By Jacqueline Hodgson
The concern with security is everywhere it seems. Whether it is terrorism or climate change, knife crime or the global financial recession, immigration or paedophiles, there is a discourse of managing risk and uncertainty in order to provide greater security. Within criminal justice, government policy centres on the premise that the price of more security is less freedom. In order to protect us from terrorists, we need to have wider police powers to stop and search individuals without the need for reasonable suspicion; fewer due process rights during police detention and interrogation; broader legal offences that criminalise activity before any harm is caused; and, until the House of Lords ruled that it was contrary to the European Convention on Human Rights (ECHR), the power of indefinite detention without charge. The issue is, of course, much more complex than this simple dichotomising suggests; liberty and security are not necessarily antithetical. In the UK, the Joint Committee on Human Rights1 rejects this approach:
We reiterate the importance of not seeing liberty and security as being in an inverse relationship with each other... We agree with the view expressed by the European Commission for Democracy through Law (the Venice Commission) that ‘State security and fundamental rights are not competitive values: they are each other’s precondition’.
The House of Lords expressed a similar view in A v Secretary of State for the Home Department , the case that led to the discontinuance of indefinite detention in the high security Belmarsh prison and the establishment of the replacement regime of control orders. Lord Hoffman cautioned (at para 97) that
[t]he real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve.
In France, these two perspectives reflect in part the political debate around sûreté (inspired by the right of habeas corpus, the freedom from arbitrary arrest or detention, established in the 1789 Déclaration des Droits de l’Homme et du Citoyen) and the more contemporary theme championed by the Right – sécurité – now the first article of the legislation passed on 18 March 2003 declaring the right of sécurité as a fundamental right and one of the conditions for the exercise of individual and collective freedoms.
Most recently, we have witnessed the argument that security requires that some (often crucial) evidence against a person must remain secret. The right to know the case against you and to be able to challenge it in open court are basic requirements of a fair trial under Article 6 ECHR. However, evidence remains secret in an increasing number of cases, including deportation hearings, pre-charge detention hearings in terrorism cases, and even planning tribunals. Control orders are issued against those who cannot be deported for fear of facing torture or similar treatment, or cannot be prosecuted because the case against them is based on intelligence rather than legal evidence that will withstand scrutiny and challenge in a court of law. For this reason, control order hearings often include ‘closed’ evidence that is not revealed to the controlee on the grounds of national security. The only way in which the defence can challenge such evidence is through the special advocate procedure. The special advocate is a security-cleared lawyer appointed to ‘represent’ the controlee. The advocate may see the closed evidence, the controlee may not; the advocate may not discuss any aspect of the closed evidence with her ‘client’, but may take ‘instructions’ before then challenging the evidence on behalf of the defence. This Kafkaesque procedure is of limited benefit to the controlee who is not permitted to see or know anything of the evidence and so will not know on what basis she should be instructing the advocate. In the unanimous judgment of nine Lords of Appeal, the House of Lords in Secretary of State for the Home Department v AF and others  held that unless the controlee is given sufficient information about the allegations against her to enable her to give effective instructions to the special advocate, there will be a breach of Article 6 ECHR. The House was clear that security cannot trump liberty in every case. Lord Hope of Craighead said (at para 79):
The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.
The sensitive nature of evidence gathered in terrorist cases makes its investigation and prosecution different from other offences. In particular, the ways in which intelligence is used can be problematic. At a policy level, intelligence informs the perceived threat to security and so the government and legal response. This may be at an international level (as with the Iraq war) or domestically (as with detention without charge and now control orders, and extended 28 day pre-charge detention for police interrogation). In criminal prosecutions, the same issues of disclosure arise as with control orders. Evidence may relate to covert surveillance or other operations about which any revelation might compromise the security of those working in the field. Telephone intercepts are used widely in other jurisdictions and are admitted as evidence, but in England and Wales the prosecution is reluctant to reveal their use in individual cases. If the fair trial principles of disclosure are to be upheld, this leaves the prosecution between a rock and a hard place: it must either disclose material (in which case it fears the risk to field agents) or discontinue the case and so abandon the prosecution of a terrorist suspect. France has a criminal procedure more accustomed to accepting evidence that has been filtered by the judge pre-trial, enabling sensitive evidence to be admitted without the defence having a full opportunity to challenge its reliability. But in the more adversarial criminal process of England and Wales, where non-disclosure has resulted in appalling miscarriages of justice, this would not be acceptable. The balance between an effective investigation on the one hand, and the due process rights of the accused to ensure a fair trial on the other, is a difficult one to strike in terrorist cases.
- Joint Committee on Human Rights, ‘Counter-Terrorism Policy and Human Rights, Prosecution and Pre-Charge Detention’ (Twenty-fourth Report of Session 2005-06), London, The Stationery Office, 2006, page 13
‘The growing use of intelligence in counter-terrorist investigations poses real problems for the legal system. It is often left to the courts to adjudicate on the protection of sensitive information whilst also ensuring that the accused knows and can challenge the evidence against her. In short, how much evidence can remain secret in a fair trial?.’
Professor Jacqueline Hodgson works in the area of UK, French, comparative and European criminal justice, and is currently making an empirical study of the role of the Criminal Case Review Commission – the body that investigates possible miscarriages of justice in England, Wales and Northern Ireland.
Professor Jacqueline Hodgson
School of Law