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PRIME RECENT and PROPOSED ATTACKS on CIVIL RIGHTS in the UNITED KINGDOM – a list

 

Supervisor – James A Hammerton

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The first two attacks on civil rights in the UK were created by the previous Conservative administration; but the first attack is so central and important, because of its attack on the right to silence, that it is being included in the list below; whilst the second attack, which could have been blocked by the incoming Labour government of 1997, was confirmed by them.
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RIGHTS ATTACKED: right to silence
rights to peaceful protest
rights to peaceful assembly
freedom of movement
Legislation: Criminal Justice and Public Order Act 1994

Allows courts and juries to draw inferences from a suspect’s silence in custody or in court (Sections 34 to 39). The legislation explicitly states that the court or jury can draw whatever inferences they see fit from a suspect’s silence when determining whether the accused is guilty of a charge: http://www.legislation.hmso.gov.uk/acts/acts1994/Ukpga_19940033_en_4.htm#mdiv34

Gives the police the power to direct a group of people to leave some land if they believe they are there for the purposes of organising or attending a “rave”. Note that no complaints need to be made about the people concerned and that this power applies regardless of whether they have the permission of the landowner. Thus, this gives the police the power to order people off land if they (the police) think the people are there to organise a “rave” and the music might be too loud; and not merely if they have actually organised a rave or the music is too loud. It is a summary offence not to leave, punishable by up to three months in prison, though it is a defence to show that you had a reasonable excuse not to leave. (Section 63)

Gives the police the power to order people within a 5 miles radius of a suspected “rave”, whom they “reasonably believe” to be travelling to the “rave”, to stop proceeding in the direction of the “rave”. Failure to obey is a summary offence, punishable by up to 3 months in prison. Again, the police need not have actually come across a “rave”, or have received complaints, for such a law to apply. (Section 65)

Further details at: http://www.legislation.hmso.gov.uk/acts/acts1994/Ukpga_19940033_en_1.htm


RIGHTS ATTACKED: rights to privacy and security of property
Legislation: Police Act 1997

Allows the police to break into property and place bugs for surveillance as the result of an internal police decision. The chief constable of the force involved approves the decisions, and is allowed to make such authorisations if he believes it will help fight serious crime. Such actions can be taken without the owner/occupier of the property being under suspicion of a crime. The main safeguard is the oversight of the legislation by a group of commissioners who handle complaints, but the decisions are taken without requiring a warrant. (Sections 91 to 108)

Further details at: http://www.legislation.hmso.gov.uk/acts/acts1997/1997050.htm


RIGHTS ATTACKED: presumption of innocence
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  freedom of association
  freedom of expression
  right to peaceful protest
Legislation: Terrorism Act 2000

Definition of “terrorism” includes (the threat of) computer hacking and causing damage to property, where performed for a political cause in order to influence a government. Thus anti-GM crops campaigners who tear up GM crops would be legally regarded as terrorists. Furthermore, any action taken for the benefit of a proscribed organisation is regarded as terrorism. (Section 1)

The government can (with approval through a single parliamentary vote) proscribe organisations without 'having to prove that they have committed any offences, let alone any acts of terrorism. (Sections 3 to 10)

It is an offence to be a member of a proscribed organisation. Should you have joined before the organisation was proscribed, you have to prove you did not take part in any of its activities since proscription. (Section 11)

It is an offence to invite support for a proscribed organisation. It is also an offence to arrange, to assist in arranging or managing, or to address a meeting of three or more people with the purpose of supporting a proscribed organisation. (Section 12)

It is an offence to wear, in public, an article or piece of clothing in circumstances which arouse “reasonable suspicion” you are, or may be, a member or supporter of a proscribed organisation. (Section 13)

Further details at: http://www.legislation.hmso.gov.uk/acts/acts2000/20000011.htm


RIGHTS ATTACKED: presumption of innocence
freedom of movement
Legislation: Football (Disorder) Act 2000

Enables courts to place banning orders on people, prohibiting them from travelling when a football match is on, without proving they committed an offence (they are required to hand their passport in to a specified police station at a specified time). (Schedule 1, Section 14B)

Allows the police to prevent a person, not subject to banning orders, from leaving the country if the police have “reasonable grounds” for believing the person has committed acts of violence or disorder, or may cause trouble at a regulated football match. The police may then detain the person for up to 6 hours whilst deciding whether to apply for a banning order (Schedule 1, Section 21A). Note you do not need to have been convicted of any offence for the police to stop you, or for a banning order to be put on you.

