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Fair Trial and Detainees' Rights

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Fair Trial and Detainees' Rights United Kingdom IHF FOCUS: freedom of expression and the media; right to privacy; fair trial and detainees’ rights; prison conditions and prisoners’ rights; intolerance, racial discrimination and xenophobia; asylum seekers; rights of the child; Northern Ireland. In 2002 the government stepped up anti-terrorist and anti-crime measures in ways that led to restrictions of individuals’ basic rights, particularly the right to privacy, respect of fair trial standards and detainees’ rights. The government made moves to allow a wider range of authorities to demand access to telephone and internet records without obtaining a judicial or executive warrant and to require that communication service providers keep their customers’ records for longer periods in case the authorities needed to access them. Other measures, which, if introduced, would potentially violate the right to privacy, were the attempts to introduced a “universal entitlement card” and the requirement for air carriers to record personal data of their passengers. The recent anti-terrorism measures and other moves affecting privacy warranted the Electronic Privacy Information Center and Privacy International to state in the fall that Britain had one of the worst records in the developed world for protecting the individual’s privacy.1 In the face of these planned measures to limit the right to privacy, Britain’s senior judge, Lord Chief Justice Woolf, warned the government about its human rights policy. He commended the Human Rights Act, in force since 2000, which gave the courts the possibility of intervening when parliament or government failed to strike the correct balance between the rights of society as a whole and the rights of the individual and to ensure that Britain remains a democracy committed to the rule of law.2 Despite this statement, court rulings reflected the lack of commitment to human rights. The government’s White Paper on criminal justice reforms aimed to “rebalance” the criminal system “in favor of the victims of crime” and to bring more offenders to justice. While many of its targets were generally met with approval, the paper was deemed by many critics to be a populist approach with inappropriate tools potentially leading to human rights violations. In particular, it was feared that due process safeguards could be endangered resulting in miscarriages of justice and conviction of innocent people.3 Moreover, the paper was criticized for failing to target real problems, including the public’s lack of confidence in the police; the police’s frequent failure to obtain evidence on which to base charges; harsh police treatment; unfair functioning of courts; the necessity for wider reform of sentencing policy; the rapid growth of the prison population which may lead to inhuman and degrading treatment; and the causes of criminal behavior.4 At the same time, surveys revealed significant racial disparity in the treatment of suspects in the judicial system and by police. In Northern Ireland, violence continued and the government failed to thoroughly clarify numerous past abuses where collusion between the perpetrators and authorities seemed evident. On October 14, the UK government suspended the Northern Ireland assembly at Stormont, Belfast, and 1 The Guardian, Stuart Millar, “UK singled out for criticism over protection of privacy,” September 5, 2002. For the full report, see Privacy & Human Rights, an international survey of privacy laws and developments, at www.privacyinternational.org/survey/phr2002/ 2 The Guardian, Clare Dyer, “Woolf warns government over human rights,” October 16, 2002. 3 The White Paper proposed, among other things, that courts be allowed to take up defendants’ previous convictions as evidence which may lead to abandoning the presumption of innocence and the requirement to prove guilt beyond reasonable doubt. It was also noted that the large majority of people charged with criminal offenses were convicted but, at the same time, miscarriages of justice were commonplace. 4 See, for example, The Guardian, Lee Bridges, “Getting smart about criminal justice reform,” July 7, 2002 and Michael Naughton, “The scales of injustice,” July 28, 2002; Justice, Justice for All, JUSTICE response to the White Paper, October 2002, at www.justice.org.uk/inthenews/index.html 1 reimposed direct rule from Westminster. This was the fourth time it had done so since the Good Friday Agreement of 1998. This time it was preceded by allegations that evidence gathered during a police raid on Sinn Fein’s offices suggested that an Irish Republican Army (IRA) spy ring was operating within the party. On October 31, the IRA announced that it had cut off contact with the international decommissioning body, a move considered to be a severe blow to the peace process. Freedom of Expression and the Media Protection of Sources5 In September, Reporters Without Frontiers (RSF) expressed its astonishment at the methods used by the Cambridge police, who had asked several hundred journalists to hand over information gathered on the case of the murders of two young girls: Holly Wells and Jessica Chapman, both aged 10, who disappeared on August 4 in Soham (central England) and were found dead 13 days later. · On September 12, Cambridge police announced that questionnaires would be sent to all journalists (about 400 in total) who had covered the Holly and Jessica case, asking if they would be willing to provide information that could prove useful to the investigation. According to the Guardian, the questionnaire specified that police could require them to co- operate by means of a court order. According to RSF, the seriousness of the crime and the emotion felt by an entire country did not justify calling into question the protection of sources. The organization emphasized that cooperation between magistrates and journalists must remain voluntary, and news professionals should not be turned into representatives of the law. Official Secrets Act The trial of a former MI5 officer moved the human rights NGO Liberty to call for amendments to the Official Secrets Act in order to provide for public interest defense for those who reveal wrongdoings of public institutions.6 · On November 5, David Shayler was convicted to six months in jail for disclosing secret MI5 information to a national newspaper concerning MI5 incompetence, mismanagement and abuse of power. He faced two charges for breaching section 1 of the Official Secrets Act (disclosing documents and information about the work of MI5) and one for violating section 4 (disclosing information about telephone tapping, including surveillance of journalists).7 In pre- trial hearings, the High Court, the Court of Appeal, and the Law Lords all ruled that the Official Secrets Act imposed a lifelong duty of confidentiality preventing members and former members of the security and intelligence agencies from saying anything about their work without official authority. The courts dismissed Shayler's argument that the Official Secrets Act was incompatible with the Human Rights Act, which enshrines the principle of freedom of expression. The home secretary, and the foreign secretary signed the public interest immunity (PII) certificate, designed to prevent any information about security and intelligence from being disclosed in court. The prosecution only had to show that Shayler had passed 5 Based on RSF/IFEX, “Protection of journalists' sources called into question in ‘Holly and Jessica’ case,” September 20, 2002. 6 Liberty, “David Shayler’s trial starts Monday 7th October,” October 2, 2002. 7 The Guardian, “Shayler jailed for six months,” November 5, 2002, at www.guardian.co.uk/uk_news/story/0,3604,834395,00.html; Liberty, “Statements from outside the Old Bailey,” November 5, 2002, at www.liberty-human-rights.org.uk/ 2 information about security and intelligence on to journalists without official authority, not whether it was true or not that he had damaged national security.8 Right to Privacy9 Investigatory Powers The June plan of the government to push through parliament a draft order to extend the range of authorities which have access to people’s communications records under the Regulation of Investigatory Powers Act (RIPA, 2000) demonstrated its readiness to engage in questionable measures to fight crime and terrorism. Only as a result of public outcry and opposition by civil liberties groups was the government forced to withdraw the proposal. 10 While RIPA originally confined access to communications records to law enforcement agencies,11 the new draft order vested many government departments, all local authorities, and a number of other statutory agencies, with the right to access communication data without a judicial warrant. The communication data available to these authorities would have included information relating to the use of a communication service other than the contents of the communication itself, i.e. telephone numbers, e-mail addresses, web sites visited and the geographical location of a mobile phone user, all data that is significantly intrusive of privacy rights since it allows a comprehensive picture to be built up of an individual’s contacts and activities. According to the draft order, the communications data could have been retrieved not only for considerations of national security and the prevention of crime, but also for the economic well being of the UK, public safety, public health, and for collecting or assessing any tax, duty or levy.12 The NGO Justice criticized that, in addition to interfering with privacy rights,
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