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; .

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- 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 , 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, the draft order did not specify the particular circumstances in which the authorities might retain information, and the communications data could have been retrieved without prior judicial supervision.13

In September, the EU’s Data Protection Commissioners rejected the proposals for long-term mandatory data retention of customer records by phone companies and internet service providers for possible future police surveillance.14 They expressed "grave doubt as to the legitimacy and legality of such broad measures" and repeated that such retention would be “an improper invasion of the fundamental rights guaranteed to individuals by article 8 of the ECHR” (right to privacy) as well as “clearly disproportionate and therefore unacceptable.”15

8 The Guardian, “Behind the MI5 trial,” November 4, 2002, at www.guardian.co.uk/shayler/article/0,2763,829971,00.html 9 See also See IHF, Anti-Terrorism Measures, Security and Human Rights, Developments in Europe, Central Asia and North America in the Aftermath of September 11, April 2003, at www.ihf-hr.org 10 Enduring Freedoms, “UK government forced to delay new surveillance powers,” June 18, 2001; Telegraph.co.uk, Benedict Brogan, “Blunkett retreats on email ‘snooper charter’,” June 18, 2002, at www.telegraph.co.uk/news/main.jhtml?xml=/news/2002/06/18/nsnoop18.xml 11 The police force; the National Criminal Intelligence Service; the National Crime Squad; HM Customs and Excise; the Inland Revenue; the Security Service; the Secret Intelligence Service; and the Government Communications Headquarters. 12 Justice, Access to Communications Data by Public Authorities: The Investigatory Powers – Draft Regulation of Investigatory Powers (Communications Data: Additional Public Authorities) Order 2002, Justice Briefing, June 2002, at www.justice.org.uk/images/pdfs/communications%20data%202002.pdf 13 Ibid. 14 This data would include catalogues of web sites visited, records of e-mail recipients, lists of telephone numbers dialled, and the geographical location of mobile phones at all times they were switched on. 15 See www.fipr.org/press/020911DataCommissioners.html 3

DNA Database

On September 12, the Court of Appeal announced a ruling that the police could keep DNA samples and fingerprints taken from people who faced prosecution but were never convicted. The justification given for this was that police would thus have a large database in their fight against crime.16 According to Liberty the practice is discriminatory as the data base will include a disproportionate number of innocent people from ethnic minorities who are treated as suspects without evidence.17

ID Card

In July the government put forward a consultation paper proposing that “universal entitlement cards” be introduced in order to combat illegal immigration, illegal work in the UK and benefit fraud. According to the proposal not only personal information such as name and address but also photographs, fingerprints and eye features (the image of a person’s iris) could be stored on these electronic identity cards, which would be used to verify a person’s identity, right to access public services as well as eligibility to work in the UK. The government left the question open whether the card scheme would apply to all persons lawfully resident in the country or only to those who wished to be part of it.18 While national identity cards are used in most EU countries, the introduction of the electronic identity cards would result in the first such scheme in the UK since the end of World War II.19 The government invited the public to comment on its proposal by January 31, 2003.20

The proposal met with strong criticism from NGOs. Liberty feared that the identity card scheme would result in the establishment of a national database containing detailed information on all citizens in the country, which would be widely available to different authorities and would be used to closely monitor citizens’ lives. The organization also stressed that the scheme would do little to reduce benefit fraud, while creating multifold opportunities for abuse.21 Likewise, Privacy International, an organization defending privacy rights worldwide, warned the government that an identity card scheme of the sort envisioned – whether compulsory or voluntary – would rather compound than alleviate the problem of faked identities. It concluded: “[c]riminals and terrorists can in reality move more freely and more safely with several fake “official” identities than they ever could in a country using multiple forms of ‘low-value’ ID such as a birth certificate.”22 Moreover, representatives of ethnic minorities expressed concern that the identity card scheme would be implemented in a discriminatory way against members of ethnic minorities and that it would thereby have a negative impact on race relations in the country.23

Air Carriers

According to media reports from July, the Home Office planned to put through parliament a statutory instrument under the Anti-Terrorism, Crime and Security Act 2001 requiring airlines to record, for example, the name, gender, date of birth, home address plus the number of pieces of luggage passengers are carrying before each airplane can take off. According to the Home Office, this

