@TheAdjournment 
Sunday 26 May 2013
Saturday 25 May 2013
Woolwich: The Aftermath of a Terrorist Attack
The other day, we learned of the sickening events which unfolded on a street in Woolwich, a street in which members of our armed forces use regularly.
Drummer Lee Rigby, 25, was attacked and killed in the most horrific way, on his own soil, in his own country by people who were born and bred in the United kingdom.
 |
| Drummer Lee Rigby was brutally killed in Woolwich. |
The family of Lee Rigby spoke movingly yesterday of his pride as a drummer, as well as his love and dedication to his family and I pay tribute to him for the great pride which he possessed for his job, as well as the love he had for his country. My thoughts and prayers are with his family at this very difficult time.
This tragic and sickening attack has left the people of the United Kingdom rightly outraged, words cannot simply describe the devastation felt and we can only imagine what the family are going through now, but why did this happen? Why Lee Rigby? Why did this happen when it did?
This act was nothing more than a callous act of terrorism, and in expressing his outrage at this unforgivable crime, the Prime Minister David Cameron has made clear that there will forever be a refusal ever to give in to the demands of terrorists, we must go about our daily lives if we are to show the terrorist that we are never going to be intimidated.
 |
| Prime Minister David Cameron cut short his trip to Europe. |
There is however a serious issue which, identified by this, that there is islamic extremism which appears to be growing within this country, and something must be done to address it.
This extremism is not only visible through the acts of terrorism which have shaken the British people, such as the 7/7 attacks in London. But there are preachers out there, such as Qatada and Hamza, who have become a very familiar sight in the media because of the anti western views which they hold. The hatred for democracy and the United Kingdom bellows from their mouths as they attempt to convert others.
There is such a thing, legally speaking, as the freedom of speech, protected by the European Convention of Human Rights and Fundamental Freedoms and incorporated by the Human Rights Act 1998 in which people are free to criticise the government of the day, but there has to be a balance and those who incite hatred should feel the full force of the law. To those people who walk the streets and incite death to British soldiers, for example, they should be brought to justice by the police who are there to guard the protests.
There is a perception which must be addressed by the police as well as the government, the feeling amongst some British people that if these preachers of hate were to go on a protest and incite hatred, they will get away with it. That perception must change, we are a nation which encourages free speech, but there is no room for hatred of any kind. This should be reflected more by the law as opposed to rhetoric from politicians.
The Home Secretary, much to her credit, has announced that she intends to get tough on those who kill police officers. The tough legislation would see those convicted for the murder of police men and women given a life sentence with no chance of parole. I believe that the Home Secretary should extend her proposal to those serving in the British Army, the Navy and the RAF to ensure that if any of these dedicated men and women are unlawfully killed whilst they are on duty in this country, or who are killed through a motive of hate, then the convicted should face life imprisonment without parole.
The Prime Minister has asserted that there will be no knee jerk reactions, but this will be a fundamental change in the law to ensure that this can never happen again without the knowledge that the convicted can never be released from prison, I believe that justice would be served in that case.
Tuesday 21 May 2013
Law Review: The Justice and Security Bill
Attempts to uphold the
right to a fair hearing, it could be argued, is threatened by the challenge
faced by various governments to maintain national security whilst upholding the
rule of law. The United Kingdom government intends to allow ‘closed material
procedures’[1]
in order for evidence to be heard in secret. The bill seeks to amend[2] current legislation[3] relating to proceedings of
the court where the defendant must face trial by a judge and jury, which is one
of the most fundamental aspects of a fair and open hearing where justice is
seen to be done.
Another major issue with the Justice and Security Bill which
the government seeks to enact is that the Secretary of State for the Home
Department may seek to make an application to the court in order to bring about
a closed hearing. This undermines the fair operation of the civil justice
system[4] whereby evidence can be
cross-examined as well as calling evidence themselves. Surely it would be
fairer for a judge to decide whether or not there should be closed proceedings
rather than the Secretary of State. This bill[5] would cause huge
controversy if it were to allow a minister of state the power to make such a
decision. The human rights charity, Liberty, describe part 2 of the Justice and
Security Bill as ‘unnecessary and corrosive[6]’ and support the removal
of certain clauses relating to the holding of secret hearings ‘to prevent severe damage being done to the
British justice system.’[7] This proposal may,
however, not necessarily breach Article 6 of the convention as the European
Court will allow a margin of appreciation, enabling individual states to
effectively combat threats to their national security, according to Liberty[8] however, the Justice and
Security Bill is incompatible with the right to a fair trial under Article 6 of
the Convention because it clearly breaches the minimal right for the defendant
to have knowledge of the charges and the evidence against him[9].