Further details at: http://www.legislation.hmso.gov.uk/acts/acts2000/20000025.htm


RIGHTS ATTACKED: confidentiality of medical records
Legislation: Health and Social Care Act 2001

This enables the Health Secretary to authorise disclosure of confidential patient information to anyone he chooses if he believes it is in the public interest or will improve patient care, subject only to whether a “practical” (with regard to cost and technology) alternative way of achieving his purposes is available and a requirement that the purpose is not solely the treatment of particular individuals. (Section 60)

Further details at: http://www.legislation.hmso.gov.uk/acts/acts2001/20010015.htm


RIGHTS ATTACKED: rights to privacy


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confidentiality of medical and financial records
presumption of innocence
suspect’s rights in custody
right to silence
Legislation: Anti-Terrorism, Crime and Security Act 2001

Allows government departments and public bodies to disclose previously confidential information to police forces for the purposes of investigations of any crime anywhere in the world. There are no checks or independent auditing of this, and the people/organisations whose information is released will not necessarily be informed of the release. (Sections 17-20, Schedule 4)

Permits the Home Secretary to certify any foreigner as an “international terrorist” if he/she decides that they are a risk to national security and that they are an international terrorist. Terrorism is defined as in the Terrorism Act 2000. An international terrorist is someone who belongs to or supports or assists with an international terrorist group or has been concerned in the commission, preparation or instigation of acts of international terrorism. An international terrorist group is a group subject to the control or influence of people outside the UK and which the Home Secretary suspects is concerned in the instigation, preparation or commission of acts of international terrorism. (Section 21)

Allows anyone certified as an international terrorist to be detained. (Section 23)

Section 24 allows international terrorists who have been detained to apply to the Special Immigration Appeals Committee for bail and section 26 requires the committee to revue each case every 6 months.

Section 28 sets out the duration of the detention provisions at 15 months, but renewable annually thereafter. The Prevention of Terrorism Act was supposed to be temporary, but was renewed annually until the Terrorism Act 2000 took its place and extended its provisions.

Section 29 prevents courts from challenging the legality of the detention of foreigners under sections 21 – 26, effectively removing the protection of the rule of law for foreigners who fall foul of these measures.

Allows the police to photograph those detained in their custody by force (including removal of garments covering the head/face), with no controls on whether the photographs are destroyed if the detainee is not charged or not convicted, and nothing to prevent photos being passed on to other police forces for other purposes. (Section 92, 93)

Allows senior police officers to make an order to the effect that the police can demand the removal of disguises/head gear in an area during a 24 hour period, if the senior police officer believes crime may be committed in that area during the period concerned. How many areas of the country exist where such a condition doesn't exist? (Section 94)

Requires communications service providers to backup traffic data (who you phone, send/receive email to/from, what web pages you visit, what you type into web pages such as search engines, etc; but not the content of emails or phone calls), as the Home Secretary orders, for the purposes of investigations by the police and security agencies. (Sections 102 – 107)

Makes it an offence to fail to disclose information that would be of material assistance in preventing the commission by another person of an act of terrorism (as defined in the Terrorism Act 2000), or in capturing and bringing to trial a person who has engaged in the commission, preparation or instigation of acts of terrorism. The person commits the offence if they fail to disclose the information to the police as soon as is reasonably practical. The offence is punishable by up to 5 years in prison. Thus, if you know that an organisation is planning to hack a government web-site in order to highlight the impact of that government’s policies, failure to tell the police about it is an offence—see the definition of terrorism in the Terrorism Act 2000. Alternatively, if you know that someone is planning to take any action for the benefit of a proscribed organisation, failure to tell the police about this is an offence. (Section 117)

Further details at: http://www.legislation.hmso.gov.uk/acts/acts2001/20010024.htm and at http://www.blagged.freeserve.co.uk/ta2000/atcsabriefing.htm


RIGHTS ATTACKED: rights to privacy
confidentiality of financial and other records
Legislation: Social Security Fraud Act 2001

Officials authorised by local councils and the Department of Work and Pensions can demand that banks, credit card companies, utility companies, any company providing financial services and phone companies hand over any data they think is necessary for the purposes of preventing or detecting benefit fraud, without a warrant. These officials can also demand that telecommunications companies tell them who owns a particular account, when given only a number or electronic address associated with the account, again without a warrant.

Further details at: http://www.legislation.hmso.gov.uk/acts/acts2001/20010011.htm


RIGHTS ATTACKED: presumption of innocence
  security of property
Legislation: The Proceeds of Crime Act 2002

Under this Act, the Criminal Assets Recovery Agency is set up and in Part 5, it is given the power to seize a person's assets via civil procedures in court. If it is proven, on balance of probabilities, that the assets were received by, or in return for, unlawful conduct.

