Discrimination for Terrorism Offence Suspects

Published Date: 19 Sep 2017

Title: “The case for discriminatory treatment of persons suspected of terrorism offences- a research study to test the adequacy of the current procedural safeguards that are in place in the UK to protect terror suspects from abuses of due process and breaches of human rights legislation.

Abstract:

This paper provides a literature review of the latest research which has been conducted in the UK on the due process rights of terror suspects, with a view to determining (i) how susceptible such suspects are, in practice, to abuse of their legal rights by the Police, Security Services and Criminal Justice System; and, (ii) to what extent it is justified to introduce a framework of enhanced procedural protection to mitigate their inherent vulnerabilities.

The Structure of the Paper:

In chapter 1 of this paper, the concept, legal basis and legal nature of 'due process' will be examined. In particular, the author will examine the historical development of the legal principle, its nature as a procedural safeguard and its legal basis as a constitutional and/or human right.

In chapter 2 of this paper, the author will examine the criminal justice mechanisms in place to deal with terror suspects, from initial arrest to criminal prosecution, with a view to determining the extent to which terror suspects are (potentially) more vulnerable to the risks of procedural undue process, within the criminal justice system, than non-terror suspects.

In chapter 3 of this paper, the author will identify those risk factors which are unavoidable, such as the national security and other requirements for evidential opacity and those which are historically reported but which have no direct relationship with the nature of the crime being investigated.

In chapter 4 of this paper, the author will critically evaluate the adequacy of the existing procedural safeguards which are in place to protect terror suspects from abuse of due process.

In chapter 5 of this paper, the author will (tentatively) propose a framework of enhanced procedural safeguards specifically designed to protect terror suspects from abuses of due process.

Initial Terminology:

"Terror suspect"- A person who has been arrested on suspicion of being guilty of a criminal offence which pertains to terrorist activity.

"Non-terror suspect"- A person who has been arrested on suspicion of being guilty of a criminal offence, unrelated to terrorism.

"Due process"- Due process of law.

"Undue process"- This phrase refers to an instance where due process has not been adhered to, i.e. 'an abuse of due process'.

In this chapter, the concept, legal basis and legal nature of 'due process' will be examined. In particular, answers to the following questions will be provided:

1. What are the origins of 'due process' in England and Wales?

2. What is 'due process'?

3. What are the philosophical and/or theoretical justifications for the existence of 'due process'?

4. What is the legal basis for the existence of 'due process'?

5. Can 'due process' be regarded as being constitutional, at law? Why is this question relevant to the current debate?

1. What are the origins of 'due process' in England and Wales?

It is beyond the scope of this paper to engage in an in-depth historical analysis of the development of the concept of due process. However, it is important that we glean an understanding of the age of the concept, so that we can appropriately contextualize its importance within the debates of this paper. For this reason, and out of interest, the author will provide a (very) brief summary of the origins of due process in England:

In the United Kingdom, the concept of due process has its origins in Chapter 9 of the Magna Carta of 1215^[1], which stated: "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgement of his peers or by the law of the land."

Analysts have fucussed on varying elements of this passage from which to derive the concept of due process. Galligan (2006) p171 provides a useful summary of the main analyses: “The important part is the exception, especially the words 'by the law of the land' (legem terrae). On first reading it might seem that the significant words are 'judgement of his peers', since they suggest a foundation for trial by jury. Jury trials, however are a long way into the future and have different origins. The more likely meaning of the expression 'judgement of his peers' is the right of a noble to be judged by his equals, which in turn carries some suggestion of a fair trial. This certainly has procedural connotations, but the search for a fuller sense of due process is usually directed at the words 'the law of the land'... That idea is vague enough to support different meanings, and certainly it is not improbable to suggest, as some have, that it contains at least the kernel of due process.”

It is interesting to note that the phrase 'due process' or, more correctly stated, 'due process of law', was not coined until 1354, in King Edward III of England's statutory rendition of the Magna Carta^[2], which stated: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.^[3]" Let us now turn to consider what is mean by due process of the law.

2. What is 'due process'?

In the United Kingdom, 'due process' refers to the procedural concept that any person, who is in a position where one or more of his or her protected interests are being deprived^[4], is entitled to be treated fairly by the procedure of the law to ensure that the deprivation in question is justified. There are six broad aspects of procedural due process which are often cited: (1) Notice; (2) Hearing; (3) Impartiality; (4) Counsel; (5) Evidence; and, (6) Decision. Let us discuss each of these procedural requirements in turn:

(1) Notice

Under procedural due process, an individual is entitled to be given adequate notice of any prospective criminal law proceedings in which he or she will be summoned as a defendant. This is to give the defendant sufficient time to seek advice in regard to his or her available legal options.

(2) Hearing

Under this aspect of procedural due fairness, before the property or the liberty of an individual is deprived from him or her, he or she is entitled to demand a hearing at which his or her case will be heard and a decision reached in regard to whether the prospective deprivation is justified. Galligan (1996) p349-350 provides a succinct description of the main virtues of upholding the 'hearing principle': "[A] virtue of the hearing principle is that it contributes to better decisions and actions, better that is, in the sense that the facts are decided accurately, the law applied properly, and any discretionary judgements reasonably made. This is so for a number of reasons. One is that the person whose situation is under scrutiny, whose past actions or present circumstances are in issue, will often be able to provide information about the situation which is not otherwise easily available... Another reason is that the person affected by a decision may be able to raise other considerations, apart from purely factual matters, which help to shape the decision and perhaps, in that way, contribute to a better outcome."

