What is Terrorism? Revisited

What is terrorism? In this earlier article concerning the dreadful murder of solider Lee Rigby in Woolwich, we saw that section 1 of the Terrorism Act 2000 defines ‘terrorism’ as follows:

• the use or threat of ‘action’,
• which is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
• which is made for the purpose of advancing a political, religious, ideological or racial cause.

‘Action’ includes:

• serious violence against a person,
• serious damage to property,
• endangering a person’s life (other than the life of the person committing the action),
• creating a serious risk to the health or safety of the public or a section of the public, or
• anything designed to seriously interfere with or seriously disrupt an electronic system.

The definition is drawn widely and, in essence, involves the use or threat of violence for political, religious, ideological or racial causes.

How far does the definition extend? In particular, does it include military attacks by groups that are not backed by the state against national or international armed forces in a non-international armed conflict (for example, does it extend to Taliban attacks on coalition forces in Afghanistan)? That was the question facing the Supreme Court in the case of R v Gul [2013] UKSC 64 (the sixty-fourth case heard by the United Kingdom Supreme Court in 2013).

Background

Mr Gul was convicted by a jury of five counts of disseminating terrorist publications, contrary to section 2 of the Terrorism Act 2006. He was sentenced to five years’ imprisonment. ‘Terrorist publications’ includes publications which are likely to be understood as a ‘direct or indirect encouragement…to the commission, preparation, or instigation of acts of terrorism’.

Mr Gul’s publications included videos posted on YouTube showing, amongst other things, attacks by members of al-Qaeda and the Taliban on military targets in Chechnya and on coalition forces in Iraq and Afghanistan, and attacks on civilians, including the 11 September 2001 attacks on the United States. The videos appeared along with commentary praising the bravery and martyrdom of the attackers, and encouraging others to act in similar way.

At Mr Gul’s trial in the Crown Court the judge held that attacks by non-state armed groups against national or international armed forces in a non-international armed conflict in their territory were ‘terrorism’. The Court of Appeal agreed with this, and dismissed Mr Gul’s appeal against conviction and sentence. Mr Gul appealed to the UK’s highest court, arguing that this interpretation of ‘terrorism’ was too wide. In particular, he argued, firstly, that the 2000 Act was intended to give effect to the UK’s international treaty obligations, and since ‘terrorism’ in international law did not extend to military attacks by non-state armed groups against state (or inter-governmental organisation) armed forces in a non-international armed conflict it should not be read that way under the 2000 Act; secondly, it would be wrong to read the 2000 or 2006 Acts as criminalising in the UK acts which occur abroad, and; thirdly, as a matter of law some qualifications must be read into the wide words of the definition of ‘terrorism’.

The Judgment of the Supreme Court

The Supreme Court approached the issue by considering, firstly, what ‘terrorism’ meant based on the provisions in the 2000 Act and, secondly, whether that meaning conflicted with international law.

In relation to the first issue, the Supreme Court held that on a natural reading of the definition of ‘terrorism’ in the 2000 Act, the term had a very wide meaning and there was no reason to read that natural very wide meaning in a restrictive way. The definition had been drafted in a deliberately wide way to take account of the unpredictable forms that terrorism might take. Accordingly, the only reason to interpret the definition more restrictedly would be if it conflicted with any of the UK’s international law obligations.

Addressing the second issue, the Supreme Court held that there was no accepted definition of terrorism in international law, which was an ‘insuperable obstacle’ for Mr Gul to overcome. In the absence of an accepted international definition it could not be said that the UK’s definition of ‘terrorism’ had to be read in any particular way. Moreover there was no issue with criminalising acts occurring abroad since the relevant criminal act (publishing terrorist material) occurred in the UK.

In summary, then, on a natural reading of the definition of ‘terrorism’ the term was wide enough to encompass military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict, and there was no reason in UK (domestic) or international law to read it otherwise. The appeal failed.

‘Terrorism’ Too Wide?

Interestingly, the Supreme Court stated that the definition of ‘terrorism’ was ‘concerningly wide’. Indeed they noted that the current law ‘allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked’. It was especially concerning given the wide powers given to the police in relation to terrorist matters. Any narrowing of the definition of ‘terrorism’ would, the Supreme Court said, be welcome.

