Background Briefing

Prosecution as a Core Counterterrorism Strategy

Human Rights Watch is convinced that effective use of the criminal justice system is the best way to fight terrorism. While the government has said that prosecution is the “preferred approach,” in practice it has often relied on administrative measures that lack the safeguards of the criminal justice system.

Most of the men subject to indefinite detention under Part 4 of the Anti-terrorism Crime and Security Act 2001 were never questioned by the police or security services during their detention under those powers.22 The failure to pursue prosecution and to rely instead on administrative measures has drawn criticism from the courts, the independent reviewer of terrorism legislation Lord Carlile QC, and the Parliamentary Joint Committee on Human Rights.

The British government should demonstrate a genuine commitment to prosecution by relaxing the ban on intercept evidence, and providing for an automatic, periodic, and transparent Crown Prosecution Service review of all cases in which terrorism suspects are subject to administrative measures.

Relax the ban on intercept evidence

The UK should move swiftly to remove what Director of Public Prosecutions Sir Ken Macdonald QC called “one of the main obstacles” to prosecuting terrorism suspects: the ban on the admissibility of intercept evidence. We welcome the announcement highlighted in the June 7 “discussion document” that a committee of privy counsellors will review the intercept ban.23 The UK is the only western country that prohibits the use of evidence from the monitoring of electronic communications in court. The government has long argued that use of intercept evidence would compromise intercept capabilities by disclosing, either directly or indirectly, to the suspects themselves the methods used to intercept communications. There is a broad consensus that this archaic ban is a disproportionate response to a genuine concern over disclosure of intelligence sources and methods, and that removal of the ban would facilitate prosecution of terrorism suspects.

The proposal was first advanced by Lord Lloyd in his 1996 review of terrorism legislation, and has since been endorsed by Lord Carlile, in parliament by the Privy Counsellor Review Committee (“Newton Committee”), and the Joint Committee on Human Rights. It has drawn support from a wide spectrum of opinion, including the Attorney-General Lord Goldsmith, Metropolitan Police Commissioner Sir Ian Blair, the Bar Council and the Law Society (the governing bodies of Britain’s two legal professions), and the non-governmental organizations Liberty and Justice. In April 2007, the House of Lords approved an amendment introduced by Lord Lloyd to the Serious Crimes Bill that would allow for the use of intercept evidence.24

A 2006 study by Justice on the use of intercept evidence in other common law jurisdictions (including the United States, Canada and Australia) demonstrated that the fear that intercept capabilities would be compromised by lifting the ban is unfounded.25  Reasonable protocols, similar to the public interest immunity safeguards that already exist in the UK, have been used in other jurisdictions to protect methods, sources and informants. The procedures vary from country to country, but all essentially allow the court to adopt measures, upon application by the prosecution, to prevent the unnecessary disclosure of sensitive intelligence material. For example, the court may allow the prosecutor to delete any material that would compromise the identity of confidential informants or intelligence officers or negatively affect ongoing investigations (Canada), or allow the use of summaries in lieu of actual documents provided that the summaries give the defendant substantially the same ability to make his or her defense (United States).26 Moreover, timely reviews and legislative amendments can address rapid changes in communications technology to ensure that interceptions are carried out lawfully and usefully for the purposes of prosecution.  

Demonstrate efforts to prosecute

In his second annual review of Terrorism Act 2005, published in February 2007, Lord Carlile noted the lack of efforts to prosecute individuals currently under control orders (See section below for a detailed discussion of control orders).27 The Terrorism Act 2005 requires the police to certify that there is no realistic prospect for prosecution before a control order is imposed, and to keep under review the possibility of an investigation with a view to prosecute. Lord Carlile noted that that the evidence of a “thorough and continuing examination of whether a prosecution could be brought…remains unconvincing in some cases.”28 In its February 2007 decision in the case of E. v. Secretary of State for Home Department, the High Court found that authorities had failed to continuously review the prospects for prosecution, even in the face of new material.29 Although the Court of Appeal reversed the High Court’s decision in the case (rejecting its finding that the control order amounted to a deprivation of liberty), it agreed with the High Court that the Home Secretary had breached “his duty to keep the question of possible prosecution under review.”30

Lord Carlile recommended that the Crown Prosecution Service, police, security services and the Home Office undertake a detailed and documented review of every case on the basis of all available evidence and intelligence.

Human Rights Watch believes these reviews should be systematic, periodic, and that the determinations should be made public. Greater transparency will help restore public confidence that the government is indeed doing everything possible to bring terrorism suspects to trial.

22 Of the 11 persons in indefinite detention under the Act at the time of the Law Lords ruling in December 2004, none had been questioned by the police or security services. James Cusick, “Terror suspects jailed for three years have never been questioned,” The Sunday Herald (UK), December 19, 2004. See also, Amnesty International, “United Kingdom - Human rights: a broken promise,” February 23, 2006, p.37,$File/EUR4500406.pdf (accessed May 31, 2007).

23 Home Office, “Discussion Document,” paras 17 and 18. The Privy Council is a government body composed of approximately 300 members, including all past and present cabinet members, the leaders of all major political parties, senior judges and other senior public officials.

24 BBC News Online, Lords back phone-taps in trials, April 25, 2007, (accessed May 18, 2007).

25 Justice, “Intercept evidence: Lifting the Ban,” October 2006, (accessed May 15, 2007).

26 Ibid. See discussion on the Canadian Criminal Code, pp. 51-53, and the United States Classified Information Procedures Act, p. 67.

27 Lord Carlile of Berriew QC, Second Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, February 19, 2007, (accessed March 1, 2007).

28 Ibid., para. 57.

29 High Court, E v. Secretary of State for the Home Department [2007] EWHC  233 (Admin).

30 Court of Appeal, E v. Secretary of State for the Home Department [2007] EWCA Civ 459, para. 97.