Normally, in civil proceedings you have two private parties and the state is merely adjudicating between the two parties. Much of the time, the two parties will be on roughly equal footing, or at least a more equal footing than where an individual, or even a private organisation, is up against the state. The use of the "balance of probabilities", rather than proof "beyond reasonable doubt" here reflects that.

However this law applies civil proceedings to a dispute between the state and an individual, with the state as the adjudicator.

There is thus a fundamental inequality of arms here. The state will have far more resources than a private party, especially an individual, will have—including the ability to make laws and conduct investigations. Moreover the ability to freeze the person's assets puts them at an even further disadvantage, when the state already has much in its favour.


RIGHTS ATTACKED: right to a jury trial
  right to a fair trial
  freedom from arbitrary arrest
Legislation:Extradition Act 2003 (implementing the European Arrest Warrant)

The EU member countries have agreed to implement a European Arrest Warrant (EAW) enabling fast-track extradition between them for a range of offences. The UK government has enacted the Extradition Act 2003, which implements the EAW. Under the EAW, an EU country can request the extradition of a person in another EU country for a range of offences set out in a European Framework Document, where the offence can be punished by a year or more in prison in the country requesting extradition. The extradition will go ahead without a shred of evidence being presented against the accused person in the courts of the country in which they reside. Further, the offence need not exist, or have the same level of punishment, in the country from which the accused is being extradited, and other charges can be brought after the extradition has taken place.

In addition to some clear-cut and serious offences such as terrorism, rape and kidnapping, the extradition offences include:

These crimes are very vague, e.g. “computer-related” and “environmental” crime do not specify anything other than the crime somehow relates to computers or the environment. “Racism and xenophobia” are also quite vague and undefined in the document, yet each EU country tackles these subjects in different ways. Britain criminalises the incitement of racial hatred and the incitement of violence, but otherwise racist or xenophobic material is left alone. Germany criminalises holocaust denial, and France the incitement of racism—a more vague concept than racial hatred and a thought crime to boot!

Once the person is extradited, it is possible for the charges to be changed to include other extradition offences. The conduct which constitutes the offence does have to have occurred in the country requesting extradition, but the internet may complicate things.

If the offence relates to publishing or distributing information in the extradition-requesting country, then the judge will have to decide whether the person’s conduct can be deemed to have occurred in the other country ( being requested to make an extradition). If the website is actually hosted in the other country, it would be clear that the person had transmitted the data to the extradition-requesting country and that transmission of the data, therefore, constituted conduct that took place within the other country. A more worrying question is, whether by putting the information up on a website outside the other country but accessible inside it, the person also engages in conduct inside the other country. If the courts decide it is conduct occurring in the other country, then the implications are worrying.

For example, French courts ruled that Yahoo! was breaking French law by running a website, hosted in the USA, that hosted auctions of Nazi memorabilia and was accessible in France (though not from Yahoo’s French website). The US courts have ruled that French courts do not have jurisdiction over Yahoo’s US websites. But, under the EAW, if such a website was located in Britain and accessible in France, and if posting data on such a website constitutes conduct that occurs in France, the French could issue an arrest warrant and the British authorities would have to hand the owner/author of the website over for prosecution without seeing any evidence. Given that the French law concerned is for “inciting racism”, such a website would be legal in the UK but not in France. The UK criminalises ‘inciting racial hatred’, a different and less ambiguous charge.

The EAW could, thus, expose all EU citizens to the most restrictive extradition offences relating to publishing and distributing information on the internet than exist in any single EU state, as well as exposing people to being falsely or maliciously tried for crimes in any EU countries they have visited. And even this might be over-optimistic: since the evidence against them is not tested in the country that is asked to hand them over, the issue of whether they could have been in the other country at the right time might not even be looked at prior to extradition. It can also be added that most European countries do not use jury trials, and thus a long-standing safeguard in British justice will not apply (however, the current UK government is undermining jury trial).

Further information at:
http://www.homeoffice.gov.uk/crimpol/oic/europeanunion/eaw.html
http://www.legislation.hmso.gov.uk/acts/acts2003/20030041.htm


RIGHTS ATTACKED: right to jury trial
double jeopardy rule
Legislation: The Criminal Justice Act 2003

This Act of Parliament, which applies to England and Wales:

  • allows judges to sit alone in complex fraud cases, and cases where he judges the jury is at risk of intimidation (see part 7 of the Act);
  • removes the double jeopardy rule for serious offences "where compelling new evidence is produced" (see part 10 of the Act); and
  • allows routine use of hearsay evidence (see part ) and "evidence of bad character" (see part ), e.g. prior convictions and acquittals , to be disclosed in court.

