Response to Government Consultation Paper on Legislation Against Terrorism

1. INTRODUCTION

1.1 British Irish Rights Watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

1.2 We welcome this opportunity to respond to the government’s consultation paper on legislation against terrorism.

1.3 In the course of our work over the past nine years we have made an in-depth study of the effects of the emergency laws put in place in response to the Northern Ireland conflict. We have concluded that such laws are unnecessary and ineffective, they contravene international human rights law and they damage the very fabric of civil society and democracy.

1.4 It follows that we are opposed to the introduction of permanent counter-terrorism legislation. In this submission we set out our reasons for that opposition. We also comment on the specific proposals on which the government has sought comments.

2. CONSTITUTIONAL OBJECTIONS

2.1 As advocates of respect for international human rights law, we regard the “unwritten constitution” by which the United Kingdom is governed as an anachronism. The theory underpinning the unwritten constitution is that everything is permissible unless it is prohibited by law. The difficulty with such a theory is that in practice positive rights are never articulated or defined, while a body of legislation is developed which is focused on denying and/or limiting rights.

2.2 The development of existing counter-terrorism laws is a case in point. Draconian powers have been adopted and extended through a succession of Acts of Parliament, all of which have considerable impact on fundamental human rights and freedoms, such as the right to a fair trial and the right to liberty and security of person. Yet there are currently no countervailing mechanisms whereby people can exercise or assert their positive rights.

2.3 The forthcoming incorporation into domestic law of the European Convention on Human Rights will go some way to ameliorating this situation. However, it will by no means cure it altogether. In particular, the failure to take the opportunity to discontinue the United Kingdom’s derogation from Article 5 (3) of the Convention on account of prolonged detention under the Prevention of Terrorism Act is acutely disappointing. Furthermore, in the absence of a Bill of Rights to update the Convention, not all rights will be specifically articulated. For example, while the Convention specifically protects the presumption of innocence by virtue of Article 6 (2), it makes no mention of the right to remain silent. Although in our view the existing laws abrogating the right of silence are clearly in breach of international human rights norms on the right to a fair trial[1], it remains to be seen whether it will be possible to challenge those laws under the Human Rights Act 1998.

2.4 The content of existing laws conflicts with and violates international human rights norms in many other respects[2]. Thus a situation has arisen where the UK regularly breaches human rights treaties to which it is a party while providing inadequate domestic redress for such breaches. This is an unhealthy state of affairs for any constitution, written or unwritten. The introduction of permanent counter-terrorism legislation can only perpetuate and deepen such a malaise.

2.5 There is a further constitutional objection to the existing laws which is, in our view, paramount. They create a twin-track system of criminal justice in which suspects and defendants have fewer rights under emergency laws than they do under the ordinary law because of the supposed motivation for their acts. In our view, it is morally and logically offensive to attempt to distinguish serious crimes such as murder on the basis of the alleged motive of the perpetrator - murder is murder, and is always heinous. It is equally indefensible, though, to apply different due process rights to perpetrators on such a basis. To do so is to deny a basic principle that underpins both the unwritten constitution and international human rights law, that of equality before the law. To perpetuate such discrimination in permanent laws would be to make a bad situation worse and to enshrine an approach that deepens divisions in society and undermines democracy.

3. ARE PERMANENT COUNTER-TERRORISM LAWS NECESSARY?

3.1 On deciding the question at the heart of the present consultation exercise - that is, whether there is a future need for counter-terrorism laws in the UK - it is reasonable to consider two prior matters:

a) are permanent counter-terrorism laws justified? and

b) will they be effective?

3.2 We would argue that de facto the UK is already governed by permanent counter-terrorism law in the form of the Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA) and the Northern Ireland (Emergency Provisions) Act 1996 (EPA). Despite the provisional nature of the titles of these Acts, the PTA has been with us in various guises since 1974 and the EPA’s precursors go back to the Civil Authorities (Special Powers) Act 1922. Moreover these laws have been significantly augmented since the ceasefires by the Criminal Justice (Terrorism and Conspiracy) Act 1998, which is discussed below.