(3) Impartiality

This aspect of procedural due process states that the tribunal of decision-makers in a legal hearing must be made up of persons who are wholly impartial towards the defendant, i.e. they must not have any predispositions towards the defendant. The purpose of this procedural requirement is to ensure that any decisions reached by a hearing tribunal are based upon the facts at hand rather than any extraneous and/or irrelevant considerations. Where for example, a decision-maker has had previous personal or business dealings with the defendant, then he or she should, in the interests of procedural due process, resign himself from the hearing of that defendant's case, as he cannot be considered impartial. There are many other examples of circumstances under which a decision-maker might not be deemed impartial, but the general rule is that the impartiality of a decision-maker who is pre-disposed towards a defendant prior to the criminal hearing being held must be considered compromised.

(4) Counsel

Under the doctrine of procedural due process, a defendant is entitled to be given free access to legal representation if he or she is unable to afford or unwilling to provide his or her own representation. The rationale for this aspect of procedural due process is self-evident: It would be grossly unfair to allow a defendant's property or liberty to be deprived from him or her without being able to present his or her defence in its best light and most effective legal form- without legal representation it is likely that a defendant will be unable to meet this requirement of fairness.

(5) Evidence

In order to ensure that a defendant is able to present the most effective case at a criminal hearing, it is not only imperative that he or she has access to all of the evidence that the prosecution will be seeking to rely upon but also imperative that he or she or his or her legal representatives are given an opportunity to conduct their own investigations to acquire evidence which will assist the case for the defence. For one example, a defendant may wish to instruct the services of an expert witness to refute the accuracy of DNA tests which were conducted by the police on behalf of the prosecuting authority. An eloquent summary of this procedural requirement has been provided by the Pennsylvania General Assembly (2006) p45: "Especially in cases where a decision rests on questions of fact, it may be necessary to provide an individual not only with the ability to confront and cross-examine adverse witnesses, but also the opportunity for discovery, i.e., investigation and accumulating evidence, in order to give him or her a chance to show that the facts upon which the proposed deprivation is based are untrue."

(6) Decision

This aspect of procedural due process demands that upon reaching a decision which adversely affects a defendant, for example a decision depriving him or her of his or her property and/or liberty, the decision-making body must not only provide the reasoning for their decision (the ratio descendi) but must identify which pieces of evidence they relied upon to reach their final conclusions.

3. What are the philosophical and/or theoretical justifications for the existence of 'due process'?

The importance of the existence of consistent procedures to any legal system cannot be underestimated. As Galligan (1996) p5 notes: "Without procedures, law and legal institutions would fail in their purposes. And since law is both necessary and desirable in achieving social goals, procedures are also necessary and must be seen as equal partners in that enterprise. For whatever the context, whether the judicial trial, the administrative decision, or any other form of legal process, procedures are necessary to ensure that the issue is channelled to its right conclusion. Whether the object is to apply a legal standard to the facts, to exercise discretion according to the correct matters, or to settle a dispute by bringing the parties together, procedures have a vital part to play." Let us explore some of these contentions in more detail.

One of the fundamental theoretical bases for the insistence of maintaining due process within a legal system is the ‘Rule of Law’. While it is beyond the scope of this paper to engage with the multitude of different definitions and propositions which have been promulgated under the umbrella of this phrase, it should be noted that one of the basic (and universal) tenets of the Rule of Law is that individual freedoms and liberties should be protected from the State’s abuse of its constitutional powers. As Urabe (1990) p61 notes: “[T]he core of the Rule of Law, which has been supported consistently as a fundamental principle of the English and American constitutions, is that governmental power be bound strictly by law in order to protect individual freedom or liberty. The law exists to protect individual rights and liberties both in substance and procedure.”

Lon Fuller’s understanding of the Rule of Law provides some further insight into the theoretical justifications for due process. As Raitio (1003) p143 notes: “Fuller required that laws should be prospective in application, they should be published and they should comprise clear general rules, which are neither too individualized nor too general and vague. There should be reasonable constancy and consistency among laws, i.e. laws should not be changing all the time, they must not contradict each other and they must not require citizen’s to do the impossible. The conduct of legal officials has to be congruent with the laws, as laid down, which in turn requires that the officials owe the same respect to the same laws as the citizens.^[5]” On this basis, one of the fundamental justifications for the existence of due process is to ensure legal certainty in the way that the procedure of the law is applied and followed. By ensuring that procedure remains consistent, not only can individuals be more certain that they are receiving a fair trial, for example, but they will be more aware when their rights are being infringed, and can take the necessary remedial actions, accordingly.

