Calling Time On The Use Of Secret Evidence In The UK by Andy Worthington

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by Andy Worthington
Featured Writer
Dandelion Salad
www.andyworthington.co.uk
10 December 2009

On December 1, two High Court judges, Lord Justice Laws and Mr. Justice Owen, dealt what looked like the final blows to the British government’s policies of imprisoning terror suspects without charge or trial on the basis of secret evidence — or otherwise depriving them of their liberty under a form of house arrest (also on the basis of secret evidence) — which have existed, in various forms, since December 2001, when a number of men were seized and held for three years in Belmarsh prison.

On Monday, however, in the Special Immigration Appeals Commission (SIAC), which functions as Britain’s “terror court,” these hopes were dashed when Mr. Justice Mitting refused to reinstate the bail of an Algerian prisoner, who is imprisoned facing deportation, even though his bail was revoked in March on the basis of secret evidence.

A brief history of control orders and deportation bail

To recap, the Law Lords brought the initial regime of imprisonment without charge or trial to an end in December 2004, ruling that the detention of the 17 men held in Belmarsh during this three-year period infringed their right to liberty under Article 5 of the European Convention on Human Rights, which guarantees “the lawful detention of a person after conviction by a competent court.” The government responded not by releasing the men — or, as critics had requested (PDF), by putting them on trial and arranging for sensitive intelligence material to be used, with safeguards, in the courts — but by holding them in their homes under a form of house arrest, through the use of secret evidence. This secret evidence is discussed, on the men’s behalf, by special advocates appointed by the government in closed sessions of SIAC. Absurdly, however, the special advocates are prohibited from discussing anything that occurs in the closed sessions, leaving the men and their lawyers unable to challenge whatever is decided in their absence.

It took until June this year for the Law Lords to finally decide that this is an intolerable travesty of justice, infringing the men’s right to a fair trial under Article 6 of the European Convention on Human Rights, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

However, the Lords’ ruling applied only to those held under control orders: British citizens, who have been subjected to the orders in increasing numbers over the last few years (with barely a ripple of dissent from the British public), and foreign citizens who cannot be deported to countries where they face a risk of torture. This latter group is included because, in assessing legal challenges to prevent their deportation, judges have found themselves unable to accept the government’s attempts to bypass the UN Convention Against Torture’s absolute ban on deporting people to countries where they face a risk of torture. They have done so by refusing to accept that “Memoranda of Understanding”, which purport to guarantee the humane treatment of the deportees, and which have been agreed with such unlikely defenders of human rights as Libya’s Colonel Gaddafi, are either trustworthy or enforceable.

Detainees not covered by the control orders are those held on deportation bail (or in prison awaiting deportation): citizens of countries with whom “Memoranda of Understanding,” or, in Algeria’s case, some kind of shady word-of-mouth agreement, have not yet been overturned by the UK courts, or by the European Court of Human Rights. These men were excluded from the ramifications of this ruling until December 1, when Lord Justice Laws and Mr. Justice Owen helpfully, and appropriately, brought them under the same umbrella as the control order detainees, ruling that it was “impossible to find a legally viable route … by which to conclude that in bail cases a less stringent procedural case is required” than that vouchsafed in A and other and AF, the control order case decided by the Law Lords in June 2009.

The judges were ruling in the case of two “terror suspects.” One man, XC, is a 23-year old Pakistani student and one of the North West 10 (students rounded up in connection with a wildly hyped and seemingly unsubstantiated terror plot in April). His case, and that of another student, UF, will be decided next week, but on Monday, armed with the ruling of Lord Justice Laws and Mr. Justice Owen, lawyers for U returned to SIAC in the hope of reinstating his bail.

Detainee U: eight years in prison, and eight months on bail

To give some necessary background, U is a 46-year old Algerian who, as the judges noted on December 1, “save for a period from July 2008 until February 2009, when he was on bail … has been continuously in custody since March 2001,” without charge or trial. As the judges explained, “U first applied for bail in July 2007. His application was heard in SIAC on 23 August 2007 and was rejected on the basis that the length of time for which he had been detained pending deportation was not yet excessive.”

On 11 March 2008, the House of Lords granted him leave to appeal, which he did, along with other Algerians detained pending deportation. As the judges explained, “The Secretary of State did not oppose the application but sought U’s admission to bail at an address in Liverpool on a 22 hour curfew. U proposed an address in Brighton. For reasons not disclosed at the time the Secretary of State objected to the Brighton address. On 30 April 2008 SIAC ordered that U be released on bail to the Brighton address subject to stringent conditions, including a 24 hour curfew.”