The problem is however,
that the state can legislate on secret hearings easily due to the unwritten
constitution of the UK, and courts may only declare the incompatibility[10] with the Convention on
Human Rights and not declare the provisions as invalid. The state therefore can
exercise an enormous amount of power, such as the power to be bestowed upon the
Secretary of State if the Bill[11] were to be enacted, where
it should be for the courts to protect human rights under the Convention. Since
2001, governments in Canada and the United Kingdom appear to have increasingly
sought to use secret evidence against individuals suspected of being a security
threat.[12] In Canada, for example,
the executive, with the approval of the court, may call upon a witness to
testify against the defendant on oath in a secret investigative hearing[13] and furthermore, the
Attorney General in Canada may block the release of any ‘sensitive’ material in
proceedings which could consequently harm national security.[14] Secrecy is a source of contradiction in a
democratic state[15]
because although it is paramount for the state to ensure the security of the
people, it prevents the people from making informed choices about how they wish
to see their country governed. The weakness of the use of secret evidence is
the dependence that the judiciary then have on the executive and the dynamic of
closed hearings that seems to favour the security interest.[16] This approach is
questionable; any person whom the government feels is a threat to national
security could face a closed hearing, without knowledge of the evidence against
him. It does seem however, that the European Court of Human Rights acts as a
safeguard against any unfairness to which the Qatada[17] case is a perfect
example, the evidence against him was heard in closed proceedings and he was
deemed to be a threat to national security, however, the possible infringement
of his right to a fair trial resulted in the UK government losing their case in
the Court.
One
of the most fundamental questions relating to the protection under Article 6 of
the Convention is whether it is safe to convict a suspect on evidence which he
cannot question or cross examine. The minimal guarantee under Article 6(3)(d)[18]
makes clear that the source of the evidence must be cross examined in court in
stating that;
‘Everyone charged with a criminal offence has the
right to examine or have examined witnesses against him…’[19]
[1]
Justice and Security Bill, part 2
[2]
Justice and Security Bill, Clause 6
[3]
S69, Senior Courts Act 1981
[4]
The Law Society, Secret courts plans: government concessions don't go far
enough, says Law Society (http://www.lawsociety.org.uk/news/press-releases/secret-courts-plans--government-concessions-don-t-go-far-enough,-says-law-society/ (accessed April 2013)
[5]
Justice and Security Bill
[6] Liberty’ Liberty’s
Report stage briefing on Part 2 of the Justice and Security Bill in the House
of Lords http://www.liberty-human-rights.org.uk/pdfs/policy12/liberty-s-report-stage-briefing-part-2-justice-security-bill-hol-nov-2012-.pdf (accessed April 2013) Page
3
[7]
I.b.i.d Page 3
[8]
I.b.i.d Page 17
[9]
Vanjak v Croatia (2010) Jan 14 App No. 29889/04 at [52].
[10]
S4, Human Rights Act 1998
[11]
Justice and Security Bill
[12]
Gus Van Harten, Weaknesses of Adjudication in the Face of Secret Evidence
(International Journal of Evidence and Proof, 2009) Page 1
[13]
The Criminal Code of Canada 1985 (As
amended in 2001)
[14]
S38, Canada Evidence Act 1985 (As
amended in 2001)
[15]
Gus Van Harten (n 263) page 1
[16]
I.b.i.d page 11
[17]
[2012] 8139/09
[18]
European Convention of Human Rights
[19]
Article 6(3)(d), European Convention of
Human Rights
Monday 20 May 2013
Are you In or Out? Deciding Britain's Future in the European Union.
I start with a mention of the year 1975. Britain gripped by the post war concensus, the Labour party were in power under Harold Wilson and a pint of milk cost just 7p.
 |
| The Conservatives commit to offering In/Out Referendum. |
It simply cannot be expressed enough just how much has changed. The European Comunnity (EC) was originally founded after the Second World War, the peoples' of Europe would never again fall at the hands of fascism, never again would the peoples' of Europe be oppressed.
