9. Terrorism Flashcards
(11 cards)
Liversidge v Anderson (1942)
Abstract:
Where the Secretary of State, acting in good faith under Defence (General) Regulations 1939 regulation 18B (revoked), made an order in which he recited that he had reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained, a court of law could not inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter was one for the executive discretion of the Secretary of State. Therefore, in an action by a person detained against the Secretary of State for damages for false imprisonment the court could not compel defendant to give particulars of the grounds on which he had reasonable cause to believe plaintiff to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over plaintiff. The production by the Secretary of State of an order of detention, made by him and ex facie regular and duly authenticated, constituted a defence to such an action unless the plaintiff discharged the burden of establishing that the order was invalid.
See Lord Atkin’s dissent (‘more executive-minded that the executive’)
Lawless v Ireland (1961)
Abstract:
In Lawless v. Ireland (No. 2) (1979), the Court of Human Rights considered the merits of the application involving the fact that the applicant was detained without trial for five months in prison under the Irish Offences against the State Act. He claimed violation of his right of liberty (Art. 5 Human Rights Convention), violation of the rule against retroactive criminal law or punishment (Art. 6) and infringement of his right to a fair trial (Art. 7).
Held, although Art. 17 was intended to deprive extremists of the advantages of the Convention, this did not exclude a person from his fundamental Convention rights. As no criminal charge was made Art. 6 was irrelevant. Art. 5 could not be excluded by use of Art. 5(1)(c). It was a fundamental right that persons must be tried within a reasonable time. Art. 7 had no bearing on the case. The Court held that a public emergency entitled measures derogating from fundamental Convention obligations (Art. 15). As the ordinary law was unable to cope with the national situation in question, the emergency law was justified in this case (Art. 15). In the circumstances there was no breach of the Convention.
Facts:
In Lawless v. Ireland, the Court heard the first challenge by an individual to a country’s derogation under Article 15 of the Convention. In response to acts of violence committed by the Irish Republican Army (IRA) beginning in 1921, the Republic of Ireland’s legislature conferred special powers on the Irish Government with the Offences Against the State Act 1939. The Offences Act and its subsequent amendments allowed the Irish Minister of State to detain individuals without a trial if the Irish Government declared such powers necessary to secure public peace and order. Because a trial did not accompany this detention, Ireland derogated from the Human Rights Convention in 1957 when it invoked the special powers under the Offences Act.
The Irish Minister of Justice detained G. R. Lawless under the Offences Act. After an unsuccessful challenge through the Irish court system, Lawless challenged both Ireland’s detention law and its derogation before the European Court of Human Rights.
After addressing the other violations of the Convention alleged by Lawless, the Court turned its attention to the issue of derogation and the meaning of Article 15(1). The Court declared that it had the authority to “determine whether the conditions laid down in Article
15(1) for the exercise of the exceptional right of derogation [had] been fulfilled in the present case.
Because Article 15(1) has two parts, the Court first considered the “existence of a public emergency threatening the life of the nation,” and then examined the “measure[s] taken [by Ireland] in derogation from obligations under the Convention.”
Held:
Using the customary and natural meaning of the words, the Lawless Court established that public emergency means an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed. The Court examined the facts and circumstances surrounding the government’s derogation to ensure that the derogation fell within this conception of public emergency.
In Lawless, the Court relied on several key facts in reaching its conclusion that Ireland faced a public emergency including: the secret nature of the IRA’s unconstitutional behavior and violence; the operations of the IRA outside of Ireland potentially jeopardizing relations with other countries; the steady increase in the levels of violence used by the IRA; and the failed attempts to control the situation using ordinary legislation and criminal procedure. From these factors, the Court held that Ireland reasonably believed it faced a public emergency, thus satisfying the first element of Article 15.
The Court then examined Ireland’s actions to make the determination that the measures of Offences Act were “strictly required by the emergency existing” at the time. In making the determination that Ireland’s actions were proportional, the Court concluded that “the application of ordinary law had proved unable to check the growing danger which threatened the Republic of Ireland.” In addition, the Court found that Ireland included many safeguards in the Offences Act and its subsequent amendments to prevent abuses of its emergency powers, further limiting the Irish government’s measures to those strictly required by the situation. The Irish Parliament supervised the application of the law by receiving details of its enforcement. Ireland’s Parliament also possessed the authority to annul its proclamation that a public emergency existed. Finally, the Offences Act and amendments provided the terms by which a person could end his own detention. The Court found that the safeguards provided were of particular importance to the determination that the measures were “strictly required by the exigencies of the situation”.
Ireland v UK (1978)
Abstract:
Ireland alleged that the United Kingdom’s detention of IRA suspects involving detaining of prisoners and their treatment; wall-standing, hooding and deprivation of sleep and food infringed Art. 3 of the Convention of Human Rights, as torture, and also Art. 5 and was not excused by Art. 15 as an emergency, was discriminatory under Art. 14 because it singled out one group, the IRA. The Commission of Human Rights supported the allegations of breaches of the Human Rights Convention. The court regretted the British Government’s failure to assist the commission in breach of Art. 28 and held, that detention without trial did infringe Art. 5(1)-(4) but was permitted because of the public emergency (Art. 15) and that there was no discrimination under Art. 14. The five interrogation techniques did constitute an infringement of Art. 3 as a form of inhuman or degrading treatment.
Brogan v UK (1988)
Abstract:
The four applicants were arrested on suspicion of involvement in terrorist activities in Northern Ireland. The applicants were held for periods ranging from four days and 11 hours to six days and 16 1/2 hours. They were questioned about specific terrorist incidents, but none of them was charged or brought before a judicial officer before release. The applicants alleged that European Convention on Human Rights 1950 Arts. 5(1), 5(2), 5(3), 5(5) and Art. 13 had been violated.
Held, that (1) UK had violated Art. 5(3) as none of the applicants had been either brought “promptly” before a judicial authority or released “promptly” following his arrest. Even though the arrests and detentions were motivated by the legitimate aim of protecting the community from terrorism, that was not on its own sufficient to ensure compliance with the specific requirements of Art. 5(3); (2) UK had violated Art.5(5) as the applicants did not have under Northern Ireland Law an enforceable right to compensation for violation of Art. 5(3).
A v Secretary of State for the Home Department (2005)
Key principle:
An order for derogation from international treaty obligations must be consistent with the principles of affording equality before the law and protecting the human rights of all individuals within the UK.
Facts:
Under the Anti-Terrorism, Crime and Security Act 2001 foreign nationals suspected of terrorism could be imprisoned indefinitely without trial if they could not lawfully be deported to their country of origin. Implementation of s 23 of this measure required the government to derogate from its obligations under art 5(1) of the ECHR (right to liberty and security of person). Accordingly the government declared that there existed a public emergency threatening the life of the nation. The claimants were nationals of a variety of states which were known to practice torture. The Special Immigration Appeals Commission held that although the terrorist acts on September 11, 2001 in the United States had created a public emergency threatening the life of the nation, the effect of the provisions of the 2001 Act was discriminatory in that the government had no power to detain British subjects without trial. The discrimination constituted a violation of art 14 of the Convention. The Court of Appeal overturned the decision of the SIAC and the claimants appealed to the House of Lords.
Held:
SIAC was within its discretion in finding that there was a public emergency such as to threaten the life of the nation. But the courts were required to give close scrutiny to inroads into the right to personal liberty, one of the most fundamental human rights. The discriminatory nature of s 23 and the fact that it could be applied to persons who did not pose a terrorist threat meant that it did not pass scrutiny and did not rationally address the threat to security. It was not consistent with the UK’s obligation under international treaty to afford equality before the law and protect the human rights of all individuals within its territory. The derogation order was quashed. The House of Lords made a declaration that s 23 was incompatible with arts 5 and 14 of the ECHR.
