THE FIGHT AGAINST TERRORISM: EXECUTIVE AND LEGISLATIVE INITIATIVES VS THE COURTS?
Council of Europe on terrorism...
In late September, the Parliamentary Assembly of the Council of Europe advocated a reinforced pursuit of terrorism, endorsing the formation of a European Criminal Tribunal to judge such crimes. Coincident with this, the Council urged the adoption of increased European cooperation in combatting terrorism, as well as the pursuit by the Committee of Ministers of a number of proposals requiring the revision of the European Conventions on both the repression of terrorism and extradition, as well as the revision of member states' legal procedures with an apparent view towards limiting obstacles to the extradition and bringing to justice of individuals sought.
Specific Council proposals include: broadening the definition of what constitutes a terrorist offence, as well as curtailing a state's ability to refuse extradition on the grounds of such being considered a political offence by that state; selective review of procedures whereby an individual could be charged and tried for terrorist acts in countries other than that in which the alleged act occurred, as well as pursuing the adoption of an "extradite or judge" rule in member states' criminal law; exploration of possible expansion of the Europol Convention to all Council of Europe Member States and the creation of a Europol judicial control system.
... and British Government on terrorism
In keeping with these proposals, in mid-November the UK announced a measure substantively broadening police powers to pursue political, environmental, and religious activists; the measure is included in Britain's new prevention of terrorism bill. This bill replaces the present prevention of terrorism act as well as Northern Ireland's emergency laws; it will cover foreign-based and domestic groups; it will substantively broaden the definition of terrorism.
The re-defining of terrorism is forecast to include "the use of serious violence against persons or property, or the threat to use such violence to intimidate or coerce". As the Bill may include "incitement" by foreign dissidents, there is concern that groups seeking to overthrow dictatorships, or activities such as those pursued abroad by Nelson Mandela, would be actionable under the legislation. Further, concern regarding how the Bill will impact groups like Greenpeace and animal rights groups has been expressed.
Additional measures in the Bill are expected to include: the criminalisation of computer hacking; the creation of the offence of being "connected with" terrorism (thus bypassing the prior requisite of "reasonable suspicion" in order to pursue action against an individual or group); the creation of a civil court (where a lower standard of proof is required) mechanism whereby the assets of individuals suspected of links to terrorist groups may be seized. Another bill, soon expected, would impact the surveillance of telecommunications services, providing for "bugging warrants" to name an individual, rather than an address or phone number. Also reported as being pursued is the power of "key access" to encoded communications for security and intelligence services to utilise in cases of suspected terrorist, drug trafficking, or money-laundering links.
Civil rights groups have expressed concern over how some of the proposals appear to be in conflict with the European Convention on Human Rights.
In a related development, the end of October saw British law lords warning that the Human Rights Act will substantively impact the entire legal system. Presently, the British case of three Algerians charged with terrorist offences is to be decided in the courts; however, Lord Chief Justice Bingham, in a decision earlier this year, had found that the provisions of the existing terrorism act undermined the defendants' right to be presumed innocent. The present decision to allow the case and this issue to be decided in court was taken by the law lords after they concluded that allowing Lord Bingham's decision to stop prosecution, based upon judicial review, would undercut the country's management of its criminal justice system. However, while the law lords ruled that the case's final disposition must come from arguments of the prosecution and defence in court, they concurrently noted that judges must now begin to take the Human Rights Convention into account in any proceedings before them.
The attorney for the defendants, Gareth Pierce, noted that the law lords had endorsed the defence's argument that the Human Rights Act must be considered as in force as regards the application of its provisions to the case.
The apparent divergence of perspective between the executive and legislative branches of government and the courts may well serve to substantively impact the present anti-terrorism and criminal justice initiatives being pursued.
Sources: Agence Europe, 29.09.99; The Guardian, 15.11.99, 29.10.99.