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“The increased measures to suppress the terrorist activities are violating the Civil Liberties. Justify for or against it.”
This dissertation examines the conflict between civil liberties and the legal efforts to prevent terrorism, particularly in the form of increased police powers. The greater the perceived threat from terrorism, the more the criminal law and powers of the police are enlarged, and with it, the potential scope of crime detection and prevention. Yet civil liberty norms, along with conventions on human rights, inevitably represent attempts to hold a line against such trends, most notably in preserving the personal liberty of citizens. Over the last few years, this potential conflict has been given further shape by an illiberal statutory basis, in the form of the Terrorism Act 2000 (TA) and the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), which have given the police powers in addition to the ‘normal’ laws relating to police powers, mainly those in Police and Criminal Evidence Act 1984 (PACE), as well as regular criminal offences.
The ATCSA was essentially a response to the attacks of 11 September 2001. These included the catastrophic attacks by hijacked aircraft on the twin towers of the World Trade Centre, New York and the Pentagon building in Washington DC, while the fourth aircraft crashed in Pennsylvania after passengers attempted to wrest control from the hijackers.<href=”#_ftn1″ name=”_ftnref1″ title=””> The loss of life was overwhelming, and combined with the nature and scale of the attacks, conduced to an analysis that terrorism has indeed developed a new strand in the current millennium into a multi-faceted threat, unbounded by instrument or location. That change was personified by the Al Qa’ida group – a movement based on loose networks across national borders rather than tightly organised cells, and a movement motivated by religious and cultural ideal rather than rooted in national self-determination or a particular political ideology.<href=”#_ftn2″ name=”_ftnref2″ title=””> It was the Al Qa’ida group on whom suspicion immediately fell, based on the identity of the 19 hijackers.<href=”#_ftn3″ name=”_ftnref3″ title=””> Further incriminating evidence was claimed by the government soon after the attack, placing the blame on Al Qa’ida and linking it closely with the Taliban regime of Afghanistan.
Another, somewhat more important, influence on the creation of the ATCSA came from the anthrax terror alerts and scares that spread across the world following 11 September, including a number of outbreaks in Florida and New York as well as in the UK at Canterbury Cathedral, schools, ITN headquarters, a tennis tournament and the Houses of Parliament. This caused much more public panic than the events of 11 September, which was seen as an isolated event, where as the anthrax scares were much more widespread, and, although very little harm was done, psychologically it was considered to be more insidious. This seemed to have led to an acceptance by the public and politicians that terrorism is a real risk and that wider police powers were required.
In contrast to these circumstances, the TA was passed to offer a new dispensation. Unlike the legislation in the past, it was intended to offer a more considered code constructed in a more principled and comprehensive fashion. It could also present itself as an all-encompassing statement of laws and so avoid the ‘incremental extension’ that occurred over the previous decades, namely the Prevention of Terrorism (Temporary Provisions) Act 1984, the Northern Ireland (Emergency Provisions Act) 1996, the Prevention of Terrorism (Additional Powers) Act 1996.
It is ironic, however, that the very Labour politicians with liberal credentials that introduced the Human Rights Act 1998 (HRA), are also those who have advocated the need for the TA and the ATCSA. This demonstrates the fragile position of civil liberties when faced with claims of terrorist threats, and to an extent explains why in the past anti-terrorism law has been the nadir of civil liberties in the UK.<href=”#_ftn4″ name=”_ftnref4″ title=””> There remains the possibility that the HRA may prove a corrective to the authoritarian tendency of such statutory schemes, particularly in relation to Article 5 of the ECHR which sets out the standards to be applied in relation to infringements of personal freedom. Indeed the enactment of the TA and the ATCSA comply with the ECHR. Furthermore, the House of Lords, in a number of cases, has indicated that in ‘reading down’ statutory provisions in order to comply with the Convention, account must be taken of the special threat posed by terrorism.<href=”#_ftn5″ name=”_ftnref5″ title=””> Whilst each case depends on its fact, the potential human right breaches that the increase of police powers in practice may lead to will be examined in the course of this dissertation.
In essence, this dissertation attempts to develop a critique of the repressive nature of the TA and the ATCSA. The dissertation begins by analysing the theoretical foundations of civil liberty and police power in a democratic society. The borderline between law and political philosophy in the area is so narrow that the influence of one on the other cannot be ignored. Accordingly, the theoretical foundations of civil liberties and police powers in a democratic society will be examined within the context of their political philosophy, whilst the substantive part of the dissertation, namely the examination of the actual increases in the powers of the police resulting from the TA and ATCSA will be of legal nature, but with a strong focus on civil liberties and human rights.
Chapter 1 analyses the position of citizens in a democratic society in terms of their right to civil liberty. Accordingly, the chapter looks at the meaning of ‘civil liberties’ and ‘human rights’; where rights derive from; the strength of a right in terms of conflict with other claims; the relationship between rights, democracy, and the rule of law; the importance of civil liberties when preventing terrorism; and finally, the relationship between civil liberties and police powers.
Chapter 2 analyses the position of the police in a democratic society in terms of the powers they possess. Accordingly, the chapter looks at the theoretical basis of police power; whether the police should have any special powers; the philosophical basis of modern policing – policing by consent; the amount of power to be given to the police; the growth of intelligence-led policing; and an overview of the Police and Criminal Evidence Act 1984.