Commentary:
This was a dramatic clash between a government using authoritarian methods to combat terrorism and a judiciary determined to ensure adherence to human rights and the rule of law. In response to this decision the Prevention of Terrorism Act 2006 was passed. This is one of the few instances where a declaration of incompatibility has been made in relation to a statute passed after the Human Rights Act came into force.
R (A) v Home Secretary (2) (2006)
Key principle:
Evidence obtained by torture wherever it takes place is not admissible against a party to proceedings in a British court.
Facts:
In the course of A v Secretary of State for the Home Department the issue arose whether the Special Immigration Appeals Commission could receive evidence which had been or might have been obtained abroad by torture. The Court of Appeal by a majority of two to one (Neuberger LJ dissenting) held that evidence obtained by torture inflicted by officials of a foreign state without the complicity of the British authorities could be admitted. The claimants appealed to the House of Lords.
Held:
From its earliest days the English common law had set its face firmly against torture because of the cruelty of the practice, the unreliable nature of the evidence so obtained and the belief that it degraded all who lent themselves to it. Lord Bingham delivered a magisterial rebuke to the Court of Appeal majority, saying he was startled, even a little dismayed at their acceptance that that deeply rooted tradition could be overridden by statute (the 2001 Act) which made no mention to torture at all. The principles of the common law, standing alone, compelled the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. They were reinforced by the ECHR and by the UN Torture Convention which made it mandatory to exclude statements made as a result of torture as evidence in any proceedings. Where it was established on the balance of probabilities that evidence had been obtained by torture it was inadmissible.
Commentary:
The House of Lords was divided over the burden and standard of proof applicable where it was alleged that evidence had ben extracted by torture. The majority favoured the test given above. Lords Bingham, Nicholls and Hoffman through this was not enough. In their view evidence ought to be excluded if the tribunal was unable to conclude that there was not a real risk torture had been used to obtain the evidence.
Secretary of State v MB (2007)
Facts:
The claimants were subject to control orders on the basis that they were Islamic extremists. The supporting evidence on which the orders were based was kept secret by the Secretary of State. One of the control orders imposed a 14-hour curfew and required the wearing of an electronic tag. The claimants appealed on the ground that the procedures contained in s 3 of the Prevention of Terrorism Act 2005 were incompatible with art 6 of the ECHR.
Held:
The control order did not deprive the claimant of his liberty. The making of the control order did not involve the determination of a criminal charge, nor did it identify any specific criminal offence. Its purpose was preventative, not punitive or retributive. The Prevention of Terrorism Act had to be read and given effect ‘except where to do so would be incompatible with the right of the controlled person to a fair trial’.
Commentary:
This case involved a judicial review of the procedures for granting control orders and thus involved consideration of art 6 as well as art 5. The House held that there could be a violation of art 6 where orders were made without the individuals being made fully aware of the case against them. The House of Lords applied s 3 of the HRA and held that the rules of court concerning withholding of material should apply ‘except where to do so would be incompatible with the right of the controlled person to a fair trial’. The case was first remitted to the Administrative Court. Burnton J stated that the original hearing had not complied with art 6 since the controlled person had no notice of the closed material or closed evidence relied on by the Secretary of State. The open material did not reveal a prima facie case. The special advocates had done all that was reasonably practicable to challenge the non-disclosed evidence. The case was remitted to the Court of Appeal, which considered the approach to be adopted to hearings under s 3(10) where the Secretary of State sought to avoid open disclosure of relevant material to a controlee under a non-derogating control order. In a state of some uncertainty on the issue, the court gave leave to appeal to the House of Lords.
The Court of Appeal re-examined some of the issues surrounding the use of special advocates in Secretary of State for the Home Department v AF (2008) and concluded that the appointment of a special advocate did not of itself make the proceedings in control order cases fair where some or all of the allegations and evidence were not disclosed to the controlee. Nor could it be said that a hearing where not all the substantial allegations and evidence relating to them were disclosed was automatically unfair. Everything depended on the circumstances. The court disapproved of the so-called ‘Lord Brown’ exception based on the idea that here might be cases where the controlee had been deprived of any opportunity of effective challenge to the decision, but the judge could nonetheless feel quite sure that no conceivable challenge would have succeeded.
