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ECHR throws out Prestige related case against Spain

The European Court of Human Rights has thrown out a case brought by the captain of the Prestige against the Spanish government:

SHIPPING industry officials have been left “shocked and disappointed” after a case against Spain by Prestige master Apostolos Mangouras was thrown out by the European Court of Human Rights.

In a unanimous decision, the Strasbourg court ruled that the €3m bail imposed on Capt Mangouras was not excessive given the seriousness of the 2002 oil spill. The time the Greek master spent in a Spanish jail — 83 days — was also short compared to comparable cases, the seven judges said in their ruling.

Representatives for the London Steamship Owners’ Mutual Insurance Association, the Prestige’s insurers, are already understood to be considering launching an appeal against the ruling.

“This finding seems inexplicable,” ITF Seafarers’ section secretary Jon Whitlow told Lloyd’s List.

“The arrest of Capt Mangouras was a knee-jerk reaction by a flailing government. His continued detention was a politically-motivated attempt to shift blame in the face of a national disaster. Sounds familiar? The same kinds of forces are at play in the case of the Hebei Two, and it’s our hope that by fighting against this most recent scandal in Korea we and the rest of the industry can expose and end the injustice in the same way that we were all finally able to do in the case of Capt Laptalo.”

abelard argues that the Spanish authorities are to blame on the grounds that they ordered the damaged ship to sail away from the Spanish coast, into a storm, against the advice of the Captain. The result:

“The Prestige broke in two and sank, spilling tens of thousands of tonnes of residual heavy crude oil. She sank, but not in shallow waters, easy to access to salvage the remainder of the oil, quickly before further ecological damage was done.”

The Times: EU to allow warrantless hacking of computers

Update: The Telegraph also covers this story.

From The Times online edition:

The hacking is known as “remote searching”. It allows police or MI5 officers who may be hundreds of miles away to examine covertly the hard drive of someone’s PC at his home, office or hotel room.

Material gathered in this way includes the content of all e-mails, web-browsing habits and instant messaging.

Under the Brussels edict, police across the EU have been given the green light to expand the implementation of a rarely used power involving warrantless intrusive surveillance of private property. The strategy will allow French, German and other EU forces to ask British officers to hack into someone’s UK computer and pass over any material gleaned.

A remote search can be granted if a senior officer says he “believes” that it is “proportionate” and necessary to prevent or detect serious crime — defined as any offence attracting a jail sentence of more than three years.

However, opposition MPs and civil liberties groups say that the broadening of such intrusive surveillance powers should be regulated by a new act of parliament and court warrants.

They point out that in contrast to the legal safeguards for searching a suspect’s home, police undertaking a remote search do not need to apply to a magistrates’ court for a warrant.

The Convention on Modern Liberty: 28th February 2009

The Convention on Modern Liberty is a convention being organised for the 28th February 2009. To quote from the website:

A call to all concerned with attacks on our fundamental rights and freedoms under pressure from counter-terrorism, financial breakdown and the database state

This looks like it will be an interesting set of events, with conventions planned in London, Belfast, Birmingham, Cambridge, Glasgow, Manchester, Southampton and Swansea.

I’ll post more news when I get it.

Freedom of speech and anti-terror law stories from 2008

Still in catching-up mode, here are some stories I didn’t manage to cover on Labour’s anti-terror laws and freedom of speech from 2008:

  • First off is the case of the student arrested for downloading a document, an alleged al-Qaeda training manual, for his research, that was freely available on a US government website. UK Liberty, Samizdata and Harry’s Place all covered this story. The Register went into the case in some detail:

    An issue that refuses to go away is whether some academic research now needs a license from the local police. Regular readers may remember the case of Hicham Yezza and Rizwaan Sabir, which we reported on in May.

    This kicked off when Mr Sabir, a postgraduate student at Nottingham University, asked Mr Yezza to help him out by downloading a document described as an “Al Qaeda Training Manual”.