Chapter 3 examines the extensions in the exercise of police powers recently created by the TA and the ATCSA and their resulting implications on the personal liberty of citizens, as well the possible impact that the Human Rights Act may have on them. In particular, this chapter examines the wide definition of ‘terrorism’ and its implications, such as the possibility of re-designing currently criminal activities as terrorism; the implications of the increased powers to stop and search without the requirement for officers to have reasonable suspicion of either an offence or level of involvement; the implications of the increased powers to arrest without warrant and the affects of the wide definition of ‘terrorist’, the likelihood for ‘reasonable suspicion’ to be based on either weak or virtually no evidence, and the absence of the requirement to disclose the reasons for arrest to the arrestee; the implications of the increased powers allowing for detention of up to seven days, for mere intelligence gathering; and finally, the implications of the permanence given to anti-terrorism legislation, rather than keeping such legislation as emergency and temporary, and the absence of democratic accountability and safeguards in the form of annual reviews, and scrutiny of the continuing threat. The dissertation concludes by calling for a repeal of the TA and the ATCSA, due to their unacceptable level of infringement of civil liberty norms, and suggests an alternative and more suitable method of developing long-term anti-terrorism legislation.
It is important to consider the four principles that anti-terrorism legislation ought to meet, as set out by Lord Lloyd in his review of 1996. First, legislation against terrorism should approximate as closely as possible to the ordinary criminal law and procedure. Secondly, additional statutory offences and powers may be justified, but only if they are necessary to meet the anticipated threat. They must then strike the right balance between the needs of security and the rights and liberties of the individual. Thirdly, the need for additional safeguards should be considered alongside any additional powers. Finally, the laws should comply with the UK’s obligations in international law.<href=”#_ftn6″ name=”_ftnref6″ title=””>
Of particular relevance to this dissertation is the second principle. Are the TA and ATCSA necessary to meet the anticipated threat? And if so, do they strike the right balance between the needs of security and the rights and liberties of the individual? This dissertation submits that terrorism does not necessarily pose a particular threat to liberal democratic society requiring the curtailment of the liberty of a few to protect the liberty of the many. It is important for civil libertarians to question the level of any terrorist threat and assess the type of state measures in response. Whilst the ultimate decision as to the seriousness of any threat of terrorism and the type of state response is a political one, it is nevertheless essential for democratic governments to not find themselves panicked into over-reacting, thereby generating far more substantial infringements of the rights of citizens than the terrorists group was ever able to achieve. Indeed, in the immediate aftermath of a bomb attack, civil libertarians may find it extremely difficult to persuade politicians and the media that a terrorist threat is not sufficient to justify particular measures in response. Whitty et al suggest a number of ‘limiting principles’ to challenge claims that extraordinary and repressive measures are necessary.<href=”#_ftn7″ name=”_ftnref7″ title=””> The first principle is that there must be some credibility to the threat. A second limiting principle is the need for governments to demonstrate that the threat is one which overwhelms the capacity to respond of existing law enforcement strategies and institutions. A third limiting principle is provided by the jurisprudence of international human rights institutions such as the ECtHR
Is there a credible threat?
Indeed there have been the devastating attacks of 11 September. There have also been present in the UK persons suspected of involvement in terrorism abroad, including alleged members of the organisations deemed responsible for the USA attacks, for example Khalid al Fawwaz,<href=”#_ftn8″ name=”_ftnref8″ title=””> Zacarias Moussaoui,<href=”#_ftn9″ name=”_ftnref9″ title=””> and Richard Reid,<href=”#_ftn10″ name=”_ftnref10″ title=””> and many British citizens detained in Afghanistan or Guantanamo Bay, Cuba.<href=”#_ftn11″ name=”_ftnref11″ title=””> There have also been about a dozen terrorist attacks in the rest of the world since 11 September 2001.<href=”#_ftn12″ name=”_ftnref12″ title=””>
However, relevant organisations such as Al Qa’ida have never carried out attacks in the UK, and the number of arrests since 11 September 2001 has been very modest, and many resulted in quick release without charge.<href=”#_ftn13″ name=”_ftnref13″ title=””> Furthermore, the House of Commons Defence Select Committee found that, ‘The position continues to be that there remains no intelligence of any specific threat to the UK at present’, though it suggested that there remains a continuing threat.<href=”#_ftn14″ name=”_ftnref14″ title=””> Even if there was such a threat towards the end of 2001, when that report was issued, whether the level of threat can be said to exist after the removal of the Taliban regime in Afghanistan, and after a thorough security trawl in the USA and Europe, must be doubted.
But even if one is convinced that there remains a credible threat, the government has not convincingly demonstrated why existing anti-terrorism legislation were insufficient to enable the police to apprehend those involved. Nor has the government sought derogation in relation to any of the provisions in the TA and the ATCSA. And even if one accepts that there is a continuing need for extensive permanent legislation against terrorism for now and for ever (discussed further at the end of chapter 3), this dissertation submits that the TA and the ATCSA do not strike the right balance between the needs of security and the rights and liberties of the individual, leading to very concerning implications on the personal liberty of citizens, which is further exacerbated by the absence of mechanisms to ensure democratic accountability, because of the failure to include safeguards in the legislation, such as their limited application, annual reviews, and scrutiny of the continuing threat.
Citizens in a democratic society – theories on civil liberties
1. The meaning of ‘civil liberties’ and ‘human rights’
The word ‘civil’ in ‘civil liberties’ is taken to refer to the way in which the liberty contributes to the relationship between the individual and the state in a civil society. Civil liberties are those which people enjoy by virtue of being citizens of a state, rather than by reason of being merely members of human society. To say that something is a civil liberty implies that (a) the liberty is particularly significant in allowing people to participate as a citizen in the functioning of the state, or (b) the liberty is particularly significant in defending the relationship between the state and its citizens. In either case, describing something as a civil liberty indicates that the state has a special obligation to protect one against interference with it, either as a matter of political morality of as a matter of law.<href=”#_ftn15″ name=”_ftnref15″ title=””>
The term ‘human rights’ may be used in two broad senses. Firstly, referring to rights which people have merely by reason of being party of a human society (the natural viewpoint), and secondly, as a legal term, referring to those rights which have been enshrined in international human right treaties, (the positive viewpoint). However, there is a large area of overlap between civil liberties and human rights, and the distinctions cannot be said to operate neatly in all situations. Thus, the line between human rights and civil liberties, if indeed there is one, is blurred.<href=”#_ftn16″ name=”_ftnref16″ title=””> For the purpose of this dissertation, however, there is probably no particular benefit in spending further time in trying to make the difference more distinct.
