March 11’s horrific events in Madrid have underlined the seriousness of the threat posed by terrorism in the modern world. Clearly the perpetrators of such acts have no regard for human life and do not care about the suffering they cause. Naturally, we wish to see something done to stop this sort fo thing from ever happening again.
Since Sept 11th 2001, governments across the world have been under considerable pressure to “do something” about terrorism, and to be seen to be doing it. Each new atrocity, whether in Bali, Turkey, or, as now, in Spain, puts further pressure on governments and lends credence to the often repeated assertion that the terrorists can strike anywhere they choose, that no country is safe from such attacks. Indeed, it has been my opinion for some time now that it will only be a matter of time before a terrorist group tries a similar attack on Britain. A rare point of agreement between myself, Tony Blair and a certain Mr Blunkett!
Many governments have responded to the terrorist threat by enacting draconian laws that attack civil liberties. Already, in the aftermath of 11/03/2004, there is talk of yet more draconian measures and finding a new balance between protecting civil liberties and preventing terrorism. Indeed according to the BBC, David Blunkett has stated that the greatest challenge was to protect democratic rights in the face of the threat posed by suicide bombers who had changed all the rule books. Further he said:
With new forms of terrorism, with the suicide bombers, with those who are prepared not only to take the lives of others but their own, there is no prosecution, there is not punishment, there isn’t the usual norms of human and social behaviour.
A leader from today’s edition of the Scotland on Sunday newpaper (you’ll need to register to see the leader itself, I’m quoting from the print edition) states:
The only way to prevent the carnage bombers can wreak is to anticipate their actions and arrest them before they act. It is difficult to see how this can be done without lowering the burden of proof currently required of the police and security forces and this is a debate we must have. It will pitch those on the right who would dilute human rights to save human lives against those on the left who, it seems, would sacrifice lives to preserve liberty.
In this debate it is continually assumed by the government, and many others, that civil liberties stand in opposition to effective action against terrorists, that they prevent the government, police and security forces from doing their job in trying to protect us from terrorists. Whilst there may be specific situations where this might happen, in general I reject this whole way of framing the problem.
Recall the very first sentence in the quotation from Scotland and Sunday; “The only way to prevent the carnage bombers can wreak is to anticipate their acts and arrest them before they act”. I agree! But lowering the burden of proof faced in court will make damn all difference to the ability of the police and security services to arrest those they think may be planning or carrying out an act of terrorism. Under the Terrorism Act 2000, a person can be arrested without a warrant in the police merely suspect them of being a terrorist. They can then be held for up to 2 weeks without charge. The offences available to the police/security services to subsequently charge someone with include:
- being or claiming to be a member of a proscribed organisation
- possessing information or articles in circumstances which lead to suspicion that their possession is for a purpose related
to the commission, instigation or preparation of acts of terrorism
- directing the activities of a terrorist organisation at any level
These are in addition to offences related to illegal possession of firearms, explosives and other materials, and offences related to murder, assault, kidnapping, etc. My point is that the police and security services already have the legal powers necessary to arrest someone they think might be involved in terrorism. And if those people are genuinely planning a bombing, suicide or otherwise, they most likely have commited some or all of the above offences and can be charged and convicted as a result.
The crucial issue is thus not the powers of arrest and the burden to be satisfied in court, but the intelligence gathering powers the police and security forces have and the resources they have at their disposal to exercise those powers. The govt recently announced a huge increase in manpower for MI5 — this I have no problem with and I consider justified for fighting terrorism. The security services already have considerable legal powers for conducting surveillance too, under RIPA and the Terrrorism Act. IMHO the main thing that needs to be done is for the security services and police to get on with their jobs, and get the resources they need. Further tinkering with the anti-terror laws, especially to weaken civil liberties is simply not justified.
But surely lowering the burden of proof will make it easier to jail terrorists? It is not that simple at all. By lowering the burden of proof you make it easier to jail the accused but the flipside is you make it easier to jail the wrong person. If you jail the wrong people, then not only do innocent people end up in jail but the terrorists are free to continue their mayhem.
If you lower the burden of proof, you will inevitably ensure that poorer quality cases are taken to court. Hard pressed investigators will make the decision to prosecute earlier than they otherwise might have done. THIS MEANS POORER INVESTIGATION which will undermine the effectiveness of the anti-terrorism efforts at the most crucial point, the point of investigation of and intelligence gathering on terrorist suspects.
The burden of proof and other protections in our system of law are not just there to protect the liberty of individuals (important as that is) but also to ensure that when we jail people we jail the right people. Weakening such protections leads all of us exposed to wrongful imprisonment by the government and can be counterproductive to effective crime fighting and the fight against terrorism.
The automatic assumption by many that civil liberties must be weakened in the fight against terrorism is a trap. The crucial issue in the fight against terrorism is, and always has been, the effective gathering of intelligence. If we don’t know who the terrorists are, where they are and what they’re doing, we cannot stop them even if we give the government absolute power to do what it wants in the fight against terrorism. Giving the government such power will make it an even more serious threat to our freedom than the terrorists, as history has shown time and time again with examples such as Nazi Germany and Stalinist Russia as testimony. As Benjamin Franklin famous said:
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety