NB: It is to be borne in mind that this is *rough* and I have never properly done academic writing (I’m only a baby)
Does anti-terror legislation allow the police to take too much power into their own hands? A question often asked by legal academics, top lawyers, and governmental bodies. A fundamental question about whether state intervention in our lives has become too great.
Seen by some as the government treading a fine line between democracy and an authoritarian state, are the powers the police have under the guise of ‘protection from terrorism’ too wide? Do these powers allow the police to be negligent or unforgiving in the way they do their job? Or contrary to media, are the police only using these measures now because the world, and threat of terrorism, has changed, and said measures are appropriate to the new climate of threat, or is the British government really going too far, in a liberal democracy, in removing liberties in order to ensure our safety?
As Lord Simons said in the case of Christie v Leachinsky (1947): “Blind unquestioning obedience is the law of tyrants and of slaves; it does not yet flourish on English Soil.”
Described by many senior lawyers as ‘draconian’, ‘vague’, and ‘rushed’ the United Kingdom has several statutes that are either directly, or indirectly used for counterterrorism purposes, the main ones most quoted by politicians being the Terrorism Act 2000, the Anti-Terrorism, crime and security act 2001 , and the Terrorism Acts 2005 and 2006. These statutes have also led to major police policy overhaul regarding the threat of terrorism such as the addition of ‘Code H’ onto the PACE codes of practice in 2006 . This new code dealt with the detention, treatment and questioning by police officers of persons under s41 of, and Schedule 8 to, the Terrorism Act 2000. Our anti-terror measures are believed by some to be an attempt to reassure the Americans that the British were committed to the war on terror after the September the 11th bombings.
The Terrorism act 2005 has been described by then Home Secretary Jack Straw to be a bill “that strengthens the powers to meet an ever changing, ever present danger”. It widened the definition of a ‘terrorist’ meaning many more activities were described as being of a terrorist nature that were not previously, such as speaking out in favour of terrorism, or inciting religious hatred which are highly tangential when it comes to commissioning acts of terrorism.
It is argued by people holding a more liberal viewpoint that it is unfair to classify people in such a way as this because everyone is very different. Oversight Committees and Liberty are advocates for this.
Although, if activities were not classified as such, terrorists would almost never be caught.
Defining a “terrorist” is a hard thing to do and depends very much on the type of ‘terror’ in question. IRA terrorism is indeed different from modern terrorism, which in turn is different from the “terrorism” that Nelson Mandela headed.
Is it right that someone just speaking out about something they believe in could be construed as a terrorist? But also, equally, would it be right that someone quite obviously preaching hatred and encouraging violence and disarray to other people could not be seen as a terrorist?, Nelson Mandela, for example spent quite a while in the early years of the African National Congress as head of Spear of the Nation arming the ANC for war. It is seen that he ended apartheid, and thus was speaking for the benefit of South Africa. This proving that one person’s ‘terrorist’ is another’s freedom fighter, and that political violence is seen by many in different ways.
However, the idea of the statute was that it, unlike the legislation preceding it, was intended to offer a more considered code constructed in an altogether more principled and comprehensive manner.
It could also present itself as an all-encompassing statement of laws and so avoid the ‘incremental extension’ that had unfortunately occurred over the previous decades, namely the Prevention of Terrorism (Temporary Provisions) Act 1984, the Northern Ireland (Emergency Provisions Act) 1996, the Prevention of Terrorism (Additional Powers) Act 1996 which dealt with the threat of terrorism from the IRA at the time.
These contravene human rights because in being so broad it means that anyone could potentially be described, or treated as, a terrorist. However, human rights laws require the state to protect the ‘right to life’ which includes state protection from terrorism.
However, any measures taken to counter terrorism must be proportionate and not have the effect of undermining our democratic values. In particular, laws designed to protect people from the threat of terrorism and the enforcement of these laws must be compatible with people’s rights and freedoms and not overly inhibit them. Also, as the police are guardians of the state, they are widely respected and given power in which we trust them to act upon responsibly.
The term ‘human rights’ is predominately used in two senses. The first referring to rights which people have merely by reason of being party of a human society such as the right to life, this is called the natural viewpoint- and secondly as a legal term, referring to rights enshrined in human rights treaties, known as the positive viewpoint.
