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Preparatory Colloquium of the XVIII International Congress of Penal Law
Section III
Pula (Croatia), 6-9 November 2008
UNITED KINGDOM: ENGLAND AND WALES
*
Marianne L. WADE
**
I.
1. The UK is a signatory to and has ratified a number of human rights treaties and international humanitarian law
treaties including all Geneva conventions, and most significantly the International Covenant on Civil and Political
Rights (hereinafter ICCPR) and the European Convention on the Protection of Human Rights and Fundamental
Freedoms (hereinafter the European Convention/ECHR) both of which provide legally enforceable rights under
international law.
1
The applicability of rights derived from international treaties has been notoriously fraught in the UK particularly
within the English and Welsh legal system with its residual (as opposed to entrenched) system of rights
2 and the
upmost Constitutional value placed on the notion of Parliamentary sovereignty. The central pillar of the English
and Welsh constitution is that of Parliamentary sovereignty – the idea that Parliament can do anything by simple
legislative procedure3 - and thus that there is nothing written in stone and as such no inalienable right provided to
citizens. The level of protection provided to certain liberties has been determined by case law over the centuries
with debates over the need for a Bill of Rights and a written Constitution a recurring phenomenon in this, the only
western democracy without a written constitution. The rights culture known in continental European systems
cannot thus be associated with the British4 system. It is difficult to place international treaty lent rights within a
system which knows no hierarchy of laws and which is fundamentally oriented towards the idea that the Legislature
can always change everything.
This situation is hard to grasp in the context of modern rights debates and is indeed no longer sustainable for the
British context. For decades one can consider Britain to be in constitutional crisis tolerating EU membership -
which necessitates the supremacy of EU law5 - alongside the fundamental principle of parliamentary sovereignty.
The British courts will ultimately take UK laws contrary to EU law out of effect if their efforts to interpret UK statute
whilst assuming Parliament did not intend to breach international obligations are hopeless. Thus any rights protection
afforded to British citizens via EU membership (above all via the European Charter) will be enforceable
directly by British citizens.
*
Important notice: this text is the last original version of the national report sent by the author. The Review has not assured
any editorial revision of it.
**
Dr. Marianne L. Wade is a senior researcher in the European Law Section at the Max-Planck-Institute of Foreign and International
Criminal Law in Freiburg im Breisgau. The author wishes to thank Ms. Sarah Schultz, academic assistant at the
same Institute for her assistance.
1
Feldman p. 37; for a full list of treaties signed and the respective status see
(last checked 16.02.2009).
2
Human rights are more commonly referred to as civil liberties in English legal texts reflecting that English subjects are left
residual liberties which have not been taken away from them by Parliament rather than entrenched rights lent to them e.g. by
a Bill of Rights. What level of protection such liberties have under the Constitution can traditionally be determined only by an
examination of case law.
3
Famously „even change a man into a woman“, see Jennings p. 170.
4
From now on the British system will be used to refer to the English and Welsh legal system.
5
See e.g. European Court of Justice, C-213/ 89 (ECJ reports p. I-02433), Judgement of 19 June 1990 – “Factortame”.
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The Blair government took steps to revolutionise the rights situation in Britain by providing for the entrenchment
of the European Convention in British law via the Human Rights Act of 1998 (hereinafter HRA). This fundamental
change which came into force in steps at the beginning of the 21
st century is still in the process of taking hold –
and under strong fire from the very government which introduced it – and in any case stops short of providing
citizens with an unequivocally enforceable right. The HRA requires British courts to consider the law as prescribed
by the European Convention and they effectively change British laws they consider in breach by interpreting
them in line (including inserting “missing” words),6 where that is possible. They cannot, however, strike
down clearly contradictory legislation but make a declaration of incompatibility in such cases. The Government
has responded to all such declarations.7
Thus the European Convention forms part of British law and judges are proving themselves willing to act in such
a way that citizens can factually assert rights based upon it. Where the legislature explicitly and clearly makes
provisions in breach of such rights, the courts are, however, limited in their ability to provide effective rights protection.
Due to their robust application of the possibilities they do have, one can nevertheless assert that they will
flag breaches of such rights, effectively easing the citizen’s path to a remedy, ultimately from the Strasbourg
Court.
Between 2001 and 2005 derogations from the ECHR and ICCPR in relation to the right to liberty were filed to
enable detention without trial. Since this scheme was replaced by the control orders scheme, the Government
controversially claims no derogation is required – see below.
2. It is impossible to trace all the legal reforms made by the UK government within the last decades because
criminal policy has been of such high profile (considered, along with taxation, a make or break point during elections
8)
since the end of the 1980’s; charting legislative changes since then alone would surpass the boundaries of
this report which will thus focus upon reforms in approximately the last decade – including those with Constitutional
aspects - which have been decisively tied to the prosecution of serious crimes, above all terrorism and
organised crime. Nevertheless it is important to remember that Britain had since the early 70’s provided for exceptional
criminal justice measures in Northern Ireland (a closely related legal jurisdiction whose laws were made
by the central UK government) via the Prevention of Terrorism (hereinafter PT) (temporary measures) Act of
1974. This Act remained in force until 1989 (though its powers were subject to expansion in the meantime) when
it was replaced by the 1989 PT (temp. provisions) Act which was expanded by the PT (additional powers) Act
1996 (the temporary nature of the measures recognisable only by the annual Parliamentary act to renew its
applicability – 6 monthly between 1974 and 76 – and the 5 year limit associated with the 1984 Act9) before finally
being succeeded by the measures of the Terrorism Act (hereinafter TA) 2000 – drafted also - though not centrally
- with Islamic terrorists in mind.10
This background is also notable in relation to a number of cases taken to the Strasbourg court alleging breaches
of rights under the European Convention including
Ireland v. UK11 which led to the European Committee on
Human Rights finding the UK government responsible for acts of torture a finding not shared by the Strasbourg
court which, however found a breach of article 3 ECHR in the form of inhuman treatment. Whilst these most
extreme measures are not to be associated with the jurisdiction with which this report is strictly dealing, it may
illuminating to bear in mind that the Government of that same jurisdiction was making decision of this kind. Some
of the measures introduced in Northern Ireland have found equivalents introduced in Britain in more recent reforms.
6
Fenwick p. 2.
7
Fenwick p. 2.
8
See e.g. the importance attached to Blair’s promise to be „tough on crime and tough on the causes of crime“ as decisive in
winning the 1997 election.
9
Fenwick p. 1365.
10
Lord Lloyd of Berwick Inquiry into legislation against terrorism (Cm 3420) Oct 1996; Fenwick p. 1329 and p. 71.
11
Application no. 5310/71 judgement 18 January 1978(Plenary).
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The common view is, however, that changes made this century represent a fundamental break with previous
policy and shifts in the nature of the law
12 – often in conflict with longstanding common law values as well as
human rights provisions, thus the focus of this report upon more recent reforms is perhaps rational. Readers
should, however, bear in mind that the information provided often presents a snap-shot of recent and highly
controversial measures regarded by many as unfitting of the jurisdiction being discussed. The judicial resilience
also reflected throughout this report has already seen off a number of reforms made; it is very possible that the
measures described may not withstand the test of time.