What are your thoughts? Is the definition of ‘terrorism’ too wide?

Sources of Law in England and Wales: Common Law

This article will discuss what common law is and its place in the English legal system. This article is part of the ‘Introduction to English Law Series’. The series can be found here.

What is Common Law?

The common law is simply the body of legal decisions made by the courts. Why are these decisions important? Firstly, the courts have to apply legislation and in doing so they must interpret what it exactly means; so court decisions supply the authoritative meaning of legislation that might otherwise be ambiguous. Secondly, court decisions are important because not all areas of law are set out in legislation. Many areas of law have been left to develop over the centuries by decisions of the courts. For example, much of contract law is to be found in the common law, not in legislation, and the modern law of negligence is found exclusively in the common law. So court decisions also can tell us what the law is.

It would not be desirable if each court could make a decision about a particular matter without having regard to what another court has decided about the same matter (or a very similar matter) in a previous case for two reasons. Firstly, there would be no consistency in legal decisions, which would not be a just state of affairs. Secondly, it would make the determination of what the law actually is nearly impossible as there would be no consistency in the various decisions. Again, this would be unjust since society would not readily know what the law is so that they could comply with it. It is therefore important that the courts follow their previous decisions. This is the principle of stare decisis (‘following previous decisions’).

So how does a court deciding a case know which previous decision to follow?

Judicial Precedent

Put simply, when a court is deciding a case that engages the same legal issue that a previous case has decided, the court must follow the decision (precedent) of the other court. It must follow the legally binding part of that previous decision, known as the ratio decidendi (‘the reason’). A court may also make reference to other things said in a previous decision which are not part of the actual legal decision, these other things being obiter dicta (‘other things said’). Obiter dicta are not binding, but they can be persuasive enough for another court to follow.

Must all courts follow the decisions of all other courts? If different courts have decided the same issue differently which decision should be followed? The general rule is that a lower court must follow a decision of a higher court. And, generally, a court must follow the previous decisions of a court of the same level. This requires an explanation of the hierarchy of courts in England and Wales, beginning with the highest court.

• Supreme Court (House of Lords until October 2009) – will normally follow its own previous decisions, but may depart from them when it is right to do so.

• Court of Appeal – must follow the decisions of the Supreme Court, and must normally follow its own previous decisions, subject to certain exceptions.

• Divisional Court – must follow the decisions of the Supreme Court and Court of Appeal, and must normally follow its own previous decisions, subject to certain exceptions

• High Court – must follow the decisions of courts above it. Not bound to follow its own decisions but usually does so.

• Crown Court, county courts and magistrates’ courts – must follow the decisions of higher courts. Not bound to follow their previous decisions. Do not set binding precedents.

It is finally worth nothing that decisions of the European Court of Justice are binding on all UK courts since the UK has agreed to be bound by such decisions under section 3 of the European Communities Act 1972. UK courts must only take decisions of the European Court of Human Rights into account, by reason of section 2 of the Human Rights Act 1998. International law will be discussed further in the next part of this series.

Sources of Law in England and Wales: Legislation

This article will discuss what legislation is, how it is made and where it fits in the English legal system. This article is part of the ‘Introduction to English Law Series’. The series can be found here.

What is Legislation?

Put simply, legislation refers to laws that have been formally written down in a document. A piece of legislation will make laws about a particular topic, or a range of topics, such as criminal justice or consumer rights.

In the UK the power to make legislation rests with Parliament. For these purposes Parliament is comprised of the House of Commons, the House of Lords and the monarch. Parliament is supreme and can make or unmake any law it wants. It could, for example, legislate that all blue-eyed babies were killed at birth.

Legislation can be broadly split into two types: primary and secondary.

Primary Legislation

Primary legislation is made by Parliament itself (and because Parliament is supreme the law it makes itself is of primary importance, hence ‘primary legislation’). Legislation made by Parliament is known as an Act of Parliament (or a statute). Well known examples include the Human Rights Act 1998 and the Sale of Goods Act 1979.

