Those are the issues underlying this year’s student essay competition, The Times Law Awards sponsored by One Essex Court, Terrorism v Human Rights: where do you draw the line? The competition, launched today to all students at UK educational institutions as well as trainee lawyers, asks entrants to examine the lengths to which the law should go in protecting the public from the terrorist.
When an open society finds itself under attack there is an understandable instinct to start closing down communications, restricting movement, increasing surveillance and taking more robust action against those suspected of being involved. But knee-jerk reactions are seldom a good basis for drawing up laws that must be implemented against a background of fear and suspicion.
Experience from the Guildford Four onwards shows that it is easier to target the innocent than the guilty. The most obvious results so far of “changing the rules” are a dead Brazilian at Stockwell Tube station and an evicted elderly citizen from the Labour Party conference — both entirely innocent of terrorism.
David Wolfson, a barrister at One Essex Court and one of the judges of the competition, says that it is important to clarify the issue that recently defeated the United Nations — what terrorism is; or at least, given that the topic is human rights, what a terrorist is. Should different provisions apply to terrorists and serious criminals? It took many years in Northern Ireland, for example, before “political” status was given to members of the Provisional IRA. Are human rights protected or undermined by placing politically motivated authors of atrocity in a special category? And if so, what are the implications for their treatment by the police and the courts?
The debate is already raging about the latest proposals to extend to three months the time that terrorist suspects can be detained before charge; outlaw the encouragement or glorification of terrorism and create an offence to catch those planning or preparing to commit terrorist acts, among other measures. But in a civilised society, even the terrorist retains rights that must be respected. The proposed three months has been defended by the Home Secretary on the ground that the complexity of electronic and other evidence requires longer than the present permissible two weeks. Indeed, Wolfson says, many of our continental neighbours (including France) have no problems in holding suspects almost indefinitely while the investigating judges probe the charges.
Yet this argument finds little favour with groups ranging from Liberty and Justice to professional bodies such as the Law Society of England and Wales and judges such as the law lord, Lord Steyn. The Law Society, for instance, agrees that effective measures to combat terrorism are needed. But these can be achieved without “serious intrusion” into human rights threatened by the present raft of offences. Charles Kennedy, the leader of the Liberal Democrats, says: “If we undermine the foundation of our legal system then we let the terrorist win.” So where do the “foundations” lie in relation to these matters?
How important, for instance, is freedom of speech? The proposal to ban the “glorification of violence” has proved contentious. Critics say it is so wide that it will catch any statement concerning political violence published in the UK that can be construed as glorifying terrorism to another person somewhere in the world. While it may be offensive to hear mad mullahs issuing calls to arms against the decadent West, prohibiting such messages in a free country can be more complex or dangerous than first appears. Yet if one life is saved by silencing those who manipulate the impressionable, is a small compromise on free speech not justified? Others point out that the offence is superfluous: “Incitement to violence is already a crime,” Wolfson says. Yet proponents insist that our society should make an overt stand against the culture in which people are groomed for hate and death. For years, Wolfson argues, the UK authorities have diplomatically “turned a deaf ear as well as a blind eye” to what has been going on under their noses. “Londonistan” is real. It harbours foreign radical groups and protects home-grown Islamic fundamentalists. And fugitives cannot be returned to countries where they might suffer torture or death. As a result, the UK is now a bolt hole for some of the most serious international terrorists. It may be a triumph for human rights. But is it also a victory for the cause of terrorism?
Yet perhaps that does not matter so much. This appeared to be the view of Lord Hoffmann, the law lord, when he said: “I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive al-Qaeda.” Aside, maybe, from some complacency (echoes of Louis XVI) the implication is that human rights should not be infringed to save the lives of London commuters except when “the life of the nation” is at stake.
So where does law end and politics begin? And who should decide the question — politicians or judges? “Maybe since 9/11 we have been in a state of war — albeit against a new kind of enemy,” Wolfson says. “In times of war you may have to take steps that would normally be unpalatable.” The key question is: where the line should be drawn. Your answer to that is what we would like to hear.
THE RULES
Terrorism v Human Rights
Entries must be received by Friday, November 25, at tla@oeclaw,co.uk; for more information, including rules, consult the One EssexCourt website www.oeclaw.co.uk or www.timesonline.co.uk/studentlaw
PRIZES: First: £3,500; Second: £2,500; Third: £1,500; Three runners-up: £1,000.