No matter how tenuous its factual meaning may be seen as (temporary exceptional measures in place for almost
30 years naturally lead to these becoming normalised), pre-2000 legislation was temporary in nature and expansion
of it occurred in response to serious events displaying danger.13 One should also note findings that the PTAs
had little actual effect. In the majority of cases normal criminal law was used against terrorists – the emergency
exceptional powers were a little used reserve.14 One commentator thus points out that onerous measures introduced
in the UK are symbolic and subject to “an unspoken traditional British consensus that they will never be
fully used.”15 They are provided for in the law nevertheless.
In spite of the far-reaching reforms carried out in recent years, further change is still being debated, in part as a
consequence of the courts damning stance on measures introduced or Parliamentary rejection of Government
plans (such as the 90 days detention proposal); most famously discussion currently focuses upon increasing
detention of uncharged terrorist suspects from 28 to 42 days.
Changes are mostly within the framework of normal criminal law and are made by normal legislative procedure
(though the UK is the only European Convention signatory to derogate since 9/1116 from the right to liberty 1 year
after the HRA came into force17 - see infra). Above all, however, controversial reforms related to terrorism and
serious organised crime have changed the shape and nature of the criminal law and justice system.
These reforms come at a time which is also marked by a tendency to use alternative proceedings – reminiscent
of what Continental lawyers would refer to as administrative proceedings – to achieve criminal justice aims.
Taken together with the British tradition of using specialist agencies such as the Serious Fraud Office (a policing
organisation), the (recent and now debunked) Asset Recovery Agency (which used civil proceedings) or the
Health and Safety Executive (a regulatory agency) to pursue goals usually associated with criminal proceedings,
these must be borne in mind for a sense of context. Non-criminal justice mechanisms flank the criminal law and
may provide powerful tools. The Terrorism Act 2000 for instance in section 28 provides for forfeiture of seized
cash by civil proceedings with no requirement that criminal proceedings be attached.
One must particularly note the developments related to asset recovery which allow the confiscation of assets
gained by crime through civil proceedings and thus through more administrative proceedings. Originally these
powers were exercised by an agency of a regulatory nature: the Asset Recovery Agency, but they were later
amalgamated into the Serious Organised Crime Agency (SOCA formed in 2006 - more of which infra). These
proceedings are thus now used by a policing agency but are still fundamentally of use alongside the criminal
justice system since the civil proceeding’s lower standard of evidence (on the balance of probabilities as opposed
to beyond reasonable doubt) works to invoke a reversal of the usual evidential standards (a defendant effectively
can only keep his or her assets if s/he proves that they were gained by legitimate activity). They are intended as
an easier option to bring criminals to “justice”18 to hinder them in their work without the onerous hurdles of the
criminal justice system.
12
See e.g. Fenwick p. 1329.
13
Fenwick pp. 1364-5.
14
Walker (1986) p. 183.
15
Fenwick p. 1334 – note also that she warns of an inherent danger especially in relation to „some religious or ethnic groups
[which] were never part of that consensus“.
16
Zedner p. 523.
17
Fenwick chapter 3 and 14.
18
See e.g. Gentle, Summers and Verkaik.
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The courts – since 2004 and the decision of the House of Lords in
A and others v Secretary of State for the
Home Dept 19- have been decisive in limiting the scope of these attempted reforms with a number of cases leading
to great tension between the Executive and the Judiciary who have been cast in the press as hampering
effective anti-terrorist work.
Decisively the judiciary has been willing to step in to change the wording of substantive offences to ensure compatibility
with the Convention. In A.G.’s Reference (No 4 of 2002) 20 the House of Lords used s. 3 HRA powers to
bring the offence of belonging to a proscribed organisation21 and with it all offences which reverse the burden of
proof or require a defendant to provide proof refuting a significant element of an offence,22 into line with the Convention.
23
The courts can be seen to be imposing a proportionality requirement upon legislation and in doing so
are contradicting Parliament’s claim to have paid heed to that very principle.24
The long-standing practice of rewarding suspected offenders for co-operation with criminal justice authorities has
been statutorily provided for by sections 71-75 of the 2005 SOCP Act as well as in relation to fraud by the plea
negotiation framework currently being developed.
25 This is seen as a fundamental shift towards providing for
efficient trials via supergrasses.26
Perhaps as a result of this judicial activity, parliamentary bodies have more recently become more active in ensuring
ECHR compatibility.
27
The reforms have been controversial and so subject to fierce public and political debate. The British press (or
rather the tabloid section of it) is well known for its extreme stances though the more balanced debate to be
found in the press as a whole should also be noted. It is furthermore fair to say that the public debate has included
exchanges of unprecedented hostility and clarity between the Government and the Judiciary.
II.
3. The overarching objective of the Criminal Procedure Rules states the fundamental principles of British criminal
procedure to be “that criminal cases be dealt with justly.” The fact that the British system is adversarial is furthermore
often considered a fundamental feature.
As an adversarial system: the principles of fairness
28 and equality of arms are central and many procedural rules
focus upon ensuring them. The right to jury trial in serious cases and the linked right of the jury to exercise “jury
equity” (not to apply the law where this would be grossly unjust) as well as the independence of the police (as
one hallmark of the separation of powers) strongly mark British criminal procedure in ways distinguishing it from
continental European systems. The presumption of innocence is traditionally pointed to as a fundamental feature
of criminal proceedings.29
It should be noted that Britain has never adhered to the principle of legality in terms of the meaning attached to it
by many Continental jurisdictions meaning that all crimes discovered must be brought to court. The system is
fundamentally discretionary. The most famous summary of the British position was provided by Lord Shawcross
19
(2004) UKHL 56;[2005] 2 AC 68; [2005] 2 WLR 87; [2005] All ER 169. In departure from a previously pre – HRA - more
deferent stance – Fenwick p. 1336, which saw courts accepting that it is fundamentally for the Government to decide whether
national security is threatened – see e.g. CCSU v Minister for the Civil Service [1985] AC 374.
20
[2004] UKHL 43; [2005] 1 AC 264.
21
S. 11 (1) of the 2000 TA.
22
See the Court of Appeal decision in R v Keogh [2007] All ER (D) 105 (Mar); [2007] EWCA Crim 528, 7 March 2007.
23
Fenwick p. 1337.
24
In accordance with article 19(1)(a) HRA, Fenwick p. 1337.
25
See http://www.attorneygeneral.gov.uk/the_fraud_review_page.html (last checked 16.02.2009).
26
See Darbyshire p. 158.
27
See the activity of the Committee on Human Rights and the House of Lords in relation to the definition of the offence of
glorification of terrorism introduced by ss. 1(3), 2(4&8) of the 2006 Terrorism Act – Fenwick p. 1338.
28
See e.g. Lord Bingham, A and Others paras. 99-101.
29
See e.g. Darbyshire, pp. 55 et seq.
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in 1951 “It has never been the rule in this country - I hope it never will be - that suspected criminal offences must
automatically be the subject of prosecution.”
