The Terrorism Act 2000 came into force on 20 July

Transcription

1 The Terrrism Act 2000: an analysis --* by Dr C Chatterjee The Terrrism Act 2000 cmpletely refrms the law cncerning preventin f terrrism in the United Kingdm, albeit with sme exceptins; furthermre, it applies t any terrrist activity in the United Kingdm and abrad. It is interesting t nte that the legislatin decided t adpt the term 'terrr-ism', signifying that an 'ism' abut terrr is nw identifiable. The Act des nt refer t terrrist activities as such; instead it refers t acts f terrrism. The Terrrism Act 2000 came int frce n 20 July 2000, and cnsists f eight Parts: Part 1 Intrductry Part 2 Prscribed Organisatins Part 3 Terrrist Prperty Part 4 Terrrist Investigatins Part 5 Cunter-Terrrism Pwers Part 6 Miscellaneus Part 7 Nrthern Ireland affairs f Nrthern Ireland led t a lasting peace in Nrthern Ireland (Cm 4178, December 1998). This Inquiry was published in tw vlumes; the secnd vlume primarily discussed the current and future trends t the United Kingdm frm internatinal and dmestic terrrism (ther than that cnnected with the affairs f Nrthern Ireland); the first vlume simply cntained the backgrund t the Reprt. The current Act is based n the prpsals in the Gvernment's Cnsultatin dcument entitled Legislatin Against Terrrism, which was a respnse t Lrd Llyd's Paper entitled Inquiry int Legislatin Against Terrrism, (Cm 3420, Octber 1998). Part 8 General In additin t these Parts, the Act has 16 Schedules. It is the purpse f this article t identify and discuss the mst imprtant aspects f this Act; human rights issues are nt discussed in this wrk. It is the issue f cunter-terrrism that led the gvernment t enact the current legislatin; all previus legislatin was cncerned with terrrist activities r terrrism. Current legislatin places emphasis n cunter-terrrism in the United Kingdm. A BRIEF LEGISLATIVE HISTORY Legislatin with regard t terrrist activities is nt nvel in the United Kingdm; in 1974 the Preventin f Terrrism (Temprary Prvisins) Act was passed, the primary purpse f which was t prscribe the IP\A and t make it an ffence t signify supprt fr the IRA in the United Kingdm. The Act was subject t renewal every six mnths by Parliament in rder t ensure whether the use f special pwers wuld be needed and if s hw they shuld be mnitred. In 1976 the Preventin f Terrrism (Temprary Prvisins) Act was passed, and it was renewed until 1984 when it was re-enacted with certain amendments. Bth pieces f legislatin were primarily directed at the terrrist activities by the IRA in Nrthern Ireland. In 1995 Lrd Llyd f Berwick was invited by the gvernment t carry ut an Inquiry t cnsider the future need fr specific cunter-terrrism legislatin in the United Kingdm if the cessatin f terrrism in the INNOVATIVE ASPECTS OF THE LEGISLATION The fllwing are sme f the innvative aspects f the current legislatin: (a) the definitin f'terrrism' (s. 1); (b) terrrism in the cntext f the Act is cnnected nt nly with the affairs f Nrthern Ireland and the internatinal arena but als with terrrism by r n behalf f dmestic grups in the United Kingdm; (c) the cncept f prscriptin is extended t all types f terrrism including terrrism cnnected with the affairs f Nrthern Ireland; (d) sectin 5 f the Act established a Prscribed Organisatin Appeal Cmmissin t hear appeals in cases f applicatins t de-prscribe; (e) seizure f cash at brders and frfeiting n an rder f a curt; 19

2 20 (f) identificatin f mney accunts by financial institutins in relatin t terrrist investigatins (Schedule 6); and (g) in respect f applicatins fr extensin f detentin f persns under sectin 141 (Arrest withut Warrant) the decisin is t be taken by a judicial fficer and nt by the Secretary f State. In ther wrds, matters f detentin will hencefrth be decided by judicial authrities rather than by plitical authrities. With the passing f this Act, hwever, the Nrthern Ireland (Emergency Prvisins) Act 1996 generally ceases t have effect (save a few prvisins which are still applicable t Nrthern Ireland). In s far as the Preventin f Terrrism (Temprary Prvisins) Act 1989 and the Criminal Justice (Terrrism and Cnspiracy) Act 1989 are cncerned, they will