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EDITORIAL Counter-terror strategies, human rights and the roles of technology Introduction 9/11 re-shaped the counter-terrorist response in the UK. After 9/11, the ‘war on terror’ was viewed, as ‘not a matter of choice but a strategic imperative’.1 Thus, the response has been heavily influenced post-2001 by the government’s view of the threat posed by extremist Islamic groups and the fear of suicide-bombing. The UK Government’s response to this threat has military aspects – the wars in Iraq and Afghanistan – but within the UK itself it is police-based: it has involved a very significant ratcheting up of the state’s coercive powers in terms of surveillance, data-sharing, detention, asset-freezing and other invasions of personal liberty. Broadly speaking, four main counter-terrorist strategies can be identified: increased use of forms of surveillance, including use of CCTV and tracking of personal data; an increase in the grant of very broad powers to the police; the creation of a range of broad terrorism offences, including in particular early-intervention offences, targeting the preliminary and preparatory stages of suicide bomb attacks; use of preventive measures to curb the activities of individuals outside the criminal justice system. All these trends were apparent post 9/11. The first three were already apparent post-2000, but the use of the measures in question intensified post 9/11. The last trend stemmed directly from 9/11. But a shift of emphasis is underway in 2011. When the Coalition government came to power in 2010 it conducted a review (Review of Counter-Terror Law and Security;2 hereinafter ‘The Review’) in January 2011 of the more controversial and human-rights infringing aspects of counter-terror laws and practices. It began to put certain reforms in place in 2011. How far-reaching those reforms are likely to be in practice and their compatibility with the European Convention on Human Rights is considered in this Special Issue edited by Helen Fenwick.
Expansion of the range of terrorism offences The previous Labour government introduced a new counter-terrorist scheme with the introduction of the Terrorism Act 2000 (TA). A change in policy was encapsulated in the Terrorism Act 2000 in that temporary, graduated measures were replaced with permanent, broadly applied ones, but the 2000 Act relied on a traditional reactive approach, that of seeking to charge terrorist suspects with offences and bring them to trial. This scheme offered quite a strong contrast to the previous one of the 1970s, 1980s and 1990s. The previous UK counter-terrorist scheme – under the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1996, as amended – revealed some acceptance of the principle that emergency measures should be adopted only in the face of immediate and severe need. The TA was introduced at a time when terrorist attacks were not of the scale that they had been previously, although the government ISSN 1360-0869 print/ISSN 1364-6885 online # 2011 Taylor & Francis http://dx.doi.org/10.1080/13600869.2011.617430 http://www.tandfonline.com
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clearly had in mind an impending threat from extremist Islamic groups. The TA applied all the special terrorism offences to a far wider range of groups than had previously been the case; it was therefore a much less graduated measure than the previous ones. The anti-terrorism powers and offences discussed in this issue all use the basic definition of terrorism set out in section 1(1) of the Terrorism Act 2000. This provides that ‘terrorism’ means the use or threat, ‘for the purpose of advancing a political, religious or ideological cause’, of action ‘designed to influence a government or to intimidate the public or a section of the public’, which involves serious violence against any person or serious damage to property, endangers the life of any person, or ‘creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously to disrupt an electronic system’. This extraordinarily wide definition covers such action occurring anywhere in the world (under s 1(4)). Moreover, because it covers damage to property, it could clearly encompass direct action by protest groups, such as causing criminal damage to GM crops or airforce bases used for military attacks on other countries. The Terrorism Act 2000 remains the central measure within this scheme, but the later additions to the counter-terrorist scheme in the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Terrorism Act 2006, the Counter-Terrorism Act 2008, the Terrorist Asset-Freezing etc Act 2010 have tended to increase the tension between the counter-terrorist measures and human rights. The 2005 Act is considered below in relation to the preventive measures it creates – curbs on the liberty of suspects (control orders) not dependent on a criminal trial. But it also adds to the range of available terrorist offences since a breach