The United Kingdom entered the European Economic Community (EEC) in 1973 and was initially a common market, but we have seen over the decades political and monetary union.
The Maarstricht Treaty in 1993 gave us the introduction of the single currency and a number of employment law provisions right up to the Lisbon Treaty, effectively deemed the 'Constitutional Treaty.'
From a legal perspective, there is a well known phrase that every law student or practising lawyer will be aware, where domestic law and European Union law conflict, EU law shall prevail. This is the effect that the EU has in that it penetrates domestic law and during the 1980's, the European Court of Justice set aside a peice of legislation (Merchant Shipping Act 1988) because it did not comply with European Union law. (The case of Factortame). This legislation was passed by the sovereign Parliament.
There are those, however, who would argue that the penetration of European Union law into domestic law is the will of Parliament, because legislation would have to have been passed through in order for EU law to have supremacy, but if the United Kingdom had not enacted treaties, for example, into domestic law, then would the UK have credibly been able to continue to be a member? Would the UK have been forced out? This is why it is crucial now to take the debate to the country.
The Coalition government has introduced the referendum lock (s2(2) European Union Act 2011) in which if there is ever a new treaty which seeks to amend or replace the Treaty on European Union (TFEU) the British people will have the power to accept or decline the treaty in a referendum.
This move brings Europe closer to us, we are able to have a say on laws which are decided in Europe, and historically, have been rushed through Parliament with no consideration for the consultation of the British people. But we must, as a country, go further.
Not only has a lot changed in Britain since 1975, but our relationship with the European Union has changed and if we simply kick this issue into the long grass, so to speak, then we risk subjecting our children to the ever changing and complicated relationship with the European Union and even our children will be denied the chance to voice their opinion. This ceases to remain an issue of whether one is simply for the membership of the European Union and those who are strongly opposed, or even those who occupy a centre ground that Britain's membership is important, but there must be reform. This is about giving people a say on Britain's future of the European Union.
 |
| UKIP advocate an immediate withdrawal from the EU |
onomic policies which rival that of Ed Balls MP in terms of their stupidity. I am of the opinion that this will be very unlikely.
 |
| James Wharton MP will lead the charge on an In/Out Referendum |
I hope that the whole country will be united behind James Wharton by getting in touch with their local Memeber of Parliament and pushing the case for a say on Britain's membership of the European Union. It is time to settle the Europe question once and for all, that time has to be now.
It is time to give a whole generation of Britons, whom have had no say regarding Europe, a real choice about the decisions that will come to affect them and their families as well as securing the best possible deal for the United Kingdom. Regardless of whether people believe Britain should leave, or whether we should be in Europe and fighting for British interests.
You can contact your Member of Parliament to ask that they support the Bill which shall give the British people a say on Britain's membership of the EU;
[Name of your MP]
House of Commons
London
SW1A 0AA.
If you are unsure of who your Member of Parliament is then you can telephone the House of Commons Information Office on: 020 7219 4272.
Or alternatively, visit www.parliament.uk
Case Comment: The case of Abu Qatada.
The introduction of the Human Rights Act 1998 has
incorporated rights such as the ‘core principle’ of the right to a fair
trial which is not a relatively
new concept in the United Kingdom but the protection of this
right is intended to enshrine the fundamental principle of the rule of law.The right which is
protected under article 6 is so fundamentally important in a democratic
society. It expresses a fundamental principle of the rule of law and is to be
interpreted broadly.The fact that the right to
a fair trial is given a broad meaning is effective in the protection of human
rights in the UK, although it is difficult to say what Article 6 adds to our
law because a right to a fair trial has always been an integral part and
therefore some comfort can be taken in the fact that our laws protecting the
right to a fair trial shall continue even if they are to a higher standard of
protection than under the convention. Individuals under article
6 shall not be punished unless they have committed a crime, before they are
punished, it shall be proven and not presumed.
