It is 10 years since the Anti-Terrorism Crime and Security Act came into force and made it legal to intern foreign nationals in Britain on the basis of secret intelligence evidence. This, despite being later found to be unlawful by the courts, set the scene for further legislation which has continued the rampant erosion of civil liberties and human rights, given unprecedented power to the security services, spread the use of secret intelligence evidence ever wider in the courts and provided a platform where evidence obtained under torture may be deployed under the cloak of secret proceedings.
After 9/11 the government wanted to be seen to be taking strong action. It could not simply arrest and detain people where there was no evidence of an offence having been committed. Neither could it legally detain foreign nationals on national security grounds under immigration legislation where there was a risk that deportation would result in that person being tortured in their own country as this would breach Article 3 of the European Convention for the Protection of Human Rights (ECHR). A simple allegation by the British government of some sort of terrorism related involvement would, in itself, give rise to a risk of torture if deported. In addition the government said in terms that it could not hold British nationals indefinitely without trial as there would be an outcry against such measures.
Indefinite detention without trial breaches Article 5 of the ECHR which is incorporated into British law by the Human Rights Act 1998. In order to be able to detain people indefinitely without trial the government had to derogate from Article 5 ECHR. The requirement for derogation is that there must be a, "public emergency threatening the life of the nation". David Blunkett, the then Home Secretary, declared that there was such an emergency, despite stating, when announcing the proposal for the legislation in October 2001, that, "there is no immediate intelligence pointing to a specific threat to the United Kingdom...".
The legislation was rushed through Parliament at breakneck speed and on 14 December 2001 the Anti-Terrorism Crime and Security Act 2001 received royal assent and Part 4 (which concerned indefinite detention without trial), came into force on that date.
On 19 December 2001 eight men were interned under the legislation and over the period of its life a further nine were interned making a total of seventeen. They were all nationals of Arab countries where torture is endemic and systematic and who, as a result, had sought safety here.
The men were not actually arrested - an arrest under criminal legislation provides a person with rights. When these men were detained they had no rights. They were taken from their homes straight to high security prisons in the early hours of the morning without having been questioned or interviewed, without having been charged and without having any idea of the basis of the allegations against them. The conditions in which they were held were inhuman and degrading. They were kept in solitary cells and at the beginning were locked up for 23 hours a day and later 22 hours a day. Those with families had to wait between three and four months for security clearance to be given for their families to visit them or to be allowed to telephone their families. They were also strip searched before and after all visits whether they were legal or social visits. In addition they were held in high security units within the already high security prisons. The conditions in the prisons (particularly Belmarsh and Woodhill) gave rise to serious concern and human rights groups such as Amnesty International expressed their concerns to the government.
The internees had a right of appeal but it was to the Special Immigration Appeals Commission which was set up in 1997 in response to the judgement in the European Court of Human Rights in the case of Chahal. That case had found that there was an absolute bar on return to a country where to do so would breach Article 3 of the ECHR - that a person must not be subject to torture or cruel inhuman and degrading treatment even where the Secretary of State alleges that return is in the interests of national security.
Prior to Chahal, national security deportation cases were dealt with by the 'three wise men' who would sit entirely in secret and decide whether the person should be deported. SIAC was set up on the Canadian model to replace that system with something deemed to be more akin to a hearing and to deal only with cases of deportation where issues of national security were alleged. It was set up do deal solely with immigration cases and not internment. But because these detentions were of foreign nationals and the legislation was in the guise of immigration provisions, SIAC was seconded to deal with internment and what amounted to allegations akin to criminal accusations. This meant that allegations that should have been dealt with in the criminal courts - with all the safeguards for fair trials and due process - were instead dealt with in an administrative court without such safeguards. The Secretary of State stated in terms for each case that there was no admissible evidence that could be used to found a prosecution.