cntinue in frce fr a perid f 12 mnths frm the passing f the Act f A DISCUSSION OF SOME OF THE INNOVATIVE ASPECTS OF THE LEGISLATION Definitin f the Act f Terrrism 'The act f terrrism' has been defined in sectin 1 which states the fllwing: '(I) In this Act 'terrrism' means the use r threat f actin where- (a) the actin Jails within subsectin (2), (b) the use r threat is designed t influence the gvernment r t intimidate the public r a sectin f the public, and (c) the use r threat is made fr the purpse f advancing a plitical, religius r idelgical cause. (2) Actin Jails within this subsectin if it- fa) invlves serius vilence against a persn, (b) invlves serius damage t prperty, (c) endangers a persn's life, ther than that f the persn cmmitting the actin, (d) creates a serius risk t the health r safety f the public r a sectin f the public, r (e) is designed seriusly t interfere with r seriusly t disrupt an electrnic system. (3) The use r threat f actin Jailing within subsectin (2) which invlves the use jjirearms r explsives is terrrism whether r nt subsectin (1 )(b) is satisfied. (4) In this sectin- (a) 'actin' includes actin utside the United Kingdm, (b) a reference t any persn r t prperty is a reference t any persn, r t prperty, wherever situated, (c) a reference t the public includes a reference t the public f a cuntry ther than the United Kingdm, and (d) 'the gvernment' means the gvernment f the United Kingdm, f a Part f the United Kingdm r f a cuntry ther than the United Kingdm. (5) In this Act a reference t actin taken fr the purpses f terrrism includes a reference t actin taken fr the benefit f a prscribed rganisatin.' Befre the final versin f sectin 1 was adpted different definitins f terrrism were prvided by varius surces. The definitin adpted by Lrd Llyd was the fllwing: 'The use f serius vilence against persns r prperty fr the threat t use such vilence t intimidate r t cerce a Gvernment, the public r any sectin f the public, in rder t prmte plitical, scial r idelgical bjectives'. (See Cm 3420 at para. 523) At the secnd reading f the Terrrism Bill the Hme Secretary stated that: 'Terrrism invlves the threat f use f serius vilence fr plitical, religius r idelgical ends. It is premeditated, and aimed t create a climate f extreme fear. While the direct victims may be specific r symblic targets, they may als be selected at randm. In any event, terrrism is aimed at influencing a wider target than its immediate victims. Althugh all crime t sme degree plainly threatens the stability f the scial and plitical rder, terrrism differs frm crime mtivated slely by greed, in that it is directed at undermining the fundatins f Gvernment'. (Hansard, HC, Vl. 341, cl. 152) The term 'threat' presents a legal prblem in that it may be explained and justified by reference t the circumstances f each case. Sectin l(l)(b) hwever is definitive in that the use f 'threat' must be designed t influence the gvernment r t intimidate the public r a sectin f the public. Accrding t sectin lf the Act terrrism may include the use f threat made fr the purpse f advancing a plitical, religius r idelgical cause. Under the Act an act f terrrism may be identified by die effect f the act, namely, serius vilence against a persn r any serius damage t prperty, endangering a persn's life, creating a serius risk t health and safety f the public r a sectin f the public, r designed t seriusly interfere with r seriusly t disrupt an electrnic system. Under the Act 'actin' includes actin utside the United Kingdm, the term 'public' may include the reference t the public f a cuntry ther than the United Kingdm, and the 'gvernment' means any gvernment including the gvernment f the United Kingdm. It wuld be pprtune t make a few cmments n sectin 1 as this represents ne f the fundamental prvisins f the Act. There are n set criteria fr determining what cnstitutes an act f terrr; the Act instead ' refers t 'terrrism', which wuld stand fr the use r threat