2. Where do rights derive from?
The liberal conception of rights, derive from the school of so called ‘social contractarians’. Locke imagined an actual social contract between individuals and the state at the setting up of civil society in which citizens, in order to secure the protection of their property, handed over certain powers (most importantly, a monopoly of coercive force) to the government in return for the guarantee of certain rights to ‘lives, liberties and states’. Locke thus introduced the idea, which is still central to liberalism today, that the overriding purpose of the State is the securing and protection of its citizen’s basic rights. Rawls’s revival and revision of the idea has given primacy to a rights-based theory. Rawls’s contractors, in the ‘original position’, adopt the ‘first principle’, stating that ‘each person is to have an equal right to the most extensive, total system of equal basic liberties compatible with a similar system of liberty for all’.<href=”#_ftn17″ name=”_ftnref17″ title=””> These basic liberties are identical with any familiar list of civil and political rights (and hence, positive rights). In essence, natural and positive rights are complementary, and somewhat interdependent, rather than in conflict.
3. The strength of a right: conflict with other claims
If a right is conceded to exist, it must next be asked what is, and should be, the nature and strength of the protection thereby given. This is because the right may come into conflict with other claims of society. In what circumstances may an individual right be overridden? Dworkin has argued that there are three general justifications for infringement, and these appear to be generally accepted by liberal thought.<href=”#_ftn18″ name=”_ftnref18″ title=””> First, there is the situation in which there is a clear competing individual claim, so that the exercise of the original right will directly infringe the competing right. The second situation is one where the values protected by the right are not at stake in this particular situation. In other words, it may be argued that most rights have a ‘core’, the invasion of which will constitute an actual overriding of the right, but they also have a ‘penumbra’ – an area in which the value the right protects is present only in a weaker form. Thus, if the core value of the right is not at stake, an invasion of the penumbra may be more readily justified. The third situation justifying infringement is one in which the exercise of a right may pose a real danger to society. In such instances, liberals insist that the danger must ultimately amount to a threat to some concrete aspect of its citizens’ well being. Dworkin’s own test is that the ‘risk to society’ justification for overriding rights is only made out if the State demonstrates ‘a clear and substantial risk’ that the right ‘will do great damage to the person or property of others’.<href=”#_ftn19″ name=”_ftnref19″ title=””>
Whilst Dworkin’s right analysis may not be the way rights and liberties are treated in the UK, it is certainly an ideal against which the reality of such rights protection can be measured. The provisions in the TA and ATCSA increasing the powers of the police in a number of areas also interfere with individual liberty and freedom of movement. Such interferences occur in the name of prevention of terrorism, as well as preservation of national security. Any interference with any aspect of an individual’s life requires the strongest justification. To use legal terminology, the burden of proof lies on those who would restrict the freedom of the individual to show that such interference is necessary. Thus, the degree to which such measures may be justified depends on the extent of their proportionality with their intended aim. This is discussed further below.
4. Rights, democracy, and the rule of law
Once freedoms are recognised (however defined) and the boundaries between the public and private spheres of life are set (so that an individual’s choice normally outranks social preferences in relation to matters lying within the private sphere), and appropriate legal rules have been made and promulgated, the doctrine of the ‘rule of law’ means that it is the job of the courts to ensure that people are able to exercise their freedoms and that the boundaries between the public and private spheres are not overstepped, particularly by the state. In the classic arena of state power – the use of powers by the police – the need to defend civil liberties by subjecting the agents of the state to rigorous accountability based on the rule of law seems obvious.
In Dicey’s view, the rule of law demands the prohibition of wide discretionary powers (including those that may be exercised by the police). It insists instead on ‘the absolute supremacy of regular law as opposed to the influence of arbitrary power (therefore excluding) the existence of … wide discretionary authority on the part of the Government.<href=”#_ftn20″ name=”_ftnref20″ title=””> The ECtHR has interpreted ‘necessary in a democratic society’ as meaning that ‘an interference corresponds to a pressing social need’, and in particular that it is ‘proportionate to the legitimate aim pursued’. The requirements to consider necessity and proportionality are highly significant, and the courts are to consider whether the interference is proportionate to the particular aim.
As Fenwick states, if a democracy readily abandons its democratic ideals, including adherence to the rule of law, in the face of terrorist activity, it lays itself open to the charge that its attachment to them was always precarious and qualified.<href=”#_ftn21″ name=”_ftnref21″ title=””> The provisions in the TA and the ATCSA indicate a willingness to abandon the rule of law in the face of terrorism despite uncertainty as to the need to adopt them. In defending the introduction of the TA, Jack Straw, the then Home Secretary, claimed that he was ‘simply protecting democracy’ and that the extensive measures were needed since ‘by its nature terrorism is designed to strike at the heart of our democratic values’. In justifying similar, of far less wide ranging, extensions of such legislation in the face of high levels of IRA activity during the 1980s, Margaret Thatcher famously said in 1988 that ‘we do sometimes have to sacrifice a little of the freedom we cherish in order to defend ourselves from those whose aim it is to destroy that freedom altogether.’ Although this is a powerful argument, it must confront the paradox that in seeking to defend democracy, counter-terrorism measures may undermine it. They may themselves strike at democratic values if they become disproportionate to the aim of protecting them.
