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Prevention of Terrorism

One of the key aspects of the most recent "Prevention of Terrorism" Bill that makes me feel that it is more about the government wishing to play to the crowd rather than actually act to reduce the threat of terrorism is its name.

It it had been called the "Control Orders" Bill or the "Reasonable Suspicion" Bill then opposing it could not have been skewed into a misrepresentation.

The typical misprepresentation is that voting against the "Prevention of Terrorism" Bill (or for amendments) gets conflated with not wishing to "Prevent Terrorism".

One of the issues under debate was the Standard of Proof that would be required. This is the level of certainty that the allegation is true.

The Burden of Proof means that it is the job of someone wishing to see a person suffer some detriment to justify that with evidence.

Normally in UK Criminal law the Standard of Proof used is "Beyond Reasonable Doubt".
For Civil cases the Standard of Proof is "On the balance of probabilities". Normally this is more likely than not expressed as on the "preponderance of evidence". Sometimes with more severe civil cases a sort of halfway house of "clear and convincing evidence" is used.

There are situations in which a lower level of proof is required. A "reasonable suspicion" (or reasonable grounds for suspecting) is the level normally needed before a member of the public can arrest another member of the public.

All that is needed for a "reasonable suspicion" is that someone alleges that another person is "involved in terrorism". There is no opportunity with this for the person being alleged to be involved to challenge the assertion.

This comes to the nub of the problem with Internment in Northern Ireland. A lot of people were imprisoned on false evidence. This then had the knock on effect of increasing the amount of disorder and intercommunal stress.

Tactics described as terrorism tend to be used in disputes that are between groups of people. Feudal disputes in the Middle Ages frequently involved kidnappings. The main change in the 20th and 21st century is that merely using easily available fertiliser can produce a big bang. The technology exists for small groups of people to harm larger gropus.

In particular terrorism tends to result from perceived injustices. In any tense situation one element of defusing the tension - a key part of resolution - is to ensure that actions are justified openly whereever possible.

The danger of using a "reasonable suspicion" for any form of action is that it will result in injustices where people have sanctions against them that are based upon malicious or other false evidence. For example the evidence used for the existance of Weapons of Mass Destruction in Iraq did give rise to a sufficiency for a "reasonable suspicion". The fact that some of the documents had been forged and other allegations were false does not mean that there was not a "reasonable suspicion". There was, however, not sufficient evidence on "balance of probabilities" - in retrospect.

To me the evidence on the "balance of probabilities" that the government are not serious about the underlying issue of "preventing terrorism" is that what they really need to do is to review the issues about the rules of evidence to ensure that they can protect witnesses that need protection.

One of the difficulties that exists in criminal prosecutions is that the identity of people who pass allegations to the police has to be disclosed to the defence even if the police do not intend relying on their evidence. This aspect of disclosure is something that really needs thinking about. It is circumvented by people passing information anonymously to the police. However, it is an issue that undermines the ability of the police to collate intelligence.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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KING’S BENCH DIVISION

R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

Editor’s comments in bold.

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