Note

  • that it will be easier to nobble a single judge than a jury of 12 people;
  • that removing the double jeopardy rule reduces the incentives on the police to investigate thoroughly and produce the strongest possible case; and
  • that allowing "evidence of bad character" such as prior conviction or acquittals, to be used will also reduce the requirement for the police to provide strong evidence that the defendant committed the crime(s) for which he’s being tried and will thus risk a reduction in the standards of justice, and thus more innocent people being jailed and more guilty people going free.

Further information at:

http://www.cjsonline.gov.uk/the_cjs/parliament/legislation/index.html

RIGHTS ATTACKED: rights to privacy of communications
Legislation: The “Snooper’s Charter”
Under The Regulation of Investigatory Powers (Communications Data) Order 2003, a statutory instrument issued under the Regulation of Investigatory Powers Act (see above), the following organisations have been given the power (in addition to those already specified in RIPA, e.g. police, intelligence services, customs and excise and inland revenue) to snoop on who you communicate with electronically, i.e. which websites you visit, who you email, who emails you, who visits your site and even the location of your mobile phone whilst switched on:
  • the Financial Services Authority,
  • the Department of Trade and Industry,
  • various bodies in the NHS including NHS trusts,
  • the Department of Transport,
  • the Food Standards Agency,
  • the Department of Health,
  • the Home Office,
  • the Department of Enterprise, Trade and Investment for Northern Ireland,
  • local councils,
  • the Charity Commission,
  • the Environment Agency,
  • the Gaming Board of Great Britain,
  • the Health and Safety Executive,
  • the Information Commissioner,
  • the Office of Fair Trading,
  • the Serious Fraud Office,
  • the Scottish Environmental Protection Agency,
  • the Royal Mail,

Note that the people within these organisations who are able to exercise these powers vary, as does the precise information that can be obtained. See RIPA and the order itself for further details.

However, the mere fact that so many bodies can snoop on us, mostly on their own authority (i.e. without having to get a warrant) is in itself a worrying development.


RIGHTS ATTACKED: potentially almost all rights, the government can acquire absolute power. This is an enabling act.
Legislation: The Civil Contingencies Act 2004
Part 2 of this Act allows any cabinet minister to make "emergency regulations" if he is satisfied (i.e. the cabinet minister's own views are what matters here) that:
  • an "emergency" has occurred, is occurring or is about to occur,
  • it is "necessary" to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency,
  • the provisions are in due proportion to the effect or aspect of the emergency concerned,
  • it is urgent to make the provision concerned.

The Act says it is "necessary" to make provision if existing legislation cannot be relied out without the risk of serious delay or ascertaining whether existing legislation is sufficient might cause serious delay or if existing legislation might be insufficiently effective.

Emergency regulations may make any provision that can be made by Royal Prerogative or Act of Parliament. These are the two prime sources of authority in the British constitution. Without any limitation this would be absolute power. The only limitations are that:

  • the regulations comply with the ECHR under the Human Rights Act 1998 -- but the HRA allows Britain to derogate from any right in the event of an emergency.
  • the regulations are approved of within 7 days by Parliament -- but lack of approval does not prevent new regulations (renewing the old ones) being issued.
  • Part 2 of the CCA is not itself altered,
  • offences created under regulations carry a maximum of 3 months imprisonment or a level 5 fine as punishment
  • the regulations cannot alter criminal procedure.
  • conscription into the army is prohibited, as is the prohibition of strikes or other industrial action.
Possible measures explicitly listed as permissible include:
  • requiring or prohibiting movement to or from a particular area or remaining within a particular area,
  • destruction of property or animals or plants, with or without compensation,
  • prohibiting assemblies of specific kinds in specific places or at specified times,
  • prohibiting travel at specified times,
  • disapplying or modifying Acts of Parliament,
  • requiring people to carry out a function,
  • creating offences of failure to comply with a provision of regulations, failure to comply with orders given or made under regulations, obstruction of a person in the performance of a function under regulations,
  • deploying the armed forces,
  • conferring jurisdiction on a court or tribunal.
The purposes to which emergency regulations can be made include:
  • protecting human life, health or safety,
  • treating human illness or injury,
  • protecting or restoring: property; money, food, energy or fuel supples; transport facilities; communications systems; the activities of banks and other financial institutions and health services,
  • preventing, reducing or mitigating the contamination of land, water or air or the effects of disruption or destruction of plant or animal life,
  • protecting or restoring the activities of the various parliaments (i.e. Westminster and the devolved assemblies),
  • protecting or restoring the performance of public functions.
An emergency is defined as:
  • an event or situation which threatens serious damage to human welfare or the environment in the UK or a part of it,
  • war or terrorism which threatens serious damage to the security of the UK.

