Law faculty of the

Belgrade University

COUNTER TERORISM ACT (2008) AND HUMAN RIGHTS

IN THE UNITED KINGDOM

Written and translated by

Slobodan Trivić

Belgrade, March, 2009.

TABLE OF CONTENTS
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić

1. Definition of terrorism, and its legal manifestation 3

2. The term of human rights and their relevance 4
3. Counter Terrorism Act 2008 6
4. Conclusion 9
5. Literature and fontes cognoscendi 10

pg. 2
 1. Definition of terrorism and An effective way of fighting

its legal manifestation against terrorism has not been found yet,
not even in the most developed countries
of the world, out of many reasons, such as
errorism represents every kind

T
social –
of act, made by an armed force
that, made for a political,
philosophical, ideologist or
insufficient control measures of the social
system, and the confrontation of these
measures with the basic human rights and
liberties, guarantied by the highest law acts
religious cause, violates among human
of all countries. Even the international
rights those which forbid the use of
institutions (ICC3, for example) are not
barbaric means, assault on innocent
capable to react properly in these cases,
civilians, or on targets which have no
because terrorism is not clearly defined,
military relevance.1Even though we can
and that problem has been left on every
point out numerous cases through the
individual state to handle it through its
history of mankind under this very
own criminal law system. It seems
concept, beside all their specifics, there is
impossible establishing that kind of system
one common consequence that is their
of control and surveillance of citizens for
essential attribute – general danger for an
their own safety, and not violating some
undefined number of citizens. The term
kind of basic human rights of these people.
terrorist act implies generally on acts of a
From a legal point of view, every citizen
political fight, which consists in usage of
of the state is entitled to certain rights,
extreme violence towards innocent people2
which guarantee him safety from the
(bomb attacks, airplane hijack, taking
potential harm of the state; but in reality,
hostages, etc) after which the consequence
there are other dangers (terrorist act, for
is imminent – great number of civilian
example) where the state has to protect its
casualties gets sacrificed for the cause of
citizens, under all costs.
extremist beliefs of the terrorist groups
This is the essential issue of this
which today represent one of prior issues
seminar essay, the confrontation of basic
of the modern society.
human rights & liberties and common
safety.
1
E. David, Le terrorisme en Droit international, pg.
125, taken from JAKOVLJEVIĆ Dušan, Terrorism
from the aspect of criminal law, Sluzbeni list SRJ,
3
pg. 45 International Criminal Court – an international
2
G. Pontara, Violenzia e terrorismo, Milano, 1979, court that acts ad hoc in cases of criminal acts
taken from JAKOVLJEVIĆ Dušan, Terrorism from between individuals from different states, or
the aspect of criminal law, Službeni list SRJ, pg. 46 between the states themselves
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić

2. The term of human rights developed these values to unseen

and their relevance proportions.7

For these rights to have an
influence in reality, not being just a “word
The term of human rights implies
on a piece of paper”, there must be an
to the corpus of rights and liberties
adequate organ, as in the state (the
provided by the formal constitutional act
Constitutional or the Supreme Court), so in
and international documents, which have
the international level (European court of
the protection against the acts of the
justice), which is ought to reverse all acts
legislative and the executive power.4Every
of the state which violate these rights. For
citizen, in the legal system in which he is
this, we can group human rights in two
the subject of rights, is entitled to (by the
major groups, vital in the interpretation oh
constitutional act and the international
human rights.
documents) certain rights which are made
Absolute human rights can never
further goal of protecting that individual
be restricted by the state in a legitimate
from the potential harm from the state. The
way; and are necessary to be respected by
idea of human rights draws its roots from
the state at all times and under all
the antic times, starting from the teachings
circumstances. They have a double
of sophists5 and, later on,
normative effect: they provide certain
stoics.6Nevertheless, the realization of this
authorization of one side (the citizen in
idea came to its full accomplishment in the
this case) to demand certain action or
1948, when the General assembly of the
abstention from the other side (the state in
United Nations adopted unanimously the
this case); and in the same time, the basic
Universal Declaration of Human Rights
justification of restriction of these rights
(UDHR in the following), and set the
(extraordinary state, protection of public
foundations for the future international
interest, protection of rights an liberties of
multilateral conventions which have
others, for example) is not allowed, what