of a control order is a criminal offence. The Terrorism Act 2006 saw no further introduction of preventive measures, but a return to the reactive TA model, albeit with a further racheting up of state powers. It added to the very broad panoply of offences already in existence under the 2000 Act and reaffirmed the use of a more draconian pre-trial regime for terrorist suspects. It introduced new offences of activities preparatory to terrorist acts, and a new offence of indirect encouragement of acts of terrorism, including glorification of terrorism. The introduction of the new very broad preparatory offence and the new offence of glorification, although open to criticism in a number of respects, could be seen as expressing some acceptance of the human rights problems that arise when counter-terrorist sanctions such as semi-house arrest are applied without trial and with minimal judicial supervision under control orders, as discussed below. Varying roles of technology This special issue examines a range of counter-terror measures, mainly of an investigative or preventive type. Against that backdrop, a recurring theme concerns uses of technology in relation to such measures. As Quirine A.M. Eijkman and Daan Weggemans put it in this special issue: ‘modern technology has . . . become a central component of counterterrorism strategies. This increased reliance on technology was not only a consequence of its availability and reduced costs but was also caused by strong public pressure on authorities to deal with the threat of terrorism’. Technology clearly has an important role to play in preventing and detecting terrorist activities, by, for example, the use of information and communications technology to create the effective freezing of assets of terrorist groups. Visual surveillance plays a part in terrorist investigations, as does internet surveillance and the interception of communications of terrorist suspects. ‘Data mining’ is a tool that is increasingly deployed by Western security services. Data-mining means
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collating and processing information from a range of anodyne or passive surveillance sources such as CCTV (which can conduct facial recognition) and the internet (where every person constantly leaves an ‘internet trail’) and using it to attempt to target suspect individuals, e.g. to prevent them from travelling abroad. (It may be noted that Brievik, responsible for the recent terrorist massacre in Norway, had an internet presence, which possibly could have provided information alerting security services to the impending attacks.) But at the same time, forms of surveillance, such as via CCTV cameras or body-image airport scanners, may be viewed as intrusive and possibly as disproportionate to the benefits offered. To carry out effective data mining and extract useful information for counterterrorism and national security purposes, security services need to gather a large range of all kinds of information about individuals. However, the collection and use of this information could be a threat to the individuals’ privacy and civil liberties.3 On these issues in this edition see: Quirine A.M. Eijkman and Daan Weggemans’ paper ‘Visual surveillance and the prevention of terrorism: What about the checks and balances?’, and Daniel Fenwick’s paper ‘Terrorism, CCTV and the Freedom Bill 2011: Achieving compatibility with Article 8 ECHR?’. Technology may also be exploited by terrorist groups – an obvious example would be the use of the internet to spread radicalizing hate speech and incitement to commit terrorist acts. Clearly, the state has a greater ability to employ technology in the form of weaponry than have terrorist groups. One might also expect that in terms of employment of information technology the state would be a step ahead of terrorist groups. However, one interesting, apparently impending, phenomenon is the use by extremist groups of cyberterrorism: the presence of the internet offers them a forum within which they may use more sophisticated techniques than those developed by the security services to counter them. The possibility of cyber attacks on critical infrastructure creates new and complex national security problems. Cyber-terrorism is ‘the use of computer network tools to shut down critical national infrastructures (such as energy, transportation, government operations) or to coerce or intimidate a government or civilian population.’ Cyber terrorism operates on the premise ‘that as nations and critical infrastructure became more dependent on computer networks for their operation, new vulnerabilities are created’.4 Clearly it might appear then that ever more sophisticated state surveillance techniques need to be developed, while at the same time suspects’ use of the internet and other means of electronic communication should, where possible, be prohibited or curbed. For that reason, bans on the use of electronic methods of communication by terrorist suspects were a common feature of control orders (see Helen Fenwick’s paper ‘Preventive anti-terrorist strategies in the UK and ECHR issues: Control orders, TPIMs and the role of technology’). However, the TPIMs strategy recognizes that such bans may be counter-productive since they block a number of possibilities for the electronic surveillance of suspects. Obviously, if suspects are banned from the internet or phones opportunities for ‘data mining’, which could provide material allowing for a prosecution – especially of certain of the current very broad terrorism offences – are likely to be limited. Preventive/pre-emptive counter-terrorist measures One strand of the counter-terrorist measures adopted post 9/11 and post 7/7 has been of a preventive as opposed to a reactive nature. In other words, rather than charging persons with terrorist crimes and bringing them to trial, attention turned after 2001 to targeting possible terrorist suspects – persons who may in future commit terrorist acts or are suspected of
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involvement in terrorist activity – and controlling their activities in order to prevent or disrupt terrorist activity. This change in UK anti-terrorist policy in recent years has been described as being ‘the shift to intelligence-based and proactive methods [with] the primary aim of preventing terrorist attacks, rather than responding to events and attempting to solve crimes after they occur.’5 But such preventive measures are clearly more risky and pernicious in human rights terms since they are not subject to the normal due process safeguards created by the criminal justice system, and therefore miscarriages of justice are more likely to occur. Such measures have included detention without trial, control orders, assetfreezing and now, in 2011, Terrorism, Prevention and Investigation Measures (TPIMs). The TA, despite its immense and unprecedented scope, was viewed in 2001 by the government as inadequate to address the terrorist threat post 9/11. Following the attacks on Washington and New York of 9/11, the government introduced the Anti-Terrorism, Crime and Security Act 2001 (ACTSA). The ACTSA, controversially, ushered in the preventive measure of detention without trial in Part 4 aimed at suspected non-British international terrorists, as opposed to seeking to charge such persons with criminal offences under the TA provisions, or with ordinary criminal offences. This required a derogation from the right to liberty guaranteed by Article 5 ECHR.6 Following widespread domestic and international criticism, and after the legislative provisions were declared incompatible with Articles 5 and 14 of the European Convention on Human Rights by the House of Lords in A and Others v. Secretary of State for the Home Dept,7 the government accepted that it could no longer sustain the scheme. It withdrew its derogation from Article 5, and introduced ‘Control Orders’ under the Prevention of Terrorism Act 2005 (PTA).8 In that Act, Parliament repealed the key provisions of Part 4. The new PTA scheme also relied on the use of preventive measures to curb liberty imposed outside the criminal justice system. These apply to British and nonBritish suspects alike, but again do not require proof of criminal activity. The standard of proof required is low: it relies on asking only whether there are reasonable grounds for suspecting that an individual is or has been involved in ‘terrorism-related activity’; additionally the Secretary of State must consider each obligation imposed to be necessary for the purpose of protecting the public from a risk of terrorism. Any obligations that the Secretary of State considers necessary for the purpose of preventing or restricting involvement in terrorism activity may be imposed,9 except obligations that would breach Article 5 (or Article 3, the anti-torture guarantee).10 The control orders scheme, considered by Helen Fenwick in this issue (‘Preventive antiterrorist strategies in the UK and ECHR issues: control orders, TPIMs and the role of technology?’), represents a significant current response to the threat to security. It is, like Part 4, proactive rather than reactive – it does not depend on reacting to a terrorist threat after it has manifested itself, but on targeting and controlling the activities of suspected terrorists.11 Helen Fenwick evaluates the responses of the courts to control orders, and the reasons for their abandonment in 2011 in favour of TPIMs – a form of ‘light-touch’ control order. She argues that the human rights’ issues raised in court in relation to control orders over the last six years are likely to be re-raised – albeit to a somewhat lesser extent – in relation to TPIMs. This is argued partly on the basis that although the Coalition government in 2011 is arguing that TPIMs represent a means of bringing the preventive strategy into the domain of the criminal justice one, doubts can and are being expressed as to the reality of that position. One theme the paper touches on is the use of technology in relation to both control orders and TPIMs as measures allowing interferences with liberty. Such measures can be used at first glance for two purposes. First they are used to bar suspects from employing technology – the internet, phones – to facilitate contact with other