There is a large overlap between civil liberties and human rights, and the distinctions cannot be said to operate neatly in all situations;
The liberal conception of rights, derive from the so called ‘social contractarians’. Locke envisaged an actual existing social “contract” between individuals and the state in which citizens, in order to secure protection, handed over certain dominances (most importantly, a monopoly of coercive force) to the government in return for guaranteed rights to free ‘lives, liberties and states’ and thus this introduced the idea, which is still central to liberalism today, that the overriding purpose of the State is the securing and protection of its citizen’s basic rights. Rawls’s revival and revision of the idea has given primacy to a rights-based theory. Rawls’s contractors, in the ‘original position’, adopt the ‘first principle’, stating that ‘each person is to have an equal right to the most extensive, total system of equal basic liberties compatible with a similar system of liberty for all’. These basic liberties are identical with any familiar list of civil and political rights (and hence, positive rights). In essence, natural and positive rights are complementary, and somewhat interdependent, rather than in conflict.
As Whitty et al argue, civil liberty has never just required appealing victims. Curbing police powers is a standard focus of civil liberty, and often entails asserting the rights of those who have been involved in undesirable activities. It is important to note, therefore, that the concern for civil libertarians is far less with the individual defendant, and much more with the integrity of the criminal justice system and the requirement that the police remain accountable to the rule of law, however the public at large have shown a tendency to believe in incarceration for terrorism suspect, as opposed to a feather light touch method.
It is wrong to reject the idea that civil libertarian arguments are pointless or impotent in the face of threats to national security?
Although it remains to be said that there is a significant, yet all too common, political hurdle faced by all advocates of civil liberties; this being the need to justify supporting the rights of individuals who reject the legitimacy of the state and are prepared to use harmful actions to further their aims.
The Terrorism act 2005 also abolished the thousand year old principle of ‘Habeas corpus’ as set out in the Magna Carta- clause 39 ‘no free man shall be imprisoned except by lawful judgement of his equals or by the law of the land’ in all terror cases. This meant that one was no longer innocent until proven guilty by a jury in the case of terrorism- a major rule in all indictable cases. A fundamental cornerstone in the English legal system, and many other legal systems around the world that guarantees the right to a fair trial.
Furthermore the home secretary was given the power to put people under house arrest without charge (a “Control Order”)- with the suspect having to check into a police station every day amongst other things. House arrest is indefinite, and ends when the person is no longer considered a threat. A process which arguably could lead right up until the day a suspect died- meaning they would have to spend up to 16 hours a day in their house until then along with other restrictions such as perhaps not being allowed on public transport, only being able to use a house phone, and only being able to attend one mosque.
Control Orders were introduced because the then Law Lords (now Supreme Court as of 2010) declared the UK’s previous system of detaining foreign terrorism suspects without trial or the prospect of deportation to face trial ‘back home’ breached the human rights of the detainees. This is because it is seen by some as unfair to treat someone as a criminal if they are not necessarily one after all what if they were innocent? The key question is; is it better to wrongfully imprison an innocent person or set free a guilty person and which is preferable in order to prevent a greater harm. The public generally believe it is better to wrongfully imprison an innocent person- just in case they were guilty.
However, the government, in the interest of national security, still needed to be able to exercise control over the lives of some suspects that they couldn’t prosecute because of rules about using secret intelligence and state secrets in trials, and rejected the claims that control orders amounted to criminal punishment without the right to a fair trial in 2007. Although, this changed in 2009 when Law Lords, using the judgement on the use of secret evidence in a trial from the European Court of Human Rights, decided that some secret evidence should be used in trials because otherwise the trial is not fair because the suspect may not understand the gist of the case against them, believing that they had the right to know a “irreducible minimum” about the allegations that they were facing.
Although it is to be borne in mind that the government’s initial reluctance to allow secret information is because most of it is gathered by MI5 and other world intelligence authorities, meaning that in some circumstances it simply cannot be put to the suspect- the evidence is not how the police gather it and it is quite obviously something that the Home Secretary and intelligence authorities do not want to put in the public domain because it could potentially reveal how intelligence agencies look for people who threaten national security.
In these cases ministers were faced with a dilemma: Does the state allow more information on the allegations, risking compromising secret technique used. Or conversely, do they withdraw their case against a suspect, and let him go free to potentially commit a terrorist attack?
In fact, only 2 cases against a terrorism suspect have been allowed to fall- two suspects with secret identities only known by the initials ‘AE’ and ‘AF’ who had their control orders quashed after the government refused to put the highly sensitive information involved into the public domain. People accused of being involved in terrorism want to know who they are supposedly socialising with, where, and when, so they can provide an alibi. But if the government gives this information away, putting it in the public domain, it could potentially let other suspects know how officers work, and who they are watching. People who support secrecy say that the risk is too high, as it has to be borne in mind that although the jury box is sworn into secrecy, some jurors will talk about the case, and as anyone can be called to be a juror a potential terrorist themselves may be in the box, listening to and learning this secret information.