All of this is compounded by the use of closed evidence and closed sessions during the appeal procedure in SIAC. The Home Secretary prepares two cases against the Appellant - one open and one secret (closed). A separate legal representative, the Special Advocate, is appointed from a small list provided by the Attorney General's office to seek to represent the Appellant in closed sessions. He/she is not allowed to communicate with the Appellant or his open legal representatives once he/she has received the secret material. This means that all the lawyers involved in the case to supposedly defend the Appellant are unable to do so in any meaningful way. The lawyers dealing with the open material take instructions in a vacuum in that neither they nor the Appellant have any idea what may be in the closed material. The lawyers dealing with the closed material cannot take the Appellant's instructions on that material. It is a basic principle of justice that a person should be able to challenge the evidence against him, but in these cases, and the SIAC cases that have followed since, that principle has been completely demolished. The secret material, which is prepared by the security services, may be based on malicious "evidence", inaccurate "evidence" from dubious sources and/or may be based on complete misunderstandings or erroneous interpretations of conversations or events. It is likely to be information emanating from the very repressive regimes from which the Appellants fled in the first place. A favourite term used in the Home Secretary's open evidence is "it is assessed that..."
It emerged during the Court proceedings in these cases that the security services think it appropriate to consider evidence obtained under torture in making their assessments - this could clearly include evidence gathered by repressive regimes or in Guantanamo. This would be inconceivable in a normal criminal prosecution. During the course of the internment proceedings, in the open session, a security service witness was asked whether the security services considered evidence obtained through torture and she confirmed that they did. This was a startling admission as evidence obtained through torture has always been inadmissible in court. Also startling was the fact that she was asked whether she was aware of the 'stress and duress' techniques used in Guantanamo which had been widely reported at the time - and she said that she wasn't.
On 31 March 2003, David Blunkett, UK Home Secretary, signed an Extradition Treaty with the US. The UK parliament was not consulted
at all and the text was not publicly available until the end of May 2003. The only justification given for the delay was "administrative reasons". The Treaty removed the requirement on the US to provide prima facie evidence when requesting the extradition of people from the UK. It was another example of the government finding ways to detain people without evidence or on the basis of material which is never seen - and which may also contain evidence obtained through torture. It is also a further example of the increasing use of information from the security services (whether here or abroad) to detain - this despite the patent unreliability of such information. This combination of the use of unreliable intelligence material and the setting up of legal procedures in which the material cannot be challenged, which continues today, is a double attack on human rights and the standards of due process and fair trial.
In Prime Minister's Question Time on 9 July 2003 the then Prime Minister, Tony Blair, was asked about the UK Citizens held in Guantanamo Bay facing possible trials by military tribunal and the death penalty. It was put to him that, "Feroz Abbasi has been held in Guantanamo Bay for 18 months without charge, and he now faces the prospect of a military tribunal in which he will not be able to appoint his own defence lawyer or to cross examine prosecution witnesses and he may face the death penalty following a decision behind closed doors." The MP (Mr Geraint Davies) went on to ask "Have the Government applied for the repatriation of my constituent to face a fair trial in Britain and will my Right Honourable friend press to have all the evidence against Feroz Abbasi supplied to the Government, so that we may press charges and apply for an extradition order under our terrorism legislation? Feroz Abbasi could then face a fair trial and be punished if guilty and the rule of law and human rights would prevail." The Prime Minister's reply was, "What my Honourable friend says must be right. If charges are brought, they must be proved in accordance with proper rules of evidence....any commission or tribunal that tries these men must be conducted in accordance with proper cannons of law so that a fair trial takes place and is seen to take place."
From his answer it would seem that the Prime Minister was completely unaware that hearings were taking place at that very time in the UK where people had been held for 18 months without charge, where secret evidence was being heard without their knowledge, where they only had limited access to cross examination of home office witnesses and where a decision to continue indefinite detention was made behind closed doors.
The internment appeals to SIAC were divided into two parts - an appeal against the derogation from Article 5 ECHR and an appeal against the individual allegations.