30
Other features such as the need for due process of law are deeply rooted in the system. The need for any penal
sanction to be imposed by a due process of law is deemed to stem from the Magna Carta of 1215.
31
Legal source:
Determining the source of such central principles is often problematic given that they stem from
common law traditions, embodied in statute on many occasions and – due to its unwritten state – the difficulty of
determining which principles are of constitutional nature.
It is perhaps interesting to note that procedural legislation often stems from so called delegated legislation and is
made by the Courts themselves represented by specialist groups to whom Parliament has given the power to do
so.
The British legal system is in a fairly dramatic process of change on many fronts. Upon being voted in, the Blair
government had an avowed agenda for far-reaching constitutional reform some of which – e.g. the Human Rights
Act – is in place, with other parts undergoing.
One less spectacular part of this reform agenda has been a step towards codification of the rules of criminal
procedure in a statutory instrument32 known as the Criminal Procedure Rules (CPR). These are not comprehensive
(yet) but embody the rules of criminal procedure drawn from the common law over centuries or created/
reformed by previous statutory instruments and can be seen as the first step (now on ice) towards creating a
code of criminal procedure.
One should be careful to note, however, that the rules relating to investigation are usually treated as separate to
those relating to criminal procedure. Thus the criminal procedure rules relate to decisions in which courts are
involved and those immediately proceeding court involvement. Investigative measures are regulated separately
and treated separately. The sources of law are almost entirely statutory for investigative matters.33
4. As mentioned above, the presumption of innocence is upheld as a central and fundamental feature which, of
course, predetermines the definition of fairness. It can thus be seen as the reason necessitating criminal procedure
rules and is provided for at all stages of the criminal justice process. It is central to court consideration of
evidence admissibility and a number of rules including those on non-disclosure of prior convictions (though note
this rule has been watered down by the Criminal Justice Act 2003 part 11, chapter 1 of which allows evidence of
bad character and propensity to commit crimes of the sort in question though the boundaries of such admissibility
are still subject to jurisprudential and broader reflection
34), etc. so as not to prejudice a jury, the rules on identification
(which e.g. forbid a dock identification) and hearsay (the antiquated rules of which have been subject to
recent reform35). The common law provides courts with a fundamental discretion to exclude evidence and this
has not been altered by recent reform.
The fundamental right to bail36 is a reflection of the principle as is police officers’ need for increasingly superior
permission for coercive investigative acts – primarily from senior officers and from the courts (though NB the
attempted exception providing for automatic refusal for suspected murderers, rapists (as well as those accused
of attempts) and manslaughterers with previous convictions for those offences introduced by s. 25 Criminal Jus-
30
House of Commons Debates, vol. 483, col. 681, Jan. 29, 1951.
31
Clause 39 of the Magna Carta; see also Spencer/ Mancuso p. 205 and White.
32
The UK allows the delegation of legislative powers by Parliament to specialist bodies. Rules relating to criminal procedure
have thus traditionally been made by expert groups. The Criminal Procedure Rules were written by the Criminal Procedure
Rules Committee within 6 months in 2000.
33
See e.g. Bevan/ Lidstone/ Clark p. 7.
34
See Darbyshire pp. 146-8.
35
See CJA 2003 sections 114-136. Note that Sanders and Young view some of these changes critically in combination with
the newly introduced measures to protect fearful witnesses. They regard the defendant’s ability to challenge evidence brought
against him or her as significantly curtailed – see p. 532.
36
Bail Act 1976.
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tice and Public Order Act (CJ&PO)1994 and by section 26 for those accused or convicted of a more serious
offence
37 apparently committed whilst on bail38).
The right to silence and protection from self incrimination
The right to silence is traditionally considered an important feature of criminal justice and suspects will be made
aware of their right to remain silent upon arrest. In court proceedings this right is ensured by the provision that
any testimony by a charged person can only be given upon a voluntary basis (see infra). Controversially this right
is, however, subject to an important exception since the Criminal Justice and Public Order (CJ&PO) Act 1994 in
which sections 34 and 35 permit juries to draw negative inferences from a defendant’s silence during police
questioning. The judge must, however, provide the jury with careful direction on this issue or there is great danger
of a breach of article 6(1) ECHR.39
The Criminal Evidence Act 1989 section 1 (as amended by later legislation) states that “a person charged in
criminal proceedings shall not be called as a witness in the proceedings except upon his own application” which
means a defendant can only be placed in the position to provide information to the court by his or her own choosing
or lawyer.
Problems have arisen in relation to information gained during non-criminal investigations which require the accused
to co-operate and are then used within criminal proceedings.
40 Where non-compliance with a duty to answer
is part of a prolonged interrogation and enforceable by anything but moderate and non-custodial means (i.e.
there is a coercive element) such evidence may not used as incriminating in criminal proceedings.41 These rules
together with those which prevent entrapment provide for strong protection against self-incrimination.
5. There is no fundamental difference in the treatment of British citizens and non-British citizens inherent in the
criminal law, though the possibility of deportation will certainly mean that factually treatment differs. This became
clear in the discussion of detention without trial42 where an argument of discrimination was brought before the
courts and could be made that such specialist mechanisms are a clear indication of a willingness to treat different
categories of suspects differently. The House of Lords was critical of this argument stating that the scenario in
question related specifically to foreigners who were thus in a situation British citizens could not find themselves
in. This scheme was in force from 2001 until 2004 when it was declared in breach of articles 5 and 14 of the
European Convention by the House of Lords in A and others v the Secretary of State for the Home Department.43
The Government then replaced this with the control orders scheme which falls outside of the criminal justice
system
44 and is applicable to both British citizens and foreigners.
Some commentators analyse the use of draconian non-criminal justice, anti-terrorist measures as symbolic and
as effectively building suspect communities.45 This bears in it a presumption of such policies being fundamentally
discriminatory; the law in itself naturally does not overtly provide for foreigners to be treated differently (except of
course to overcome specific disadvantages e.g. by the right to an interpreter where this is necessary). Any explicit
attempt to differentiate between suspects would certainly be subject to anti-discriminatory litigation.
6. Executive powers in emergency situations are comprehensively regulated in the UK by the Civil Contingencies
Act 2004. The act can be used to provide for reaction to an event or situation which threatens: “serious damage
to human welfare in the UK, a devolved territory or region; serious damage to the environment of the UK, a de-
37
An indictable or triable either way offence.
38
Padfield p. 266.
39
See Murray v United Kingdom application no. 18731/ 91, judgement of 08/ 02/ 1996 (Grand Chamber) and Condron v
United Kingdom (2001) application no. 35718/ 97, judgement of 02/ 05/ 2000 (Third Section).
40
See Saunders v United Kingdom application no. 19187/ 91, judgement of 17/ 12/ 1996 (Grand Chamber).
41
Brown v Stott
(Scotland) [2000] UKPC D3 (5 December, 2000).
42
Section 4 of the Anti-Terrorism, Crime and Security Act 2001.
43
(2004) UKHL 56;[2005] 2 AC 68; [2005] 2 WLR 87; [2005] All ER 169.
44
See part 4 of the 2005 PTA.