3 f actin in regard t the items included in paragraph 2 f sectin 1. It is believed that the judicial authrities will define acts f terrrism in the cntext f each case. Anticipatry terrrism will cme under the prvisin f sectin 1. Furthermre, 'actin' in sectin 1 includes such actins which may have threatened r actually caused harm t the United Kingdm r which may jepardise the security f the United Kingdm. The issue remains that in such cases the curts in this cuntry will assume jurisdictin in dergatin f the usual principle f internatinal criminal law lcatin f the crime determines jurisdictin (see further ss. 62 and 63.) Sectin 64 makes amendments hwever, t the Extraditin Act 1989, in rder t allw the gvernment f the United Kingdm t be gverned by United Natins Cnventins n Terrrism. Prscribed Organisatins Sectin 3 creates what are knwn as 'prscribed' rganisatins (if listed in Schedule 2) which are all Nrthern Ireland-related rganisatins. Hwever, the Secretary f State may, by rder, add an rganisatin t r remve it frm Schedule 2 r amend the Schedule in any way he likes. An rganisatin is cncerned with terrrism if it: '(a) cmmits r participates in acts f terrrism; (b) (c) (d) prepares fr terrrism; prmtes r encurages terrrism; r is therwise cncerned with terrrism.' The Secretary f State has discretin t designate an rganisatin as a prscribed ne as he has discretin t de-prscribe an rganisatin. The de-prscriptin prcess can be initiated when an applicatin is made by an rganisatin cncerned r by a persn wh has been affected by virtue f the rganisatin being prscribed. The Secretary f State will be acting in accrdance with the Regulatins prscribed fr this purpse but it is fr the applicant t justify the grunds n which an applicatin fr de-prscriptin is being made. The basic grund fr prscribing an rganisatin is if the Secretary f State believes that it is cncerned with terrrism and it is hped that such discretinary pwer will be justifiably exercised by the Secretary f State. Lrd Lester raised the issue f human rights in the prscriptin prcess when the Bill was being cnsidered, and this issue r 7 has been discussed in a separate sectin. There is hwever an appeals prcedure whereby in the event f an applicatin fr de-prscriptin being refused by the Secretary f State, the applicant may appeal t the Prscribed Organisatin Appeal Cmmissin which will decide the Appeal accrding t the principles f judicial review. A further appeal is available t the Curt f Appeal. The primary reasns fr adpting these systems f prscriptin were stated as: (a) that it has remained as a pwerful deterrent t peple becming engaged in terrrist activity; (b) (c) related ffences were cnsidered t be a methd f tackling sme f the lwer level supprt fr terrrist rganisatins; and 'that prscriptin acts as a pwerful signal f rejectin by the gvernment and the sciety as a whle.' (See further statement made by Mr Charles Clarke, Hansard, SCD, cl. 56) The pwers and functins f the Prscribed Organisatin Appeals Cmmissin appear in Schedule 3 t the Act. Offences The fllwing are categrically regarded as ffences under J the Act: (a) (b) (c) membership f prscribed rganisatins; cmmitment f an ffence in a public place while wearing an item f clthing r carrying r displaying an article belnging t a prscribed rganisatin; fundraising and receipt f mney and prperty fr the purpses f terrrism; (d) pssessin f mney and/r prperty with the intentin f using it fr the purpse f terrrism; (e) (f) (g) entering int r becming cncerned in an arrangement as a result f which mney r ther prperty is made available r t be made available t the ther knwing r having reasnable cause t suspect it will r may be used fr the purpse f terrrism; mney laundering, that is, if a persn enters int r becmes cncerned with 'an arrangement which facilitates retentin r cntrl by r n behalf f anther persn f terrrist prperty by cncealment, by remval frm the jurisdictin, by transfer t nminees r in any ther way'(s. 18); failure t stp a vehicle when required t d s by a cnstable in the exercise f his pwers generally under s. 44 (Pwer t Stp and Search); (h) parking f a vehicle in cntraventin f a prhibitin (i) (j) r restrictin impsed by s. 48 (Authrisatins); prviding instructins r training fr the purpses f cmmitting terrrist ffences, r even by making an invitatin t receive instructin r training whether generally r addressed t ne r mre specific persns (s. 54 r by directing the activities f a terrrist rganisatin s. 56); O ' ' pssessing an article in circumstances 'which give rise t reasnable suspicin that its pssessin is fr the purpse cnnected with the cmmissin, preparatin r instigatin f an act f terrrism' (s. 57); (k) cllecting r making a recrd f infrmatin f a ^ ' O kind which is likely t be useful t a persn 21

