The UK Terrorist Legislation - Essay Example

?Law on terrorism Law on terrorism Introduction The UK has broad legislative counter-terrorism framework including Terrorism Act of 2000 that was enacted in response to terrorism attacks from Irish Republic Army and Ulster Freedom Fighters1. Section 1 of the Prevention of terrorism Act of 2005 defines terrorism as the threat of action, whereby the actions involves the use of violence against other people, serious property damage or creates a serious risk of healthy and safety of the public. The UK terrorism intelligence gathering uses sophisticated methods that are geared at breaking down the terrorist network before they commit the attacks. The Terrorism Act 2000 criminalises terrorism while subsequent legislation like Anti-terrorism crime and security Act 2001 counters terrorism through port controls, forfeiture of terrorism linked assets and detention without trial. Intelligence surveillance is essential in protecting civil liberties and curtailing terrorism related activities in the UK. Other policy makers have asserted the intelligence surveillance intrudes the privacy of citizens and undermines democratic values. Surveillance activities entail intercepting communication channels such as telephone conversations, bugging, spying and entry and search missions in private properties. In the case of Malone v. Met Police Commissioner (no.2) (1979) 2 All ER 620, the plaintiff argued that the Crown had no any powers to tap telephones and that he had rights of privacy and confidentiality in respect of the telephone conversations2. However, the court dismissed the plaintiff claims on the basis that no particular privacy right had been infringed without molestation and telephone methods did not infringe any law. The plaintiff further argued that Article 8 of the 1950 Convention had conferred him the rights to privacy and family life. However, the plaintiff appealed the decision of the court in the case of Malone v. UK (1985) 7 EHRR 14 whereby the court held that the UK law on intelligence gathering was unclear and such infringement was not in accordance with Article 8 of the EU Convention on Human rights3. In reaction to the case, the UK enacted the Interception of communications Act 1985 in order to safeguard the civil liberties during intelligence surveillance. The new Acts provided the legal framework for surveillance tools and outlawed unlawful interception of telephone communications. However, the Interception of Communications Act 1985, allowed the Secretary of State to issue a warrant for the interception of conversations in furtherance of national security and prevention of serious crimes in the UK. Further, in the case of Halford v. UK (1997) 24 EHRR 523, the court held that citizens expect a reasonable degree of privacy in the workplace4. Accordingly, the UK courts have held that undercover police women cannot obtain incriminating evidence through befriending men who have been accused of murder since it is a violation of Code C of PACE5. The enactment of regulation of Investigatory Powers Act 2000 paved way for the legal framework on interception of communications from suspected terrorists. Part II of the Act deals with covert surveillance and the code of practice during surveillance intelligence gathering. The Act defines the acts of the intelligence officers that can be construed as surveillance and includes the recording, observation, and listening of conversations of the communications. Section 26 of the RIPA ACT outlines the nature of intelligence including the directed intelligence and intrusive intelligence that will occur in private property or vehicle. The RIPA Act 2000 allows the public bodies to intercept telecom communications and use covert intelligence sources in promoting national security. Accordingly, the act allows the intelligence bodies to access decrypted data and conduct mass surveillance on transit data in order to uncover terrorism related activities. The intelligence authorities have the powers to monitor the internet activities and can demand all internet service providers to fit equipments that can facilitate their surveillance activities. In addition, the intelligence officers have been authorised to demand for the access of customer communication data from the internet service providers in secret in order to facilitate national security. However, critics of the Act assert that encrypted traffic may not be supplied and that it infringes the rights to individual privacy6. The RIPA Act has allowed for the use of human covert intelligence sources in combating terrorism. The human sources usually establish personal relationships with other persons for the purpose of conducting intelligence. Accordingly, there are appropriate officers responsible for the maintenance of records provides by the human covert intelligence sources and any information obtained through use of hidden cameras cannot be termed as intrusive unless left in the residential property of the informant7. The Intelligent officers have the power to detain a suspected terrorist for a period of 48 hours according to Section 41 of the Terrorism Act 2000. In addition, the criminal justice Act of 2003 further extended the time limit of 48 hours to 14 days in order to allow the intelligence officers to conduct thorough investigations on suspected terrorists8. According to Section 44 of the terrorism Act 2000, the intelligence officers are not required to have ‘reasonable suspicion’ since they can stop and search any individual and vehicle9. However, the European