The new government is currently undertaking a review of anti-terrorism legislation, and Liberty, the human rights organisation, have been asked to contribute.
Update: The full Liberty response, ‘From War to Law’ can be downloaded here.
The response is predictable, which is unsurprising given how much time and effort the organisation has put into speaking out against New Labour’s more controversial anti-terror policies. Control orders, 28 day detention without charge, the use of wide stop and search powers (currently suspended anyway) and surveillance powers are all mentioned.
More interesting are the organisation’s comments on proposals to ban non-violent groups promoting hatred. This would, say Liberty, be a step too far and would risk “including innumerable organisations, potentially including political and religious bodies.”
The Ministry of Justice is proposing to change the rules on who can apply for international arrest warrants for suspected war crimes. The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted.
The present system means that the threshold for an arrest for war crimes is low, and as such visiting ex-ministers can be arrested if only limited (or “flimsy” as the MoJ puts it) proof of the alleged crime is presented to a magistrate. The highest profile cases have been those involving ex-ministers from Israel, and in particular Tsipi Livni. As a result of the threat of arrest warrants, Israeli ex-ministers have largely stayed away from the UK.
As the MoJ statement says, war crimes under the Geneva Conventions Act 1957, and a small number of other grave offences, are subject to universal jurisdiction. This enables prosecution to take place here even though the offence was committed outside the United Kingdom, and irrespective of nationality.
This post was written with the kind help of Jaime Lindsey
The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.
This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.
A (A Child) v The Chief Constable of Dorset Police  EWHC 1748 (Admin) (16 July 2010) – Read judgment
The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.
The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
Al Jedda V Secretary Of State For Defence EWCA Civ 758 – Read judgment
The Court of Appeal has found that there was no breach of the “essence” of a right guaranteed under the Iraqi Constitution to have a prisoner’s detention reviewed by a judicial authority when the reviewing authorities were not judges, but had the necessary judicial qualities.
Mr Al Jedda was detained in Iraq in 2004 by British forces on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007 in Iraq but was at no time charged with any offence.
The case has had an interesting route through the courts which is worth summarising briefly. Continue reading →
Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07  ECHR 1067 (6 July 2010) – Read judgment
The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.
In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.
The controversial stop and search anti-terrorism powers are to be scrapped after a decision of the European Court of human Rights that they violated human rights law.
According to a press release on the Home Office website, the decision will have immediate effect and is a direct response to the European Court’s decision:
Theresa May today tells Parliament that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.
The move is in response to a decision by the European Court of Human Rights (new window), which found that the use of stop and search powers under section 44 of the Terrorism Act 2000 (new window) amounted to a violation of the right to a private life. Continue reading →
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omaghbombingintelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.
The report – Without Suspicion Stop and Search under the Terrorism Act 2000 – runs to 64 pages and seeks to systematically dismantle the case for area-based stop and search under section 44 of the Terrorism Act 2000, which allows the police to stop and search without suspicion. Responding to proposals to cut the scope of the scheme, the reports states:
… we believe that even if the law were improved—if its geographic scope were permanently narrowed or its use restricted to specialist officers—the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK’s human rights obligations and is counterproductive.
The Master of the Rolls Lord Neuberger has given the firstlecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.
At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that
will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles. Continue reading →
Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2)  EWCA Civ 731 Supreme Court 23 June 2010
AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment
We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
Al Rawi & Ors v the Security Service & Ors  EWHC 1496 (QB) (21 June 2010) – Read judgment
The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.
The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.
The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.
TTM v London Borough of Hackney & Ors  EWHC 1349 (Admin) (11 June 2010) – Read judgment
A man accused of harassing women he did not know has failed in his human rights challenge to his detention under the Mental Health Act 1983. Having successfully secured a writ of habeas corpus to release him from a mental health institution, he has lost his initial bid for the High Court to declare that his detention ran contrary to his human rights. He is now appealing the decision.
This case has raised important questions about the extent of the ancient right of habeas corpus (relief from unlawful detention) and its interaction with the far more recent Article 5 of the European Convention on Human Rights 1950 (“ECHR”), as well as the ability of any wronged claimant to recover damages in circumstances where they are wrongly detained.
Secretary of State for the Home Department v AP  UKSC 24 (16 June 2010) – Read judgment
The Supreme Court have given the latest judgment on the controversial control order scheme, and in this case have allowed the appeal of a man suspected of terrorism on the grounds that confinement to a flat 150 miles away from his family amounted to a breach of his human rights.
The Appellant was an Ethiopian national who was the subject of a control order. This confined him to a flat for 16 hours a day in a Midlands town 150 miles away from his family in London.
The Supreme Court unanimously allowed the appeal, set aside the decision of the Court of Appeal and restored the High Court’s order. Lord Brown gave the leading judgment. Lord Rodger and Sir John Dyson SCJ delivered concurring judgments. The press summary of the judgment can be read here and the summary below is drawn from it.
The Home Secretary has pledged to conduct an “urgent review” of police stop and search powers as it has been revealed that thousands of searches may have been conducted illegally.
Teresa May, the new Home Secretary, has gone on the offensive with a Guardian editorial blaming the previous Government and promising to fix the problem urgently. She says “It has been clear for a decade that the last government held our civil liberties cheap. They introduced the powers that have been abused 10 years ago, and then sat back as they were used more and more frequently.” She is reportedly “incandescent” over the report.
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