45
Fenwick p. 1334.
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volved territory or region; or the security of the UK, from war or terrorism. They can be used if such a situation is
occurring, has occurred or is about to occur”.
46
Provision is made for the Government to invoke legislation through Parliament or Royal Prerogative powers
(where such action is urgently required) to enable reaction as a last resort to the “most serious” emergencies
where current legislation is insufficient or ineffective. The action provided for and then taken must, however, be
necessary and proportionate.
The invocation of emergency powers requires collective agreement by the Central UK Government and the relevant
Lead Government Department. Emergency regulations are made by Her Majesty by Order in Council upon
advice by her Ministers. If events make this impracticable a senior minister can make such regulation by order.
The order must be laid before Parliament as soon as is practicable and parliamentary approval must ensue within
7 days. The order is valid for 30 days and is renewable.
47
As mentioned above, English law traditionally rests upon the constitutional fundamental of Parliamentary Sovereignty
meaning that there are no non-derogable human rights. As a signatory to the ECHR the UK has subjected
the English legal order to the Convention system of rights and derogation which is integrated into domestic law
since the HRA of 1998.
In relation to anti-terrorist policy, the UK’s tendency to integrate emergency measures into long-term and then
permanent law should be noted. The 1989 Prevention of Terrorism (Temporary Provisions) Act and the Northern
Ireland (Emergency Provisions) Act of 1996 show this mentality whilst the Terrorism Act 2000 shows a shift -
integrating measures always referred to as emergency means into permanent measures with broader scope.
Recent years have seen a renewed shift back to a “state of emergency” thinking: exceptional measures to restrict
the right to liberty being introduced (detention without trial). These were discussed above all in the context of
emergency with derogations from the ECHR and ICCPR regarded as necessary to provide for these.
Powers provided for and exercised under emergency powers are nevertheless subject to judicial review in accordance
with the normal standards. Although the courts have recently become more critical in this respect, their
tendency is nevertheless to accept statements by the Executive that national security is at stake and emergency
powers thus justified. Nevertheless their examination of the necessity of measures taken has been sufficiently
strict to restrict and necessitate reform of government policy in such situations – see above all the House of
Lords in
A and Others.
7. Legislation is fundamentally public, as are criminal proceedings though the law naturally provides for the public
and press to be excluded where this is in the interests of justice.
A fierce debate currently underway in relation to making evidence stemming from telephone taps admissible
reflects an attempt by the Government to achieve the admissibility of certain evidence despite the retention of a
certain level of secrecy - above all in relation to the identity and broader investigative practices of the law enforcement
or secret service personnel who performed the investigation. This would involve the court accepting
classified evidence which it can itself not test in accordance with usual standards (precisely because it was considered
undesirable to reveal too many details of investigations has the use of this kind of evidence traditionally
been excluded).48 Only time will tell whether this kind of development will become a feature of British criminal
justice.
A few procedures introduced by anti-terrorist legislation feature the use of classified evidence in non-criminal
proceedings. Those relating to determining whether the proscription of an organisation49 was correct and proceedings
before the Special Immigrations Appeals Committee can involve the introduction of classified evidence
by the Government which the court views in order to make its judgement. Where such evidence is introduced a
Special Advocate, who works in the interest of the appellant but is not briefed by him/her/it, views the evidence
46
Loveland pp. 102-103; Parpworth pp. 50-51; Walker/ Broderick pp. 76 et seq.
47
See also http://www.ukresilience.gov.uk/response/emergencypowers.aspx (last checked 16.02.2009).
48
See Spencer.
49
In accordance with sections 3 onwards of the TA 2000.
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and makes arguments related to this on his/her/its behalf, though the Special Advocate never communicates with
him/her/it.
8. Intelligence of all kinds can serve as a basis to justify the opening of an investigation. In the anti-terror context
the Joint Terrorism Analysis Centre was created in 2003 to ensure relevant intelligence is shared between the
responsible authorities, including the police.
50 It can also form the basis for “probable cause” to justify coercive
measures; in a recent case the courts have explicitly discussed this as the case even where the intelligence may
have been obtained by torture though this becomes questionable if it was done in collusion with British authorities.
51
Intelligence also plays an important role in various procedures which impact upon the criminal justice
system. In these special advocates are used to fulfil a quasi-defence function (see supra under 7 and infra under
20).
The hearsay rules which applied to exclude unsubstantiated statements in criminal proceedings were softened by
the Criminal Justice Act 2003 provided certain standards are attained. Past statements are admissible particularly
if they were made by someone who is outside the UK. Courts must decide whether to admit out of court
statements and documentary evidence for which they must centrally decide whether it is in the interests of justice
to declare it admissible. In doing so they consider its potential value, the reliability of the maker and its prejudicial
effect.52
Evidential standards tend, however, to be stringent. British courts will, for instance, not accept a guilty verdict by
foreign courts as evidence of guilt: a Scottish guilty verdict establishes a rebuttable presumption of guilt in a
special exception to the rule that convictions are just another piece of evidence (
Home Dept v E53 saw the court
speculating that judgements received from abroad might be basis for prosecution54); one can thus imagine that
intelligence of any kind is of limited value evidentially. Recent discussion relating to evidence possibly obtained
by torture without complicity by British authorities have seen the courts emphasising that any evidence obtained
by torture is fundamentally abhorrent to the common law and has been for over 500 years.55 Intelligence coming
in particular from foreign secret services is thus likely to be subject to intense scrutiny.
III.
9. a) The past decade or so is often described as one in which a shift in policing to a more proactive approach
has taken place. Above all in relation to anti-terrorist policy in recent years a fundamental shift to more proactive
policing rather than a focus upon punishing past crime has been identified.
56 Since the mid 90’s, however, a more
general trend towards intelligence led policing, which inevitably means more proactive policing is to be observed.
This is often connected to technological development with the centralising of police databases encouraged and
indeed demanded by the Blair government significantly influencing policing structures. Also the prolific use of
CCTV and other surveillance technologies has mean the police have more and different sources of information
upon which then to act pro-actively.
In relation to certain, more serious offence areas, some coercive measures have ceased to be tied to traditional
pre-conditions (for details see 11 infra). This is true for police forces, specialist police agencies and those working
on the edge of the criminal justice system in more administrative agencies. Indeed some of these, like the Asset
Recovery Agency (now integrated into SOCA – a specialist police agency) have been created as part of this
move towards pro-active law enforcement.
Data found by one agency can be transferred to others. For transfer of information see also supra (under 4).
50
http://www.intelligence.gov.uk/agencies/jtac.aspx last checked 16.2.2009.
51
Lord Bingham, A and Others paras. 47 and 48.
52
Darbyshire p. 145.
53
[2007] EWHC 33 (Admin).
54
(Fenwick p. 1342).
55
The courts reflected that Parliament could force courts and tribunals to accept such evidence but that it would require
explicit statutory empowerment to do so - Lord Bingham, A and Others para 51 relying upon R v Sec of State for the Home
Dept, ex p Simms [2000] 2 AC 115, p. 131.
56
See e.g. Fenwick p. 1331.