In July 2008, U was moved to the address in Brighton, where he remained until February 2009. On 18 February, the House of Lords dismissed his appeal (along with those of Abu Qatada, a Jordanian, and another Algerian known as RB), and on the same day Jacqui Smith, the Home Secretary, “applied to SIAC to revoke U’s bail on the basis of ‘an increased risk of absconding due to the terms of the judgment’” (as well as requesting revocation of bail in the cases of RB and three other men, identified as Y, Z and VV). The application reached SIAC on 26 February, but when SIAC adjourned further consideration of it until 5 March, and refused Jacqui Smith’s “request for bail to be revoked pending the resumed hearing,” she took the law into her own hands. As I explained at the time, in an article entitled, “Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh,”

[W]hen the two men who attended the hearing — U and VV — were driven away from the court, expecting to return home, as ordered by the SIAC judge, they were, instead, delivered to Belmarsh prison, where they were joined by the other three men, who had been seized in raids on their homes. This was clearly planned by the Home Secretary in advance, even though she had informed neither the men’s lawyers nor the SIAC judge. The first the lawyers heard about it was when one of the men’s wives rang, inquiring why he had not yet returned home.

The following day, as the judges described it on December 1, “together with the four appellants detained overnight, U sought his immediate release and made an urgent application for judicial review of the decision to detain him on the grounds that it was an abuse of power.” Although the other men were subsequently released on bail, a closed hearing in U’s case resulted in Mr. Justice Mitting siding with the government (despite U’s extra-legal kidnapping the day before), revoking his bail “on a temporary basis (pending the adjourned hearing) on the ground that the closed material indicated an increased risk to national security and of U’s absconding.”

At the following hearing, U’s submission that “sufficient details of any closed material sought to be relied on by the Secretary of State should be disclosed so that effective instructions might be given to U’s special advocate” was rejected by SIAC, “without at that stage giving reasons,” and on 20 March SIAC followed up by “rejecting the Secretary of State’s application to revoke the bail of the four other appellants, but holding that U’s bail should be revoked,” explaining, “For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased.”

The judges’ ruling last week in the cases of U and XC is an extraordinary document, in which Lord Justice Laws took a tour through 900 years of English law in order to decide that it was “impossible” to conclude “that in bail cases a less stringent procedural standard is required” than in control order cases (and also to refute a claim by SIAC that its decisions should be “immune from judicial review”). The judges did, however, grant the government leave to appeal, and it was for this reason that SIAC reconvened on Monday to decide how to proceed in U’s case.

Revoking U’s bail

In the run-up to the hearing, those who have been watching the deportation bail cases closely wondered what would happen when the government was required not to rely on secret evidence, but to make its case in open court. In a separate article, “Living With A Terror Suspect: Detainee U’s Landlord Tells His Story,” Jack Hazelgrove, the man who made a room available in his house from August 2008 until U was kidnapped by Jacqui Smith in February 2009, described the surreal and intimidating circumstances under which U was required to live, and the raids by Home Office representatives in search of evidence that he was breaking his bail conditions and was preparing to abscond. These episodes, which involved a fig tree in Mr. Hazelgrove’s garden interfering with the surveillance equipment, Home Office Representatives confusing a map of Maidstone with a map of Folkestone, and the most extraordinary paranoia surrounding U’s request to be allowed to walk in a small park near the house for one hour once a fortnight, seem to demonstrate, above all, how the Home Office appeared to be determined to return U to prison using any means necessary.

As I explained in an article in March, “Britain’s insane secret terror evidence,” these suspicions appeared to be confirmed when, in the portion of U’s bail-stripping hearing that was open to the public, the government claimed that U’s bail conditions were “difficult to manage,” and that the address was “unmanageable,” and Robin Tam QC, the Treasury Solicitor, claimed that, even though the route for U’s first, brief excursions into the wider world since 2001 “had been approved by his own government department, there was allegedly a risk that U would abscond because the route passed by a main road, was two km from a railway station, and was not far from a number of ports.”

As I noted at the time, “Quite how this bookish man was supposed to overwhelm four Home Office representatives and make a run for it was not explained,” and it was difficult, therefore, to see how any of this would stand up to objective scrutiny, and how it would be possible to overturn the main conclusion of the High Court ruling on December 1. As with the Law Lords’ ruling on control orders in June, it appeared to be unarguable that those held under control orders or deportation bail are deprived of their right to a fair trial under Article 6 of the ECHR, because they are not given “sufficient information about the allegations against [them] to enable [them] to give effective instructions to the special advocate assigned to [them].”

SIAC refuses to reinstate U’s bail

In the end, however, the anticipated showdown failed to materialize. Mr. Justice Mitting acknowledged that last week’s High Court ruling had removed “a vital tool” in SIAC’s appraisal of deportation bail issues related to those held in connection with alleged terrorist activities. He added that, in the cases of other men held pending deportation, the removal of this “vital tool” might cause problems in future, but concluded, in U’s case, that it “doesn’t mean we cannot appeal it afresh in light of considerations we did not then consider.” What this meant, in practice, was that Mitting was prepared to turn the clock back to March, when the revocation of bail was first established, and to review that decision based not on closed evidence, but on the open evidence, establishing, to the satisfaction of the court, that U is a major threat to national security and at risk of absconding.

This was a bitter disappointment for those who hoped that Monday’s hearing would significantly damage the government’s reliance on secret evidence in the cases of those, like U, who are facing deportation despite their long imprisonment without charge or trial, and in fact all the signs were that the government is using this latest setback not to appraise how it deals with secret evidence, but to reinforce its position that, in cases related to terrorism, the ad-hoc system dreamt up in 2001 and reinterpreted in 2005 must be defended at all costs.

