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

Evaluating the Strasbourg and British approacheswere alleged. On the facts the Court, differing from the majorityof the Commission, found no violations of the Convention.What is noticeable is that the Court began by stating:The Court sees no reason to depart from the general approach it hasadopted in previous cases of a similar nature. Accordingly, for thepurposes of interpreting and applying the relevant provisions of theConvention, due account will be taken of the special nature ofterrorist crime, the threat it poses to democratic society and theexigencies of dealing with it. 11This statement is followed by footnote references to the passagesfrom Brogan and from Fox, Campbell and Hartley discussedabove. 12 We have seen that those were cases in which the Courtwent on to find violations of the Convention, but it is instructivethat the above passage was cited by Lord Hope in Kebilene 13without reference to the earlier decisions, thereby giving theimpression that the Court's general approach was to allowcurtailment of rights in Article 5 and 6 where the prevention ofterrorism was the goal. That does not square with the evidencepresented here.The significance of the decisions in Brogan and Fox, Campbelland Hartley is difficult to assess. They can certainly be read asconfirming that any justifications which States may advance formore extensive powers against terrorists are likely to be dealtwith robustly when one of the strong rights, such as those inArticle 5, is in question. It is to be noted, however, that Article15 of the Convention does allow States to derogate from Articles5 and 6 in situations of "public emergency", and once thispower has been exercised the scrutiny of anti-terrorist measuresmay be less exacting. 14 Moreover, the Court in Brogan didrecognise that special considerations might apply to terroristcases, and this qualification may be said to have laid the groundfor subsequent decisions which have made certain concessionsto the anti-terrorism argument. 15 Nonetheless, the Brogan andFox decisions are also significant because in both cases theCourt, having recognised the need for special terrorist laws,found a violation of Article 5. 16 This should be sufficient todispose of the sceptical reading of the Klass decision underArticle 8, which depicted the Court as using words whichfavoured rights but reaching an outcome which favoured the"public safety" argument. In the two Article 5 cases, the Courtused words which recognised that the "public safety" argumentshould be accorded some force but reached an outcome whichfavoured rights.55