Background

The introduction of the Terrorism Act (TACT) 2000 brought to the UK a new raft of measures that had previously not been considered since the Irish Troubles. In 2000 the use of the powers was considered to be still relatively theoretical with no substantial threat of terrorism estimated by Western security agencies. The events of 11th September 2001 completely changed the dynamic of counter-terrorism policies in the UK.

Soon after the enactment of the 2000 Act, the UK government pushed through the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 which significantly increased the powers of the police. This was extended further in 2005 through the Prevention of Terrorism Act and then again one year later through the Terrorism Act 2006.  The various pieces of legislation provide the government and police with various rights which will be discussed over the course of this report.

Statistics from the Home Office taken between 11th September 2001 and 31 March 2007 indicate that out of a total of 1228 arrests made, 241 individuals were charged with a terrorist offence, 669 were released without charge and the remainder were charged under other offences.  These stark figures go a long way to indicating the manner in which the Muslim community in the UK has come under attack by the counter-terrorism legislation, especially when it is considered that between the period mentioned, there were only 41 convictions.

Widespread terror arrests and the subsequent hysteria whipped up through the media are not the only methods with which the UK government has propagated its detention policies. Alternative policies have been put into place which sought to detain individuals without charge; such policies include the use of control orders, deportations and extradition. In many cases these have resulted in long-term detentions without charge or trial. It is these cases that this report seeks to address – by addressing the immorality of the policies that have been implemented in order to detain suspects without charge.

Detention without charge in the UK has found synonyms in other detention policies around the world – the men who have now suffered eight years of detention without charge refer to prisons such as Long Lartin as ‘Long Lartanamo – Britain’s Guantanamo’. The use of such symbolism has been a key feature of the way that these men view their detention in relation to the detention of others around the world.


Extradition

In 2003 the UK government fast-tracked the Extradition Act 2003 through Parliament. The Act was unprecedented in UK legal history due to the removal of a prima facie case in the UK before any extradition could take place. Further the US government does not have to provide any prima facie evidence to the UK government but show merely a list of allegations.

The legislation was fast-tracked as part of the arsenal of mechanisms given to the government in order to tackle terrorism. An unfortunate consequence of the Act was the extradition of the NatWest 3, a group of city bankers who became subject to the legislation. Fear among those working in the city of London that they could possibly become subject to US jurisdiction without a prima facie case led to a movement to criticise the government’s policy on extradition. Despite recurring efforts from various sections of UK society, the extradition agreement remains as part of governmental efforts to stop terrorism.



Extradition to Europe

Since 11 September 2001, many states have taken measures to speed the extradition process. Indeed, the EU states have adopted the European Arrest Warrant, which removes the requirement to ensure that the suspect will receive a fair trial and that there is prima facie evidence against that person. Those who defend the use of these warrants contend that all EU states are accountable to the European Convention on Human Rights, which upholds the individuals rights to a fair trial and to freedom from torture or any other cruel or inhuman and degrading treatment. However, upon examination of the legislation and practice of some of these EU states, cause for concern arises .

In 1985, the UK signed an extradition treaty with Spain, mainly in order to arrest several high-profile criminals who had escaped from the UK to live on the southern coast of Spain. In November 2001, the UK and Spain signed a new extradition treaty that “fast tracks” the extradition process, replacing it with a single court hearing. “Fast-tracking” treaties between countries have become quite common since 9/11 . Before 2001, Spain had only requested the extradition of five people from the UK.

Since 2001, human rights groups, non-governmental organisations, the UN, and detainees themselves have expressed concern over the Spanish police and government’s treatment of detainees suspected to have links to terrorist organisations . Of particular concern are issues with Spanish legislative counter-terrorism measures, police ill-treatment of detainees and the effective impunity of these perpetrators, and the possibility of further extradition to countries with historical human rights abuses, thus subjecting them to a heightened probability of ill-treatment or torture.


Deportation

In December 2004, the case of A and others v Secretary of State for the Home Department  signalled a major blow to the UK government’s domestic counter-terrorism policies. For three years, sixteen foreign nationals were detained in UK prisons under the Anti-Terrorism Crime and Security Act 2001.  The men were Algerians, Jordanians, Libyans and Tunisians. The aim was to keep these men detained indefinitely without charge on the order of the Home Secretary. The House of Lords ruling in the case condemned the use of the law due to its unlawfulness under the European Convention on Human Rights (ECHR).

Of the seventeen foreign nationals who had been through the long period of detention without charge, two returned voluntarily to their country of origin, thirteen were released, one remained in prison for other offences while the remaining detainee was kept under other powers.

The London bombings of 7th July 2005 changed the fate of these men again as many were re-arrested. Some of those foreign nationals who had been detained previously as part of the ‘Ricin’ plot, were also rearrested despite their acquittal in a jury trial. Offended by the manner in which these men were being treated, some of the jurors took unprecedented action and came out publicly to declare their contempt for re-arrests.

Despite the acquittals in open court, they were still detained after an order by the Home Secretary that they were “not conducive to the public good”. The Home Office decided that the men should be detained under Immigration law in light of national security concerns.