4
makes them different from relative human
MIJATOVIĆ, Boško, Lexicon of liberal
democracy, CLDS, Belgrade, pg. 91. rights.8European Convention for the
5
“… for, all of us are made equal, the Greeks and
the barbarians, by the nature of things … we all protection of human rights has provided
breathe the same air and eat the same food with out
own hands.” (Antifont), VEJNOVIĆ Nevenka,
7
History of philosophy, Zagreb, 1970, pg. 130. PAUNOVIĆ, Milan, Fundaments of international
6
“By nature, no man is a slave… Let masters not human rights, Megatrend University, Belgrade,
treat the bought slaves as slaves by nature, but as 2007.
8
workers. “(Philon), VEJNOVIĆ Nevenka, Zagreb, MIJATOVIĆ, Boško, Lexicon of liberal
1970, pg. 149. democracy, CLDS, Belgrade, pg. 12.

pg. 4
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić
the following absolute human rights: right
to life 9(meaning the prohibition of death
sentence), prohibition of torture and cruel,
inhuman or degrading treatment or
punishment (Article 5, UDHR),
prohibition of slavery or servitude10,
prohibition of the ex post facto law11,
including the rule of ne bis in idem12,
prohibiting a retrial for cases which have
already been decided by the court.
Relative human rights can be
restricted by the state under certain
conditions (extraordinary state, protection
of public interest, rights and liberties of
others). There are three conditions13 under
which state has to satisfy to have a legal
justification in order to restrict certain
rights: the restriction has to be provided by
the law, in order of protection of a
legitimate cause, which has to serve the
public interest and its necessity in the
democratic society.
Mentioned legal norms, as the
conditions of a justified restriction of
human rights, represent the process of
9
Everyone has the right to life, liberty and the
security of person. (Article 3, UDHR)
10
No one shall be held in slavery or servitude;
slavery and the slave trade shall be prohibited in all
their forms. (Article 4, UDHR)
11
A law that retroactively makes criminal conduct
that was not criminal when performed, increases
the punishment for crimes already committed, or
changes the rules of procedure in force at the time
an alleged crime was committed in a way
substantially disadvantageous to the accused.
12
Not twice on the same thing (Roman law
principle)
13
MIJATOVIĆ, Boško, Lexicon of liberal
democracy, CLDS, Belgrade, pg. 162.
affirmation whether the state’s
intervention is justified or not. First, the
intervention goes through a review where
the authorized body determines whether
the intervention was provided by the law
or not. If the result shows that the
intervention was not provided by the law,
the rights have been violated, and the
intervention suffers adequate sanctions.
But if it turns up that the intervention
made by the state was provided by the law,
and by the law, follows the check whether
the intervention was made in order of the
protection of the public interest, and in the
end of the process, the authorized organs
of the European Commission are
authorized to review the necessity of the
intervention in the democratic society.14
In the case Malone v. United
Kingdom, 1984, which had been solved by
the European Court of Justice, the dispute
was made over the regulation of the
telephone surveillance in the UK, where
the authorities were tapping telephone
calls. The regulations were reversed for the
reason of not being provided by the law.
“It would be contradictory to the rule of
law when the freedom of estimation, given
to the executive power, would be implied
as an unrestrained liberty. Out of this the
result is that the law has to set clearly
14
PAUNOVIĆ, Milan, Fundaments of international
human rights, Megatrend University, Belgrade,
2007.
pg. 5
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić

enough the borders of free estimation, matter of terrorism attacks, where the army
given to the authorized organs, and the helped in controlling these situations). The
way it is used, having in mind the legal Emergency Provisions Act has been
aim of a certain measure, and as to give to substituted by Prevention of Terrorism
the individual enough protection from its Act, in 1976, 1978, and 1984, which was
arbitrary interference.15 The verdict of this issued for the whole country,
case clearly shows the potential danger of encompassing the efficiency of the
the state’s intervention, restricting some legislation’s work on preventing terrorism
human right, because in that way it walks in the UK.
on a sharp edge, between the justified Content of the Counter Terrorism
intervention and the misuse of its Act (2008) – This Act is not the first one
authorities. to “make provision about terrorism; and to
make temporary provision for the Northern
3. Counter Terrorism Act 2008 Ireland about the prosecution and
punishment of certain offences, the

