British Police Powers ‘Could Be Unlawful’

October 13th, 2005 - by admin

lan Travis and Michael White / The Guardian – 2005-10-13 08:30:29,15935,1590997,00.html

British Police Powers Toughest in Europe
Alan Travis / The Guardian

LONDON (October 13, 2005) — British police will have the toughest powers in Europe to detain suspects without charge, a Foreign Office comparison of counter-terror laws reveals. The study, ordered by Tony Blair, was supposed to bolster the government’s case for its anti-terror legislation by showing how moderate the new proposals in Britain were compared with continental equivalents.

In fact, the dossier shows the opposite: police in countries such as France and Spain can detain suspects without charge for less time than the 14 days the British police are allowed at present — a substantially less time than the three months proposed under the anti-terrorism bill.

The survey also shows that Britain will be out on a limb in Europe if it presses ahead with its plan to deport terror suspects back to countries where they may face a risk of torture or ill-treatment. The dossier was published yesterday alongside the government’s new terrorism bill and a report from Lord Carlile, the official independent reviewer of the government’s anti-terror laws.

The home secretary, Charles Clarke, also published details of his plans to make it easier to take away the British passports of dual nationals who engage in the new official definition of “unacceptable behaviours” that are thought to encourage terrorism.

He also announced plans to deny asylum to anyone who has in any way been associated with terrorism around the world and to speed up the deportation of those who face exclusion on national security grounds. They will still have their day in court to challenge their removal on human rights grounds but will be allowed to challenge the national security case against them only after they have left the country.

The legislation contains few new proposals but confirms that the revised “glorifying terrorism” offence is now much more tightly drawn with the police having to prove that such statements were intended to incite further acts of terrorism.

Lord Carlile gave his broad support to the legislation. But he raised concerns about the proposals to outlaw terrorist training camps.

He questioned whether “it is the role in our law, or even enforceable, to make it a criminal offence triable in our country to fight in a revolution the aims of which we support. The example of the ANC before the release of Nelson Mandela almost automatically springs to mind”.

Lord Carlile said he had particular worries about the detention for deportation of the Belmarsh 10 who had been under control orders in the absence of a current “no torture” memorandum of understanding with the countries to which they would be deported — in this case Algeria.

The Home Office minister, Hazel Blears, argued against using the Foreign Office dossier to make a direct comparison between different legal systems: “It shows how different countries approach these difficult issues but it’s then not fair to say our police are going to have draconian powers.”

The survey shows that in France the maximum period of police detention is four days while in Spain it is 13 days pre-charge. But in both cases once suspects are charged and handed over to the judicial authorities, they can be held for between two and four years before they have to come to trial. In Australia the pre-charge period is only 168 hours.

“The difference in the UK is that once the 14-day period is exceeded the barrier comes down and the police can no longer question somebody once they have been charged. This is not the case in France and Spain where the person leading the investigation is an investigating magistrate,” said a Foreign Office official.

But Mark Oaten of the Liberal Democrats said the survey undermined the government’s case: “Keeping suspects in police detention for three months would be radically out of step with our European and Commonwealth partners. Where other countries hold suspects for long periods there are safeguards in the form of an independent judge who decides if there is a case to answer.”

Main Points
Definition of Terrorism
Widely drawn including serious violence against people or damage to property that is designed to influence the government or intimidate the public for a political, religious or ideological cause. The definition of government includes international organisations such as the UN for the first time.

Detention without Charge
The upper limit for holding a suspect without charge will be increased from the current 14-day limit to up to three months. After 48 hours police superintendent or above or crown prosecutor can apply to a district judge for weekly extensions up to the new three-month cut-off. Reasons for extensions include waiting for results of DNA tests.

Encouraging or Glorifying Terrorism
The bill is substantially revised from original proposal. Now covers statements that glorify the commissioning or preparation of acts of terrorism which either directly or indirectly are designed to encourage further acts of terrorism. Maximum penalty: 12 months.

Internet service providers and chatroom moderators to be protected by a defence that they did not endorse such views.

Disseminating Terrorist Publications
This will carry a maximum penalty of seven years imprisonment and is designed to tackle bookshops and websites that deal in terrorist publications, including “apparently authoritative tracts wrapped in a religious or quasi-religious context”. Similar defences as above for internet service providers.

Preparation of Terrorist Acts
This new offence will be stronger than the current conspiracy laws. It is designed to catch those who, intending to commit terrorist acts, provide the facilities to do so, such as accommodationor fundraising through credit card fraud.

Training for Terrorism
Up to 10 years in prison for those who deliberately provide or receive instruction or training in connection with terrorist offences. It includes invitations to take part in training and provides for the seizure of materials used in such courses. There is also an offence of attending a terrorist training camp which will carry a 12-month jail term.

Making and Possessing Nuclear Devices or Materials for Terrorist Purposes
This will carry a life sentence and comes with a new set of offences to deal with trespassing and damaging nuclear sites but do not criminalise legitimate protests outside their boundaries.

