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Handling of the Terrorist Suspects According to the English Legislations
Abstract
The main aim of this study is to explore how terrorism suspects are handled in relation to English laws. English laws have been considerably restructured since time immemorial, but the pick of these legislations followed the September 11 attack of the US twin towers by the Al Qaeda affiliate group. The study examines some of the powers accorded to the police and other law enforcement agencies in their stop and search of the terrorist suspects. The study also explores the dynamic nature of the terrorist organizations, particularly the famous Al Qaeda group. The study also examines several terrorism legislations chronologically and powers it accords the law enforcement agencies. These legislations apply both derogatory and non-derogatory methods in their pursuit of justice.
Introduction
Terrorism is defined as an act of applying force or violence against an individual or property with an aim of intimidation, oppression, or ransom. Terrorists usually use violence and intimidation to create terror among the general public, to demonstrate that the government is not capable of dealing with terrorism, and to get instant publicity. Act of terrorism ranges from terror acts to actual killing, kidnapping, hijackings, bomb attacks, to internet attacks, use of biological weapons or nuclear weapons among others (Perl 2004)
Besides natural and technological dangers illustrated above, people also face terrorism from extremists (individuals, groups or organizations) and aggressive regimes. Acts of terrorism can either be in the national or international jurisdiction. Very risky terrorist act often targets highly concentrated public places, state utilities, and corporate hubs. Al Qaeda is considered to be one of the largest international terrorist groups in the world. Following the attack of the US on September 11, the whole world changed its perception regarding terrorism and has identified it as a serious foreign and homeland security threat. This led to the enactment of laws/policies to counter terrorism globally (Feikert & Doyle 2006).
Since the vents of September 11, U.S. and UK foreign policies have undergone considerable transformation. In the UK it is now legal to detain a terrorist suspect for over a month without pressing any charges. Amnesty International claimed that the war on terror had been made more dangerous by denying suspects basic human rights. They also claimed that, far from the initial objectives, the war on terrorism has been made more dreadful, as well as increasing division among people of different religious backgrounds and nationalities (Froese 2009).
This study focuses on the procedures used by the law enforcement officers in conducting searches and arrests and these entail interception of the communication, arresting and holding up of terrorist suspects, and the control orders limiting the activities of the suspects. In the UK the approval of a warrant of arrest or detention lies in the hands of the executive unlike in the US where it is the business of the courts (Chalk 1996).
Powers of the Police to Stop and Search premise of a terrorist suspect
The legal basis for the police to stop and search any suspect is contained in the Police and Criminal Evidence Act of 1984, which empowers the police to stop and search a person that is suspected to have committed a crime, about to commit a crime or committing a crime. The police were provided with more power to search individuals under the Terrorism Act of 2000 that allowed police officers to stop and search anyone suspected of terrorism, with permission from the senior officer. The code issued under the same Act plus the Home office stop and search decree requires the police not to discriminate against members based on their religious background or race when carrying out their stop and search warrants (Fourth Report of Session 2005-06).
However, there are certain situations where officers are permitted to use an individuals background in making the stop and search decisions in relation to a particular terrorist threat. For instance, some terrorist organizations/ groups are associated with certain ethnic groups or religions such as Al Qaeda which is connected to the Muslim faithful. This code of practice has been criticized by human rights activists who allege the British Police use religious and ethnic segregation in their policing, a statement which has been dismissed by both the government and the police (Fourth Report of Session 2005-06).
The enactment of the recent Anti-terrorism legislation has resulted in increased stop and search for Muslims in particular. This has led to a lot of tension between the government and the Muslim community. The isolation and discrimination of the Muslims are perceived or attributed to the disenfranchisement of the Muslims, creating an opportunity for the extremists to recruit these persons. A section of the legal experts in Britain argues that the application of the stop and search methods to curb terrorism may increase the very terrorism that it is seeking to overcome (Golynker 2005).