Before we move on to examine the various legal bases for modern due process, a few words should be said about the concept of ‘fairness’ and why it is important to ensure that the law is applied via fair procedures. While the answer to this question cannot seem anything other than intuitive, it is nevertheless important to break the question down and answer it from a jurisprudential point of view- after all, if we cannot support this fundamental assumption through reason and logic, then it will be difficult later in this paper to support the introduction of a discriminatory framework of enhanced legal protection for terror suspects on the basis that the current regime is, in places, ‘unfair’.

Embedded within the concept of fairness is the concept of justice. It is beyond the scope of this paper to engage with the full range of conceptualizations of ‘justice’ that have been promoted by the various authors in this field. However, it should be noted that present in every conceptualization of justice are the concepts of ‘guilty’ and ‘not-guilty’, and it is with these concepts that this author would like now to engage.

As we have seen throughout this section, one of the main aims of due process is to ensure that an individual who’s property or liberty is under threat (as a result of legal action being brought against him), is able to have access to all the resources he requires to be able to present his defence to a fair and impartial tribunal, who will make a decision based upon the evidence presented and the relevant applicable laws. One might be forgiven for thinking that the only aim of due process in this context is to protect the individual. However, this is not the case: It is in the interests of society as a whole, and citizens as a collective, that justice be achieved in each and every case. If the law is seen as being applied within a forum which is unjust, then citizens (as a group) will lose respect for the law, and may engage in criminal activities which otherwise they may have desisted from.

In order to maintain the public respect for the law, it is important that public scandals involving abuses of due process are kept to a minimum, and the best way to avoid such scandals is to try and ensure that instances of such abuse are kept to a minimum^[6]. In light of the fact that property and liberty are held as being of such high value within our society, it is also important to ensure that these are only taken away from a defendant where there is no reasonable doubt that the criminal justice system is justified in so depriving that person. As Sir William Blackstone famously stated in 1765: “It is better to let ten guilty men go free than to punish one innocent man”. It is for this reason that the burden of proof in criminal law proceedings has been set so high, and also why the principle of homo praesumitur bonus donec probetur malus^[7] has been referred to as the ‘golden thread’ of the criminal law: “Throughout the web of the English criminal law one golden thread is always to be seen—that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.^[8]”

Stevens (2006) summarizes this debate and the benefits of the current position in the following terms: “Which is fairer, (a) a system of rules so strict that even a few innocent people get unfairly punished; or, (b) a system not so strict that even a few guilty people go unfairly unpunished? Due process of law holds that the second answer is more correct, for many reasons. On a practical level, there's less of a danger to the whole legal system. If your system is convicting a few innocent, chances are it's railroading many of the guilty, so you've got two problems on your hands -- those who are falsely imprisoned and those who have a stronger habeas corpus claim. If your system is letting a few guilty slip through, chances are that those lucky evil-doers might change their ways, or in any case, law enforcement or informal methods of social control can pick up the slack.”

While this argument has instant intuitive appeal, it must be noted that the enquiries involved in reaching, for example, Blackstone’s ratio, require no investigation into the nature of the crimes that the ‘guilty’ have been unfairly acquitted of. If, for example, the 10 criminals are guilty of conspiracy to commit mass genocide and also possess deep faith-based motivations which are unlikely to be quashed by a ‘lucky escape’, then is it really justifiable to acquit these criminals in favour of protecting the property and/or liberty of one innocent person? This debate strikes at the very heart of the matter with which this paper is primarily concerned; namely, whether or not it is fair to allow the due process rights of terror suspects to be abused and whether or not special measures ought to be introduced to protect these individuals, who (it must be remembered) have yet to be found guilty by a fair and impartial Court of law of any criminal law offences.

Let us reserve judgement on these difficult questions until later in this paper, when we have had a chance to fully examine the risks that terror suspects face at the hands of the State, and the risks that the State potentially faces at the hands of terror suspects.

4. What is the legal basis for the existence of 'due process'?

The legal sources for procedural due process are various. Some are specific, in that they prescribe a certain procedure to be applied within a certain set of circumstances^[9]; and, some are general, in that they provide what might be described as broad yet fundamental human rights.

Let us commence with an examination of one of the most commonly cited legal sources for a general right to due process; namely, Article 6 of the European Convention on Human Rights, as enshrined into UK law by the Human Rights Act 1998.

Article 6 of the European Convention on Human Rights purports to provide the human right to a ‘fair trial’. In order to understand the scope and limits of this right, let us commence with an examination of the wording of this Article. Article 6 states:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The words and phrases which have been highlighted above represent those elements of Article 6 which provide a legal basis for one or more aspects of procedural due process. The majority of these have been discussed in detail earlier in this Chapter: For example, the right to notice^[10], the right to a hearing^[11], the right to an impartial tribunal^[12], the right to counsel^[13], the right to examine the evidence against him and perform his own investigations^[14], the right to hear the ratio descendi of the decision handed down against him^[15] and the right to enjoy the benefits of the doctrine of homo praesumitur bonus donec probetur malus^[16].

As we can see, Article 6 provides a general legal basis for each of the aspects of procedural due process which we have identified earlier in this paper. That having been said, this is not the only legal source which provides such a basis. For example, many provisions of the Police and Criminal Evidence Act 1984 provide similar rules of due process^[17].

It should also be noted that there are common law sources for some of the rights of due process. For example, there is a common law right to silence which is derived from the principle of homo praesumitur bonus donec probetur malus- if a person is innocent until proven guilty and there is insufficient evidence to satisfy the criminal law burden of proof requirements, then it is unacceptable to insist that a defendant incriminates himself or faces a criminal law penalty. This right still exists in English common law, but has been somewhat compromised by the enactment of the Criminal Justice and Public Order Act 1994 which now allows prosecutors to infer meaning from a defendant’s silence. This legal development has been heavily criticized by authors such as Hammerton (2001), who notes: “An innocent defendant may fail to answer questions in custody or refuse to testify in court for all sorts of reasons. They may regard the police as corrupt and that answering the questions would give the police information that can be used against them. They may believe that if they answer the questions, they or someone they care about might be put in danger from the people who did commit the crime. In short drawing inferences from a defendant's silence in custody or in court involves speculation on the motives behind their silence, not solid reasoning that their silence indicates guilt.”

5. Can 'due process' be regarded as being constitutional, at law?

The reason that this enquiry has been included within this chapter is to determine to what extent it is legally valid to allow due process to be circumvented via legislation. After all, if it is possible to argue that due process is a fundamental constitutional right, then unless the legislation which provides the legal basis for that right is repealed or modified, then it may be possible to argue that any conflicting non-constitutional legislative provisions are unenforceable.

As we have seen in the preceding section of this chapter, one of the legal bases for the right for criminal suspects to enjoy ‘due process’ is Article 6 of the European Convention on Human Rights. This article has been incorporated into UK law by the Human Rights Act 1998.

Section 3(1) of this Act states: (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Therefore, where a piece of legislation purports to allow a criminal suspect/defendant’s due process rights to be circumvented or abused, if a Court of law is able to reinterpret that legislation in a way which does not lead to the infringement of that right, then it must do so^[18]. However, where that legislation cannot be so reinterpreted, the only remedy available to a Court of Law is the ability to be able to issue a ‘declaration of incompatibility’ under section 4 of the 1998 Act which states, inter alia: “(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility... (4) If the court is satisfied— (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility...”

However, this remedy is really a wolf in sheep’s clothing, because section 4(6) of the Human Rights Act 1998 makes it very clear that “...a declaration of incompatibility... (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.” This means that a criminal defendant who has had his due process rights abused by the state, in pursuance of legislation which purports to allow that particular abuse, has no form of redress in the domestic Courts, because even if a declaration of incompatibility is granted, it ‘...does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given [and, it]... is not binding on the parties to the proceedings in which it is made’.

Additionally, a declaration of incompatibility does not place any pressing duty on the Government to re-write the offending legislative provision, so such a declaration will not even ensure that the abuse in question is not repeated in regard to other criminal suspects/ defendants. That having been said the Legislative is usually prompt at remedying legislative provisions which have been declared incompatible. For example in the case of R (on the application of H) v Mental Health Review Tribunal for the North and East London Region & The Secretary of the State for Health CA [March 2001] EWCA Civ 415 it was held that section 2 of the Mental Health Act 1983 is incompatible with Article 5(4) of the European Convention on Human Rights because it does not require a Mental Health Review Tribunal to discharge a patient where it could not be proven that the detainees mental health warranted detention. The offending provision was repealed in November of that same year by enacting the Mental Health Act 1983 (Remedial Order) 2001.

In regard to those legal sources discussed earlier which also provide for certain due process rights, because these sources are not contained within the Human Rights Act, but rather within the common law and primary non-constitutional legislation, these can be repealed or supplanted by the enactment of contrary primary legislation.

N.B. On a separate note: It will be remembered, the controversy which was caused in the United Kingdom when it was discovered that terror suspects were being held without charge in Belmarsh Prison for periods of up to 3 years^[19]. The legal basis for holding prisoners in this way was provided by section 23 of the Anti-terrorism, Crime and Security Act 2001. However, in 2005^[20], this section of legislation was held to be incompatible with Article 5 of the Human Rights Act 1998 and the European Convention on Human Rights^[21]. These prisoners were subsequently released, their detentions being replaced with Control Orders. In light of the fact that terror suspects no longer face a significant threat from section 23 of the Anti-terrorism, Crime and Security Act 2001, the author of this paper has decided to exclude all further discussion of this source of abuse of due process. While there remains an argument that the imposition of Control Orders on terror suspects also infringe their Article 5 human rights, the author has chosen to exclude discussion of this debate from this paper as this paper is more concerned with abuses of due process suffered while being detained, both pre- and post-charge.

In this chapter, we will perform a structures literature review in order to glean a deeper insight into the way that terror suspects in the UK are actually treated by the criminal justice system. From our secondary analysis of case studies, interviews and anecdotal evidence, we will seek to provide an answer to the following question: To what extent are terror suspects more vulnerable to the risk of procedural undue process, within the criminal justice system, than non-terror suspects.