The appeal against derogation went to the House of Lords and is known as the case of A and Others. The Lords gave judgement in December 2004 (three years after the men were interned) and found that the legislation was unlawful in that it discriminated against foreign nationals and was not "strictly required by the exigencies of the situation" (the criteria for declaration of a state of emergency). Memorably Lord Nicholls said that:
"Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford." and "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."
The men were not, however, released as soon as the Lords made their judgement. They remained detained for a further 4 months until March 2005 when the new control order legislation was rushed through parliament.
Under the Prevention of Terrorism Act 2005 control orders can be made equally against British and non British nationals.
Control Order proceedings take place in the High Court. There is provision for closed evidence, again, and special advocates, so the procedure is, in effect, the same as that in SIAC. The Control Orders were issued after the new legislation was passed by parliament following days of heated debate which, however, missed several crucial points.
Parliament seemed to think that by getting Judges involved in the decisions to make Control Orders, rather than the Secretary of State, that the system would be fair. However, the first batch of Control Orders were issued by the Secretary of State himself and not a judge. The new legislation gave him the power to do this specifically for those foreign nationals already detained under ATCSA 2001. Even where it is a Judge who makes the control order he does so on the basis of a request from and information provided by the Home Secretary. The judge's role is only to "consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed" (emphasis added). There is no definition as to what "obviously flawed" might mean, but it is clear from the legislation that the judiciary is placed in the position where all it can do is to rubber stamp the decision of the executive. Even worse, the Secretary of State's decision is based on information from the security services, so, the judiciary is placed in the position of having to rubber stamp intelligence to authorise curtailment of liberty as if it were evidence tested in open court and which results in what amounts to a criminal penalty. The result of this is that the security services are indirectly given the power to curtail people's liberty completely by-passing the police, the CPS and the criminal justice system.
The conditions that can be imposed by Control Orders (for example: strict curfews, limited boundaries, stipulated address, no visitors, no meetings by arrangement, no use of internet, mobile phones or public call boxes) are equivalent to criminal penalties without the possibility of anything approaching a criminal trial to try to clear your name. It is a case of being presumed guilty rather than presumed innocent. Even worse, in the case of those previously detained under ATCSA 2001 it was a case of being presumed guilty on the basis of the same secret material that they had been unable to challenge for three years and for which they still did not have a proper mechanism of challenge.
In August 2005 those of the internees that were Algerian as well as one Jordanian were detained again, this time under immigration legislation. They were served with fresh decisions to deport, even though the previous decisions remained in place, and once again the Secretary of State certified that their detention was necessary in the interests of national security. They were taken to special high security units within high security prisons at Long Lartin and Full Sutton and held again as category A prisoners. Their appeals were once again to SIAC and they were facing the third set of proceedings on the basis of the same allegations by the Secretary of State and still without having any proper mechanism to challenge them.
They were back at square one, in SIAC, facing deportation proceedings and detained in high security prisons. This time the government was seeking assurances from countries that torture - Memoranda of Understanding - that the person would not be tortured on return. They were trying to find another way round Chahal and another way to intern people indefinitely without trial. The first ones detained on this basis were those who were previously on control orders, there were subsequently further detentions of some of the Algerians that were acquitted in the Ricin proceedings (the same evidence from the Ricin proceedings in which they had just been acquitted being used in the open case against them in SIAC) and then in October 2005 a number of Libyan nationals. This was followed by the detention of a number of Iraqi nationals that were subsequently released on control orders in November 2005 when it was accepted that to deport them to Iraq would breach Art 3 ECHR. The circular nature of all of this was felt acutely by the detainees/controlled persons.
Going back to the appeals of those who were originally interned in December 2001 one part of their appeals was about derogation and the other part was about their individual appeals. These were heard in the House of Lords in October 2005 and judgement was given in December 2005. The issue in these appeals was whether information obtained under torture by third parties could be admissible in SIAC proceedings. The Lords ruled that were it was clear on the balance of probabilities that this was the case such material could not be relied upon. The problem though remains that where the secret evidence that is presented consists of an 'assessment' by the security services, the underlying evidence on which the assessment is based may well emanate from such third parties. Further the judgement does not rule out evidence where there remains a possibility that it is obtained through torture.
This has now become particularly pertinent in relation to the Libyan nationals that were detained for deportation in October 2005 at the height of the 'rapprochement' between Britain and Libya and who were subsequently placed on control orders. They were said to be members of the Libyan Islamic Fighting Group - a group dedicated to the overthrow of Ghadaffi and which was proscribed shortly after the detentions. New evidence of diplomatic communications between the UK and Libya has recently emerged following the Libyan revolution. This shows that the UK and Libya were working closely together with regard to exchange of information on Libyan dissidents in the UK (and in particular alleged members of the LIFG) in the period leading up to their detention for deportation and the proscription of the LIFG. It also shows that the UK specifically requested information arising from interrogation of LIFG suspects in Libya - and this when it was well known and accepted by the UK government that the Libyan government routinely used torture in its interrogation of terrorist suspects. This fact clearly acknowledged in the decision to seek a Memorandum of Understanding in order to effect the deportation of those detained. It further shows that the UK provided information about UK based Libyan dissidents, in particular those alleged to be members of the LIFG, to the Libyan Regime and that this exchange of information took place within a wider context of rapprochement between the two governments, in relation to co-operation on terrorism but also in relation to co-operation on trade. The documents further show that the UK assisted the US in the rendition of Libyan dissidents to Libya where they were subsequently tortured.
With this two way traffic in detainee information being exchanged between the security services of both countries, with the UK happily accepting information arising from torture in Libya and with secret evidence being provided in the SIAC and control order proceedings by the very same security services how can the secret evidence procedure possibly be said to be fair or just?
The human cost to the men and their families over the years, whether interned, detained, subject to strict SIAC bail conditions or control orders, has been traumatic. Families have been broken up by the stress of living with the detentions and strict conditions, men and their wives have suffered with severe mental health illnesses and children have grown up knowing no normal life and always expecting the knock of the policeman at the door.
The control order legislation is still in place for the time being (new legislation is proposed but which also involves the use of secret evidence) and SIAC is still here. The use of secret evidence continues and is ever expanding into new areas of government decision making. It is becoming increasingly accepted as normal legal procedure with the consequent loss of due process and the effect on people's lives passing unremarked.
After 9/11 the government wanted to be seen to be taking strong action. It could not simply arrest and detain people where there was no evidence of an offence having been committed. Neither could it legally detain foreign nationals on national security grounds under immigration legislation where there was a risk that deportation would result in that person being tortured in their own country as this would breach Article 3 of the European Convention for the Protection of Human Rights (ECHR). A simple allegation by the British government of some sort of terrorism related involvement would, in itself, give rise to a risk of torture if deported. In addition the government said in terms that it could not hold British nationals indefinitely without trial as there would be an outcry against such measures.
Indefinite detention without trial breaches Article 5 of the ECHR which is incorporated into British law by the Human Rights Act 1998. In order to be able to detain people indefinitely without trial the government had to derogate from Article 5 ECHR. The requirement for derogation is that there must be a, "public emergency threatening the life of the nation". David Blunkett, the then Home Secretary, declared that there was such an emergency, despite stating, when announcing the proposal for the legislation in October 2001, that, "there is no immediate intelligence pointing to a specific threat to the United Kingdom...".
The legislation was rushed through Parliament at breakneck speed and on 14 December 2001 the Anti-Terrorism Crime and Security Act 2001 received royal assent and Part 4 (which concerned indefinite detention without trial), came into force on that date.
On 19 December 2001 eight men were interned under the legislation and over the period of its life a further nine were interned making a total of seventeen. They were all nationals of Arab countries where torture is endemic and systematic and who, as a result, had sought safety here.
