Lecture 21 – Notes

The Security Services;

• MI5 – Internal Service “the defense of the realm as a whole from external and internal dangers arising from attempts at espionage and sabotage”
• MI6 – Secret Intelligence Service
• SOCA - Serious Organised Crime Agency
• GCHQ – Government Communications Headquarters

Judicial attitudes towards national security – national security governed by Royal Prerogative – so courts very reluctant to review decisions taken on National Security issues – see also Liversidge v Andersen (1942) Powers of Defence of the Realm Act. Authorized detention of anyone considered to be “of hostile origin or association and in need of subjection to preventative control”.

The Legal Regime

Was governed by the Royal Prerogative – See GCHQ Case:

Series of statutes passed to govern the sector from the late 1980’s

• Security Services Act 1989
• Regulation of Investigatory Powers Act (RIPA) 2000
• The Intelligence Services Act 1989
• The Serious and Organized Crime Act 2005
• The Police Act 2005

This has created among other things –

The services are governed by the Home Secretary & Foreign Secretary: Oversight by:

• Prime Minister
• Joint Intelligence Committee – reports to the cabinet secretary, and through him to the PM. Includes the heads of all security agencies. Coordinates activities between security agencies in the UK, and also between UK and foreign security agencies.
• Parliamentary Committee on Intelligence and Security

1. Terrorism

Definition;

Terrorism: interpretation

(1) In this Act ‘terrorism’ means the use or threat of action

where -

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it –

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the  person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

Act created a list of proscribed organizations. Subsequent statutes were passed in 2005 in response to the London Bombings and also in 2006 – the acts have all sought to do a few things:

Create a list of proscribed (banned) organizations. The Act provides a list of organizations involved in terrorism, two kinds of organizations: Northern Ireland Related & Islamic The Irish Republican Army.

Cumann na mBan.

Fianna na hEireann.

The Red Hand Commando.

Saor Eire.

The Ulster Freedom Fighters.

The Ulster Volunteer Force.

The Irish National Liberation Army.

The Irish People’s Liberation Organisation.

The Ulster Defence Association.

The Loyalist Volunteer Force.

The Continuity Army Council.

The Orange Volunteers.

The Red Hand Defenders.

Al-Qa’ida

Egyptian Islamic Jihad

Al-Gama’at al-Islamiya

Armed Islamic Group (Groupe Islamique Armée) (GIA)

Salafist Group for Call and Combat (Groupe Salafiste pour la Prédication et le Combat) (GSPC)

Babbar Khalsa

International Sikh Youth Federation

Harakat Mujahideen

Jaish e Mohammed

Lashkar e Tayyaba

Liberation Tigers of Tamil Eelam (LTTE)

-          The act however provides a procedure whereby one can appeal to taken of the list.

-          Creates criminal offences related to terrorism – e.g. belonging to a proscribed organization, soliciting funding for a proscribed organization. Money laundering, expanded search and seizure powers, Wearing the uniform of a proscribed organization.

-          Permits the seizure of property belonging to a proscribed organization.

-          Permits the detention without charge of members of proscribed organizations

First sign of push back comes with:

A v SSHD (2001)

The Anti-Terrorism, Crime and Security Act was created as a response to 911 threat. The case began with 10 men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence of them being a threat to national security.

Of the 10 appellants, all except 2 were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001.  Part 4 of the Act allowed this procedure and their deportation only for non-British nationals. Under section 25 of this Act, they had the legal right to appeal to the Special Immigration Appeals Commission against their detention.

“This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. 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. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community”.

I would allow the appeals.  There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001.  There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.  The Secretary of State must pay the appellants’ costs in the House and below.

• Response – terrorism acts of 2005 – permits the issue of control orders where there: reasonable grounds for suspecting the person is a terrorist.
• Permits extended periods of detention. Up to six months. Place restrictions on certain kinds of persons. Stay in a particular place.

• ECtHR – legality depends on the extent of controls

SSHD v JJ 2007

SSHD v AF 2007

Terrorist Act of 2006 – in response to the London Bombings – included chemical weapons, extends detention period to 28 days.

