Human Rights Law - Terrorism

1.The Terrorism Act 2000

2.The Anti-Terrorism, Crime & Security Act 2001

3.Civil Contingencies Act 2004

4.Serious Organised Crime and Police Act 2005

5.Prevention of Terrorism Act 2005: Control Orders

6.The Terrorism Act 2006

7.The Counter-Terrorism Act 2008

•Terrorism Act 2000 (Remedial order) 2011

•The Terrorism Prevention and Investigations Measure Act 2011

•The Protection of Freedoms Act 2011 Counter-Terrorism and Security Act 2015

Counter Terrorism and Border Security Bill 2019

Counter Terrorism and Sentencing Bill 2020/1

• Cases where the judiciary has upheld the SOP doctrine and showed defernce to the government in terrorism cases 

SOP - Shows Judicial deference to the Government 

Facts

The applicant was a Pakistani national who had been granted entry to the UK in order to work as a religious minister. After five years, his application for indefinite leave to remain was rejected and he was notified that the decision was based on his association with a terrorism-linked organisation. A deportation order was made in the interests of national security.

Issue 

On appeal by Rehman, the Special Immigration Appeals Commission held that a person had to be involved in, or had to promote or encourage violence targeting the UK in order to be regarded as a threat to national security. The Commission found that the Secretary of State was not able to show with a sufficient degree of probability that Rehman posed such threat. The Court of Appeal later found for the Secretary of State. Rehman appealed.

Held 

The HOL dismissed Rehman’s appeal. The meaning of the phrase “conducive to the public good” under s. 3(5)(b) of the Immigration Act 1971 was, prima facie, a matter to be decided by the Secretary of State at his discretion. Deportation could be conducive to the public good based on the three given grounds (as contained in s. 15(3) of the 1971 Act) taken together – as an overall view. Furthermore, the Court found that national security could be threatened indirectly by actions targeting other states, as well as those directly targeting the UK. The specific facts relied on by the Secretary of State should indeed be proved on the balance of probabilities, however, there was no appropriate standard for the formation of an executive judgment of this nature. Whether a deportation order would be conducive to the public good should be based on a reasonable and proportionate consideration of all available material.

SOP - Judicial Deference Shown to Gov 

Facts 

• A challenge by way of judicial review to the ban on Louis Farrakhan entering the United Kingdom (challanged granted by High Court). The ban was imposed on Farrakhan, the leader of the black separatist Nation of Islam in the United States, in 1986. He sought to overturn the ban in 2001, relying on the provisions of the Human Rights Act 1998, and was initially successful in the Administrative Court of the High Court of Justice – the first time that an exclusion order had been successfully challenged in court.
• The British government appealed and in 2002 the Court of Appeal overturned the earlier decision, reinstating the ban.

Judgement 

• Sadiq Khan, Farrakhan's solicitor, said that there was a double standard in that white supremacists had been allowed into the UK
• The ruling was influenced by the legacy of the September 11 attacks, which had happened in the period between the judge's decision and the delivery of his judgment

• Cases where the judiciary has upheld the ROL in terrorism cases 

Judiciary Upholding ROL - Torture 

Derogation 

Facts

• The case concerned the indefinite detention of foreign prisoners in the United Kingdom prison ‘Belmarsh’. The prisoners were held without trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001. This decision and the subsequent detentions were challenged at court in terms of their compatibility with the aims of the European Convention on Human Rights.
• The original case was brought by 9 individuals who were threatened with deportation without trial on the basis that there was some evidence that the individuals posed a national security threat. The 9 challenged this deportation decision of the Special Immigration Appeals Commission. All 9 were later detained under the Anti-Terrorism, Crime and Security Act 2001 pending deportation. Section 4 of this act enabled the individuals to be held indefinitely, without trial or deportation.

Issues

• The case is so important because it shows a direct challenge, in the courts, of the extent to which legislation confers powers to the executive in the way in which they deal with a presumed threat to national security. The judges had to weigh up considerations of the power conferred by such legislation, the limitation on such powers of the executive, and a balance of necessity to limit personal liberty in order to protect national security. This was all to be considered against the backdrop of the 9/11 attacks in America and the international ‘war on terror’.

Held

• The ruling in this case was a landmark decision. The HOL held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights – however the Home Secretary was not required to release the prisoners. The provision had the effect of discriminating between foreign nationals and nationals of the state. As a result of the Lords finding, they made a declaration of incompatibility under Section of the Human Rights Act 1998.