How is an Act of Parliament made? A proposed version of the law – known as a Bill – enters one of the Houses of Parliament. Often, a Bill will start in the House of the Commons where it will be debated by MPs first. It can, however, start in the House of Lords where it will be debated by peers first. The Bill will pass through the following stages in each House.

• First reading – the Bill is read and formally introduced.
• Second reading – the general principles of the Bill are debated and voted on.
• Committee stage – the Bill is examined line by line and amendments can be proposed and voted on. This is normally done in a committee room away from the chamber of the House of Commons or the House of Lords.
• Report stage – further amendments are debated and voted on in the chamber of the House of Commons or House of Lords
• Third Reading – the final opportunity to debate and amend the Bill. A vote is then held on whether to approve the Bill. When it is approved it passes to the next house for consideration.

Occasionally the House of Commons and House of Lords will disagree over a Bill and it will pass back and forth between the two houses. This is known as ‘ping-pong’. When a Bill completes its passage through both Houses and is approved it is ready to receive royal assent; the monarch will formally agree to make the Bill into an Act of Parliament. Royal assent is granted as a matter of course. It has not been refused since Queen Anne refused to grant it in 1707.

The Act will either come into force immediately or on another day appointed or to be appointed in secondary legislation.

Secondary Legislation

Secondary legislation (or delegated or subordinate legislation) is legislation made by someone other than Parliament. Parliament allows another to make the law on its behalf. Often this power is given to government ministers and local councils. However, it is always subject to the control of Parliament.

The power to make delegated legislation is given to the relevant person in an Act of Parliament. Since the Act enables a person to make law it is referred to as an ‘enabling Act’.

There is a range of types of delegated legislation. The three most significant types are:

• Statutory instruments – these normally take the form of Regulations, Rules and Orders. These are by far the most numerous type of legislation passed (about 3000 are passed each year).
• Bylaws – normally made by local councils, concerning matters such as parking restrictions.
• Orders in Council – approved by the Privy Council and signed by the monarch. Often used in times of emergency.

When secondary legislation is properly made, it has the full force and effect of primary legislation. However, the lawmaker can only makes laws within the scope of the power given to it by Parliament in the enabling Act. If the lawmaker goes beyond the powers they were given then the delegated legislation can be declared ultra vires (meaning ‘beyond powers’ in Latin) by the courts and quashed. The courts cannot, however, quash primary legislation since Parliament is supreme and can never act beyond its own powers: they are limitless theoretically.

It is the role of the courts to interpret all of this legislation. As the higher courts do this they create law by their interpretation: common law. Lower courts will follow the rulings of higher courts because it is desirable to have a body of law that is applied consistently. This will be discussed further in the next article in the series.

The Conservatives and Human Rights: Are they Right?

In recent weeks the news has reported that the Conservative Party has pledged to reform human rights law if it wins the next election in 2015. Theresa May, the Home Secretary, has said that the Conservatives will scrap the Human Rights Act 1998 (HRA). Chris Grayling, the Justice Secretary and Lord Chancellor, has said that the UK will withdraw from the European Convention on Human Rights (ECHR) if it is necessary. The Conservatives say that it will allow the UK to make its own decisions about human rights, rather than being dictated to by the European Court of Human Rights.

So what exactly does all this mean? And are the Conservatives right to say that we must reform human rights law drastically?

The ECHR and the HRA

The ECHR (‘the Convention’) was produced by the Council of Europe in 1950 to set down common human rights so that the horrors of the Second World War could not be repeated. For the avoidance of doubt, the Council of Europe is not part of the European Union; it is an entirely separate body comprising 47 member states. Winston Churchill, a Conservative Prime Minister, was a driving force behind the creation of the Convention. The Convention was drafted in large part by David Maxwell Fyfe, a Conservative lawyer and politician. The UK was instrumental in the drafting of the Convention and was in fact the first country to sign it on the very first day it opened for signature: 3 September 1950.