3.3 The test of whether permanent laws would be justified is the same as that which can be used to evaluate the existing laws. Emergency laws that fail to comply with constitutional norms, such as trial by jury, ought only to be countenanced where there is a public emergency threatening the life of the nation[3]. In our submission, no such state of emergency currently exists, despite the horrific bombing of Omagh in 1998. Indeed, we would argue that no true state of emergency ever existed, even when the Northern Ireland conflict was at its height. Throughout “the Troubles” the rule of law held sway, democratic institutions remained in place, and the majority of people were able to go about their daily business unhindered. In pointing this out, we do not seek to minimise the terrible consequences of the conflict, especially on the victims of violence, but we do maintain that the level of violence and disruption was such that it did not justify the declaration of a state of emergency. Indeed, the UK government appears to have accepted that this was the case. Having declared a state of emergency in 1976, it was lifted in 1984 but was re-imposed in 1988, not in response to any act of terrorism, but in order to enable the UK to derogate from its international obligations following a ruling by the European Court of Human Rights[4]. States of emergency and derogations are intended to be brief in duration and to be lifted at the earliest opportunity. Whatever view is taken of the past, the situation since the autumn of 1994 when paramilitary ceasefires were first declared cannot be described as one of emergency.

3.4 While the current laws are not justified in terms of the international standards to which the UK subscribes, they might nevertheless be justified in the ordinary sense of the word if they were effective in preventing terrorism. However, the truth is that they are not. Over 3,300 people died between 1969 and 1994 as a result of the Northern Ireland conflict, nearly 90% of them as a result of terrorism[5], and most of them in Northern Ireland itself. In a population of around 1.6 million, that is a toll that has left no-one unscathed. Damage to property, especially in London and Belfast, has cost billions of pounds[6]. As a matter of cold fact, the existing laws have not been able to prevent terrorism.

3.5 No doubt the police, the army and the intelligence service would argue that, while the laws have not prevented terrorism, they have made it more difficult and have acted as a deterrent. As negative propositions, these are difficult to prove - or, we accept, to disprove. However, two factors suggest that these propositions have little or no substance. First, it is the case that the overwhelming majority of those arrested under the PTA have been, according to official statistics, released without charge, as the following table shows[7]:

 

Year	No. Arrests	No. Released	%
1998	555	420	76
1997	504	356	71
1996	569	410	72
1995	443	335	76
1994	1508	1136	75
1993	1641	1262	77
1992	1795	1336	74
1991	1680	1294	77
1990	1764	1388	79

Secondly, and more significantly, to the best of our knowledge not one of those actually convicted under the current laws has been so because of any provision in those laws, with the exception of membership of a proscribed organisation[8]. In other words, those convicted of murder, assault, hostage-taking and so on have been convicted on the basis of ordinary criminal investigation procedures and evidence. It would appear that existing counter-terrorism laws, as well as failing to prevent terrorism, do not enhance its detection or secure convictions.

3.6 In our submission, it is not sufficient for the authorities to make unsubstantiated claims about the effectiveness of counter-terrorism laws. If they are to make the case for their retention and entrenchment, they must show why the existing criminal law is not adequate for dealing with terrorism. We suggest that such a case has never been made and could not be made. In particular, the regime under the PTA as applied in England and Wales[9] is governed by the provisions of the Police and Criminal Evidence Act 1984 (PACE)[10], which also applies to cases dealt with under the ordinary criminal law, yet the police do not argue that applying the PACE rules hinders their ability either to investigate terrorism or to secure convictions.

3.7 Even if the authorities could make out a convincing case for a distinct regime of counter-terrorism laws, it would be incumbent on the government to consider whether the net effect of such a regime was justified when weighed against its cost in terms of the denial or limitation of civil liberties and human rights. In the absence of a genuine state of emergency and of any evidence that the current laws are effective in preventing or detecting terrorism, or convicting terrorists, we maintain that the damage these laws inflict on human rights is disproportionate to any value they may have in protecting society from terrorism.