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Proactive measures were introduced in relation to terrorism particularly in 2001 and 2005 but were then “significantly
underused.”
57 Nevertheless post-2000 anti-terrorist law it must also be noted is – if only in theory - directed
at far wider groups of the population (see infra relating to a duty to co-operate with the authorities). The “temporary
measures” of the past which were based upon special powers and added incitement offences and previously
highly controversial, “emergency” features has limited application. They became applicable UK wide on a permanent
basis within normal criminal law with the advent of post 2000 legislation.58
The TA 2006 represented a return to more traditional measures focusing upon past offences though by introducing
such a broad basis for such prosecution (indirect encouragement and glorifying terrorism and with them very
wide preparatory offence categories) as well as harsher pre-trial detention conditions it can be described as in
line with the general trend.
59
9. b) As a signatory to the ECHR the UK recognises the right to freedom from torture as an absolute right and the
courts have reasserted a stance that evidence obtained by torture is fundamentally abhorrent to the common
law
60 in recent times.
Police practice in relation to terrorism has seen the UK under fire in this regard over the last decades with details
of interrogation practices used against suspects in Northern Ireland emerging and being discussed as on the
boundary of torture (see also Ireland v United Kingdom infra). The previous situation which allowed police to hold
suspects in terror related cases for 7 days without charge and without the suspect gaining a right to inform anyone
used in particular to hold suspects after bomb attacks, quite naturally led to discussions concerning police
practices during such times.
The detention without trial scheme for foreign, non-deportable suspects in force between 2001 and 2005 as well
as the debate surrounding 90 days detention without charge for terror suspects naturally also raises questions
about police practice though the regular court controls built into some schemes mitigate fears about these to a
certain extent.
Art. 76(2)(a) PACE excludes the use of evidence possibly obtained by use of torture abroad in criminal proceedings.
This rule is more questionable in relation to other proceedings because of the balance of proof requirements
in such cases.61
10.
habeas data – There are no specific provisions relating to lesser data protection for serious criminals though
one should note that this may be regarded as having limited meaning within the British context. The common law
recognised privacy rights only in relation to property rights and the system now features a fledgling general right
to privacy since article 8 ECHR became part of British law with the HRA. The level of data protection is thus quite
different to standards enshrined in other European countries (CCTV pictures are for instance not considered data
and note e.g. the highly liberal rules relating to police retention of DNA).
One must note too that strategies developed – ostensibly in order to deal with serious, in particular organised
criminals, thought the law does not restrict their use to this group – involve a collation and transfer of data between
authorities. Thus the Asset Recovery Agency – whose tasks have since been taken over by the Serious
Organised Crime Agency – was explicitly mandated to use Inland Revenue data to analyse discrepancies between
a person’s assets and income from legitimate sources in order to be able to use civil proceedings to confiscate
unexplained income which thus presumably stems from illegitimate activity. Government strategy in recent
years has not been marked by deep respect for data protection.
habeas corpus
– This is a central feature of the British criminal justice system; a writ to be applied for at the High
court which is described as having become the principle guardian of liberty62 and remains a very strong right
57
Fenwick p. 1332.
58
Fenwick p. 1371.
59
Fenwick p. 1332.
60
The courts reflected that Parliament could force courts and tribunals to accept such evidence but that it would require
explicit statutory empowerment to do so - Lord Bingham, A and Others para 51 relying upon R v Sec of State for the Home
Dept, ex p Simms [2000] 2 AC 115, p. 131.
61
Fenwick p. 1346.
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within the British system. Given the increased rights to detain suspects under anti-terrorism provisions, which
have included a derogation from the right to liberty as enshrined in international human rights standards and the
current police power to detain terrorist suspects for 28 days without charge, one must, however, note that the
substantive law has provided for highly substantial restrictions of liberty and with it the effect of any habeas corpus
claim which tries to assert this right for suspects arrested in relation to suspected terrorist activity.
63
IV.
11. There can be no denying that the anti-terrorist and anti-organised crime contexts have witnessed considerable
increases in the powers of investigatory and prosecutorial agencies. Above all the Terrorism Acts of 2000
and 2006, the Regulation of Investigatory Powers Act 2000 and the Serious Organised Crime and Police Act
(SOCPA) 2005 have added considerably to the state’s arsenal for dealing with those associated with serious
crime.
Sections 44 and 45 of the Terrorism Act 2000 provide for stop and search mechanisms unconnected to any
reasonable suspicion requirement. Whilst these stop and search powers are not alone in having this nature, the
use of these powers has proved immediately controversial and has seen case law arising accusing police of
inappropriately broad use.
64 In the Gillan case65 the Metropolitan police appear to have used their anti-terrorist
powers to deal with social order issues. Although the courts allowed the police a great deal of leeway in this
case, the House of Lords explicitly stated that such stops must be in reasoned connection with the perceived
terrorist threat.
The Regulation of Investigatory Powers Act (RIPA) 2000 regulates many forms of surveillance (though some
forms of covert police surveillance remain outside it) previously regulated informally. Where residential premises
are involved, for example, a judge acting as Commissioner is now required to approve such intervention (see
sections 26 onwards). RIPA has thus regulated such practices to be in accordance with European Convention
requirements though critics have pointed to the broadened scope of such powers foreseen by the act. The Act for
instance widened Ministers’ powers to allow interception in mutual assistance context with other jurisdictions and
regulation is not comprehensive - the use of traffic data is for example not regulated; this therefore remains freely
available as evidence. Electronic bugging of premises was regulated in section 93 of the 1997 Police Act (which
makes it available only for the prevention or investigation of serious crime).
SOCPA regulated powers of arrest easing warrant requirements in some cases. Section 110 allows police to
arrest without a warrant where they have reasonable ground to believe it necessary to do so to facilitate prompt
and effective investigation of the offence or “conduct of the person in question.” This power also triggers a right to
search the premises where the arrest took place. The common law power of arrest is regulated in section 111.
The increase of police powers of detention in the anti-terrorist context is probably the most contentious legal
political issue since the turn of the century. Normally detention powers are regulated by section 61 of PACE and
Code C thereof. These provide that detention (without charge) is possible for up to 36 hours. This generally
applicable period was extended from 24 in 2003 by the Criminal Justice Act) and 2005 (by SOCPA). A magistrate
can extend the period of detention to a maximum of 96 hours if it is deemed necessary within a diligent and
expedient investigation.
Those suspected of terrorist offences are subject to an exception from the general rules. 66 Under schedule 8 of
the 2000 Terrorism Act (as amended by section 23 of the 2006 TA and Code H of PACE) special provision is
made for suspects detained in relation to terrorism. Detention without charge is currently possible for up to 28
days with the continued detention subject to regular approval by a magistrate. At the time of writing, a ferocious
debate is underway with the Government wishing to raise this limit to 42 days. The Government originally tabled
plans foreseeing a limit of 90 days and some commentators feel it is attempting to achieve this in steps. [In the
62
Darbyshire p. 71.
63
See e.g. White.
64
For an overview of stop and search powers not tied to a reasonable suspicion requirement see Sanders and Young p. 76.