The primary rights it guarantees to citizens are:

• the right to life (Article 2);
• the right not to be tortured or subjected to inhuman or degrading treatment (Article 3);
• the right not to be forced into slavery or servitude (Article 4);
• the right to liberty (Article 5);
• the right to a fair trial (Article 6);
• the right not to be criminalised for acts that were not criminal when they occurred (Article 7);
• the right to private and family life (Article 8);
• the right to freedom of thought, conscience and religion (Article 9);
• the right to freedom of expression (Article 10);
• the right to freedom of assembly and association (Article 11);
• the right to marry (Article 12); and
• the right to not be discriminated against in respect of the other Convention rights (Article 14).

Ultimately the Convention allowed an individual to complain to the European Court of Human Rights (again, this is not related at all to the European Union) if they believe their human rights have been breached by their own country. If the Court agrees it can order the country to rectify the problem. For example, if the UK routinely tortured people, an individual could complain to the Court and, if it finds there has been torture, it could order the UK to no longer breach this human right. The rights could not, however, be enforced in this country. Although we had signed the Convention it was not actually part of our domestic law. British courts could not therefore enforce the rights.

In 1997, the Labour Government introduced the Human Rights Bill into Parliament which subsequently became the Human Rights Act 1998. The Act simply brought the Convention rights into our domestic law so that British courts could enforce the rights directly. An individual can complain to a British court that a public body had breached their human rights. If the court agrees it can, to put it simply, declare that the public body has acted unlawfully. If an individual feels that the British courts have got it wrong they can still apply to the European Court in Strasbourg. If the European Court disagrees with the British courts then the decision of the European Court is final because the UK has agreed not to breach human rights as interpreted by the European Court.

The Conservatives and Human Rights

In some cases the European Court has made decisions that the Conservatives disagree with especially. For example, the European Court has said we must give prisoners the right to vote (Hirst v United Kingdom (2005)) and we cannot deport dangerous terrorists and terror suspects if they are likely to be tortured in their own country or placed on trial where evidence obtained by torture will be used (Othman v United Kingdom (2012) – the Abu Qatada case. You can read here for more information on this case). In both these cases the British courts had said there were no breaches of human rights. The European Court disagreed and its decision was binding.

The Conservatives do not believe that the UK should have to listen to the Strasbourg Court, so it plans to scrap the HRA. If necessary, they have said they would withdraw the UK from the ECHR itself, which would mean leaving the Council of Europe.

So what implications would this have? Firstly, scrapping the HRA alone would have little effect. It would simply stop human rights claims being brought in the UK; it would not stop individuals complaining to the Strasbourg court, whose decisions would remain binding. The only effective way to stop the Strasbourg court being the final source of authority would be to withdraw from the ECHR and leave the Council of Europe (you cannot be a member if you are not signed up to the Convention).

So should we withdraw from the ECHR? In my opinion we should not, for six reasons.

Firstly, the reality is that leaving the Convention would have little practical effect. Most of the rights in the Convention have their roots in English law. English law has a proud tradition of protecting human rights and most of the convention rights would still be protected by British courts even in the absence of the Convention.

Secondly, and related to the first point, British courts would still likely look to the decisions of the European Court when deciding about human rights because it is a high authority on human rights. The influence of the Strasbourg court would not just disappear.

Thirdly, the Strasbourg court does simply ignore the views of the UK. It has occasionally accepted that it has made an incorrect decision because it did not sufficiently understand our law. This was seen recently in a case concerning hearsay evidence (Al-Khawaja v United Kingdom (2011)). The court is willing to engage in a dialogue with the British courts to ensure the correct decision is reached.

Fourthly, the majority of people agree that the Strasbourg court makes the right decisions almost always, even if they seem to protect an unpleasant minority of people in society. It just so happens that the human rights of unpleasant groups are breached more often and so they have a need to enforce them. And that is a key point. Human rights protect everyone regardless of who they are. They belong to everyone and are not subject to popular opinion.

Fifthly, and related to the fourth point, although British law would protect human rights to an extent, the ECHR remains the strongest source of human rights. If we ask ourselves, honestly, which of those rights would we be content to lose, what would the answer be? I suggest none.

Finally, and importantly, to withdraw from the ECHR would very badly affect the reputation of the UK. The UK is rightly recognised as a beacon of justice and fairness. That reputation is also economically beneficial to the UK, since foreign litigants choose British courts to decide their disagreements, at great profit to the UK economy. Leaving the ECHR would damage our reputation enormously and damage our fragile economy.

