Detention Laws and Human Rights in Counter-Terrorism

Introduction

In the UK, terrorism has been responded to by enacting of laws that allow detention of terror suspects. This is not a new practice in the UK, as detention has been used in counter terrorism in Northern Ireland. As detention powers allow the authorities to detain individuals merely on the suspicion of being involved in terrorism, without having to frame charges to hold individuals in detention, the practice raises important and controversial questions related to excessive powers of the executive authorities, and the possible violation of the rights of liberties of the detainees. In the UK, the right to liberty has common law roots, and is also recognised as a legal right under the European Convention of Human Rights read with the Human Rights Act 1998. Therefore, the questions raised on whether detention laws for counter terrorism purposes violate the right of liberty and limitations on the powers of the executive, are valid questions, which this research paper seeks to explore answers to. It may be mentioned that being a legal system whose criminal justice system is based on a due process model, the UK has addressed the issues related to detention laws through limitations on the executive powers as well as legislation, particularly the Police and Criminal Evidence Act 1984, which provides safeguards for detainees that also brings conformity between the detention laws in the UK with its obligations under the European Convention of Human Rights. However, despite the passage this legislation, there have been criticisms of the pre charge detention on the grounds of violating human rights of the detainees. This research seeks to explore the nature and efficacy of the mechanisms that are in place to safeguard the rights of terror detainees. In particular, this research will explore the human rights issues that are involved in counter-terror pre charge detention. The scope of this research paper is limited to the pre charge detention laws in the counter terrorism legislation of the UK, the conflicts posed by detention in the context of human rights, and the ways in which the UK has addressed this conflicts. The thesis of this research paper is that detention laws raise a conflict between the rights of the detainees and the interest of the state in national security, which is resolved by the UK through balancing the concerns of state security with human rights. In other words, the paper argues that although there are conflicts in human rights posed by the use of detention for counter terrorism, the UK has managed to resolve these conflicts by balancing the right to state security with liberties of individual through the application of a due process model and by making detention laws that are in compliance with its obligations under the European Convention of Human Rights. If you need am HRM dissertation help, we are here to help.

Counter-terrorism detention laws in the UK

The principal counter-terrorism legislation in the UK, Terrorism Act 2000, allows pre-charge detention of terror suspects. Other laws include Anti-Terrorism and Crime Security Act 2001, Prevention of Terrorism Act 2005, and Terrorism Prevention and Investigative Measures Act 2011. This section will detail the provisions of detention under the relevant laws.

Detention under the Terrorism Act 2000 is allowed under Section 41. Under Section 41, police can detain terror suspects for a limited period of time and for the purpose of investigating the suspects to file charges against them. Schedule 8 of the Terrorism Act 2000 provides the procedure for the same as well as safeguards to be followed to ensure that the detention of suspects is not arbitrary and satisfies due process principles. The maximum period of detention allowed under the law is 28 days although it was initially only meant to be 7 days. Pre charge detention cannot be done for beyond 48 hours without judicial review of detention, which means that a terror suspect cannot be kept in detention for the entire period of 7 days without judicial oversight and further detention beyond 7 days can only be done under orders of the courts. To explain this, a terror suspect can be detained by the police without charge for forty-eight hours after which, magistrate’s order is needed to detain the individual in increments of 7 days for up to 14 days. For detention beyond 14 days, it has to be ordered by a High Court judge. This ensures the judicial oversight of the pre charge detention.

---

1. John Pearse, Investigating Terrorism: Current Political, Legal and Psychological Issues (London: John Wiley and Sons 2015).

Conflict between counter-terrorism detention laws and human rights of detainees

The UK is a member of European Convention of Human Rights and has also enacted the Human Rights Act 1998, which enforces the rights under ECHR in the UK. The counter-terrorism measures are subject to the standards set in the ECHR and the ECtHR jurisprudence. The provisions of the European Convention of Human Rights allow the state to derogate from some of the standards.