Secretary of State for the Home Department v JJ (2008)
Summary:
A non-derogating control order which, among other things, imposed an 18-hour curfew and prohibited social contact with anybody who was not authorised by the Home Office, amounted to a deprivation of liberty. The court had not erred in quashing the order (as opposed to amending it), since defects in such an order could not be cured by amending specific obligations and it would be contrary to principle to decline to quash an order, made without power to make it, which had unlawfully deprived a person of his liberty.
Abstract:
The Secretary of State appealed against the dismissal of his appeal against a decision that obligations imposed on the respondents (D) in control orders made pursuant to the Prevention of Terrorism Act 2005 violated the European Convention on Human Rights 1950 Art. 5. D were six respondents in four appeals heard by the instant court at the same time. D were subject to non-derogating control orders. It was common ground that none of the cases in the instant appeal fell within any of the exemption classes listed in Art. 5(1)(a) to Art.5 (1)(f). As a result of the orders, D, who were all single men, were confined to their one-bedroom flats save for between the hours of 10.00 and 16.00, and even then, had limited movement in restricted urban areas; visitors had to be authorised by the Home Office and D were prohibited from meeting anybody who did not have Home Office clearance; the residences were subject to spot searches by the police, and D were electronically tagged and forbidden to use or possess any communications equipment apart from a single fixed telephone line in their flat. At first instance, the length of the curfew period, the extent of the obligations and their intrusive impact on the ability to lead a normal life had been likened to detention in an open prison. At a subsequent hearing, the Court of Appeal had agreed that the facts of the cases amounted to a deprivation of liberty. The Secretary of State repeated the assertions submitted to the Court of Appeal and (1) stressed the imperative duty of democratic governments to do what could lawfully be done to protect the public against the grave threat presented by the criminal activity of terrorists; (2) maintained that even if the court had been correct to find that the control orders wrongly deprived D of their liberty, s. 3(12) of the Act supported a view that only some of the individual obligations ought to have been quashed, rather than the entire control order.
Held:
Appeal dismissed. (Lord Hoffman and Lord Carswell dissenting) (1) Neither the judge at first instance nor the Court of Appeal had erred in their legal reasoning and the instant court would have reached the same conclusion as they did. The effect of the 18-hour curfew, coupled with the effective exclusion of all but the most brave of social visitors meant that D were practically in solitary confinement for an indefinite duration. The area open to them during their six non-curfew hours was not objectionable, but they were located in an unfamiliar area, devoid of social contacts and their lives were wholly regulated by the Home Office. (2) The secretary of state had had no power to make an order that was incompatible with Art. 5 and any such order was, on well-known principles, a nullity. Defects could not be cured by amending specific obligations and it would be contrary to principle to decline to quash an order, made without power to make it, which had unlawfully deprived a person of his liberty. (3) (Per Lord Hoffman) It was clear from the unqualified nature of the right to liberty and its place in the scheme of the other qualified Convention rights, that it dealt with literal physical restraint. In order to preserve the key distinction between the unqualified right to liberty and the qualified rights of freedom of movement, communication and association and so forth, it was essential not to give an over-expansive interpretation to the concept of deprivation of liberty. D’s situation could not be compared with that of somebody who was in prison. Even if it was accepted that the control order violated D’s right to liberty, there was no conceptual reason why the court could not modify the order so as to make it lawful, and the judge’s failure to accept that he had such power had been an improper exercise of his discretion.
Secretary of State for the Home Department v E (2008)
Key principle:
Control orders may involve a restriction rather than a deprivation of liberty and therefore may not be a violation of art 5.
