Draft Investigatory Powers Bill (2) – Some of the early reaction

Posted by admin on September 12, 2016 (Comments Closed)

The Draft Investigatory Powers Bill has attracted a considerable amount of initial reaction.  For details of the Bill and links to the various reports that have influenced the Bill’s content see Draft Investigatory Powers Bill (1).

The Homes Secretary (Rt. Hon. Theresa May MP) in her statement to the House of Commons said that powers under the Telecommunications Act 1984 section 94 (Directions in the interests of national security etc) had been used to obtain bulk data.  This fact was actually revealed in the Intelligence and Security Committee Report of March 2015 – Privacy and Security: A modern and transparent legal framework.  The Committee accepted that this use of the power was acceptable BUT said that the arrangements lacked clarity and transparency and “must be reformed” – (Page 100).  The former Deputy Prime Minister (Nick Clegg MP) has indicated that only a “tiny handful” of Ministers knew of the power being used – The Guardian 5th November.

The Royal United Services Institute
issued a response to publication of the Bill.  RUSI welcomes the report and has also published a 12 page Briefing Paper to assist with understanding of the Bill.  The briefing paper, by Calum Jeffray, is well worth reading in full.

JUSTICE has expressed a number of concerns and promises a full response to the Bill as well as giving evidence to Parliament.  They have issued a 32 page update (Freedom from suspicion) to their 2011 report (of 164 pages) – Freedom from suspicion: Building a surveillance framework for a digital age

The UK Human Rights Blog was quick off the mark with a post by Cian C. Murphy and Natasha Simonsen – Interception,Authorisation and Redress in the draft Investigatory Powers Bill.   This considers three aspects of the Bill – (1) the creation of a new oversight body; (2) the authorisation regime for interception of communications and (3) reforms (“all too modest”) to the Investigatory Powers Tribunal.  More posts will follow dealing with other aspects of the Bill.

The former Director of Public Prosecutions (Sir Keir Starmer QC MP) has broadly welcomed the draft Bill – The Guardian 5th November .  Starmer said that the Bill is a step in the right direction but added – “Clearly the draft investigatory powers bill now needs to be closely scrutinised before it begins its journey through both houses of parliament. Hard questions should focus on the test to be applied by judges before formally approving an intercept warrant; real judicial scrutiny is a safeguard, a judicial rubber stamp is not. And the detailed provisions for the retention and use of internet-connection records, which considerably extend the surveillance reach of the state, need careful attention: what are the limits on retention, and how closely defined and controlled will access to this material really be?”

Joshua Rozenberg – The Guardian 4th November – expressed concerns that the internet surveillance powers risk undermining the judiciary.  Rozenberg wrote – ” … the judicial commissioner must apply the same principles as would be applied by a court on an application for judicial review”. That suggests the commissioner would look more closely at the decision-making process than at the decision itself. 

Judges are used to being called in by ministers to conduct inquiries when public things have gone wrong. This is the first example of a judge being recruited by the government to reassure us that private things are being done right.

Judicial oversight will go down well with European courts and foreign governments. But it is essential to ensure that it is not abused by commissioners being misled or kept in the dark. To do so would damage not only the judicial commissioners, who will be working for the government – it would also damage public confidence in the judiciary as a whole.”

An article in The Independent 4th November looks at how the Bill “will affect normal people” (whoever they are)!  They point out that the authorities will be able to access everything your phone or computer does with the information stored for a year.Internet companies will be required to “help spies hack your phone” and conversations with your MP can be “listened in on” – (their phrase).  As far as encryption is concerned they state – “The Government had previously given indications that it would look to ban end-to-end encryption, a technology that allows communications to pass safely over the internet. But it claims to have dropped that proposal.”

Another Guardian article claims that the Bill threatens investigative journalism.  The free speech provision of the European convention on human rights, Article 10, gives journalists a strong right to protect their confidential sources of information.  Yet the draft investigatory powers bill, published on Wednesday as a replacement for the outdated Regulation of Investigatory Powers Act, fails to guarantee this fundamental human right.

The Complicity Blog carried a post by Zoe Connell which has identified a number of “ifs and buts” within the bill.  This is a useful read – First thoughts on the draft Investigatory Powers Bill.
From the material to which I have linked it appears that the Bill has been broadly welcomed and that there is a strong case for the powers.  As usual, any devils will be lurking in the detail.

Arrested and refused to give names. Daily Mail complains that they got unconditional bail.

Posted by admin on September 12, 2016 (Comments Closed)

The Daily Mail (7th November) carried an article about three “rioters” who were arrested and who refused to give their names to the Police.  According to the article, they had their fingerprints, DNA and photographs taken and spent  48 hours in custody.  They finally got to the Magistrates’ Court only for the Bench to let them go on unconditional bail.   Read the article.  Let us take a look at the relevant law.