As Tony Blair, the then Shadow Home Secretary, observed in 1993, ‘if we cravenly accept that any action by the government and entitled ‘prevention of terrorism’ must be supported in its entirety and without question we do not strengthen the fight against terrorism, we weaken it.’ Wadham (of Liberty) stresses that, ‘draconian anti-terrorist laws … have a far greater impact on human rights than they ever will on crime.’<href=”#_ftn22″ name=”_ftnref22″ title=””> In a democracy, therefore, steps taken in abandonment of such a commitment should be subject to the most rigorous tests for proportionality, namely an immediate and very serious threat should be evident; the measures adopted should be effective in combating it; and should go no further than necessary to meet it, in other words, the right (or an ‘acceptable’) balance between the needs of security and the liberties of the individual ought to be struck.
5. Civil liberties and the prevention of terrorism
It is wrong to reject the idea that civil libertarian arguments are rendered pointless or impotent in the face of terrorist threats. They still have an important role to play in this sphere. There is a significant, yet common, political hurdle faced by all civil liberties advocates: the need to justify supporting the rights of individuals who reject the legitimacy of the state and are prepared to use violence to further their aim. Terrorism provides few role models. It may, for some, provide the appearance of glamour, and at best it may offer cases of those wrongly accused of terrorism around whom wider campaigns may be mobilised, but this is still different from endorsing the actions of someone who has clearly violated the criminal law. As Whitty et al argue, civil liberty has never just required appealing victims. Curbing police powers is a standard focus of civil liberty, and often entails asserting the rights of those who have been involved in undesirable activities. It is important to note, therefore, that the concern for civil libertarians is far less with the individual defendant, and much more with the integrity of the criminal justice system and the requirement that the police remain accountable to the rule of law. It is difficult, to present ‘the terrorist’ as deprived or dysfunctional, since the dominant myth of the terrorist tends to emphasise his or her skilled, ruthless and cunning nature. Civil libertarians as well as human rights activists, can often end up being portrayed as legal fetishists who are indifferent to human suffering or as naïve humanitarians. This is often exacerbated by the frequent alliance of media organisations with state interests when national security is perceived to be threatened, and thereby results in the downplaying or ignoring of civil liberties.
Whitty et al strongly reject such a characterisation of the civil libertarian approach. They argue that civil liberties are of an immediate and practical value, in that it is important to challenge the use of arbitrary power in its own right, irrespective of the origins of the law. In this sense, the defence of civil liberty is a common cause which people sharing a variety of political perspectives might support. It is in this spirit that this dissertation shall examine the increase in police powers under the TA and the ATCSA.
6. Civil liberties and police powers
The police are in a contradictory position. They are sanctioned to protect us and are expected, and sometimes even required, to use coercion, deception and intrusion in order to achieve the goals of a safe and peaceful society. It is useful to quote Goldstein here,
‘The police, by the very nature of their function, are an anomaly in a free society … the specific form of their authority – to search, to arrest, to detain and to use force is awesome on the degree to which it can be disruptive of freedom and sudden and direct in its impact on the individual … Yet a democracy is heavily dependent upon its police … to maintain the degree of order that makes a free society possible’.
In a free society, few would disagree with the basic principle that police interference with individual freedom should be permitted only under the most necessitous circumstances. Such a principle, however, is not self-executing. And, not surprisingly, as Sowle notes, ‘general agreement usually dissolves whenever a serious attempt is made to define those situations in which the individual’s right to be let alone should give way to the state’s duty to preserve the security of the community’.<href=”#_ftn23″ name=”_ftnref23″ title=””> Holland suggests that the challenge is one of ‘balancing the increasing loss of liberty and growth of the powers of the state’.<href=”#_ftn24″ name=”_ftnref24″ title=””> The problem of reconciling the conflict between civil liberties and security against crime is difficult, particularly if one considers the difficulties facing the police force in preventing terrorism.
Indeed, certain inconvenience and some interference with the dignity and liberty of law abiding citizens may be in their interest, if this is the only way that terrorism can be prevented. But the question that is relevant to the present is how much interference. If such interference is the only way to tackle terrorism, to what extent can the interference be justified, and if so, to what extent is the interference proportional, as defined above. Any settlement of the conflict between civil liberty and security must take into account the needs of both the citizen and the police.
Police in a democratic society – theories on police power
1. The theoretical basis of police power
In examining the extent to which the extensions of police powers in the TA and the ATCSA are acceptable in our society, it is important to first focus on the political theories analysing how much power the police should enjoy in a democratic society. One view is that the police should not be regarded as a separate group with a different status from that of the ordinary citizen. This is strongly echoed in the 1929 Royal Commission on the police:
‘The police of this country have never been recognised, either by law or by tradition, as a force distinct from the general body of citizens … The principle remains that a policeman, in the view of the common law, is only a person paid to perform, as a matter of duty, acts which if he were so minded he might have done voluntarily … Indeed, a policeman possesses few powers not enjoyed by the ordinary citizen, and public opinion, has shown great jealousy of any attempts to give increased authority to the police. This attitude is due, we believe, not to any distrust of the police as a body but to an instinctive feeling that, as a matter of principle, they should have as few powers as possible which are not possessed by the ordinary citizen and that their authority should rest on the broad basis of the consent and active co-operation of law-abiding people.’
Issue may be taken with these remarks on two grounds. First, the common law reticence in this area faded significantly in the last century. Robilliard notes that modern case-law does not appear to reflect the judicial attitudes described by the Royal Commission. The common law conservatism as regards police powers has, ever since the 1960s, given way to a rather complacent leniency towards police practices. Leigh states that the emphasis on freedom is naturally an irksome restraint on the police in many cases, and that a tendency has developed to construe the rules liberally in order to allow some scope to police enquiries.<href=”#_ftn25″ name=”_ftnref25″ title=””> Whether this trend can be explained from a liberal interpretation, rather than an authoritarian one is doubtful. Second, even by 1929 a growing number of statutes singled out police officers and conferred special powers on them.<href=”#_ftn26″ name=”_ftnref26″ title=””>
The ‘classic’ view that the police should be regarded simply as a band of citizens brought together for one specific purpose has its proponents even now. Theorists of the ultra-right-wing ‘libertarian’ school of political philosophy regard the right to freedom as the basic and central right of the individual – others may interfere with the exercise of that autonomy only in order to protect their own right to freedom. In Robert Nozick’s Anarchy, State and Utopia,<href=”#_ftn27″ name=”_ftnref27″ title=””> this means that there can be no organised state based on coercion – that would be an invasion of one’s rights to freedom. So in a truly just society there would be no police force as we know it. However, individuals would be entitled to defend themselves and their property, or, if they preferred, to hire others to do it for them, but the ‘protection associations’ which would emerge could not claim any rights beyond those possessed by the people who employed them. They would have no special status.