As of January 2010 there are 12 control orders of this nature in force, 3 less than the previous year. In total 45 control orders have been used since the Terrorism Act 2005 created the control order, with 6 people being held under it being deported. Control orders to date currently have 8 restrictions in place.
Is it fair that if these people are only suspects and not yet convicted, is it wrong to control their lives in such a way that means that their day-to-day life is affected. Is it morally justifiable that one human should tell another what to do?
However, what alternative do we have to control orders when needing to keep someone in a controlled environment for the safety of others? Our prisons are overcrowded as it is and are said by some to encourage a ‘college of crime’ whereby someone can go in a petty thief and come out a drug dealer. Surely placing a potential terrorist in a ‘college of crime’ such as this would be a bad idea? And thus, where else can we keep suspects under controlled conditions other than their home?
Control orders are good in that they, in a sense, allow the suspect the comfort of their own home. Although some things such as mobile telephones and the internet may be compromised, the suspect is still in an arguably better position that they would be in prison- they have their own comfortable bed, their own TV, their own bathroom.. and so on, but it is argued that a gilded cage is still a cage.
Conversely, Isabella Sankey, (Liberty) said: “Describing control orders as ‘imperfect’ is like calling the Titanic ‘not quite afloat’. Under this mad scheme some terror suspects face indefinite punishment without trial whilst 15% have completely disappeared.” However Lord Macdonald, a Liberal Democrat peer, in July 2010 suggested that many have absconded from ‘light touch’ control orders, and a new system must be made. Something which the coalition government are endeavouring to change in the near future.
Many human rights advocates argue Britain is too eager to remove the rights of citizens Britain has the longest detention time of terror suspects at 28 days. Compare this to France (6 Days) and Britain’s detention time is 4 times longer. Human rights groups such as Liberty and Reprieve UK are vocal in their desire for a change in the law, as they regard this holding time as a “gross infringement of human rights.” Especially considering that for non-terror cases the detention time is only 24 hours unless extended by a senior officer to 36. Then a lay magistrate is required in order to extend that time even further.
Many suspects held indefinitely but not charged with terrorist offences are held at Belmarsh Prison. In September 2006 there were 51 such people, none of which were actually convicted. However, long detention times are seen as a good thing because the long time spent in often solitary conditions allows the terror suspect (if an actual threat) time to reflect and get legal advice. It also means that the suspect can become desensitised to indoctrination by terrorist organisations and avoid contact with other extremists. This could potentially lead to the person no longer being considered as a threat.
The Supreme Court have said that Control Orders and detention without charge are very dangerous to democracy, and contradictory to the Human Rights act- Justice Lady Hale describing them as “irrational measures” when asked to establish whether these were indeed contravening the Human Rights Act. The Supreme Court warn that these measures, if used at all, should be executed with the utmost caution because rights should belong to everyone, not just who the government decide can have them; it’s impossible to exclude fallibility factors from any decision making process relying on absolutes.
It can be argued that Control Orders and Detention time can go against the ‘Right to a personal life’ (Article 5) quite possibly the most important thing mentioned in the Human Rights Act, because often suspects are moved miles away from their families, and are unable to have a normal family life- the Supreme Court deciding that ‘life is more than merely being alive’. It has been said that these ‘restrictions’ put on suspects are so that, cynically, the government can not be seen to literally ‘deprive’ of liberty- in order to find a way around the Human Rights Act, which essentially states that people should not be restricted in such manners, albeit sometimes indirectly.
This shows the Judiciary to be opposing the government regarding the treatment of terrorism suspects, which has always been the case, although this was heightened post 7/7/.
However, as the parliament of the United Kingdom was one of the key proponents of the Human Rights Act, why should they be able to skirt around the statue they played a big role in creating? Those who make the laws should surely also be answerable to them? Although,
On paper there is no obligation to do so. The UK Parliament has unlimited competence, and could, if so wanted withdraw from the Human Rights act, assuming they had the political and social mandate to do this.
On the other hand, is it just that the Judiciary can tell the government what to do regarding human rights, as an unelected house? It is argued that this is a detrimental because the Judiciary are unrepresentative, and ‘out of touch’ with the public, and are also unelected and unaccountable. If the public want harsh punishment of terrorism suspects, why shouldn’t they get it? If the judiciary stands in the way they could be described as a krytocracy, with the Justices of the Supreme Court acting as ‘politicians in robes’ .
Described by Rabinder Singh QC as ‘a recipe for the arbitrary use of power ’ the police have a power of stop and search that bypasses the normal ‘reasonable suspicion’ of committing a crime, or being about to commit a crime, under section 44 (2)of the Terrorism Act 2000,if it is deemed to be for counterterrorism purposes. This also includes search of vehicles under section 44 (1). These powers can only be used in specific areas, under order from a Police Chief, with later authorisation from the Home Secretary.