The men were not actually arrested - an arrest under criminal legislation provides a person with rights. When these men were detained they had no rights. They were taken from their homes straight to high security prisons in the early hours of the morning without having been questioned or interviewed, without having been charged and without having any idea of the basis of the allegations against them. The conditions in which they were held were inhuman and degrading. They were kept in solitary cells and at the beginning were locked up for 23 hours a day and later 22 hours a day. Those with families had to wait between three and four months for security clearance to be given for their families to visit them or to be allowed to telephone their families. They were also strip searched before and after all visits whether they were legal or social visits. In addition they were held in high security units within the already high security prisons. The conditions in the prisons (particularly Belmarsh and Woodhill) gave rise to serious concern and human rights groups such as Amnesty International expressed their concerns to the government.
The internees had a right of appeal but it was to the Special Immigration Appeals Commission which was set up in 1997 in response to the judgement in the European Court of Human Rights in the case of Chahal. That case had found that there was an absolute bar on return to a country where to do so would breach Article 3 of the ECHR - that a person must not be subject to torture or cruel inhuman and degrading treatment even where the Secretary of State alleges that return is in the interests of national security.
Prior to Chahal, national security deportation cases were dealt with by the 'three wise men' who would sit entirely in secret and decide whether the person should be deported. SIAC was set up on the Canadian model to replace that system with something deemed to be more akin to a hearing and to deal only with cases of deportation where issues of national security were alleged. It was set up do deal solely with immigration cases and not internment. But because these detentions were of foreign nationals and the legislation was in the guise of immigration provisions, SIAC was seconded to deal with internment and what amounted to allegations akin to criminal accusations. This meant that allegations that should have been dealt with in the criminal courts - with all the safeguards for fair trials and due process - were instead dealt with in an administrative court without such safeguards. The Secretary of State stated in terms for each case that there was no admissible evidence that could be used to found a prosecution.
All of this is compounded by the use of closed evidence and closed sessions during the appeal procedure in SIAC. The Home Secretary prepares two cases against the Appellant - one open and one secret (closed). A separate legal representative, the Special Advocate, is appointed from a small list provided by the Attorney General's office to seek to represent the Appellant in closed sessions. He/she is not allowed to communicate with the Appellant or his open legal representatives once he/she has received the secret material. This means that all the lawyers involved in the case to supposedly defend the Appellant are unable to do so in any meaningful way. The lawyers dealing with the open material take instructions in a vacuum in that neither they nor the Appellant have any idea what may be in the closed material. The lawyers dealing with the closed material cannot take the Appellant's instructions on that material. It is a basic principle of justice that a person should be able to challenge the evidence against him, but in these cases, and the SIAC cases that have followed since, that principle has been completely demolished. The secret material, which is prepared by the security services, may be based on malicious "evidence", inaccurate "evidence" from dubious sources and/or may be based on complete misunderstandings or erroneous interpretations of conversations or events. It is likely to be information emanating from the very repressive regimes from which the Appellants fled in the first place. A favourite term used in the Home Secretary's open evidence is "it is assessed that..."
It emerged during the Court proceedings in these cases that the security services think it appropriate to consider evidence obtained under torture in making their assessments - this could clearly include evidence gathered by repressive regimes or in Guantanamo. This would be inconceivable in a normal criminal prosecution. During the course of the internment proceedings, in the open session, a security service witness was asked whether the security services considered evidence obtained through torture and she confirmed that they did. This was a startling admission as evidence obtained through torture has always been inadmissible in court. Also startling was the fact that she was asked whether she was aware of the 'stress and duress' techniques used in Guantanamo which had been widely reported at the time - and she said that she wasn't.
On 31 March 2003, David Blunkett, UK Home Secretary, signed an Extradition Treaty with the US. The UK parliament was not consulted
at all and the text was not publicly available until the end of May 2003. The only justification given for the delay was "administrative reasons". The Treaty removed the requirement on the US to provide prima facie evidence when requesting the extradition of people from the UK. It was another example of the government finding ways to detain people without evidence or on the basis of material which is never seen - and which may also contain evidence obtained through torture. It is also a further example of the increasing use of information from the security services (whether here or abroad) to detain - this despite the patent unreliability of such information. This combination of the use of unreliable intelligence material and the setting up of legal procedures in which the material cannot be challenged, which continues today, is a double attack on human rights and the standards of due process and fair trial.