16 The Guardian, Tim Radford, “DNA database ‘has to cover everyone’,” September 13, 2002. 17 Liberty, “Databasing the DNA of innocent people – why it offers problems, not solutions,” September 2002, at www.liberty-human-rights.org/uk/mpress139.html 18 UK Home Office, Consultation Paper: Entitlement Cards and Identity Fraud, July 2002, at http://www.homeoffice.gov.uk/cpd/entitlement_cards/cards.htm. 19 BBC, Colin Joseph “'State racism' fears over ID cards,” July 4, 2002. 20 UK Home Office, Consultation Paper: Entitlement Cards and Identity Fraud, July 2002, at http://www.homeoffice.gov.uk/cpd/entitlement_cards/cards.htm. 21 Liberty, “Universal entitlement cards are compulsory IDs: the Government does not trust its citizens,” July 3, 2002. 22 Privacy International, “Research warns that government identity cards will be a gift to criminals,” July 3, 2002. 23 BBC, Colin Joseph “'State racism' fears over ID cards,” July 4, 2002. 4 would be “key information needed to target and track terrorists." It was not clear how long airlines would be able to retain the gathered data.

The British Air Transport Association and the airline industry objected to the plan due to the costs and delays this would entail.

According to Statewatch, although the government intended to push the pre-boarding screening through as an anti-terrorism measure, it would in fact be extended to cover a much wider range of potential "troublemakers" such as refugees.24 Any measures to record such data could lead to abuses unless they are accompanied by clear rules forbidding abuse and deadlines for retaining such information.

Fair Trial and Detainees’ Rights

Anti-Terrorism Measures25

The Anti-Terrorism, Crime and Security Act (ATCSA), which was rushed through parliament shortly after the September 11 events, virtually introduced a shadow judicial system operating outside of internationally recognized due process standards.

The act empowered the home secretary to certify any foreign national as a “suspected international terrorist” if he “reasonably” believed that this person had engaged in terrorist activities and posed a threat to national security. A person that had been certified in this way could be detained without charge for an indefinite period of time. Thus, the act denied suspects the right to be brought promptly before a judge when detained and to effectively challenge the evidence, which the decision to detain them was based on.

According to official information made available in early 2003, a total of 15 people had been detained under ATCSA since its entry into force. Out of these two had voluntarily left the country.26 claimed that those detained under the act were subjected to unnecessarily harsh treatment, including detention in maximum security conditions, where they were locked up 22 hours a day.27 The detainees did not receive adequate health care and their right to religious exercise was limited. At least some of them were denied prompt access to a lawyer and their contacts with relatives and the outside world were severely restricted. Social visits with relatives were tape-recorded and a prison officer was present, and the detainees were strip-searched before and after every visit. Initially, detainees were only allowed to communicate with family members in English or through an interpreter. There were also reports indicating that ATCSA detainees suffered verbal abuse from guards and inmates.28

24 Statewatch, “UK government demanding that airlines collect personal data on every passenger June 2002,” at www.statewatch.org/news/2002/jul/05airdata.htm 25 Unless otherwise noted, based on Amnesty International, “United Kingdom: Rushed legislation opens door to human rights violations,” press release, December 14, 2002, at http://web.amnesty.org/ai.nsf/recent/EUR450272001; Amnesty International, “UK: Basic rights denied after 11 September,” press release, September 5, 2002, at http://web.amnesty.org/ai.nsf/Index/EUR450192002?OpenDocument&of=COUNTRIES\UK; and Amnesty International, “Rights Denied: the UK’s Response to 11 September 2001”, September 5, 2002. 26 10 Downing Street, “Press Release: Government seeks to extend powers of detention”, 24 January 2003, http://www.number-10.gov.uk/output/Page1120.asp. See also See IHF, Anti-Terrorism Measures, Security and Human Rights, Developments in Europe, Central Asia and North America in the Aftermath of September 11, April 2003. 27 Amnesty International, “Rights Denied,” pp. 6 – 13. 28 Audrey Gillan, “No names, no charges, no explanations: the plight of Britain’s interned ‘terrorists’”, Guardian, 9 September 2002. 5 · Shortly after the September 11 events, Lotfi Raissi was arrested on a US extradition warrant. The US government alleged that he had been directly involved in preparing the terror attacks in New York and Washington D.C. However, during the five months when he was detained in the Belmarsh high security prison in , the US government did not present any evidence to support these allegations. In February 2002 a district court judge released Raissi on bail, and two months later the US extradition warrant was entirely dismissed because of the lack of evidence. It appeared that the US government designated Raissi a key suspect in the investigations of the September 11 events solely because he fitted a certain profile: he is Algerian, Muslim, a pilot, and had worked as a flight instructor in the US.29