These powers are very controversial, and are advocated by Lord Carslile (Government reviewer of Terrorism Legislation) as being seen by some that ambiguities in the legislation essentially give the police a license to be prejudiced and search someone on the basis of ‘looking dodgy’ or on race, when the majority of the police force are white, and could perhaps only search Black and Asian ‘terrorism suspects’ with no oversight- in essence deciding to search someone based on looks, without a legal safeguard.
Section 44 stop and search powers were used more than 148,798 times in 2009, a 40% fall on the previous year, out of the 1,223,860 ,roughly making up more than 8% of the total stop and searches recorded, showing a major police readiness to use them. Shami Chakrabarti, director of Liberty has said it is a ‘blanket and secretive power that has been used against school kids, journalists, peace protesters, and a disproportionate number of young black men. And that “To (their) knowledge it has never helped catch a single terrorist”, a statement often agreed with.
The Runnymede Trust produced a report in 2009 saying essentially that “despite making efforts to tackle it, the police are still an institutionally racist organisation” , this report being a follow up report to a previous one on how the police handled the case of Stephen Lawrence, a young black man murdered by gang violence. They were concerned that police misconduct was also happening because of the high figures of people who were of black/Asian decent stopped, and how (if charges were bought) their cases were handled thereafter.
This report seemingly bypassed the ‘Scarman Report’ produced by Lord Scarman on the authorisation of then home secretary William Whitelaw on the 25th of November 1981 which came about as a reaction to the Brixton Riots, in early April 1981. This report stated that there was “unquestionable evidence of disproportionate and indiscriminate use of stop and search powers” in reaction to the Metropolitan Police’s policy of ‘Operation Swamp 81’ where plain clothed police were dispatched into Brixton amidst fears of high criminality and stopped and searched around 950 people in 5 days under “sus” laws (suspicion of wrongdoing). Prompting victims of “ complex political, social, and economic factors” to have a violent protest. This was heightened after a rumour was spread that the police had left a young black man in the area who had been stabbed to die. In the riots, anger against the police, and the state who control them rose and over 224 police were injured, along with at least 65 civilians.
To rebuild trust in the police after these events, the Police Complaints Authority was established in 1985.
Whilst this is not a case concerning terrorism suspects, the parallels are obvious and conclusions can be drawn. Before s44 legislation was introduced, the events in Brixton demonstrate that Stop and Search legislation is vulnerable to abuse by those who are given such power.
That said, because we can draw this conclusion does not mean it is the only one. The police at the time were only acting upon gathered information that led them to believe Brixton had a high crime rate and that a justification for the use of the legislation was that they were legitimately carrying out their duties within the remit provided.
Perhaps the reason s44 powers are so controversial is that it becomes easily characterised by the media. A bad story will sell a paper.
However, another look at stop and search patterns reveals that several ‘unlikely’ terrorist suspects were stopped; for example Jeremy Dear, a white middle aged artist swooped in on by police for taking photographs. Mr Dear said that it ‘was about time the police realised taking photographs does not make you a terrorist’ also commenting that ‘every month the National Union of Journalists has to deal with more cases of officers infringing journalistic freedoms’. He also stated that ‘the authorities should to more to ensure that those charged with upholding the law do not contravene it by treading on well established civil liberties’.
Chief Constable Craig Mackey of the Association of Chief Police Officers (ACPO) has publicly stated that the powers ‘play an important role in keeping our communities safe’ but also recognised that they ‘need to be used in a proportionate way’ having learnt from previous mistakes by the Metropolitan, London City, Thames Valley, Sussex, and Greater Manchester police forces whereby 40 unlawful, unauthorised, stop and searches were carried out. He, on behalf of the police as a whole, argued that stop and search under section 44, if used correctly, was vital as it provided safety to the public. In stopping ‘suspicious’ people many more are potentially saved and thus mildly inconveniencing one person perhaps commuting to work is a price worth paying to ensure national security. We are unable to metric ‘what ifs’ -, so therefore we can’t see if it’s a necessary evil or not- a utilitarian argument.
In the recent case of Gillan and Quinton V United Kingdom a student peace protester and a journalist were stopped on their way to a demonstration near the Docklands, East London without reasonable suspicion under sections 44-47 of the Terrorism Act 2000. They complained that this went against their human rights, and Articles 5,8,10, and 11 of the Convention on human rights (the rights to liberty and security, privacy, freedom of expression and association, respectively) and challenged this all the way to the (then) House of Lords, and following a dismissal there, to the European Court of Human rights where the court found that coercive powers conferred by the anti-terror legislation required a person to let police search them, and their personal possessions, amounted to a clear breach of the ‘right to a private life’. The powers held by the police were said to be too wide and lacking in adequate safeguards- this being especially important in the search of ‘vulnerable’ people. The court also raised concerns over the powers being discriminatory- as statistics showed a disproportionate number of young black and Asian men being stopped and searched- a breach of the law.