Conclusion

It appears that the Conservative party wildly misunderstands human rights law and the damaging effect it would have to withdraw from the ECHR. The UK has been at the forefront of human rights from as early as the Magna Carta in 1215. We should continue to be at the forefront in the future.

What are your thoughts?

Should Police Bail Have a Time Limit?

Today the civil liberties group, Liberty, has called for a maximum limit on the time an individual can be kept on police bail.

The group has called for a change to the law given that some suspects arrested in the Metropolitan Police’s linked investigations into alleged bribes and computer hacking are approaching two years on bail without charge.

The group is calling for a six-month time limit. So the question is: should a time limit be introduced?

Police Bail

It is first helpful to identify exactly what police bail is. Police bail is the species of bail imposed by the police when they are investigating if an individual has committed a crime. The need arises for it when the police do not have sufficient evidence to formally charge an individual but consider that further investigation is necessary. The individual is released on the understanding that they will return to the police station at a later date to potentially face charges.

The police can impose conditions when they grant bail if they are necessary to ensure that the individual answers their bail (returns to the police station), does not commit offences while on bail, does not interfere with witness or otherwise obstruct the course of justice, and/or for their own protection (or, if the individual is under 17, for their own welfare or in his own interests). Conditions could include, for example, residing at a particular location, not going to a particular area, not contacting certain individuals, or a curfew.

Police bail is imposed under the Police and Criminal Evidence Act 1984 and the Bail Act 1976. The law on bail is widely thought of as unsatisfactorily complex.

Should There be a Maximum Time Limit?

There is no maximum time limit set out in the law for how long an individual can be kept on police bail. While Liberty is calling for a six-month time limit, others have called for an even shorter limit. The Law Society, the group that represents solicitors, has called for a 28-day time limit. Should a time limit be introduced?

Bail is undoubtedly a useful tool for the police. It allows the police to conduct their investigations in the knowledge that a suspect will return to answer potential charges. Police bail, along with custody time limits, is also hugely important to the individual. It prevents an individual being detained while the police investigate if there is sufficient evidence to charge the individual formally with a crime: it protects liberty.

However, being on police bail can be a very difficult for an individual. They will be concerned and worried about the prospect of being charged with a crime, which is undoubtedly stressful. Moreover, their liberty may be restricted if they are subject to conditions. Over a prolonged period this is very likely to be detrimental to the individual’s wellbeing. When there is no maximum time limit there is no incentive for the police to conduct their investigations as efficiently and productively as possible. Instead, the police can take an unlimited amount of time.

A simple way to resolve this would be to impose a maximum time limit on police bail, which could be extended by a magistrates’ court if there is good reason. For example, there could be a maximum time limit of six-months, extendable by a magistrates’ court for an additional period (perhaps three months at a time) if there is good reason to do so. This modification would be beneficial for everyone. The police could acquire an extension of time to investigate a case if there is good reason; this recognises that some cases are very complex and take a prolonged period to investigate. It also protects the individual because they would know that in six months they will be released from bail if there is not a good reason for extending it; it encourages more efficient police investigations.

To my mind at least, it is not satisfactory that an individual can be on police bail indefinitely. The individual can be protected in a way that does not inhibit police investigations by having a maximum time limit on bail which can be extended by the courts when there is a good reason to do so.

What are your thoughts? 

Sources of Law in England and Wales: An Introduction

The aim of LawScape is to digest legal news in an accessible way. I believe it can be even more useful than that and digest the law more generally in an accessible way. That does not mean that it will now start discussing obscure points of law. Instead, it will explore interesting areas of law alongside legal news as normal.

I feel that the best place to start is to explore in a little more detail the main sources of the law in England and Wales. Since (almost) all law comes from these sources it is very helpful to understand them.

In this piece I shall identify and briefly describe the main sources of law. A more detailed article on each will follow in the coming weeks. The collection of articles will be accessible from the menu bar.

The main sources of law in England and Wales are:

-           legislation (statute law);

-           common law (judge made law); and

-           international law (in particular the law of the European Union)

Legislation

Legislation is divided into two categories: primary legislation and secondary (or delegated or subordinate) legislation.

