The right to a fair trial is one of the key points established within the human rights act 1998.

In addition it is possible to exclude the appellant and the representative from all or part of the proceedings. It is also possible to withhold the reasons for proscription or refusal to de-proscribe from the applicant and his legal representative and to enable a summary of evidence to be disclosed in the applicant’s absence. There is also a paragraph in the legislation that would allow the POAC to make different provisions for different parties or descriptions of party meaning that any rules, which are considered necessary, may be included. The decision as to whether or not the applicant can be legally represented is entirely discretionary, and these provisions seem to completely ignore the right to a fair trial – there is no intention to achieve equality between the parties as the discretion as to whether the applicant can have legal representation shows.

        A fair trial as mentioned in Fenwick’s civil liberties and human rights constitutes ‘equality between the parties, and in principle, entails the right of the parties to be present in person.The hearing should be adversarialin the sense that both parties are given an opportunity to comment on all the evidence that is adduced.A refusal to summon a witness may constitute unfairnessas may a failure to disclose evidence.The court must give a reasoned judgement.Although it must be said that all of this is without derogating from the Human Rights Act so the UK government have a bit of leeway.

The act also gives police enhanced powers to investigate terrorists such as wider stop and search powers and the power to detain suspects after arrest for up to seven days (though any period longer than two days must be approved by a magistrate). It creates new criminal offences including; inciting terrorist acts, seeking or providing training for terrorist purposes at home or overseas, providing instruction or training in the use of firearms, explosives or chemical, biological or nuclear weapons and it provides additional powers applicable to Northern Ireland only, which must be renewed every year.

        In relation to the anti-terrorism act 2001 the main point concerning this essay permits the detention of suspected terrorists without trial, potentially indefinitely. The Act is grafted onto immigration legislation, and therefore only applies to non-UK nationals. The legislation allowing detention without trial is contained in Part IV (Immigration and Asylum) of the Act.  In order to protect the act from challenge the government derogated in respect of Article 5(1) (f) of the European Convention on Human Rights as mentioned previously. The legislation has been challenged in the courts under the Human Rights Act, and at first instance was found to be incompatible with Article 14 (the right to non-discrimination in respect of Convention rights) because it discriminated between nationals and non-nationals. However, the Court of Appeal, on policy grounds, overturned this decision.

Currently in the United Kingdom there are ten people held without charge in Belmarsh prison that have been there for over two years. One judge Lord Goldsmith, acting for the government in the recent appeal, defended the use of indefinite detention, describing it as 'a legitimate and appropriate response to protect the human rights of the suspected international terrorists'. The argument against this is, ‘that in a democracy it is unacceptable to lock up potentially innocent people without trial or without any indication when, if ever, they are going to be released. It is doubly unacceptable for a democracy committed to the principles of equality and anti-discrimination to single out foreign nationals when it is not prepared to apply the same measures to its own nationals.’  In this case of the presumed terrorists almost all of article 6 has been destroyed.  There has been no fair hearing, both in having it in a reasonable time and it has not been independent. There has been no presumption of innocence and from what I can gather from the transcripts there have been no cross-examinations made.

 Home Secretary David Blunkett announced that the U.K would officially declare a “state of emergency” thus permitting it to derogate from certain provisions of the ECHR. Blunkett assured the public that the declaration was a legal technicality—necessary to ensure that certain anti-terrorism measures that contravene the ECHR could be implemented—and not a response to any possible imminent terrorist threat. 

In a statement to parliament on October 15 announcing the broad outlines of the emergency anti-terrorism measures, Blunkett stated, “there is no immediate intelligence pointing to a specific threat to the United Kingdom.” Surely when looking at this subjectively it could be argued that the government are only passing the derogation to enable them to reduce the civil liberties of both nationals and non-nationals.

No other country has derogated from the European Convention on Human Rights since 11 September 2001, not even Spain, a country where a terror attack has taken place. This goes against Britain’s arguments for derogation saying they are most at threat in the EU due to their close relationship with the United States.

The Newton report  recommended that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency’ as some of the men have been detained for over two years and none of them know what they are accused of. If the Government is satisfied that they are involved in terrorist activity, then they should be put on trial. Amnesty International continues to express concern that proceedings under the ATCSA fall far short of international fair trial standards, including the right to the presumption of innocence, the right to present a full defence and the right to counsel.

‘People arrested under the terrorist legislation are in real danger of losing their right to a fair trial and of having their reputation and lives destroyed regardless of their guilt or innocence,’

Special Immigration Appeals Committee (SIAC) hears appeals against foreign nationals being detained in closed sessions. The Lord Chancellor once again has very wide discretion to make rules concerning the procedure to be followed by the Commission: the hearing can take place in the absence of the applicant and their legal representative, the applicant need not be given the full reasons of any decision the Commission makes and the Commission may take evidence in the absence of the applicant. If certified, SIAC must hold a review of the certificate after 6 months, and then every 3 months, or if the applicant applies for a review and there has been a change of circumstances. However, cancellation of a certificate by SIAC in no way prevents the Secretary of State from issuing a new certificate.This once again is very similar to the POAC and can be argued that people’s civil liberties are being infringed without good reason.

A challenge was effected in the Brogan v UK case under Article 5 where even the shortest period of detention, which was of four days and six hours, was held to be in breach as it fell foul of the requirement of ‘promptness’. However, in response to Brogan and against the background of the terrorist threat in Northern Ireland, the United Kingdom decided it was necessary to retain seven-day detention and thus the decision was made to derogate from the ECHR. The derogation was challenged in the case of Brannigan and McBride v UK, but its validity was upheld by the European Court, making a departure from Convention standards unchallengeable.