Despite such arguments based upon an extreme emphasis on the freedom of the individual, our society has shown itself to be relatively willing to allow the police force powers going beyond those possessed by the ordinary citizen. Street explains that ‘English law recognises that a policeman needs greater powers that the rest of us’.<href=”#_ftn28″ name=”_ftnref28″ title=””> This explanation, however, leaves unanswered the central question of where such powers are needed, what they might be needed for, and their proper extent.
2. Should the police have any special powers?
The 1929 Royal Commission thought that there were ‘certain duties of a special nature which, if they are to be performed by (the police) require the grant of special powers.’ This too is a vague pronouncement, and does not address which particular duties require special powers and why. The TA marked an important new phase in the laws against terrorism. The TA establishes a more unified regime and brought about important modifications, including changes in the definition of ‘terrorism’ to which the Act applies, new powers for the police and offences. The ATCSA further increases police powers, as well as providing measures on terrorist financing, immigration procedures, and nuclear and aviation security. However, any clear framework of principle that earlier anti-terrorism legislation may have started with has disappeared under the latest Act. As already mentioned, the ATCSA had a strong political motivation, and so far as the provisions on police powers are concerned, it cannot be a concrete realisation of any particular philosophy of policing. Indeed, pressure groups, professional bodies and political influences were highly influential in the evolution of these statutes. The results may be admired by some as the manifestation of governmental flexibility, others might direct some sympathy towards the judiciary who have to interpret the many vague and wide-ranging provisions, and yet others will see the two statues as a disgrace, and not least due to the implications they have on civil liberties.
3. The philosophical basis of modern policing: policing by consent
Most of the recent discussions on the police stress the importance if retaining ‘policing by consent’. There is a strong hint of social contract in this phase. There are, for instance, echoes of Hobbes in the description of imaginary cavemen in this passage:
‘Enforcement of rules would fall to the most respected young club wielders that the older tribe members would recruit. The ‘cavemen’ enforcing the rules would have to be respected for two reasons. First, their ability to enforce rules would have to be respected in order for them to be effective. Second, they would have to be respected as impartial lest the other ‘cavemen’ come to feel that the enforcers and not the rules were important.’
Whitaker also talks of delegated power in this way. He suggests that as society grew more diverse and complex, the ordinary citizen became less inclined or willing to police his neighbour and increasingly devolved his responsibilities on to police officers.<href=”#_ftn29″ name=”_ftnref29″ title=””> But the problem of how much power might be given police officers under such an agreement remains.
4. How much power should be given to the police?
As is usual with social contract theories, there is no evidence of any actual agreement, the terms of which could be identified. Whitaker says that the criteria for any suggested new power should be: (a) will it jeopardise any man? and (b) if not, will it increase our freedom from crime? These criteria seem very widely drawn. Although it must be true that we would not trade away our freedom for a measure that would not protect us from crime, it does not follow that therefore we would accept any measure that would, merely because it would not result in the conviction of the innocent. Are these really acceptable terms of a social contract?
Rather than try to argue that citizens did at some stage enter into a real binding contract, either with each other or with the government, and then attempt to identify the terms agreed (even though there is no evidence of any such agreement), Rawls argues that the principles of fairness can be ascertained if one imagines parties contracting in utter ignorance of their own identities, talents and class. They could therefore not agree to discriminate unfairly against a particular section of society, since, for all they know, they might be members of it. This device might be helpful here. What would the parties reaching agreement in Rawls’ original position of ignorance make of Whitaker’s suggestion that the only reason for rejecting a proposed crime-combating measure, that would be effective, would be that it might jeopardise an innocent man? For instance, there are significant provisions for the increase of police powers to stop, search arrest and detain in the TA and the ATCSA which the cavemen may not tolerate. It may be that the parties to Rawls hypothetical social contract, operating in ignorance of the kind of society in which they will ultimately find themselves, would reject such increases in the powers of the police, on the grounds that if terrorism was a rare occurrence, such interference with their daily lives would be humiliating and intolerable, and if such a crime was only a threat, such restrictions on one’s freedom of action might have disastrous consequences, given one’s inability to predict when it would happen. Whilst many argue that a crime-free society is a free society, this must, however, be regarded with caution. Indeed, as Robilliard states, ‘crimes are not, by definition, necessarily the greatest interference with one’s autonomy’.
Clearly, applying Rawls’ techniques, it is still highly contentious whether some of the provisions in the TA and the ATCSA go beyond what is acceptable. Thus, although the idea of linking extended powers with terrorism, perhaps the most serious crime, has considerable intuitive appeal, it may be that devising such a system is conceptually flawed. Whether these statutes represent a genuine attempt to respect the civil liberties of individuals is open to the doubts of those who argue that the police are best served in their endeavours by rules that are wholly imprecise and ambiguous.
The issue of principle, namely, the extent to which the police should be able to restrict the freedom of the individual, has been further confused by the kind of arguments put forward in defence of the TA and the ATCSA. These have emphasised, perhaps unconvincingly, a major terrorist threat, of a level never seen in the United Kingdom. Yet, it has been argued by some that there is little evidence to support such a threat. If we were to consent to an increase in police powers, as well as interference with civil liberties, in response to a ‘terrorist threat’, it would have to be on the basis of evidence of a threat rather than mere fear.