Facts:
E was made subject to a non-derogating control order and challenged it on the ground that it infringed his art 5 rights. The Secretary of State had omitted to provide the police with Belgian court transcripts of successful prosecutions against some of E’s associates. The transcripts were material to the question whether E should be prosecuted. The Prevention of Terrorism Act 2005 by s 8(2) imposed a duty on the Secretary of State to take reasonable steps to ensure that the possibility of prosecution was kept under review. The control order was quashed at first instance but re-imposed in the Court of Appeal.
Held:
The restrictions imposed by E’s control order were such as merely to restrict his liberty rather than to deprive him of his liberty entirely. It was not a condition precedent of the making of a control order that there be no realistic prospect of prosecution. The Secretary of State was required to do what he reasonably could to ensure that the continuing review of the control order was reasonable. However, the judge at first instance had been wrong to quash it.
Commentary:
This case involved the distinction between deprivation and restriction of liberty. In Home Secretary v JJ (2007) the court held that an order that required the individual to remain in his flat for 18 hours a day was a deprivation and not merely a restriction of liberty and therefore violated art 5. The Terrorism Prevention and Investigation Measures Act 2011 abolishes the system of control orders, established under the Prevention of Terrorism Act 2005, and replaces it with a new regime designed to protect the public from terrorism, called Terrorism Prevention and Investigation Measures (TPIM).
Secretary of State for Home Department v RB (2010)
Summary:
Before the deportation of an alien would be capable of violating the European Convention on Human Rights 1950 Art. 6 there must be substantial grounds for believing that there was a real risk that there would be a fundamental breach of his right to a fair trial, and that that breach would lead to a miscarriage of justice that itself constituted a flagrant violation of his fundamental rights.
Abstract:
The House of Lords was required to determine joined appeals against decisions of the Court of Appeal on the lawfulness of deporting the appellants (B, U and O). B and U were Algerians, and O was Jordanian. The Secretary of State had ordered their deportation on grounds of national security. They claimed that deportation would violate their rights under the European Convention on Human Rights 1950 Art. 3 because there was a real risk they would be tortured by the authorities on their return. O, who was likely to be retried in Jordan for terrorist offences, also claimed that he would be deprived of his liberty by unreasonably lengthy detention incommunicado pending trial, and would not receive a fair trial, contrary to Art. 6, because the Jordanian military court which tried him would not be independent of the government and would be likely to receive the evidence of witnesses who had been tortured. The appellants’ appeals to the Special Immigration Appeals Commission (SIAC) were dismissed. The Court of Appeal affirmed the SIAC’s decisions under Art. 3, but upheld O’s appeal on the ground that evidence obtained by torture was likely to be used against him at his trial. The issues for determination were whether (i) compatibility with the Convention was itself a question of law, so that on each appeal the Court of Appeal had an unrestricted jurisdiction to review the conclusion reached by the SIAC; (ii) the SIAC could rely on “closed material” when considering the issue of safety on return; (iii) individual assurances by a receiving state that the deportee would not face a real risk of inhuman treatment could be relied upon where there was a pattern of human rights violations in that state; (iv) O’s deportation to face trial in Jordan constituted a flagrant denial of his rights under Art. 6.