This case is not alone in its facts, many journalists have been stopped under section 44, and on occasion had their cameras confiscated until all pictures of police/ public buildings have been deleted as a “counterterrorism measure”. This is widely thought of as unfair because it is a journalist’s livelihood to provide pictures to sell to the media and it is highly unlikely that a journalist would facilitate terrorism in any way.
The British association of Journalists have openly criticised the way their reporters are treated by the police, and made to feel victimised and unable to carry out their job.
In a case study I have collected, Mark Wallace, who was protesting about the introduction of ID cards outside of the Labour Party conference in Brighton, September 2005 was stopped under section 44, with the only reason the police gave being that “The (then) Home Secretary had brought the Terrorism Act into place in Brighton during the conference” nothing more than that. Arguably, this could show the police being over-zealous in their actions and impeding the right to freedom of speech and expression, in other words feeling free to step on people’s liberties.
Mr Wallace said that he didn’t believe the police had any reason to suspect him of being a terrorist, and that “There were plenty of other groups there actually protesting who weren’t disrupted at all, but suddenly I had five policemen round me, with video cameras and so on.”Perhaps showing the police to be biased politically or personally for or against some groups. However, it is unfair to say they should be wholly unbiased because each person to a degree has some form of leaning.
On my question of whether he felt victimised Mr Wallace told me: ‘I felt frustrated – it may be a minor invasion, but it was still an invasion of my privacy. I was opposing ID cards precisely because of that kind of heavy-handed, domineering officialdom. Worse, those officers could and should have been out catching real criminals – and I told them that on the day. I’m all in favour of law and order clamping down hard on criminals – but I had done nothing wrong. I used the Freedom of Information Act to find out that the paper records of my stop are going to be kept in police files forever, while the video will be there for 7 years. It’s ridiculous.’
Surely it is unfair to keep people’s data on file for 7 years even if they have not done anything wrong? This adds more fuel to the fire saying that section 44 is draconian and ultimately useless, targeting innocent individuals and allowing the policemen too much discretion in the way that they control our lives. This is adding to the discontent of citizens all over the UK who are feeling like they are constantly under the surveillance of a ‘big brother’ who, like a vulture, could swoop down at any time even if perhaps no terrorist activity had been carried out.
Under Article 10 of the European Convention on Human rights a citizen within the European Union is allowed freedom of speech and expression. It has recently come to attention that perhaps, in not all circumstances, this applies. Especially when it comes to people suspected of terrorism. Or not even suspects at all, it seems. Paul Chambers, a normal man using social networking website, Twitter, was swooped on my police after a tweet he posted, regarding his annoyance that the snow had closed Robin Hood airport on a day he was due to travel to visit his girlfriend, was deemed as suspicious and of a threatening and terrorist nature. His tweet (an 140 character message to those who ‘follow’ him) read: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!” Later a Judge and two magistrates convicted him of “menace” leaving him with a criminal conviction, £30,000 (so far) in legal fees , and the permanent seizure of his computer and phone. This is going to the High Court in due course. Even though, it is said by critics that his comment is just a backhand remark made out of annoyance- a colloquialism- nothing more than that. Paul had certainly never dabbled in terrorism or anything of that nature so it was seen to be the government looking too far into our lives- checking up on conversations via social media. Liberal minded or not, many people disagree with this government spying due to the ‘right to a private life’. However others argue that monitoring social media is a good idea, as it is a place where people from all over the world can freely communicate to one-another without fear of repercussions.
However the most controversial power the police hold is inarguably that to take life, as this raises many moral questions about whether it is acceptable to take life at all, and if so, under what circumstances, and by whom? It can be argued that in the killing of one person who is one hundred percent thought to be a terrorist; it saves many more hundreds of lives, but is one person’s loss of life any less significant than 100 people’s lives being lost? Many major Human rights advocates believe that there is no price on a life, and that a life should be taken under no circumstance.
Understandably, many human rights groups such as Liberty and Amnesty UK were alarmed when, after September 11th, in the first half of 2002, Operation Kratos was devised by then Assistant Commissioner of Special Operations , Sir David Veness and his deputy Barbara Wilding, who then delegated policy work to the Terrorism and Allied Matters committee of the Association of Chief Police Officers (ACPO) following research conducted by government scientists, and visits to Sri Lanka, Russia and Israel to learn about how other countries deal with the threat of suicide bombings.