Interception of Communications

Until the case of Malone v Metropolitan Commissioner of Police 1979, there was no statutory basis for granting warrants. This was recognized as a significant gap in the UK legal system by the court in Malone.

Government passed the Interpretation of Communications Act 1985 as a response to the Malone ruling in the HL. This was amended by the RIPA Act: As a response to cases challenging the validity of ICA & technological advances. Cases challenging validity of ICA 1985, using section 8 of the HR Act.

Khan v UK –

In Khan v. United Kingdom [2010] ECHR 47486/06, judgment delivered January 12, the applicant, a Pakistani national, entered the United Kingdom at the age of three. He was granted indefinite leave to remain. In 1993, at which time the applicant was either approaching 18 or had reached that age, a court found the applicant guilty of the theft of an insurance document.

In 1998, he was fined following a conviction for the use of a forged banker’s draft. In 2003, the applicant was convicted of involvement in the importation of a Class A drug, namely heroin. The conviction attracted a sentence of seven years’ imprisonment. Then, in May 2006, the Home Secretary served on the applicant a notice of decision to make a deportation order pursuant to s.3(5) of the Immigration Act 1971. Various appeals were brought, but unsuccessfully. In September 2008, the Home Secretary advised that he would not be considering new representations, which had been made by the applicant’s representative in August 2008, as a fresh claim for asylum.

The applicant complained to the European Court of Human Rights that the decision to deport him violated his right to respect for his family and private life under art.8 of the European Convention on Human Rights. The United Kingdom Government contested that argument.

The court ruled that it was to be accepted that the measures complained of interfered with both the applicant’s “private life” and “family life”. It was further not in dispute, for the purposes of art.8(2), that the impugned measure had a basis in domestic law, namely, s.3(5) of the 1971 Act, and that the interference served a legitimate aim, namely, the “prevention of disorder and crime” and the “protection of health or morals”.

The principal issue was whether the interference was “necessary in a democratic society”. The offence of involvement in the importation of heroin was particularly serious. Nevertheless, it was to be noted that the applicant had not committed any offence following his release from prison in respect of the sentence imposed for the 2003 conviction.

Further, having regard to the length of time which the applicant had been in the UK and his very young age at the time of his entry, the lack of continuing ties to Pakistan, and the strength of his ties with the UK, the applicant’s deportation from the UK could not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society. Accordingly, there had been a violation of art.8 of the Convention.

Halford v. United Kingdom , (20605/92) [1997] ECHR 32 (25 June 1997)

Ms Halford was appointed to the rank of Assistant Chief Constable with the Merseyside Police. Following a refusal to promote her, Ms Halford commenced proceedings in the Industrial Tribunal claiming that she had been discriminated against on grounds of sex. Ms Halford alleges that certain members of the Merseyside Police Authority launched a 'campaign' against her in response to her complaint to the Industrial Tribunal. This took the form of leaks to the press and interception of her telephone calls.She alleges that calls made from her home and her office telephones were intercepted for the purposes of obtaining information to be used against her in the discrimination proceedings. She claims a breach of Article 8 of the Convention.

Held: The ECHR held that conversations made on the telephones in Ms Halford's office at Merseyside Police Headquarters fell within the scope of "private life" and "correspondence" in Article 8 � 1, since the Court in its case-law had adopted a broad construction of these expressions (see Niemietz v. F.R.G and Chappell v. U.K). However it did not find a violation of Article 8.

Reasoning: With respect to Article 8 the Court observed that telephone calls made from business premises may be covered by notions of 'private life' and 'correspondence'. The telephone conversations made by Ms Halford on her office telephones fell within the scope of the notions of 'private life' and 'correspondence' and that Article 8 was therefore applicable to this part of the complaint. The Court did not find that there was an interference with Ms Halford's rights to respect for her private life and correspondence in relation to her home telephone. Accordingly, the Court did not find a violation of Article 8 of the Convention with regard to telephone calls made from Ms Halford's home.

Review the RIPA Act and what it says on Communications

• Interception would be lawful under UK regulations if they are made with the consent of the sender and recipient of the communications.
• Warrant can be issued to intercept communications
• in the interest of national securtity,
• the detection of a crime and
• the safeguarding of the economic well being if the UK