65
R (on the application of Gillan) v Commissioner of the Police for the Metropolis
66
See Sprack p. 64.
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mean time the Government suffered a rousing defeat in relation to this proposal in the House of Lords (in this
case the second chamber of Parliament is meant, not the select committee thereof which currently acts as England
and Wales’ highest court) though the Home Secretary has reserved the right to bring her proposal before
Parliament again should an emergency arise.
67]
All section 8 detainees must, like detainees generally in the British system, be brought to court for review of their
detention as soon as practicable at the latest at the next sitting.
The nature of coercive powers available against those suspected of terrorist offences are thus of a very specific,
far more draconian nature than is usual within the British criminal justice system. Alongside detention without
charge, the criminal justice system is, however, flanked by further powers to detain such suspects via the control
order scheme (as well as, of course to deprive them of their assets via the civil asset recovery schemes described
above – see above under 2).
Preventive Detention of Persons Suspected of Terrorist Activity
Initially provision was made via part 4 of the 2001 Anti-Terrorism, Crime and Security Act for the detention without
charge of foreign nationals who, in accordance with article 3 ECHR could not be deported from the UK. To
accommodate this provision the UK Government derogated from article 5 ECHR (in accordance with the article
15 ECHR procedure which allows derogation “in time of war or other public emergency threatening the life of the
nation.” A Derogation from article 9 of the ICCPR was also made.
68
Although the courts recognised the Government as possessing broad discretion to decide what consists a state
of emergency (because this is a political judgement) and thus accepted that is might be necessary to introduce
exceptional, derogating measures such as these relating to terrorism,
69 the House of Lords found this particular
scheme disproportionate70 and in conflict with articles 5 and 14 of the ECHR when read together.71 It was therefore
repealed in 2005 and replaced by the Control Orders scheme by the Prevention of Terrorism Act 2005.
Control orders are ones intended to prevent a person - whether a foreign or British national -suspected of involvement
in terrorist activity from pursuing that activity and thus impose conditions upon that person to achieve
this aim. Usually they involve some form of restriction of liberty confining a person to his or her home for a certain
proportion of the day as well as restricting the geographical area within which the person can move all together,
who he or she may associate with, which house of worship s/he may attend as well as imposing ancillary measures
such as forbidding the use of mobile phones and the internet. Where such orders fully exploit the potential
power associated with them, the Government regards them as a restriction of liberty serious enough to require a
derogation to be made from the European Convention. It controversially claims, however, that many of the restrictions
which can be ordered (and indeed all those which have been imposed so far) fall short of requiring a
derogation of this kind.72
Non-derogating control orders are issued by the Secretary of State for the Home Department after consulting the
chief officer of the relevant police force
73 to assert whether there is enough evidence for a prosecution for a terrorism
related offence.74 Their initial issuing involves no court proceedings and the evidentiary standard required
is limited. In 2007 15 were in operation involving 9 foreign and 6 British nationals. They order mechanisms falling
short of detention in a house arrest setting.75
67
See Russell.
68
Fenwick p. 1425.
69
A and others para. 28 et seq.
70
Para 68.
71
A and others.
72
The claim that there is no need to derogate from article 5 in this context is very controversial – see Sec. of State for the
Home Dept. v JJ, KK, GG, HH, NN, LL [2006] EWHC 1623 (Admin) (QB).
73
Section 8(2) PTA.
74
Section 8(1) PTA as defined by section 1(9) PTA.
75
S.1(3)a PTA any measure which Secretary of State or Court deems necessary to prevent involvement by the person in
terrorism related offences as defined by section 1(9) PTA.
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These orders must be made in accordance with section 2 which allows the Secretary of State to make nonderogating
orders but requires an application for post-facto court approval (in accordance to section 3 – which
provides the parameters to examine whether the decision is flawed; in other words the evidence upon which the
decision is based is not strongly tested). Derogating orders must, however, be made in accordance with section 4
which provides for courts to make them upon application by the Secretary of State. Orders are supervised in their
application by courts in sittings involving the sighting of closed material and special advocates to represent the
interests of the detainee.
76 Effort has thus been made to comply with the principles and spirit of criminal law
though these measures – marked strongly by the needs of emergency as they are – do not apply them fully. The
principles of public trial as well as the defendants own inherent right to challenge evidence against him or her are
restricted in line with the need to protect highly sensitive investigative processes whilst protecting the public.
Control order proceedings have been held not to amount to criminal proceedings, i.e. ones concerning the determination
of a criminal charge because no risk of conviction and punishment is inherent.77 The breach of a
control order is, however, a criminal offence.
Procedural rules have continued to protect investigated persons generally from having to co-operate with the
investigatory authorities though the limits placed upon the right to silence (see below 22) may be regarded as a
significant exception in some if not many cases. Furthermore the broad nature of substantive offences (see below
21) introduced in the anti-terrorist context – e.g. the criminalisation of the failure to notify police of circumstances
which might have helped prevent a terrorist attack – presents another route to factually imposing a duty
to co-operate upon a potentially very broad group of persons surrounding potential terrorist suspects.78 Section
38 B TA imposes broad criminal liability on people who have information which they know or believe might be of
“material assistance” in preventing an act of terrorism or “securing the apprehension, prosecution or conviction of
another person” (within the UK) who was involved in “the commission, preparation or instigation of an act of
terrorism”79 and do not report this to the police and provide them with the relevant information.80
This development can be seen as a broader, criminal justice parallel to the reporting duties imposed upon financial
service providers who are called upon to co-operate with the authorities in fighting money laundering more
generally as well as the financing of terrorism.
81
12. One must firstly note that the potential for a shift in power is limited because of the traditional strength of the
police and their tradition of independence. Much power is vested in the police in any case and the emerging
strong intelligence orientation (combined with the weakness of privacy protection) means that they are comparatively
very powerful. The police can for example take DNA samples with no need for permission from any other
institution. Indeed the DNA database is growing rapidly (the Home Office website states that 5.2% of the population
are to be found in it making it the largest such database in the world. By comparison the USA database
covers 0.5%
82) because the police take a sample from everyone ever arrested – even if they are later acquitted,
their data remains in the database (see section 82 of the Criminal Justice and Police Act 2001).
Furthermore it should be borne in mind that many more sensitive investigative measures, as well as newer coercive
measures, depend upon executive action. Thus the Secretary of State for the Home Department must approve
police wishes to bug or tap and initiates control orders. There is little need in other words for a shift in
power from the Judiciary to executive agencies.
76
See section 3 and schedule of the 2005 Act which provides for special court rules for control order proceedings.
77
See the House of Lords judgment in MB, op cit, paras. 16-24, 48-50 and 90.
78
Though how this is to be made compatible with statements made by the European Court of Human Rights in Heaney and
McGuiness v Ireland - application no. 34720/ 97, judgement of 21/ 12/ 2000 (Fourth Section) - is difficult to imagine.
79
Section 38B (1)(a)&(b).
80
Fenwick p. 1412.
81
Imposed e.g. by the 2001 Anti-Terrorism, Crime and Security Act 2001 which embedded active reporting duties to inform
upon persons working in the financial sector by inserting sections 21A and B into the 2000 TA.
