UK: Permanent anti-terrorist law proposed (feature)
01 January 1997
At the end of October, with very little publicity and only a brief press release, Lord Lloyd of Berwick reported on his inquiry into counter-terrorist legislation. The inquiry had been set up jointly by Home Secretary Michael Howard and Secretary of State for Northern Ireland Sir Patrick Mayhew in December 1995, to investigate if the UK still needs special legislation, assuming this was no longer required in relation to Northern Ireland. The Lloyd Report says it does. Such is the terrorist threat that not only is permanent legislation desirable to combat terrorism, but past powers need to be further widened and strengthened, Lloyd concludes. His model legislation drops some of the existing powers, retains others and proposes some significant additions.
There are six key additions.
1. New permanent legislation should be based on a broader definition of terrorism than exists under Section 20 of the Prevention of Terrorism at present.
2. Those conspiring in the UK to commit offences abroad will be triable within the UK.
3. The prosecution should be allowed "to adduce evidence of telephone intercepts" in terrorist trials.
4. Convicted terrorists will have to forfeit all money and property and the onus will be on them to prove that such property was not derived from criminal activity.
5. Courts ought to be obliged under the law to take account of the terrorist nature of the offence when passing sentence.
6. In cases where "an accomplice gives evidence against a fellow terrorist" a statutory discount of sentence is recommended of between one-third and two-thirds.
The present anti-terrorist legislation, the Northern Ireland (Emergency Provisions) Act 1996 (EPA) and the Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA) provides powers principally in relation to terrorism connected with the North of Ireland, although the PTA has been amended, in part, to tackle international terrorism.
ECHR Alignment
Lloyd recommends that the new legislation should respect the European Court of Human Rights ruling that seven-day detention is a breach of the Convention. The police should have the right to detain suspects for an initial forty-eight hours, compared to the thirty-six hours allowed under the Police and Criminal Evidence Act, and this will be extendable for a further forty-eight hours (96 hours maximum). In all other respects - powers of arrest, interviewing, fingerprinting and the taking of "intimate body samples" - any new anti-terrorist law should be in line with PACE powers and procedures.
Some of the more recent extensions of the PTA and EPA, Lloyd proposes, should be retained or slightly modified. The so-called "godfather" clause - "directing at any level a terrorist organisation" - which was introduced under the EPA in 1991, should be kept in any new legislation, although it has been infrequently used to date in Northern Ireland. Likewise, Lloyd wishes to retain a range of offences such as financial support for terrorist organisations, display of public support, collecting information, "being concerned in the preparation of an act of terrorism", and "going equipped for terrorism". The power to detain at ports of entry should be kept but people should only be held for six hours before being charged or released, instead of 24 hours as now. Records would be kept of all passengers examined for more than thirty minutes.
The police are to be given very wide pre-emptive powers. Powers which can be used long before any act rendered criminal under legislation is perpetrated. The scope for wrongful detention and unmeritorious charges will arguably be similarly vast and potentially give rise to a mass of miscarriages of justice involving those involved in legal political and social protest.
Abolition
There would be no need for special courts (such as Northern Ireland's Diplock courts), once peace is established, and likewise, the power to make exclusion orders and to d