4. CONSIDERATION OF SPECIFIC PROPOSALS 4.1 DEFINITION OF TERRORISM

4.1.1 Since we are opposed to the introduction of permanent anti-terrorism legislation on principle, it follows that we see no need to define terrorism for the purposes of legislation.

4.1.2 Having said that, if the government does decide to introduce an anti-terrorism law, we would have several reservations about the definition proposed in the consultation paper, that is:

“the use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public or any section of the public, for political, religious or ideological ends”.

4.1.3 First, we foresee problems with the term “serious violence”. It is not, of course, a scientific description or a term of art, and there is a danger that one judge’s or jury’s act of serious violence would be another’s minor misdemeanour. Is an act which could have potentially very serious consequences, such as planting a bomb, an act of serious violence if the bomb does not detonate and no-one is hurt? Or would that qualify as a “threat” of serious violence, although it is in fact an act? We are particularly concerned that the government itself proposes to make the definition of serious violence extremely elastic by incorporating “serious disruption” of computer installations, electronic data, or public utilities etc. This would elevate a hoax telephone call that brings traffic to a standstill into an act of terrorism. 4.1.4 We are particularly concerned about the proposal to include crimes against property within the definition. This broadens the concept of terrorism way beyond the current definition in the PTA, which is:

“the use of violence for political ends, [including] any use of violence for the purpose of putting the public or any section of the public in fear”

4.1.5 The inclusion of threats within the definition also goes beyond the current definition. We are aware of a case where a person was not only prosecuted but convicted of making threats which he was in no position whatsoever to carry out. Before anyone is convicted on the basis of a threat they have made, a careful assessment is needed of a number of factors, including:

a) whether s/he intended to carry out the threat

b) whether the recipient of the threat was put in any real fear

c) whether the maker of the threat was capable of carrying it out

d) whether s/he would in fact have done so

There is, in our submission, a great distance between an actual act of terrorism that is easily recognisable as such whatever the definition and the vague notion of threatening such an act.

4.1.6 Similarly, the concept of coercion is vague and open to many interpretations. We have special difficulty with the idea of coercing the public, and even greater problems with the coercion of a section of the public. If some group uses violence – or merely threatens violence – with the object of coercing the public, it is surely the use or threat of violence which matters, since measuring the group’s capacity to coerce the public or the public’s susceptibility to being coerced is highly problematic. As for a section of the public, how large or small does a portion of “the public” have to be to qualify as a “section”. Is a group of mothers who threaten a paedophile who moves into their area committing an act of terrorism?

4.1.7 Finally, the phrase “political, religious or ideological ends” is very broad indeed. If serious violence includes disruption, is a group of animal welfare supporters who sit down in front of a lorry full of veal crates therefore terrorists?

4.1.8 The objective of most actual terrorism is usually the overthrow of the state, or at least the status quo, although loyalist violence in Northern Ireland has been considered, by its supporters if no-one else, as pro-state. That being so, it is crucial that a democratic state does not over-react to terrorism or the threat of terrorism, or mistake justifiable acts of civil disobedience for terrorism, because to make any of these errors can catapult a state out of democracy and into despotism. As a lesser consequence, these errors can cause the state to react in ways that bring the law into disrepute, thus making it more difficult to uphold the rule of law. In either case, the state runs the risk of acting in such a way as to create the very situation the terrorists are seeking to achieve. It is for this reason that the definition of terrorism is so important. The proposed definition is so broad and diffuse that it runs the risk of creating crimes without real victims, an outcome which would bring the law into disrepute and undermine the rule of law.