Following the London bombing in 2005, one of the traffic police bosses stated that the search was exclusively on young men of a particular ethnic background. This statement was promptly dismissed by the government and made it clear that the stop and search led by the intelligence are necessary but are not used against minority groups. They emphasized that countering terrorism absolutely requires the confidence of the Muslim and other stereotyped minority groups so that they can be able to come forward and give valuable information to the authority, thus becoming part of the fight against terrorism threat (Fourth Report of Session 2005-06).
Powers of arrest and detention accorded to the law enforcement agencies especially the police (Act of 2000)
Terrorism act of 2000 accords the police wide-ranging powers and this has raised a lot of concern among human rights activists and the general public. The act warrants investigation into the resources of the proscribed group and the commission, organization, or commencement of the acts that are outlawed by the act. Police can arrest a person without authorization based on a rational suspicion that they are involved in an act of terrorism or any other criminal activity. The government justifies this act by asserting that on some occasions delays to gather adequate information because of the lack of arrest warrant may pose a risk of belatedness in the prevention of a terrorist act (Apap & Carrera 2004).
Therefore, the British government has always found it very hard in balancing the rights of a person, which currently enjoys enormous protection under the Human Rights law of 1998. The integration of the EU convention on Human rights into British law has further complicated the issue. Although the EU convention on Human Rights is not a new principle of the law as it gives guidelines to the individuals rights that England have enjoyed for a long time under the general law, its impact on the English laws is evident (Barroso 2005).
It is well known that the UK has been having issues in detaining without any proper court trial of people suspected to be terror suspects, especially in North Ireland. Under the temporary provision of the PTA (Prevention of Terrorism Act) of 1984, the secretary of state could warrant the detention of a terrorist suspect for up to seven days without trial. This led to a lot of protests by the Human Rights groups including the EU Court of Human Rights who felt the law was breaching article 5 of the EU convention. It was because of this backdrop that the English government decided to formulate an effective, less controversial anti-terrorism legislation that is least likely to experience numerous legal challenges. These issues were tackled during the drafting of the Terrorism Act of 2000 when the alternative option to those violating Human rights was considered (Cassese 2001).
According to the terrorism act of 2000, law enforcement agencies are permitted to hold a suspect for 48 hours from the time of their arrest. Authorities can only keep the suspect on detention only if satisfied and granted authority by the office of the home secretary. Extended detentions are usually undertaken to acquire relevant evidence/statements from the suspects, preservation of the evidence acquired, or pending decision from the home secretary and whether the suspect should be charged or not. The law enforcement officer holding the suspect must be satisfied that the investigation in connection with the individual being held or the process awaiting conclusion is conducted thoroughly and expeditiously (Perl 2004).
A senior law enforcement officer can request more time under the English law to detain someone suspected to be a terrorist thats if 48 hours have passed via judicial authority. The permission can only be issued when the judicial authority is satisfied that there is a concrete reason as to why the suspect should be detained further and the investigation is being done according to the legal procedures (Carol 2006).
Warrant of further detention can be sought further by the law enforcement officer of the rank above the superintendent. According to the Terrorism act of 2000, as originally ratified, the limit of detention without charge for a terrorist suspect from the time of arrest was seven days. An amendment made to the actin 2003 increased the maximum detention to 14 days. This amendment was enforced in 2004. The joint committee on human rights asserted that the extended detention met requirements of the article 5.1 of the EU on human rights which is concerned with individual freedom. However, the committee raised concern on the reasons for extending the detention period from the original act (Perl 2004).
According to the amended act of 2003, the initial detention period remained 48 hours, the first permitted extension was seven days but these could only be extended further for a short period of time. If the law enforcement officer felt more time was required, a further application could be made for the period not exceeding 7 days. The court had to be contended that the conditions for the extension of confinement are met. In 2006, further amendments were made to the act in relation to the extension of detention without charge for the suspects (Carol 2006).