In this Chapter we will refrain from engaging with an analysis of the framework of provisions which have been introduced, primarily under the Terrorism Act 2000, to protect terror suspects from abuses of due process. While this analysis is very important, at this stage, such an analysis would only be able to reveal whether or not the current framework of protection is adequate in theory. By first examining the practical risks of abuse faced by terror suspects in the United Kingdom and then conducting a critical review of the procedural framework, our resultant conclusions will be able to move beyond the theoretical, providing insights into those areas where, for example, even though a particular safeguard ought to provide a reasonable level of protection, in reality that safeguard is not permitted to function effectively because of a particular unforeseen practical constraint.

There is no dearth of anecdotal evidence which suggests that terror suspects are particularly vulnerable to abuses of due process^[22]. As we will discuss in greater detail later in this Chapter, the very nature of the crimes with which these persons are suspected and the need to ensure that the evidence acquired by the police and the methods used to obtain that evidence are not allowed to enter into the public domain means that, often, only the bare minimum levels of information are shared with terror suspects during their detention. This lack of transparency clearly increases the exposure of terror suspects to the risks of undue process. The gravity of the situation has been summarized by the Third Committee of the General Assembly of the United Nations: “Rather than a genuine system of monitoring detention areas and stopping the practice of torture, [they provided] diplomatic assurances [which] basically attempted to provide special bilateral protection and monitoring for a few privileged detainees while ignoring the systematic torture of other detainees.” (General Assembly, 2005).

It should also be noted that many terror suspects are non-British nationals and English will not always be their first language (if they are able to speak English at all). This fact in itself increases the risks of terror suspects facing abuses of due process- For one example, several of the procedural safeguards available to terror suspects are voluntary in nature, for example the right to see a judge and (under certain circumstances) the right to request that interviews are recorded onto audio cassette, and therefore unless a competent interpreter is employed to explain to terror suspects their rights and the implications of invoking those rights, they may simply fail to make prudent demands.

This potential language barrier might also serve to increase the stress faced by terror suspects as a result of being interrogated by the Police and Security Services. Coupled with the fact that under the Terrorism Act terror suspects can be detained for up to 28 days, compared to the 48 hours maximum time limit that non-terror suspects can be detained without charges being brought, it is easy to see how terror suspects are more vulnerable to being coerced into making false confessions. Much research has been conducted into the psychological effects of intense interrogation and/or torture and their effects on the reliability of confessions obtained (Oskamp, Stuart, Schultz & Wesley (1998); Gudjonsson (1992); Silverman (2001)). These sources reveal how much more vulnerable terror suspects are than other types of criminal suspect who are rarely held for longer than 24 hours without charge and are rarely subjected to the same level of intense interrogation or torture. These sources also reveal how unreliable confessions obtained from torture can be and it is understandable why the US Supreme Court is often unwilling to admit evidence obtained in this way^[23].

Bearing these factors in mind, let us now perform an in-depth review of the various sources that are available which either suggest that terror suspects are more vulnerable to abuses of due process than non-terror suspects or suggest that terror suspects are no more vulnerable to such abuses than non terror suspects.

For the purposes of clarity, the following review will be broken down into five sections, each corresponding to the successive stages of the criminal justice process relevant to the treatment of terror suspects; namely, initial arrest, detention, interrogation and prosecution/trial.

Initial Arrest of Terror Suspects

It is clear from the literature that the Police in the UK have been instructed to adopt a preventative and precautionary approach to the arrest of terror suspects. The reason proffered for this approach, which seems to deviate from the ordinary criminal principles governing powers of arrest, is that terrorism offences can have such drastic consequences if they are allowed to proceed uninterrupted, there being the potential for mass civilian casualty, that it would be negligent not to arrest a potential suspect at the earliest possible stage, regardless of there being insufficient evidence against him or her. For example, the Home Office white paper entitled, ‘Pre-Charge Detention of Terrorist Subjects’, published in December 2007 admitted that: “The police and Security Services have a duty to intervene early, to protect the public, at a point when there may not be much evidence against suspects.^[24]” Earlier in this paper we referred to the ‘Blackstone’ ratio and identified a flaw in its underlying argument; namely, that it failed to take account of the nature of the crime for which the 10 guilty people were being erroneously set free. In some respects we must therefore empathize with the argument proffered by the Home Office- perhaps, if one adopts a utilitarian perspective, it is justified to conduct early arrests if the potential benefit of doing so significantly outweighs the detriments of interfering with a man’s liberty without just cause. That having been said, if such action is taken, it certainly means that terror suspects are more vulnerable to abuses of due process, and this would suggest that extra protectionary safeguards ought to be in place to mitigate this increased risk of abuse.

Additionally, it seems clear that the Police and Security Services are committed to acquiring ‘intercept’ evidence to secure their ‘reasonable suspicions’. As Hinsliff and Bright (2004) reveal: “Terror suspects could be convicted on the evidence of 'electronic eavesdropping' of phone calls and emails under sweeping moves to combat the threat of an al-Qaeda atrocity. In a blunt admission that the risk of attack remains 'real and serious', Home Secretary David Blunkett will pledge a massive staffing boost for MI5. Priorities will include linguists, translators and surveillance to help infiltrate overseas-sponsored terror networks in Britain.^[25]”In light of the fact that, by virtue of section 17 of the Regulation of Investigatory Powers Act 2000, such evidence cannot be used to bring a criminal charge or admitted into Court as evidence in criminal proceedings, it seems somewhat unfair that such evidence be used as a basis of mounting an arrest, especially since the Security Services will not reveal to the suspect which evidence they have in their possession, for to do so would be to reveal how the police and security services operate to intercept terrorists. This means that many terror suspects are arrested and not told the reasons for the arrest. This is certainly contrary to the ‘notice’ requirements of due process, as discussed in Chapter 1 of this paper, and also contravenes the ‘counsel’ requirements- how can a terror suspect receive any counsel when the reason for his arrest and detention will not be revealed?

