Question 1

The response to terrorism has been at a considerable cost to traditional liberties formally protected by the common law, the ECHR and the Human Rights Act …

(Bradley and Ewing, Constitutional and Administrative Law)

Discuss.

Answer guidance

This is a discussion question on human rights, which draws attention to a recently controversial area. When threatened with problems like terrorism, most governments consider it necessary to alter the normal legal rules on how suspected criminals are treated. This can bring the courts into conflict with the government or Executive. Judges may not agree with the legal changes and may feel that they unnecessarily threaten human rights or the liberties of the individual.

There has been a lot of legislation on terrorism. In a relatively short essay for an examination, it would be difficult to cover it all. You should not just repeat information but should try to criticise and analyse. It would pay to be selective and just to look at the legislation that you consider most significant. Back this up with the most important cases. For example, you might cover the following areas.

“Terrorism” is defined in section 1 of the Terrorism Act 2000. It is broadly defined as violence against the person or property for a political, religious, racial or ideological cause. The terrorist acts can be directed against a state other than the UK, if the UK government deems it a terrorist threat: Secretary of State for the Home Department v Rehman [2001] UKHL 47. It is no excuse if the actions are directed against a tyrannical or undemocratic regime: R v F [2007] EWCA Crim 243. Publicising or glorifying terrorist attacks on British forces abroad is also included: R v Gul [2013] UKSC 64. The Act has been much amended since that date and the definition of terrorism has been criticised as being too wide and maybe restricting free speech.

The right to life is protected under Article 2 of the European Convention on Human Rights. The shooting of terrorists was not justified in McGann, Farrell and Savage v UK (1995) 21 EHRR 97, as it could not be shown to be “absolutely necessary” The terrorists were not carrying a bomb and could have been arrested.

Torture and inhuman treatment are outlawed by Article 3. Both the European Court of Human Rights, in Ireland v UK (1978) 2 EHRR 25 and the House of Lords in A v Home Secretary (No 2) [2006] 2 AC 221, have agreed that suspicion of terrorism does not justify torturing a suspect. Yet allegations from the British occupation of Iraq indicate that ill treatment of suspects still continues: R (Al Skeini) v Secretary of State for Defence UKHL 26.  Nor is permissible to deport a suspected terrorist to a country where they might face torture: Chahal v UK (1997) 23 EHRR 413. When terrorist suspects are deported, they must be guaranteed a fair trial (Article 6) in the country to which they are sent: Othman v Home Secretary [2013] EWCA Civ 277.

Detention without trial, for suspected terrorists, is only permissible for a short time and must be judicially authorised: Brogan v UK (1998) 11 EHRR 117. The House of Lords agreed that this was a breach of the right to liberty under Article 5: A v Home Secretary (No 1) [2005] 2 AC 68.

Detention without trial was replaced by ‘control orders’, a kind of house arrest, where an unconvicted suspect’s movements and contacts were severely restricted. These orders were condemned under Article 5 by the Supreme Court: Home Secretary v AP (Nos. 1 & 2) [2010] UKSC 24 & 26. They also fell foul of Article 6, the right to a fair trial, as the suspect was not told the full case against them: Home Secretary v MB & AF [2008] 1 AC 440. The security services argue that they cannot reveal all the evidence, because to do so would reveal how they know this. Closed trial procedures have been devised to allow an independent lawyer, the special advocate, to see this evidence, but doubts remain about the fairness of this system: A & Others v UK European Court of Human Rights Grand Chamber (2009) Appln. No. 3455/05.

Under section 3 of the Terrorism Act 2000, the Secretary of State can make it illegal to be a member of any terrorist organisation that he designates. This could potentially infringe Article 11, Freedom of Association, but the courts are willing to overrule the decisions of the minister, where they decided that an organisation was political, not terrorist: Alton v Secretary of State for the Home Department [2008] 1 WLR 2341.

Even in a situation of terrorist threat, arrest and search is only permitted if there is reasonable suspicion: Gillan v UK (2010) 50 EHRR 45. Access to a solicitor is a common law right, as well as being guaranteed under Article 6. Delayed access to legal advice has been repeatedly condemned by the European Court of Human Rights in cases such as Averill v UK (2001) 31 EHRR 839 and Brennan v UK (2002) 34 EHRR 507.