    Bad move. The matter was reported to the University authorities, who informed the police. They arrested the two and held them for the best part of a week. At the end of that time Rizwaan Sabir was released but Hicham Yezza was transferred to the custody of the immigration authorities for deportation. Inquiries had turned up some irregularities in his status.

    Outwardly, this is unfortunate but explicable. The University authorities decided that they were not a competent body to investigate, so involved the police, and the police did their job. Events hinge on section 58 of the Terrorism Act 2000, which makes it an offence to possess material that might be useful to someone planning to carry out terrorist offences. But never fear, “it is a defence for a person charged … to prove that he had a reasonable excuse for his action or possession”.

    So here we see the impact of part of the Terrorism Act 2000 on the ability of students to access materials for their research, i.e. on academic freedom. The Register goes on:

    …It is what follows – and the entire thrust of the law - that is questionable. First, the law: If you possess dodgy material, it is for you to explain why. Parliament could have legislated the other way around - it could have made it a crime to possess such material “with intent”. But it didn’t, so now you must prove yourself innocent.

    Following Mr Sabir’s release, the police wrote to him. Allegedly, they warn that he risks re-arrest if found with the manual again and add: “The university authorities have now made clear that possession of this material is not required for the purpose of your course of study nor do they consider it legitimate for you to possess it for research purposes.”

    And:

    What the Police appear to be saying is that you can be given the all-clear as a bona fide researcher of terror material in the morning – then re-arrested the same evening for the same offence. Surely not, one might think, but that possibility is within the bounds of the Law.

    It doesn’t help that the list of materials that could assist a terrorist is very wide. It would certainly encompass broad swathes of chemistry, physics and biology – as well as current military training. This has therefore provoked the accusation, in some quarters, that the Act is likely to be applied in a selective and racist fashion – with individuals whose skin is not quite white being far more likely to be asked to justify what is on their bookshelves or hard drive.

    A subsequent case, that of Samina Malik, the “lyrical terrorist”, involved the appeal court quashing her conviction for offences under section 58:

    Is the “al-Qaeda manual” still an easy get into jail card? The UK Court of Appeal yesterday quashed the conviction of Samina Malik, aka the “Lyrical Terrorist”, for possession of information useful for terrorist purposes under Section 58 of the Terrorism Act 2000, but the Crown Prosecution Service still views this and other widely circulated documents as prima facie evidence of wicked intent.

    So the jury’s still out, as it were. The Court of Appeal ruled in Malik’s favour because it felt there was “a very real danger that the jury became confused”, and that her conviction was therefore unsafe. The prosecution conceded this, but Sue Hemming of the CPS counter-terrorism division said that although some of the 21 documents that had been used in Malik’s trial could no longer be seen as giving practical assistance to terrorists, “other documents in her possession, including the al Qaeda Manual, the Terrorist’s Handbook, the Mujahideen Poisons Handbook and several military manuals, clearly retain that potential.”

    Hemming added that Malik had already spent time on remand and would be likely to receive a non-custodial sentence if a further trial were pursued, and said that the CPS had therefore decided not to seek a retrial. Which you might well take to mean ’she’s guilty as hell, but we’re not going to bother with her, so there.’

    Section 58 covers the collection or holding of information likely to be useful for terrorism, but doesn’t require any specific terrorist intent, and is therefore particularly useful for sweeping up small fry, wingnuts and thought criminals. The three documents referred to by Hemming are all widely distributed on the Internet (sometimes, indeed, by the US Department of Justice), and have been used frequently in UK terrorist prosecutions.

    In yesterday’s judgment, Lord Phillips said that an offence would only have been committed if the material was likely to have provided practical assistance to a person preparing an act of terrorism, and that mere propaganda wasn’t covered by Section 58. The Court of Appeal has therefore clarified the law, ruling out documents that are just plain nasty, but leaving in ones that are probably nasty, and at least arguably practical.

    It seems to me an A to Z of London, or any other city, would provide “practical assistance” to someone preparing an act of terrorism.