One of the most important questions for the United Kingdom
as a modern democratic state[1] is how effectively does it
protect citizens, in the name of national security, without infringing the
rights of those who are suspected of offences of terrorism[2] and whether the operation
of the Human Rights Act is in need of reform in order to better protect the
rights of those suspected or of those in the wider community. It is the duty of
the courts to balance the rights of the individual and the community and in
relation to the threat of terrorism; the court must consider the threat faced
by society.[3]
Under Article 6 of the convention, the individual has the right to know the
case against him and he is able to challenge it, however there are situations
where the defendant is not allowed to know what the evidence is against him.[4] In the United Kingdom, offences
of terrorism have been created where the burden of proof is on the defendant[5] and has created a
situation where one is guilty until proven innocent, which seems worryingly
contrary to the protection of the presumption of innocence under Article 6[6] To be detained on grounds
of suspicion of terrorist activity is a very serious charge, and therefore it
seems right that the defendant should be presumed innocent, however the threat
of terrorism itself is such a serious issue that disclosing all the evidence to
the defendant could threaten national security[7]. The European Court has
considered this kind of situation and has found that where the defendant does
not see all of the evidence against him, this does not necessarily affect his
right to a fair trial[8] so long as there an
adequate framework for monitoring decisions made by the court. The assurance given by the European Court that
it is likely to be more fair if it a court, rather than an administrative or
executive officer, considers the evidence without the defendant having
knowledge of it because the judge will make a fair decision based on all of the
evidence.[9] The terrorism legislation
also provides for the appointment of a ‘special advocate’ who is able to see
the evidence which the defendant cannot and therefore advocate on behalf of the
defendant. In this sense, the protection of the fair trial is upheld because
the defendant, although not entitled to see all of the evidence, can be
represented by somebody arguing on their behalf, cross examining the evidence
against the defendant which is an important safeguard in combating the
terrorist threat and upholding the principle of human rights protection. The
Convention on Human Rights gives people a sense of assurance that the state
cannot impose legislation which will simply remove their human rights, the
incorporation of Article 6 has given people the right to a fair trial have been
used to ensure that the government’s counter-terrorism measures are applied in
a human rights compliant way, thus making them more effective[10] and therefore the current
operation of human rights legislation should be conserved.
 |
| Qatada could not be given a fair trial in Jordan. |
In light of the European Court decision in Chahal[11] that not disclosing
evidence to the defendant may not infringe his right under Article 6,[12] and given that the
Terrorism Acts do not contain provisions which directly infringe or threaten
Article 3,[13]
there must be a real temptation on the part of those investigating or
attempting to prevent serious terrorist crimes to take such steps.[14] The House of Lords
discussed this potential problem in the case of A v Secretary of State for the Home Department[15] in light of terrorist legislation introduced by the state to
detain foreign national terrorist suspects.[16] The special Immigration
Appeals Commission, by rule 44(1)[17] was able to receive
evidence which would not have been admissible in court because the Home
Secretary had relied upon evidence obtained from a foreign country known to
practice torture[18].
Freedom from torture is one of the most fundamental human rights and must be
protected[19]
so how could it ever be justified to rely upon evidence obtained through
torture in the trial of a terrorist suspect whom has been detained by the
state? Before the case was appealed in the House of Lords, Laws LJ stated
‘If the evidence
obtained by torture was from abroad, so long as the United Kingdom had neither
‘procured’ nor ‘connived in’ that torture and had no control over those
responsible, the Home Secretary could then rely on that evidence[20]’
The judgement by the Court of Appeal amounted to an
absurdity[21]
because the judges almost asserted that evidence from torture could be used so
long as there was no involvement from the UK, but as Neuberger LJ made clear in
his dissenting judgement,[22] relying upon evidence
which has been obtained by torture still affects the rights of the detained
under the Convention. When the case was appealed in the House of Lords,[23] the seven law lords