To allow for the indefinite detention of terrorist suspects under ATCSA the UK - as the first European country - derogated from ECHR article 5.1, which prohibits detention without charge or trial. Among others, the Council of Europe’s Human Rights Commissioner Alvaro Gil-Robles expressed serious doubts as to the justification of this measure.30

Moreover, in July, the Special Immigration Appeals Commission (SIAC), which is empowered under ATCSA to consider appeals regarding the legal basis for detentions of terrorist suspects, ruled the ATCSA to be in breach of ECHR article 14 (which prohibits discrimination). While the SIAC found that the government’s decision to derogate from article 5.1 of the ECHR was justified, it concluded that the powers established by ATCSA to indefinitely detain terrorist suspects were unlawful and discriminatory because they only applied to foreign nationals.31 However, in October, the Court of Appeal overturned the SIAC decision and ruled that the ACTSA provision in question was fully compatible with the ECHR.32

Representatives from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the UK in February to investigate the treatment of those detained under ATCSA. The report was yet to be released as of the end of 2002.

Prison Conditions and Prisoners’ Rights

Children and Juvenile Delinquents33

An Amnesty International (AI) report from June revealed that the authorities responsible for the welfare of children and young persons (aged between 15 and 21) in young offenders institutions in England and Wales had failed to ensure the young offenders’ right to life, the right not to be subjected to torture and cruel, inhuman or degrading treatment or punishment, and the right to be treated with respect for the inherent dignity of the human person. Moreover, the authorities had failed to investigate such cases properly and independently.

According to AI, recent cases showed that deaths in custody, whether they were the result of violence by other inmates or suicide, could involve systemic failures, flawed procedures, and errors or omissions by prison staff at various levels.

29 See the Chapter on Extraditions, Expulsions and Deportations in IHF, Anti-Terrorism Measures, Security and Human Rights – Developments in Europe, Central Asia and North America in the Aftermath of September 11, April 2003. 30 Council Of Europe, Opinion 1/2002 of the Commissioner for Human Rights, Mr. Alvaro Gil-Robles On Certain Aspects Of The United Kingdom 2001 Derogation From Article 5 Par. 1 Of The European Convention On Human Rights, 28 August 2002. 31 Liberty, “Press release: Internment of “terrorist suspects” is discriminatory, breaches Human Rights Convention – SIAC judgment today,” July 30, 2002, http://www.liberty-human-rights.org.uk/mpress133.html. 32 Liberty, Court of Appeal backs jail without charge or trial; Discriminatory internment of 'terrorist suspects': Home Office wins appeal, October 25, 2002, at http://www.liberty-human-rights.org.uk/ 33 Amnesty International, United Kingdom: Failing children and young people in detention, Concerns regarding young offenders institutions, June 2002, at http://web.amnesty.org/aidoc/aidoc_pdf.nsf/index/EUR450042002ENGLISH/$File/EUR4500402.pdf 6

Between 1990 and February 26, 2002, 152 children and young people in custody had died as a result of self-inflicted injuries. AI also reported alleged abuse including physical assaults and bullying, and verbal (also racial) abuse, by both prison staff and other detainees or prisoners. The organization noted that some victims feared victimization if they made a complaint, and believed that their complaint would not be taken seriously.

According to Home Office figures, prison officers had used “control and restraint” techniques against 3,600 children in the 22 months up to February 2002. These techniques included placing the inmate on the floor or holding their arms behind their backs. In the same period more than 4,400 male children had been held in segregation cells, for example, for swearing at a prison officer, stealing and bullying. Segregation took place in special cells, where the children were locked up for periods ranging from a few hours to 28 days, without access to television, radio or personal possessions, and serious restrictions of movement.

Two earlier surveys of conditions at the Portland facility some years earlier had reported serious ill-treatment of the inmates.34

Intolerance, Racial Discrimination and Xenophobia

Two different studies uncovered institutionalized racism among the police force and in the British judicial system.

According to a member of the 1999 Macpherson inquiry, which found the police to be institutionally racist, the situation had worsened for ethnic minorities since the 1999 report: while in 1999 black people were five times more likely to be stopped and searched by police, in 2001-2 they were eight times more like to be stopped. In London, police officers stopped 30% more Afro- Caribbean people and 40% more Asian people, compared to an increase of 8% for white people. As only one in ten stops led to arrest, in practice police suspicions of more than 70,000 black and 35,000 Asian people were not borne out. Also outside the capital, 6% more Afro-Caribbeans and 16% more Asians were stopped while 2% fewer whites were stopped.35

A survey published in December examined data on more than 3,000 prisoners and uncovered huge differences in treatment within the judicial system based on ethnicity, and prompted a call for an independent inquiry. According to the survey, black people were six times more likely to be sent to prison than whites. The researchers said that the results suggested that black people may be dealt with more harshly within the criminal system, and receive imprisonment more easily than whites, even for the first crime they commit. Almost a quarter of Britain’s prison population come from an ethnic minority background, 15% of them being black.36

Black children were over-represented in UK prisons: about 19% of those aged between 15 and 17 were black while they made up only two percent of the UK population in the same age group.

34 They concluded that in that facility, verbal humiliation and threats were meted out to inmates on a daily basis and at times could escalate to physical abuse. Alleged brutality included violent punches and kicks; throwing inmates against walls and onto the floor; banging their heads on the floor; bending their arms behind their backs in order to cause acute pain; kneeing them in the ribs, back and groin; and stamping on the hands of inmates lying on the floor. According to former inmates, prison officers had kneeled on the back of an inmate restrained on the ground; applied pressure with their fingers to either side of an inmate's windpipe, almost obstructing his breathing; stamped on the face of an inmate restrained on the ground; and pushed an inmate against a hot pipe. These allegations were gathered from former inmates and staff members of the Portland facility by the Howard League for Penal Reform and Hickman & Rose Solicitors in 2000. 35 The Guardian, Vikram Dodd, “Police accused of failure over racism,” November 8, 2002, at www.guardian.co.uk/race/story/0,11374,836001,00.html 36 The Observer, Shahid Osmanand and Paul Harris, “Black people sic time more likely to be jailed than whites,” December 29, 2002, at www.guardian.co.uk/race/story/0,11374,866214,00.html 7 Institutionalized racism was a serious problem; there was evidence that a small number of staff sustained and promoted overtly racist behavior making it extremely difficult for minority group officers to carry out their work.37

Asylum Seekers38

In February, the government published the White Paper Secure Borders, Safe Haven: Integration with Diversity. The paper, later converted with additions into the Nationality, Immigration and Asylum Act (NIA Act) was adopted on November 7, aimed at cracking down on abuses in the asylum process. On the positive side, the NIA Act provides for a resettlement program, i.e. a bilateral program with UNHCR in order to allow refugees to have their asylum claim considered before they reach the UK39; the establishment of induction centers which will provide a comprehensive reception service, including accommodation and medical care40; and some improvements in the integration of refugees and the treatment of juvenile asylum seekers.

However, most changes brought about by the NIA Act were clearly aimed at increasing control and prompt removal of unsuccessful asylum seekers through unacceptable means. On its way through parliament, the Parliament's Joint Committee on Human Rights identified 22 possible breaches of human rights in the new act.

The NIA Act provides that not all destitute asylum applicants are entitled to support from the National Asylum Support Service (NASS), but only those who can prove that they have immediately applied for asylum upon their entrance in the UK. According to the British Refugee Council, this will inevitably lead to widespread homelessness and severe destitution of large groups of asylum seekers.

