Historically anti-terrorism legislation has sought to both suppress open debate about the political causes of this phenomenon and isolate communities thought to be suspect, as well as protect the civilian population. The Prevention of Terrorism and Emergency Provisions legislation in the 1970s and 1980s was a response to a very serious threat to those living in London, Birmingham or elsewhere in England. However, it was also a reflection of a style of criminal investigation and crime prevention which was over-reliant on persuading suspects to confess or members of the suspect community, which was then predominantly Irish, to divulge low-grade information.
The period of time for which a terrorist suspect could be detained without charge was extended and access to legal advice was usually delayed. Confessional evidence became the cornerstone of prosecutions, and serious forensic investigation took a back seat. This led to a number of miscarriages of justice, and the Guildford Four, the Birmingham Six and the Maguire family among others spending long periods of time in prison before their convictions were finally overturned.
The two bills presently before parliament contain very similar measures. Proposed amendments to the Immigration, Asylum and Nationality Bill 2005 will introduce a power to detain passengers wishing to leave the United Kingdom for up to 12 hours. Most significantly Clause 19 of the Terrorism Bill 2005 proposes that the time that a terrorism suspect can be held without charge is extended from 14 days to three months.
The practical effect of such an extension can be profound. If no charges are subsequently made, he or she will have served the equivalent of a six-month criminal sentence. Prolonged detention without charge or trial undermines the basic elements of a right to a fair trial. These include the presumption of innocence, the right to be promptly informed of the accusations being made, and freedom from arbitrary detention. It also increases the incidence of false confessions by placing the detainee in a situation where he or she may experience physical or mental torture, or serious ill-treatment.
The fact that suspects can be held for ‘up to three months’ does not necessarily mean that they will be released at an earlier point in that period. Experience in the North of Ireland suggests that suspects were routinely detained without charge for the maximum seven-day period then permitted. Commentators have noted that under the present law suspects are also routinely being detained for the maximum 14-day period now permitted.
Clause 1 of the Terrorism Bill creates a new offence of ‘Encouragement of terrorism’, which includes the concept of ‘glorifying terrorism’. This offence goes much further than the present criminal offence of incitement, as it is not necessary to show that the individual intended to encourage or glorify terrorism. In relation to the first new offence, all the prosecution have to prove is that they have reasonable grounds for believing that a member of the public is likely to understand their statement as direct or indirect encouragement to terrorism. Once the necessity to prove intent is removed, criminal law offences no longer possess the clarity and precision needed to ensure that individuals understand what the law demands of them.
In addition, the very concepts of ‘encouragement’ or ‘glorification’ are open to different interpretations. This will have the effect of leaving those who wish to speak out politically unsure of the legality of their comments, violating the right to free expression as many people will tend towards self-censorship.
The criminalisation of thoughts and opinions is on the increase. The very definition of ‘terrorism’ was amended in the Terrorism Act 2000 to include advancing a political, religious or ideological cause. This wording can encompass untold numbers of supporters of social and political movements, and since then anti-terrorism measures have been used to disrupt perfectly legitimate political protest.
The proscription of religious expression is particularly problematic, given the nature of the war on terrorism being waged by Bush and its portrayal of the Muslim world as the implicit threat.
This portrayal of a threat being posed by those who share a different religion or originate in another country also underpins many of the proposed amendments to the Immigration, Asylum and Nationality Bill 2005. There are proposals to deprive dual nationals of British citizenship or a right to live here. There are also proposals to redefine the circumstances in which a person can be deprived of asylum even though he or she fulfils the basic criteria for being accepted as a refugee.
At the same time, the government has been consulting on a proposal to draw up a list of ‘unacceptable behaviours’ which could lead to the Secretary of State for the Home Department exercising his powers of exclusion or deportation. This is despite the fact that the present anti-terrorism and immigration legislation provides for deportation where an individual poses a threat to the United Kingdom’s national security, public order or the rule of law.
The government is also seeking approval of its plans to enter into Memorandums of Understanding to enable it to deport suspected terrorists, against whom it has insufficient evidence to prosecute, to their countries of origin – most of them in breach of human rights. The idea is to make bilateral agreements that country X will not torture individual Z if he or she is deported there. In many of the countries involved, political activists face unfair trial, torture or even death on account of their beliefs.
The new measures will not make the domestic law any better able to deal with the criminal acts perpetrated by terrorists who target innocent civilians. They are merely window dressing to divert attention from the root causes of terrorism.
The good news is most of the new measures have attracted criticism from a broad range of lawyers and members of the judiciary. They are also increasingly attracting criticism from journalists, academics, doctors and others who know from their own work that restrictions on freedom of expression, movement and thought are the hallmarks of all the world’s most repressive regimes.
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