Suspects denied basic justice in Britain

If someone thinks you might be a terrorist in Britain, you can be detained without trial indefinitely. Too bad if you are innocent. There are no safeguards whatever

Up to 20 men regarded as Britain’s most dangerous terror suspects can challenge their detention after Britain’s highest court ruled that three of them had been denied a fair trial. The men, who have been held under virtual house arrest under the Government’s control order regime, won the unanimous backing of a panel of nine law lords, on the grounds that the suspects did not know what they were accused of or what evidence was being used against them.

The judgment, hailed by human rights groups, means that other suspects who have not been given sufficient evidence to enable them to defend themselves can now challenge the control orders in court. One of the panel, Lord Hope of Craighead, said: “If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”

The ruling prompted calls for the scrapping of control orders, which restrict suspects’ movements on the basis of secret hearings without charge or a trial, and the acceptance instead of evidence based on intercepts, which is currently inadmissible in court.

Lord Pannick, QC, the crossbench peer who represented the lead appellant, AF — the three men are known only by their initials — said that Alan Johnson, the Home Secretary, ought to scrap the regime entirely. “Since the Home Secretary can no longer impose control orders without telling the controlees the substance of the case they have to meet, the right decision — legally and politically — would be to abandon the discredited control order regime and concentrate on prosecuting in the criminal courts those against whom there is evidence of wrongdoing.

Mr Johnson made clear that the Government would contest each case vigorously. “This is an extremely disappointing judgment. Protecting the public is my top priority and this judgment makes that task harder. The Government will continue to take all steps we can to manage the threat presented by terrorism.” He said that all control orders would remain in force for the time being: “We will continue to seek to uphold them in the courts. In the meantime we will consider this judgment and our options carefully. “We introduced control orders to limit the risk posed by suspected terrorists whom we can neither prosecute nor deport. The Government relies on sensitive intelligence material to support the imposition of a control order, which the courts have accepted would damage the public interest to disclose in open court. “We take our obligations to human rights seriously and, as such, we have put strong measures in place to try to ensure that our reliance on sensitive material does not prejudice the right of individuals to a fair trial.”

Control orders were introduced in March 2005 as a means of holding terror suspects who had not been charged or tried and where the evidence was largely sensitive and derived from intelligence sources. Suspects are electronically tagged and held under curfew. They are also restricted in whom they can meet and where they can go.

This is the third setback for ministers in their efforts to deal with terror suspects. The law lords had previously ruled that to hold foreign terror suspects without charge or trial in Belmarsh prison was a breach of their human rights and unlawful. The lords have also ruled that the most draconian element of the control order regime — an 18-hour curfew — is a breach of the European Convention on Human Rights.

The subjects of control orders are allowed to challenge the order, but are not allowed to see any of the secret intelligence assessments that led to the decision to restrict their liberty. But yesterday Lord Phillips of Worth Matravers, the senior law lord, said: “A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.”

The eight other lords agreed. “The principle that the accused has a right to know what is being alleged against him has a long pedigree . . . The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him,” Lord Hope said.

“The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. “But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”

The cases must now return to the lower courts to be reheard. The Home Office will need to decide either to release more material to the men and to the public, or rescind the orders.

Lord Pannick argued that it was procedurally unfair to order his client to stay in his flat on the outskirts of Manchester for up to 16 hours a day. AF, who was born in 1981 in Derby and has dual Libyan and British nationality, cannot see anyone without permission or use the internet. These conditions could not be right if his lawyers were not told why he was suspected of terrorism so they could respond, Lord Pannick said.

Mohammed Ayub, the solicitor for another of the three men, AE, said that his client had been under virtual house arrest for more than three years and had every aspect of his life restricted and monitored “on the basis of a threshold no higher than suspicion”.

The law lords followed a recent ruling in the European Court of Human Rights that held that a controlled person must be given sufficient information about the allegations against him so as to instruct a lawyer to challenge the case brought against him. However, Lord Hoffman said: “I think that the decision of the European Court of Human Rights was wrong and that it may well destroy the system of control orders, which is a significant part of this country’s defences against terrorism.”

A report published today by the human rights group Justice calls for an end to “12 years of secret evidence”, dating from its use in the first hearings before the Special Immigration Appeals Commission. Eric Metcalfe, director of human rights policy at Justice, said: “In the past 12 years the British traditions of open justice and the right to a fair hearing have increasingly been undermined by the use of secret evidence in closed hearings.” There needed to be reform, he said, so that “all defendants are able to know the evidence against them”.

Shami Chakrabarti, director of Liberty, said: “I can think of no better way for the Prime Minister to make a fresh start for his Government than to abandon the cruel and counter-productive punishments without trial instituted by his predecessor. This is also a great opportunity for the new Home Secretary to prove his commitment to human rights and fighting terrorism within the rule of law.”

Original report here



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