Compromise on control orders is inadequate; Failure to address problems with secret evidence is worse Featured

Written by Andy Worthington Thursday, 27 January 2011
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The statue of Justice on the Old Bailey. The statue of Justice on the Old Bailey.

The inadequate replacement for control orders, the abiding problems with secret evidence, and the abandonment of those facing deportation.


On Wednesday, Theresa May, the Home Secretary, informed the House of Commons about the results of the government's extensive counter-terrorism review,  overseen by Ken Macdonald QC (Lord Macdonald), whose report, and the government's response, is available here. The review confirms that, on many grounds, the government has, as promised, decided to defend aspects of civil liberties in the UK that had been undermined by the Labour government, including reducing detention without charge from 28 days to 14, restricting open-ended stop and search powers by the police, and withdrawing other legislation that has led to the persecution of photographers.
On two points, however, the government failed to banish the authoritarian demons of the Labour years: control orders and the deportation of foreign terror suspects on the basis of "diplomatic assurances."
Control orders, introduced as emergency legislation in March 2005, after the House of Lords ruled that the government's previous manner of dealing with foreign terror suspects in the wake of the 9/11 attacks -- imprisoning them without charge or trial -- was unlawful, were designed, as the government's review states, to prevent individuals under suspicion "from engaging in terrorism-related activity by placing a range of restrictions on their activities, including curfews, restrictions on access to associates and communications and, in some cases, relocation." Since their introduction, they have been applied to 48 men in total, although currently they apply to just eight men -- all British nationals, rather than the foreign nationals for whom the system was designed.
A rather less bland description of the circumstances in which those held on control orders are obiged to live can be found in an article I wrote in November:
Typically, they involve forced relocation within the UK (often to almost uninhabitable flats in areas where racism is prevalent), punitive curfews, the vetting of all visitors, a ban on the use of computers and mobile phones, tagging, the obligation to check in regularly (at all times of the day and night) with the security firms monitoring the tags, and random raids by Home Office personnel. For those with families, their wives and children suffer; those who live alone are often horrendously isolated.
After extensive negotiations, involving serious conflict within the coalition government between Deputy Prime Minister Nick Clegg, who pledged to abolish control orders, and Prime Minister David Cameron and Theresa May, who had both been given alarmist briefings by the security services, the government reached a compromise, which is an improvement in some ways, but a thorough disappointment in others. 
As explained in the government's review:
The review has concluded that the current control order regime can and should be repealed ... There will be an end to the use of forced relocation and lengthy curfews that prevent individuals leading a normal daily life. Under control orders the Government could implement any measure deemed necessary provided it was not struck down by a court. Under this regime, the Government will specify in greater detail the measures that will and will not be available.
Stressing that prosecution -- rather then mere containment -- is an objective of the new measures, known officially as "terrorism prevention and investigation measures" (TPIMs), the review states that they "will be time limited to two years maximum to emphasise that they are a short term expedient not a long term solution. They may be reimposed after two years only where there is new material to demonstrate that the person concerned poses a continued threat. While that person might reach the end of the two year period with prosecution not having been possible, successful prosecution will always be the objective."
The government also states that the new measures "will allow greater freedom of communication and association than the control order regime, placing only limited restrictions on communications, including use of the internet, and on the freedom to associate," that those subject to the conditions "will be free to work and study unless this could facilitate or increase the risk of involvement in terrorism- related activity," that they will "allow only tightly defined exclusion from particular places and the prevention of travel overseas," and that they will "allow for an overnight residence requirement with some additional flexibilities e.g. in relation to overnight stays outside the residence, [which] would be verified by an electronic tag."
Worryingly, however, the new laws -- to be introduced in December -- will be permanent, meaning that Parliament will no longer be required to renew them annually, as happened with control orders. They also allow the government to place "limited restrictions in certain defined circumstances on financial transactions overseas," enable the government to "require an individual to report regularly to the police," and, if the conditions are breached, "without reasonable excuse," will constitute a criminal offence carrying a maximum penalty of five years’ imprisonment.
The government also proposes that "there may be exceptional circumstances where it could be necessary for the Government to seek Parliamentary approval for additional restrictive measures. In the event of a very serious terrorist risk that cannot be managed by any other means more stringent measures may be required. Such measures would include curfews and further restrictions on communications, association and movement. They would only be allowed if the Secretary of State is satisfied on the balance of probabilities (a higher threshold than reasonable belief) that the person is or has been involved in terrorism-related activity."
Why the new system still relies on the use of secret evidence, fundamentally undermining notions of open justice
While it is clearly possible, by reading between the lines, to conclude that, although the TPIMs are an improvement, they still allow the authorities considerable leeway to indulge in the kind of persecution that has wrecked the mental health of numerous control order detainees (and their families), the main problem is that the revised system still shies away from prosecution, only mentioning it as an objective, and, moreoever, continues to rely on untested secret evidence to justify its assertions that the individuals who are to be subjected to TPIMs are a threat.
The review tries to tiptoe around this problem, claiming that the measures may, for example, apply to people plotting terrorist activity whose plot has been disrupted, but against whom insufficient evidence exists to support a prosecution, but what this actually means is that there is no evidence. It is also disappointing that those who "argued in the consultation process of this review that the use of communications intercept material as evidence in court would remove the need for control orders by making prosecution easier" were brushed aside. On this point, the review states, "The evidence presented to the review does not support this position," despite the hard work of groups such as JUSTICE (see the PDF here) to establish that the opposite is true.