On a separate point, relevant both to the arrest and detention of terror suspects: It should be noted that not all terror suspects have been arrested under the Terrorism Act: Some have been detained under the Mental Health Acts. A little known fact is that in 2007 the Government established a new anti-terrorist unit with the power to detain suspects indefinitely using mental health laws. When such persons are ‘arrested’, they may be sectioned under section 136 of the Mental Health Act 1983 and brought to the ‘Fixated Threat Assessment Centre’. An interesting insight into the secrecy surrounding this Blairite initiative can be gleaned from an examination of the Hansard report for 25 Jun 2007. In this report, at column 302 W, Norman Baker poses the following questions to the Secretary of State for the Home Department: “(1) how many individuals have been detained by the Fixated Threat Assessment Centre since its inception, broken down by (a) gender and (b) ethnic origin; what the (i) average and (ii) maximum length of detention has been; and how many are currently detained; [and,] (2) what safeguards are in place to ensure that individuals detained as a result of actions by the Fixed Threat Assessment Centre are only detained under the appropriate legislation?...” The response by Mr. McNulty (which is (virtually) the same scripted response which he delivered to Tim Loughton 4 days previously when a similar question was posed!) fails to engage with the second question.

It is not surprising that the introduction of the Fixated Threat Assessment Centre [FTAC] has been widely criticized. When asked what he thought of the new initiative by the Mail Newspaper [The Mail, 27^th May 2007, available on-line at http://www.mailonsunday.co.uk/news/article-457934/Revealed-Blairs-secret-stalker-squad.html], Gareth Crossman, Policy Director of civil rights group ‘Liberty’ stated: "There is a grave danger of this being used to deal with people where there is insufficient evidence for a criminal prosecution... This blurs the line between medical decisions and police actions. If you are going to allow doctors to take people's liberty away, they have to be independent. That credibility is undermined when the doctors are part of the same team as the police... This raises serious concerns. First that you have a unit that allows police investigation to lead directly to people being sectioned without any kind of criminal proceedings. Secondly, it is being done under the umbrella of anti-terrorism at a time when the Government is looking at ways to detain terrorists without putting them on trial."

There is no sound way to test these concerns, as the information surrounding the operation of the FTAC remains a closely guarded secret. In fact, its location in Central London itself remains ‘top-secret’, with only a handful of authorized personnel (made up more of Police officials than mental health workers!) working and overseeing the operation of the facility. For the purposes of this paper, little more can be said about the FTAC except that it remains a very real concern- if such a centre is to remain operational, there needs to be some form of accountability mechanism in place (1) to ensure that those persons who are detained by this anti-terror group enjoy full due process of the law, including the right to be brought periodically before a Mental Health Assessment Tribunal to assess the merits of the ‘justifications’ for continued detainment of that ‘client’; and, (2) to ensure that it is not being used, as Gareth Crossman and others fear, as an extra-judicial detention centre for criminal suspects for which there is insufficient evidence to charge under the criminal law of England and Wales.

Pre-Charge Detention of Terror Suspect

We have already noted, above, that some terror suspects may have been detained at the FTAC, for periods unknown. In regard to these individuals, we can offer no insights into the treatment they are receiving or the conditions of their detainment, except to say that if there are terror suspects being held in this way, it is unlikely that they are enjoying any rights of due process.

In regard to terror suspects who are arrested under the Terrorism Act and detained without charge, in the next section of this Chapter we will discuss how the prolonged detention of these suspects and also the poor conditions in which they are held, contribute to their vulnerability to suggestion from coercive interrogative practices.

In this section, we will focus on the degree of access to information and legal representation that terror suspects are able to receive while being held on pre-charge detention.

The fact is that, because these suspects have yet to be charged, there is really no benefit that legal assistance at this early stage can bring. As Liberty (2008, p4) notes: “Before charge the police do not have this hard evidence. In fact, the arrest and detention of a suspect before charge is justified on the basis of police suspicion as opposed to evidence. Suspicion is such a low “evidential” hurdle that it is not really capable of being tested by the courts or challenged by the suspect or their lawyers. Any proper contest between defence and prosecution or any true scrutiny by a court is not really possible in the absence of hard evidence.”