Despite pre charge detention being only allowed for a limited period of 7 days under the Terrorism Act 2000, this is still an extraordinary measure as an individual is detained without charge for a specified period of time; therefore, there criticism against this measure on human rights grounds is done, particularly on the ground that detention violates the liberty of the detainees. On the other hand, detention is justified on the grounds of security of the state. As such, there is a conflict between liberty of the individual and security of the state, which comes into play with the implementation of detention laws. How this conflict is raised and addressed in the counter terrorism laws of the UK is discussed below.

In the UK, right to liberty is a common law right as well as a statutory right under the Human Rights Act 1998 (HRA 1998). Common law has long recognised the right to liberty as a residual right. The term residual right means that the individual’s liberty is only restricted to the extent that is specifically provided in the law In an early case, it was held that an individual has as much liberty as is not denied specifically by the law. Therefore, right to liberty is a common law right. It is also enshrined in Article 5 of the European Convention of Human Rights (ECHR). As the HRA 1998 has enacted the ECHR rights in the UK, right to liberty is a legal right in the UK. Those who argue that detention violates human rights of the detainee, generally do it on the ground of Article 5 rights as detainees are held for 7 days without charges, raising the issue that detention is an intrusion into liberty of the detainee.

On the other hand, as mentioned earlier, detention of terror suspects is justified by the state on the ground of security. Security is not just the security of the state but security of the individuals who are victimised by terror attacks. The nature of terrorism is such that it threatens the security of the state and its people; this was noted by Barry Buzan as follows:

“Terrorism, like other forms of political violence, not only undermines the individual’s security directly, it is likely also to increase the threats to individual security offered by the state itself, as well as those coming from other states.”

---

2. Lord Lloyd, Inquiry into Legislation against Terrorism (Cm 3420, London: HMSO 1996).
3. Claire Macken, Counter-Terrorism and the Detention of Suspected Terrorists: Preventive Detention and the International Human Rights Law (Routledge 2013) 4.
4. Ibid.
5. Gary Slapper and David Kelly, The English Legal System (London: Taylor & Francis 2009) 38.
6. Entice v Carrington [1765] 19 St. Tr. 1029.
7. Barry Buzan, People, States and Fear: An Agenda for International Security Studies in the Post Cold War Era (ECPR Press 2008) 57.

It can be argued that terrorism violates security of person which is also guaranteed by Article 5 of the ECHR. In other words, state may argue that counter-terrorism detention is legitimate because it seeks to prevent and investigate acts of terror that threaten the security of the citizens of the state. This brings an interesting nuance into the conflicts that are posed by counter-terrorism detention within human rights discourse. If the state does not respond to terrorism, it can be said to be neglecting its duties to protect the security of people and if it responds to terrorism through measures such as counter-terrorism detention laws, it can be said to be acting excessively and violating the rights of the detainees. Therefore, any conflict between individual liberty and state security in the context of detention laws has also to be seen from the perspective of the conflict between terrorism and state and individual security. What may then be required is a balanced approach to counter-terrorism that is able to balance the rights of the individual to both security of person and liberty with the duty of the state to protect such rights.

The conflict between human rights and detention was exposed in UK v Brogan decided by the ECtHR. Pre-charge detention was held to be contrary to Article 5 of the ECHR. This is an important decision for understanding the responses of the British government to counter-terrorism, wherein the government did make pre charge detention laws but, ensured that such laws would not run counter to its obligations in ECHR. In Brogan, it was held that counter-terrorism detention violates Article 5 of the ECHR which relates to the right to liberty and security of person. Post this decision, UK enacted a permanent counter-terrorism legislation, Terrorism Act 2000, which provides for pre-charge detention while also maintaining safeguards which allows the compliance with the ECHR. Therefore, the current measures of pre-charge detention have ensured that the detention does not run contrary to the ECHR provisions by providing for judicial review of detention. In Brogan, principal ground on which court held detention as violating ECHR was that detention was not limited in time and that there was no judicial oversight of the detention. These two issues are addressed in the Terrorism Act 2000. As the nature of the detention under the Act is ‘pre-charge detention’, the emphasis is on the reasonable period of time given to the investigating agencies to conduct an investigation and file charge within a limited period of time. Therefore, there is a limited detention under the law, which can be done only for the purpose of allowing some time to the investigating agencies to investigate and file charges. If charges are not filed within this time, the detainee has to be released.