  • Back in August, the UN’s Human Rights Committee criticised the British government for enacting laws that restrict freedom of speech:

    The government has been accused of creating laws that have a chilling effect on freedom of expression in the UK in a sharply critical report from the United Nations’ committee on human rights. The report calls for the reform of Britain’s libel laws and controls introduced under recent terrorism laws.

    The government’s use of the Official Secrets Act to prevent issues of public interest being published is also condemned in an intervention from the UN which warns that public servants are being gagged even where national security is not at risk.

    The criticisms are made as part of the committee’s analysis of a report which the UK is required to submit to the UN every three years, appraising human rights in its jurisdiction.

    Among the problems identified, the UN says:

    · Terrorism Act 2006 provisions covering encouragement of terrorism are too broad and vague, and should be amended so that their application does not lead to “a disproportionate interference with freedom of expression”.

    · Libel laws should be reformed to end so-called “libel tourism”, whereby wealthy foreigners have gone to the high court to sue over articles that would not warrant action in their own country.

    · Powers under the Official Secrets Act have been “exercised to frustrate former employees of the crown from bringing into the public domain issues of genuine public interest, and can be exercised to prevent the media from publishing such matters”.

    The committee also warns that, in the age of the internet, Britain’s unduly restrictive libel laws create the danger of affecting freedom of expression worldwide, contrary to a UN covenant on civil and political rights which guarantees the right to freedom of speech and to exchange ideas and information “regardless of borders”.

  • Spy Blog covered a clause in the Counter Terrorism Bill that looks as if it may impact on journalists, bloggers and photographers.

    The clause is now on the statute books as clause 76 of the Counter Terrorism Act 2008. It amends the Terrorism Act 2000 with a new section 58A that makes it an offence to elicit or attempt to elicit information about an individual who is or has been a member of Her Majesty’s forces, a member of any of the intelligence services or a constable, and where that information is of a kind likely to be useful to a person committing or preparing an act of terrorism. It also makes it an offence to publish or communicate such information. It is a defence for a person charged with the offence to prove they had a reasonable excuse for their action.

    Note that we’ve seen similar wording for the offence of possessing information in section 58 of the Terrorism Act 2000. Again we have a broadly defined, vague offence where you are required to show your action was reasonable, rather than the presumption of innocence applying. Note further that a photograph of a police officer is useful to someone committing or preparing an act of terrorism. As Spy Blog points out:

    “attempts to elicit information” is an excessively wide, “catch all” power, and should never have been allowed into the wording of the Act, but Parliamentary scrutiny , such as it was, was successfully diverted by the Government towards the controversial “42 days internment without charge” debate, allowing this, and other controversial sections of the Counter Terrorism Act 2008 through without opposition.

    A mainstream media outlet, freelance journalist or blogger, political activist, street or demonstration photographer or any innocent member of the public, might be able to claim that their research or photograph (or conceivably, even their perfectly legal Freedom of Information Act 2000 request) etc. was in the public interest, but, once they have been arrested on a Terrorism charge, it will be too late to continue with a normal life - they will have been branded as terrorists, even if they are entirely innocent.

    The threat of forced arrest, perhaps via a dawn raid by armed Counter Terrorism Police, followed by DNA sampling, fingerprinting, photography, and searches of your property, confiscation of your computer equipment (often for months on end, whilst it awaits forensic examination) and the subsequent blacklisting as a “terrorist suspect” on UK and foreign government and police databases, must surely frighten many people from daring to comment or publish on this, or similar stories.

    This Section 58A of the Terrorism Act 2000 should never be commenced, and should be repealed as quickly as possible.

    It does nothing to deter real terrorists, and will be used to harass political opponents and to try to suppress embarrassing facts about military, intelligence agency or police personnel, forces and agencies, especially those with lax or inept or treasonous operational or computer or communications security. Similarly, based on previous scandals, it will be used to try to hide or cover up individual or institutional corruption or other abuses of power, from public scrutiny.

Is “42 days” dead?