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suspects. Second, technology – in the form of electronic surveillance, electronic tagging – is used to create some control over persons who are suspects but cannot, at least for a time, be prosecuted and imprisoned. However, the paper points out that the TPIMs strategy, unlike the control orders one, is intended to recognise that forms of technology can play a role in bringing a preventive strategy more closely into the criminal process domain by allowing them to be used as investigative tools. Asset-freezing bears similarities to the control orders scheme since it also operates without a criminal trial and yet can have very burdensome consequences for suspects. The current scheme is considered by Adam Tomkins, Liora Lazarus and Helen Fenwick. Here again, technology has an important role to play in ensuring effective asset-freezing. Information and Communication Technology (ICT) can play a crucial role in the investigation process aimed at tracing and recovering assets, including the ‘online’ monitoring of bank accounts. Increasingly, the investigative process in asset tracing involves the collation and analysis of large volumes of data. Investigative measures and surveillance Police powers in the terrorist context are more extensive than in the criminal one and subjected to a lower level of safeguards.12 This is especially true of the stop and search power under s44 TA which has been deployed extensively without the need for reasonable suspicion. S44 has been used disproportionately against Muslim men. The counter-productive effects of its use are considered by Helen Fenwick and Tuyfal Choudhury in this special issue (‘The impact of counter-terrorism measures on Muslim communities’). The 2011 Review concluded that a power to stop and search individuals and vehicles without reasonable suspicion in exceptional circumstances is operationally justified and so section 44 should be repealed and replaced with the new power. This will be achieved when the Protection of Freedoms Bill 2010-11 becomes law. Acceptance of such counter-productive effects13 led the current Coalition government in 2011 to reform one of the more draconian aspects of counter-terror policing. Section 41 and Schedule 8 of the Terrorism Act 2000 provide a regime for the arrest and detention of terrorist suspects that allowed (until 2011) suspects to be detained without charge for a maximum of 28 days, as opposed to 4 days for other criminal investigations. The 28-day maximum period of pre-charge detention for terrorist suspects had to be renewed by affirmative order. The last order was approved by Parliament in July 2010 for a period of 6 months pending the outcome of the review. That order expired at the end of 24 January 2011 and has not been renewed so the current period has reverted to 14 days. The change is included in the Protection of Freedoms Bill 2010-11. Counter-terrorist strategies tend to include increased use of visual surveillance. This is considered in three articles in this issue, beginning with Barrie Sheldon’s consideration of camera surveillance in the UK, ‘Camera surveillance within the UK: Enhancing public safety or a social threat?’. Sheldon notes that surveillance cameras are now well established within the UK and have been a feature within public spaces for many years. Their proliferation continues and, despite government interventions through the legislative process, real concerns still remain about lack of control and regulation, and their intrusive nature. He considers how the proliferation of surveillance cameras has developed and the evidence there is to justify their place within society. He asks whether they contribute significantly to public safety, crime prevention and counter-terrorism. A similar theme is pursued by Quirine A.M. Eijkman and Daan Weggemans in ‘Visual surveillance and the prevention of terrorism: What about the checks and balances?’. They point out that visual surveillance
