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The detention of suspected terrorists in the British Islands

Published online by Cambridge University Press:  02 January 2018

Clive Walker
Clive Walker*
Affiliation:
Centre for Criminal Justice Studies, University of Leeds
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Extract

Ever since November 1974, when the Home Secretary, Roy Jenkins, announced his ‘Draconian’ Prevention of Terrorism Bill, strong emotions have been aroused by the legislation. On the one hand, ardent supporters claim that the Acts have been ‘increasingly useful and necessary for the police’ and ‘the most powerful weapon in our counter-terrorist armoury’. On the other hand, there have been strident critics who not only denounce the Acts as a ‘flagrant violation of basic civil liberties’ but also support ‘the struggle against British imperialism [even if it] inflicts violence on citizens and can have tragic consequence’. This clash of opinions has persisted during the most recent re-enactment of the legislation in Parliamentary session 1988–89.

Type
Research Article
Information
Legal Studies , Volume 12 , Issue 2 , July 1992 , pp. 178 - 194
Copyright
Copyright © Society of Legal Scholars 1992

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References

1. HC Debs, vol 882, col 35, 25 November 1974. For a full commentary on the Act, see Walker, C., The Prevention of Terrorism in British Law (2nd edn, 1992).

2. Wilkinson, P., ‘British policy on terrorism’ in Lodge, J. (ed) The Threat of Terrorism (1988) p 44.Google Scholar

3. Memorandum by the Metropolitan Police Special Branch in HL Select Committee on the European Communities, ‘1992: Border Control of People’ (1988–89) HL 90, p 172.

4. Irish Freedom Movement, The Irish War (3rd edn, 1987) pp 178, 208.Google ScholarPubMed

5. HC Debs, vol 145, cols 692–742, 23 January 1989.

6. See Ireland v UK, Appl no 5310/71, Judgment of court Ser A, No 25, para 196; Brogan v UK, Appl nos 11209, 11234, 11266/84, 11386/85, Judgment of court Ser A, No 145–B, para 5; Finnie, W., ‘The Prevention of Terrorism Act and the European Court of Human Rights. (1989) 52 MLR 703 at p 706.Google Scholar

7. SI No 1341.

8. R v Officer in charge of Police Office, Castlereagh, ex p Lynch [1980] NI 126 at 131. Such invocations of s 14 would now be contrary to Home Office advice: Circular 27/1989 paras 4.5, 4.12.

9. Ex p. Lynch, loc cit; Brae v Chief Constable RUC (1991) 4 BNIL n 142. Compare Finnie, W., ‘Right of persons detained under the anti-terrorist legislation’ (1982) 45 MLR 215 at pp 218–219Google Scholar; Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (Cmnd 9222, 1984) para 287. The same arguments do not apply to arrests under s 14(l)(a): Forbes v HM Advocate 1990 SCCR 69.

10. The comparison is even more invidious in Scotland; see: Criminal Justice (Scotland) Act 1980s 2.

11. See HM Advocate v Copeland 1987 SCCR 232; HM Advocate v Robertson 1988 3 CL n 638; R v Harper [1990] 4 NIJB 75; Home Office Circular, loc cit para 4.10.

12. The courts are prepared to check whether continued detention is serving any legitimate purpose but readily accept that a recalcitrant detainee might eventually ‘crack’ or that new lines of inquiry might later arise: Brady v Chief Constable, RUG, loc cit.

13. Home Office Circular, loc cit para 4.11.

14. See R v Howell [1987] 5 NIJB 10; R v Mullen [1988] 10 NIJB 36.

15. Loc cit.

16. Ibid, paras 59, 61, 62. See: Livingstone, S., ‘A week is a long time in detention’ (1989) 40 NILQ 288 Google Scholar; Trechsel, S., ‘The right of liberty and security of the person’ (1980) 1 HRLJ 88 at p 131 Google Scholar; Van Dijk, P. and Van Hoof, G.J.H., Theory and Practice of the European Convention on Human Rights (2nd edn, 1990) pp 274–276.Google Scholar

17. Mc Connell v UK, Appl no 1467/189.

18. HC Debs Standing Comm B, col 17, 13 December 1988.

19. Report on the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1984 (Cm 264, 1987) paras 4.1.4, 5.1.2.

20. Brogan v UK, loc cit, para 56.

21. Sources: Home Office; Northern Ireland Office.

22. HC Debs vol 160, col 210 wa 14 November 1989, Mr Waddington. See also Livingstone, S., loc cit, pp 297, 298Google Scholar.