A basic principle of English law is that a person is to be considered innocent until proven guilty.  This “Golden Thread” applies no matter what the charge and it is for the prosecution to prove guilt. 

The three “rioters” were charged with failing to give a name and address when required to do so – Police Reform Act 2002 section 50.  It is triable only in the Magistrates’ Court and carries a maximum penalty of a fine of £1000 (Level 3).  The offence is a NON-imprisonable summary offence. This has implications regarding entitlement to bail.

An accused is entitled BY LAW to unconditional bail unless a reason permitted by the Bail Act 1976 (as amended) exists to either (a) refuse bail or (b) apply conditional bail. 

Refusal of bail for non-imprisonable summary offence:

The grounds on which bail may be refused are set out in Schedule 1 to the Bail Act and they vary with the nature of the offence. The grounds for refusing bail for a NON-imprisonable summary offence  are in Part II of Schedule I and the grounds are limited because the offence itself is non-imprisonable.  However, a court could remand a defendant into custody in the event of failure to surrender to bail or for his own protection or where he is already a serving prisoner or, in some situations, following an arrest under section 7 of the Bail Act.   

Could conditional bail have been applied?  

Conditions may be stipulated if the court is of the opinion that they are NECESSARY to ensure one or more of the following

  • that the defendant surrenders to custody; 
  • does not commit an offence while on bail; 
  • does not interfere with witnesses or otherwise obstruct the course of justice; 
  •  makes himself available for inquiries or reports to be made to assist the court with sentencing
  • or attends an interview with a legal representative.

These defendants may well have have a laugh at British justice and they might not appear for trial next year.  If they don’t appear then they may be arrested and could be remanded into custody at that time.

Why a trial for such a simple offence needs to be months away I have no idea.  There certainly was a time when simple offences were before the local Magistrates within days – sometimes the next day.  At a time when the workload of the Magistrates’ Court has generally fallen such delay needs to be explained and delay continues despite a number of initiatives over recent years to try to speed things up – (see this previous post – remember CJSSS etc).

A good explanation of the complexities of bail including the grounds for refusal may be read HERE.

It is high time that the heavily amended Bail Act was replaced with an up-to-date Act so that the law is more accessible to both practitioners and the general public.

The Belhaj and Rahmatullah cases ~ UK Supreme Court

Posted by admin on September 12, 2016 (Comments Closed)

Serious questions continue to remain unanswered regarding allegations that the UK government (or government agencies or government servants) were complicit in either the torture or ill-treatment of certain detainees during the global war on terror.  For example, see the House of Lords Committee on Human Rights 23rd report of Session 2008-9

From 9th November to 12th November, a seven judge Supreme Court (Lord Neuberger, Lady Hale, Lords Mance, Clarke, Wilson, Sumption and Hughes) is hearing appeals in two conjoined cases: Yunus Rahmatullah and Abdul-Hakim Belhaj and his wife Fatima Boudchar.  The UK government is strenuously resisting the claims.

At this stage, the argument concerns preliminary issues in the litigation about whether the appellants can be held liable as a matter of law.  If the court so holds then it will become a matter for the trial judges to determine the facts and whether there is actual liability.  The preliminary issues concern legal concepts of Act of State (both by the Crown and by Foreign States) and State Immunity. This post seeks to offer an overview of the litigation which has already produced several lengthy judgments containing in depth analysis of the legal concepts in issue.  Links to the judgments and some other materials are provided.

Rahmatullah case:

Rahmatullah (respondent) v Ministry of defence and another (appellants) – is an appeal to the Supreme Court from the November 2014 decision of Leggatt J –  Read High Court judgment
The issue is whether the respondent’s claims in tort against the appellants in respect of alleged acts or omissions of US personnel while the claimant was in US custody in Iraq and/or Afghanistan are barred by operation of either the foreign act of state doctrine or doctrine of state immunity.

R was detained by UK armed forces in Iraq in 2004 and transferred to the custody of US forces thereafter. He was detained in US custody for more than ten years without charge or trial during which time he alleges he was subject to torture and serious mistreatment. He was eventually released in Pakistan on 17 June 2014. He is now claiming damages in tort and under the Human Rights Act 1998 from the appellants.

Belhaj case:

Belhaj and another v Straw and others – is an appeal from the October 2014 decision of the Court of Appeal (Civil Division) – Lord Dyson MR, Lloyd-Jones LJ and Lady Justice Sharp.  Read the Court’s decision.   See also the original judgment judgment of Simon J.

The Incorporated Council of Law Reporting summary is a useful shortcut for the main points in the Court of Appeal’s judgment.