In Prime Minister's Question Time on 9 July 2003 the then Prime Minister, Tony Blair, was asked about the UK Citizens held in Guantanamo Bay facing possible trials by military tribunal and the death penalty. It was put to him that, "Feroz Abbasi has been held in Guantanamo Bay for 18 months without charge, and he now faces the prospect of a military tribunal in which he will not be able to appoint his own defence lawyer or to cross examine prosecution witnesses and he may face the death penalty following a decision behind closed doors." The MP (Mr Geraint Davies) went on to ask "Have the Government applied for the repatriation of my constituent to face a fair trial in Britain and will my Right Honourable friend press to have all the evidence against Feroz Abbasi supplied to the Government, so that we may press charges and apply for an extradition order under our terrorism legislation? Feroz Abbasi could then face a fair trial and be punished if guilty and the rule of law and human rights would prevail." The Prime Minister's reply was, "What my Honourable friend says must be right. If charges are brought, they must be proved in accordance with proper rules of evidence....any commission or tribunal that tries these men must be conducted in accordance with proper cannons of law so that a fair trial takes place and is seen to take place."
From his answer it would seem that the Prime Minister was completely unaware that hearings were taking place at that very time in the UK where people had been held for 18 months without charge, where secret evidence was being heard without their knowledge, where they only had limited access to cross examination of home office witnesses and where a decision to continue indefinite detention was made behind closed doors.
The internment appeals to SIAC were divided into two parts - an appeal against the derogation from Article 5 ECHR and an appeal against the individual allegations.
The appeal against derogation went to the House of Lords and is known as the case of A and Others. The Lords gave judgement in December 2004 (three years after the men were interned) and found that the legislation was unlawful in that it discriminated against foreign nationals and was not "strictly required by the exigencies of the situation" (the criteria for declaration of a state of emergency). Memorably Lord Nicholls said that:
"Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford." and "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."
The men were not, however, released as soon as the Lords made their judgement. They remained detained for a further 4 months until March 2005 when the new control order legislation was rushed through parliament.
Under the Prevention of Terrorism Act 2005 control orders can be made equally against British and non British nationals.
Control Order proceedings take place in the High Court. There is provision for closed evidence, again, and special advocates, so the procedure is, in effect, the same as that in SIAC. The Control Orders were issued after the new legislation was passed by parliament following days of heated debate which, however, missed several crucial points.
Parliament seemed to think that by getting Judges involved in the decisions to make Control Orders, rather than the Secretary of State, that the system would be fair. However, the first batch of Control Orders were issued by the Secretary of State himself and not a judge. The new legislation gave him the power to do this specifically for those foreign nationals already detained under ATCSA 2001. Even where it is a Judge who makes the control order he does so on the basis of a request from and information provided by the Home Secretary. The judge's role is only to "consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed" (emphasis added). There is no definition as to what "obviously flawed" might mean, but it is clear from the legislation that the judiciary is placed in the position where all it can do is to rubber stamp the decision of the executive. Even worse, the Secretary of State's decision is based on information from the security services, so, the judiciary is placed in the position of having to rubber stamp intelligence to authorise curtailment of liberty as if it were evidence tested in open court and which results in what amounts to a criminal penalty. The result of this is that the security services are indirectly given the power to curtail people's liberty completely by-passing the police, the CPS and the criminal justice system.
The conditions that can be imposed by Control Orders (for example: strict curfews, limited boundaries, stipulated address, no visitors, no meetings by arrangement, no use of internet, mobile phones or public call boxes) are equivalent to criminal penalties without the possibility of anything approaching a criminal trial to try to clear your name. It is a case of being presumed guilty rather than presumed innocent. Even worse, in the case of those previously detained under ATCSA 2001 it was a case of being presumed guilty on the basis of the same secret material that they had been unable to challenge for three years and for which they still did not have a proper mechanism of challenge.