RIGHTS ATTACKED: presumption of innocence
  the right to know the evidence and charges/accusations against you
  the right to a fair trial or, indeed, any trial
potentially, almost any right, except the right against torture and the right to life
Legislation: The Prevention of Terrorism Act 2005

Under this Act, the govt can impose “control orders” on anyone they suspect might be involved in “terrorism-related” activity. Control orders come in two forms:

  • “derogating control orders” involve infringements of the right to liberty and require the government to derogate from article 5 of the European Convention of Human Rights. The Home Secretary can apply to the courts for such an order to be imposed on someone, at which point the police can arrest them and hold them for up to 96 hours whilst the court considers the order. The court can impose the order if it believes "on balance of probabilities" that someone is involved in "terrorism-related" activities. For these orders to be imposed, Parliament must agree to the derogation from article 5 of the ECHR within 40 days of the parliamentary order that enables the derogation being tabled.
  • "non derogating control orders" are those which do not involve detaining someone indefinitely. The Home Secretary can apply to the courts to have one imposed, or impose it himself if he believes the case to be urgent. The control orders are imposed if there are "reasonable grounds for suspicion" that the person concerned has been involved in "terrorism related" activity.

With either type of control order, the person subjected to a control order does not get a trial, is not charged with anything, and may have the evidence or accusations against them withheld from them or their lawyers. Control orders can thus impose any obligation from internet bans and curfews through to full blown house arrest (in the case of derogating control orders).

"Terrorism-related" activity is defined as conduct that involves, facilitates or encourages the instigation, preparation or commission of acts of terrorism or which gives support or assistance to individuals known or believed to be involved in terrorism related activity. Terrorism is defined as in Section 1 of the Terrorism Act 2000.


RIGHTS ATTACKED: suspects’ rights
  the right to peaceful protest
Legislation: The Serious Organised Crime and Police Act 2005 (currently as PDF)

Aside from setting up the Serious Organised Crime Agency (SOCA) a sort of British "FBI", this Act contained the following measures:

  • making all offences, no matter how trivial, arrestable, thus triggering powers to obtain DNA, other other intimate samples, fingerprints and photographs of those arrested, to be retained forever, regardless of whether they're charged with or convicted of an offence.
  • Protestors, or even a single protestor, must apply at least 24 hours in advance for a permit to protest within 1km of Parliament, though the Act also states that if it is "reasonably practical" the application must be made at least 6 days beforehand.
The creation of an offence for "inciting religious hatred" was dropped when the 2005 general election was called, but the Labour Party promised to reintroduce it if they win the election.

proposed attacks

RIGHTS ATTACKED: rights to privacy/freedom from surveillance
  presumption of innocence
Proposed legislation: The Identity Cards Bill
Although this Bill fell when the government announced the general election to be held on the 5th May 2005, Labour have pledged to introduce ID cards if they win the election. The Bill's main highlights are:
  • the creation of a central national identity register recording detailed information such as every place you've ever lived and who checks your identity and when (thus creating a record of your every day activities, including use of e.g. medical services).
  • the assignment of a unique registration number to each individual, which will index the national identity register and can be used to index, and thus easily tie together, other govt or private databases on individuals.
  • the Home Secretary given powers to require individuals to register with the system and obtain a card.
  • the Home Secretary given the power to confiscate/invalidate an individual's card.
  • the Home Secretary given the power to require identity checks for the access of public services.
  • the use of biometric identifiers such as fingerprints and iris scans to be stored on the database and the cards for authentication purposes.
  • fines of 1000 for failing to inform the govt of changes of address or simply filling in the forms for registration/applying for a card incorrectly.
  • fines of 2500 for regusing to register and obtain a card when ordered.

If the government has its way the card and associated database will become a licence to live combined with a system for surveiling everyday activities—it will be compulsory to own and would be required for everything from claiming benefits to opening a bank account. The government could invalidate your card at a whim, thus cutting you off from access to the services you need to live your life.


END NOTES

  1. Summary offence: one tried by magistrate only.
  2. Banned. To proscribe: to ban.


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