5. The growth of intelligence-led policing
The police have been central to anti-terrorism policy throughout the UK, producing significant changes in the organisation, operational ethos of different police forces, and most notably, an increase in the powers of the police, particularly in the areas of stop, search, arrest and detention. One of the reasons for such increase in police powers is a result of the shift to intelligence-based and proactive policing methods. Such an approach has the primary aim of preventing crime, both terrorist and ordinary crime, rather than responding to events and attempting to solve the crimes after they occur. It is based on a significant investment in surveillance, placement of agents within terrorist organisations, and cultivation of informers from such organisations.<href=”#_ftn30″ name=”_ftnref30″ title=””> This ‘intelligence-led’ approach has come to the fore in anti-terrorism policing for a number of reasons. First, the significant risk to the public, if terrorist attacks are not prevented, lends a particular urgency to the need to gather advance information. Secondly, the fact that terrorist groups act in an organised way lends itself to a form of policing which seeks to gather information about all aspects of an organisation. Finally, and most relevant to the present discussion, legislative increases in the powers of the police to stop, search, arrest and detain facilitate the surveillance approach to policing.
One consequence of these developments has been a move away from a ‘policing by consent’ model to a security type model in certain areas of UK policing.<href=”#_ftn31″ name=”_ftnref31″ title=””> However, the nature of anti-terrorism policing carries a high risk of substantial disregard of civil liberty norms and human right, not only in terms of the police abusing their enhanced powers, but the enhanced powers themselves infringing civil liberty and human rights norms.
6. The Police and Criminal Evidence Act (PACE)
PACE contains police powers in the areas of stop, search, arrest and detention on which the TA and ATCSA build upon further. PACE had a very interesting birth with ‘the whole exercise being an impressive example of the democratic system working (which has not been evident with the passage of the TA and the ATCSA). Whilst PACE was a considerable step forward in terms of clarity and consistency of the law and of the rights of suspects, it is important to consider why PACE has suffered much criticism.
There was a strong body of opinion favouring the outright repeal of all or most stop and search powers.<href=”#_ftn32″ name=”_ftnref32″ title=””> The main objections to the proposals were (and still are) firstly, the uncertainty and difficulty of defining the reasonable suspicion standard which was and is used as the threshold requirement for most stop and searches; secondly, the reluctance of the police to be bound by the reasonable suspicion standard, in that there was and is a risk that the standard will not be used by the police universally in practice; thirdly, criticisms of the differential use of powers, in that the decisions made by the police tend not to be made even-handedly; fourthly, there is considerable doubt about the effectiveness of the powers, namely the fact that huge numbers of stops are recorded yet relatively few lead to arrests, leading to arguments that the powers represent a serious interference with people’s freedom and dignity in public places, and produce no benefit commensurate with it; finally, there is doubt over the consent given to searches, suggesting that the consent is not what one would, in medical contexts, call real or informed consent, but rather is more in the nature of passive acquiescence.
In addition to the criticism on the powers of stop and search, criticisms have also been made against the wide powers of arrest and the length of detention, yet the TA and the ATCSA, rather than responding to such criticisms, or even maintaining the level of powers in PACE, and thereby the level of criticisms resulting from PACE, instead have increased police powers far beyond those powers contained in PACE, and no doubt the resulting criticisms, as well as the implications on civil liberties, are likely to be much more damaging. This will now be examined.
Anti-terrorism legislation – the conflict between increasing police powers and civil liberties
The general need for anti-terrorism legislation can be explained at three levels. The first level concerns the powers and duties of the state. In principle, it is justifiable for liberal democracies to defend their existence and their values, even if this defence involves some limitation of rights. Each state has a duty, at least in international law, to safeguard the right to life of its citizens (as under Article 2 of the ECHR). The second level of justification is more morally grounded. This argument points to the illegitimacy of terrorism as a form of political expression, even if the political cause of the terrorist is deemed legitimate. Thirdly, there is the observation that terrorism is a specialised form of criminality which presents difficulties in terms of policing and criminal process. It therefore demands a specialist response to overcome the difficulties posed for normal detection methods and processes within criminal justice.
However, one of the hallmarks of a free society is the ability of its citizens to go about their business without the need to explain to anyone what they are doing and without the fear that they may be subject to arbitrary challenge. A person’s physical freedom may be argued to be more important than the quiet possession of their home, or the maintenance of their domestic secrets. Interference with a person’s body strikes at the heart of their individuality. Invasion of bodily integrity is regarded as a very serious offence when committed by one citizen against another. This may be said to reflect the importance that society attaches to this aspect of the individual’s existence. Thus when similar invasions are authorised on behalf of the state, such as powers of the police to stop, search, arrest and detain, they represent an invasion of personal liberty which is tolerated in the interests of the prevention and detection of crime. However, the interests in personal liberty require that such powers should be strictly regulated. The ‘freedom model’ (explained below) calls for the primacy of the individual. It calls for the police to be subject to tightly defined and rigorous control and clear, legally guaranteed safeguards for suspects, with clear remedies for abuse through the courts.<href=”#_ftn33″ name=”_ftnref33″ title=””>
This chapter will now examine the extent to which police powers under the TA and the ATCSA allow interfere with a person’s freedom of movement for the purpose of terrorism investigations, and the implications this has on civil liberty norms, the ‘freedom model’, and human rights legislation.