In regard to the duration of detention, while a terror suspect can only be held for a maximum of 28 days, if after that time no further evidence has come to light, the suspect can be charged and detained using the ‘threshold test’. A summary of the test and how it is used has been provided by the Home Office (2007, p8): “The threshold test is already frequently used in terrorist cases. It enables suspects to be charged at a much lower threshold than that required by the Code for Crown Prosecutors ‘full code test’ which requires enough admissible evidence for there to be a realistic prospect of securing a conviction. The threshold test means that a suspect can be charged when much of the evidence is not available but there is at least a reasonable suspicion that an offence has been committed and a likelihood that sufficient evidence will become available within a reasonable time. Where these conditions are satisfied and the individuals detained present a threat either to other individuals or to the public if released pending the outcome of the investigation, the CPS may authorize the police to charge him/her. The test is already fully used in terrorism cases but it cannot be used in all instances.”

Interrogation of Terror Suspects

In this section of this chapter we are predominantly concerned with the interrogation techniques employed against terror suspects, and the risk of false confessions being obtained as a result of the techniques employed.

Extensive research has been conducted into the phenomenon of ‘false confessions^[26]’. As Tyler (2003) reports: “[T]orture isn't the only reason people confess to crimes they did not commit. "It's a lot easier for people to make false confessions to serious crimes than people realize.^[27]”... [for example]... the city of Detroit agreed to pay $800,000 (U.S.) to Michael Gayles, a man with limited mental capacity who, after being interrogated for more than 24 hours, confessed to raping and killing a 12-year-old girl. A DNA test proved he was not the culprit.”

The above example highlights two important issues: First, that the duration of the interrogation has some impact on the likelihood of a false confession being given; and, (2) that false confessions are not only given by terror suspects but are also given by non-terror suspects. The importance of this latter observation is subtle, but nevertheless important: In this paper we are not concerned with the general failings of interrogative technique. Rather, we are concerned that terror suspects are more likely to have their due process rights abused than non-terror suspects. Therefore the question of this section of this chapter, rather than being whether or not terror suspects are susceptible to providing false confessions or erroneous information when being interrogated by the police and security services, is: What are the differences in the ways that terror suspects are interrogated, as compared to non-terror suspects, and do these differences increase the chance that confessions and evidence obtained from these interrogations are false?

Well, the first difference which can be identified is the likely duration of the interrogation. As we have stated earlier, it is highly unlikely that a non terror suspect will be interrogated and detained without charge for longer than 24 hours^[28], although the law does permit the Police to detain non terror suspects for a period of 36 hours without charge if the offence in question is indictable^[29]. In comparison, the police are entitled to detain a terror suspect for up to 28 days without charge, and can interrogate that suspect for many days during that time^[30]. It is therefore quite clear that terror suspects are potentially more vulnerable to the risks of making false confessions during interrogative interviews than non-terror suspects: Pearse and Gudjonnsen (1999) have demonstrated clearly that the risk of making a false confession increases in line with the degree of coerciveness utilized by the interrogators and also that the risk of coercive interviewing increases as the duration and the dynamics of the interview become more demanding^[31]. This would seem to support the contention that terror suspects, who are likely to face more complex interviews of greater duration (than non-terror suspects), are more vulnerable to the phenomenon of ‘false confessions’ than their non-terror counterparts.

Another difference which should be noted is the general tone of the proceedings. In serious criminal interrogations, officers often resort to using the same techniques which are employed during war zones or armed conflict: As Williamson (2006, p74) notes: “It is the psychological principles underlying the elicitation process that I would say represent the strongest connection [between] interrogation in the Police environment and that taking place at Gitmo or Abu Ghraib...[these] interrogation techniques... tend to involve techniques carried out at the extremes of human behaviour, such as the extreme levels of coercion and fear that are applied (Forrest, 1999; Mackey and Miller, 2004).” Pearse and Gudjonsson (1999) would concur with this observation, pointing out from their analysis of interviews conducted with criminal suspects, that one of the most common techniques employed in these serious cases are what have become known as the ‘Reid Techniques^[32]’, a nine-step process of ‘minimization’ and ‘maximization’: Minimization of the suspect’s perceptions of the consequences of making a confession, and the maximization^[33] of the suspect’s internal anxiety.

Rather than engaging in an analysis of the Reid principles, or other commonly utilized interrogative techniques, for the purposes of this paper it is only necessary to prove that terror suspects are (i) particularly likely to face coercive interview techniques, (ii) which are likely to last for a greater duration than the interviews conducted with non-terror suspects, (iii) being held in conditions which are likely to lower their morale and weaken their spirit, and (iv) that the combined implication of these factors is that terror suspects are more likely to make false confessions than non-terror suspects.

In regard to (i): We have already argued convincingly that terror suspects are more likely to face coercive interviewing techniques than non terror suspects, but should briefly say a few words about why these techniques contribute to the risks which we have identified: Putwain and Sammons (2002, p74) provide an eloquent summary of the research findings of Gisli Gudjonnsen (Gudjonnsen, 1992): “Gudjonnsen (1992) raises a number of problematic issues relating to police interrogation tactics. The first is that they use psychological techniques to coerce suspects into incriminating themselves and may use deceit and dishonesty, which raises ethical concerns. Second, interrogators tend to rely upon ‘lie signs’ or body language which supposedly indicates that the suspect is lying. Generally however such signs are very unreliable as evidence of lying. Third, the psychological manipulations of interrogators can influence the judgements of judges and jurors if the suspects statement is used in evidence. Finally, the interrogation manuals used by the police tend to be based upon experience rather than upon controlled studies. This means that some of the claims about suspects’ behaviour made in them have not been properly tested and may be of dubious value.”