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has become a key technological tool in the prevention of terrorism and other serious crime. From a human rights perspective, however, they argue that its use requires proper checks and balances, especially because there is a risk that, quoting Mathiesen on Foucault, panoptic surveillance, develops. Furthermore, they point out that when public authorities use visual surveillance in an excessive or arbitrary fashion, they alienate citizens and reduce opportunities for effective co-operation. (This is a theme also picked by Fenwick and Choudhury, below.) The need for proper checks and balances for visual surveillance is put forward in this article, which focuses on the United Kingdom and the Netherlands, which both have experience with preventing ‘home grown’ terrorism and of visual surveillance in public space. In contrast, Daniel Fenwick (‘Terrorism, CCTV and the Freedom Bill 2011: Achieving compatibility with Article 8 ECHR?’) concentrates on the ways in which the use of CCTV may come into conflict with the rights protected under Article 8 ECHR, and considers some of the changes that may come about when the Freedom Bill comes into force. Human rights and counter-terrorist measures The rights guaranteed under the European Convention on Hunan Rights are given domestic effect through the UK’s Human Rights Act 1998 (HRA), under which, however, the courts are given no power to strike down statutory provisions that violate fundamental rights guaranteed under the ECHR. They are limited instead to a duty to interpret legislation compatibly with such rights ‘so far as is possible,’14 and if they cannot do so, making a formal declaration of incompatibility between the provision in question and the ECHR right,15 which has no effect upon the legal validity or enforceability of the incompatible provision.16 Executive action that violates Convention rights is unlawful under section 6(1) of the Act, unless required by primary legislation or plainly authorised under legislation that cannot itself be interpreted compatibly with the Convention rights.17 A tediously familiar aspect of the counter-terrorist scheme is that it often runs counter to British common law traditions and opposes the values of the European Convention on Human Rights.18 The imposition of reverse burdens and presumptions against the defendant, under a range of terrorist offences and the use of preventive measures imposed on the civil standard of proof or on the basis of reasonable suspicion, eases the task of the prosecution or the Home Secretary in seeking to apply the sanctions, but tends to fail to adhere to Convention and common law values. The more harsh the sanction, in certain instances, the easier it is to apply it. Thus, indefinite detention could from 2001 – 2004 be imposed without trial, under the ACTSA 2001, on a burden of proof below the civil standard and without a pre-detention court hearing. When over-broad provisions are applied on the basis of a low standard of due process, the human rights traditions of the UK are undermined, possibly with a counter-productive security impact and without a rational security basis. The most obvious example was the use of indefinite detention against non-British suspected terrorists after 9/11; had that legislation still been in place prior to 7/7 it could not have been used against the suicide bombers, all of whom were British citizens. Counter-terrorist measures can undermine democratic and human rights’ values in seeking to defend them. As Tony Blair, the then Shadow Home Secretary observed in 1993: ‘if we cravenly accept that any action by the government and entitled “prevention of terrorism” must be supported in its entirety and without question we do not strengthen the fight against terrorism, we weaken it’.19 If democratic and human rights’ norms are not to be undermined, counter-terrorist measures should be effective in improving security, have
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a minimal impact on human rights and avoid counter-productive effects, including alienating ‘suspect communities’ and thereby increasing the risk from terrorist acts. As J. Wadham of Liberty has argued: ‘Draconian anti-terrorist laws . . . have a far greater impact on human rights than they ever will on crime’.20 The significant rise in the adoption of authoritarian powers post 9/11 has placed a concomitant strain on human rights. As the discussions in this edition illustrate, a range of clashes between counter-terror measures and ECHR rights under the HRA and at Strasbourg have occurred. The results of such clashes include the abandonment of detention without trial under Part 4 ACTSA and of the very wide-ranging stop and search power under s44 TA. As mentioned, the Coalition government conducted a review in 2011 of a number of aspects of counter-terror laws and practices that had come into conflict with the ECHR. It began to put certain reforms in place in 2011. At the time of writing, the Coalition government is undertaking a partial reform of a number of counter-terror powers, in the Protection of Freedoms Bill 2010-11 and the 2011 Terrorism, Prevention and Investigation Measures Bill. The intention appears to be to avoid the clashes between ECHR rights and counter-terror measures that were a feature of the post 9/11 years under Labour. A number of those changes are considered in the articles in this special issue, including abandonment of the control order regime and its replacement by Terrorism Investigation and Prevention Measures (TPIMs), which is considered by