PROPOSALS TO LOWER THE STANDARD OF PROOF IN TERROR CASES ATTACK THE CORE PROTECTIONS OF CRIMINAL JUSTICE, ARGUES ROGER SMITH

David Blunkett's discussion paper, 'Counter-terrorism powers: reconciling security and liberty in an open society', came as a bit of damp squib.

It openly admits: 'We are not advocating any particular course'.

Never one to miss a moment, the home secretary had used an Indian train journey to tell The Guardian that he proposed enormous changes - for example, that terrorists should be convicted on the balance of probabilities.

Subsequently, The Guardian had shamefacedly to admit that there had been 'a change of tack', and quoted Mr Blunkett expressing his 'surprise' at the 'ferocity' of response.

Surprise, perhaps - disappoin-tment, surely not.

After all, following a tough 'Newsnight' performance, the home secretary continued to reap his reward.

The line of much media coverage was reflected in the headline of the BBC's Web site's trailer: 'Blunkett gets tough on terror'.

In truth, the government was probably ambushed by the report of the committee of Privy Counsellors charged with examining the Anti-Terrorism, Crime and Security Act, chaired by Lord Newton.

After all, the indefinite detention of some foreign nationals had passed all previous examinations.

Mr Blunkett has certified 16 people; 14 remain in custody; two have left the country voluntarily.

His judgement has been upheld in all the cases to reach the Special Immigration Appeal Commission and the Court of Appeal.

A clean bill of health for each detention has also been supplied by the 'special reviewer', Lord Carlile.

The Home Office had probably decided that renewal of the Anti-Terrorism Act was next year's problem.

A 'sunset clause' lapses its provisions in 2006.

However, first the privy counsellors and then the Parliamentary Joint Committee on Human Rights upturned the apple cart.

Both argued that the immigration provisions should be repealed and replaced with legislation that did not require derogation from the European Convention on Human Rights.

What is more, the privy counsellors required the government to come more quickly than expected to both Houses of Parliament to renew the legislation.

Consequently, the Home Office report shows every sign of being cobbled together.

It advocates with any vigour only one new response - lifting the government's self-imposed ban on the use of intercept evidence.

Most civil libertarians have argued that it should have been done years ago.

This is not getting tough on terror - this is correctly revealing to an innocent public the extent of its surveillance by the state.

A serious debate on the future of counter-terrorism legislation needs to deal with three key questions:

- The extent of any threat to liberty and security;

- The mainstream provisions of the criminal justice system and within the European convention that are required to meet that threat, and;

- Any additional measures that are required and the extent of any accompanying derogation required from the convention.

The government has a duty to protect the life, security and property of its citizens as much under the European convention as morally and politically.

Mr Blunkett's paper rehearses Osama Bin Laden's threat to those who supported the US in its 'crusade war' against Iraq and recounts the terrorist bombings since 11 September 2001.

He cites the opinion of the head of the security services that the level of threat is unabated.

Here, the corroding problem of the war in Iraq asserts itself.

All these judgements are based on intelligence.

The public will remember that it has recently been sold one intelligence dossier that everyone agreed was 'dodgy' and another that many thought 'over-sexed'.

The government faces a credibility problem of its own making.

Both Lord Newton and the parliamentary joint committee wish to see any special measures demarcated from the criminal justice system as a whole.

That is what is so outrageous about the suggestion of lowering the standard of proof for a conviction - it attacks the core protections of criminal justice.

However, there are dangers here.

Some 544 individuals have been arrested under the Terrorism Act 2000 and only 98 charged.

No statistics seem to be available for convictions.

Muslims begin to express the same sense of being targeted for mass criminalisation as has been expressed for many years by Afro-Caribbeans.

Mr Blunkett's paper shows some sensitivity to the need not to antagonise a community whose support, after all, will be crucial in suppressing the threat in the longer term.

Existing powers may need to be used more carefully, let alone devising new ones.

We will need to decide whether the level of threat justifies exceptional measures, such as restrictions of liberty along the lines of tagging or even detention without trial.

The home secretary says he has operated in as restrained a manner as is possible.

He may be right.

We do not, and we can never entirely, know.

However, the current legislation falls in two years' time.

Indefinite detention cannot become infinite detention.

There must be parameters.

An Act in the terms of the current one cannot stand.

Only Mr Blunkett really knows the level of threat.

So, the home secretary must deliver more than his paper reveals and with rather more consideration than revealed in his railway conversation.

See [2004] Gazette, 4 March, page 18

Roger Smith is the director of the law reform and human rights organisation, Justice