Amendment on section 24 of the act enables the extension to be warranted where the review officer or the court is satisfied that additional detention is required awaiting the results of an examination or evaluation of relevant documents that may act as evidence to the same. Paragraph 116 of section 24 provides examples of the examination or analysis to include the DNA test (Perl 2004). Critics of the extended detention argued that it was only fully appreciated by those in access to the materials since these materials could not be published as they were intelligent related or sub judice. On the other hand, proponents including Lord Carlile of Berriew QC attributed the failure to detect or prosecute several terrorism conspiracies or acts to limitations placed upon law enforcement agencies following the arrest of the suspects (Carol 2006).
Anti-terrorism Act of 2001
This was an improvement to the Act of 2000 and followed the attack on the world trade center on September 11. This act introduced new powers and created numerous new offices. The most controversial provision of this bill is the part that allows a terrorist suspect to be placed under detention indefinitely and without charges. This applies to the suspected foreign nationals who are linked to terrorism but cannot be prosecuted nor deported safely. This contravenes the EU convention on Human Rights which highlights the right to liberty and security for an individual (Cassese 2001).
The 2001 Act is subdivided into 14 parts. The first part act deals with forfeiture of the properties belonging to terrorist suspects and seizure/ freezing of their funds. This replaces and augments the measures under the 2000 Act. Part six and seven govern very dangerous weapons (atomic and biological weapons). Part eight and ten deal with severe vulnerabilities including nuclear and aviation facilities while part eleven encompasses special police force obligated with protection and other policing measures including surveillance powers (Cassese 2001). The two 2001 Acts also reintroduced the controversial subject of failing to give information relating to the terrorism act. This provision was in the Prevention of Terrorism Act of 1989 which was not included in the Terrorism Act of 2000 since it had been recommended to be scrapped out (Froese 2009).
Dynamic nature of the terrorist threat
The increased powers of the law enforcement agencies in England are attributed to the nature of the terrorist threats which are now completely different from the user to be posed by the local groups or associations. The local terrorist groups on purpose sought to limit casualties for political objectives but currently, the security agencies are stressing the international terrorism organizations mainly the al Qaeda group.
Al Qaeda is believed to have a wide variety of networks that are synonymous with a scale-free network where each faction has a dissimilar number of networks. This form of structure enables Al Qaeda to build up nuclei and nodes with an irregular but large number of networks. These types of networks have leadership equivalent with those in an organization as they have the authority to pass demands over a large area within the network. Statistical and social network analysis has demonstrated that people controlling a large number of networks have the most power (Krebs, 2004).
In spite of the type, networks are very significant in resource distribution between the factions and this explains why Al Qaeda has not subsided despite the governments efforts to freeze their accounts and neutralize their groups working for the organization. This type of structure has made Al Qaeda carry on and keep on terrorizing people even when under attack for instance removal of their main hubs and centers in Afghanistan (Raufer 2003). Researches have established that the only way to destroy this type of network is to immobilize about 15% of their hubs and this is where the UK and the U.S. have failed in fighting Al Qaeda. Some researchers believe that Al Qaeda is still struggling with the earlier structures and change into the dynamic structure. They predict that it would take fairly a long period of time and that the present evidence pointing towards a centralized network is a tip of the evolution process (Raufer 2003). By achieving a fully dynamic status, Al Qaeda will become an invincible terrorist organization that will be very hard to counter using the present techniques (McAllister 2004).
Prevention of Terrorism Act 2005
This act was passed to challenge the Human rights compatibility of the detention provision of the Anti-Terrorism Act of 2000. It is aimed at preventing terrorism-related activities of an individual irrespective of an individuals nationality and applies for both derogative and non-derogative control orders. The two terms (derogative and non-derogative) are used to gauge the compatibility of the order with the EU Convention of Human Rights (Balzacq & Carrera 2006).
Several approaches have been applied to provide solutions for the problem of balancing the Human Rights of a person and the national security matter under investigation. Having acknowledged the restrictions posed by the law, the government considered several alternatives to replace the pre-emptive detention scheme and these include allowing intercepted or wired evidence into the courtrooms, reaching a Memorandum of Understanding between the United Kingdom and other governments among others. The government finally decided to use the control orders that applied to both locals and foreigners to achieve certain aspects of the preventive detention scheme. This was supplemented and the monitoring agencies within and without the British soil and also by ensuring that foreign countries complied with the agreement (Barnard 2004).