Speaking for the government, Robin Tam QC went so far as to suggest that, in future, it was possible that the Home Secretary would consider refusing bail in all deportation cases involving secret evidence related to allegations of terrorism. This prompted Mr. Justice Mitting to note that the government appeared to be indicating that SIAC would be cut out of the process, and his concerns were not mitigated when Robin Tam drew his attention to a number of historical cases in which the courts had deferred to the government on national security issues, including one in which it was stated that the judicial process was “totally inept” regarding matters of national security.

Tam’s argument, essentially, was that, “If SIAC does not have the tools to make fine decisions, then it must take a broader view and apply a lighter touch,” which would give the Home Secretary a greater role in deciding how to proceed with deportation cases related to allegations of terrorism. This, of course, is yet another step away from what those who seek an end to the use of secret evidence have long been demanding, but in court on Monday, Stephanie Harrison, U’s barrister, appeared to be sailing against the wind when she argued that the obligation to provide fair hearings overrides national security concerns, and when she attempted to question the entire architecture of the secret evidence system.

As a result, Monday’s ruling was a bitter blow for those who, in recent months, have had their hopes raised that the government will abandon the use of secret evidence in cases related to allegations of terrorism, and will be obliged to rethink the entire system, finding a way to use sensitive intelligence information in a regular court (as most countries in the world have done), without compromising their sources or methods, so that this parallel judicial world can be brought to an end.

The way forward

Although next Monday’s hearing (in the cases of XC and UF) may be more challenging for the government, Monday’s events suggest that the best way forward for those opposed to the use of secret evidence is to shift the focus back to the control order cases. As the government has been learning in recent months, following the Law Lords’ ruling in June, when it comes to justifying control orders, the only way forward for the government is to release further information to the detainees and their lawyers, although the new Home Secretary, Alan Johnson, has been unwilling to do so. As a result, several men who were once so casually described as terrorists have actually had their control orders quashed, indicating that, when it comes down to it, the government has been required to look long and hard at its supposed evidence, and has, in fact, decided that some of these men are less dangerous than others, and that others are not dangerous at all.

The same principles apply to those held pending deportation, as was revealed in SIAC on Monday, when, having repeatedly described U as “the top of the tree” in terms of the threat that he allegedly poses to national security, Mr. Justice Mitting conceded that there was, in fact, a sliding scale regarding the threat posed by those held on deportation bail, particularly when he stated, “One individual has been a terrible nuisance but the risk he poses is towards the bottom of the scale.”

In U’s case, it appears that there is no way out of his apparently unending limbo, in which he has now been held for nearly nine years, even though neither the government nor SIAC can, in all honesty, predict how this story will end. As Mr. Justice Mitting noted on Monday, he is near the end point of exhausting the appeals procedure against deportation in the UK, and if all avenues are exhausted by next year, he will then be obliged to appeal to the European Court of Human Rights in Strasbourg, which may take another 18 months. At the end of that process (when he will have been held for 11 or 12 years), it is possible that the government will be told that they cannot deport him, and will have to think again about what it intends to do with him, but at present no one is prepared to look into the future.

This is, to put it bluntly, a rather depressing scenario, as U remains in a place where, on the basis of untested allegations, he is regarded permanently as an active threat, while those responsible for depriving him of a trial breezily discuss how long it is possible to hold someone in such circumstances before their detention becomes “excessive.” It also, dangerously, removes him from the cycle of conviction and sentencing that has existed since the establishment of habeas corpus nearly 800 years ago, creating the impression that those accused of activities related to terrorism are a separate class of being for whom the normal laws do not apply, and who, as a result, can legitimately be deprived of their liberty, perhaps for the rest of their lives, despite never having been tried or convicted of any crime.

In conclusion, I can only reiterate that, while complaints about yesterday’s hearing are demonstrably valid, campaigners may find that a useful plan of attack on the whole system needs to focus not just on the injustice of the entire apparatus, but specifically on its discrepancies, and on the concept of a sliding scale whose existence, while mentioned by Mr. Justice Mitting on Monday, and by the Law Lords in February, when they declared that the Algerian, RB, was a “small fish,” is most readily apparent in the control order cases. To my mind, the only reason that such a sliding scale can exist is because the form of “preventive detention” practiced in the UK — which caused widespread consternation in human rights circles, when President Obama proposed passing legislation to introduce it earlier this year in relation to prisoners held at Guantánamo — is inherently corrupt.

The use of secret evidence is corrosive precisely because, under the guise of protecting intelligence agents and their sources, the government is free to declare that certain individuals are a ”threat” without ever being challenged adequately about the basis of these fears. We, the public, are left to trust the interpretation made by the judges, who, essentially, are working within a biased system in which the prosecutors are free to present their cases, but the defense teams are kept — to an unknown extent — in the dark. And that, of course, is neither just nor prudent, however much the government and SIAC pretend that it is.

As published exclusively on Cageprisoners.

The Guantánamo Files book cover

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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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