The legislation’s works on preservation of peace and the maintenance

prevention of terrorism in the UK – The of order.”17 After the terrorist attack in the

problem of terrorism emerged in the UK in USA (September 11th, 2000), the

the early 70’s, with the founding of the government in the UK, fearing that the

IRA16 in the Northern Ireland. After a same thing could happen in their own

number of serious terrorist attacks the backyard (July 7th bombings in London

government carried out the Emergency that killed 56 people, including four

Provisions Act, in 1973, issued specially supposed suicide bombers) issued the

for the territory of Northern Ireland. By Terrorism Act in the same year, on the 20th

the Act, the lawmaker’s intent was to of July, giving broad authority to the

initiate a legal fight against terrorism, by police and other security organs. This Act

transferring the jurisdiction from the lasted until recently, when the newly

military courts to special courts (because, formed government, under the leadership

until the Act came to force, the military of Gordon Brown, made a project of a new

court intervened, giving the verdict on the Act, much radical in fighting terrorism
than the previous one did. The Act was
15
Malone v. United Kingdom (1984), verdict of the
European Court of Justice
16
Irish Republican Army – militant organization
which demanded the secession of Northern Ireland,
17
and its joining to the motherland Preamble of the Terrorism Act 2000, Chapter 11

pg. 6
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić
adopted by the House of Commons on the
12th of June, 2008.
The Act incriminates a statement
that is likely to be understood by some or
all the members of the public to whom it is
published as a direct or indirect
encouragement or other inducement to
them to the commission, preparation or
instigation of acts of terrorism
Convention offences (Chapter 11, Part 1,
Section 1, Article 1, Terrorism Act 2006).
So, in fact, every kind of “glorification” of
a terrorist act is incriminated, and every
person who does so, can expect a jail
punishment in duration up to 7 years
(Chapter 11, Part 1, Section 2, Article 13,
Terrorism Act 2006).
The problem regarding this is the
confrontation with Article 10 of the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
which says that everyone has the liberty of
expressing his/her statement. This right
includes the liberty of having
appropriate thinking, receiving
expressing information and ideas without
the interference of the public organs, no
matter the boundaries. Even though the
confrontation is evident, it is
important to look on the other part of this
article that says “since the usage of these
rights and liberties carries with it the
responsibilities and obligations, it can be
put under certain formalities, conditions,
restrictions or penalties provided by the
law and the necessity in the democratic
society in the interest of the national
security, territorial integrity or public
safety, for preventing disorders or criminal
activities, protecting public health and
morals, protection of reputation or rights
of others, prevention of revealing
or confidential information , or for preserving
the authority and the objectiveness of the
judiciary power.”18 As we can see after the
more inside check, this is a relative human
right, therefore this confrontation looses its
sharpness, for there really is the provision
of the law and the necessity in the
democratic society for the restriction of
this kind.
The Act extends police powers to
hold terrorists from 14 days up to 28 days
without charge (Chapter 11, Part 2, Article
23, Terrorism Act 2006) which violates the
Article 5, State 2 of the Convention that
says “everyone who is arrested will be
an immediately and in the language which
and he/she understands informed of the reasons
for his arrest and of the charge made
against him/her.” This also represents one
of the biggest issues, because the time
very given to the police powers to hold in
custody the suspect definitely is not
reasonable, and the fact that the suspect
18
Article 10, State 2, European Convention for the
Protection of Human Rights and Fundamental
Freedoms, 1950
pg. 7
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić
can be held in custody for so long (even
besides the presumption of innocence19) is
intolerable because it violates the safety of
every suspected individual, guaranteed in
the Article 5, State 3, that says “everyone
who is arrested or deprived of liberty will
be without further delay taken in front of
the judge or some other authorized person
to carry out the hearing procedure, and
will have the right to a quick and in
reasonable time made trial.” This part
regarding reasonable time within which
the procedure has to be made by the
authorized organ is the most sensitive one
because the Convention doesn’t recognize
any minimal standards regarding this
issue.20 Practice of the European Court of
Justice in Strasburg has also shown that
there is no unique deadline that should be
respected, but it carried out verdicts based
on the conditions under which the case had
happened. With this fact, we can conclude
that the arrest is the exception from the
right to freedom, but there have to be