4.1.9 We believe that the ordinary criminal law already contains a sufficient lexicon of crimes to cover every act of actual terrorism, without any necessity for treating those whose crimes are animated by particular motives differently from others who commit identical acts. As we have already observed, it is not possible to distinguish morally between a terrorist murderer and a serial murderer of women, nor is there any justification for allow the latter more due process rights than the former, or to differentiate between the penalties imposed on each of them. The proposed definition of terrorism if too wide and is likely to create miscarriages of justice. There is a danger that it will bring within its ambits many acts that are not truly terrorist in nature. Ultimately, any definition of terrorism is really about the perpetrator’s motives rather than his or her actions, and motivation should never be a criteria for arrest, prosecution, conviction or sentence because it cannot be assessed objectively. In human rights terms, definitions that go to motivation remove people’s right to equality before the law.

4.2 PROSCRIPTION

4.2.1 Proscribing organisations and prosecuting their members drives them underground and increases their allure for certain people. Membership is difficult to prove and prosecutions on such a basis are open to abuse, especially in the light of the provisions contained in Criminal Justice (Terrorism and Conspiracy) Act 1998. These provide that evidence from a senior police officer will be enough to convict someone of membership of a prescribed organisation, and suspects’ silence under police questioning will be taken as corroborative of that evidence. Proscription may breach the right to freedom of expression[11] and to freedom of association[12].

4.2.2 There are clearly dangers inherent in proscription provisions. It would be highly undesirable were a situation to arise where a person could be convicted solely of membership on a prescribed organisation – rather than the active commission of a terrorist offence – purely on the assertion of a police officer that the person was a member. The Stephen Lawrence Inquiry has shown how institutionalised racism can pervert policing standards, and it is not difficult to imagine how police attitudes could affect the use of these powers, whether by a unionist RUC officer against a nationalist suspect in Northern Ireland, or a racist Metropolitan Police officer against a supporter of Muslim fundamentalism in England.

4.2.3 For these reasons, we are opposed to the retention of powers of proscription in Northern Ireland, and to any extension of such powers to other domestic and international terrorism.

4.3 EXCLUSION

4.3.1 Exclusion orders amount to a form of internal exile. They impact not only on the subjects of such orders but also on members of their families, thus infringing the right to family life[13]. The failure to disclose the reasons for imposing an order and the absence of any meaningful right of appeal infringe the right to a fair trial[14].

4.3.2 We agree with the government’s proposal to repeal these powers.

4.4 TERRORIST FINANCE

4.4.1 The provisions on terrorist finance enforce the co-operation of innocent people while affording them very few due process rights and potentially placing them in situations of conflict of interest, for example between their duty to their employers and their obligations under the law. In particular, the power to demand attendance at a specified place and time although the person is not suspected of any crime amounts to arbitrary detention and is a violation of the right to liberty and security of person[15].

4.4.2 We are concerned about the proposal to give the police powers to seize cash which they suspect is to be used for terrorist purposes, especially if relatively small sums can be seized at the discretion of the police officer concerned. There is clearly scope for abuse of such a power. Given the very high level of arrests followed by release without charge under the emergency laws in Northern Ireland, our fear would be that innocent people might be deprived of their cash without genuine cause, leaving them and their families in very difficult circumstances.

4.4.3 As a general principle, discretionary powers that can be exercised without safeguards such as a requirement of reasonable grounds are to be avoided.

4.5 POWER OF ARREST

4.5.1 We maintain that a power of arrest without warrant on reasonable suspicion of non-specific involvement in terrorism is not acceptable. In Northern Ireland in recent years three quarters of those arrested under the PTA have annually been released without charge[16]. It is hardly surprising that there have been many allegations of abuse of the arrest powers and that significant sums of compensation have been paid for wrongful arrest.

4.5.2 In our view, people should only be arrested on reasonable suspicion of having actually committed a specific crime.

4.5.3 We do not favour Lord Lloyd’s proposal that a category of “terrorist offences” should be created, because we believe that the ordinary criminal law is already quite sufficient to deal with any crime committed in the name of terrorism.

4.5.4 We agree that the police power of arrest under s.18 of the EPA should be repealed.

4.5.5 The proposition that because soldiers’ knowledge of the law is less detailed than that of police officers they should be given a wide-ranging power of arrest is, we submit, illogical. On the contrary, any power of arrest conferred on the army should be as restricted as possible. However, we agree that there should be restrictions on the length of time that a soldier can detain someone who has been arrested, although we consider four hours to be too long. In our view, a soldier who has arrested someone should be obliged to hand the suspect over to the police as soon as possible, and in any case within one hour of the arrest. We also agree that any power of arrest by the army should be governed by a code of practice.

4.6 DETENTION

4.6.1 The proposals concerning detention highlight our concerns about creating a twin-track system of justice which deprives those accused of terrorism of due process rights afforded to other suspects.

4.6.2 Although transferring responsibility for extending detention from the Secretary of State to a judicial authority might technically remedy the UK’s current state of derogation from the European Convention, prolonged detention itself is still objectionable. It has long been recognised by the United Nations Committee Against Torture and other such bodies that most ill-treatment that occurs around the world occurs in police detention. Obviously the longer the period of detention, the greater the risk of abuse, and the more difficult it is for a suspect to obtain help. In its most recent report on conditions of detention in Northern Ireland, the European Committee for the Prevention of Torture concluded:

“110. I the light of all the information at its disposal, the CPT has been led to conclude that persons arrested in Northern Ireland under the P.T.A. run a significant risk of psychological forms of ill-treatment during their detention at the holding centres and that, on occasion, resort may be had by detective officers to forms of physical ill-treatment.”[17]

Conditions in detention under emergency laws in Northern Ireland have gradually improved in that video- and very recently audio-recording of police interrogations have been introduced. Also, there has been a marked decrease in the number of complaints of physical ill-treatment since the very high levels of the late 1980s and early 1990s, although we continue to receive complaints of some less serious ill-treatment and of high levels of psychological abuse. Nevertheless, prolonged detention in solitary confinement, combined with frequent interviews over many hours of the day and night, as are practised in the holding centres, are in themselves coercive. The main function of prolonged detention, combined with other aspects of the detention regime under emergency laws, is the coercion of confessions, which is not a legitimate objective. 4.6.3 British Irish Rights Watch has long advocated the repeal of the emergency laws and the reversion to Police and Criminal Evidence Act (PACE) standards in cases of suspected terrorism. In England and Wales, the PACE standards apply to arrests under the PTA, while in Northern Ireland they do not. Despite the fact that some of the worst atrocities of the Northern Ireland conflict have been perpetrated in England, the police have not found that the application of the PACE standards has hindered their ability to arrest, interrogate, and secure the conviction of some of the most dangerous terrorists in the land. It would appear the government accepts that there is no rationale for employing different regimes in different jurisdictions. We would urge them not merely to bring the regime for those suspected of terrorism more closely into line with PACE, but to apply PACE across the board. 4.6.4 We are strongly opposed to the proposal to retain deferral of access to legal advice for those suspected of terrorism, because we consider that it is contrary to international human rights norms on the right to a fair trial[18]. As the government points out in its consultation paper[19], access to legal advice is rarely deferred in England and the power has not been used at all in the past two years, yet the government is proposing to extend the period of deferrals from 36 hours to 48. In Northern Ireland, the power is also rarely used, with the rate of deferral dwindling from over 50% in the early 1990s to a handful of cases in recent years[20]:

YearNo. requests for accessNo. deferrals of access%1998526411997512336199651813319954142-19941,3791871619931,5332131419921,7094442619911,4818255619901,36070652

The reason for this decline has its roots in a series of judicial reviews taken by lawyers in Northern Ireland, in which they challenged the legality of deferrals in a number of individual cases. Although most of the cases were technically unsuccessful, lawyers did succeed in forcing the RUC to justify deferrals in each and every case. As a result, the RUC has used the power less and less. What these trends show is that deferral of access to legal advice is in fact unnecessary. The basis for deferral is that it would interfere with the ability of the police investigate or prevent acts of terrorism. There is no evidence whatsoever that giving suspects access to legal advice has ever interfered with police activity. On the contrary, deferral of access was regularly abused in Northern Ireland by the RUC for the purpose of illegally obtaining confessions, until lawyers began to challenge them. There is no logical or justifiable basis for retaining this power, let alone extending its duration in England and Wales. 4.6.5 The consultation paper naively states:

“It is more common, however, in Northern Ireland to refuse to allow a solicitor’s presence at police interviews, notwithstanding the fact that initial access to the solicitor has been permitted.”[21]

The practice of excluding solicitors from police interviews is not just “common” in Northern Ireland, it is endemic. Solicitors have only been allowed to remain with their clients during interviews on a handful of occasions in recent years, and that was only after a legal challenge[22] forced the RUC to admit that its blanket policy of excluding solicitors was wrong and that they must exercise their discretion on a case-by-case basis. The practice of excluding solicitors from police interrogations has been criticised by international human rights bodies. In their comments on the United Kingdom’s fourth periodic report to them, the Human Rights Committee said in July 1995:

“It is the view of the Committee that the powers under the provisions permitting infringements of civil liberties, such as extended periods of detention without charge or access to legal advisors ... are excessive.”[23]

In its final comment on the United Kingdom’s second periodic report on its observance of the Convention against Torture and Cruel, Inhuman and Degrading Treatment, the United Nations Committee against Torture expressed concern about: “14. the failure to provide for counsel to be present during interrogation in Northern Ireland for terrorist related offenses.” The Committee recommended: “(a) the abolition of the detention centres in Northern Ireland and the repeal of the emergency legislation; ... (e) the extension of taping interrogations to all cases and not merely those that do not involve terrorist related activities and in any event to permit lawyers to be present at interrogations in all cases.”[24] If, as we fear it is, the government is hell bent on introducing permanent anti-terrorism laws, it must at the very minimum enshrine in law the right of every suspect to have a solicitor present during police interrogations.

4.6.6 We welcome the belated introduction of video- and audio-recording of police interviews in the holding centres in Northern Ireland. However, we are concerned that interviews are monitored by essentially separate regimes of silent video-recording and audio tape-recording, rather than by an integrated system of tele-recording of synchronised sound and pictures. Clearly the latter would allow for a comprehensive assessment of an interview and would obviate the need to match up sound with pictures via a time-line. We also believe that the more liberal disclosure rules for audio-recordings should be extended to video-recordings, the disclosure of which is hedged around with superfluous and unfair restrictions.

4.6.7 However, recording of interviews is not a substitute for the presence of a solicitor, whose primary task is to offer clients legal advice.

4.6.8 We support the proposal to extend audio-recording to England, Wales and Scotland.

4.6.9 We are concerned about the building up of databases of DNA samples and fingerprints of those suspected of terrorism, even though they have not been charged or are subsequently acquitted. Not only does such a scheme infringe the rights to privacy [25] of those concerned, but it creates the serious possibility of perpetuating wrongful suspicion. A person who is arrested on suspicion of terrorism but who is wholly innocent may find his or her details on a database which shows him or her up as a suspect every time it is checked. This would be grossly unfair. It also potentially lends itself towards institutionalised racism, since terrorist suspects are more likely to be from ethnic minorities such as for example the Irish, Kurds, or Palestinians.

4.7 POWERS OF STOP, SEARCH, ENTRY AND SEIZURE

4.7.1 These powers have been abused in Northern Ireland, causing complaints from both communities[26].

4.7.2 The danger in having on the statute book permanent extra powers of stop, search, entry and seizure in relation to terrorism is that they will be abused by the police in non-terrorist cases, particularly if the definition of terrorism is vague. The temptation will be to use the no-warrant powers as an excuse for trawling searches where the police suspect, but have no evidence, that persons are involved, for example, in drug trafficking or animal rights activities.

4.7.3 The proposal to re-enact the PTA powers in the permanent legislation flies in the face of the internationally accepted principle that emergency powers should only be brought into effect in the face of a serious emergency affecting the life of the nation, and should be repealed at the earliest opportunity. The government’s consultation paper is peppered with proposals to “improve” upon laws brought in specifically to deal with the Northern Ireland conflict. This is, in our submission, entirely the wrong approach.