4 22 cmmitting r preparing an act f terrrism r pssessing a dcument r recrd cntaining r infrmatin f that kind (s. 58); 'recrd' in this cntext wuld include a phtgraphic r electrnic recrd; (1) inciting terrrism verseas r within England and Wales, Nrthern Ireland and Sctland. Scheduled Offences In additin t certain ther prvisins addressed t Nrthern Ireland, (fr example, sectin 60), the entire Part VII f the Act has been exclusively devted t certain Scheduled ffences which apply t Nrthern Ireland, and which have been listed in Parts I and II f Schedule 9. Offences under Part II f this Schedule (Inchate and Related Offences) shall have effect in respect f ffences related t thse specified in Part I, which lists substantive ffences, namely cmmn law ffences; and ffences under varius acts, namely: Malicius Damage Act 1861; Offences against the Persns Act 1861; Explsive Substances Act 1883; Prisn Act (Nrthern Ireland) 1953; Theft Act (Nrthern Ireland) 1969; Prtectin f the Persn and Prperty Act (Nrthern Ireland) 1969; hijacking under sectin 1 f the Aviatin Security Act 1982; ffences in Nrthern Ireland under sectin 2 f the Criminal Jurisdictin Act 1975 (Vehicles and Ships); Criminal Damage (Nrthern Ireland) Order 1977; Criminal Law (Amendment) (Nrthern Ireland) Order 1977; Firearms (Nrthern Ireland) Order 1981; Taking f Hstages Act 1982; Nuclear Material (Ojfences) Act 1982; Cmputer Misuse Act 1990; Aviatin and Maritime Security Act 1990; Channel Tunnel (Security) Order 1994; and ffences under sectins 11, 12, 13, 15-19, 54 and paragraph 37 f Schedule 4 (Frfeiture Orders); Schedule 5 (Terrrist Investigatins: Infrmatin); paragraph 10 f Schedule 10 (Munitins and Transmitters: Search and Seizure); and paragraphs 2 and 3 f Schedules 13 (Private Security Services) unless by way f exceptin any f these Scheduled ffences have been designated as nn-scheduled ffences by the Attrney- General fr Nrthern Ireland. In designating an ffence as a Schedule ffence, the nature f the ffences usually cmmitted by the varius terrrist grups have been taken int cnsideratin. Of curse, the Secretary f State may, by rder, add t r remve frm the list f Schedule ffences any ffence r amend Parts I r II in sme ther way. The fllwing may be applicable t scheduled ffences: lnger perids f remand; different rules fr cmmittal prceedings; stricter rules fr bail; nn-jury trial; lwer threshld fr the admissin in evidence f cnfessin r mre severe sentencing. Sectins deal with pwers f arrest, search and similar security measures in Nrthern Ireland. A cnstable in Nrthern Ireland may enter and search premises n the grunds f a reasnable suspicin f the presence f a terrrist n the premises, withut a warrant. In this cnnectin it shuld be reiterated that under the current Act, the definitin f the 'terrrist' act includes the cmmissin, preparatin r instigatin f acts f terrrism. A cnstable may use reasnable frce, if necessary, in carrying ut his duties (sectins 95 and 114). Similar pwers have been cnferred n members f Her Majesty's frces n duty. If a member f such frces suspects that a persn is in the prcess f cmmitting r has cmmitted an ffence, he may arrest the persn withut a warrant and detain him fr a perid nt exceeding fur hurs, but such a persn making an arrest under sectin 83 must state the grund f arrest. Members f Her Majesty's frces may enter and search any premises where the suspect is r may be. Arrest and detentin under sectin 83 must be in cnfrmity with the Human Rights Act Furthermre, under the cmmn law the persn making an arrest is required t infrm the arrested persn f a reasn fr the arrest (Christie v Leachinsky [1974] AC 573). The right t enter and search premises fr the purpses f ascertaining whether any explsive unlawfully exists n the premises is als allwed t explsin inspectrs. Sectin 85 als gives the