23. Ministerial remarks about solicitors in Northern Ireland being sympathetic to paramilitary groups are widely interpreted as having encourged the murder of Pat Finucane: O'Connor, R., ‘Lawyers and “the troubles”’ (1989) 133 SJ 238 Google Scholar; Bindman, G., ‘Lawyers under pressure in Northern Ireland’ (1989) 9 Socialist Lawyer 12 Google Scholar.

24. DH (1989) 1 (Def) 10–14.

25. Appl nos 14555, 14556/89 (held admissible by the Commission in 1991).

26. Appl nos 15096–1 5098/89.

27. See Bonner, D., ‘Combating terrorism in the 1990s’ (1989) PL 440 at pp 448–450Google Scholar; Chowdhury, S.R., Rule of Low in a S& of Emergency (1989) p 25.Google Scholar

28. But there was no complaint to this effect in Ireland v UK, loc cit, even though the notice of derogation in respect of Northern Ireland had been lodged in 1969. That period of derogation lasted until 1984.

29. Compare Livingstone, S., loc cit, pp 300–301 Google Scholar; Chowdhury, S.R., op cit, pp 26, 41Google Scholar; Van Dijk, P., and Van Hoof, G.J.H., op cit, p 558 Google Scholar.

30. Brogan v UK, loc cit, para 61.

31. Brannigan and McBride v UK, loc cit, Report adopted 3 December 1991.

32. Loc cit, paras 5.3.2, 5.3.4. Viscount Colville's Report on the Operation in 1990 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (1991, para 5.7) expresses concern about the effectiveness of police reviews in Northern Ireland.

33. Section 40/art 41.

34. Police and Criminal Evidence Act 1984, ss 56, 58; Northern Ireland (Emergency Provisions) Act 1991, ss 44, 45.

35. See Northern Office Guide to the Emergency Powers (1990) Pt IV, paras 5–9. The Guide might be replaced by a Code of Practice in relation to detainees under s 14 Northern Ireland (Emergency Provisions) Act 1991, s 64.

36. HC Debs, vol 193, cols 508–509 20 June 1991.

37. See Viscount Colville's Report on the Operation in 1990 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (1991) para 6.5.

38. HC Debs, vol 180, col 33 8 November 1990.

39. HC Debs, vol 168, col 821 6 March 1990, Mr Waddington.

40. HL Debs, vol 460, col 745 21 February 1985, Lord Elton. Interviewing officers are less at risk since they need identify themselves only by warrant number: Police and Criminal Evidence Act, Code C, paras 2.2, 2.6, 11.6, 12.6; Northern Ireland Office Guide, Pt IV, para 6.

41. See Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland (Cmnd 7497, 1979) paras 199–201; Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 (Cmnd 8803, 1983) para 107; Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (Cmnd 9222,1984) paras 308–309, Review of the Operation of the Northern Ireland (Emergency Provisions) Acts 1978–87 (Cm I 115, 1990) paras 4.5–4.8; Standing Advisory Commission on Human Rights, 14th Report (198849 HC 394) chap 6, para 55.

42. R v Richardson (1989) Times, 20 October 1989; G. Conlon, Proved Innocent (1990); P. Hill and R. Bennett, Stolen Years (1990).

43. HC Debs, vol 168, col 273 wa 1 March 1990. The detainee has no veto over recording, and contemporaneous note-taking continues in tandem: Home Office Notes for Guidance (1990)

44. Home Office, Memorandum to the Royal Commission on Criminal Justice (1991) Annex 1A, para 10.

45. Compare Standing Advisory Committee on Human Rights, 16th Report (1990-91 HC 488) Annex D; HL Debs, vol 528, cols 141–1428 13 May 1991.

46. See Walker, C., The Prevention of Terrorism in British Law (1st ed, 1986) p 172.Google Scholar The power of the UK Parliament to legislate for the Islands is considered in Bios, F. de L., ‘Parliamentary supremacy in the Channel Is’ (1983) PL 385 Google Scholar; ‘Jersey: constitutional stutus’ (1986) 12 CLB 556.

47. Ibid (2nd edn, 1992) chap 4.

48. Ibid, chap 7.

49. See the cases reported at 1984–86 MLR 116, 159, 381; 1987–89 MLR 126, 146, 170, See also: Agip (Africa) Ltd v Jackson [1991] 3 WLR 116.

50. 1984 SI Nos 860, 1165, 1166.

51. Law Drafting Programme, 12 June 1990. Legislation is still awaited at the time of writing (February 1992).

52. See 1990 SI No 2296.

53. See Walker, C., Prevention of Terrorism in British Law (2nd edn, 1992) chap 10 for a fuller description.

54. See Loveridge, J., The Constitution and the Law of Guernsey (1975).

55. Section 12(4).

56. See 1984 SI Nos 1165, 1166. The Attorney General is not an elected member of the Assembly of the States but may speak in debates.