1. The wide definition of ‘terrorism’ and its implications
Consideration of whether the powers to stop, search, arrest and detain are justifiable will depend largely on their scope, and thereby the extent of the loss of civil liberty in tackling the problem of terrorism. In order to begin this examination, it is necessary to begin by examining the definition of ‘terrorism’ and the implications that this in itself has. Section 1 of the TA provides that ‘terrorism’ means the use of threat, ‘for the purposes of advancing a political, religious, or ideological cause’ (section 1(1)(c)), of action ‘designed to influence the government or to intimidate the public or a section of the public’ (section 1(1)(b)) which involves serious violence against any person or serious damage to property, endangers the life of any person, or ‘creates a serious risk to the health or safety of the pubic or a section of the public (section 1(2)(a-e).
The main concern is that in its potential effect the section 1(1) definition is far wider in practice than the previous one under section 20 of the Prevention of Terrorism Act 1989 (PTA), since the new legislation, unlike the PTA, allows the definition itself to determine the application of the special powers. The new definition has been extended by the addition of religious or ideological causes. More importantly, the definition no longer contains the exclusion which existed under the PTA for terrorism which is not concerned with Northern Ireland or international terrorism. Activities within Britain which are directed purely at ‘domestic’ targets and have no Irish or international connection can now be treated as ‘terrorism’. In other words, the definition will tend to allow many activities, currently criminal, to be re-designed as terrorist. The definition now expressly covers threats of serious disruption or damage to, for example, computer installations or public utilities. The definition is therefore able to catch a number of forms of public protest. Danger to property, violence or a serious risk to safety that can be described as ‘ideologically, politically, or religiously motivated’ may arise in the context of many demonstrations and other forms of public interest, including some industrial disputes. Thus there, is a clear danger that actions in connection with a broad range of political protests could come within the definition.
Whilst the government was at pains to insist that it would not use the legislation against ‘lawfully organised industrial action in connection with a legitimate trade dispute, the problem, however, is that demonstrations which begin peacefully may at times lead to damage to property, and injury to individuals, and therefore may fall within the scope of the TA. There is also the question of how section 1(2)(d) is to be interpreted. The phase ‘a serious risk to the health or safety of the public or a section of the public’ could be taken to cover quite a wide range of behaviour, and may lead to the police inappropriately using the extended terrorist power.
Section 3(1) of the TA provides: ‘For the purposes of this Act an organisation is proscribed if it is listed in Schedule 2, or if it operates under the same name as an organisation listed in that Schedule.’ The power to add to or delete groups from the Schedule is exercised under section 3(3) by the Secretary of State, by order. Under section 3(4) the power may be exercised ‘only if he believes that (the organisation) is concerned in terrorism’ and under section 3(5) it will be concerned in terrorism if it ‘(a) commits or participates in acts of terrorism, (b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism’.
In other words, groups which do not themselves fall within the section 1 definition but which are in any way ‘concerned’ in terrorism can be proscribed. The addition of the term ‘concerned in terrorism’ makes the provision wider than under the PTA. Thus, once a group can be viewed as falling within section 3(4), which is largely based on the broad section 1 definition of terrorism, it can be proscribed. There is an entirely unregulated discretion to determine which groups that satisfy the section 1 definition (or the broader definition under section 3(4)) should in fact be proscribed. Proscription has a number of consequences.
Restriction on the use of badges or uniforms as signals of support for certain organisations are intended to have the dual effect of preventing communication – by those means – of the political message associated with the organisation and of tending to minimise the impression that the organisation is supported, thereby denying reassurance to its members, lowering their morale and preventing them from arousing public support. Under section 3 of the PTA it was an offence to ‘wear any item which arouses a reasonable apprehension that a person is a member or supporter of a proscribed organisation’. This provision is reproduced in section 13 of the TA which makes it an offence to wear an item of clothing, or wear, carry or display an article, ‘in such a way or in such circumstances as to abuse reasonable suspicion (that the person in question) is a member or supporter of a proscribed organisation’. However, no element of mens rea is included. The offence can be established on the basis of proof of reasonable suspicion alone and no defence is provided.
In other words, the police may arrest someone on the basis of the reasonable suspicion, and that suspicion itself comprises the only necessary ingredient of the offence. Thus, special arrest and detention powers of the police can be used, at their discretion, if a particular person or group falls, or appears to fall, within the new definition of terrorism. Some direct action against property by animal rights or environmental activists may well fall within the definition and the Home Secretary has a discretion, subject to Parliamentary approval, to proscribe some such groups, broadening the application of section 13.
2. Stop and search: no grounds required for ‘reasonable suspicion’
The first power which a police officer might wish to resort to on the street is that of stopping and searching suspects. There is no provision in the ECHR that deals specifically with police powers of stop and search. Article 5 which deals with arrest and detention might be relevant in the rare case where a person is stopped for a sufficiently significant time for it to count as deprivation of liberty. Stone, however, points out that such powers do not generally involve sufficient deprivation of liberty to engage. Article 14 provides that the rights and freedoms of the Convention are to be secured without any discrimination on any grounds. Since allegations of discrimination, especially on grounds of race, are frequently an issue in debates on stop and search, Article 14 might be relevant to a claim of infringement of one’s Article 5 right to liberty and security of person, particularly since reasonable grounds for suspicion are not needed when stopping a person under the TA (discussed below), but, rather, ethnic characteristics are to play a part in decision making, since the Code of Practice accepts that ethnic origin may be an appropriate consideration: ‘for example, some international groups are associated with particular ethnic identities.’<href=”#_ftn34″ name=”_ftnref34″ title=””>
It is important to note that the nature of stop and search powers contained in section 1-3 of PACE have been criticised on a number of grounds, particularly by Sanders and Young. First, the main legal constraint – reasonable suspicion – is argued to be too vague to act as a standard by which such police actions can be judged. Secondly, the provisions for providing information and recording of searches are difficult to enforce. Thirdly, many stops are in formal terms done with consent, enabling the legal constraints and controls to be evaded. Fourthly, even when police do exercise discretion in accordance with the rules, the attitudes and values which underlie their suspicions influence the manner in which stop and search is conducted. Finally, the remedies for unlawful stop and search are uncertain in scope, inadequate in operation and insufficiently stringent in effect. In light of these criticisms it is odd that the powers of stop and search have actually been increased by the TA, particularly since stop and search is allowed without even the nominal requirement that there be reasonable suspicion. This will now be examined in detail.
