Detention violates European Convention on Human Rights (ECHR)

This form of legislation is displayed as a ‘provisional’ measure to combat terrorism, although such bills have historically been prolonged infringements on freedom.

There are vast other procedures that the Anti-terrorism, Crime and Security Act contain which are hidden such as:

• Enabling the police to access confidential information held by government departments and public bodies for the purposes of any criminal investigation, including passing the details on to other police forces round the world (Sections 17 to 20).
• Giving the Ministry of Defence Police jurisdiction across the UK, rather than only on various MoD properties as was allowed before (Sections 98 to 101).
• Requiring communications providers to store details of users’ communications as the Home Secretary orders and provide them to the police for the purposes of any investigation (Sections 102 to 107).
• Allowing the Home Secretary to extend criminal justice and anti-terrorism legislation via secondary legislation and without prior parliamentary approval (Section 124),  thus allowing the government to legislate on criminal justice matters by decree, an authority usually reserved for dictators. 

Although, this would be seen as covering all measures in the act, it does cover the most arguable points in terms of violation of the ECHR.

9/11, an adequate reason to implement changes in law?

“Counter-terrorism legislation”, something in its very concept is dubious in law. The adequate criminal law held by this country seems to be a lot more capable of balancing the challenging welfares of public protection and persons rights through its instruments for impugning criminal acts, endeavours and conspiracies and for allowing pre-trial detention. Any anti-terrorist law poses an apparent danger of evolving a mediocre criminal justice system affording lesser protections to the individual.

Regardless, before the recent ATCS, there was already a well-developed counter-terrorism law, which recently amended it body, in the UK. This was through the Immigration Acts, Terrorism Act 2000 and in conjunction with the large body of criminal law. The adequate status of this present law is vast. Some notable measures include:

· The Secretary of State's power to proscribe organisations and offences relating to association with such organisations .
· Extended pre-charge detention in the anti-terrorist context .
· Offences relating to inciting and funding terrorism (- terrorism being very broadly defined).
· Special Immigration Appeal Commission (SIAC) procedure which attempts to balance national security and natural justice concerns by allowing the sensitive aspects of an immigration/ asylum appeal to be tested by a vetted "special advocate" in closed session .
· Exclusion provisions under the 1951 UN Refugee Convention.

Government statements have yet to be heard regarding precise flaws in the present UK legislation, which in turn, has been noticeable after 9/11.

Intuition of lawyers and legislators in terms of revision to the statutes are comprehensible of attaining functioning outcomes and policy. Although, legislation will not result in answering certain questions of intelligence. Alienating minority groups may result in attaining counter-terrorist intelligence tasks far more difficult.

Government can opt out of Article 5 in the ECHR

We must consider what the Anti-terrorism, Crime and Security Act 2001 are supposedly violating in terms of detention. If declared a state of emergency the government can opt out of Article 5 of the ECHR, which bans detention without trial. All citizens of the world, including those suspected of being a terrorist under the Anti-terrorism, Crime and Security Act 2001, have rights and liberties. As supported by ECHR Article 5 “Everyone has the right to liberty and security of person”. 

The Home Secretary is given the power to certify that a foreign national is a suspected terrorist and a threat to national security, based on his (or the security agencies’) suspicions. This is a far more subordinate constraint than the standard of proof required obtaining a conviction in a criminal or civil court. The only right of appeal is to judges of the SIAC. Very rarely though do such hearings favour detainees. Such a hearing did take place on October 2003, where human rights solicitor Gareth Pierce represented five individuals held without trial for two years. The rulings were in favour of the Government.

Detainees are citizens of the world therefore should be allowed to have such rights regardless of the circumstances.

Indefinite Detention

 “Immigration and Asylum” of the ATCS is questionable in terms of the rights of detainees.

Current legislation enables non-UK citizens to be deported whose existence in the UK is “not conductive to public good” . Immigrants in anticipation of being detained usually undergo examinations, appeals and removal.

Immigrants deported back to a country you fled from which is under crisis, may encounter torture. Article 3 in the ECHR, “prohibition of on torture”, people are successfully cleared of all possibilities to be removed from the UK. Although, nothing stops the scenarios of individuals being charged, detained or even prosecuted in the UK regarding criminal or terrorist offences.

Authorities have to be reliant on intelligence coming out of foreign governments, regarding on the question on who to detain, as a foundation for detention. Various governments lack the quality of possessing human rights and democratic qualifications and therefore suspects will be a rebel or asylum seeker. A feeling of unfairness will come into existence regarding this matter.

An appeal will be heard, although, the evidence will not be available to be viewed by the person and his or her lawyer and the appeal panel will have to prohibit them when the hearing of the secret material commences. The case will not have to demonstrate “beyond reasonable doubt”, the quality checks on facts will be absent and belief of innocence will not be relevant.

These measures will only apply to foreigners and in particular those who cannot be deported because they are likely to be tortured or killed in the country that they are sent to. These people could be detained for long periods and possibly indefinitely.

There are difficult decisions to be made but there are other alternatives. Those who are planning or committing criminal offences in the United Kingdom can be prosecuted here.

Secondly the new draconian Terrorism Act, which only came into force earlier this year, extends the possibilities of prosecution here for offences committed in other countries.

Thirdly, in some cases, it will be possible to send people to face trial for offences that they have committed in other countries back to those other countries. Fourthly the security services here could keep people under surveillance given all their new powers in the Regulation of Investigatory Powers Act and ensure that they commit no offences here.

Internment has been tried before. It was tried in Northern Ireland and the consequence of intelligence being wrong was that hundreds of innocent nationalists were locked up. Its only "success" was to drive many more people into the arms of the terrorists. It was tried more recently during the Gulf War when again innocent people were locked up for no good reasons, fortunately the War did not last long and they were all released.

This time those interned are likely all to be Moslems. Some of them will be not have been convicted of any crimes and there will be an obvious perception that the authorities are rounding up people of the Muslim religious faith. This could have a disastrous effect upon community relations.

1.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:

(a) The lawful detention of a person after conviction by a competent court;

(b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

(f) The lawful arrest or detention of a person to prevent his affecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2.Everyone who is arrested shall be informed promptly, in a language that he understands, of the reasons for his arrest and the charge against him.

3.Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which a court shall decide the lawfulness of his detention speedily and his release ordered if the detention is not lawful.

5.Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. 

Summary of Measures in the Bill:

 

-Declares a "state of emergency", enabling the government to opt out of article five of the European Convention on Human Rights.

 

-Gives police and security services powers to ask organizations, including hospitals, schools and Inland Revenue, to disclose information.

 

-Includes a voluntary code requiring communications providers to retain and provide data transmitted by clients, thereby giving police access to emails, phone bills, websites visited, etc.

-Requires mobile phone companies to keep and provide records of mobile phone calls.

-Requires airlines and ferry services to keep and provide records of passengers and freight.

-Extends law on inciting racial hatred to include inciting religious hatred, with the penalty raised from two to seven years.  It defines religious hatred as "hatred against a group of persons defined by reference to religious belief".

 

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