The ability of SIAC to properly consider the certificate is questionable as the courts generally stand back in cases involving national security. For example, in Secretary of State for the Home Department v Rehman, the Home Secretary believed that Mr. Rehman was a danger to national security and that therefore his deportation would be “conducive to public good”.Lord Woolf presiding said ‘that increasingly the security of one country was dependent upon the security of other countries. The promotion of terrorism against any state was capable of being a threat to our own national security. The Government was perfectly entitled to treat any undermining of its policy to protect this country from international terrorism as being contrary to the security interests of this country’.The House of Lords held that the assessment of the threat to national security was essentially a matter for the executive rather than the courts. Therefore in order to prove your innocence persuading the home secretary and not the courts is the way that will release potentially innocent people.

        None of the other Council of Europe countries have resorted to indefinite detention as a solution. In this context, Article 5 of the ECHR is likely to be violated, as the right to liberty is seriously threatened. Under article 15 a government can derogate from its European Convention obligations in ‘time of war or other public emergency threatening the life of the nation… to the extent strictly required by the exigencies of the situation, and provided such measures are not inconsistent with its other obligations under international law. David Blunkett derogated for no real reason, it was a ‘legal technicality’.

The case of Chahal v United Kingdom reinforced the importance of detaining only when deportation proceedings are fair and just, not for the benefit of the government. The justification of the derogation put forward is that there exists a state of emergency threatening the nation, and this is because of foreign nationals present in the UK who “are suspected of being concerned in the commission, preparation, or instigation of acts of international terrorism and who are a threat to the security of the United Kingdom”.

        Delay of access to legal advice is also one of the features of the system, the power to deny access to a solicitor for 48 hours raises issues under article 6(3) ECHR, which provides for a range of ‘minimum rights’. In the case of Murray v UK it was accepted that Article 6 also applies at the stage of police interrogations, and not just when charges are brought against the detainee. One way the government has got around article 6 is the requirement of audio recording of police interrogations. This safeguard, coupled with the possibility of video recording, has helped narrow the room for abuse and minimise the possibility of Article 3 issues being raised.

        Of the more than 7,000 people detained in Britain under the Prevention of Terrorism Act, the vast majority were released without charge and only a small fraction have ever been charged with terrorism related offences. Almost without exception these people could have been arrested under the ordinary criminal law. The lack of effective sanctions on states breaking their treaty obligations is the most substantial and insoluble deficiency in the treaty system. This is revealed most starkly in derogation situations where government interests in protecting internal institutions or preserving a particular regime make it impervious to adverse publicity, the key enforcement of international organs. 

The UK’s derogation from the HRA has resulted in the infringement of a person’s right to a fair trial through the terrorism act 2000. The government has been able to hold people for over two years without sanctions, it has set up courts where there is no need for the accused to be there and there is no reason for a judge to give reasoning about his decision. The Newton report, Liberty and Amnesty International as well as many others all have protested against these courts that violate Article 6 of the HRA and the holding of the accused terrorists. The presumption of innocence has also been wiped away since the introduction of these acts and only the ECHR can pressure the government to decide to act otherwise.

Bibliography:

Fenwick H. (2002) Civil Liberties and Human Rights- 3rd Edition. Cavendish Publishing Limited

Mensah Barbara (2000) European Human Rights Case Locator 1960-2000. Cavendish Publishing Limited

 Bailey, Harris and Jones (2003) Civil liberties cases and materials 5th edition Butterworths

Hartman J. Harvard International Law Journal-derogations from human rights treaties in public emergencies

Anti-terrorism, Crime and Security Act 2001 Review Report

http://www.guardian.co.uk/terrorism/story/0,12780,1331116,00.html

www.atcsact-review.org.uk

http://www.guardian.co.uk/terrorism/story/0,12780,876941,00.html

http://prisonplanet.tv/articles/april2004/042604protestersterrorists.htm

Legislation Against Terrorism: A Consultation Paper; December 1998

http://www.homeoffice.gov.uk/terrorism/

http://www.eurolegal.org/british/ukhumanrights.htm

the liberty website primarily:

http://www.liberty-human-rights.org.uk/resources/policy-papers/2004/anti-terrorism-debates-feb-2004.pdf

http://www.liberty-human-rights.org.uk/issues/terrorism.shtml

http://www.liberty-human-rights.org.uk/resources/policy-papers/2004/liberty-and-security.pdf

http://news.bbc.co.uk/1/hi/uk_politics/3330221.stm

Parliamentary publications:

http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/51/51ap07.htm

www.fairtrials.org.uk

Northern Ireland Human rights Commission- http://www.statewatch.org/news/2004/oct/Terrorism-and-HR-Sept04.pdf

The Anti-Terrorism, Crime and Security Bill - is derogating from Article 5 of the ECHR legitimate and necessary? http://www.lawreports.co.uk/Anti-Terrorism.htm 

Right to silence:

http://www.yourrights.org.uk/your-rights/chapters/the-rights-of-suspects/the-rights-of-suspects-in-the-police-station/curtailment_of_the_right_of_si.shtml

                                                                                                      Student Number: 15040501

'The right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting the [relevant guarantees] restrictively.'

Moreira de Azevedo v PortugalA 189 (1990); 13 EHRR 721

 

Critically evaluate this statement by the European Court of Human Rights in light of the United Kingdom's legislative response to terrorism since 2000.

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