Court of Human Rights ruled that this section was illegal since it contravened Article 8 of the European Convention on human rights ass the powers granted to could easily be abused by the police and intelligent officers. However, subsequently legislations such as the Terrorism prevention and investigations measures Act 2011 have amended certain provisions like section 44 that granted the police officers the powers to conduct random searches even with no reasonable suspicion of possibility of terrorism attack10. The terrorism Act of 2006 extends the criteria of proscribing the terrorist organisations to include all groups that promote or glorify terrorism11. The law on terrorism also prohibits the dissemination of terrorism related publications in the UK. The terrorism law outlines unacceptable behaviors that may lead to deportation of non-UK citizens and include publishing, running a website or make terrorism related public speeches such as preaching. Section 15 of the 2000 Terrorism Act also makes it a crime for one to invite another to contribute money or property towards financing or promoting terrorism related activities12. The above section ensures that suspected terrorists have limited resources of financing terrorist attacks thus countering the successfully launch of terror attacks. Part IV section 33of the terrorism Act 2000 also provides the cordoning for the purpose of facilitating terrorism investigations. The Immigration, asylum and nationality Act of 2006 also fosters covert intelligence on suspected terrorists through requiring a rigorous good character tests before registration as a British citizen13. Another law that fosters intelligence gathering is the Anti-terrorism, crime and security Act 2001 that grants the Home Secretary powers to certify any foreign national as an international terrorist whose presence in the UK may endanger the security of the country14. An officer of at least the rank of superintendent can authorize compulsory taking of the fingerprints of the detained suspected terrorists even without the consent of such person15. The security agencies can access and retain communication providers’ data for the purpose of gathering information on suspected terrorists16. Accordingly, a police officer of at least the rank of an inspector can search and cross-examine suspected terrorists for any marks that could assist in the identification process. Terrorism Act 2006 law outlaws the manufacture or possession of radioactive materials and provides a life imprisonment for people convicted of possession of such materials. Walker and Omand assert that radioactive materials can lead serious property damage and loss of thousands of citizens if they fail in the unsafe hands of terrorists17. The Act clarifies that even making a threat of connection with the commission of terrorism offense through the use of radioactive materials is a serious offense that attracts life imprisonment18. The law also limits access to nuclear sites in the UK thus limiting the unauthorized access to radioactive materials. The immigration officers, custom officers and police the powers can search a vehicle at the port or while on the ship or aircraft for the purpose of preventing the transport of radioactive materials by the terrorists19. Section 30 extends the stop and searches to the interior waters therefore extending counter-terrorism efforts to the interior places20. The terrorism law also safeguards the security of law enforcement officers. The counter-terrorism Act 2008 makes it offense to produce of information related to persons serving in law enforcement departments and intelligence services21. For instance, Section 76 of the Act makes it offense for a person to attempt or elicit information regarding a constable, member of the forces or a member of the intelligence services for the sole purpose of aiding acts of terrorism. Such an offense will attract an imprisonment term not exceeding 12 years. This Act increases the powers of intelligent officers in intercepting evidence and seizing documents during property search in order to facilitate investigations22. In addition, the police officers can use DNA samples and seize the assets owned by the convicted terrorists23. The Law enforcement officers can detain materials not under any statutory restrictions such as DNA samples and fingerprints can be retained by the law enforcement authorities for the purpose of use in identifying deceased persons, and detection of other forms of crime or national security. Surprisingly, the Act allows for post-charge questioning in England and Wales if a suspected terrorist has been charged with a terrorist related office or when the suspected terrorist has already been informed of the offense24. The counter-terrorism Act 2008 also includes notification requirements for persons with prior terrorism related offenses conviction in accordance with section 30. Section 58 of the Act provides the provisions that may restrict persons suspected of terrorism from travelling abroad if it is necessary to prevent the individual from carrying out terrorism activities abroad. The case of R v. Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787 held that the acceptable standard of proving that the behaviour of such individual may lead to terrorism offenses abroad25. The UK legislation can adequately combat terrorists from visiting other countries since the foreign travel restriction will require surrender of both the UK and foreign travel passports to the police authorities26. The Counter-terrorism bill 2008 adequately combats the financing of terrorism activities. Section 62 grants the Treasury the powers to take legal action to persons with businesses that promote money laundering and terrorism financing27. The Financial Services Authority and Office of Fair Trading have enacted procedural requirements of combating terrorism financing thus disrupting occurrence of terrorism offenses in UK28. The Act is fully geared at combating global terrorism since it takes in to account the UN terrorism orders. The Terrorism prevention and investigations measures Act 2011 abolished the control orders that were contained in the Prevention of terrorism Act of 2005. The number of days which a suspected terrorist can be detained has been reduced from 28 days to only 14 days. In addition, the Act has repealed Section 44, 45, and 46 of the Terrorism Act 2000 since intelligence officers are now required to have a reasonable suspicion before conducting searches29. Civil liberties safeguards in relation to intelligence gathering The European Convention of Human rights provides for key human and political rights to individuals suspected of terrorism. Article 8 (1) provides that every individual must have the right to family life and private life. Furthermore, the sub section 2 clarifies that this right should not be infringed in any democratic society even when pursuing economic interests, public safety or any national security interests30. The European Court of Human Rights has previously clarified that the private life of the suspected terrorists includes the integrity private space such as hotel rooms and medical information of the suspected terrorist. In the case of Khan v United Kingdom 35394/97; ECHR 2000-V; [2000]. ECHR 194, the case concerned the use of listening devices by the police31. In its findings, the court held that collection of evidence against accused individuals through use of listening devices amount to the breach of the right to private life. Article 3 also prohibits the law enforcement officers from obtaining intelligence information from suspected individuals through inhuman methods such as torture and degrading punishment32. Article 5 of is clear that suspected individuals have a right to security and liberty. The law enforcement officers must have reasonable suspicion for making arrests of detaining suspects. Although Article 10 grants the suspected individuals the right of expression, it also makes exceptions on matters of public safety, crime and national security33. In this case, the UK terrorism containment legislation prohibits the citizens making such dress expression or publishing materials that glorify terrorism due to the national security and public safety concerns34. Another legislation that safeguards the liberties of suspected individuals is the Data protection Act 1998 that guarantees the protection of personal data and information. Although the Act does not dwell much on the issue of privacy of suspected individuals, it aligns its provisions with EU data protection directive of 1995 which forms part of UK law. The Act aims at safeguarding data held in personal computers or other communication devices from illegal access and manipulation35. The personal data of suspected individuals must be processed lawfully and fairly and such data may not be transferred outside the specified territory such as European Union without the consent of the individual. In addition, the European data protection directive of 1995requires the suspected individuals to be informed about the intended use of the data obtained from their custody36. Although many commentators assert that the Act is complex, sub section 21(2) provides that it is an offence to fail to adhere with notification regulations issued by the Secretary of State while Section 55 outlaws the illegal access of personal data through hacking or impersonation. However, Section 28 and 29 adds some exceptions since such data may be processed for the sole purposes of ensuring national security or detecting crime and facilitating taxation of an individual37. The right to life and family life is also safeguarded by the Human rights Act 1998 since Article 10 grants the individuals the right to expression. Section 3 of the Act provides that the courts should interpret the Act in accordance with European Convention of human rights. In the 2006 case of Afghan hijackers, the Immigration tribunal concluded that the nine men could stay in UK and the government had denied them their right to work38. In the case of Golder v. United Kingdom (1975) 1 EHRR 524, 535-536, the court held that denial of fair trial of suspected individuals is a violation of human rights and Article 6 of the Convention that grants the accused access to counsel and fair trial39. Although Section 10-13 of Counter-terrorism Act 2008 outlined the guidelines for the storage of fingerprints of the suspected terrorist under the control orders, the European Court of Human Rights in the case of S and Marper v. United Kingdom 30562/04 [2008] ECHR 1581ruled that indefinite storage of such fingerprint data contravenes the right to privacy as outlined in Article 8 of the ECHR. In this case, the UK government implemented varying time lines for the storage of biometric data in the Crime and Security Act 2010. The case of Secretary of State for the Home Department v AF & Others [2008] EWCA Civ 1148b concluded that Prevention of Terrorism Act 2005 did not grant any control order for the suspected terrorists to obey to personal searches by the law enforcement officers. The 2011 Act provides for enhanced