Balancing the conflict between national security and individual liberties

As a state has the duty to protect the security of person, the state is required to take steps for the prevention of terrorism attacks. Steps that require detention of suspects based on reasonable suspicion have been allowed by the ECtHR also as the discussion in this section will show. This is done under the doctrine of margin of appreciation which was developed by the ECtHR to allow states to make laws that are based on their national considerations, which include national security concerns. This is discussed with the help of authorities in this section.

In creating a balance between national security and individual liberties that is threatened by conflict caused by counter terrorism legislation, the ECtHR has allowed states to give pre-eminence to national security concerns as seen in Sher v United Kingdom, in which the ECtHR upheld the legality of detention of three Pakistani nationals for 13 days on the basis of suspicion of an imminent terrorist attack, which was supported by facts uncovered in an investigation. In this case, the court held that Article 5 was not violated because the detention was based on reasonable suspicion and was shown to be necessary for the maintenance of security of the state. Indeed, the jurisprudence on Article 5 as developed by the ECtHR shows that the court is not averse to allowing states to protect their national security against terror attacks through detaining of suspects as long as the states have in place certain due process provisions to protect the detainee rights. Article 5 in itself is not an absolute right as there are certain qualifications to the right which allow lawful restriction of liberty; to be clear, Article 5 allows lawful restriction of liberty and bars deprivation of liberty. In Article 5 (1)(c), the conditions under which detention of an individual is allowed are explained as follows: “lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”. Thus, there are certain conditions under which an individual’s liberty can be restricted.

---

8. UK v Brogan 11 EHRR 117 1988.
9. Ibid.
10. John Pearse, Investigating Terrorism: Current Political, Legal and Psychological Issues (John Wiley and Sons 2015) 17-18.
11. UK v Brogan 11 EHRR 117 1988.
12. Stephen Sottiaux, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Bloomsbury: London 2010).

In the jurisprudence developed under ECHR, detention can be lawful if it is done under the counter terrorism law, as the protection of national security as well as individual security against terror attack demand a fair balance between the demands of the general interest of the community and the rights of the individual. This does not mean that the state can make any kind of detention law and it will stand up to scrutiny under the ECHR as this is where a balance is required between the interests of the state and the rights of the individual. Therefore, ECtHR jurisprudence emphasises that detention even under counter terrorism laws is legal only when the state can prove that due process guarantees are provided to the detainees in the absence of which the detention violates Article 5. In Aksoy v Turkey, wherein the detainee was detained for a period of 14 days and the state failed to provide judicial oversight of the detention, the court held such detention to be a violation of Article 5 rights of the detainee. In UK v Brogan, the court had considered a 4 day detention of the terror accused without judicial oversight and without framing charges against the detainee to be a violation of his Article 5 rights. The cases discussed here suggest that even if detention is allowed as a part of the counter terrorism legislation under a margin of appreciation, there are certain due process rights, particularly judicial oversight and a limited time period of detention before charges are to be framed, which have to be incorporated in the legal scheme of detention law. Not incorporating these due process provisions exposes the state to the censure of the ECtHR.

The detention regime under the Terrorism Act 2000 and the subsequent legislations that have increased the detention period from 7 to 28 days has been made after considering the ECHR rights and by ensuring that judicial oversight is maintained after 48 hours of detention to the end of the detention period. In Colin Duffy, Lord Kerr considered the impact of ECHR on the pre charge detention regime in the Terrorism Act 2000, Section 41 and Schedule 8, and held that the detention of a terror suspect has to conform with the provisions of the ECHR.

The UK also has safeguards under the Police and Criminal Evidence Act 1984 (PACE 1984). These safeguards are applicable to the police and detaining authorities and is part of the due process rights of the detainees when they come into contact with the police. As UK can be classified as a ‘rights based due process model’ as opposed to a ‘crime control model’ of criminal justice system, the PACE 1984 is an important way to ensure that the rights of the detainees under counter terrorism legislation are not unreasonably restricted. In rights based due process models, due process principles are part of the processes of the criminal justice system and there is an emphasis on the protection of individual rights . PACE 1984 provides due process rights to those who are arrested or detained in the UK. As such, PACE 1984 also applies to ensure due process rights of the detainees under counter terrorism legislations. It may also be noted that orders that are made for detention of suspects are to be made after meeting the criterion of reasonable suspicion, wherein the authorities have to demonstrate that they have met the objective satisfaction requirements and the satisfaction of reasonable suspicion. This was also explained in the seminal report by Lord Lloyd that led to the enactment of the Terrorism Act 2000 as follows:

---

13. Sher and others v United Kingdom, ECHR (5201/11)
14. Guzzardi v Italy, Series A No 39 (1980).
15. Sporrong v Sweden [1982] 5 EHRR 35.
16. Aksoy v Turkey [1996] Eur Ct HR 78.
17. Ibid.
18. UK v Brogan (1988)11 EHRR 117.
19. Colin Duffy [2009] NIQB 31.

“If the police have proper cause to suspect that a person is actively engaged in terrorism, they must have sufficient information to justify an arrest under PACE... the absence of any requirement for reasonable suspicion of a specific offence effectively allows the police free reign to arrest whomsoever they wish without necessarily having good reason, including those who should not be arrested at all.”

Therefore, the PACE 1984 requires satisfaction of certain criteria before detention can be validly exercised against someone and Code H of the PACE 1984 also prescribes certain rights relating to right to information on the grounds of detention and right to legal counsel. In case the police procedure followed for detention violated any of the safeguards noted in the Code H of PACE 1984, then the entire process of questioning is also vitiated and any evidence obtained becomes inadmissible. This emphasis on the due process rights of the detainee ensures that the detention regime remains compatible with the ECHR.

Although, the UK has the option to derogate from the provisions of the ECHR under Article 15 of the ECHR, it has chosen to not do so while enacting the Terrorism Act 2000. Prior to the passage of this law, the UK had enacted temporary legislations which were effective for specified periods of time for counter terrorism in Northern Ireland. After the decision in Brogan, which had declared detention without time limitation and oversight to be violation of the ECHR provisions, the UK chose the route of derogation under Article 15 of the ECHR as a response to Brogan; this allowed the UK to continue detaining terror suspects related to Irish insurgency while derogating from its obligations under Article 5(3) on the ground of public emergency in Northern Ireland. Once the UK enacted a permanent counter terrorism legislation in the form of the Terrorism Act 2000, it was not required to derogate from the ECHR provisions because the detention regime under Section 41 of the Act is in conformity with the ECHR. After the events of September 1, 2001, when terrorists attacked the United States and similar attacks were carried out in the UK, the UK issued another derogation to the ECHR for enacting Anti-Terrorism, Crime and Security Act 2001, because the detention regime under Part 4 of this Act was not in conformity with the ECHR as it introduced indefinite powers of detention. This was applicable only to suspected international terrorists. Although indefinite pre-charge detention was allowed under Anti-Terrorism and Crime Security Act 2001, it was declared to be contrary to ECHR in A & Others v. Secretary of the State for the Home Department.

---

20. Mike Maguire, ‘Criminal Investigation and Crime Control’ in Tim Newburn (ed.), Handbook of Policing (Routledge 2012).
21. Helen Fenwick, Civil Liberties and Human Rights (Routledge Cavendish 2014).
22. Ibid.
23. Colin Turpin and Adam Tomkins, British Government and Constitution (Cambridge: Cambridge University Press 2011) 39.
24. Costorina v Chief Constable of Surrey [1988] 138 NLJ 180.
25. Lord Lloyd, Inquiry into Legislation against Terrorism (Cm 3420, London: HMSO 1996) 1147.
26. Aniceto Masferrer and Clive Walker, Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing 2013).
27. Mike Maguire, ‘Criminal Investigation and Crime Control’ in Tim Newburn (ed.), Handbook of Policing (Routledge 2012).
28. Alistair R Mowbray, Cases and Materials on the European Convention on Human Rights (Oxford: Oxford University Press 2007) 303.