As a result, the use of secret evidence remains at the heart of the new measures, as it did with control orders, and still includes the special advocates who represent detainees in closed court sessions, but then, like some Kafkaesque nightmare, are prohibited from discussing anything that took place in those sessions with the individuals they are supposed to represent. 
On this point, the review indicates, lamely, that "Some enhancements will be made to the operation of the special advocate regime pending fuller consideration in the forthcoming Green Paper on the use of sensitive material in judicial proceedings," but what this means in reality is that the new system is really nothing more than a refurbished version of the existing regime.
In March 2009, at a meeting on secret evidence in the House of Commons, Dinah Rose QC, who has experience of the Special Immigration Appeals Commission, where secret evidence is heard, in three different roles -- as instructed by the Home Office, as a representative of some of the detainees held on the basis of secret evidence, and as a special advocate -- explained how the use of secret evidence thoroughly undermines any notion that the system is fair and just.
It is “hard to explain just how shocking an experience SIAC is for an advocate used to the basic norms of our legal system," she said. "It is the first principle of natural justice that a person has a right to know the case against them, so that they can respond to it. We take this principle for granted, from our earliest childhood.” Noting that “this principle simply does not apply in SIAC,” she also explained that, as a result:
[A]lthough 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.
How the review abandons foreign terror suspects facing deportation, and also held on the basis of secret evidence
In addition, the continued relaince on secret evidence not only impacts on those who will be held under TPIMs, but also on other individuals -- almost entirely ignored by the mainstream media -- who are imprisoned or held on deportation bail (a system very similar to control orders) pending deportation.
For these men, also held on the basis of secret evidence, the counter-terrorism review was concerned solely with the government's plans to deport them to regimes where they face the risk of torture or other ill-treatment, and did not touch upon the secret evidence used to assess them as a threat, or the circumstances in which they are held, while the government attempts to deport them.
The planned deportation of these men is a long-winded process that has, to date, involved rulings in the government's favour, against the Jordanian-born preacher Abu Qatada and two Algerians identfied as Detainee U and Detainee BB in February 2009, and, more generally, against eight men (seven Algerians, including U and BB, and another Jordanian, Hussein al-Samamara) last July. These cases (and others -- there are 14 in total) are on appeal in the European Court of Human Rights, which is expected to make a ruling in the case of Abu Qatada, U and BB sometime this year, but in the meantime the men are either imprisoned (as is the case with Abu Qatada and U) or held on deportation bail, a form of house arrest that is effectively interchangeable with the conditions under which conrol order detainees are held.
For the men held on deportation bail, the effects of house arrest are as severe as they are for control order detainees, as can be readily appreciated in this interview with Hussein al-Samamara (and this BBC broadcast), and in this article written recently by Mustapha Taleb (Detainee Y), an Algerian who was tried and cleared in connection with the so-called Ricin Plot, but was then subjected to a control order, and who endures a life of desperate and unacceptable solitude. 
However, as noted above, instead of addressing the conditions in which these men are held, and the secret evidence used to justify holding them, the review was concerned solely with the conditions of their enforced repatriation. Instead of questioning the basis of their detention, Lord Macdonald stated instead, "I have no doubt that it is entirely appropriate for the Government to seek lawfully to deport those overseas citizens whose presence in the UK is credibly considered to represent a threat to our national security."
In addition, he embraced the government's decision to enter into "arrangements with certain foreign States, with a view to obtaining reliable guarantees relating to the treatment of returned persons." dismissing concerns expressed by lawyers and human rights groups that these "diplomatic assurances" -- with Algeria, Jordan, Lebanon, Libya and Ethiopia -- are worthless, and are an unacceptable way for the government to  disregard its obligations under Article 3 of the European Convention on Human Rights, which states that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment" and Article 3.1 of the UN Convention Against Torture, which stipulates that "No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."
Moreover, Lord Macdonald proceeded to recommend that expanding the programme of "diplomatic assurances" was appropriate. Responding to complaints that the programme "gives succour to regimes that torture or, worse, that it actively encourages the practice of abuse and mistreatment," he stated, "My conclusion on the evidence is that the opposite is more likely to be true. It seems to me that the very process of engaging with other countries on the issue of the appropriate treatment of prisoners, and obtaining guarantees in that regard, is likely to have a positive effect upon the regimes in question," and added, "The evidence turned up by the Review is strongly supportive of the government’s programme of safe returns, which should be continued and, wherever possible, extended."
In conclusion, then, although the government has tinkered with control orders, it has failed to accept that there are only two acceptable options for dealing with terrror suspects (prosecution or surveillance), has failed to accept that the UK should join the rest of the world in using intercept evidence in court, has failed to accept that the use of secret evidence (and the special advocate system) is fundamentally unfair, and has also failed to address the fundamental problems faced by foreign terror suspects -- their bail conditions, the use of secret evidence, and the feeble "diplomatic assurances" designed to paper over the problems with repatriating them, rather than putting them on trial in the UK.
For Muslim men suspected of "terrorism-related activity," justice is still elusive.
Andy Worthington is a Senior Researcher for Cageprisoners. He is also the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press) and the co-director (with Polly Nash) of the new documentary, "Outside the Law: Stories from Guantánamo.” Visit his website here.
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