Lord Bingham

• “The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.” [42]
• “The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” [29]

Lord Nicholls of Birkenhead

• “The duty of the court is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely effected.” [79]
• The case decision is so ground-breaking because it shows a willingness of the judiciary to check the powers and exercise of the executive in matters concerning national security. It is important to note, however, that the Lords ruling and subsequent declaration of incompatibility did not render the acts of detention or application of section 23 invalid, nor did it bind the actions of the Home Secretary. As such the 9 individuals remained in detention and took their case to the European Court of Human rights, culminating in the 2009 appeals case A and others v UK Application No.3455/05.

Judicial Upholding of ROL (Evidence Disclosure: Fair Trial) 

Facts 

• This case is about whether the defendants in control order cases have an absolute right of disclosure to some of the secret evidence against them, or whether (as the government argues) it is possible for a person to have a fair trial even though they do not know any of the secret evidence against them.

Issue 

• The idea that it might be possible to have a fair trial even without knowing any of the evidence was left open by the House of Lords decision in MB in 2007. Subsequently, a number of HighCourt judges found it very difficult to apply but the possibility was upheld by the Court of Appeal in October 2008.
• In February 2009, however, the ECtHR ruled in a series of cases concerning SIAC that there was an absolute right to disclosure of some of the secret evidence under article 5(4) of the ECHR

Held - HOL unanimously ruled that the COA and its own previous judgment in 2007 in MB were wrong. Under article 6 ECHR (fair trial), defendants in control order cases now have an absolute right to disclosure of ‘sufficient information about the allegations against him to enable him to give effective instructions to the special advocate’. 

Does this mean that defendants in control order cases get to see all of the secret evidence?

• No. In accordance with what the European Court of Human Rights said in February, the House of Lords has drawn a distinction between the allegations against a suspect and the evidence against a suspect. Defendants have a right to know all the allegations against them but not necessarily the evidence supporting the allegation.

Will this end the use of secret evidence, special advocates or control orders?

• No. As Lord Brown says in his judgment, ‘inevitably there will continue to be closed hearings and special advocates’ (para 121). However, it is likely that the government will find it increasingly difficult to justify control orders as the courts will almost certainly require them to disclose a great deal more of the secret evidence than is currently the case.

Will the government be forced to disclose sensitive information - No. The ruling only means that the judge can direct the government to disclose evidence. The government still has the choice whether to comply. If the government thinks tha the evidence is too sensitive to disclose, it can decide to withdraw the control order instead.

JUDGES UPHOLDING ROL (Legal Consultation) 

• HC ruled a person detained for examination under schedule 7 of the Terrorism Act 2000 is entitled to consult a solicitor in person at any time
• Clarifies the scope of schedule 7 of the Terrorism Act and follows a Law Society intervention in a judicial review against the Metropolitan Police.   
• The Society argued that it is unlawful to restrict a person who has been detained at a port or airport under schedule 7 of the Terrorism Act to being entitled to have legal advice only via telephone.   
• In his judgment Mr Justice Bean said: ‘The detainee has the choice. The right may be exercised at any time during the period of detention and may be exercised repeatedly, although not in a manner which frustrates the proper purpose of the examination. If the solicitor attends in person he may be present during the interview… .
• Law Society chief executive Desmond Hudson said: ‘This case focuses on the right to consult a solicitor in a situation where individuals are extremely vulnerable. It raises an important issue not only to the legal profession but also to the public generally.’  
• ‘The presence of solicitors provides a fundamental safeguard to detainees and this ruling has clarified that in principle there is no sound reason why questioning of a detainee should not be delayed pending the arrival of a solicitor who can advise on what questions they are obliged to answer and explain the legal implications of refusing to do so.’

• Cases where terrorism legislation has been criticised by the judiciary 

JUDICAL CRITICISM OF LEGISLATION (Terrorism Act 2000) 

Facts: Two students attended a peaceful demonstration. Under s.44 of the Terrorism Act 2000,they were searched.

Issue: Was the stop and search lawful?

Held: The House of Lords held that this was lawful, however, the ECHR held that s.44 was unlawful.

Summary 

• A de facto appeal from a 2015 UKSC decision concerning the question of whether Schedule 7 to the Terrorism Act 2000 was incompatible with various rights under the ECHR
• The ECtHR concluded unanimously that the applicant’s right to respect for private and family life under A8 had been infringed.

Judgment 

• The point of difference between the decisions of the ECtHR and UKSC concerns the issue of legality for the purposes of A8
• With regard to Article 8, the ECtHR observed that Schedule 7 powers were not analogous to ordinary immigration powers which any reasonable traveller might expect to be subject t. 
• Whether this interference could be said to be “in accordance with the law”. The Court laid out the applicable general principles, which require the measure in question to “have some basis in domestic law and to be compatible with the rule of law”. Accordingly, the law must be “adequately accessible and foreseeable” such that an individual can regulate her conduct. Additionally, “[f]or domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention.”
• As applied to Beghal’s case, the question for the Court was whether “the safeguards provided by domestic law sufficiently curtailed the powers so as to offer her adequate protection against arbitrary interference with her right to respect for her private life”. The Court addressed this question by considering the following matters: the geographic and temporal scope of Schedule 7; the discretion afforded to the authorities in exercising the powers under Schedule 7; any limits on the interference occasioned by the exercise of the powers; the possibility of judicial review; and the existence of independent oversight.

