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before the Act had completed its course through Parliament, however,
it became clear that the government had backed away from one of
its key proposals: the extension of the maximum period of pre-charge
detention to 90 days. Instead, it accepted a compromise proposal
of 28 days – a number which seems moderate by comparison with
the initial proposal but still represents a doubling of the previous
limit of 14 days, which was itself doubled by the Criminal Justice
Act 2003 from the original limit of 7 days under the Terrorism Act
2000. Bear in mind, also, that the maximum period of pre-charge
detention for any other offence is a mere 3 days. In other words,
someone suspected of a terrorism offence is now liable to be detained
for nearly 10 times the maximum period that applies to those suspected
of, for example, murder, rape or serious financial fraud.
While the government was content to tout the
police case for extending pre-charge detention as ‘compelling’,
on closer inspection it was difficult to see how the various (and
admittedly very real) investigative difficulties experienced by
the police made any practical difference to their ability to charge
a suspect at the end of the 14 day period. As Lord Thomas of Gresford
noted during the Second Reading debate in the House of Lords, the
CPS’s own charging standard makes it possible ‘to charge
suspects prospectively, where there is a reasonable suspicion of
guilt but admissible evidence is not yet available and it is in
the public interest to do so’. Indeed, despite their strong
support for the 90 day period, the police and government were unable
to point to a single case in which a suspect had been held to the
14 day limit and then released because of lack of evidence to support
any charge. But while the government appears to regard maximum detention
periods as pliable, the European Court of Human Rights has remained
admirably clear. At the same time that Parliament had been discussing
the 90 day limit, the Court continued to hand down judgments in
respect of pre-charge detention in South Eastern Turkey making clear
that more than 6 days spent in custody without being brought before
a judge was a breach of Article 5(3) ECHR, ‘notwithstanding
… the special features and difficulties of investigating terrorist
offences’.
Besides how unconcerned the government seems
about interfering with fundamental rights, what is most striking
about much of the latest Terrorism Act is how unnecessary most of
it is. As the bombings of 7 July and the attempted bombings of 21
July show, the threat of serious terrorist attack in the UK is utterly
real. And yet few of the provisions passed are likely to make any
discernable difference to public safety. After all, the original
Terrorism Act 2000 was the product of intensive review and debate
over 3 decades of counter-terrorism legislation in the UK. This
was followed by the Anti-Terrorism Crime and Security Act 2001,
a Privy Council review of the same legislation in 2003, an extended
Home Office consultation on counter-terrorism powers and a separate
inquiry by the Joint Committee on Human Rights in 2004, capped by
the Prevention of Terrorism Act 2005 in the wake of the Belmarsh
judgment. The suggestion that there were any conceivable gaps remaining
in the counter-terrorism framework after all this time seems difficult
to credit.
In particular, the idea that an additional
offence of encouraging or glorifying terrorism was needed to combat
‘indirect incitement’ is credible only if one wilfully
ignores the extensive law on incitement that was already in place:
section 4 of the Offences Against the Person Act 1861 (making it
a crime to ‘encourage, persuade or endeavour to persuade any
person to murder any other person’); section 8 of the Accessories
and Abettors Act 1861 (prohibiting those who would ‘counsel
or procure the commission of any indictable offence’); section
59 of the Terrorism Act 2000 (inciting another person to commit
an act of terrorism wholly or partly outside the UK), to name but
a few of the offences that are available to prosecute persons who
incite others to commit acts of terrorism. The government, however,
seemed keen to press ahead with the language of ‘glorification’
despite serious concerns about its vagueness, the likely interference
with legitimate free expression, and indeed the breadth of the definition
of ‘terrorism’ itself.
Similarly, the government also proposed extending
the grounds of proscription to groups which ‘glorified’
terrorism, notwithstanding that section 3 of the 2000 Act already
allows the Secretary of State to proscribe a group that ‘promotes
or encourages’ terrorism. The terrorism training provisions
of the 2000 Act were extended to include training in ‘noxious
substances’ but without any of the sensible defences that
were available under the previous provisions. In a piece of legislation
filled with such otiose measures, it became difficult to avoid the
impression that this was an Act designed to give the impression
of action rather than effect meaningful change.
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The sole exception
to the above was the long-mooted proposal of creating an offence
of ‘acts preparatory to terrorism’ – what is now
known by the more direct description of ‘preparation of terrorist
acts’. This offence, first suggested by the 1996 review of
counter-terrorism legislation conducted Lord Lloyd of Berwick, had
often been mentioned as addressing a possible gap in the existing
law. Even here, though, it was difficult to see what the actual
gap was. For instance, section 57 of the 2000 Act makes it a criminal
offence for a person to possess an article in circumstances that
give rise to a reasonable suspicion that it is to be used for terrorism.
Section 58 of the same Act makes it an offence to make a record
of any kind likely to be useful for terrorism. With provisions of
such astonishing breadth, it is no surprise that the Privy Council
review of the 2001 Act stated that:
"it has not been represented to us that
it has been impossible to prosecute a terrorist suspect because
of a lack of available offences."
Indeed, the Committee found that the difficulties
with sustaining prosecutions for terrorism offences were primarily
evidential rather than legal. In particular, it noted reluctance
on the part of authorities to adduce sensitive intelligence-based
material in open court ‘for fear of compromising their source
or methods’. Similarly, the Joint Committee on Human Rights
in 2004 considered the question of whether new terrorism offences
were warranted. It referred to the central evidential problem identified
by the Newton Committee and gave its view that this problem ‘is
unlikely to be helped by the creation of still more criminal offences’.
As the Director of Public Prosecutions, Ken MacDonald QC, told the
Joint Committee in May 2004, there is already ‘an enormous
amount of legislation that can be used in the fight against terrorism’
and that the existing criminal law ‘covers a huge swathe of
activity that could be described as terrorist’.
Given the difficulties highlighted by these
various reviews, one would have thought that the government would
have given higher priority to making admissible the one source of
evidence that it currently refuses to allow: evidence obtained from
intercepting telephone conversations and emails. At the time of
writing, however, the UK remains one of only 2 countries in the
world where intercept evidence is not routinely admitted in criminal
proceedings. As Lord Lloyd noted in debates on the Regulation of
Investigatory Powers Act, ‘we know who the terrorists are,
but we exclude the only evidence which has any chance of getting
them convicted’. It is a source of dismay that a government
serious about tackling terrorism should ignore such warnings in
favour of seeking to cram one more pointless offence against incitement
onto a statute book that is already crowded with them. ‘The
rules of the game are changing’, said Tony Blair on 5 August,
and there has been no shortage of rhetoric since that time stressing
its determination to tackle terrorism. But making law merely for
the sake of being seen to make law is surely a less important goal
than passing laws that are both effective against terrorism and,
indeed, do not themselves undermine fundamental rights. For it is
important to remember that that terrorist violence targets not only
human life but also the values of a free and democratic society.
A vigorous defence of those values requires not only action but
also restraint.
ERIC METCALFE
23 November 2005
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