Posted by James Hammerton @ 7:49 pm on 18 October, 2008.
Categories democracy and the rule of law, British politics.
Edit This Permalink to this article

After being defeated heavily in the House of Lords on the issue, the British government has dropped plans to allow suspected terrorists to be held for upto 42 days without charge from the Counter Terrorism Bill (CT Bill).

This means that they won’t try to use the Parliament Act to force the bill through without the Lords’ consent, thus in the normal course of events, the issue won’t be raised again this side of the next general election, where the Tories, pledged to repeal the measure if it had passed, look likely to win. However, they haven’t quite conceded defeat either. Instead of including the measure in the CT Bill, they have decided to publish a bill that will implement 42 days to be used in a terrorist emergency.

It seems clear the government would still like to put this measure on the books, but have simply bent to the political reality that opposition is such that the measure is unlikely to get through Parliament this side of the next election and the government does not wish to be bogged down by the issue in the run up to the election. The only situation they can therefore realistically hope to use to put the measure on the books until then is the aftermath of a terrorist attack, when feelings will be running high and opposing such a measure would allow the government to cast the opposition as being “soft” on terrorism. Yet, if there really was a serious “terrorist emergency” (as opposed to simply another of the attacks or attempts Britain has experienced so far from Islamist extremists), they already have the option of using the Civil Contingencies Act to do whatever they feel needs to be done. This fact shows that they’re simply trying to save face and that the prime purpose of such legislation would not in fact be to combat the threat of terrorism but to make the opposition look soft on terrorism. Indeed Jacqui Smith’s statement after the defeat of the bill pretty much accuses those opposing the measure of exactly that:

In a forceful statement to MPs less than two hours after the vote, Ms Smith said: “I deeply regret that some have been prepared to ignore the terrorist threat, for fear of taking a tough but necessary decision.”

She said she had prepared a new bill which would allow the director of public prosecutions to apply to the courts to question a terrorist suspect for up to 42 days “should the worst happen”.

She said Britain still needed to “be prepared to deal with the worst”, adding: “My priority remains the protection of the British people.

“I don’t believe as some honourable members clearly do that it’s enough to simply cross our fingers and hope for the best. That is not good enough.”

Thing is, no one who opposes the bill suggests we should cross our fingers and hope for the best. The key to combatting the terrorist threat lies not in ramming ever more draconian legislation through Parliament, but in gathering intelligence and providing the resources, technology and manpower necessary to ensure thorough and timely investigation of terrorists and their crimes. This government seems to think that if a evidence cannot be found in time to charge someone arrested for terrorism, that they must extend the time with which that suspect is held rather than consider the possibility that the reason the evidence cannot be found is either that they’re innocent or that there’s a lack of resources or a lack of competence in the investigation.

And yet, it seems to me the measure won’t be dead whilst there is life in the idea that someone who opposes a law ostensibly targetted at fighting terrorism is “soft” on terrorism. This idea has enabled the government to pass ever more draconian measures over the last decade. With 42 days, it may have received some wounds, but the fact the government can still produce a bill for emergency use, and make statements like the above when a measure they want is defeated, shows there’s still some life in it.

Moreover I fully expect the measure to be included in Labour’s next general election manifesto. The government hasn’t admitted they’re wrong, they’ve simply decided to accept the battle is lost at this point but they still clearly hope to use the issue to their advantage later on. In the run up to the election, I fully expect them to attack the Tories and the Lib Dems for being soft on terrorism for opposing these measures. Nailing the lie that opposing attacks on civil liberties means being soft on crime or soft on terrorism will thus be the key to ensuring that whoever wins the next general election stops using draconian legislation as a stick to beat the opposition with.

On the consequences of the European Arrest Warrant

Update: In the original version of this article, I wrote that the European Arrest Warrant allows for extradition to take place if the offence is punishable by 1 year or more in prison in the country requesting extradition. This is only true if the offence exists in both jurisdictions, i.e. if dual criminality applies. As section 64(2) of the Extradition Act 2003 makes clear, extradition where there is no dual criminality requires the offence to be punishable by 3 years or more in prison. I have altered the article to correct this. Apologies for the mistake.