civil liberties safeguards by setting the maximum control order period to 2 years unless the person engages in other terrorism related activities. Section 28 extends the civil rights of suspected terrorists by outlining that such individuals can appeal against revival of restriction notice40. Section 10 also demands that the Secretary of State to consult with law enforcement officers on the prospects of prosecuting an individual for terrorism related crimes. Section 19 to 22 of the TPIM Act 2011 extends the civil liberties safeguards through requiring the Secretary of State to continuously assess the operation of the Act and also report to the UK parliament on a quarterly basis regarding the exercise of the powers granted by the Act. The operative orders of TPIM Act must expire after five years unless an order makes a renewal of such powers41. The continuous and lengthy curfews by the intelligence gathering officers have been replaced with flexible overnight residence and suspected terrorists can move from one part of the country to the other without restrictions42. The Regulation of Investigatory Powers Act part 1 limits the use of communication providers’ data to only lawful purposes of the law enforcement and intelligence agencies43. Conclusion The UK terrorist legislation now allows suspected terrorists to access mobile telephones and computers with internet connection. The UK terrorism legislation is geared at countering all avenues of terrorism while adhering to the international civil liberties. The legislation has terminated the use of control orders since this was viewed as a form of coercion. The legislation caters for modern terrorism activities such as use of radioactive materials and attacks on major installations like ports. The legislation has provisions that hinder convicted terrorists foreign travel passports and that require such past terrorists to issue a notification of their location and address. The law has also reduced the number of days which suspected terrorists can be detained without trial. However, the law grants police offer added powers in requiring documents for the purpose of the investigations. Bibliography: Alexander, Y and Brenner, E. (2003). UK’s legal response to terrorism. London: Routledge. Barnett, H. (2010). Constitutional and administrative law. London: Taylor & Francis. Bassiouni, C. (2008). International criminal law. Leiden: Nijhoff Publishers. Beckman, J. (2007). Comparative legal approaches to homeland security and anti-terrorism. Burlington, VT: Ashgate. Bianchi, A. (2004). Enforcing international law norms against terrorism. Oxford: Hart. Bostedt, F. (2007). Criminal law legislation in the fight against terrorism: comparing Great Britain, Canada, Australia, New Zealand and Germany. Munich: Verlag. Conte, A. (2010). Human rights in the prevention and punishment of terrorism: commonwealth approaches: United Kingdom, Canada, Australia and New Zealand. London: Springer. Cronin, A.K. (2004). Attacking terrorism elements of a grand strategy. Washington, DC. George Town University Press. Duff, A. (2012). The constitution of the criminal law. Oxford: Oxford University Press. Duffy, H. (2005). The war on terror and the framework of international law. Cambridge: Cambridge University Press. Elagab, O and Elagab, J. (2007). International law documents relating to terrorism. London: Routledge. Fenwick, H. (2002). Civil liberties and human rights. London: Cavendish publishing. Gupta, K.R. (2002). Anti-terrorism laws: India, the United States, the United Kingdom and Israel. New Delhi: Atlantic Publishers. Home Office. (2011). CONTEST: the United Kingdom’s strategy for countering terrorism. London: Stationery Office. Hopton, D. (2009). Money laundering: a concise guide for all businesses. Burlington, VT: Ashgate. Jones, P. (2012). Public law and human rights 2012-2013. London: Routledge. Levy, J.A. (2007). Terrorism issues and developments. New York: Nova Science publications. Londras, F. (2011). Detection in the ‘war on terror’: can human rights fight back? Cambridge: Cambridge University Press. Menelik, I and Yohannes, G. (2010). Europe: the future battleground of Islamic terrorism. Munchen: Verlag. Murphy, C.C. (2012). European Union counter-terrorism law. London: Hart publishing. Ramraj, V. (2011). Global anti-terrorism law and policy. Cambridge: Cambridge University Press. Slapper, G and Kelly, D. (2012). The English legal system: 2011-2012. London: Taylor & Francis. Walker, C and Omand, D. (2008). Terrorism and the law. Oxford: Oxford University Press. Walter, C. (2004). Terrorism as a challenge for national and international law: security versus liberty? Berlin: Liberty. Wilkinson, P. (2011). Terrorism versus democracy: the liberal state response. London: Taylor & Francis. Williamson, M. (2009). Terrorism, war and international law: the legality of the use of force against Afghanistan in 2001. Burlington, VT: Ashgate. Anti-terrorism, crime and security Act 2001. Counter-terrorism Act 2008. Terrorism Act 2006. Terrorism, prevention and investigations measures Act 2011. Prevention of terrorism Act 2005. Golder v. United Kingdom (1975) 1 EHRR 524, 535-536. Halford v. UK (1997) 24 EHRR 523. Khan v United Kingdom 35394/97; ECHR 2000-V; [2000]. ECHR 194. Malone v. Met Police Commissioner (no.2) (1979) 2 All ER 620. Malone v. UK (1985) 7 EHRR 14. R.C v. Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787. S and Marper v. United Kingdom 30562/04 [2008] ECHR 1581. Secretary of State for the Home Department v AF & Others [2008] EWCA Civ 1148b. Read More