50th Anniversary Criminal Justice Conference: 'Criminal Justice, Security and Human Rights'

The panel was chaired by award winning journalist and author David Rose (The Mail on Sunday & Vanity Fair) and had an impressive line-up consisting of the Rt Hon David Davis MP, Lord Ian Blair (former Commissioner of the Metropolitan Police), Dinah Rose QC (Blackstone Chambers) and Andrew Hall QC (Bencher of Gray's Inn). The discussion focused on Britain’s domestic response to the terrorism threat following 911 and considered the tension between expansive counter-terrorism laws and fundamental human rights.

Setting the scene, Professor Zedner opened the panel with a 2014 quote from Prime Minster David Cameron made in the context of the Government’s introduction of emergency powers to permit police and security services to intercept phone and internet communications:

“We face real and credible threats to our security from serious and organised crime, from the activity of paedophiles, from the collapse of Syria, the growth of Isis in Iraq and al Shabab in East Africa. I am simply not prepared to be a prime minister who has to address the people after a terrorist incident and explain that I could have done more to prevent it."

Professor Zedner noted that it is this sort of political will and atmosphere that stands behind much of what the panellists would be discussing. She went on to argue that “every year new security measures are introduced that radically alter the very architecture of criminal law and criminal justice, alongside laws related to surveillance, communications, travel and immigration.” In this context, Professor Zedner made the challenging observation that since the London bombings of 2005 (7/7), only two people have been killed in mainland Britain by terrorists and that accordingly “there are important questions to be asked about whether the significant extension of security laws and measures introduced in Britain over the last decade can be justified and whether they satisfy the requirements of necessity and proportionality.”

Opening the panel discussion, David Rose introduced Lord Blair who was Deputy Commissioner of the Metropolitan Police during 911 (although in operational command because the Commissioner was on a flight to the US) and Commissioner during 7/7. Lord Blair, who was in COBRA (the Cabinet Office briefing room) on 911, was asked by David to describe what it was like seeing this new era dawn. Lord Blair went on to describe in compelling terms his experience “of a day that sticks in the memory”, noting that those in COBRA were genuinely and seriously shocked as the Twin Towers fell. Looking back at the sequence of events over the last 10 to 15 years Lord Blair questioned whether this is an aberration or a singularity – asking, “has something shifted”? He went on to highlight the fundamental differences between the IRA bombings and what Britain is facing now, contrasting the fact that the IRA didn’t want to die, didn’t usually cause mass casualties (issuing warnings), and that they had a negotiation position and were a very local insurrection – not a semi-worldwide movement. Lord Blair proceeded to raise three questions: (i) Are we getting the legislation broadly right? (ii) Was the attempt by the British State to handle counter-terrorism through a community-based approach right (as opposed to militarising counter-terrorism)? (iii) What happens next, particularly when the war in Syria ends and there are hundreds and hundreds of young radicalised men and women returning to Britain?

Focusing the conversation on events between 2005 and the passage of the 2006 Terrorist Act and 2008 Counter-Terrorism Act ("Terrorist Acts"), David Rose observed that 7/7 was the date that the war came home, asking Lord Blair to comment on the impact of 7/7 on Scotland Yard and within Government in respect of the change in rules leading to the Terrorist Acts. In painting the picture of what changed, Lord Blair mentioned a meeting in COBRA in Autumn 2005 where the severity of the terrorist threat facing the country was palpable and nobody knew where it was coming from. He went on to highlight the attempted bombing in 2007 of the Tiger Tiger club in London, noting that if the car bomb had detonated it may have resulted in upwards of 400 deaths, with the two would be bombers then heading to Glasgow Airport in an attempt to blow it up. Emphasising the fact that authorities didn't know where the threat was coming from, Lord Blair emphasised that the two bombers were paediatricians who were not on the radar of authorities - they were saving babies by day and building bombs by night! Responding emphatically to his own question, Lord Blair commented that something had absolutely changed post 7/7. At that time (and the time in which 90 days detention without charge was initially and controversially introduced in the 2006 Terrorist Act) the country was facing a threat it had never seen before.

Turning to David Davis MP, David Rose commented that as a Government minister, David had quickly formed the view that the way the Blair Government responded to the threat of terrorism was disproportionate. David Davis was clear in confirming this view, stating that the Government’s response was “almost insane”. Contextualising his response, David reflected on his personal experience with the IRA when in 1990 he was placed on an IRA hit list.  Over the next seven years he received the odd letter stating that he needed “to be careful”, but otherwise no physical threat manifested. The police had stated that they would do nothing, which David thought was the intelligent way to deal with this given the cost that would have been involved to protect him - essentially that it was a proportionate response by authorities in the circumstances given he was a junior minister and low priority target.  David noted that Margaret Thatcher never used the phrase “war on terror” in the context of the IRA, emphasising that they were criminals, not warriors, and that this was the right way to approach the issue. David then made the point that through the protestations of MPs we are now down to 14 days of detention without charge under the Terrorist Act, arguing that 90 days of detention would have made the problem worse, giving militants an advantage in trying to radicalise vulnerable people in the UK.