Consent to Prosecutions
Introduces a “double lock”: consent will be needed of both the director of public prosecutions and the attorney general for prosecutions under terrorist offences to provide “a safety valve against hasty or inappropriate decisions”.

Proscribing Extremist Groups
The home secretary’s powers to ban groups will be extended from those directly involved in terrorism to those whose activities “glorify, exalt or celebrate terrorism”. The idea is to reduce the opportunities for disaffected young people to become radicalised towards terrorism. The new offence will also prevent proscribed organisations escaping the ban by simply changing their name. Appeals allowed to a proscribed organisations appeal commission.

Immigration Law Changes
A power is to be introduced to make it easier to remove the British citizenship of those with dual nationality whom the home secretary considers to be “not conducive to the public good”.

Those facing deportation in national security cases will only be able to challenge the national security case for their removal once they have left the country. They will, however, be able to appeal to a British court before their removal on human rights grounds.

Other Provisions
There is to be an independent annual review on the operation of the legislation.

Stephen Grosz, head of public law and human rights at the solicitor Bindmans, said: “The government has left out the ‘intent’ from the clause outlawing glorification of terrorism. Now you can be in danger of negligently inciting terrorism … There was already an offence of incitement to terrorism in the 2000 act. For detention of suspects, 90 days is the equivalent — in terms of time served — of a six-month prison sentence. No justification has been advanced for showing why it should be such a long period.”

Inayat Bunglawala, spokesman for the Muslim Council of Britain, said the measures were misguided. “Since 9/11,” he said, “895 people have been detained [for suspected terrorism offences] but of those more than half, 496, were released without charge. These arrests have caused disquiet and anger. If the government was to extend the period to 90 days, it would be unacceptable … It will be counterproductive. On the threats to prosecute trustees of mosques and close mosques down, the government has not produced the evidence. The radicalisation is occurring outside the mosque network.

Ken Jones, chairman of the Association of Chief Police Officer’s (Acpo) terrorism committee and chief constable of Sussex police, said: “This bill recognises the changing nature of the terrorist threat and that the police response must change with it. Powers to outlaw the glorification of terrorism and a new offence to tackle those planning acts of terrorism will make a significant impact on our ability to root out terrorists before atrocities occur. The threat we face … continues to evolve and our response must evolve with it. … We need to recognise investigating and prosecuting a global ideologically motivated movement demands a different approach.

Liberty Director Shami Chakrabarti said: “Plans to allow three-month detentions without charge will have a severe impact on community relations. This would allow for the equivalent of a six-month custodial sentence … If the police have genuine difficulties in gathering evidence we should look for more proportionate ways of dealing with the problem. Extension of the grounds for proscription will criminalise support of non-violent political parties. The implication of criminalising such organisations on the basis of their opinions is incredibly dangerousfor a democratic government to consider.

Janet Paraskeva, Law Society chief executive, said: “We recognise the government has a duty to protect us from the threat of terrorism. In doing so, it must strike the right balance between safeguarding national security and protecting rights such as free speech … We are pleased the home secretary has removed the clause on glorification. But we are concerned the legislation does not yet reflect the need to prove intent … Fourteen days is a long time to hold a suspect without charge. The government should provide more resources to the police and security services rather than extend detention to a length of time tantamount to internment.

Guardian Unlimited © Guardian Newspapers Limited 2005

Anti-Terror Laws ‘Could Be Unlawful’ Alan Travis and Michael White / Guardian

(October 13, 2005) — he government’s plan to detain terror suspects for up to 90 days without charge could be struck down by the courts as a breach of human rights, its own official anti-terror watchdog warned last night.

The concerns raised by Lord Carlile QC are believed to reflect reservations privately voiced by the attorney general, Lord Goldsmith, to Tony Blair and Charles Clarke as they finalised the anti-terror legislation published yesterday.

The plan to extend the maximum period under which police can hold terror suspects without charge from 14 days to three months is the most controversial element of the legislation.

Lord Carlile, the independent reviewer of the operation of the terror laws, said yesterday that the 90 days maximum was probably a “practical and sensible option” to meet the real problems faced by the police in investigating such cases. Under yesterday’s bill the police will have to apply to a district judge for a week-by-week extension up to 90 days.

But he warned that much stronger judicial control than the equivalent of a magistrates court was needed if the proposal were not to be struck down by the courts on human rights grounds. If necessary the judge should even have the power to order his own investigations.

“A more searching system is required to reflect the seriousness of the state holding someone in high-security custody without charge for as long as three months,” Lord Carlile said. “I question whether what is proposed in the bill would be proof to challenge under the Human Rights Act given the length of extended detention envisaged.”

The Home Office minister Hazel Blears said the legislation was compatible with human rights law, and it had been signed off as such by the home secretary. She argued that giving a judge powers to direct the police investigation would amount to a major shift in UK law.