Acts of Parliament (or statutes) are primary legislation. They are made by Parliament and are the supreme type of law. Parliament can make or unmake any law it wants without restriction.

Secondary legislation takes many forms. It is made by individuals and bodies such as the government and local authorities. An Act of Parliament grants power to an individual or body to make secondary legislation (in these circumstances the Act is known as a ‘parent’ or ‘enabling’ Act).

Most secondary legislation is in the form a Statutory Instrument. They are often called Orders, Regulations and Rules. Other secondary legislation includes Orders in Council and Byelaws.

Common Law

Common law is made by judges. Not all law is written in legislation. Common law is the body of law made up of judicial decisions. Judges can also make law when they interpret what legislation actually means. By way of an example, most of the law concerning contracts can be found in the decisions of previous cases (common law), not in legislation.

International Law

International law is the body of law made by organisations around the world that England and Wales (and normally the UK as a whole) agrees to be bound by. In the UK the main source of international law is European Union law. Another significant source of international law is the Council of Europe, which produced the European Convention on Human Rights.

International law does not have effect in the UK until is it incorporated into our law by legislation.

Conclusion

Collectively, these three sources make up almost all of our law. They often interact with each other and are often not clear. When presented with a problem, the courts must determine what law is applicable and then apply it to the facts to come to a decision.

In the coming weeks each source will be discussed in more detail.

Veils, Jurors and Justice: The Law in Summer 2013

LawScape has now returned from its summer break. The summer months are traditionally quieter in the legal world as Parliament, many of the courts, and much of the Government have a well deserved break. Some of the higher courts continue to enjoy that deserved break. However, the legal world has been anything but quiet this summertime.

Whether it is the continuing fiasco concerning legal aid, decisions about human rights, or the trial of television celebrities for sexual offences, it has been a very busy legal summer. Two of the most interesting developments for me have been the announcement that individuals up to the age of 75 will in future be able to serve on juries, and the decision that a Muslim woman on trial for witness intimidation must remove her niqab (veil) if and when she gives evidence.

Older Jurors

The announcement that those aged up to 75 will now be able to sit on juries is a welcome one. The right to be tried by our peers is one that has its foundations in the 1215 Magna Carta (the ‘Great Charter’). We are very defensive of our right to be judged by a random selection of people that represent our society. In recent years however, juries have not be able to represent the oldest members of our society: the over 70s. In the past, this group did not make up a significant proportion of the population. But we are now all living a great deal longer, so the over 70s represent a significant proportion of the population. If our jury system is to continue to produce juries that represent our society, then it must be possible to have the over 70s selected. Not only will this ensure that juries reflect modern society, but it will make use of the very great and important life experience that the over 70s have acquired. The announced change is to be commended.

The change will be effected by an amendment to the Juries Act 1974. Currently this provides that only those aged 18 to 70 may sit on a jury.

Veils in Court

This week His Honour Judge Peter Murphy decided that a female Muslim defendant charged with witness intimidation must remove her veil if and when she gives evidence. At other times, however, she may continue to be veiled.

The judge had to balance the woman’s right to express her religious beliefs (under Article 9 of the European Convention on Human Rights) and the public interest that criminal trials are conducted in accordance with the rule of law, open justice and the adversarial nature of our trial system.

In essence, the judge held that the jury’s ability (and, to a lesser extent, the judge’s and lawyers’ abilities) to observe the defendant’s facial reactions to the questions they are asked is crucial and not to be compromised. The defendant’s evidence is crucial and when it is given the defendant must submit fully to the scrutiny of the jury. On the other hand, while a jury may observe the defendant’s reaction at other times (when they are in the dock not giving evidence) this is not sufficiently important to trump the defendant’s right to express their religion by wearing a veil. Accordingly, at other times the defendant may remain veiled.

Unsurprisingly, the decision has been controversial, with various individuals saying that the court went too far or did not go far enough. For my own part I remain undecided. In my opinion the court certainly did not go too far, it was right to order that a veil cannot be worn when a defendant gives evidence. The question is if it went far enough?

What are your thoughts?