authrity t seize any explsives fund in the curse f the search unless he is satisfied that they have been r will be used nly fr a lawful purpse. In this sectin 'explsive inspectr' wuld mean an inspectr appinted under sectin 53 f the Explsives Act It is interesting t nte that the inspectr need nt have any cause f suspicin prir t his carrying ut a search n any premises. This prvisin is primarily intended fr use by thse wh prvide security fr curt buildings. Under sectin 86 f the Act a plice cnstable r a member f the armed frces is authrised t enter any premises fr the purpses f ascertaining, based n his reasnable belief, whether a persn is unlawfully detained whereby his life wuld be in danger. The pwer f a plice cnstable and a member f the armed frces is extended t include examinatin f dcuments in rder t ascertain whether any dcument cntains any infrmatin f the nature mentined in sectin 58(l)(a), that is, infrmatin useful fr a persn cmmitting r preparing an act f terrrism, r under sectin 103(l)(a) whereby a persn cllects, makes a recrd f, publishes, cmmunicates r

5 attempts t elicit infrmatin against a persn, which infrmatin is likely t be useful t a persn cmmitting r preparing an act f terrrism. Examinatin f dcuments under sectin 87 f the Act is subject t legal privilege within the meaning f the Plice and Criminal Evidence (Nrthern Ireland) Order Sectin 88 details the prcedure as t hw t examine the dcuments. The pwer f a plice cnstable r a member f the armed frces in Nrthern Ireland t stp and questin any persn even withut reasnable suspicin is wide. This pwer is nt cnditinal upn the happening f any recent vilent incident and a plice cnstable r a member f Her Majesty's armed frces may stp a passer-by simply by asking him/her fr their identificatin and an accunt f their mvements. Fr the purpse f preserving the peace r the maintenance f rder the Secretary f State may authrise a persn t take pssessin f land r ther prperty r t take steps t place buildings in a state f defence r destry prperty r cause it t be destryed r mved r t carry ut wrks n land r t take any ther actin which interferes with public right r the private right f prperty (sectin 91). Under the Act a plice cnstable r a member f Her Majesty's armed frces have the usual pwers f rad clsure n suspicin in rder t ensure that access t a place by suspected terrrists is prhibited; the same pwer applies t curts and prts. Sectin 98 f the Act prvides fr Independent Assessr and Military Cmplaints Prcedures. The Secretary f State may appint a persn t be knwn as an Independent Assessr fr this purpse, whse primary functins wuld be t keep under review the prcedures adpted by die General Officer Cmmanding Nrthern Ireland fr receiving, instigating and respnding t cmplaints and wh, amngst ther things, shall review a particular case r class f cases, t cnsider whether the prcedures have perated inadequately r t make recmmendatins against inadequacies in thse prcedures t the General Officer Cmmanding Nrthern Ireland, including inadequacies in the way in which they perate pertaining t a particular cmplaint r class f cmplaints (sectin 98). Under the Act the Secretary f State is required t develp a cde f practice in cnnectin widi the exercise by plice fficers f any pwer cnferred by this Act and this cde f practice shall equally apply t Her Majesty's frces in exercising their pwers under the Act. The Secretary f State shall als develp a cde f practice in regard t the silent vide-recrding f interviews. t Preparatin f an act f terrrism including recrding, publishing, cmmunicating r attempting t elicit infrmatin abut a persn r pssessin f a dcument cntaining infrmatin n terrrism is an ffence and is defined as 'terrrist infrmatin'. The Act has made significant prvisins under Schedule 13 in regard t private security services. Such services must be ffered n the basis f a licence, therwise they will be regarded as illegal services. This prvisin primarily applies t ensure that n institutin wrks as an unlicensed rganisatin. General Plice Pwers Part VIII f the Act deals with the general pwers f the plice. These pwers are additinal t pwers, which any individual has at cmmn law r by virtue