The Supreme Court has to decide:

  1. Whether the Court of Appeal correctly held that the public policy limitation applied and precluded the application of the foreign act of state doctrine.
  2. Whether the Court of Appeal correctly held that the territorial limitation of the foreign act of state doctrine applied to the alleged acts of the United States.
  3. Whether the Court of Appeal was wrong to hold that the doctrine of foreign act of state was engaged.
  4. Whether the Court of Appeal correctly held that foreign states were not indirectly impleaded in the Particulars of Claim and that the claim was not barred by state immunity.

The respondents, a former opponent of Colonel Gaddafi and his wife, allege that in February 2004 they were abducted and unlawfully taken to Libya, where they were both allegedly detained and tortured. The second respondent was released on 21 June 2004 but the first respondent was detained until 23 March 2010, during which time he alleges he was tortured and was sentenced to death following a flagrantly unfair trial. In their defences, the appellants have denied liability and the issues in this appeal have arisen by way of preliminary issues of law.

There are five interveners in the Belhaj case including the United Nations Special Rapporteur on Torture and the International Commission of Jurists.   As such, the case will attract international interest.

ICJ and others intervene in UK rendition complicity case and see the ICJ’s full submission. The ICJ submission argues that neither State Immunity nor Act of State are applicable to bar these claims.

This article by Owen Bowcott in The Guardian is helpful in looking at this litigation.

Previous Law and Lawyers post concerning the Belhaj case

The earlier Rahmatullah case:

For an earlier decision of the Supreme Court concerning Mr Rahmatullah see Secretary of State for Foreign and Commonwealth Affairs v Yunus Rahmatullah [2012] UKSC 48.

Reported killing of Mohammed Emwazi (Jihadi John)

Posted by admin on September 12, 2016 (Comments Closed)

The Prime Minister (Rt. Hon. David Cameron MP) reported that a United States of America “drone” attack may well have killed the terrorist Mohammed Emwazi – the Islamic State “executioner” known as Jihadi John – Number 10 Prime Minister’s Statement.  British involvement is crystal clear from the statement in which Mr Cameron said – “… We have been working, with the United States, literally around the clock to track him down … this was a combined effort … and the contribution of both our countries was essential.”

The Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) acknowledged that Emwazi had been held to account for his “callous and brutal crimes” but added that capturing the terrorist and holding him to account in court would have been a better way of revenging his actions, which have included the beheading of British nationals in Islamic State controlled parts of Syria and Iraq – The Independent 13th November 2015

The former Attorney-General
– Rt. Hon. Dominic Grieve QC MP – said on BBC Radio 4 (World at One) that he believed the attack on Emwazi had a sound legal basis.  Grieve said, “… it’s always better if somebody is guilty of a serious crime that they should be brought to justice through the ordinary legal process but in this case it was clearly impossible for that to happen.”

Perhaps there is not really all that much difference between Mr Corbyn and Mr Grieve on this matter though it is unlikely that Mr Corbyn’s political opponents will acknowledge such a possibility.  It appears that both would have preferred due legal process to be applied to Emwazi but Grieve was more focused on the impracticality of achieving that in the present circumstances.

A key legal issue over the use of drones for targeted killings is that the “sound legal basis” for governmental action (or involvement in the actions of the USA) needs to be clearly stated.  “Self-defence” usually appears in most of the Ministerial formulations about this.

In a previous post (8th September) – View from the North: A killing in Syria – the possible legal basis in relation to drone strikes was considered with the tentative conclusion that the killing of Reyaad Khan (and others) may have been lawful BUT everything would depend on ALL the detailed facts.  National security prevents us knowing those facts.  In a further post (15th September) – a number of serious concerns were considered – Death by Drone: Concerns and Questions and such concerns ought to be squarely addressed by a government committed to the rule of law (including, one hopes, international law – see Concern over amended Ministerial Code).  After all, the concerns are not those expressed by a mere law blogger but were set out in official reports to the United Nations.

Parliament’s Joint Committee on Human Rights (Chaired by the Rt. Hon. Harriet Harman MP) has decided to conduct an inquiry into the government’s policy of using drones for targeted killings – Committee Letter to Attorney-General 4th November 2015  The inquiry seeks to examine the policy and its legal basis, the decision-making process and accountability.

Dominic Grieve has also indicated that Parliament’s Intelligence and Security Committee (which he Chairs) may extend its inquiry into the earlier drone strike in Syria to cover the Emwazi operation.

In September 2014 Parliament voted to support offensive military action in Iraq. However, that vote did not extend to offensive operations in Syria – see UK Parliament – ISIS/Daesh: The military response in Iraq and Syria

Please also see the piece by Max Hastings in Daily Mail Saturday 14th November –I say good riddance but admit to qualms

Hastings points out – ” … while today only the US, Britain and Israel own effective drone capabilities, it is only a matter of time before others acquire them ….” 

