Basic Rights and Anti-Terrorism Legislation: Can Britain's Criminal Justice (Terrorism and Conspiracy) Act 1998 Be Reconciled with Its Human Rights Act?

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Abstract

This Note addresses whether Britain's Criminal Justice (Terrorism and Conspiracy) Act (CJTCA), which permits police officer opinion testimony as to whether a terrorist suspect is a member of an illegal terrorist organization and allows adverse inferences to be drawn from that suspect's silence, can be reconciled with the fair trial provisions of the Human Rights Act (HRA). Part II of this Note describes the background of the CJTCA, concentrating on the reasons for its rushed passage and on the evidentiary changes it makes to trials of defendants charged with terrorist offenses. Part III describes the background and mechanics of the HRA, which incorporates the European Convention on Human Rights into Britain's domestic law. As the HRA directs British judges to refer to case law of the European Court of Human Rights for guidance, Part IV evaluates that tribunal's interpretation of Article 6 of the Convention, which guarantees the right to a fair trial. Specifically, this section examines decisions of the European Court of Human Rights and the British courts with regard to issues likely to arise in trials under the CJTCA, including the following: the right to remain silent, the right to cross-examine adverse witnesses, the prosecution's duty to disclose information, and the doctrine of "equality of arms." Part V applies the principles explicated by those authorities to the evidentiary provisions of the CJTCA, and assesses the soundness of the policy goals behind it. In this section, the author concludes that many trials under the CJTCA will run afoul of the HRA. Accordingly, the CJTCA should be repealed or given a very narrow interpretation by the British Courts. The author also concludes that the CJTCA will not advance the goals for which it was passed--reducing terrorist activity in the United Kingdom and bolstering the peace process in Northern Ireland.

I. INTRODUCTION

Consider the following scenario. You are arrested and charged with membership in a terrorist organization. At the police station, you refuse to answer questions posed by the interrogating police officer. Maybe you are nervous. Maybe you are awaiting legal representation. Maybe you are somewhat uneducated, inarticulate, and incapable of effectively expressing yourself under the circumstances. Your exchange with the police officer goes something like this:

   Policeman: "I have reliable information that you are a member of a
   terrorist organization. What do you say?"

   Suspect: "What information?" Policeman: "I am not at liberty to say."

   Suspect: "Then--nothing."(1)

At trial, the judge or jury hears a high-ranking police officer testify to your refusal to answer questions during interrogation and that in his professional opinion your are a member of a terrorist organization. On cross-examination, defense counsel asks the officer on what information he bases his opinion, but the officer declines to answer on the basis that disclosing such information would jeopardize national security or would be contrary to the public interest, You decide to maintain your right to silence at trial. Based on the above evidence, the verdict comes back--"Guilty!"(2)

Critics of recent anti-terrorism legislation in Britain, especially civil rights groups, indicate that the scenario above is possible under the government's new laws. The Criminal Justice (Terrorism and Conspiracy) Act 1998 (CJTCA), which passed through the House of Commons within twenty-four hours of being drafted.(3) makes significant changes in the types of evidence that can be admitted at trials of defendants suspected of involvement with terrorist organizations. The Act permits judges and juries to draw inferences from a suspect's silence in the face of police interrogation.(4) Additionally, the opinion evidence of a senior police officer that a defendant is a member of a terrorist group is also admissible at trial.(5) The Act was passed in the emotional aftermath of one of the Northern Ireland's worst bombings and the bombings of the U. …