f any ther legislatin. Pwers under sectin 114 shall nt affect the usual pwers f plice cnstables. Under sectin 114(2) a cnstable may, if necessary, use reasnable frce fr the purpse f exercising pwer cnferred n him by virtue f this Act, save fr paragraphs 2 and 3 f Schedule 7 (Prt and Brder Cntrls). Under this Act a plice cnstable may retain anything seized as lng as is necessary in the J J J circumstances f the case. Mre detail f enfrcement fficers' pwers may be fund in Schedule 14 f this Act. In general, sectin 116 authrises plice cnstables t stp and search, including the pwer t stp a vehicle fr the purpse f searching it. In ther wrds, this pwer f the Act gives plice cnstables very wide pwers in the name f security f the state. Terrrist Investigatins Part IV f the Act makes detailed prvisins fr terrrist investigatins. In this Act 'terrrist investigatin' means an investigatin f the fllwing: '(a) the cmmissin, preparatin r instigatin f acts f terrrism, (b) an act which appears t have been dnejr the purpses f terrrism, (c) the resurces f a prscribed rganisatin, (d) the pssibility f making an rder under s.3 (3), r (e) the cmmissin, preparatin r instigatin f an ffence under this Act.' (sectin 32) T put it simply 'terrrist investigatin' cvers investigatin int ffences, and investigatins int an act, ' ' which might lead t an act f terrr. In rder t prevent an act f terrr, a plice cnstable has been allwed tw types f pwer: the pwer t prevent by physical means, namely crdn-ff an area by declaring it a 'designated area'; and the ther pwer, that is, the pwer t carry ut investigatin. These pwers have been detailed in Schedule 5 (Terrrist Investigatin Infrmatin) and Schedule 6 (Financial Infrmatin). Schedule 5 is divided int tw Parts: the first Part extends t England and Wales and Nrthern Ireland, and Part Tw is t be applied t Sctland. Prceedings fr an ffence under this Schedule will require the cnsent f the DPP r the DPP fr Nrthern Ireland. A plice cnstable has the pwer t btain infrmatin and evidence by entering and searching 23

6 24 premises, t seize material, whether n the basis f a warrant r nt, but which he reasnably believes t be f substantial value t a terrrist investigatin. A warrant fr terrrist investigatins has a wider basis than that under PACE, which is issued fr a 'serius arrestable ffence', nr is there any requirement that the 'relevant material' shuld be 'evidence'. A Justice f the Peace has a very wide discretin under Schedule 5. He/she can rder the issue f a warrant fr nn-residential premises simply n the applicatin f a senir plice fficer. Issuance f warrants in such circumstances is almst inevitable. There is n similar pwer under PACE r PACE NI. A senir plice fficer is als authrised t search premises within a crdned area. Furthermre, fr the purpses f a terrrist investigatin, a plice cnstable may apply t a circuit judge fr an rder that a specified persn be required t prduce material fr seizure and retentin r t allw the cnstable access t premises. In mst cases pwers under Schedule 5 are much wider than thse under PACE. Under an rder f a circuit judge a plice cnstable may require a persn t prvide explanatin f material seized. In urgent cases, a plice fficer f the rank f superintendent may sign warrants prvided he has reasnable grunds fr believing that the case is ne f great urgency which requires immediate actin, and als prvided that he ntifies the Secretary f State. A superintendent seeking explanatin f any material seized may exercise similar pwer. Plice pwers under Schedule 7, which are addressed t Nrthern Ireland, are mre extensive in nature than thse under Schedule 5. Sectin 38 brings int effect Schedule 6 (entitled Financial Infrmatin) which enables a plice cnstable t apply t a judge fr a custmer infrmatin rder, whereby a financial institutin with which a suspect may maintain accunts will be required t disclse financial infrmatin with a view t establishing whether prceeds f crime r terrrist finance are being accumulated fr preparatin f terrrist acts and/r whether a suspect is invlved in mney laundering fr fstering terrrism. This Schedule is mdelled n Schedule 2 t the Prceeds f Crime (Nrthern Ireland) Order