57. (1990) para 4.4.

58. Appl no 7710/76, Judgment ofcourt Ser A, vol 34.

59. Ibid, para 3 1.

60. Ibid, paras 34, 35.

61. Ibid, para 28.

62. See Perrot, R., Institutions Judiciares (2nd edn, 1986) paras 279–290; Vogel, R., A Guide to the French Criminal Justice System (1989) pp 21–23 Google Scholar; Pradel, R., Penal Droit (Vol 11) (5th edn, 1990) pp 107–117 Google Scholar. One may infer that Juges d'Instruction almost certainly qualify on these grounds.

63. Appl nos 8805/79, 8806/79, 9242/81, Judgment of court Ser A. vol 77. See also Van der Sluiys, Zuiderveld and Klappe v Netherlands, Appl nos 9362, 9363, 9387/81. Judgment of Court Ser A, vol78; Duinhof and Duijt v Netherlands, Appl nos 9626/8 1, 9736/82, Judgment of Court Ser A, vol 92; D v Netherlands, Appl no 11013/84, DR 42 p 241; Koster v Netherlands, Appl no 12843/87.

64. Loc cit, para 49.

65. Appl no 10208/82, Judgment of court Ser A, vol 135. See also Appl no 10208/82, DR 43 p 19.

66. Ibid, para 38.

67. Appl no 12794/87, Judgment of Court Ser A, vol 188.

68. Ibid, para 43.

69. Appl no 8485/79, DR 22 p 131.

70. Ibid at p 134.

71. Appl nos 9863/82, 10924/84, DR 39 p 93. This rather sensitive case (the applicant was accused of spying for the GDR) was later referred to the Committee of Ministers which declined to take further action: Res DH (88) 12.

72. See Edwards, J. LI. J., The Attorney General, Politics and the Public Interest (1984) chap 11; Hogan, G., and Walker, C., Political Violence and the Law in Ireland (1989) p vi Google Scholar.

73. This condition proved equally unattainable in Skoogstrom v Sweden, Appl no 8582179, Judgment of Court Ser A, vol83.

74. See 1990 SI no 2151.

75. For a full description, see Walker, C., The Prevention of Terrorism in British Law (2nd edn. 1992) chap 10.

76. House of Keys Debs K1108-1109 13 March 1990.

77. Ibid, at K1108.

78. Legislative Council Debs C3128 1 May 1990, Mr Cain.

79. See 1984 SI No 860.

80. Government Circular, 324/91.

81. Ibid, para 3.1.

82. Ibid, para 5.2.

83. 1990 Act, s 13(8). Compare Prevention of Terrorism (Temporary Provisions) Act 1989, s 15; Northern Ireland (Emergency Provisions) Act 1991, s 46.

84. See Loi ayant rapport a la Police Salarice pour l'lle entiere 1920 (Guernsey); Police Force (Jersey) Law 1974; Police (Isle of Man) Act 1962.

85. See Tyrer v UK, Appl no 5856/72, Judgment ofcourt Ser A, vol 26; Teare v O'Callaghan (1982) 4 EHRR 232; Ghandi, S, “Birching in the Isle of Man” (1983) 46 MLR 513 Google Scholar. In relation to Guernsey, see Gillow v UK, Appl no 9063/80, Judgment of court Ser A, vol 109; Robilliard, St J., ‘Does one have the right to live in one's own property?‘ (1978) Conv 363. The Convention has been applied under art 63 to the Islands since 1953 (see (1955-57) I YBEC pp 46-47), but the right of individual petition (art 25) from the Isle of Man was withdrawn in 1981 because the Manx government claimed to be considering domestic rights legislation: HC Debs vol 1, col 98 wa 18 March 1981, Mr Mayhew; (1981) 24 YBEC p 14. Otherwise, no concession is to be made to the Islands' quasi-colonial status: Tyrer u UK, loc cit, para 38.

86. There have been no recorded deaths, injuries or explosions. A police Special Branch was formed in the Isle of Man only in 1988: Isle of Man Constabulary, Annual Report 1990 (1991) p 23.

87. Arrests under special powers up to 1 November 1982 totalled 38 in the Isle of Man, 15 in Guernsey and 4 in Jersey: Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976, loc cit, Annex D III. Arrests in the UK to 31 December 1982 totalled 3875: Home Office and Northern Ireland Office.