Despite the safeguards that are included in the Terrorism Act 2000 and the PACE 1984, Liberty argues that pre charge detention regime of UK compares poorly with other comparable democracies. Canada only allows 1 day detention without charge, the United States allow 2 days detention without charge and Ireland allows 7 days detention without charge. In comparison, the UK allows detention of up to 7 days, extendable to 28 days with judicial oversight required for every increment of 7 days detention. Therefore, it is argued that the detention period in the counter terrorism law of the UK is excessive as compared to the other comparable democracies. However, unlike the indefinite detention of foreign suspects in the United States, the UK has the same detention regime for both domestic and foreign suspects.



Conclusion

Counter terrorism detention is considered to be a necessity by the state to prevent acts of terror that jeopardise national security as well as security of individuals who may be victimised by terror attacks. While detention does allow restriction of the rights of the detainees, the state may consider such detention to be necessary to protect lives and property from terror attacks. In order to ensure that the human rights of detainees are not unreasonably and arbitrarily compromised, detention is allowed as long as due process rights and safeguards are also incorporated in the regime. Under the jurisprudence developed by the ECtHR, counter terrorism detention has been allowed so long as the detention is not unlimited in time, incorporated judicial oversight and is applied along with due process. In the UK, the counter terrorism detention law contained in Terrorism Act 2000 contains due process protections in Schedule 8. The protections are complemented by Code H of the PACE 1984, which is also related to the safeguards of those who are detained under the counter terrorism laws. Due to the safeguards included in the regime of detention, the UK has not had to derogate from the ECHR under Article 15 as its detention regime is compliant with the ECHR provisions. This indicates that although there are concerns about conflicts between national security and individual liberties, these concerns are addressed by balancing the two interests and providing safeguards to the detainees. This prevents the exercise of arbitrary powers by the state and ensures that the detention regime remains well balanced between human rights and national security concerns.

Take a deeper dive into Denying Access to Justice is injustice with our additional resources.

---

29. Jeffrey Jowell and Dawn Oliver, The Changing Constitution (Oxford: Oxford University Press 2007) 1954.
30. A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.

Cases

A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.

Aksoy v Turkey [1996] Eur Ct HR 78.

Colin Duffy [2009] NIQB 31.

Costorina v Chief Constable of Surrey [1988] 138 NLJ 180.

Entice v Carrington [1765] 19 St. Tr. 1029.

Guzzardi v Italy, Series A No 39 (1980).

Sher and others v United Kingdom, ECHR (5201/11).

Sporrong v Sweden [1982] 5 EHRR 35.

UK v Brogan 11 EHRR 117 1988.

Books

Buzan B, People, States and Fear: An Agenda for International Security Studies in the Post Cold War Era (ECPR Press 2008).

Fenwick H, Civil Liberties and Human Rights (Routledge Cavendish 2014).

Jowell J and Oliver D, The Changing Constitution (Oxford: Oxford University Press 2007).

Macken C, Counter-Terrorism and the Detention of Suspected Terrorists: Preventive Detention and the International Human Rights Law (Routledge 2013).

Maguire M, ‘Criminal Investigation and Crime Control’ in Tim Newburn (ed.), Handbook of Policing (Routledge 2012).

Masferrer A and Walker C, Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing 2013).

Mowbray A, Cases and Materials on the European Convention on Human Rights (Oxford: Oxford University Press 2007).

Pearse J, Investigating Terrorism: Current Political, Legal and Psychological Issues (London: John Wiley and Sons 2015).

Slapper G and Kelly D, The English Legal System (London: Taylor & Francis 2009).

Sottiaux S, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Bloomsbury: London 2010).

Turpin C and Tomkins A, British Government and Constitution (Cambridge: Cambridge University Press 2011).

Reports

Lloyd, Inquiry into Legislation against Terrorism (Cm 3420, London: HMSO 1996).