Basic rights and anti-terrorism legislation: can Britain's Criminal Justice (Terrorism and Conspiracy) Act 1998 be reconciled with its Human Rights Act?

• Author: Kent, Kevin Dooley

Abstract

This Note addresses whether Britain's Criminal Justice (Terrorism and Conspiracy) Act (CJTCA), which permits police officer opinion testimony as to whether a terrorist suspect is a member of an illegal terrorist organization and allows adverse inferences to be drawn from that suspect's silence, can be reconciled with the fair trial provisions of the Human Rights Act (HRA). Part II of this Note describes the background of the CJTCA, concentrating on the reasons for its rushed passage and on the evidentiary changes it makes to trials of defendants charged with terrorist offenses. Part III describes the background and mechanics of the HRA, which incorporates the European Convention on Human Rights into Britain's domestic law. As the HRA directs British judges to refer to case law of the European Court of Human Rights for guidance, Part IV evaluates that tribunal's interpretation of Article 6 of the Convention, which guarantees the right to a fair trial. Specifically, this section examines decisions of the European Court of Human Rights and the British courts with regard to issues likely to arise in trials under the CJTCA, including the following: the right to remain silent, the right to cross-examine adverse witnesses, the prosecution's duty to disclose information, and the doctrine of "equality of arms." Part V applies the principles explicated by those authorities to the evidentiary provisions of the CJTCA, and assesses the soundness of the policy goals behind it. In this section, the author concludes that many trials under the CJTCA will run afoul of the HRA. Accordingly, the CJTCA should be repealed or given a very narrow interpretation by the British Courts. The author also concludes that the CJTCA will not advance the goals for which it was passed--reducing terrorist activity in the United Kingdom and bolstering the peace process in Northern Ireland.

1. INTRODUCTION

   Consider the following scenario. You are arrested and charged with membership in a terrorist organization. At the police station, you refuse to answer questions posed by the interrogating police officer. Maybe you are nervous. Maybe you are awaiting legal representation. Maybe you are somewhat uneducated, inarticulate, and incapable of effectively expressing yourself under the circumstances. Your exchange with the police officer goes something like this:

   Policeman: "I have reliable information that you are a member of a terrorist organization. What do you say?" Suspect: "What information?" Policeman: "I am not at liberty to say." Suspect: "Then--nothing."(1) At trial, the judge or jury hears a high-ranking police officer testify to your refusal to answer questions during interrogation and that in his professional opinion your are a member of a terrorist organization. On cross-examination, defense counsel asks the officer on what information he bases his opinion, but the officer declines to answer on the basis that disclosing such information would jeopardize national security or would be contrary to the public interest, You decide to maintain your right to silence at trial. Based on the above evidence, the verdict comes back--"Guilty!"(2)

   Critics of recent anti-terrorism legislation in Britain, especially civil rights groups, indicate that the scenario above is possible under the government's new laws. The Criminal Justice (Terrorism and Conspiracy) Act 1998 (CJTCA), which passed through the House of Commons within twenty-four hours of being drafted.(3) makes significant changes in the types of evidence that can be admitted at trials of defendants suspected of involvement with terrorist organizations. The Act permits judges and juries to draw inferences from a suspect's silence in the face of police interrogation.(4) Additionally, the opinion evidence of a senior police officer that a defendant is a member of a terrorist group is also admissible at trial.(5) The Act was passed in the emotional aftermath of one of the Northern Ireland's worst bombings and the bombings of the U.S. embassies in Tanzania and Kenya in August 1998.

   At the same time Britain passed these tough anti-terrorism measures, it adopted the European Convention on Human Rights (HRA)(6) into its domestic law. The HRA, which incorporates the terms of the Convention almost verbatim, will allow claimants to enforce Convention rights in British courts.(7) It will become effective in October 2000, but the Scottish courts have already entertained claims based on the Convention since May 20, 1999.(8) Although British Courts will not be permitted to strike down legislation under the HRA,(9) courts will be directed to favor an interpretation of a statute which is in accord with the Convention over an interpretation which is not.(10) The HRA will effectively act as a "Bill of Rights" for the United Kingdom.