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Censorship, Political Repression Will INot Protect Britain
Seumas Milne / The Guardian

LONDON (October 13, 2005) — As negotiating tactics go, it’s a pretty transparent one — but it still seems to work every time in British politics. The government has a policy it knows will arouse a blizzard of controversy. So it starts out with a maximalist, even outlandish, version.

When that is predictably greeted with outrage, it retreats crab-like to its core position — and the final outcome is then accepted with relief that the government has compromised. But the net effect is to drive through measures that might have been thrown out without the softening-up process.

So it has been with Tony Blair’s anti-terror plans, first unveiled in August in the wake of the London bombings. In their original back-of-the-envelope formulation, they included the truly Ruritanian wheeze of codifying a list of violent historical events that Britons could be sent to prison for “glorifying, exalting or celebrating”.

Last week, after two months of ridicule, the home secretary, Charles Clarke, let it be known that the most absurd parts of this censorship scheme had been dropped. Then on Tuesday, he signalled that the government might be prepared to shift on its proposal to jail terror suspects without charge for up to three months.

The apparent climbdown has, as expected, been embraced by key opponents. But, as publication of the terrorism bill yesterday confirmed, the most dangerous and inflammatory elements in Blair’s August package are still there: not only the effective internment power, but deportation to countries that routinely torture; banning of non-violent political parties; state control of mosques and the outlawing of any statement that might be seen as inciting or glorifying terrorist acts (including in history).

The main opposition parties are now focused on detention without charge. The Liberal Democrat home affairs spokesman, Mark Oaten, wrote on these pages this week that the three-month internment power was now the “one major sticking point” — and changes to the glorification clause, he thought, meant that it was “a lot better” and that non-violent organisations such as the radical Islamist group Hizb ut-Tahrir could not be banned.

In fact, under the terms of the bill, anyone who voices support for armed resistance to any state or occupation, however repressive or illegitimate, will be committing a criminal offence carrying a seven-year prison sentence – so long as members of the public might reasonably regard it as direct or indirect encouragement.

Terrorism is not defined in the bill as, say, indiscriminate attacks on civilians, let alone an assault on civilian targets by states — but as any politically motivated violence against people, property or electronic systems anywhere in the world.

This is not only an assault on freedom of speech and debate about the most contentious subject in global politics. It also makes a criminal offence out of a belief shared by almost every society, religion or philosophy throughout history: namely, that people have the right to take up arms against tyranny and foreign occupation.

Clarke made clear on Tuesday that this was exactly his intention. He could not, he said, think of any situation in the world where “violence would be justified to bring about change”.

Clearly, that did not apply to the invasion of Iraq or the bomb attacks on street markets carried out in Baghdad by US and British-backed opposition groups before 2003.

But, as the mayor of London pointed out yesterday, support for Nelson Mandela, the wartime resistance and any number of anti-colonial liberation movements would all have been crimes under this bill. In practice, of course, the law is intended to be used selectively: it is aimed not just at those who praise bomb attacks on the London tube, but at Muslims and others who believe that Palestinians, Iraqis, Afghans and others have a right to resist occupation.

If there were any doubt about that, Blair’s stated intention to use this bill to ban Hizb ut-Tahrir — reaffirmed this week by the Home Office — should dispel it. There is little love lost among many Muslims — let alone non-Muslims — for Hizb ut-Tahrir, which campaigns for a restored caliphate (or unified Islamic political authority) throughout the Muslim world and against participation in elections.

Although it denies being anti-Jewish, the organisation had on its website until recently a statement which by any reckoning crossed the line from anti-Zionism into anti-semitism. But there is also no evidence at all that it is involved in terrorism — it condemned both the London bombings and the 9/11 attacks.

It does not, however, condemn armed resistance in Iraq and Palestine, which is how the government plans to catch it. Along with the criminalisation of support for resistance movements, such a ban on a non-violent political party would be unprecedented in modern British history.

When set against the toleration of the routinely violent and relentlessly racist British National party, it is scarcely surprising that Muslim opinion is overwhelmingly hostile to all the main planks of the legislation.

The home secretary’s remarks in Washington last week that in dealing with global Islamism “there can be no negotiation about the recreation of the caliphate … no negotiation about the imposition of sharia law” (when support for the latter in particular, variously interpreted, is widespread in the Muslim world) heightens the perception that the war on terror is also a war on Islam.

Blair’s August announcement was designed to show the government was taking tough action to protect the country from any repetition of the London bombings — and offset the majority view that he had put his own people in danger by invading Iraq. But if the terrorism bill in its current form becomes law, the likelihood is that instead of reducing the terror threat, it will increase it.

Any operational benefit to the police is bound to be more than offset by the further alienation of exactly those sections of the Muslim community whose cooperation is needed to prevent more atrocities. If peaceful organisations are banned, Muslims are routinely locked up without charge and support for mainstream Muslim causes is criminalised, some will certainly be intimidated and keep their heads down.

But others will conclude that participation in politics is pointless, that the tolerance and liberal democracy proclaimed by the political establishment is a fraud — and go underground. It is in everybody’s interests that parliament resists a panic measure which threatens us all.
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