In August 2005 those of the internees that were Algerian as well as one Jordanian were detained again, this time under immigration legislation. They were served with fresh decisions to deport, even though the previous decisions remained in place, and once again the Secretary of State certified that their detention was necessary in the interests of national security. They were taken to special high security units within high security prisons at Long Lartin and Full Sutton and held again as category A prisoners. Their appeals were once again to SIAC and they were facing the third set of proceedings on the basis of the same allegations by the Secretary of State and still without having any proper mechanism to challenge them.
They were back at square one, in SIAC, facing deportation proceedings and detained in high security prisons. This time the government was seeking assurances from countries that torture - Memoranda of Understanding - that the person would not be tortured on return. They were trying to find another way round Chahal and another way to intern people indefinitely without trial. The first ones detained on this basis were those who were previously on control orders, there were subsequently further detentions of some of the Algerians that were acquitted in the Ricin proceedings (the same evidence from the Ricin proceedings in which they had just been acquitted being used in the open case against them in SIAC) and then in October 2005 a number of Libyan nationals. This was followed by the detention of a number of Iraqi nationals that were subsequently released on control orders in November 2005 when it was accepted that to deport them to Iraq would breach Art 3 ECHR. The circular nature of all of this was felt acutely by the detainees/controlled persons.
Going back to the appeals of those who were originally interned in December 2001 one part of their appeals was about derogation and the other part was about their individual appeals. These were heard in the House of Lords in October 2005 and judgement was given in December 2005. The issue in these appeals was whether information obtained under torture by third parties could be admissible in SIAC proceedings. The Lords ruled that were it was clear on the balance of probabilities that this was the case such material could not be relied upon. The problem though remains that where the secret evidence that is presented consists of an 'assessment' by the security services, the underlying evidence on which the assessment is based may well emanate from such third parties. Further the judgement does not rule out evidence where there remains a possibility that it is obtained through torture.
This has now become particularly pertinent in relation to the Libyan nationals that were detained for deportation in October 2005 at the height of the 'rapprochement' between Britain and Libya and who were subsequently placed on control orders. They were said to be members of the Libyan Islamic Fighting Group - a group dedicated to the overthrow of Ghadaffi and which was proscribed shortly after the detentions. New evidence of diplomatic communications between the UK and Libya has recently emerged following the Libyan revolution. This shows that the UK and Libya were working closely together with regard to exchange of information on Libyan dissidents in the UK (and in particular alleged members of the LIFG) in the period leading up to their detention for deportation and the proscription of the LIFG. It also shows that the UK specifically requested information arising from interrogation of LIFG suspects in Libya - and this when it was well known and accepted by the UK government that the Libyan government routinely used torture in its interrogation of terrorist suspects. This fact clearly acknowledged in the decision to seek a Memorandum of Understanding in order to effect the deportation of those detained. It further shows that the UK provided information about UK based Libyan dissidents, in particular those alleged to be members of the LIFG, to the Libyan Regime and that this exchange of information took place within a wider context of rapprochement between the two governments, in relation to co-operation on terrorism but also in relation to co-operation on trade. The documents further show that the UK assisted the US in the rendition of Libyan dissidents to Libya where they were subsequently tortured.
With this two way traffic in detainee information being exchanged between the security services of both countries, with the UK happily accepting information arising from torture in Libya and with secret evidence being provided in the SIAC and control order proceedings by the very same security services how can the secret evidence procedure possibly be said to be fair or just?
The human cost to the men and their families over the years, whether interned, detained, subject to strict SIAC bail conditions or control orders, has been traumatic. Families have been broken up by the stress of living with the detentions and strict conditions, men and their wives have suffered with severe mental health illnesses and children have grown up knowing no normal life and always expecting the knock of the policeman at the door.
The control order legislation is still in place for the time being (new legislation is proposed but which also involves the use of secret evidence) and SIAC is still here. The use of secret evidence continues and is ever expanding into new areas of government decision making. It is becoming increasingly accepted as normal legal procedure with the consequent loss of due process and the effect on people's lives passing unremarked.
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