Some of those qualms are ones that perhaps all sensible people should share …!

Governmental emergency powers ~ a very brief look

Posted by admin on September 12, 2016 (Comments Closed)

On Friday 13th November, three teams of terrorists laid siege to Paris, killing 129 people in a spree of shootings and explosions across six locations. The attackers were all outfitted with suicide vests and armed with Kalashnikovs.  “Islamic State” (IS) claimed responsibility for the attacks – Reuters 14th November.   The President of France described the attacks as “an act of war.”  This has been followed by the French authorities hunting for suspects – NBC News 16th November – Paris attacks. – with the French Interior Minister (Bernard Cazeneuve) saying –  “The response of France will be total. Those who attack France, we will catch them and we will be unrelenting with them … Terrorists will never destroy the Republic, because the Republic will destroy them.”

An act of war – but what response?

The attacks in Paris
have heightened the desire for further military action against Islamic State though one article in The Guardian states that, whilst Islamic State’s actions may be an act of war, retaliation might be unlawful because IS is not actually a State in international law – The Guardian 16th November.  Such an argument that ought not to withstand serious analysis since it would provide the perfect loophole for murderous “non State” groups all over the planet.  I believe that a complete refutation of such an argument is available and is set out in a paper by Sir Daniel Bethlehem QC(Legal Adviser to the Foreign and Commonwealth Office May 2006 to May 2011) – Principles relevant to the scope of a State’s right of self-defence against an imminent or actual armed attack by non-State actors

This article concludes that – “Armed action in self-defence may be directed against those actively planning, threatening, or perpetuating armed attacks.  It may also be directed against those in respect of whom there is a strong, reasonable, and objective basis for concluding that they are taking part in those attacks through the provision of material support essential to the attacks.”  Bethlehem also argues that the word “imminent” has to be assessed by all the relevant circumstances.  The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent.

Of course, one would expect stable States to take action against those seeking to launch terrorism from within the State’s territory.  In the present circumstances in Syria and elsewhere that may not be realistically possible but this should not render potential victim States impotent to act.

Fast-tracking investigatory powers:

There has been a call by Lord Carlile QC for the Investigatory Powers Bill to be fast-tracked through Parliament.  Lord Carlile (a former Independent Reviewer of Terrorism Legislation) is an eminent voice but I submit that this would be an unwise course to take.  The Bill needs the Parliamentary scrutiny that has been promised so far and that will lead to better legislation.  Siren calls for fast track legislation should generally be resisted.  The UK Human Rights blog has a fuller discussion of this and also see The Guardian 16th November – Don’t fast track the new surveillance bill: it needs considered scrutiny

Extensive terrorism law and general criminal law:

The UK has extensive Terrorism Legislation and this is kept under review by the Independent Reviewer (Mr David Anderson QC).  These powers are strong but there are continual calls for additional or stronger powers – see Jack of Kent blog 15th November.  Terrorism offences are in addition to our extensive criminal law.

Prerogative powers:

The UK government has Royal Prerogative powers available to it.  For example, it is clear enough that the Armed Forces may be deployed to maintain the peace in support of the Police.  The Crown also has power to requisition certain ships and this was done in 1982 in connection with the military campaign to recover the Falkland Islands.

In March 2004, the House of Commons Administration Select Committee published “Taming the Prerogative ..” (4th report of session 2003-04).  Toward the end of that document is a Memorandum from the Treasury Solicitor’s Department where it is noted that – ” the Crown still has certain prerogative powers in time of grave national emergency to enter upon, take and destroy private property, though the conditions under which these powers are exercisable are far from clear, partly because the powers were never precisely defined, partly because the scope in time of war was not considered in general terms by the courts for nearly three hundred years, and partly because of the encroachment of various statutory provisions made over the years.” 

The memorandum also claims that – “it is likely that the courts would be willing to recognise a wide range of necessary responses by the Executive to an emergency as authorised under the prerogative in the absence of a clear statutory basis.”

The Civil Contingencies Act:

The Civil Contingencies Act 2004 (CCA) could be invoked in the event of an emergency occurring in the United Kingdom – see previous post of 14th April 2011.   Part 2 of the CCA deals with “Emergency Powers” and the term “emergency” is defined in section 19.  A power to make emergency regulations is conferred by section 20 but this power is subject to certain conditions – section 21 .   Regulations could be exceptionally extensive in scope – (section 22) – and permit actions such as the requisition or confiscation of property (with or without compensation); control of movement and transport; deployment of the armed forces etc.  Certain limitations apply to the powers which can be granted – section 23.   Further sections deal with the appointment of Regional and Emergency Coordinators and for Parliamentary scrutiny of any regulations (sections 27 and 28).  Basically, emergency regulations last for 30 days from the day on which they are made but further regulations can be made.