The Assault on Liberty: What Went Wrong with Rights. Dominic Raab

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      The real risk is that further extending pre-charge detention will not just sacrifice the fundamental freedoms of the citizen but also harm our security, both by increasing the radicalization of disaffected young Muslim men, and alienating the local communities whose active cooperation is pivotal to the counter-terrorism effort. Far from involving a delicate balance between collective security and individual liberty, as a security measure forty-two days’ pre-charge detention is unnecessary, if not counter-productive. That is not a trade-off – it is just lose-lose.

      In contrast, senior counter-terrorism officers report that one of the most positive developments, helping to combat the climate in which radicalization thrives, has been the recent string of criminal convictions in terrorism cases. Nervous Muslim communities were alarmed by the armed raid in Forest Gate, London, in 2006, which was based on mistaken intelligence relating to a potential chemical bomb attack. Wild conspiracy theories circulated suggesting that the raid was part of a propaganda exercise to hype up the public perception of the terrorist threat. As spurious as these claims were, the subsequent public conduct of trials in other terrorism cases – and the convictions that followed – helped demonstrate, to even the most sceptical quarters, that the UK’s struggle against terrorism is all too real. That in turn has improved the confidence of, and cooperation from, Muslim communities. Peter Clarke argues: ‘The series of terrorist convictions in recent years has been a victory for the rule of law and sends out a strong, positive signal to all communities.’

      Again, it is striking that the open and transparent conduct of these criminal cases – through a British justice system that respects fundamental rights – has not only resulted in the long-term incarceration of dangerous terrorists, but also had a positive impact on the climate in which police counter-terrorism operations take place.

      It is a popular myth that we now face the dilemma of weighing security considerations against the liberty of the individual. In fact, the publicly available evidence on both sides of this debate points broadly in the same direction. Sustaining the fundamental liberties every individual enjoys in this country as of right provides one of our most important tools in refuting propaganda from Islamic radicals and terrorists. Protecting the fundamental freedoms of all British citizens is critical to puncturing the myths propagated by extremists and ensuring cooperation between local Muslim communities and the police, which is in turn vital to the UK’s counter-terrorism capability.

      In addition to these security risks, the government’s fixation on pre-charge detention has also distracted its political focus and energies from a range of other much needed measures, which could strengthen our operational counter-terrorism edge. If the government had expended a fraction of the political capital that it has squandered on forty-two days on these measures it could have strengthened national security without sacrificing British liberties.

      Take just three examples. First, removing the ban on using intercept evidence in court would help the police gather evidence that could be used in trial proceedings. Almost every other country in the world has overcome security concerns to allow the use of intercept evidence in court to prosecute terrorists. In the UK, intercept evidence can be used in deportation proceedings, control order cases and applications to court to freeze terrorist assets. But despite numerous reviews, British prosecutors – virtually alone in the world – are still banned from using intercept evidence to convict terrorists in court. In its obsession with forty-two days, the government has neglected a valuable tool that would put terrorists behind bars without undermining the freedom of the innocent.

      Second, allowing police to question terrorist suspects after they have been charged would take some of the pressure off the police during the pre-charge investigation period. There have been calls for the introduction of post-charge questioning for several years, but the government inexplicably delayed until 2008 before making any formal proposals in this regard.

      Third, one of the arguments used to support the case for extending pre-charge detention is that evidence on computer hard drives may be encrypted and take time to decipher. In response, Parliament created a criminal offence for withholding encryption keys and computer passwords, allowing prosecutors to charge and imprison suspects for obstructing an investigation in this way. By the time of the vote on forty-two days in 2008, there were still no convictions under this new power, despite repeated reliance by the government on the volume and encryption of computer data in terrorism investigations as part of its case for extending pre-charge detention.

      The lack of commitment to these kinds of practical measures reveals serious shortcomings in the government’s security strategy. Equally, while the government has been all too willing to deploy senior police officers to try to make its case for forty-two days, it has failed to listen to – let alone act upon – the operational concerns now being expressed publicly by senior officers like Andy Hayman. In its obsession to force through controversial extensions of pre-charge detention, the government has neglected or overlooked valuable law enforcement measures capable of attracting political – and a wider national – consensus.

      The presentation of a crude trade-off between security and liberty is at odds with the basic facts. The government’s sustained assault on the right of habeas corpus has exacerbated the terrorist threat rather than reduce it, and distracted it from other practical counter-terrorism priorities. Fifty-four per cent of those asked in 2008 said that the government’s main motivation for pressing its proposals on forty-two days was ‘to look tough on terror’ rather than national security. That is not a balance or a trade-off – but rather a hijacking of security policy for political ends. If the government is eventually successful in its stubborn attempt to extend pre-charge detention to forty-two days, it would set a dangerous precedent – with nothing to stop it from returning to seek yet further extensions in the future.

      

      This pattern is mirrored more widely in the recent approach to counter-terrorism in the UK. The government has passed broad powers with inadequate safeguards and checks, which are prone to overuse or abuse in practice. Stop and search, under new terrorism powers, is running at 41,900 cases per year. Between 2001 and 2007 there were 1228 arrests on suspicion of terrorism. The rate of convictions over the same period remains, at forty-one, comparatively low in terms of overall numbers, although the proportion of terrorism prosecutions resulting in a conviction is now over 90 per cent.

      A broad brush approach is open to abuse. It was disclosed that during one month in 2007 police at Gatwick airport conducted hundreds of random searches outside the (already wide) rules, without the required ministerial authorization. And the wider the powers, the greater the risk that innocent people will be caught in a security net so widely cast. In one case, in 2005, Sally Cameron, a thirty-four-year-old property developer from Dundee, was arrested and detained for four hours as a terrorist suspect. Ms Cameron, who used to walk to work to keep fit, was arrested under the Terrorism Act. Two police cars were called to apprehend her merely for walking along a cycle path restricted to cyclists under security regulations – even though there was no visible signpost indicating any restrictions on access to the pathway.

      In another episode, a disabled twelve-year-old boy and his parents were detained under the Terrorism Act, police accusing his mother of people-trafficking her mixed-race son. The family were surrounded by ten police officers and detained for two hours, until officers resolved the misunderstanding.

      

      Other security measures have undermined liberty, with minimal countervailing security gains. The government has been forced to continuously fend off legal challenge to its control order regime, rushed through Parliament in 2005 after the House of Lords struck down its attempt to detain foreign terrorist suspects indefinitely without charge. The control order legislation created wide powers that allow severe restrictions to be placed on those merely suspected of involvement with terrorism. While an order made by the Home Secretary must be confirmed by a judge, it can be imposed on people who have СКАЧАТЬ