4.8 PORT AND BORDER CONTROLS

4.8.1 We do not support the retention of the current port and border controls. The infringement on the human rights of those stopped under this system – including their rights to privacy[27], liberty and security of person[28], and freedom of movement[29] - is disproportionate to the threat of terrorism and to the impact these powers have in preventing terrorism.

4.8.2 The powers as they stand are open to abuse. Anyone who travels frequently to Northern Ireland regularly sees particular categories of traveller, especially young men and people from ethnic minorities, being stopped on the basis of what is obviously stereotyping. British Irish Rights Watch has on more than one occasion organised or attended seminars or conferences where speakers travelling from Northern Ireland to England who have no connection with terrorism have been delayed or detained at airports while on their way to speak at the event. On such occasions lawyers have had to leave the event in order to assist the speaker and human rights groups have had to make representations to the police and other authorities in order to secure the speaker’s democratic right to participate in the event. Such detentions appear to be politically motivated. We have also received reports over the years from people travelling to Britain to visit relatives in jail here who have been stopped, delayed and strip searched, adding greatly to the difficulties attached to prison visits over long distances. Such relatives have often felt that they are being punished for their relative’s crimes, and that the authorities are actively trying to deter them from visiting their family members.

4.8.3 The compilation of records on people passing through ports puts frequent travellers who are at risk of being stopped, such as students, in danger of developing a “record” even though they have done nothing wrong. Once a person is entered on a computer as having been stopped and questioned, subsequent entries begin to look sinister even though the person is wholly innocent of any crime. We have also been very disturbed by complaints from Irish students studying in England who have told us that shortly after being stopped at a port or airport they have been visited by police officers who have tried to pressurise them into becoming informers.

4.8.4 It is dubious whether these powers have prevented or deterred determined terrorists, who still appear to have been able to transport large bombs to the heart of British cities. What is not in doubt is that the powers have created resentment and fear among law abiding citizens and have turned certain communities, particularly the Irish, into “suspect” communities, exacerbating racism.

4.8.5 The illogic of a situation where persons travelling within the United Kingdom, from Northern Ireland to Britain and vice versa, are subject to controls while those travelling between the United Kingdom and the Republic of Ireland are not, is manifest. With the trend towards ever greater freedom of movement within the European Community, these powers are increasingly outmoded.

4.9 ANCILLARY OFFENCES

4.9.1 The proposals to incorporate a number of ancillary offences into the permanent law offends against the principle of emergency laws being temporary and being repealed as soon as possible.

4.9.2 The offence of possession of ordinary everyday items for the purposes of terrorism is one that is open to abuse. Although the consultation paper claims that these powers have prevented acts of terrorism and have resulted in prosecutions, no hard evidence is offered for this proposition. Section 16A of the PTA actually reverses the burden of proof, so that a person accused of possession of an item for the purposes of terrorism must prove that s/he had no intention to use it for those purposes.

4.9.3 The offence of collection of information useful to terrorists is also open to abuse. Journalists, human rights groups, even lawyers could all potentially be prosecuted under these provisions, which substitute the test of usefulness to terrorists for that of “for the purpose of terrorism”. Here again, the burden of proof is on the accused.

4.9.4 The offence of withholding information is a particularly repressive measure. We have seen instructions taken by lawyers from clients detained under emergency laws who have been threatened by RUC officers with being charged with this offence when it is clear that the RUC have no other grounds for arresting, questioning or charging the person concerned, and no genuine reason for believing them to be in possession of any relevant information. It is a charter for arresting the wives, children, relatives, friends and even workmates of people suspected of terrorism against whom the police have no evidence.

