The threat of terrorism versus the presumption of innocence

The most basic legal precept is: 'It is better that ten guilty persons escape than that one innocent suffer.' Otherwise known as 'the presumption of innocence.'

Western states safeguard the human right of their citizens to walk free. For example, US police are obliged to give a Miranda warning to all suspects. In 1996, the US Supreme Court overturned a conviction due to the omission of this warning (Miranda v Arizona). Police officers have since been advised not to give the Miranda warning to deaf persons unless a lawyer is present.

Many Americans have vilified the presumption of innocence, arguing that the world has changed since 9/11. The civil liberty of walking free is undermined by the zeal of those who do not care about fair and lawful detention of citizens.

Delivering a speech on 21 May 2014 in reaction to the nomination of the now United States Circuit Judge David Barron to the federal appeals court, who once drafted legal memos which proposed justifying using unmanned aerial drones to kill American terrorism suspects overseas, US senator and Republican presidential hopeful Rand Paul said: 'We've gone from "you have to be proven guilty beyond a reasonable doubt" to an accusation being enough for an execution. I am horrified that this is where we are… we need to ask ourselves: how precious is the concept of presumption of innocence?'

The UK has put in place many controls to protect an individual from being deprived of their liberty. For example, section 24(2) of the Police and Criminal Evidence Act (PACE) 1984 obliges a constable, among other measures, only to arrest a citizen if the constable has 'reasonable grounds for suspecting that an offence has been committed'.

Objective justification is also essential for a lawful arrest, as held in O'Hara v Chief Constable of the RUC [1997] AC 286. The plaintiff sued for damages for false imprisonment and the defendant pleaded the arrest was lawful under the above section. The House of Lords dismissed the appeal with Lord Hope stating: 'The suspicion is reasonable if an objective independent observer, knowing no more or less than the arresting constable did, would have formed the same suspicion.'

In the aftermath of September 11, senior UK police officers did not show great adherence to the idea that innocent citizens should not be deprived of their liberty in the zeal to catch actual terrorists. When Tony Blair started rallying for what is now the Terrorism Act 2006, under which detainees can be kept for up to 90 days, Ken Jones, the then chairman of the Association of Police Officers Terrorism Committee, said: 'When we looked at other police forces around the world one thing was spotlighted - that we had a short time to question a suspect before charging.'

It is axiomatic that to keep a suspect in detention for a long period can never be a commendable feature of any good legal system. The UK cannot hold out that its legal system is a cut above other regimes when it does not respect the Rolls Royce presumption of innocence principle, and its police officers are keen to copy a widely deplored practice of foreign forces - keeping a suspect in detention without charge for a long period.

Dr Amir A Majid is a barrister and professor in Human Rights and Disability Law at London Metropolitan University

www.londonmet.ac.uk

'Mission creep' and the erosion of the rule of law

Dr Majid is very much on point with the issues he raises and in alerting us to the 'creep' which has taken place in the US and the UK on human rights since 9/11. While politicians may 'reassure' us that measures such as control orders and TPims (Terrorism Prevention and Investigation Measures (TPIM) Act 2011) were introduced to protect the innocent from such atrocities that were seen in New York, London, and Madrid, the erosion of the rule of law and concepts which are supposed cornerstones of a 'good legal system' is alarming as it is relentless.

It would be disingenuous to lay the blame entirely at the door of parliament, as the fear and perception of the risk posed to this state by terrorism is perpetuated in the media. A quick internet search for 'Britain' and 'Syria' reveals that 'Britain faces growing threat from 350 jihadis back from Syria who may be plotting attacks in the UK' (Daily Mail, 14 May 2015) and that 'British girls in Syria face being passed among Islamic State men at a rate of "one a week"' (Daily Express 17 March 2015). Delve much deeper into the perceived threat that ISIL poses to the UK and our much heralded 'British values' and you would be forgiven for undertaking a full threat risk assessment before venturing out of your house.

My own research among 16 to 18-year-old Sheffielders (sample size 40) on counterterrorism strategies was telling in its absence of any criticism expressed towards this creep. The participants were from a broad range of ethnic and demographic backgrounds. While some were able to articulate the risk of racial profiling, none expressed a fear that their own rights as UK citizens were being chipped away at. Indeed, some 60 per cent also explained that the detention of those suspected of terrorism-related offences 'keeps us safe'.

As with any such research, the data is limited by the number of its participants, but there was a noticeable sense that those coming of age in a post-9/11 world have been conditioned, simply to accept that the benefits of a counter-terrorism strategy which robs Peter to pay Paul is acceptable if it saves us from the terrorist.

It is difficult to see any way back from the very real and accurate presentation of the state of play of rights in Britain by Dr Majid. While the situation in Syria and Iraq continues to descend into such a desperate human tragedy, having arguably been stoked by Western intervention/non-intervention, the press will continue to make hay on such stories and, for fear of attack, the Rolls Royce principle of protecting the innocent is very much parked in the garage.

James Carson is senior lecturer at Nottingham Law School and a member of its Centre for Conflict, Rights and Justice

@LawNLS

www.ntls.ac.uk

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