A financial institutin may refuse t disclse infrmatin nly n the grunds that the infrmatin is nt in its pssessin r that it is nt reasnably practicable fr it t cmply with the rder. Part V f the Act deals with cunter-terrrist pwers. Whereas Parts II, III and IV are predminantly designed fr the preventin f terrrism, whether by investigatin r by prscribing rganisatins, the emphasis f this Part is n individual terrrists. Sectin 40 defines a 'terrrist' as a persn wh has cmmitted an ffence under sectins: (i) 11 (membership f a prscribed rganisatin); (ii) 12 (by supprting a prscribed rganisatin); (iii) (by using and/r pssessing a terrrist prperty); (iv) 54 (by prviding weapns training); and (v) (by directing terrrist rganisatins, r by pssessing articles r by inciting terrrism verseas r a persn wh has been cncerned in the cmmissin f terrrism). Pwers under Part V f the Act are t be exercised upn suspected terrrists. These pwers extend t include: pwers t arrest withut a warrant (s. 41); t search premises (s. 42); t search persns (s. 42); t stp and search (s. 44); t prhibit r restrict parking f vehicles n a rad specified in an authrisatin (s. 48); t cntrl prts and brders (s. 53). Part V gives effect t Schedule 8 t the Act. The pwer f a plice cnstable t arrest an individual n the grunds f suspicin f being a terrrist, withut a warrant, may cause cntrversy, but the pwer is there. In fact, there was cnsiderable debate ver whether the pwer f arrest n suspicin nly, and nt n an actual ffence, wuld be cntrary t Article 5(1) f the Eurpean Cnventin n Human Rights, which states that: 'Everyne has the right t liberty and security f persn. N ne shall be deprived f his liberty save in the fllwing cases and in accrdance with a prcedure prescribed by law: (c) the lawful arrest r detentin f a persn effected fr the purpse f bringing him befre the cmpetent legal authrity n reasnable suspicin f having cmmitted an ffence'. (See further the statement made by Lrd Llyd f Berwick, Hansard, HL, Vl. 613, cl. 676; see als Brgan v United Kingdm (1989) 11 EHRR 177) It is nt pssible here t g int the details f all legal issues pertaining t arrest withut warrant, search f premises r hlding interviews with a suspect; suffice t say that a gvernment can always dergate frm its Article 5(3) bligatins (whereby an arrested persn must be brught befre a judicial authrity prmptly) and n the grunds f 'public emergency' (see further Brannigan and McBride v United Kingdm (1994) 17 EHRR 539). Incidentally, the perid fr which an individual may be initially detained under sectin 41 is 48 hurs. Under sectin 44, a senir fficer may give a cnstable an authrisatin whereby the latter may stp and search vehicles and pedestrians. A cnstable need nt have any reasnable suspicin and the authrisatin may be given rally r in writing as sn as pssible. A cnstable's pwer t stp and search extends t include searching a vehicle, any passenger in the vehicle, any pedestrian and anything that may be carried by him. The perid f authrisatin shall nt exceed 28 days. CONCLUSIONS The current Act aims at preventing what are knwn as 'Irish terrrism' and 'dmestic terrrism'. Cunterterrrist measures are nw applicable t all frms f

7 terrrism: dmestic, Irish and internatinal. In this cnnectin it wuld be apprpriate t refer t the bjectives f the Act: 'An act t make prvisin abut terrrism, and t make temprary prvisin Jr Nrthern Ireland abut the prsecutin and punishment f certain ffences, the preservatin f peace and maintenance j rder.' Terrrism must be cntrlled, if nt ablished; furthermre, the preservatin f peace and maintenance f rder are the paramunt bjectives f the gvernment. It is in the light f these bjectives that ne shuld cnsider the prvisins f this Act, and the relevant prvisins f the Human Rights Act Sectin 4 f the Human Rights Act prvides that if a curt f the United Kingdm is satisfied that a prvisin f primary r subrdinate legislatin is incmpatible with a cnventin right, the curt may make a declaratin f incmpatibility. Sectin 6 f the same Act prvides that it is unlawful fr a public authrity, including a judicial authrity, t act in a way which is cntrary t r incmpatible with a cnventin