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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