certain strong reasons that could justify
this kind of action by the police powers.
The Act also prohibits eliciting,
publishing, or communicating information
21
about members of armed forces etc what
19
Everyone who is charged for a criminal offence
is to be regarded innocent until proven otherwise
(Article 6, State 2, of the Convention)
20
DIMITRIJEVIĆ, Vojin, Belgrade center for
human rights, Belgrade, 2006, pg. 174.
21
Chapter 28, Part 7, Article 76, Counter Terrorism
Act 2008
represents an extension of the earlier Act
from 2000.22
Certainly, the most contra verse
part of the Act, which has triggered
numerous debates in the British Parliament
and in the public, is the authorization of
the police powers to take fingerprints and
other information they consider important
(DNA, for example) from the person for
who had been issued a control order23,
without his/her consent or knowledge, and
these information can be stored in the
database of the authorized power as long
as it is necessary (Chapter 28, Section 10,
Article 1 & 2, Counter Terrorism Act
2008). Based on this authority, the police
had systematically taken information of
the protesters, mostly journalists, who
gathered to oppose the new antiterrorist
measures policy, on 6th of May this year.
All the data, mostly pictures, names and
video footage of the people attending
protests were routinely obtained by
surveillance units and stored on an
intelligence system, without their
knowledge, regardless whether they have a
criminal record or not, which violates
22
A person commits an offence if he collects or
makes a record of information of a kind likely to be
useful to a person committing or preparing an act
of terrorism (Chapter 11, Part 4, Article 58,
Terrorism Act 2000)
23
Control order is an order issued from the
Secretary of Inner Affairs by which the rights and
freedoms of the individual are restricted, for the
cause of protection of public interest and security
from terrorism, under suspicion of being in any
way connected to terrorism.
pg. 8
 Counter Terrorism Act (2008) and human rights in the UK, Slobodan Trivić
Article 8 of the Data Protection Act24, as
Corina Ferguson, Liberty’s legal officer
says. So, the consequence of this Act is a
found of an intelligence database about the
citizens of the state, without their
knowledge, regardless whether thy have a
criminal record or not, and even if there
are some evidence of their connection with
terrorism, what gives the police power
authorizations which violate the law.
The Act has fallen under serious
25
critics of he Selected committee , which
says that this Act makes a precedent for
unseen changes in the security surveillance
26
policy. Never the less, the House of
Commons has adopted the Act, and as a
countermeasure to the critics made
towards the government, stands the
statement of Prime Minister Gordon
Braun, who says that “the rules of the
game are changing”.
24
Subject to the following provisions of this
section and to sections 8 and 9, an individual is
entitled to be informed by any data controller
whether personal data of which that individual is
the data subject are being processed by or on behalf
of that data controller (Chapter , Part 2, Article 8,
Data Protection Act)
25
Selected committee is a committee assembled
specially from the chosen parliamentarians to
discuss and to solve a serious question made in the
Parliament
26
Discussion in the House of Lords, Surveillance:
Citizens and the State, April 2nd, 2009.
4. Conclusion
This kind of act, we would say,
could never come to force in the UK, the
founding country of human rights and
liberties, but if we scratch underneath the
surface, we would be able to see that the
legislative work of the Parliament in
preventing terrorism, starting from the
early 70’s to until now, is a result of a
“war” against terrorism that is coming to
its apex.
Today’s reality shows that the
legislature efforts of the states, which have
established their own system on certain
basic principles, are not competent to
make such acts of law with which the
safety of the citizens could be guarantied
without violating their essential rights and
freedoms. The essential problem in this
case is the confrontation of the
individual’s liberty versus the security of
the community, where the system goes to
extreme with restricting the first one for
the sake of the other. But the solution
certainly can’t be found by radicalizing the
law system, and getting to issue the basic
political principles every state’s system
rests on.
In conclusion, the UK state is
clearly showing its legal decadence, which
inevitable leads to a hidden totalitarianism
regime, utterly unacceptable in the world
of modern democracy and human rights.
pg. 9
 5. Literature and fontes cognoscendi

JAKOVLJEVIĆ Dušan, Terrorism from the aspect of criminal law, Sluzbeni list SRJ, 1997.
MIJATOVIĆ, Boško, Lexicon of liberal democracy, CLDS, Belgrade
VEJNOVIĆ Nevenka, History of philosophy, Zagreb, 1970
PAUNOVIĆ, Milan, Fundaments of international human rights, Megatrend University, Belgrade, 2007.

Office Public Sector Information (OPSI), http://www.opsi.gov.uk (Terrorism ACT 2000, Terrorism Act 2006,
Counter Terrorism Act 2008, Human Rights Act 1998, Data Protection Act 1998)