Judgement Cont. 

• Referenced R (Gillian) where the ECtHR had held that the relevant legislative provisions fell short of the requirements of being “in accordance with the law”, with the result that there was a violation of Article 8
• In relation to the final two points, the possibility of judicial review and the availability of independent oversight, things appeared to take a decisive a turn against the UK government. Despite having earlier stated that the lack of a requirement of reasonable suspicion did not mean that Schedule 7 failed the test of lawfulness, the lack of such a requirement ultimately proved significant in that it made it difficult for the examining officer’s decision to use Schedule 7 to be subject to meaningful judicial scrutiny. With respect to independent oversight, the ECtHR observed that while the oversight provided by the Independent Reviewer should not be discounted, the level of oversight was at a programmatic rather than individual level, meaning that the Reviewer was not in a position to assess the lawfulness of a particular exercise of Schedule 7.
• The ECtHR ruled that at the time of Beghal’s examination, Schedule 7 “was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”. Accordingly, it was not “in accordance with the law”, meaning that there had been a violation of Article 8. However, since this was the only violation, and one that related to the “quality of the law in force at the relevant time”, the Court did not see fit to make an award of non-pecuniary damage

• Cases concerning derogation 

DEROGATION

Facts 

• The six claimants were all subject to control orders made by the secretary of state under the Prevention of Terrorism Act 2005. All were suspected by the secretary of state to have been involved in terrorism-related activities and were assessed to pose a threat to the public within the UK or overseas. None had been charged with or prosecuted for any offence relating to terrorism. The orders required each claimant to remain within his “residence” at all times, save for a period of six hours. In each case the residence was a one bedroom flat. Visitors had to be authorised by the Home Office.
• The residences were subject to spot searches by the police. During the six hours of leave, the claimants were confined to restricted urban areas, the largest of which was 72 square kilometres. They did not extend to any area in which they lived before (save in the case of one claimant). Each area contained a mosque, a hospital, primary healthcare facilities, shops and entertainment and sporting facilities. The claimants were prohibited from meeting anyone by pre-arrangement who had not been given the same Home Office clearance as a visitor to the residence.  Each applied to challenge the orders as incompatible with Art 5 ECHR.

Held 

• The High Court held that the orders did deprive the claimants of their liberty in breach of Art 5, as did the Court of Appeal. The secretary of state appealed to the HOL.

Lord Bingham

• Article 5 had fallen to be considered in a very wide range of factual situations. His Lordship referred to Engel v The Netherlands (No 1) (1976) 1 EHRR 647, Guzzardi v Italy (1980) 3 EHRR 533 and Ashingdane v United Kingdom (1985) 7 EHRR 528.
• Strasbourg decisions had established that 24-hour house arrest was regarded as tantamount to imprisonment and so as depriving the subject of his or her liberty. But the court had made clear that deprivation of liberty might take numerous forms other than classic detention in prison or strict arrest. What had to be considered was the concrete situation of the particular. Thus the task of a court was to assess the impact of the measures in question on a person in the situation of the person subject to them.
• Account had to be taken of a whole range of factors such as the nature, duration, effects and manner of execution or implementation of the penalty or measure in question. There might be no deprivation of liberty if a single feature of an individual’s situation was taken on its own but the combination of measures considered together might have that result. Because account had to be taken of an individual’s whole situation it was inappropriate to draw a sharp distinction between a period of confinement which would, and one which would not, amount to a deprivation of liberty, important though the period of daily confinement would be in any overall assessment.

Judgement Cont.

• The Strasbourg court had realistically recognised that “the difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance” (Guzzardi, para 93). There was no bright line separating the two. The decision was one of pure opinion or what might, rather more aptly, be called judgment.
• In assessing the impact of the measures in question on a person in the situation of the person subject to them, the court would assess the effect of the measures on the life the person would have been living otherwise.
• His lordship turned to the facts of the case. The judge at first instance had concluded: “Bearing in mind the type, duration, effects and manner of implementation of the obligations in these control orders, I am left in no doubt whatsoever that the cumulative effect of the obligations has been to deprive the respondents of their liberty in breach of Article 5 of the Convention…The collective impact of the obligations…could not sensibly be described as a mere restriction upon the respondents’ liberty of movement. In terms of the length of the curfew period (18 hours), the extent of the obligations, and their intrusive impact on the respondents’ ability to lead anything resembling a normal life, whether inside their residences within the curfew period, or for the 6-hour period outside it, these control orders go far beyond the restrictions in those cases where the European Court of Human Rights has concluded that there has been a restriction upon but not a deprivation of liberty.”
• His lordship agreed with the Court of Appeal that the judge had made no error in law. He also agreed that, since the secretary of state had no power to make the order, there was nothing to revoke and that the courts could not quash one or more of the obligations or direct the secretary of state to modify them.
• The appeal would therefore be dismissed. Baroness Hale and Lord Brown delivered concurring opinions and Lord Hoffmann and Lord Carswell dissented.

