This Note addresses whether Britain's Criminal Justice (Terrorism and Conspiracy) Act (CJTCA), which permits police officer opinion testimony as to whether a terrorist suspect is a member of an illegal terrorist organization and allows adverse inferences to be drawn from that suspect's silence, can be reconciled with the fair trial provisions of the Human Rights Act (HRA). Part II of this Note describes the background of the CJTCA, concentrating on the reasons for its rushed passage and on the evidentiary changes it makes to trials of defendants charged with terrorist offenses. Part II describes the background and mechanics of the HRA, which incorporates the European Convention on Human Rights into Britain's domestic law. As the HRA directs British judges to refer to case law of the European Court of Human Rights for guidance, Part IV evaluates that tribunal's interpretation of Article 6 of the Convention, which guarantees the right to a fair trial. Specifically, this section examines decisions of the European Court of Human Rights and the British courts with regard to issues likely to arise in trials under the CJTCA, including the following: the right to remain silent, the right to cross-examine adverse witnesses, the prosecution's duty to disclose information, and the doctrine of "equality of arms." Part V applies the principles explicated by those authorities to the evidentiary provisions of the CJTCA, and assesses the soundness of the policy goals behind it. In this section, the author concludes that many trials under the CJTCA will run afoul of the HRA. Accordingly, the CJTCA should be repealed or given a very narrow interpretation by the British Courts. The author also concludes that the CJTCA will not advance the goals for which it was passed--reducing terrorist activity in the United Kingdom and bolstering the peace process in Northern Ireland.
Kevin D. Kent,
Basic Rights and Anti-Terrorism Legislation,
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol33/iss1/6