Human Rights, Serious Crime and Criminal Procedure - College of ...

Why bother with Rights when Public Safety is at risk?5 in respect of the anti-terrorism legislation, citing the NorthernIreland conflict as a "public emergency threatening the life ofthe nation" under Article 15. 85 The position has been changed bythe Terrorism Act 2000 in two major ways: first, althoughdetention of suspects for seven days without charge remainspossible, there are provisions requiring the detainee to bebrought before a judge and allowing representations from thedefence—provisions which may or may not satisfy Article 5 ofthe Convention; and secondly, the definition of terrorism isbroadened considerably by section 1 of the 2000 Act so as tocover a wide range of acts of violence or property damagemotivated by ideological causes. 86 In the wake of the events ofSeptember 11, 2001, the Government has again entered aderogation from Article 5 in respect of the extreme measure ofdetention without trial, introduced as part of the package ofmeasures in the Anti-Terrorism, Crime and Security Act 2001.The need for this, and its lawfulness, are both contestable. 87 Thepossible problems do not end there. There is the further dangerthat exceptional powers of this kind will be extended to otherforms of serious crime, a possibility rendered all the more realby the elastic definition of terrorism in the 2000 Act.6. The right to release pending trialOnce a person has been charged and brought before a court,there should be a right to release before trial. It would fail torespect the presumption of innocence if people could lose theirliberty merely on the basis that they have been charged bypolice and prosecutors with an offence. Deprivation of liberty isfundamentally problematic, as Article 5 or the European Conventionestablishes. There are exceptions to the prohibition ondeprivation of liberty, one of which arises after conviction andsentence by a competent court, but the right to bail, i.e. to releasepending trial, is less strong than most of the other rightsconsidered here, since it is widely recognised that it should giveway to particular "public interest" considerations. Althoughthese considerations vary somewhat from country to country,four of them have been recognised by the European Court ofHuman Rights—the risk that the accused will fail to appear fortrial, a reason connected with the proper functioning of thecriminal justice system; the risk that the accused will interferewith witnesses if released, a reason which calls for the protectionof victims and other witnesses, 88 as well as supporting theintegrity of the system; the risk that the accused will commitserious offences if released, a reason which seems to derive from30