The act also prescribes that asylum applicants from “safe countries” would have their applications certified as “clearly unfounded.”41At the time of adoption, those countries included the ten European accession candidates, but the home secretary was given the right to expand this list as he sees fit. Asylum seekers with “clearly unfounded” applications will be denied an in-country right of appeal, and many applications from asylum seekers who originate from or who have transferred through third countries considered “safe” will receive no judicial but only statutory review, relating to matters of law rather than questions of fact.

The NIA Act also removed statutory bail hearings for those detained under Immigration Act powers and will undoubtedly result in the increased number of asylum seekers and immigrants in

37 Amnesty International, United Kingdom: Failing children and young people in detention, Concerns regarding young offenders institutions, June 2002. 38 Unless otherwise noted, based on Refugee Council, The Nationality, Immigration and Asylum Act 2002: changes to the asylum system in the UK, December 2002, at www.refugeecouncil.org.uk/infocentre/nia_act2002/intro_ed1.htm and “Nationality, Immigration and Asylum Bill receives royal assent,” November 8, 2002, at www.refugeecouncil.org.uk/news/nov2002/curr047.htm 39 However, the Refugee Council warned that such programs should not lead to a two-tiered perception of seeing resettled refugees as “good” and asylum seekers as “bad.” 40 The Refugee Council noted that it should ensure that asylum seekers should not have to stay in these centers for more than seven days. 41 The House of Lords 11th EU Select Committee Report categorically rejected the use of the “safe country” concept as potentially having “devastating consequences.” It also rejected the idea that appeals could be non- suspensive (Report Summary, paragraph 144). Moreover, the inadequacy of the practice of certifying asylum applications which were “clearly founded” without in-depth investigation meant that until removals to Zimbabwe were abruptly halted in January 2002, the applications filed by Zimbabweans were certified as clearly unfounded despite serious human rights violations in that country. Refugee Legal Centre, Briefing for 2nd Reading in the House of Lords: Nationality, Immigration & Asylum Bill, June 2002, at www.refugee-legal- centre.org.uk/Briefing19june.htm; and “Briefing for Report Stage of the Nationality, Immigration Asylum Bill,” June 10, 2002. 8 detention for indefinite periods without judicial review or any other external scrutiny.42 At the same time, it provided for increased border controls aimed at reducing illegal immigration, including further pressure on private companies not to carry to the UK illegal immigrants. However, concern was voiced that these measures would also prevent people, who have legitimate reasons for wishing to apply for asylum, from entering the UK.

The NIA Act also failed to provide for quality legal advice to all asylum seekers at all stages of the asylum process.

The Refugee Council’s other criticism of the NIA Acts was targeted, for example, at the regular, time-consuming reporting regime and the introduction of the application registration card which could be subject to abuse.

A positive development was the change to section 19(d) of the Race Relations Act brought about by a legal challenge from the Tamil Information Centre. This change prohibited immigration officers from discriminating in the examination of passengers who are Tamils, Kurds, Pontic Greeks, Roma, Somalis, Albanians and Afghans. People from these groups should no longer be subject to a more rigorous examination than any other groups.43

Starting from July asylum seekers were not allowed to work or undergo vocational training until they had received a final positive decision regarding their asylum claims. This new rule was unfortunate particularly as the average time for an initial asylum decision was as long as 13 months and a further 26 weeks for an appeal. 44

On October 10, a high court judge threw out a challenge by human rights campaigners to declare that British immigration checks introduced at Prague airport in July 2001 were discriminatory against Czech Roma trying to claim asylum in the UK. The judge ruled that pre-clearance checks were legal under international law and were "no more or less objectionable" than a visa control system.45 By the end of November, the UK had deported six groups of Czech Roma to the Czech Republic, bringing the total to 174.46

Rights of the Child47

The UN Committee on the Right of the Child discussed the UK’s report under the Convention on the Rights of the Child and expressed its concern about a number of issues.