Lastly parts of the European Convention on Human Rights can be suspended under Article 15 if there is a “public emergency threatening the life of a nation”, but the courts will decide whether the suspension, and the actions taken under it, are justified: A v Home Secretary (No 1) [2005] 2 AC 68 and Ireland v UK (1978) 2 EHRR 25. In conclusion, we could say that, although the courts are mindful of the government’s need to control terrorism, they do try to uphold basic human rights.

Question 2

What effect has the European Convention of Human Rights had upon the protection of human rights in English law?

Discuss.

Answer guidance

The Human Rights Act was enacted in 1998, coming into force in 2000. It allowed the rights protected by the European Convention on Human Rights to be more easily enforced in UK courts. This country already had a long-established tradition of civil liberties. People were permitted to do whatever was not expressly forbidden by the law. Some of these liberties have later become viewed as rights which, after all, can be traced right back to Magna Carta 1215. The United Kingdom had been a party to the Convention since its beginning and played a prominent role in its drafting, in 1951, and the judgments of the European Court of Human Rights had already had a considerable effect upon English law. Not only had legislation been required, but the courts had adapted the common law to reflect the Convention. The Human Rights Act 1998 just made this process easier. The problem with writing an essay like this is that there are so many possible examples, so you need to be selective. It is not possible to include everything. I have chosen examples that interest me, but you could choose examples from the course that you have studied.

Corporal punishment in schools was abolished, because of rulings by the European Court of Human Rights: Tyrer v United Kingdom (1978) 2 EHHR 1 and Campbell and Cosans v United Kingdom (1982) 4 EHRR 293

Discrimination against homosexuals has been eliminated, prompted by rulings from the European Court of Human Rights such as Dudgeon v United Kingdom (1981) 4 EHRR 149 and Lustig-Prean and Becket v United Kingdom (2000) 29 EHRR 548. The UK was forced to accept the rights of transsexuals after the successful case of Goodwin v UK (2002) 35 EHRR 18 and the law was changed in the Gender Recognition Act 2004. The English courts were even persuaded to recognize same-sex partnerships in Ghaidan v Godin-Mendoza [2004] 2 AC 557, before they were regulated by law in the Civil Partnerships Act 2004 and the Marriage Act 2013.

Interference with communications by the police and security services is now regulated by the Regulation of Investigatory Powers Act 2000, because of ECHR cases, enforcing Article 8, such as Malone v UK (1984) 7 EHRR 14, Khan v United Kingdom (2001) 31 EHRR 1016.

Release from prison is now decided by the courts rather than politicians. This used to be a problem for prisoners serving life sentences. R v Home Secretary ex parte Venables and Thompson [1998] AC 407 was a famous case involving child murderers and the same approach was extended to adult life prisoners in R (Anderson) v Home Secretary [2002] 4 All ER 1089. Prisoners’ rights have been vastly improved by a whole series of of cases ranging from early cases involving access to lawyers and interference with correspondence such as Golder v UK (1975) 1 EHRR 524 and Silver v UK (1981) 3 EHRR 475 to post Human Rights Act cases involving cell searches in R v Home Secretary ex parte Simms [2000] AC 115 and R v Home Secretary ex parte Doody [1993] 3 WLR 154, concerning prison discipline. However, despite losing a case before the Grand Chamber, UK governments have refused to give prisoners the right to vote: Hirst v UK (No 2) (2006) 42 EHRR 41.

Coroners investigate causes of death. The adequacy of this system has been improved as the courts have taken into account human rights considerations. R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 applied to a prisoner murdered by a fellow inmate in the UK. More controversially this also applied to deaths outside the UK, such as in Iraq: R (Al Skeini) v Secretary of State for Defence [2006] HRLR 7.

The rights of asylum seekers are better protected following case such as Chahal v UK (1997) 23 EHRR 413. They cannot be sent back to a country to face torture or inhuman and degrading treatment: Soering v UK (1989) 11 EHRR 439.