David Davis argued that the issue of surveillance is more complicated given the bulk collection of data, posing the question that even if you have the data how do you control access to it? He also emphasised that jihadists hate our system, freedoms and commitment to justice and that we are giving this very thing up and in turn giving terrorists their first victory. On this basis, David clearly takes a very different view to the Government’s response to terrorist post 7/7 than Lord Blair.

Drawing Andrew Hall QC into the debate, David Rose noted a case Andrew acted on before the 2006 Terrorist Act came into effect. Andrew set out the background to the case noting that six months prior to 7/7, three lads from Leeds travelled to London and met an individual who turned out to be one of the 7/7 bombers. In the aftermath of 7/7 the police reviewed phone records and identified that the lads had contacted one of the bombers and subsequently alleged that they had undertaken spotting of bomb targets while in London. The point of this example was that the defendants were ultimately tried before an ordinary jury, under ordinary criminal procedures, in an ordinary trial and were eventually acquitted based on weak evidence against them. In other words, the existing criminal justice system is more than capable of dealing with terrorism.

In reaction to 7/7, Andrew Hall QC lamented that we now have laws that lack coherence, rationality and legitimacy. Instead of drawing on ordinary criminal law addressing murder and conspiracy, we now have a set of laws that are extraordinarily wide in scope. He noted that s5 of the 2006 Terrorist Act casts a hugely wide net with fine mesh, catching small fish, with the result that people are being put on trial for relatively minor offences with potentially life sentences. Section 5 of the Terrorist Act provides an offence where a person undertakes any conduct in preparation for an act of terrorism. For example, if someone discusses with their mate over the internet the possibility of going to fight in Syria and the mate sends a list of clothing that he might need if he goes off to fight in Syria in the future, both of these people have committed an offence under s5 and face life sentences if a jury finds they had formed the intention at that time to go off sometime in the future to fight (ie, because they had a conversation and exchanged information). Problematically, these can be young vulnerable people sucked into the jihadist ideology and victims of online groomers, who can now (disproportionately) face life in prison.

Disturbingly, Andrew suggested that Nelson Mandela in his struggle against Apartheid would be considered a terrorist under s1 of the Terrorist Act, reflecting on a Supreme Court ruling that there is no such thing as a “noble cause terrorist”. Andrew went on to argue that if he spoke too highly about Nelson Mandela’s struggle and someone reacted by taking their own action as a consequence of Andrew’s statements, he would run the risk of committing a terrorist offence himself under s1 of the Act, which targets the encouragement of terrorism. Andrew’s underlying message was that in our post 7/7 response we have abandoned our legitimacy and handed the terrorists victory by not being able to respond to the situation in the ordinary way.

Moving away from the criminal justice process, David Rose turned to Dinah Rose QC to discuss her experience in the civil sphere. David posed the question of whether we have seen a similar erosion of the civil law with the Government’s use of secrecy. Dinah confirmed this, noting that in a criminal trial there is the basic safeguard that an accused has a right to see all the evidence against them. However, in the post-911 era the State has largely bypassed the criminal justice system and this safeguard. Dinah pointed to two examples. Firstly, non-British nationals who the State wants to deport on national security grounds can go to a Special Immigration Appeals Commission (SIAC) in which the accused is generally not present and does not see the evidence against him or her. The second example related to British nationals and Terrorism Prevention and Investigation Measures (TPIMs) where individuals are subject to controls such as confinement, curfews, electronic tagging and restrictions on access to the internet and which are again implemented on the basis of secret information that the defendant does not see.  Dinah went on to argue that one of the fundamental problems with this approach is that the security services are not infallible and there is a real risk of a serious miscarriage of justice, citing a case example she had personally come across.

Dinah argued that the notion of secret evidence has spilled out of the specialist tribunals into the civil system. This is as a result of the Government passing the 2013 Justice and Security Act under which the Government can obtain an order in any civil case to deploy closed evidence. Dinah indicated that she was not aware of a single case in which the Courts had refused an application for secrecy.

Directing a question to the panel, David Rose asked for their views on the argument that the fact there had only been two terrorist-related deaths in Britain post-7/7 means that the system must be working. David Davis retorted with the point that with the onslaught of huge amounts of data it is unlikely that security services are any more effective, and can lead to miscarriages of justice (false positives) because, for example, of the secrecy around evidence. Lord Blair made the point that we simply don’t know how effective the post-7/7 measures have been, but the response could be potentially more draconian if there was, for example, multiple Paris-style attacks occurring in the UK.

Further questions were raised with the panel, including whether there was a need to attenuate the expanded role of intelligence agencies as evidence gatherers and the need to hear intercept matters in court. In relation to evidence gathering, Dinah Rose noted that intelligence is not evidence and that the difference between the two is not appreciated by the security services while David Davis noted that intelligence is often simply gossip or is derived from blackmail or bribery. There was common agreement on the intercept point.

After some further discussion on the role of security services, questions were opened to the floor. Issues discussed included the role of special advocates before SIAC and the role of the European Court of Human Rights in surveillance and secrecy matters. Overall, the panel provided uncompromising insight into this topic, challenging the audience to question the assumptions and arguably misguided political arguments that underpin what some would consider draconian laws that undermine our civil society. This, of course, must be balanced against the lived reality of terrorism brought to life by the experiences of Lord Blair.