On the 1st October, Dr Frederick Toben, an Australian citizen, landed at Heathrow Airport whilst on a journey from America to Dubai.

He did not complete that journey.

Instead, he was arrested via a European Arrest Warrant, on a charge of ‘holocaust denial’, at the behest of the German government.

I strongly disagree with this man’s views, but he has as much right to express his views as I do. I am opposed to making holocaust denial an offence for the simple reason that it is contrary to freedom of expression. I also think it is wrong to prevent people, by law, from expressing scepticism or doubt about the generally accepted accounts of an historical events, since there is no guarantee that those accounts have managed to capture all the evidence surrounding those events or evaluate it fully and objectively. The best guarantee one can have is to allow people to make their arguments and to test each other’s arguments. Outlawing the expression of points of view that are in opposition to an officially accepted view means you hinder further advances in knowledge about the subject matter, not because the outlawed points of view are correct but because the debates and challenges that arise from allowing them to be expressed may lead to new insights or new evidence being discovered. Making an official point of view sacrosant turns history into dogma.

But this case is not merely about freedom of speech, or freedom of historical enquiry. It is also about the rule of law, and there are no British laws against holocaust denial.

So why has Toben been arrested? Because:

  • Toben runs a website that denies the holocaust happened.
  • Britain signed up to the European Arrest Warrant (EAW), which allows for fast-track extradition between EU states without any evidence being presented to the courts of the country performing the extradition and where there is no requirement that the conduct be an offence in both countries. The conduct needs only to be an offence in the country requesting extradition, so long as the offence falls into one of a broadly defined set of categories, and is punishable by 3 years or more in prison; Toben is apparently facing upto 5 years in a German prison.
  • With the internet, many countries, Britain included, are applying the principle that once someone downloads material in a particular jurisdiction (e.g. by reading a web page with their browser), that material has been published in that jurisdiction. Germany will therefore be claiming that Toben’s website has been published in Germany, even though he runs it from Australia, where there are also no laws making holocaust denial an offence, and thus that Toben committed an offence falling under the “Racism and Xenophobia” category that enabled them to request extradition under the EAW in the first place.

If Toben is extradited, then it will confirm that anyone (who is accused of) publishing, on the internet, any articles questioning the holocaust could be extradited to Germany from any other EU country without their local courts even getting a chance to see any evidence against them, regardless of whether their internet publications were legal in their own country or the country where the website is run from.

More generally, it means that one’s internet publications are effectively subject to the union of all the laws applying in the EU, where the offence is punishable by 3 or more years in prison, and which fall under the “Racism and Xenophobia” banner or any of the other 31 categories (e.g. “computer-related crime”), and you could be extradited to any other EU state on the accusation that your publication violated those laws. Anyone living in or travelling through any EU country can potentially be targetted with this legislation.

Amnesty International’s petition against “42 days”

Posted by James Hammerton @ 12:16 pm on .
Categories democracy and the rule of law, British politics.
Edit This Permalink to this article

[Hat tip: UK Liberty]

Amnesty International have launched an online petition against the British government’s proposals to allow people to be detained for up to 42 days without charge if they’re suspected of terrorism. At the time of writing, it has 2856 signatures.

Meanwhile, The Times is reporting that the government have decided not to use the Parliament Act should the 42 days proposal be defeated in the House of Lords. The Counter Terrorism Bill returns to the Lords later this week.

Peter Clark and “the surveillance society”

Posted by James Hammerton @ 5:42 pm on 14 September, 2008.
Categories privacy and surveillance, democracy and the rule of law, British politics.
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Peter Clark, writing recently in the times, argues that “the surveillance society” has enabled the conviction of several people plotting to set off bombs, created out of liquid explosives and disguised as soft drinks:

We have what is probably the most effective counter-terrorist machinery in the world. The organisations involved have been at full stretch for years, and despite the gainsayers, the legal and ethical standards of the counter-terrorist effort are incredibly high - the British public demands and deserves no less.