82
See http://www.homeoffice.gov.uk/science-research/using-science/dna-database (last checked 16.02.2009) – though note
that the European Court of Human Rights has just condemned the UK practice as in breach of article 8 – see S and Marper v
United Kingdom, application no. 30562/ 04 and 30566/ 04, judgement of 04/ 12/ 2008 (Grand Chamber) – and the UK has
thus pledged to change this practice.
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The resilience of the judiciary in exercising their powers to control such measures and therewith the fundamental
adherence to the tradition that such checks are foreseen is, however, certainly not to be ignored. The British
system foresees swift and continuous control of such measures rather than subjecting them to prior approval.
The Judiciary is for instance charged with continually checking that the grounds for detention remain valid during
28 day detention without charge. By taking these checks seriously, often to the Executive’s great and vociferous
annoyance, the courts have unquestionably prevented a fundamental shift of power - which some may well have
desired - taking place. In line with the inherent features of the British system these cannot be seen in powers
being transferred but in attempts by the Executive to exercise powers which are then denied or limited by the
courts.
Nevertheless it is not to be denied that police power has expanded as seen throughout this report. British structures
are however different to those found in Continental European systems; the prosecution service never had
an investigative role and so its powers cannot be transferred. It is perhaps further worth mentioning that the width
of substantive provisions relating to terrorism should also be seen as handing investigative and prosecuting
authorities a great deal of discretion in how to apply the law – in other words the Legislature can be seen as not
using its power to define the law fully leaving the police will fill the norms with meaning.
83 Overly broad and even
sloppy legislation cannot, however, be regarded as a new phenomenon.
13. There are no judicial investigative authorities in the British system.
The Serious Organised Crime Agency was formed and became operational in 2005 as a specialist, centralised
body to fight serious crime. It must be noted however that centralisation and specialisation are not new to the
British system: terrorist investigation has always been centralised within the Metropolitan police who in this regard
have national jurisdiction. The serious fraud office (SFO) is a further example of a separate policing agency
specialising in investigation of serious crimes within one centralised institution.
14. The procedures by which judicial approval is sought for coercive measures has not changed recently though
the conditions for detention for those suspected of terrorist related crimes (although this definition is in itself very
broad covering not just “terrorists” themselves; the inclusion of substantive offences relating e.g. to the disclosure
of information to the authorities spreads this net wide) have changed dramatically because other measures outside
of the criminal justice system have been developed with special procedures attached – see e.g. control
orders and asset recovery supra and infra.
The main body of disclosure rules has stayed the same but again, alternative proceedings relating to the proscription
of organisations (and thus the criminal offence of membership) and Special Immigration Appeals involve
classified information which cannot be disclosed though the use of Special Advocates who are granted full access
to this information on behalf of the “accused” is an attempt to find balance.
The warrant requirements providing for the conditions of arrest have been changed as described above (under
11). The substantive changes made to the law as well as the practical effect of stop and search powers no longer
being attached to reasonable cause in the anti-terrorist context may further significantly affect the practice of
arrests of affected suspects.
Unlike previous Prevention of Terrorism Acts, the current anti-terrorist regime, however, makes no provision for
secret arrest and detention. Extradition proceedings are subject to a number of rules (Sören, etc.), extraordinary
rendition is illegal although the UK is one of the countries accused of complicity with the USA since the events of
September 11th 2001.84 All liberty depriving measures are fundamentally open to a writ of habeas corpus.
Relating to the use of the defendant as a source of information, there are no fundamental changes to be reported
and procedural protection of a suspect’s rights remains central to the rules of criminal procedure (see supra). The
creation of terrorism-related offences such as that concerning the failure to provide information to the police,
83
Fenwick p. 1370.
84
See in particular paragraph 80 of the European Parliament Resolution; see also
(last
checked 16.02.2009).
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factually of course mean that a refusal to incriminate oneself is punishable in this context.
85 As mentioned below
(under 21) the use of information gleaned from suspects in non-criminal proceedings against him or her in later in
criminal proceedings is restricted if this information was gained under threat of considerable punishment.
15. Chapter II of the Regulation of Investigatory Powers Act 2000 regulated the interception and production of
communications and billing data though the main purpose of the act was to bring existing practices in line with
human rights standards. These rules basically provide for the taking of such data on the basis of a warrant produced
by the Secretary of State. This area has, if anything, gained closer regulation and more protection than
under the general PACE rules though schedule 1 would have required a production order to be applied for to a
judge.86
16. All evidence must be admitted at trial and is subject to an admissibility test (raised where one party objects to
the evidence being admitted) which fundamentally centres upon the fairness of admitting the evidence. These
rules are the same for serious offences though the procedural rules are different there because these will usually
be tried in the Crown Court i.e. before a jury. Thus the defence must signal to the prosecution if s/he intends to
object to evidence being introduced as this objection must be heard by the judge but the evidence must not be
mentioned before the jury until and when the objection has been refused, i.e. the evidence declared admissible
by the judge.
87
17. The use of evidence gained abroad is permissible in British courts though this will be subject to the same
admissibility criteria as that gained domestically.
A and Others88 specifically addressed the issue of material
suspected to be derived from torture from another jurisdiction (see supra) and thus this issue with it.
18. Protection against self-incrimination would seem incomplete with new terrorist offences and some measures,
particularly outside the criminal justice system raise issues of fairness. The question is, however, whether the use
of deportation possibilities, etc. was ever fair in relation to persons suspected of criminal acts though naturally
terror-related suspicions up the scale.
19. The Youth Justice and Criminal Evidence Act 1999 makes provisions for witnesses with special needs or who
are particularly threatened to be accommodated89 the latter was further strengthened by s. 116 of the 2003
Criminal Justice Act, but these are measures to protect vulnerable witnesses not to ensure efficient prosecution.
They have been criticised for their restricted nature, i.e. erring on the side of efficiency and have thus been
adapted to a certain extent.90
The current debate surrounding the admissibility of telephone tap evidence centres upon an attempt by the Government
to enable such evidence to be heard whilst preserving a strong degree of secrecy in relation to operational
procedures and personnel identity, above all of the secret services who would be involved. This is the
subject of controversial debate and only time will tell whether the law is adjusted accordingly.
91
V.
20.The rules of criminal procedure apply universally. Controversially many of these, even fundamental principles,
have been subject to reform due to the perceived threats of terrorism and organised crime. Furthermore, commentators
often view the protection provided by criminal procedure as undermined in this context by the special
procedures created to deal with those suspected of terrorist offences and those facing confiscation of gains
85
The impression that such offences were created in order to be able to proceed against individuals one might have liked to
place in preventive detention because they are regarded as a risk though there is insufficient evidence to tie them to any
classic criminal charge is strengthened by the fact that, although offences of this kind are so broad in definition that they
potentially apply to a large group of people – see Walker (2003) p. 531, they are strongly under-used – see Fenwick p. 1333.
Ashworth and Redmayne (see p. 137) also regard this as a reversal of the common law principle that “a citizen had no legal
duty to cooperate with the police.”
86
See Archbold paras. 15-75.
87
Sprack p. 325.
88
[2005] UKHL 71.
89
See Sprack 16.20 et seq.
90
H (special measures) 2003, The Times 15 April 2003 (see also Sprack 16.21).
91
See Spencer.
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associated with illegal activity. These are explored elsewhere in this paper. It is perhaps worth noting, however,
that the tendency to use such alternative paths is not exclusively associated with serious offences or threats.
Where special proceedings are associated with appeals against extradition one might also remark that the existence
of such an appeal system draws attention to such cases; given that they revolve around measures fundamentally
imposed by executive decision any comparison with other jurisdictions should consider whether such
cases are factually brought to the criminal justice system in those.
In relation to terrorist offences section 16 of the Terrorism Act 2006 requires the Crown Court to order a preparatory
(pre-trial) hearing where at least one charge of a serious terrorist offence is concerned. Such hearings are
regulated by sections 29 onwards of the Criminal Procedure and Investigations Act 1996.
As
Sanders and Young92 point out: the right to be presumed innocent loses much of its value when the law imposes
only low conditions before one is considered guilty of a crime. Thus the points relating to substantive
criminal law now containing above all terrorist offences of such a broad nature also impact upon this topic.
Certain special procedural forms outside the criminal justice system are currently associated with anti-terrorist
laws namely the appeal process relating to extradition heard by the Special Immigration Appeals System and the
cases involving the proscription of allegedly terrorist organisations heard by the Proscribed Organisations Appeals
Commission as well as control order proceedings. All of these are discussed in the criminal justice context
because they provide for a state reaction to behaviour which, or to the handling of persons who might alternatively
by subject to the criminal justice system or they are of relevance to the criminal justice system because
breach of control orders and membership of a proscribed organisation constitute crimes.
All of these proceedings may rely upon material of a classified nature with national security relevance which the
Government wishes to keep from the defendant in the case. Instead of defence representation these proceedings
thus involve a Special Advocates scheme which sees advocates with special experience of administrative and
public law representing the interests of the affected - without being instructed by or responsible to that individual
or organisation, given full access to all closed material (though cannot reveal the information contained in this to
the court).93
21. The English and Welsh criminal justice system is traditionally heavily marked by protection of fundamental
principles and careful provision for this by the rules of criminal procedure and evidence. Generally, as
Darbyshire94
points out, articles 5 and 6 of the European Convention can be viewed as statements of principle of English
criminal procedure. As usual, however, the proverbial devil is certainly to be found in the detail. For the purposes
of this report it is impracticable to detail the provision made for the full protection of the principles outlined
in the questionnaire and this paper must restrict its documentation to a brief sketch of the flaws in this comprehensive
protection scheme. Many of these have appeared in recent years as a result of the Government’s desire
to deal (more effectively) with serious criminal and terrorist phenomena. They are highly controversial and subject
to on-going judicial and academic discussion.
The right to silence, seen as an essential element has been restricted since 1994 when the Criminal Justice and
Public Order Act gave juries the right to draw negative inferences from a person’s failure provide information or
explanations to the police during questioning which might reasonably have been expected.
95 This exception
appears to be compatible with the European Convention, however, as the case of Murray v United Kingdom
(concerning equivalent Northern Ireland legislation) saw the European Court of Human Rights accepting such
provision. This highly controversial exception has been further augmented since 2000 with many viewing the right
to silence and presumption of innocence as effectively undermined in the anti-terrorist context by many provisions
of the Terrorism Act. Thus for example a conviction under s. 57 (possession for terrorist purposes) can
occur based upon negative presumptions and reasonable suspicion when an accused refuses to give or provide
evidence and s. 58 (collection of information - useful for terrorist purposes) features no requirement that
mens
92
See p. 533.
93
For further information see Fenwick p. 1343.
94
P. 55.
95
See sections 34-39, Sanders and Young pp. 523-4 for an overview.
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rea
be proved where an accused refuses to give or provide evidence. Sections 11, 12, 13, 18, 19 and 56 furthermore
have very low actus reus and no mens rea requirements.96
The privilege against self-incrimination has been protected more strongly since the European Court of Human
Rights found the UK in breach of its Convention obligations in 1999 in the case of
Saunders v United Kingdom.
Section 59 and schedule 3 of the Youth Justice and Criminal Evidence Act 1999 amended most legislation relating
to procedures which punish non-production of evidence e.g. for fraud with contempt of court to provide that
such evidence may not later be used against a suspect in criminal proceedings.97
The right to jury trial for serious offences is often regarded as a fundamental principle of British criminal procedure.
Since the preparation of the 2003 CJA the British Government has made repeated efforts to restrict the
right to jury trial for certain categories of serious offences. This controversial intent apparently aimed at increasing
the efficiency of criminal justice last failed in 2007.
22. The rights to review sentences in the UK have not been subject to change. The rules relating to double jeopardy
have, however, been subject to intense discussion.
Part 9 of the Criminal Justice Act 2003 provided for a fundamental shift in the rules relating to appeals by allowing
prosecution appeals on a broad basis in cases of certain serious crimes in which the judge terminated a case
before a jury convened, during the prosecution case (e.g. because the judge ordered a jury to acquit due to
evidential reasons) or in response to a defence submission that there is “no case to answer.” The prosecution
must be given leave to appeal by the trial judge or the Court of Appeal. The Court of Appeal can confirm the
acquittal or order a retrial where this is “in the interests of justice.”
98
Part 10 of the same act controversially provided the prosecution with an ability to apply to the Court of Appeal
with permission from the Director of Public Prosecution for an acquittal to be quashed and a retrial ordered. The
Court of Appeal can react in this way to the result of a trial upon indictment (in other words this option is available
only for the more serious offences triable by the Crown Court e.g. rape, armed robbery, manslaughter, murder
and terrorist offences) or a successful appeal. It may do so only “in the interest of justice” (section 79) where
there is “substantial and reliable new and compelling evidence” (section 78) against the person previously acquitted.
Double jeopardy protection is thus subject to exceptions in England and Wales.
A number of special proceedings are also a cause for worry about procedural guarantees not exclusively but
particularly in relation to serious crimes in England and Wales. Thus the Proceeds of Crime Act 2002 provides for
confiscation proceedings in which a court decides according to the civil law standard whether a defendant should
be deprived of benefit resulting from particular criminal conduct or from his criminal lifestyle. If one views such
proceedings as pursuing a primarily punitive goal – and Government statements surrounding their introduction
leave little reason to doubt that this is the case – they can be viewed as seriously undermining the protective
nature of criminal proceedings.
The Council of Europe’s Human Rights Commissioner has further strongly criticised the UK Government’s creation
of parallel procedures to deal with those suspected of terrorist offences outside the criminal justice system
criticising in particular the control order scheme which was freshly introduced when his report was published in
2005.
99
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See Fenwick p. 1347 onwards for the British case law and discussion as to the compatibility of such offence construction
with the presumption of innocence.
97
See Darbyshire p. 67.
98
See Darbyshire pp. 107-8.
99
See Gil-Robles.
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