Findings from this research pointed to the fact that suicide bombs were now very sensitive, and conventional police methods of dealing with an armed person such as firing at the chest, or using less lethal weapons including Tasers and truncheons would be ineffective in the case of a suicide bomber as it could potentially activate the device, causing a lot of damage, potential injury, and loss of life.
It was also thought that in the event of a positive identification by the police that was obvious to the suicide bomber, or a potential challenge, could prompt the bomber to detonate.
And so to combat this, in January 2003 a paper entitled ‘Operation Kratos People’ was circulated amongst UK police forces, and upon agreement it was made official and legal policy.
Although Operation Kratos is often talked about as if it is one policy by the media, it is in fact an umbrella name, under which three more policies are housed. These policies are:
Operation Andromeda- the policy designed to deal with a spontaneous sighting of a suspected suicide bomber by a member of the public. For example, a phone call to the police saying that a person thinks that someone is acting suspicious and could perhaps be a terrorist.
Operation Beach- which involves an intelligence-led covert operation, for means of both locating and arresting persons suspected of being involved in terrorist activity.
Operation Clydesdale- Where intelligence has already been received regarding a suicide attack on a pre-planned event , and therefore would mainly apply to known major public events, such as political party conferences, state visits and so on. This is probably the least used as modern terrorists tend not to warn about attacks in advance unlike older groups such as the Irish Republican Army.
However, due to it being shrouded in controversy, operation Kratos was officially dropped from all police lexicon in 2008-09, following the blundered Stockwell Shooting.
These operations share the view that confrontation between the police and suicide bomber should take place in a secluded space where there is minimal risk to all parties involved (including the public). The policy also recommends that, after the decision to shoot to kill has been made by a Designated Senior Officer (DSO), covert officers shoot without warning only if 100% certain the person is a terrorist, and cannot be disarmed in other ways, such as a standard arrest. It is without question that death should always be a last resort.
The general public at large were not aware of the tactics under operation Kratos until the widely reported and highly controversial shooting of 27-year-old Brazilian Jean Charles de Menezes (JCDM) at Stockwell Underground station, on the 22nd July 2005. An infamous date in which police powers, and police abuse of powers relating to terrorism were bought into question.
Menezes was shot after he was misidentified by surveillance officers as Hussain Osman, a man suspected as being a part of the failed bombing attempts made the day before, who lived in the same block of flats in Scotia road, Tulse hill, Brixton with another terrorism suspect, Abdi Omar. The initial misidentification was made by first surveillance officer, codenamed “Frank”, who was in a surveillance van parked outside the block of flats.
The surveillance operation outside the premises was arguably flawed from the get go as officers were only given a grainy gym membership card picture, found the day before in the undetonated rucksack of Osman, and a grainy CCTV picture from the day before to go by even though there is much debate on the availability of better pictures that were in the same bag- such as a wedding picture that showed Osman’s face clearly, and also his build- something that would have ruled out Jean Charles immediately at the initial stage of his journey, when he disembarked from his flat on the way to work.
Due to suspicions, head Metropolitan major incidents room police ‘Gold Command’ were contacted, and it was decided that Mr Menezes was to be prevented from being allowed to get onto the tube because it was seen to be very likely that, frustrated at their failed attempts the day before, the suicide bombers would be back with a vengeance and would try again in the near future.
After this authorisation De Menezes was followed by a surveillance officer, “Ivor” onto the number 2 Tulse Hill bus. Being unaware that the station was closed due to the threat from the day before JCDM briefly disembarked the bus, making a quick phone call, and then re-boarded the bus now headed to Stockwell. The surveillance team also were unaware of the closure, and considered the behaviour of JCDM to be suspicious. It was also noted later that it was reported he had ‘Mongolian eyes’ like that of Osman, and this was a major reason as to why he was suspected.
Menezes then went into Stockwell tube station as normal, picking up a free newspaper as he went calmly through the ticket barriers, boarding the tube train. It was widely reported that he was wearing a “thick black jacket with wires protruding” and that he “jumped over the ticket barrier” Both of which were believed to be untrue at the inquest- where it was found that he was in fact, due to the fact that it was summer, wearing an entirely innocent jacket made of a light denim material, there was no wires or devices found on the body of Mr Menezes, and he did not, in fact, jump the ticket barrier- that was an armed officer following him.