The Human Rights Act 1998 has made UK judges more conscious of rights and led them to insist that there are rights embedded in the common law irrespective of, or in addition to, the European Convention on Human Rights. This led the Supreme Court to strike down fee increases for employment tribunals in R (Unison) v Lord Chancellor [2017] UKSC 51, as there was a constitutional right of access to the courts.

Unfortunately, the Human Rights Act can only be enforced against a “public authority” (s.6), which has been quite restrictively defined in YL v Birmingham City Council [2008] 1 AC 95. The courts, however, have been one step ahead and have allowed the enforcement of Article 8 privacy rights against powerful media organisations: Campbell v Mirror Group Newspapers [2004] 2 AC 457.

The courts are, however, wary of going too far in trespassing on the right of Parliament to legislate in the public interest. Although there have been many cases, the courts have refused to legalise euthanasia: R (Nicklinson) v Ministry of Justice [2014] UKSC 38.

Question 3

The government are alarmed by the activities of the Grey Party. A leading government minister has been assassinated and bombs have been exploded in various government offices. The Grey Party has not claimed responsibility for these acts, but the government blames them. Parliament enacts a Suppression of Terrorism Act which makes the Grey Party an illegal organisation; members of it subject to arrest and detention; possession of Grey Party literature a criminal offence and allows the police to intercept the communications of suspected members.

The police intercept Joanna's telephone calls, because they suspect that she is a leading member of the Grey Party. Her house is searched, and Grey Party literature is found. She is detained without trial and interrogated by intelligence officers. Joanna is deprived of sleep, fed a restricted diet and not allowed to sit down while being questioned. Joanna is not allowed any letters in or out and she is not permitted to contact her family, friends or lawyer.

Advise Joanna upon whether her human rights have been infringed.

Answer guidance

It is unlikely that so much would happen to one unfortunate person, but the idea of this question is to acquaint you with the different Convention rights and the case law that determines what those rights mean.

Restrictions upon a political party would be a breach of Article 11. the right to freedom of association, unless the government had proof that the Grey Party actually was a terrorist organisation and a threat to national security: Brannigan and Mc Bride v UK (1994) 17 EHRR 539. The court would have to be satisfied that the Grey Party actually engaged in or promoted violent actions. The judges would not just accept the government’s word, but would look at the evidence: Alton v Secretary of State for the Home Department [2008] 1 WLR 2341.

Telephone tapping is strictly controlled under Article 8. There would have to be justification for it and there would have to be judicial authorisation: Malone v UK (1984) 7 EHRR 14 and Halford v UK (1989) 24 EHRR 523.  Search of her house and seizure of her property would be similarly controlled under the same Article: Chappell v UK (1990) 12 EHRR 1.

Detention without trial is clearly unacceptable under Article 5, unless it is for a short period and subject to judicial authorisation: Brogan v UK (1988) 11 EHRR 117 and A v Home Secretary (No 1) [2005] 2 AC 68.

Joanna seems to have been subjected to “inhuman and degrading treatment or punishment”, during her detention, which is not acceptable under Article 3: Ireland v UK (1978) 2 EHRR 25 and Soering v UK (1989) 11 EHRR 439.

Even prisoners legally sentenced and detained are allowed to contact the outside world and their lawyers, so Joanna should certainly be permitted to do so: Golder v UK (1975) 1 EHRR 524 and Silver v UK (1981) 3 EHRR 35. Access to the courts is part of the right to a fair trial under Article 6.

There is no evidence in our problem that the UK has used the derogation procedure under Article 15 to suspend parts of the ECHR because of the violent situation, but even if they had, it would still not be permissible to treat Joanna in this way: Ireland v UK (1978) 2 EHRR 25. It is not possible to suspend Article 3, but even with the other Articles it is not acceptable to abandon all human rights protection. The government would have to prove to the court that there really was “a public emergency threatening the life of the nation” and that the measures taken were proportionate: A v Home Secretary (No 1) [2005] 2 AC 68.

Joanna could bring a case against the relevant government minister, probably the Home Secretary, as they are a “public authority” under section 6 of the Human Rights Act 1998. If she did not gain satisfaction in the UK courts, she could take her case to the European Court of Human Rights.