European Constitution v Prevention of Terrorism Act

I was looking at the European Constitution and came across this:

"Part II

Title VI: Justice

Article II-107: Right to an effective remedy and to a fair trial

Everyone is entitled to a fair & public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Article II-108: Presumption of innocence and right of defence

1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed."

As EC law overrides UK law (European Communities Act 1972), could this be used to get rid of the Prevention of Terrorism Act 2005?

Also as Labour got rid of the idea of double jeopardy (Criminal Justice Act 1999) could the following be used to bring it back?

"Article II-110: Right not to be tried or punished twice in criminal proceedings for the same criminal offence

No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law."

yes and yes. But then I'm not a lawyer.

But if there's any lawyers out there who specialise in EC law I'd be interested in their opinion...

Bloody foreigners tellin' us how to run our lives! ;-)

UK legislation that Bliar & co would wait until the ruling against them, and then come up with something equally bad or worse to replace it. :-)

The government would, no doubt, argue that the judicial appeal counts as an impartial tribunal, and I think it unlikely that a court would throw out such legislation.

That said, I certainly say it's worth a try (even though I'm no Europhile).

You raise an interesting point because in passing the the Prevention of Terrorism Act 2005 the government used powers in the Human Rights Act 1998 to derogate from the European Convention of Human Rights.

The European Constitution has not been adopted by the UK although all parties are committed to a referendum on that question. In the unlikely event that the vote went in favour there would be a statute of incorporation by which it would then form part of English Law. Having as its source a European treaty you are right that European Constitution would be binding under s2 European Communities Act 1972.

The provisions that you cite from the Constitution, however, refer to persons who are 'charged' with an offence. The purpose of the 2005 Act is to allow for the making of 'control orders' against persons who are not charged with an offence and brought to trial but whom it is thought present a danger to the public through the risk of terrorism.

The short answer to your question, in my opinion, is that the Constitution could not be used to get rid of the Prevention of Terrorism Act 2005. It is true that there could be contrary arguments about the meaning of the word 'charged' but it would take an imaginative interpretation by the judges for it to include persons detained under a control order. My initial reaction about the double jeopardy rule is that the Constitution, if adopted, would take precedence over anything in the Criminal Justice Act 1999 that purports to remove it.

keymaker

but 107 is about a general remedy to violations of rights.



and, as an example of a right that the control order would violate:


I'd imagine the restrictions on communication and association would violate rights too, though I haven't looked for them in the Constitution yet.

So there has to be recourse to a public hearing, at which you can be defended (which would presumably mean knowing the reasons for the restrictions placed on you).

To "encourage" us to vote in favour of the Constitution? ;-)

I was only really commenting on the provisions english guy cited on the assumption that the Charter would be accepted without qualification although I admit that the wording of my conclusion was ambiguous in that respect.

Since the Constitution has not yet been adopted one can only speculate about the terms upon which the UK might accept it into law in particular with regard to the interpretation of Charter principles. Accepting it without qualification is one thing but it is likely that the UK has already imposed, or will impose as a condition of acceptance, its own requirements for the interpretation of Charter principles so as not to derail the will of Parliament with regard to national security. As to Arts II 107 and 105 I would comment as follows:

Art II 107

Compensation after violation would not per se impede the working of the 2005 Act;

Legal Aid is available to those who are the subject of control orders;

Entitlement to a fair and public hearing is the key provision. Under s4 2005 Act derogating control orders can only be made by order of a court initially by way of a preliminary hearing but s4(2) provides that:

"The preliminary hearing under subsection (1)(a) may be held-
 
(a) in the absence of the individual in question;

(b) without his having had notice of the application for the order; and

(c) without his having been given an opportunity (if he was aware of the application) of making any representations to the court;

This would seem to conflict with Art II 107 but it is here that the UK will probably insist on rules of interpretation of Charter principles that are compatible with the requirements of national legislation on matters of national security.

Art II 105

This refers to every 'citizen' of the Union so there would be no protection of a foreign national from outside the Union.

Insofar as the detained person was a citizen from within the EU, again, rules of interpretation of Charter principles could make restrictions on liberty, as opposed to an outright denial, permissible under the 2005 Act. Obviously such rules of interpretation would have to be tested in the courts so the outcome at the moment is speculative.

keymaker

Criminal Justice Act 2003 (they've passed so many of these it's easy to get 'em mixed up!)