Law: A case of guilty until proven innocent

A High Court case is challenging the Prevention of Terrorism Act.
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HUNDREDS OF alleged criminals charged or already facing trial in the United Kingdom could be set free if a case which began in the House of Lords last week is decided in favour of three terrorist suspects.

The three Algerian men had their Old Bailey trial halted last year after it was claimed that parts of the Prevention of Terrorism Act (PTA) were in breach of the new human rights legislation. The case could be seriously embarrassing for the Home Secretary Jack Straw, who had to apologise last month when another of the men in the same case had to be released because of "technical defects" in the PTA.

The three - Sofiane Kebeline, Farid Boukemiche and Sofiane Souidi - are on bail charged with possessing chemical containers, radio equipment, manuals, documents and money in circumstances giving rise to a suspicion that they were connected with the commission, preparation or instigation of acts of terrorism. The Old Bailey was told last year that the three plotted to smuggle deadly chemicals in tins of baby food from London to Algeria for use in terrorism. They were allegedly members or supporters of Groupe Islamique Arme.

The fourth man in the case, Fateh Rechachi, was released after the Attorney- General ordered his case to be dropped because of a defect in the PTA. Hours later, Jack Straw told MPs of the error which means that certain provisions of the Act have not been in force since March 1998. He said he "wished to apologise for this regrettable error, for which I take responsibility". He said that there were "technical defects" in the drafting of orders in the annual renewal in March 1998 of the 1989 Act.

The case of the three currently before the law lords - the Director of Public Prosecutions vs Kebeline and others - is important for two other reasons. Firstly, it gives the law lords the chance to interpret terrorist legislation in light of the new Human Rights Act (HRA) in this country and, secondly, it will establish the status of the HRA in relation to all legislation in this country in the run-up to its implementation in October 2000.

Neil O'May, a criminal law expert at Bindman & Partners, believes that the case will have a huge impact on "hundreds of cases up and down the country." He said this was the first time that the courts were able to look at what kind of effect the HRA would have on the criminal law. "The PTA reverses the burden of proof so that you have to prove that you are innocent [not the prosecution that you are guilty]."

In Scotland, the HRA is already being tested. These first cases brought under the new devolution laws have raised concerns about the treatment of suspects in Scottish police stations and the right to a fair trial. The Scottish Crown Office reports about 50 cases have been brought under the new legislation since 20 May, when claims in respect of the European Convention of Human Rights (ECHR) could be filed in Scottish courts. They all include cases where the prosecution authorities are alleged to have contravened the ECHR. The majority raise concerns about a suspect's lack of access to a lawyer while being questioned at a police station and delays in bringing cases to court.

It is understood that the role of the Lord Advocate as head of the prosecution service as well as being a member of the Scottish cabinet is the subject of at least one legal challenge.

Christopher Gane, professor of law at Aberdeen University, said that the impact of Section 57 of the Scotland Act - which prohibits the executive and the prosecution service from doing anything incompatible with the European Convention on Human Rights (ECHR) - would lead to changes in the criminal law.

Scotland has introduced the ECHR 16 months ahead of England and Wales so that all its citizens can bring cases in their own courts rather than at the European Court of Human Rights in Strasbourg. Lawyers predict that the Scottish experience will be similar to that south of the border next year.