The use of secret evidence against terror suspects in British courts makes a mockery of our legal process
On the surface, we live in a country where long-established legal processes guarantee that, if arrested, you will be promptly charged, and will appear in a court, presided over by a judge, where lawyers will present evidence, and your fate will be decided by a jury of your peers.
For one group of men, however, this scenario is nothing but an illusion. These men – mostly foreign residents, but also including a handful of British citizens – are “terror suspects”, and some of them have spent up to three years imprisoned without charge or trial.
Law lords ruled in December 2004 that this type of detention was in contravention of the Human Rights Act. To get around this, the government introduced a type of house arrest that keeps suspects, for most hours of the day, confined to their houses. They are tagged, told to report to the authorities several times a day, and are subjected to unannounced house raids by Home Office officials to ensure they are not breaching the conditions of their confinement.
Visitors have to be vetted by the Home Office. If the detainee is a single man, he is unbearably isolated; if married with children, he is trapped, unable to work, pushed to mental collapse as his children are unable to have friends over to visit, and are denied access to a computer for their studies.
There are two types of house arrest. Control orders apply to prisoners who cannot be deported, either because they are British nationals, or because there are concerns that, if repatriated, they will be tortured, and deportation bail applies to prisoners who can be deported, because the British government has come to an agreement with the governments of Algeria and Jordan. These purport to guarantee that they will be treated humanely on their return, even though both countries are known for their violations of human rights.
For these men, justice is exercised in a special court – the Special Immigration Appeals Commission (Siac) – where they are represented in closed sessions . They are excluded while a special advocate, a lawyer approved to deal with secret evidence, discusses their case.
At a recent public meeting in the House of Commons to discuss the use of secret evidence, Dinah Rose QC, who has experience of Siac tribunals in three different roles having been instructed by the Home Office, by the lawyers of detainees and as a special advocate, explained what happened on one occasion when she was acting as a special advocate. The court was examining an application by the home secretary to revoke bail. The detainee had no idea what this evidence was, and it could have been something as trivial as having a malfunction with his tag, a situation which is out of his control.
The special advocates were told what the evidence was, but we were prohibited from discussing the material with the appellant or his lawyers. We were simply unable to offer any resistance at all to the application, in the absence of any instructions, which might have explained or cast a different light on the evidence
As a result, the judge revoked the man’s bail, and ordered him to be sent to Belmarsh.
I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: ‘I cannot tell you that.’ I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.
Rose also explained that,
although Siac looks and sounds like a court, and the judges and barristers behave with the courtesy and formalities that are used in court, it is in reality nothing of the kind. Often it feels to me like an elaborate charade, in which we are all playing the roles of barrister, solicitor, appellant and judge, but where the basic substance of a court hearing – the testing of evidence to establish where truth lies – is entirely missing
The meeting at which Rose spoke was chaired by Diane Abbott MP, who later tabled an early day motion (EDM) declaring “that this House believes the use of secret evidence in UK courts is fundamentally wrong”, and calling on the government “to begin an immediate independent review into the use of evidence that is not ever heard by the defendant or their lawyer but which is used to justify indefinite detention, severe bail conditions or control orders”.
The full text of the EDM is here, and if you too think the scenario described above owes more to Lewis Carroll or Franz Kafka than to notions of open justice, please write to your MP to ask them to sign up to Diane Abbott’s EDM, which you can do via They Work For You, a website dedicated to facilitating access to MPs and monitoring their activities.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009. Visit his website at: www.andyworthington.co.uk.