right. Terrrism per se is nt an ffence; it is the act f terrr, whether actual r ptential, which cnstitutes an ffence. In cnsidering the cmpatibility r incmpatibility f the Terrrism Act 2000 with the Human Rights Act 1998 and the Eurpean Cnventin n Human Rights, Lrd Hpe f Craighead said that: 'In this area difficult chices may have t be made by the executive r the legislature between the rights f the individual and the needs f sciety. In sme circumstances, it will be apprpriatejbr the curts t recgnise that there is an area f judgement within which the judiciary will defer, n demcratic grunds, t the cnsidered pinin f the elected bdy r persn whse act r decisin is said t be incmpatible with the Cnventin'. (See R v DPP, ex parte Kebilene [1999] 3 WLR 972) The issue f human rights may have t be lked at frm tw pints f view: (a) that adequate judicial guidelines have already been develped by the Eurpean Curt f Human Rights t cnfirm what cnstitutes a breach f Cnventin rights; therefre gvernment parties t that Cnventin shuld be aware f thse guidelines; and (b) whether a state's paramunt interest in preserving the peace and maintenance f rder will have an verriding effect upn any legislatin. It is inevitable fr a state in certain cases t dergate frm Cnventin prvisins n the grunds f the natinal interest r natinal security. Indeed, Article 15(1) f the Eurpean Cnventin n Human Rights permits dergatin by cntracting states n the grunds f natinal security: 'In time f war r ther public emergency threatening the life f the natin any High Cntracting Party may take measures dergating frm its bligatins under this Cnventin t the extent strictly required by the exigencies f the situatin, prvided that such measures are nt incnsistent with its bligatins under internatinal law.' (Article 15(1)) It is fr the state cncerned t cnfirm fr the purpses f dergatin whether any 'public emergency' threatening the life f the natin exists. Any ther svereign authrity r judicial authrities r institutin, natinal r internatinal, may nt challenge this decisin. The decisin t dergate shuld be based n whether the state shuld cmprmise the rights and freedms f the cmmunity at large in rder t prtect the rights and freedms f certain individuals r rganisatins (see v R Higgins, 'Dergatins Under Human Rights Treaties' ' ( ), 48 British Year Bk f Internatinal Law 281 at 282). Accrding t Higgins, dergatins frm human ' ' rights are permissible nly if event necessitate them, and '... if they are prprtinate t the dangers that these events represent' (see R Higgins, p. cit., at ). Furthermre, the emergency must be natin-wide in its effects; it need nt be ne in which the life f the natin is threatened with extinctin; a breakdwn f rder in the rganised life f the natin fr the time being will d (see J E S Fawcett, The applicatin f the Eurpean Cnventin n Human Rights, (1969), p. 249). 'Arrest' f a persn whether with r withut a warrant and prscriptin f an rganisatin may be carried ut n actual activities threatening the life f the natin r the activities, actual r ptential, fr which the State has an bligatin t give prtectin t the natin may be based n suspicin, which need nt be well-funded. In the balancing act between suspicin prved t be wellfunded and suspicin prved t be unfunded, the latter is as weighty as the frmer, because the state has the primary respnsibility fr ffering prtectin t its citizens by taking precautinary measures. A reasnable degree f suspicin will d. In fact, similar prvisin may be fund in Article 5(l)(c) f the Eurpean Cnventin n Human Rights (see further S K Chatterjee, 'Terrrism and Certain Eegal Aspects f Human Rights', Internatinal Relatins (1980), p at 761). Part 2 f the Terrrism Act 2000 is in cnfrmity with this prvisin. What is needed hwever is a balanced view f the tw dimensins t the issues f 'suspicin' and 'prtectin', t try t ensure that neither the public authrities nr any rganisatins exceed their limits. Cntrversies will persist as t what cnstitutes 'an act f terrr' and in what way(s) 'freedm fighters' are t be treated. Such cntrversies may never be reslved t the satisfactin f all cncerned. & Dr C Chatterjee Law Department, Lndn Guildhall Universit 25