While welcoming the UK’s withdrawal of some reservations to the convention, the committee remained concerned about the failure to withdraw a wide-ranging reservation on immigration and citizenship. It also regretted that the provisions and principles of the convention had not yet been incorporated into domestic law.

It pointed to the unequal enjoyment of economic, social, cultural, civil and political rights, in particular for children with disabilities, children from poor families, Irish and Roma travellers’

42 The UN Human Rights Committee had expressed its concern about the practice of keeping asylum seekers in custody in its December 2001 Concluding Observations (CCPR/CO/73/UK;CCPR/CO/73/UKOT), at http://193.194.138.190/tbs/doc.nsf/(Symbol)/2f2744b7e0d015d6c1256c76004b3ab7?Opendocument 43 The British Refugee Council, “Response to Secure Borders, Safe Haven: Integration with Diversity.” 44 The British Refugee Council, “Government announcement and proposals since its White Paper on asylum: a summary.” 45 The Guardian, Alan Travis, “Blunkett wins challenge on Roma rights,” October 11, 2002. 46 RFE/RL Newsline, November 6, 2001. 47 Based on the UN Committee on the Rights of the Child, Thirty-first session, Consideration of the Reports Submitted by State Parties under Article 44 of the Convention, Concluding observations: United Kingdom of Great Britain and Northern Ireland, CRC/C/15/Add.188, October 9, 2002. See also Conditions in Prisons and Prisoners’ Rights. 9 children, asylum-seeker and refugee children, children belonging to minority groups, children in care, detained children and children aged between 16 and 18 years. It also cited a lack of respect of children’s views in, for example, cases of divorce, in adoption, in education and legal proceedings.

The committee was concerned at the continued use of plastic baton rounds as a means of riot control in Northern Ireland, whose victims included children, thereby endangering their lives. It noted that, despite some positive measures, the situation of children in conflict with the law had worsened since the consideration of the UK’s initial report. It was particularly concerned that the age of criminal responsibility still lay at eight years in Scotland and at ten in the rest of the UK. In addition, children between 12 and 14 years of age were being deprived of their liberty. In general, the committee was deeply concerned at the increasing number of children who were being detained in custody at earlier ages for lesser offences and for longer sentences imposed as a result of the recently increased court powers to issue detention and restraining orders. Moreover, children could be tried in adult courts in certain circumstances, and children were still detained in the same facilities with adults. Further, children in custody did not always have access to independent advocacy services and to basic services such as education, adequate health care, etc.

The committee expressed particular concern about the fact that between April 2000 and February 2002, 296 children had sustained injuries as a result of restraints and measures of control applied in prison, and that youths had been in held solitary confinement.

The committee criticized the treatment of child asylum seekers (e.g. access to health care and education, long processing of applications, detention of unaccompanied minor asylum seekers) and the failure to take children sufficiently into account in the ongoing asylum reform.

It also took up the issue of discrimination against children belonging to the Irish and Roma travellers which was reflected, inter alia, in the higher mortality rate among these children, their segregation in education, the conditions of their accommodation and social attitudes towards them.

The committee was deeply concerned that about one third of the annual intake of recruits into the armed forces were below the age of 18 years.

Northern Ireland

Early in the year, sectarian violence escalated in Northern Ireland: 20-year-old Catholic postal worker, Daniel McColgan, was killed by the Loyalist armed group, the Ulster Defence Association (UDA), on January 12. The killing followed days of intensive rioting by both Loyalists and Republicans in the Ardoyne area of north Belfast, during which police came under violent attack and 80 officers were reportedly injured. Many other people suffered injuries and were subjected to verbal abuse and three Catholics were injured by plastic bullets fired by police. The incidents were preceded by an incident at the Holy Cross Girl’s Primary School - a Catholic school situated in a predominantly Protestant area - on 9 January, when protesters prevented pupils from leaving the building. Loyalist residents of the area had previously staged a four-month picket of the road to the school during which time young pupils were escorted to school by adults through police lines while protesters shouted verbal abuse and violence frequently broke out. The confrontation spread to other schools in the area, both Protestant and Catholic.48

Violence continued in 2002, with abuses committed by both sides, paramilitary groups, the Loyalists and the Irish Republican Army (IRA). They included shootings, petrol bomb attacks on people’s homes and “punishment beatings” - also of children - by members of the victims’ own communities.49

