was reading an article that I’d come across on Westlaw entitled “Finally:  a Bill of Rights for the UK?” which was written by Steve Foster and published in 2008 in the Coventry Law Journal.

It got me thinking about the issue again and the sheer difficulty we have the United Kingdom when it comes to protecting our basic rights and freedoms.  The problems stem from our general constitutional arrangement.  Unlike many other nations in Europe and around the world we lack a codified constitution that stipulates exactly how our democracy works.  We in the UK have a Parliamentary system in which the doctrine of Parliamentary supremacy dominates our political landscape.  In simple terms the doctrine of parliamentary supremacy means that Parliament is at the top of the pile and cannot be bound by anyone or anything (including itself).  In a state with a codified constitution, the constitution is at the top of the pile and binds everyone in the nation.

Normally in a country with a constitution the basic rights and freedoms of humans are enshrined (and therefore protected) within the constitution.  For example, the Constitution of the United States of America contains a Bill of Rights, which guarantees the rights and freedoms contained within it to anyone on American Soil.

Our constitutional system which places an emphasis on the doctrine of Parliamentary supremacy acts as a cumbersome barrier to any attempt at creating a Bill of Rights in the United Kingdom, simply because it can be altered or even removed at the will of parliament at any point in the future.

The only real solution to this problem would be a complete overhaul of our political system and institutions, which would probably be a much welcomed process.  The process however would be long and complicated and involve a serious commitment from all the major parties within the United Kingdom.  It would involve a number of referenda and the dissolving of our current political institutions and replacing them with new ones as established by a constitution, which would have to be voted on by the citizens of the United Kingdom.  The current system favours our politicians too much and as such they will be unwilling to become subjected to the constraints of a codified constitution.  So, realistically the only way to bring about such a wide-spread change of our political system would be for us to have a revolution.  This is also unlikely to happen as, while we enjoy complaining about things we are far too apathetic to actually go about changing them.  After all, the vast majority of people agree (if the results of the large number of opinion polls on the matter are to be believed) that Human Rights are important, but when their fundamental rights and freedoms are being removed piece by piece few care enough to actually try and stop it from happening.

So in short, while a Bill of Rights would be most welcomed, it is unlikely to change the situation much as it could be changed and even removed on the whim of Parliament at anytime.

I’m such a sad person that I’ve compiled a sample constitution which I think would benefit the UK a lot were it to be implemented.  I might, one day, share it with you all on this blog.

Civil Liberties, Politics

Ban abusive military protests says Davis

The former shadow home secretary, David Davis MP, has called for abusive protests against military personnel to be outlawed.

No!  As I have said on this blog in the past, freedom of expression is intrinsically linked to a freedom to offend.  Freedom on expression cannot and must not be subjected to the good taste police.

As I have said before, I am firmly believe in the “I may not like what you say, but will defend to my death your right to say it” philosophy and that position has not changed.

Civil Liberties, Criminal Justice, Criminal Law, English Law, Human Rights, Legal System, Politics, Scots Law

Police Surveillance at Demonstrations

The Guardian newspaper has released some footage that it has obtained from police who monitored the climate camp protest in Kent last year as part of an investigation into police surveillance.

The footage, and the report that accompanies it are quite worrying.  The Guardian’s investigation has revealed a number of worrying practices that police have when they are policing people exercising their fundamental rights and freedoms.  These are:

  • Police overly filming legitimate journalists present to report upon the demonstration taking place.  Freedom of the press is a fundamental civil liberty that is important in a democracy.  Journalists must be allowed to go about their business without interference so that they can report on what is happening.  As soon as you censor the press you are preventing the press from reporting upon things, which is essential in a democracy.  This can lead to an ultimate ban on the reporting of anything that is not favourable to the Government (in an extreme case)
  • Police are holding footage for up to seven years that they have gathered at protests and demonstrations.  There would be nothing wrong with this if the footage was depicting people violating the law (such as committing criminal damage, assaulting someone or causing a breach of the peace).  However, much of the footage (such the stuff released by the guardian) does not show people breaking the law, but merely exercising their democratic rights in a peaceful and law abiding way.
  • Police are sharing “intelligence” amongst each other on people who have not broken the law.  They are passing on details of which political organisations people belong to (which would be fine if the organisation was proscribed and was dangerous, but they are not) and which previous protests people have attended.  Don’t get me wrong, I’d have no problem with police sharing intelligence on the few who turn up to these protests with a chip on their shoulder the size of the universe and generally cause trouble (like they do with football hooligans etc.).  But, not on someone who regularly attends demonstrations and acts in a responsible and lawful way.  That is just a out and out violation of that persons right to privacy.
  • The police are holding the private details of individuals who have attended protests on databases (the Met hold these details on Crimint – a database access by police across England and Wales on a daily basis).  Again, fair enough if these individuals were causing trouble (and by trouble I mean violating just laws and not just causing a headache for the Government because they are preventing them from bringing in draconian or damaging laws)

Liberty, an organisation that I am a member of, is in the middle of a Judicial Review in the Court of Appeal just now on the use of police surveillance in the Court of Appeal.  However, it appears that the police have neglected to inform the court that they are transferring these details (and in some cases the actual footage) to databases.

I really do urge you to view the footage and read the report that goes along with it.  It has made my blood boil!