When boarding the train, Jean Charles sat calmly, waiting to disembark, surveillance officer ‘Hotel 3’ sat next to him. Almost immediately a team of armed officers in black jumped aboard the train, holding the door open, to which the surveillance officer motioned to Jean Charles, shouting “it’s him!” Passengers on the tube at the time reported thinking that the black-clothed officers, wielding guns were terrorists. Jean Charles was then restrained and shot in the head from the front by two officers, who together fired a total of eleven shots, most into his head, and one into his shoulder. After this, officer Hotel 3 was dragged away whilst being restrained- in case he was an accomplice to Menezes. This is because undercover officers do not always know one another and so the officers who boarded the train did not know he was, in fact, one of them. In fact, the police had come very close to shooting their own man showing great incompetence.
Headed by Coroner Sir Michael Wright, the inquest into the death of Jean Charles de Menezes at the hands of the Metropolitan Police opened on the 22nd of September 2008.
The jury were told that due to the lack of evidence in the two Independent Police Complaints Commission inquiries, Stockwell 1 and Stockwell 2, and a Health and safety trial, they were not allowed to return a verdict of ‘guilty’ due to lack of evidence. They were left with two options: an open verdict, or a verdict declaring the actions that the police took on the 22nd of July 2005 were entirely lawful.
Documents from this independent agency inquiry later concluded that those mistakes in police surveillance procedure early on led to the rushed assumptions that he was a terrorist and the shooting later on.
Looking at pictures of both Osman and Menezes, it was clear to see that there were no concurrent features between the two men- Osman being much darker, and having an entirely different face shape and build to Menezes, and it was concluded that in daylight, even at a fleeting glance the two men would be unlikely to appear to look similar.
It is also argued that if the state wish the police should have the power to take life, then it should be taken in an entirely controlled and responsible way. The happenings of that day ultimately showed a major police blunder and inability to cope with sensitive information. They showed a lack of communication between those in charge of the prestige Metropolitan Police of London, and those out on the beat, doing their job. More importantly, a lack of communication with the specialist anti-terrorism firearms officers who, unlike other officers, have the power to take a life, or at least injure someone sufficiently so as they no longer pose a threat.
Conversely, it emerged at the inquest that the police’s radio system had gone down that way, meaning a command from an identification officer as “It’s not him” to the other officers became “it’s him” due to a cut-out in the middle of this short utterance. This is held as perhaps one of the pivotal reasons as to why Jean Charles was eventually shot. This outraged many people as how can a police force be truly effective without communication? Without being able to communicate a police officer could in effect do whatever he wanted, or like in the tragedy of the Stockwell shooting, act on information he thought that he thought he had been told, but had not.
And so, without immediate change to the system, it was established that a similar tragedy could happen again.
People’s view on the subject of state intervention understandably is highly variable. People with a more Liberal viewpoint tend to be more against state intervention, whereas more right wing, or people in high positions of authority such as politicians and the police tend to be more for state for the protection of the people. It is common for politicians to argue that any legislation they are trying to pass or back is for these reasons, although this is perhaps not a personal view- more a result of strong party discipline meaning that politicians who dissent it in public will be penalised, with the chance of their political elevation being frustrated. If acting in their own interest this makes them unlikely to tell the public what could perhaps be the truth, because there would be too much at stake.
John Stuart Mill, a 19th century politician and philosopher, is often quoted by Liberals as his definition of Liberty justified the freedom of the individual in opposition to unlimited state control. He also proposed utilitarianism and played an important role in liberal political philosophy- establishing a ‘harm principle’ stating that the individual should be able to act however he or she would like to, so long as this does not harm anyone else. He said society had no right to intervene if the person is only harming themselves. This provides an argument against the police holding such power under anti-terror because it is essentially saying that if not immediately harming other people, people should be left to their own devices. Someone may have radical views, but unless they act upon them in a way intending to be to the detriment of other people what is the real problem?
Conversely, he did also argue that a person should be stopped from causing lasting damage as “people do not live in isolation, and harm done to oneself can harm others” which is relatable to terrorism in that it is suggesting that however anti-state-intervention you are, in some circumstances- “where lasting damage” can cause harm to others, state intervention is necessary in the form of prevention of harm. Many acts described as being of a terrorist nature such as suicide bombings, and radical preaching of hatred/ inciting violence are able to be clearly measured against the harm principle in that they are obviously designed to be a protest or to scare others.
His ‘small state’ theory is also applicable in that he thought that no one should hold control over anybody else, a classically Liberal philosophy, and opposed the utilitarian viewpoint which is concerned with morality being judged by the consequences of actions.
There is conflict between the Liberal “each to their own” view and the view held by those that have the power because the ideas are so radically different. Say, we all did adhere to a more liberal philosophy, it is impossible to see where this would stop. We could potentially have dangerous people walking the streets, something that the majority of people would not want. We want, not a climate of fear, but a climate where people can feel safe as they should expect to.