They also deserve a better quality debate about the relationship between individual liberties and collective security.

Take this case. To save the lives of the innocent and convict the would-be killers we used all the tools in the security armoury. Deeply intrusive surveillance, informants, CCTV, DNA, telephone call data and so on. This was not about collecting information for its own sake - it was to secure evidence to put before a court.

Some critics fail to understand that sophisticated, modern evidence gathering has allowed the most complex terrorist conspiracies to be tried in our criminal courts in front of a jury. No need for military commissions or the juryless Diplock courts of Northern Ireland.

The series of terrorist convictions in recent years has been a victory for the rule of law and sends out a strong, positive signal to all communities. But it couldn’t have happened if things that used to be buried deep in the world of intelligence were not now brought blinking into the light of the courtroom.

And what if we had failed? What if the prosecution case was right, and half a dozen American airliners were to be brought down by British terrorists, operating from Britain and in effect using the UK as a launch pad for an attack on the United States? What would have happened to the UK and indeed the global economy? What would the impact have been on UK/US relations? What about the pressure it would have placed on Muslims in the UK? A very senior politician, at the time of the arrests, told me he thought it could have led to a breakdown in the community cohesion that had survived the attacks in 2005.

So let’s remember the benefits of the “surveillance society”. We should draw satisfaction that due to terrorist convictions in our courts, thousands of people are alive today because those who wanted to kill them could be bugged and burgled - within the Rule of Law and for the common good.

The problem with this argument is simple. Peter Clark is not talking about “the surveillance society” at all. He is talking about targetted surveillance against those whom the police have reason to believe may pose a serious threat.

I have no problem with “all the tools in the security armoury” being used to investigate those whom the authorities have reason to believe are up to no good, so long as safeguards are in place to ensure such intrusive surveillance really is directed against such people and isn’t abused. Clark and I might have a real argument about precisely what those safeguards should be, but that is beside the point. The point is that Clark is conflating targeted surveillance with “the surveillance society”, the latter of which involves routine mass surveillance of the general public. Such routine mass surveillance is completely unnecessary for the sort of targetted surveillance Clark is talking about and is not supported by the successes of surveillance targeted against suspected terrorists.

UK Liberty also has some good comments on Clark’s article.

Google mapping Britain’s erosion of civil liberties

[Hat tip: UK Liberty]

This looks like an interesting project

EU-wide powers for “trial in absentia” proposed

Posted by James Hammerton @ 9:41 pm on 3 September, 2008.
Categories democracy and the rule of law, British politics, European Union politics.
Edit This Permalink to this article

[Hat tip: abelard]

The Times reports:

British citizens could be convicted in their absence by foreign courts for traffic, credit card or other criminal offences under plans approved in principle by the European Parliament.

The proposals would allow citizens to be extradited automatically under fast-track procedures at the request of another European Union country on the basis of a decision by the foreign court.

The overwhelming adoption by the Parliament of the proposals, which now go to the Council of Ministers, was condemned yesterday as “throwing habeas corpus out of the window”.

Philip Bradbourn, the Conservative justice and home affairs spokesman in the European Parliament, said: “This initiative would enable courts to pass judgments in absentia. It goes against one of the most fundamental corner-stones of British justice – that the accused has a right to defend himself at trial. If other EU countries want to go ahead with this proposal that’s their choice, but the British Government should have no part [of it].”

The proposal has been put forward by seven EU countries, including Britain, to strengthen procedural safeguards in the European Union and mutual recognition of processes in criminal proceedings. Countries can opt out from the proposals even if they are adopted by the Council of Ministers.

Thus you could be tried and found guilty in another EU country and the first you’d know about it is when the fast-track extradition warrant is served against you. Note that EU states can extradite people under the European Arrest Warrant without any evidence being presented to the courts of the country that the person is being extradited from.

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