As with the right to liberty under Article 5, the right to a fair trial may have to be compromised in the context of the prosecution of terrorism, provided the very essence of that right is not jeopardised. This section will examine various provisions which ostensibly violate the basic tenets of the right to a fair trial, but which it is argued constitute necessary adjustments to that right so as to secure the rights of others or the effective administration of justice.

In particular, the section will examine the compatibility of closed proceedings under the Prevention of Terrorism Act 2005, but will begin with some examples where the context of terrorism has informed Article 6.

Since the coming into force of the Human Rights Act 1998, there have been claims that anti-terrorist provisionsRead More

Following the decision of the House of Lords in A, the 2001 derogation was withdrawn and parliament passed the Prevention of Terrorism Act 2005, which introduced a system of control and supervision orders to deal with such suspects. These powers were passed as non-derogating orders – the government believing them to be compatible with Articles 5 and 6    of the Convention. However, in JJ and Others v Secretary of State for the Home Department, the House of Lords held that control orders imposed on the applicants under s.2 of the Prevention of Terrorism Act 2005 were in breach of Article 5 of the Convention. Consequently, the orders, which purported to be non-derogating orders because the Home Secretary regarded them as restrictions on liberty rather than deprivations of liberty, were,Read More

The legal and political arguments concerning the detention without trial of foreign suspects under the now repealed provisions of the Anti-Terrorism, Crime and Security Act 2001 have resurfaced due to the recent decision of the European Court of Human Rights in A v United Kingdom. In that case the Court found the government in violation of Article 5 of the Convention, which guarantees the right to liberty of the person and compensation for those who have their liberty taken away in breach of the Convention.

In 2004 the House of Lords held that such detention was incompatible with Articles 5 and 14 of the European Convention on Human Rights; guaranteeing liberty of the person and the enjoyment of Convention rights without discrimination.130 However, as the domestic courts have no powerRead More

The right to personal liberty (under Article 5) is especially susceptible to interference in times of emergency and the state is likely to introduce a variety of powers to increase powers of arrest and detention to deal with terrorist threats. These measures and the accompanying case law have been referred to throughout the text, particularly in chapter 6, and this section will summarise those rules, including the power of derogation under Article 15, and highlight the difficulties of balancing civil liberty with national security and public safety.

so as to impair the safeguards of Article 5(1)(c), it was prepared to modify the normal requirements of objectivity. The Court stressed that the reasonableness of the suspicion on which an arrest must be based formed an essential safeguardRead More

Article 3 prohibits torture and inhuman and degrading treatment and punishment in unqualified terms. Further, Article 15 does not allow derogation from Article 3 in times of war or emergency. Accordingly Article 3 would appear to apply in full force in the context of combating terrorism. In Ireland v United Kingdom, it was alleged that the application of the so-called ‘five techniques’, which involved detained suspects being subjected to intense noise, wall-standing, and deprivation of food and sleep, constituted a breach of Article 3. The Court found that the application of the techniques to the applicants constituted both inhuman treatment, as they were applied in combination, with premeditation and, for hours at a stretch, causing if not bodily injury, at least intense physical andRead More

Articles 2 and 3 of the Convention are regarded as ‘absolute’ rights and are not subject to the principles of proportionality – in that they are not subject to the normal balancing act between their enjoyment and the achievement of other legitimate aims – or to the right of derogation under Article 15 of the Convention. Nevertheless, the European and domestic courts have, indirectly, considered the threat of terrorism when deciding whether the right has been violated on the facts of the case. In addition, there have been (largely unsuccessful) attempts by member states to dilute the absolute character of Article 3 in the context of anti-terrorism measures. This section of the chapter will thus examine the interpretation and application of these articles in cases where measures have beenRead More

The considerable powers to control and interfere with freedom of liberty, speech and assembly may be strengthened in the context of the fight against terrorism. In such circumstances the fear of terrorist activity might influence parliament in increasing police powers in this respect and this might be augmented by a deferential approach from the courts when such powers are challenged. The House of Lords’ decision in R (Gillan and Another) v Commissioner of the Police for the Metropolis, along with the appeal case before the European Court of Human Rights – Gillan and Quinton v United Kingdom – provide contrasting judicial approaches to the interpretation and application of police powers of stop and search under the anti-terrorism provisions, and these cases will be examined next.

In thisRead More

The proscription and regulation of associations and their activities inevitably impacts on freedom of expression and the exchange of ideas and information. This section examines specific offences intended to regulate speech that might incite, encourage or lend support to such organisations and their causes; such measures will be examined to identify whether they are compatible with the principles of free speech examined in chapters 8 and 9 of the text.

In addition to the offence of encouraging terrorism, below, the freedom of expression of certain groups or individuals might be compromised by the government policy. For example, the Home Secretary’s power to deport or refuse entry to individuals on the grounds that their presence is not conducive to the public good or they are likely toRead More

The Terrorism Act 2006 adds to the above provisions on proscription and the regulation of terrorist support by introducing new offences designed to curb and penalise the support of such groups. Sections 21-22 of the Act amend s.3 of the Terrorism Act 2000, above, so as to extend the Home Secretary’s power of proscription to organisations which promote or encourage terrorism where the activities of the organisation include the unlawful glorification of the commission or preparation of acts of terrorism, or where those activities are carried out in a manner that ensures that the organisation is associated with statements containing any such glorification. This provision complements s.1 of the 2006 Act, which introduces the offence of encouragement of terrorism, dealt with below. As with s.1Read More

Anti-terrorism provisions will inevitably include the power to proscribe certain groups in addition to creating specific terrorist offences prohibiting certain acts which support or further the aims of that group. These provisions will impact on the rights to freedom of association and assembly and free speech and will need to be justified on grounds of legality and proportionality, possibly by using Article 15 of the Convention with respect to derogation.

Although freedom of association is regarded as fundamental under the European Convention, in exceptional cases the European Court has sanctioned the proscription of a particular organisation which was thought to pose a sufficient threat to the values of that society and the underlying values of democracy. Thus, in Reefa Partisi ErbakanRead More