Where, in theory Liberalism can look appealing- with everyone having more “freedom” from government intervention, too little government intervention could possibly descend into anarchy, something that never has, and never will, be a safe nor viable political system.
Government intervention, as shown by John Stuart Mill has been a worry for a long time, but it was seemingly put on the back burner until New Labour came in and passed a vast quantity of bills dealing with national security and the rights of the individual mainly in 2005. Many books, such as the award winning “Taking Liberties” by Chris Atkins criticise the sheer magnitude of legislation, believing that in theoretically giving us more rights, fundamental rights were actually taken away.
It is argued that these rights are not democratic, because although elected representatives vote on behalf of the people on legislation, these are matters the public potentially want a referendum on.
In conclusion I feel that anti-terror precautionary measures were established in the time when there was an imminent danger of regular terror attacks after the tragic incidents of September 11th 2001 in the United States of America and were a reaction to the very real dangers at hand- a massive threat to the national security of the United Kingdom.
In establishing whether the police have, through this, been given too much power it must first be established what constitutes ‘enough’ power to do their job successfully and thoroughly, and conversely what is power in excess.
The police serve us, with their duty to protect us and our rights, enforcing the law. They are supposed to be unpartisan, treating all under their care the same. They should be firm but fair, a steady guiding hand that is respected without the citizens being frightened of it. There is seemingly a fine line between being firm, and heavy-handed.
An excess in power is created when these are skewed- a policeman willing to stop innocent people without reasonable suspicion is acting unreasonably, a policeman who is racist or biased against a group or minority and is active about it is also unreasonable.. It was also worrying that in 1999 the police were branded ‘institutionally racist’ by a report, meaning that perhaps due to personal bias they suspect or dislike one race more and thus feel it their need to act on this and inconvenience these people by stopping them, or even, perhaps infringing their civil liberties by choosing to detain them.
This detention of suspects rebuts the presumption set out in Habeas Corpus- the fact that, as well as being tried amongst peers, one should have the right, in our criminal justice system, to be innocent until proven guilty- this meaning that in a trial the onus of proof is on the prosecution. This is bad because it is insinuating that, even though a person may have not yet had a trial, they are guilty. This is usually done in suspects for serious crimes such as murder and people with a high flight risk though, and so it is perhaps unfair to tar suspects of terrorism with the same brush. On the other hand, if one actually is a terrorist they are a very high flight risk, and have the ability to network to a whole manner of like-minded individuals.
It is a fine balance between enough power and too much. It is without question that some liberties will have to be hindered for protection, and can be argued that this is unavoidable. John Stuart Mill’s harm principle suggests that perhaps people should not be hindered by the state for just going about their business- stop and search under section 44 of the Terrorism Act 2000 could be seen to go against this as, to date, it has not caught one suspect. Yet, if it had…surely the argument would be different?
Others believe that the Government are simply out of touch with the people out on the streets. It’s all too easy to make a decision in Whitehall and not think of the wider implications that can come out as a result of what you have said or done. Can the Government really do anything else in order to safeguard us from terrorism and also protect our liberties without descending into an authoritarian state?
I’m sure when first drafted the relevant legislation looked promising, it would have been a waste of time and money if not. And the legislative ‘ping pong’ means that it was vetted by both Houses of Parliament. It was obviously intended as a safeguard.
Having looked at several sources, my opinion is that New Labour did exceed the amount of legislation necessary to ensure national security- making us descend into a “nanny state” however; they did not do this in order to deliberately inhibit the public at large, and especially those held under suspicion of terrorist offences- it was just what seemed right at the time. I feel that police power needs to be revised by the new coalition government because the massive power the average policeman can currently wield does nothing to reassure people they are safe, perhaps more creating a climate of fear or disrespect of the police. Is it right that, for example, traffic cops are cross-trained as firearms officers?
Anti-terror legislation lurches between providing excessive licence for heavy-handed extremism and insufficient protection for society at large. This feast or famine approach goes hand in hand with a belief that the police are infallible. You can lay a direct line of causation between the implementation of the ‘sus’ laws in the 80’s and the abuses of power that was seen leading to the Brixton riots. Rather than looking for an elegant solution, they merely renamed the ‘sus’ laws and returned the power to the police as ‘stop and search’. Until there is a realisation that the current system does not work and the government seeks to take the time and effort to research something better, this unnecessary tension between civil liberties and police powers will remain.
I believe that better methods are available, for example Israeli airports have worked out a more elegant system of screening out terror suspects that almost bypasses indignities of full body searches, scanning and random shoe searches by building the system around security.