In regard to (ii): We have already established that a terror suspect may be detained by the police without charge for a significantly longer duration than a non terror suspect, and that this duration is likely to increase to 42 days, albeit in exceptional and under carefully monitored circumstances. Anecdotal evidence reveals that terror suspects are often interrogated for ‘weeks’ at a time: “Interrogators find tiny bits of the truth, fragments of information, slivers of data. We enter a vast desert, hundreds of miles across, in which a few thousand puzzle pieces have been scattered. We spend weeks on a single prisoner, to extract only a single piece – if that. We collect, and then we pass the pieces on, hoping that someone above us can assemble them.^[34]”

In regard to (iii): There is a dearth of evidence revealing the true extent of the sub-standard conditions in which terror suspects are detained in the U.K and abroad. That having been said, the psychological effects of being detained without charge for a long period of time are potentially very severe, especially when much of that detention is spent being interrogated by coercive psychological techniques. The experience must be all the more harrowing for suspects who are non-British nationals or who do not have a working knowledge of the English language. In fact, it is the combination of these conditions and factors that have led many authors to argue that the line between interrogation and torture is somewhat blurred. James (2007, p161) quotes an excerpt from the ‘Interrogator’s Handbook’ which he authored on behalf of the Australian Defence Force, which purports to provide a definition of ‘interrogation’ and also distinguish interrogation from torture. He writes: “Among professional interrogators in countries abiding by the rule of law the common working definition of interrogation is ‘the systematic extraction of information from an individual, either willing or unwilling, by the use of psychological attack only’. Thus, interrogation is essentially an intellectual process not a physical one. No physical or mental pain or severe suffering is involved. The subject is convinced to cooperate by reasoning and by overcoming their will to resist.” The case studies provided by Lynch (2003) reveal that it is not always so easy to draw a distinction between a ‘psychological attack’ and torture: For example, when Mr. Thomas (Australian National) was arrested in Pakistan on suspicion of terrorism, he was not only bound and blindfolded during the interrogation by American, Australian and Pakistani authorities, but was threatened with torture and also told that his wife would be raped if he did not confess to his crimes^[35]. It is very difficult to see how such techniques, despite their being purely psychological, are not tortuous on terror suspects on whom they are employed.

Gudjonnsen (2003, p35) provides a useful summary of certain key research findings on the psychological effects of torture and also of being detained, confined and interrogated via coercive techniques: “Studies into the psychological effects of torture (e.g. Basoglu et al., 1994; Daly, 1980; Forrest, 1996; Gonsalves, Torres, Fischman, Ross & Vargas, 1993), show that many survivors suffer from post-traumatic stress disorder (PTSD). I am not aware of any similar research being conducted into the psychological effects of police arrest, confinement and interrogation. However, a study of the interrogation techniques of the British police officers in Northern Ireland in the early 1970s indicated that some detainees suffered from PTSD as a result of their ordeal (Shallice, 1974). Similarly, Hinkle (1961) has argued that harsh interrogation techniques can cause serious mental disturbance in some suspects.”

In conclusion, and in regard to (iv): The combined implications of factors (i), (ii) and (iii) must be an increase in the likelihood that a terror suspect will face an abuse of due process and also an increase in the chance of a terror suspect being falsely charged and prosecuted for a crime which he/she did not commit but to which he/she did confess, either because he or she wanted the interrogation to end or because, through confusions and coercion, he or she had been forced to believe that he or she was in fact guilty of a terrorist offence.

Of course, not all terror suspects will be equally susceptible to the resultant risks of coercive interviewing. Some suspects will be more vulnerable than others. This has been demonstrated very clearly by the work conducted by Gisli Gudjonsson during the formulation of the ‘Gudjonsson Suggestibility Scale^[36]’ [Gudjonsson, 1997]. The ‘GSS’, as it has become known, is used forensically to measure how susceptible an interviewee is to coercive interviewing techniques, i.e. how easily suggestible they are as a result of misleading questions being asked and how readily they are willing to shift their responses when coercive pressure is applied. The test itself involves reading to each participant a few paragraphs of factual text and then asking them to recount the ‘story’. The participants will then be told that they have made some key factual errors, and will be asked to answer the questions for a second time. Many of the questions are loaded to ensure that the participant can tell which responses the interrogator is expecting. Those persons who change their responses to ‘please’ the interrogator are said to have ‘shifted’ their responses, and those persons who have responded even where they could not remember the accurate information are said to have ‘yielded’ to the interrogation.

In light of the varying degrees of suggestibility to coercive interrogation, it is a real concern that no pre-interview ‘suggestibility’ assessments are made on terror suspects before interrogations commence. In a later chapter of this paper we will return to this point, when proposing a framework of enhanced procedural protection for terror suspects detained in the UK.

On a final (and unrelated) point: Earlier in this essay we identified the fact that the Criminal Justice and Public Order Act 1994 now allows prosecutors to infer meaning from a defendant’s silence. In regard to terror suspects the law goes even further than this and makes it a criminal law offence to refuse to disclose information relevant to a terr