48 Amnesty International, “United Kingdom: Escalating sectarian violence must be addressed,” January 18, 2002. 49 Amnesty International, Concerns in Europe January-June 2002, at http://web.amnesty.org/ai.nsf/recent/EUR010072002!Open 10

Human rights groups continued to press for a public inquiry into the deaths of human rights lawyers Patrick Finuance, and a number of others killed under suspicious circumstances, but the UK government resisted the call. In the case of Finucane, 13 years had passed without an independent public inquiry despite obvious state involvement in the killing, blocking the prosecution and subsequently the covering up of the killing, destroying evidence, killing a key witness and intimidating other witnesses.50

In relation to the case of Rosemary Nelson (murdered in March 1999), Mark Fulton, a 42- year-old leading member of the (LVF, one of Northern Ireland's main Loyalist paramilitary groups) was found dead in his cell in June, lying on a bed with a belt around his neck. Fulton had been named a key suspect for the deaths of Nelson and of Sunday World newspaper journalist Martin O'Hagan. The Police Service of Northern Ireland reportedly opened an investigation into the circumstances of his death despite media reports suggesting that Mark Fulton might have taken his own life.51

In 2001, the UK and Irish governments had agreed to appoint an international judge to examine six controversial killings52 and report to the governments as to what further actions should be taken, but almost a year passed beforePeter Cory, a former Canadian Supreme Court Judge, was appointed in May 2002 to investigate the killings and allegations of state collusion in each of them. Both the Committee on the Administration of Justice (CAJ) and the UN Special Rapporteur on the Independence of Judges & Lawyers noted that appointing an international judge will only result in further delays, expense and public anguish.53

In relation to past killings, the European Court of Human Rights passed an important rulings on 28 May.

· The court concluded that the UK had violated Dermot McShane’s right to life as a result of its failure to ensure an effective investigation into his death. McShane died on July 12, 1998 in Londonderry when a piece of hoarding, which he had been hiding behind fell on top of him as an army vehicle drove over it. According to the court, the investigation had neither been independent nor expeditious; there were shortcomings in the inquest; and authorities had hindered McShane’s wife’s application to the court.54

Positively, in June, the House of Lords ruled that the Northern Ireland Human Rights Commission (NIHRC) can intervene in cases before the courts in Northern Ireland by submitting advice on human rights issues. The ruling was a result of the application launched by three NGOs,

50 See, for example, the Lawyers Committee for Human Rights, The UK Security Forces and the Murder of Patrick Finucane, summarized in Committee on the Administraton of Justice, Just News, Fiona Doherty, “Beyond Collusion: The UK Security Forces and the Murder of Patrick Finucane,” March 2002. The full report is available at www.lchr.org 51 Amnesty International,” United Kingdom: chief suspect in the killing of human rights defender Rosemary Nelson is found dead in his cell at Maghaberry Prison,” June 10, 2002, at http://web.amnesty.org/ai.nsf/Index/EUR450062002?OpenDocument&of=COUNTRIES\UK 52 The six cases were: Patrick Finucane, Rosemary Nelson, Robert Hamill, Harry Breen and Bob Buchanam (two RUC officers), Lord Justice Maurice and Lady Cecily Gibson, and . 53 The Committee on the Administration of Justice, Just News, Paul Mageean, “Rosemary Nelson – Third Anniversary,” March 2002, and article by Dato’Param Cumaraswamy, February 2002, both at www.caj.org.uk/jnarchive.html; Amnesty International, Concerns in Europe January-June 2002, at http://web.amnesty.org/ai.nsf/recent/EUR010072002!Open 54 At http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=1008162722&Notice=0&Noticemode =&RelatedMode=0 11 Amnesty International, British Irish Rights Watch and the CAJ to challenge a ruling by a lower court stating that the NIHRC was not empowered to intervene in cases in Northern Ireland.55

55 Amnesty International, “United Kingdom: Human Rights groups welcome House of Lords judgement on Northern Ireland Human Rights Commission,” June 20, 2002. 12