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1. Outline the arguments in favour and against giving state agents special powers in the context of counter-terrorism.
These refer to the assumption of the special nature of terrorist offences – that they are aimed not at personal gain but at forcing political change through terrorising the population (see Chapter 26, 26.3.8)
2. What are the main special powers in the Terrorism Act 2000?
These include proscription, increasing the powers of the police, increased powers to detain for questioning, powers to restrict the normal life of terrorism suspects, powers to freeze bank accounts, and so on (see Chapter 26, 26.1).
3. What are the main factors to be considered in ensuring that TPIMs are only imposed in ways that are compatible with the subject’s Convention rights?
A court must take into account, in particular, the impact of a TPIM on the person’s rights under Article 8. Note that Article 5 acts as a limit to what can be done under a TPIM since the statute does not authorise a minister to obtain a TPIM which requires a deprivation of liberty.
4. What Convention rights can inhibit the capacity of the Home Secretary to order the deportation of a foreign terrorist suspect?
Articles 2 and 3 (no deportation to a country where he or she is at a real risk of being killed or tortured) and Article 8 (that the person would suffer serious interference with private life in the country to which she or he is deported but also they have Article 8 rights in the UK which need to be respected and which outweigh the public interest in deportation. Article 6 prevents deportation if the person is at a real risk of being tried on the basis of torture evidence.
5. What position did the ECtHR adopt in Gillan v United Kingdom and what were its consequences for UK law?
That the safeguards to prevent arbitrary use of the power to conduct a random stop and search under the Terrorism Act 2000 were inadequate – it was an interference with Article 8 which was not in accordance with law.
6. What are ‘special counsel’ and in what situations are they significant in the counter-terrorism procedures?
Security cleared counsel who can see closed evidence against a terrorist suspect but, once they have seen the evidence, cannot take further instructions from the person. They have rights of audience before, for example, the Special Immigration Appeals Tribunal and can represent the person’s interests.
7. How has the ‘sole or decisive’ rule affected the application of counter-terrorism measures in the UK?
In the counter-terrorism context the UK courts accept that a case against, for example, a deportee or a person subject to a TPIM, cannot be wholly or mainly based on closed evidence. The core of the case, or at least an adequate gloss, must be released to the person, otherwise the case will fail. Whether this position survives the Grand Chambers somewhat more flexible approach, which allows exceptions to the rule, in the non-terrorist context (Khawaja v UK), remains to be seen.
8. What does Part 2 of the Justice and Security Act 2013 permit; how does it compare with the common law position (see Chapter 12, section 12.11.3 Disclosure and national security cases)?
It permits the Secretary of State to seek a closed hearing in a civil case involving sensitive matters (e.g. evidence involving the security services). Under common law such a closed hearing could not be contemplated (Al-Rawi) in the absence of a statutory context (Bank Mellat v The Treasury 1) – these cases are discussed in the context of the right to a fair trial, Chapter 12, 12.11.3 Disclosure and national security cases.