The powers of search under the TA are contained in sections 44-47. Section 15 of the PTA, empowered a police officer to stop and search anyone who appeared to him to be liable for arrest under section 14 of the Act. This power was partially influenced by the reasonable suspicion requirement. It did not depend on the need to show reasonable suspicion, but the officer had to have reasonable grounds for suspecting the suspect was liable to arrest under section 14. These stop and search powers are broadened under section 43 of the TA, which provides: ‘A constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist’. This power is not dependent on suspicion of commission of an offence or of carrying prohibited articles, but rather on being a ‘terrorist’, the definition of terrorist is very wide and the police do not need to worry about the level of involvement of the person arrested (examined further below).
The powers of search in section 44 of the TA allow any constable in uniform to stop a vehicle in an area, or at a place specified in the authorisation, and the search the vehicle; the driver of the vehicle; a passenger in the vehicle; anything in or on the vehicle or carried by the driver or a passenger. It also extends to a pedestrian or anything carried by him in a specified area. Section 44 is the descendent of a number of additions to the PTA. The changes are expressly designed to deal with vehicle bombs and smaller devices carried by individuals by allowing chance interceptions of plans.
Section 44 is amended by schedule 7 paragraph 31 of the ATCSA to allow the British Transport Police and the Ministry of Defence Police, in certain circumstances, to specify areas or places in which for up to 28 days the relevant officers can stop and search vehicles, their occupants and pedestrians for the prevention of terrorism. It is made clear in section 45(1) that this can be a random or blanket search – it may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.
The absence of reasonable suspicion must put into question its compatibility with Article 8 of the ECHR, as well as Article 5 given that the constable may also detain for such time as is reasonably required to permit the search to be carried out, though any potential breach would need to consider the pre-conditions for exercise, the limited nature of the search and the nexus to combating terrorism. The pre-conditions for exercise include the requirement of an authorisation which may be given only if the person giving it considers it ‘expedient’ for the prevention of acts of terrorism. However, there is no need for the officer to show ‘reasonable grounds’ for his belief that the powers are needed. An authorisation, which can endure for up to 28 days under section 46 of the TA and can be renewed, may be given by a police officer for the area who is at least the rank of assistant chief constable. Section 46 requires the police to inform the Secretary of State as soon as is reasonably practicable, and, to continue, the authorisation must be confirmed within 48 hours. Though it is good in principle that there is a review of the police decision, it is, however, odd that the review is executive in nature rather than judicial, as is the reform path followed by section 41 in seeking judicial authority for an application for a warrant of further detention (discussed below).
The limited nature of the search is specified in section 45 of the TA. Searches may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and may not involve a person being required to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.
A person commits an offence under section 47 if he:
(a) fails to stop a vehicle when required to do so by a constable in the exercise of the power conferred by an authorisation under section 44(1);
(b) fails to stop when required to do so by a constable in the exercise of the power conferred by an authorisation under section 44(2);
(c) wilfully obstructs a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2).
Given these further limitations in these powers, it is possible that they do not contravene the ECHR. The extensive and intrusive nature of these powers presumably felt to be justified by the threats imposed by terrorist activity, however, place considerable powers in the hands of senior police officers, with very little opportunity for supervision by the courts. As already mentioned, the only independent control of the power comes from the Home Secretary’s supervision of authorisations, which in it self seems odd. These powers, nevertheless, seem to run the risk of breaching Article 5 of the ECHR because of their lack of requirement for reasonable suspicion.
Indeed, the government attached to the TA a statement (as required by section 19 of the HRA) that it is compatible with the Convention rights. However, this must presumably be on the basis that the powers do not involve sufficient interference with personal liberty to fall within the scope of Article 5. As with the other powers of this type discussed below, this might well be an issue which a person affected by these powers may wish to challenge.
Sanders and Young stress that the result of the TA in practice means that the police will continue to primarily act according to working assumptions based on ‘suspiciousness’, as they have under PACE.<href=”#_ftn35″ name=”_ftnref35″ title=””> Under PACE, it has been argued that the police breach due process rules which are in conflict with their working assumptions whilst under a requirement of reasonable suspicion. However, under the TA, the police may be encouraged to over step the mark even further, since there is no requirement for reasonable suspicion. It is not argued that the law should be ‘firmed up’ to make it more inhibitory for the police, particularly since it would be unrealistic with the objective of preventing crimes of terrorism, but rather, it is argued that the requirement of reasonable suspicion in PACE should not be relaxed under the TA. The ‘freedom model’ articulated by Sanders and Young is very relevant to the preservation of civil liberties at the level of stop and search (as well as arrest and detention). Under this model, due process and crime control considerations are both regarded as relevant, but only when applied in a ‘context-sensitive’ manner and only in relation to the greater goal of promoting freedom. Yet under the TA the freedom of suspects is hugely violated, and may result in feelings of persecution and loss of control over one’s own life. Furthermore, a personal search in public can be a particularly embarrassing and upsetting experience. It is also a major interference with people’s right to privacy, and a relatively minor interference with the right to freedom from physical interference. Such powers of stop and search should not interfere with the liberty of individuals without any constraints or boundaries.
The fact that there is no judicial body involved in the supervision of the special stop and search powers under the TA is also very concerning. This power discards a key due process safeguard and therefore might be justified only if it is likely to have a real value in terms of curbing terrorist activity. Yet figures actually suggest that stopping and searching without reasonable suspicion leads to an extremely low level of arrests and therefore may not be the most effective use of police resources.<href=”#_ftn36″ name=”_ftnref36″ title=””> Since these powers on their face allow for stop and search