4.9.5 We question whether the offence of directing terrorism is of any real value. The convictions to date of two loyalists under these powers have not prevented maverick loyalist terrorism from flourishing in Northern Ireland, despite the ceasefires of the main paramilitary groups. Indeed, the nature of terrorism in Northern Ireland, whether loyalist or republican, has not been such that the removal of one or two “godfathers” devastates the enterprise. The murder of one of those two men while in prison raises very serious questions. There are those among the loyalists who believe that he was arrested on trumped up charges in order to take him out of circulation so that the peace agreement could be brokered, and that he was murdered in jail to prevent him disrupting the agreement upon his release. Whether there is any truth in that or not, it illustrates the danger that convicting people on the nebulous charge of directing terrorism can elevate them to hero status in the eyes of some, and far from decimating terrorist groups can inspire some to join.

4.9.6 The training of others in the use of weapons of any kind for violent ends, whether terrorist or otherwise, ought to be an offence that can be encompassed within the ordinary criminal law, without the need for any special provisions relating to terrorism.

4.10 TEMPORARY NORTHERN IRELAND SPECIFIC MEASURES

4.10.1 It is our position that all emergency laws relating to terrorism should be repealed. If that were to happen, the Diplock courts would cease to exist and the PACE standard for the admissibility of confession evidence would obtain automatically.

4.10.2 If the government decides to enact permanent anti-terrorism laws, it should still abolish the Diplock courts and adopt the PACE standard on admissibility. We see no need to phase out the Diplock courts gradually. They serve no good or useful purpose and they should go now.

4.11 FURTHER MEASURES

4.11.1 British Irish Rights Watch was very disappointed when both the British and the Irish governments reacted to the appalling bombing of Omagh by introducing draconian new emergency laws, on top of those that have remained in place throughout the peace process. These measures are a recipe for potential miscarriages of justice. We have always argued that there was no need for the panoply of emergency laws in the past, and there was certainly no rational case for bringing in extra laws at this stage of the peace process. We understand the pressure both governments were under after such an atrocity, but we are depressed that they have not learnt from past experience that hasty law making in the wake of such disasters leads to bad laws and rough justice. Ironically, those accused of terrorism here in Britain in past years have been convicted by juries (which are still denied suspects throughout Ireland) on the basis of good police detection and forensic evidence, rather than special laws. Repressive laws do not deter terrorists, as the evidence of the past 30 years graphically demonstrates, all they do is distort the criminal justice system and recruit martyrs to the cause. It follows that we call for the repeal of the Criminal Justice (Terrorism and Conspiracy) Act 1998.

4.11.2 We support the government’s decision to remove the power of internment without trial. Not only is it contrary to human rights norms on the right to a fair trial[30], but its use in Northern Ireland was an unmitigated disaster which brought the government and the security forces into disrepute, seriously breached the human rights of those who were interned, and deepened the conflict.

4.11.3 The government has recognised that there are huge problems in terms of human rights with the proposals to allow in accomplice evidence and previous terrorist convictions, to make refusal to answer questions an offence and to reverse the burden of proof. These are all repressive measures that would serve only to make a bad situation worse.

5. CONCLUSION

5.1 We urge the government not to enshrine in the permanent law legislation which is only justifiable during a state of emergency and then only for the shortest possible period.

5.2 The creation of a twin-track system of justice which deprives certain suspects and defendants of due process rights on the basis of their supposed motivation is to be avoided. It is open to abuse and, in the context of terrorism, can become a vehicle for institutionalised racism.

5.3 So far as Northern Ireland is concerned, the removal of the PTA and EPA and other related laws only to replace them with new, permanent legislation with the capacity to include temporary measures specific to Northern Ireland is no sort of progress. What is needed in Northern Ireland is the repeal of all emergency laws, which would entail the abolition of the Diplock courts and resort to PACE standards, and the restoration of the right of silence. Such measures would send a resounding message of confidence in the peace process and would encourage a climate of normality that could only be beneficial. To follow the course of action proposed by the government, on the other hand, sends a negative message that any group of paramilitaries, no matter how small and how lacking in support on the ground, can permanently hold Northern Ireland to ransom and can bomb respect for human rights into the ground at whim. The Omagh bombing was a terrible atrocity, but its victims are not well served by perpetuating bad laws and unjust systems.