unanimously and wholeheartedly rejected the Court of Appeal’s conclusions.[24] The House of Lords
considered that if the evidence obtained through torture would not be
admissible in a court of law, then it should be excluded ‘irrespective of
where, by whom, or on whose authority the torture was inflicted’[25] and this was the right
approach in that the evidence obtained by torture is considered to be
unreliable and in no court of the United Kingdom should such evidence be
admitted, even if it is true evidence[26] because this can affect
the right to a fair trial of the defendant because he is being convicted on
unreliable evidence which is cannot be said to be beyond any reasonable doubt. Neuberger
LJ had been correct in his dissenting judgement that reliance upon evidence
obtained by torture would amount to a breach of Article 6[27] because not only could
the evidence be considered unreliable, but the United Kingdom has an obligation
under international law[28] to eliminate the practice
of torture.[29]
With regard to whether there is a need for fundamental reform of the Human
Rights Act 1998 in relation to this area, it is clear that for the executive,
such court judgements can be frustrating when there is an effort to detain
individuals who are truly dangerous to the public, but the protection given by
the courts to ensure a fair trial under the Convention is a healthy reflection
of a democratic society and in this case, the court made clear that the Home
Secretary should have not considered evidence unless it was shown to not have
been obtained by torture.[30] However, if the United
Kingdom did not incorporate the Convention into domestic law, would the House
of Lords have come to the same conclusion? Yes, because the rule of
inadmissibility of evidence procured by torture is recognised in the commons
law[31] and therefore has
developed an exclusionary rule.[32]
In A v Secretary of State
for the Home Department[33], the House of Lords based
their decision on the constitutional principles rather than the legal rules[34] because the House of
Lords, as then the Supreme Court, acts as a ‘constitutional watchdog’[35] and there to protect the ‘bedrock moral
principle’[36]
which is the ‘touchstone’ of human and civilised legal systems[37] and although the United
Kingdom had not incorporated the provisions under the torture conventions,
their lordships thought it so important that it represents a universal rule in
which the common law does[38] Although this clearly has
not stopped Parliament from implementing laws that extend restrictions on
freedom,[39]
the domestic courts will always uphold the rule of law, even if upholding the
law as it is causes frustration in the relationship between the judiciary and
the executive. It is because of the
sometimes frustrated relationship between the executive and the judiciary that
the Human Rights Act 1998 is often blamed for administrative decisions that
have been caricatured as privileging the rights of criminals and terrorists[40] and remains a
controversial piece of legislation blamed for weakening the ‘war’ against
terrorism and for early release of criminals.[41]
 |
| ECHR rejected SIAC's decision on Qatada and Article 6 |
[18]
Xiaofei Lu, A v Secretary of State for the Home Department (UCL Jurisprudence
Review, case comment 2007) page 1
www.un.org/News/Press/docs/2001/sgsm7855.doc.htm
, accessed March 2013
[20] Per Laws LJ, A and Others v Secretary of State for the Home Department [2004] EWCA Civ 1123 at [252]
[20] Per Laws LJ, A and Others v Secretary of State for the Home Department [2004] EWCA Civ 1123 at [252]
[25]
Per Lord Bingham, A and Other v Secretary
of State for the Home Department (no 2) [2005] UKHL 71 at [51]
[29]
Deidre M. Dwyer, Closed Evidence, Reasonable Suspicion and Torture: A and
Others v Secretary of State for the Home Department (International Journal of
Evidence and Proof, 2005 Case Comment) page 2
[31]
Amrita Mukherjee, Special Immigration Appeals Commission: Admissibility of
Evidence Obtained by Torture (Journal of Criminal Law, 2005 Case Comment) page
3
[35]
Sir John Laws, Is the High Court the Guardian of Fundamental Constitutional
Rights? [1993] Public Law pp 59-79
[41]
Helen Fenwick and Kevin Kerrigan, Civil Liberties and Human Rights (2011-2012
Routledge) page 229
[51]
Theresa May MP, Secretary of State for the Home Department, Hansard (House of
Commons 7 Feb 2012 : Column 166)
[54]
Deportation: Deportation of a Foreign
National, Safety on Return- Othman v United Kingdom (European Human Rights Law
Review, 2012 Case Comment) page 5
[55]
Christopher Michaelsen, The renaissance
of non-refoulement? The Othman (Abu Qatada) decision of the European Court of
Human Rights (International and Comparative Law Quarterly, 2012) Page 1
[56]
I.b.i.d page 1
[57]
European Convention on Human Rights
[60]
Ben Brandon, Terrorism, Human Rights and the Rule of Law; 120 years of the UK’s
Legal Response to Terrorism (Criminal Law Review, 2004) Page 9
[61]
[2012] 8139/09
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