According to the secretary of state, control orders are only used in serious cases of terrorism threat. The orders are designed to prevent and disrupt the activities of those seeking to carry out any form of threat inside and outside the country or for those who are planning to support the terrorists materially and financially. Control orders apply to both local citizens and foreigners and were designed to tackle the two concerns raised by Law Lord which are prejudice and proportionality (Perl 2004). Control orders were executed through the prevention of Terrorism Act of 2005, with the objective of protecting the public from any form of a terrorism threat by stopping persons named in such orders from becoming involved in any part of the terrorist activities especially when the suspect can not be charged with a criminal offense. The control orders are only preventive and are designed to interrupt the activities of persons suspected to be taking part in terrorist-related activities according to the intelligence, thus preventing them from further involvement (Froese 2009).
The 2005 Act applies for both derogative and non-derogative orders in relation to the EU convention on Human Rights to protect the citizens from terrorism. To create the largely restrictive form of the control order, which necessitates derogation from the UKs Human rights law, the secretary of state must file an application with the Supreme Court. On receiving the application, the Supreme Court must hold a preliminary inquiry that does not involve the suspects, to decide where there is a prima facie case to warrant the order (Feikert & Doyle 2006.
The Supreme Court has the power to grant an order at this level provided that a number of criteria are met by the order and this includes sufficient evidence to link the suspect to the act of terrorism so as to protect the general public. Before issuing the derogatory order following its preliminary hearing, the Court has to hold a full hearing to authenticate, reject or alter the obligations of the control order. These orders can b processed for up a year, and restructured after that period by the secretary of state, provided the derogation from the EU Convention on Human Rights continues (Barroso 2005).
The control orders are customized to a specific risk imposed by the suspect upon the advice of the Intelligence service and can be altered to adjust to the dynamic risk that the suspected person creates and subject suspected terrorists to conditions comparable to bail or probation for instance electronic tagging, clampdown, restricted communication, ban from using facilities such as internet, and limiting association with certain personality among others. The obligation of the order is not limited to the suspicion that the person is involved in any act of terrorism, but also to prevent the individual from taking part in any terrorist-related activities (Golynker 2005).
There have been a number of cases where the Court carries out a proceeding without the presence of the suspected individuals or any of their legal representatives. If the individual(s) subject to the control order violates any of the obligations enforced by the order, the individual (s) can be arrested without a warrant, and if found guilty, may be incarcerated for up to five years or fined upon conviction on censorship. Control orders have been criticized by many and are considered to be a major threat to the civil freedom enjoyed by the British populace for a very long period of time (Carol 2006).
Some critics believe that control orders are an extension of the massive power enjoyed by the state 300 years ago since it deprives its citizens of their freedom without evidence presented against them. The structure of the British legal system has been heavily criticized by many and there have been a number of questions as to why the government has refused to remove the existing legal restrictions that prevent the prosecution of persons suspected of existing criminal and terrorist transgressions in the Courts in the first place (Apap & Carrera 2004: Deflem 2002).
Conclusion
The handling of terrorist suspects in the UK has been governed by several legislations starting with the Prevention of Terrorism Act of 1989, then followed by the Terrorism Act of 2000, the Anti-terrorism act of 2001, and the latest being prevention of terrorism act of 2005. All the legislations have struggled to balance between the public security concerns and the Human Rights of the individuals suspected of terrorism or assisted in a terrorist act. The English government has also struggled to make sure that these laws do not violate the European Convention on Human rights which is just a guideline but has a massive impact on the national laws of the EU members. In 2005, the government introduced derogative and non-derogative laws in relation to the EU Convention on Human Rights. The 2005 act also introduced the control orders which are used under extreme/ severe cases of terrorism.
References
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