Transcript Anti-Terror Legislation and the Judicial Review Process A

Anti-Terror Legislation and
the Judicial Review
Process:
A Personal Story
Kevin Gillan
Lecture Overview
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The Terrorism Act 2000
The Facts of the Case
The Judicial Review Process
Lessons from the Judicial Review:
 The Judiciary, the Government and National
Security
 The Judiciary and the Police
 The European Convention on Human Rights
• To Strasbourg via County Court
The Terrorism Act 2000
• Definition of terrorism
 Serious violence, endangering health or
safety, interference with electronic systems
 For purpose of advancing a cause
 To influence government or threaten public
 OR any action to the benefit of a ‘proscribed
organisation’
• Could this definition be read to include
non-terrorist activity?
The Terrorism Act 2000
• Sections 44-47 define exceptional stop and
search powers. Three stages to using powers:
 Authorisation: “may be given only if … expedient for the
prevention of acts of terrorism”
 Confirmation by Home Office within 48 hours
 Search by police officer “for the purpose of search for
articles which could be used in connection with
terrorism” - section 45(1)(a)
 And, “whether or not the constable has grounds for
suspecting the presence of articles of that kind” - section
45(1)(b)
The Facts of the Case
• (Trying to) protest against DSEi
• Stop and search:
 The rational - lots of protests
 Confiscation of papers
 Pressure to give personal details
• Why take this through court?
 Chance meeting with Liberty
 Raising questions
 Testing new legislation
Overview of Judicial Review
• Purpose: examine law or action by authorities
• Strongest remedy: declaration of incompatibility
• Timeline:
 September 2003 - Stopped and searched at DSEi
 October 2003 - Hearing at High Court of Justice
• Lost with leave to appeal
 July 2004 - Court of Appeal
• Lost with no automatic leave to appeal
 October 2004 - Petitioned House of Lords for appeal
 January 2006 - Hearing in House of Lords
 March 2006 - Judgment handed down (lost)
Key Issues
“the claims of the
appellants … raise
issues of importance
as to the role of the
courts when
proceedings for judicial
review involve issues
of national security and
the extent of the
powers of the police”
(Appeal Court Judgment)
The Royal Courts of
Justice
Judiciary and the State
• ‘Expedient’ - ‘advantageous’ or ‘necessary’?
• Our argument: principle of legality requires
precise language to override fundamental rights
• Did High Court defer to expertise of authorities in
allowing rolling system of authorisations as
‘expedient’?
• “There is no question of this Court showing
deference … because of the subject matter”
• But how does the court assess whether
particular authorisation is justified? ….
Limits on the Judiciary
“This brings us to the general approach that the courts
should adopt when reviewing the exercise of a power
which is provided by Parliament for the prevention of
terrorism. Possible terrorist activities create unusual
difficulties for the authorities ... For this reason, the
courts will not readily interfere with the judgement of
the authorities as to the action that is necessary.”
(Court of Appeal judgment)
“it would in my opinion be impossible to regard a proper
exercise of the power ... as other than proportionate
when seeking to counter the great danger of terrorism”
(House of Lords judgment)
Judiciary and the State
• So, judiciary deference to state in context of
national security.
• But, c.f. Belmarsh Case (detention without trial):
“one of the first times that the courts … have dealt
such a body blow to legislation enacted by
Parliament … to meet a threat to national security”
(Rt Hon Lady Justice Mary Arden)
• But: “the real threat to the life of the nation …
comes not from terrorism but from laws such as
these. That is the true measure of what terrorism
may achieve” (Lord Hoffman)
• Conclusion: ‘separation of powers’ complicated uncertain future.
Judiciary and the Police
• “It is now well established that the courts have power to
examine the way in which public servants like the police use
discretionary powers… The wider the power, and the more it
impinges on personal liberty, the more anxious the court will
be to ensure that it is used to achieve the purpose for which
it was granted” (High Court judgment)
• But, great usefulness of s44 for general policing.
• Danger of discrimination and informal systematic abuse
(e.g. against Muslims or against demonstrators).
• Problem 1: judicial review focused at individual case level,
therefore blind to systematic abuse.
• Problem 2: s45(1)(b) expressly removes burden from officer
to rationalise stop - so what can court test?
European Convention on Human
Rights
• The articles we claimed were relevant were:
 Article 5: “liberty and security of the person”
 Article 8: “respect for private and family life, home and
correspondence”
 Article 10: “freedom of expression, to receive and impart information
and ideas”
 Article 11: “right to freedom of peaceful assembly”
• All articles additionally share similar restrictions, provided
they are “prescribed by law and are necessary in a
democratic society in the interests of national security”
• What does this mean?
….
European Convention on Human
Rights
• To be ‘prescribed by law’ means to be accessible,
foreseeable, with adequate information “enabling members
of the public to regulate their conduct and foresee the
consequences of their actions” (Lords judgment)
• Does this apply to the Terrorism Act 2000?
“The 2000 Act informs the public that these powers are, if duly
authorised and confirmed, available... The Act and the Code
do not require the fact or the details of any authorisation to
be publicised in any way, even retrospectively, but I doubt if
they are to be regarded as ‘law’ rather than as a procedure
for bringing the law into potential effect. In any event, it
would stultify a potentially valuable source of public
protection to require notice of an authorisation or
confirmation to be publicised prospectively.” (House of
Lords Judgment)
Next Steps 1: County Court
Hearing
Central London County
Court
• Rationale: path to
Strasbourg
• A note on money.
• Remedy: damages
• Civil jury trial
• Interpretation of Act
limited by Lords
judgement
• Result: lost (again)
Next Steps 2: European Court of
Human Rights
(Photo by keepthebyte, from Flickr)