Terrorism

Question 0

Gross and Ni Aolain

Answer 0

Three models of deference to the judiciary:
‘Accommodation model’ - Middle ground
‘Business as usual’ model - no extra deference
‘Extra legal measures’ model - complete deference but so that once peacetime is restored ‘normal’ is restored (Cicero, Locke)

Question 1

Lawless, Ireland v UK, Brogan

Answer 1

Following the a Troubles in NI the Terrorism Act was passed during a time of relative peace, but when 9/11 happened the ‘draconian’ ATCSA was rushed through

Question 2

Chalhal v UK

Answer 2

Where it is not possible to deport, a ‘real risk of torture’

Question 3

Home Secretary v Rehman (deportation order)

Answer 3

Lord Hoffman declared that the SIAC had taken too narrow a view of national security and it was not confined to the UK

Question 4

Belmarsh (HRA)

Answer 4

Government lost 8:1 Hoffman dissenting - they held that there was indeed a public emergency but the Commission had concluded without justification and that it was disproportionate - e.g. What about UK nationals?

Question 5

Torture Evidence (CL)

Answer 5

No, the SIAC could not admit evidence procured by torture - there was a constitutional principle bolstering this - they should weigh up on the civil standard whether they think it has been procured by evidence and if there is any doubt then they should not admit it

Question 6

Liversidge v Anderson

Answer 6

Lord Steyn criticised extra judicially ‘the courts must never, on constitutional grounds, surrender the constitutional duties placed upon them’

Question 7

JJ

Answer 7

Under the new act - TPIM Notices - an 18 hr curfew was contrary to art 5 of the convention but 12-14 hrs was okay

Question 8

E

Answer 8

12 hour detention did not equal deprivation of liberty

Question 9

MB

Answer 9

Very confused judgment - all four judges gave a different approach to fair process and in the case of AF in the CA they held that there could be a fair trial with none or virtually no information known to the D

Question 10

A v UK

Answer 10

The ECtHR unanimously held that the ATCSA regime breached Art 5 of the Convention - they criticised MB and the control orders cases (JJ, E, MB, AF) and suggested a ‘fairness of outcome’ test rather than a ‘procedural fairness’ test - full level if Art 6(1) should have been given off criminal proceedings

Question 11

Abu Qatada

Answer 11

The SIAC were entitled to deport AQ and the HL didn’t need to look at closed material to ascertain this

Question 12

Othman (AQ) v UK

Answer 12

No, the UK could not lawfully deport AQ as he would not get an Art 6 fair trial - ‘flagrant denial of justice’ - real risk of torture evidence cf A(No.2) also

Question 13

Mohammed Jabar Ahmed

Answer 13

UNSC resolution that MS must take steps to freeze assets of the Taliban and its associates and other international terrorists - unable to know the basis for the reason why they were included nor could they appeal

Question 14

Al-Rawi v Security Services

Answer 14

They could not expand the CL to allow closed material procedure

Question 15

Binyam Mohamed

Overruled by R (Omar) v Foreign Secretary

Answer 15

Here they looked at the balance between national security and open justice, they came down on the side of the latter

Overruled

Question 16

Justice and Security Act 2013

Answer 16

‘Closed material procedure represents a carve out from basic principles of equality of arms and open justice’ per Hickman