Held:
Appeals allowed in part. (1) There was nothing in the Convention which prevented the United Kingdom from according only a limited right of appeal, even if the issue involved a Convention right. The Court of Appeal had no general power to review the SIAC’s conclusions that the facts it had found did not amount to a real risk of a flagrant breach of the relevant Convention rights. The SIAC’s conclusions could only be attacked if they were conclusions that no reasonable tribunal, properly directed, could have reached, Huang v Secretary of State for the Home Department (2007) considered. (2) Where safety on return was in issue, it was not likely to be critically important for the special advocate advancing the case of the deportee to obtain input from him in relation to the evidence which the receiving state wished to remain closed. The deportee would usually be aware of the information personal to him that bore on the question of whether he would be safe on his return. No real comparison could be drawn with the position of a person who had been made subject to a control order, Secretary of State for the Home Department v MB (2007) considered. The use of closed material in relation to the issue of safety on return would not necessarily render the process unfair or in breach of the principles of legality, *Chahal v United Kingdom *(1997) considered. B, U and O had not been denied a fair trial by reason of the use of closed material. (3) There was no principle that assurances must eliminate all risk of inhuman treatment before they could be relied upon. However, there was an abundance of material which supported the proposition that assurances should be treated with scepticism if they were given by a country where inhuman treatment by state agents was endemic. The issue of whether the assurances given in the instant case obviated the risk was a question of fact for the SIAC. The only ground upon which such conclusions could be attacked on an appeal restricted to questions of law was irrationality. The SIAC’s conclusions in relation to Art. 3 could not be described as irrational. (4) Before the deportation of an alien would be capable of violating Art. 6, there must be substantial grounds for believing that there was a real risk that there would be a fundamental breach of his right to a fair trial, and that that breach would lead to a miscarriage of justice that itself constituted a flagrant violation of his fundamental rights. The issue before the SIAC was whether there were reasonable grounds for believing that, if O were deported to Jordan, the trial he would face there would have defects of such significance as fundamentally to destroy the fairness of the trial, or to amount to a total denial of the right to a fair trial. The SIAC concluded that the deficiencies it had identified did not meet that exacting test. It did not err in law in so finding. There was no authority for a rule that, in the context of the application of Art. 6 to a foreign trial, the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice.
Secretary of State for Home Department v AF (3) (2010)
Summary:
A person subject to a non-derogating control order had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Where the open material relied on consisted purely of general assertions and the case against the “controlee” was based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be.
Abstract:
In conjoined appeals against a decision of the Court of Appeal, the House had to consider whether the procedure that had resulted in the making of non-derogating control orders against the three appellants satisfied their right to a fair hearing under the European Convention on Human Rights 1950 Art. 6. The appellants argued that their Art. 6 rights had been violated by reason of the reliance by the judges making the orders on material received in closed hearing the nature of which had not been disclosed to them.
Held:
Appeals allowed. (1) In A v United Kingdom (2009), the European Court of Human Rights had provided a definitive resolution of the issue in the appeals. That decision established that the “controlee” had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement was satisfied, there could be a fair trial notwithstanding that the controlee was not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consisted purely of general assertions and the case against the controlee was based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be. There were strong policy considerations that supported a rule that a trial procedure could never be considered fair if a party to it was kept in ignorance of the case against him. The first was that there would be many cases where it was impossible for the court to be confident that disclosure would make no difference. Reasonable suspicion might be established on grounds that established an overwhelming case of involvement in terrorism-related activity but, because the threshold was so low, reasonable suspicion might also be founded on misinterpretation of facts in respect of which the controlee was in a position to put forward an innocent explanation. A system that relied on the judge to distinguish between the two was not satisfactory, however able and experienced the judge. Further, there would be feelings of resentment if a party to legal proceedings was placed in a position where it was impossible for him to influence the result. Resentment would understandably be felt, not merely by the controlee but by his family and friends, if sanctions were imposed on him on grounds that led to his being suspected of involvement in terrorism without any proper explanation of what those grounds were. Indeed, if the wider public were to have confidence in the justice system, they needed to be able to see that justice was done rather than being asked to take it on trust. In none of the instant cases had the disclosure required by the decision of the Strasbourg court been given. The appropriate course was to remit each case to the relevant judge for further consideration, A v United Kingdom applied. (2) In A v United Kingdom, the Strasbourg court had nonetheless recognised that, where the interests of national security were concerned in the context of combating terrorism, it might be acceptable not to disclose the source of evidence that founded the grounds of suspecting that a person had been involved in terrorism-related activities. (3) There was good reason to allow to stand the reading down of the Prevention of Terrorism Act 2005 provided for in the decision of the House in Secretary of State for the Home Department v MB (2007).