88. However, this option may entail problems in terms of the establishment of reasonable suspicion on the re-arrest (see Walker, C.P., ‘Arrest and rearrest’ (1984) 35 NILQ 1), slip ups in the observance of the formalities of re-arrest and the loss of interrogation opportunities because of the exigencies of travel arrangements (see Police and Criminal Evidence Act 1984, s 41(2)(b); Police and Criminal Evidence (Northern Ireland) Order 1989, Art 42(2) (a)).

89. The workload is more likely to be a problem in Northern Ireland than Great Britain. Between 1984 and 1990, there was an annual average of 508 cases in which the detention period was extended in Northern Ireland but only 48 in Britain.

90. This concern is again weakened by the facts. Thus, 80% of all extensions to s 14 detentions in Britain between 1984 and 1990 arose out of applications concerning detainees held at just four locations: London (45%), Liverpool (7%), Stranraer (12%) and Glasgow (16%): Home Office. The vast majority of detainees in Northern Ireland are held at the Castlereagh (Belfast) and Gough Barracks (Armagh) police interrogation centres.

91. Even the government recognises the costs of resort to derogation under art 15 and was therefore prepared to withdraw the previous notice in 1984 somewhat prematurely; see: Hogan, G., and Walker, C., loc cit (1989) p 37 Google Scholar.

92. Loc cit, para 61. See also McVeigh, O'Neil and Euans u UK, Appl nos 8022, 8025,8027/77, DR 25 p 15; Klass v FRC, Appl no 5029/71, Judgment of Court Ser A, vol28..

93. See, inter alia, Standing Advisory Committee on Human Rights, The Protection of Human Rights by law in Northern Ireland (Cmnd 7009, 1977); Report of the House of Lords Select Committee on a Bill of Rights (1977–78 HL 176); Jaconelli, J., Enacting a Bill of Rights (1980) and ‘Incorporation of the European Convention on Human Rights. (1989) 59 Pol Q 343; Zander, M., A Bill of Rights? (3rd edn, 1985).

94. Royal Commission on the Constitution, Report (Cmnd 5460, 1973) para 1434.

95. Joint Evidence of Home Office and Tynwald to the Royal Commission (1970) para 6. One of the most notable clashes concerned the Isle of Man's Wireless Telegraphy Bill 1962: Report of the Joint Working Party on the Constitutional Relationship between the Isle of Man and the UK (1969) para 17.

96. Ibid, para 6.

97. The Home Office's Memoranda to the Royal Commission on Criminal Justice, loc cit, is discursive in tone rather than directory and so provides little indication as to Home Office preferences. By contrast, the Crown Prosecution Service's Submission of Evidence (1991) expresses concern about the use of the Prevention of Terrorism Act for intelligence gathering purposes and the absence of the full panoply of Police and Criminal Evidence Code protections (paras 3.6.9, 3.6.10).

98. See Hogan, G., and Walker, C., op cit, pp 123–126 Google Scholar.

99. See The Independent, 28 December 1988, p 1,29 December, p 1.

100. Ibid.

101. Ibid.

102. See: Robertson, K.G., 1992: The Security Implications (1989); Canning, D., Policing in Europe Towards 1992 (1990); Home Affairs Committee, Practical Police Cooperation in the European Communities (1989–90 HC 363) and Government Reply (Cm 1367).

103. The port controls may even be impugned under pre-1993 Community law. See Re Belgian Passport Controls [1990] 2 CMLR 492; EC Commission u Netherlands, Case No C-68,89, 30 May 1991.

104. Despite the Tunnel's status as an intra-Member State boundary, surveillance on a scale comparable to that at external frontiers is planned: H. C. Home Affairs Committee, Fire Safety and Policing of the Channel Tunnel (1991-92 HC 23).

105. See Colville Report (Cm 264, 1987) para 8.1.4.

106. See HC Debs, vol 168, col 820 6 March 1990, Mr Waddington.

107. HL Select Committee on the European Communities, loc cit, p 172.

108. Even without trade-offs, the Police Service's Evidence to the Royal Commission on Criminal Justice (1991) seeks to increase their powers. Items on the agenda in England and Wales include the compulsory taking of bodily samples (p 70) and the curtailment of the right to silence (p 223), both of which have been amended in the police's favour in Northern Ireland: Police and Criminal Evidence (Northern Ireland) Order 1989, art 53; Criminal Evidence (Northern Ireland) Order 1988. The police have also expressed interest in a more inquistorial pre-trial system which might involve, inter alia, compelling the suspect to answer questions at a formal police interview (para 2.2.1) and under judicial examination (p 40).