DEROGATIONS

Facts 

• The applicant, who was subject to a control order, complained that the SOS had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement.

Held 

• The appeal failed. Though the SOS had failed as described, that did not make the renewal of the control order unlawful. The SOS had consulted with the prosecuting authorities before the order had first been made.
• Baroness Hale said that the core element under Article 5 is that of confinement.
• Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

- ADDITIONAL CASES THAT MAY BE OF HELP 

Facts 

• David Miranda was stopped and detained by police at Heathrow airport in August 2013 under para 2(1) of Schedule 7 to the Terrorism Act 2000.
• Miranda was questioned about various items in his possession and various items were taken from him, including encrypted data derived from material acquired by Edward Snowden from the NSA. That material included US intelligence, some of which formed the basis of articles published in the Guardian in June 2013. Miranda was carrying the material in order to assist his partner, Glenn Greenwald, in his journalistic activity.

First Instance Decision in the Divisional Court (2014)

Miranda challenged his detention in the Divisional Court by way of a claim for judicial review on the grounds that:

• The use of the Schedule 7 powers had been for an improper purpose, the dominant purpose being to seize the material in his possession rather than to determine whether he appeared to be a person falling within section 40(1)(b) 
• The use of the powers was a disproportionate interference with his right to protection of journalistic expression
• Schedule 7 powers, being exercisable without prior judicial scrutiny, were incompatible with the right to freedom of expression guaranteed by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms

The Divisional Court dismissed his claim for judicial review 

2016 COA Civ Decision

• Allowed the appeal in part: 
• It did not follow that the publication of material could not amount to an act of terrorism. If (i) the material that is published endangers a person’s life (other than that of the person committing the action) or creates a serious risk to the health or safety of the public or a section of the public; and (ii) the person publishing the material intends it to have that effect (or is reckless as to whether or not it has that effect), then the publication is an act of terrorism, provided, of course, that the conditions stated in section 1(1)(b) and (c) of the 2000 Act were satisfied. (see para 55 of the judgment). Note: there is a question as to whether the Court of Appeal’s definition of “terrorism”, which is narrower than that adopted by the Divisional Court and argued for by the government, is ratio.  It will be particularly interesting to see if, in the event of appeal to the Supreme Court, this narrower formulation is approved.
• (2) The police exercised the power for a permitted purpose and were entitled to consider that the material in Miranda’s possession might be released in circumstances falling within the definition of terrorism: there was sufficient justification for the exercise of the stop power.  (see paras 25-37, 57, 58 of the judgment)
• (3) The stop power was not exercised in a way that amounted to an unjustified and disproportionate interference with Miranda’ article 10 rights despite the fact that this case involved an interference with press freedom: compelling national security interests outweighed Miranda’s article 10 rights. (see paras 59-93 of the judgment)
• (4) The stop power, if used in respect of journalistic information or material is incompatible with article 10 because it is not “prescribed by law” as required by article 10(2). The stop power is not subject to sufficient safeguards to avoid the risk that it would be used arbitrarily. Accordingly, a certificate of incompatibility would be granted.
• It is for Parliament to decide how to provide such a safeguard, the most obvious solution in the opinion of the court would be some form of judicial or otherwise independent oversight.

DEFINITION OF TERRORISM (includes military attacks by non-state groups) 

• Asked if "terrorism" under Terrorism Act 2000 s.1 included any or all military attacks by a non-state armed group against any or all state or inter-governmental organisation armed forces in the context of a non-international armed conflict
• Held:  “Terrorism in s.1 is very far reaching. Activities which might command a measure of public understanding, if not support, may fall within it. It was difficult to see how the natural meaning of the definition could properly be cut down by the instant court (unless conflicting with ECHR or other obligations)”
• Note Obiter – Discusses lack of international definition and  SC expressed concerns about the width of the definition and its impact on  personal liberty
• Court discussed lack of international definition and concerns with width of definition UK – personal liberty – in obiter outside judgement – said they don’t have power to change definition – said they don’t have power to change it as under S3/S2 ECHR doesn’t apply enough so can't change – deferred to parliament but did say concern 

Daniel Greenburg - Terrorism - Westlaw 18th November 2020