Helen Fenwick. The Terrorism Investigation and Prevention Measures Bill 2011 is before Parliament at the time of writing and due to come into force in December 2011. Fenwick argues that TPIMs orders, despite the stated aims of the Coalition government, may still come into conflict with a range of ECHR rights. The likely effect of the measures in the Protection of Freedoms Bill 2010-11 on visual surveillance is considered by Daniel Fenwick who examines whether compliance with Article 8 ECHR has been achieved. Counter-productive effects of counter-terror measures Clashes between anti-terrorist measures and human rights norms tend to affect minority groups disproportionately; certain groups may be singled out and certain communities may come to be viewed as ‘suspect communities’. Helen Fenwick and Tuyfal Choudhury examine the possible counter-productive effects of a range of the current counter-terror measures in their paper (‘The impact of counter-terrorism measures on Muslim communities’). Their paper considers the impact of s44 TA and comments on the sensitivities surrounding the uses of various forms of technology utilized to combat terrorism, from airport scanners to the increased use of CCTV, intended to combat terrorism, in Birmingham. Conclusions At present, as this special issue demonstrates, two parallel schemes are operating in Britain in respect of the counter-terrorist response: the use of control orders based on certification by the Home Secretary for a tiny group of suspected terrorists (to be replaced by TPIMs), and a reactive scheme based on a range of very broad special terrorism offences, but dependent on trial and conviction, for all suspected terrorists. The creation of the two schemes reveals a disjunction of aim between the creation of ever-broader substantive offences and the use of measures outside the criminal justice system, which may tend to obstruct prosecution of the suspects deemed most dangerous. Ironically, the special terrorist offences appear to be viewed by the Government as ineffective in relation to some of those who
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pose the greatest security threat. The introduction of control orders amounted to an admission of the failure of the criminal law to deal with this threat. The due process demands of criminal trials appear to stand in the way of the prosecution of the group of suspects who are being and will continue to be subjected to preventive measures (control orders or, in 2012, TPIMs). So far, the previous Labour government and current Coalition government have not sought to introduce modifications to the criminal trial itself21 – including allowing the use of intercept material in evidence – with a view to bringing those subject to control orders/TPIMs, and other suspects, to trial. There seems to be a continuing reluctance to use security material as evidence in a criminal trial, partly explaining the reliance on preventive measures outside the criminal justice system. Despite the introduction of broad new offences under the TA 2006, there seemed until recently to be little prospect of a significant increase in the use of the criminal justice process. However, one of the stated aims of introducing TPIMs was to draw preventive measures into the criminal justice domain – to bring the two parallel schemes closer together. This special issue argues that there is a dissonance between the vast array of counterterrorist provisions it has discussed, and the preservation of security of the UK. The passing of two very broad anti-terrorism statutes – the TA 2000 and the ACTSA – did not prevent the worst terrorist atrocity in Britain in recent years – the London bombings in 2005. A common theme in the articles in this issue is to argue for a narrower targeting of the various measures discussed – at Al-Qaeda and linked groups, and for greater efforts to prosecute their members and supporters, employing inter alia the offences under the TA 2006. The use of control orders/TPIMs, which at present do not include detention in prison, not only runs counter to a number of Convention principles, it is ineffective in security terms.22 Similarly, the efficacy in countering terrorism of the use of invasive measures, including visual surveillance, affecting the many, is questioned. Despite the reforms to control orders, and despite changes introduced in the Protection of Freedom Bill 2011 aimed at reform of police powers and visual surveillance in the terrorist context, Parliamentary scrutiny of counter-terror measures with human rights’ norms in mind and the courts’ deployment of the Human Rights Act are likely to continue to play a key role in creating a Convention-compliant balance between rights and security.23 The use of the principle of proportionality by the courts has created, and has the potential to continue to create, a narrower focus for the counter-terrorist scheme, which brings it to bear on targets that genuinely threaten security.