   This Note deals specifically with whether the provisions of the Criminal Justice (Terrorism and Conspiracy) Act 1998, permitting opinion testimony of senior police officers and inferences of guilt from a suspect's silence, will, in practice, contravene the European Convention on Human Rights. If British courts do not construe the provisions of the CJTCA narrowly, convictions may result in cases where the substantial evidence presented by the state is the suspect's silence combined with police opinion evidence that is basically immune from cross-examination. Such convictions would violate Article 6 of the European Convention on Human Rights and accordingly, would violate the HRA. Without a very narrow construction of the CJTCA, courts will essentially have to choose between applying the CJTCA or the HRA to the trials of terrorist suspects. An expansive interpretation of the CJTCA would violate rights considered fundamental in most democratic societies, such as the right to silence, the right to be presumed innocent, and the right to confront witnesses and accusers.

   The evidentiary provisions of the CJTCA will be analyzed primarily under case law from the European Court of Human Rights (ECHR) and also under British common law, as these are the sources which the HRA directs judges to consider when hearing claims under the Convention.(11) The HRA may provide persons charged with offenses to which the CJTCA applies a viable means of challenging the manner in which their trial is conducted.(12) While the CJTCA is part of a joint effort between the British and Irish governments to combat terrorism through similar legislation, only the British legislation will be considered for the purposes of this Note. Because Britain is considered by many to be among the leaders of liberal democracies, its experience with the CJTCA will most likely have more influence over legislation in other countries, especially within Europe and in the United States and Canada. Consideration of Britain's attempts to deal with terrorism and at the same time provide for protection of civil rights is relevant given the current scope of terrorism's threat. Britain's experience with the CJTCA may influence the manner in which other large democracies, such as the United States, decide to deal with the increasing prevalence of both domestic and international terrorism.(13)

2. THE CRIMINAL JUSTICE (TERRORISM AND CONSPIRACY) ACT 1998

   Passed in what seemed like record time for a piece of legislation, the Criminal Justice (Terrorism and Conspiracy) Act 1998 was attacked by civil rights groups as an ill-thought-out, short-sighted solution to the problem of organized terrorism. It was criticized not only for its substantive changes to the laws of criminal procedure in the United Kingdom but also for the political haste in which it passed. Despite the criticisms against it, there was less than substantial opposition to the bill in the form of parliamentary votes. However, some MPs, especially in the Liberal Democratic Party, felt a heavy backlash from party backbenchers and constituents in the weeks following the CJTCA's passage.

   1. The Political Climate

      The CJTCA passed the House of Commons in a sixteen-hour sitting on September 4, 1998 after a marathon session that began the previous day and lasted into the early hours of the morning.(14) It became law later the same day when it cleared the House of Lords with little opposition.(15) Parliament was recalled from its summer holiday for an emergency session to debate the bill.(16)

      Tony Blair's Labour government introduced the bill for the immediate purpose of increasing the pressure on splinter paramilitary groups in Northern Ireland that were attempting to halt the peace process in Ulster.(17) On August 15, less than three weeks before the bill's introduction, a bomb had exploded in Omagh, Northern Ireland, causing the deaths of twenty-nine people.(18) The bomb was allegedly an attempt to frustrate the ongoing peace process(19) by the Real IRA, a militant republican group that split off from the Provisional IRA because of the endorsement of the peace process by the Provisionals through the republican political party Sinn Fein. The British government appeared to be playing catch-up to the Irish Government, which had also passed new laws(20) aimed at rounding up the Omagh bombers.(21) The bombings of the U.S. embassies in Tanzania and Kenya, as well as pressure on the British government by other countries who claimed Britain had become a haven for planning international terrorist plots,(22) also contributed to the urgency with which the Act was pushed through Parliament.(23)

      Aside from the substantive changes effected by the CJTCA, there was much criticism both from within Parliament and in the British media of the haste and manner in which it was passed. For example, not only were members of Parliament recalled from their summer holiday, but the emergency sitting also lasted only two days.(24) Many MPs claimed that there was not enough time given to properly debate the Act before its passage.

      The bill passed through the House of Commons despite a cross-party...