Notes 1. 2. 3. 4. 5.
L. Freeman, ed. Superterrorism: Policy Responses (Oxford: Blackwell Publishing, 2002), 44. See Review of Counter-Terror Law and Security Jan 2011: Recommendations and Findings Home Office, Cm 8004. See further, Bhavani Thuraisingham, ‘Data Mining, National Security, Privacy and Civil Liberties’, SIGKDD Explorations 4, no. 2 (2002): 1. Quotes from James A. Lewis, Assessing the Risks of Cyber Terrorism, Cyber War and Other Cyber Threats (Washington, DC: Center for Strategic and International Studies, 2002). N. Whitty, T. Murphy, and S. Livingstone, Civil Liberties Law: The Human Rights Act Era (London: Butterworths, 2001), 143. As Clive Walker puts it, ‘The trend [of UK anti-terrorist policy] . . . represents a part of a fundamental switch away from reactive policing of incidents to proactive policing and management of risk.’ C. Walker, ‘Terrorism and Criminal Justice: Past, Present and Future’, Criminal Law Review, 311 (2004): 314. Walker further cites R.V. Ericson and K.D. Haggerty, Policing the Risk Society (Oxford: Clarendon Press, 1997).
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7. 8. 9. 10. 11. 12.
13. 14. 15. 16. 17. 18. 19. 20. 21.
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Article 5(1) provides that ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’, and then provides for a number of specific exceptions in paragraphs (a)– (f). Art 5(3) provides for the right to be brought ‘promptly’ before a judicial authority upon arrest and to trial within a reasonable time; Art 5(4) provides for habeas corpus. (2004) UKHL 56; [2005] 2 AC 68; [2005] 2 WLR 87; [2005] 3 All E.R. 169. L. Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control Orders’, Current Legal Problems 60 (2007): 174. S 1(3). Ss (4) provides a non-exhaustive list of conditions. Article 3 provides that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ No exceptions are provided. See further: H. Fenwick ‘Recalibrating ECHR Rights, and the Role of the Human Rights Act Post-9/11: Reasserting International Human Rights Norms in the “War on Terror”?’, Current Legal Problems 63 (2011): 153 –234. See ‘Counter-Terror Law and Policy in the UK Post 9/11: Acceptance of Extraordinary Measures and the Incremental Return to Adherence to ECHR Human Rights Norms’, in H. Fenwick and G. Phillipson, Global Terrorism, 2nd edn, ed. V. Ramraj, M. Hor, K. Roach (Cambridge: Cambridge University Press, 2011). See Review of Counter-Terror Law and Security Jan 2011 Home Office, Cm 8004. S 3(1). S 4(2). Ss 3(2) and 4(6). S 6 (2). See C. Warbrick, ‘The Principles of the European Convention on Human Rights and the Responses of States to Terrorism’, European Human Rights Law Review 287 (2002); A. Tomkins, ‘Legislating against Terror’, Public Law (2002): 205. Hansard, House of Commons 10 March 1993 col 975. See The Guardian, November 14, 1999. Apart from the introduction, in places of reverse burdens of proof, as in s 57 TA. The key proposals from the Newton Committee had that objective in mind: they were intended to allow for the use of the special terrorism and proscription offences in prosecutions against members or supporters of Al- Qaeda. As Justice pointed out in 2007 in its Draft Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2007 JUSTICE Briefing for House of Commons Debate. February 2007: the recent abscondment of two individuals subject to control orders – one from a psychiatric hospital and one from a mosque – raises serious questions about the use of control orders. See further ‘Covert Derogations and Judicial Deference: Redefining Liberty and Due Process Rights in Counterterrorism Law and Beyond (with G. Phillipson) McGill Law Journal 56, no. 4 (2011): 1–54.
Helen Fenwick Professor of Law University of Durham Human Rights Centre, Law School Email:
[email protected]
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