Memoranda of Understanding

Instead of detaining the men without any evidence, the government sought to have them removed from the UK altogether. The UK government however came to an impasse with this policy through the internationally binding principle of non-refoulement, meaning that the government cannot remove or deport any individual to a country where there is a risk of abuse or torture. The cast-iron principle required the government to come up with an alternative strategy to remove the men to their countries of origin.

The subsequent invention of the UK government’s legal advisors was to use Memoranda of Understanding with countries in the Middle East and Africa to secure deportation. This policy has come under severe criticism by international human rights NGOs due to its neglect of the non-refoulement principle. The main criticism cited is that the understanding/assurances have no legally binding effect and are not worth the paper they are written on.

On 10th August 2005 in Amman, Jordan became the first country to sign a Memorandum of Understanding with the UK. The position was quickly followed by Libya who signed up to a similar agreement on 18th October 2005. Both countries had previously been strongly criticised by governmental and non-governmental bodies for their records in human rights, particularly in relation to arbitrary detention and torture. The UK government also sought to make a similar agreement with Algeria; however, they refused to sign.

Despite Algeria’s refusal to sign a Memorandum of Understanding, the government continued to keep the men detained. As for those whose deportations had been approved to Libya and Jordan, the difficult task of appealing had begun.


Special Immigration Appeals Commission

The Special Immigration Appeals Commission (SIAC) is considered to be one of the most controversial and secretive courts in the UK. It is created by the Special Immigration Appeals Commission Act 1997 to allow the appeals commission to deal with cases of appeal where the Secretary of State has made an order of deportation, or exclusion from the UK on the grounds of national security or public interest.

Where the Secretary of State determines that the decision to deprive was based wholly or in part on reliance on information which should not be made public, the appeal against the decision is made through SIAC. The government has worked hard in order to centralise as many powers as possible to make decisions outside of the legal process. SIAC may superficially have the safeguards of a legal process; the system however, is abusive in the way it is implemented.

Initial commission rules stipulated a SIAC hearing should be heard in public, however a provision has been added to close off such proceedings and instead some evidence is heard in closed sessions. Furthermore; since most of the cases brought before SIAC now involve terrorism suspects, judges will ensure that a high level of secrecy is maintained of the government’s evidence.

Most controversially the secrecy of the evidence is not only hidden from the public but is also kept from the appellant and their legal team, due to alleged reasons of national security and public interest. In such circumstances, the Judge appoints a Special Advocate to represent the interests of the appellant under Section 6 of the SIAC Act 1997. The Special Advocate can not disclose the secret evidence to the appellant nor is able to take instruction from the appellant or their representative.

The procedural aspects of the SIAC hearings are an affront to all concepts of justice in removing the presumption of innocence and due process. The commission judgments rely on a very low burden of proof, given that the evidence cannot be tested in the way it is in criminal courts. Added to this, the evidence which is relied upon is sometimes obtained by intelligence in conditions of torture; thus for SIAC to use such evidence is contrary to international law.


Control orders/bail orders

During the debates surrounding the detention of the men being held indefinitely without charge, the Labour government had already begun to put into place mechanisms to detain individuals outside of recognised due process. On 11th March 2005, the Royal Assent was given to the Prevention of Terrorism Act 2005, an Act that brought in the policy of control orders.

There are an unlimited range of restrictions imposed on those who are suspected to be allegedly involved in terrorist activity. Such restrictions can include controls on a person’s movement through curfew, monitoring and vetting of those they may associate with and be employed by, as well as police powers which allow unannounced searching and removal of items from their premises. A breach of a control order is punishable by up to five years in prison, and or an unlimited fine. 

This means that a suspect, whose frustration at being subject to such interference, despite having not been charged with any offence, intentionally or unintentionally leads them to breach the conditions of their control order, will face criminal charges. 

Examples of the kinds of restrictions that can be used include: wearing a tag, twenty-two hour curfew, restriction on visitors below the age of ten, no mobile or internet use, signing at police station several times a day and being subjected to random police searches. These restrictions have the unfortunate consequence of collectively punishing any family member residing with the control order detainee.

The use of control orders has similarities with the application of bail orders on immigration detainees. Due to the very specific rulings that have been issued by the UK courts and Europe relating to control orders, there is only a certain amount of time – 16 hours – that individuals can be restricted to their homes – however under immigration bail orders, the restriction to the home can be as long as 24 hours a day. The government has used to difference between the two to place harsh control restrictions on those facing deportation.

Control orders serve to severely undermine the very basis of fundamental human rights. In not allowing a suspect to know the evidence against them and indeed dispute it, a control order clearly contravenes the principles of a right to a fair trial and hearing under the European Convention of Human Rights. The decision to impose a control order by the Home Secretary undermines the principle of separation of legislative and judicial powers without a due legal process. While the curtailing of movements, family life and social activities all serve to deprive the right of liberty.


Financial orders

As part of UN sanctioned counter-terrorism measures, the use of financial orders can be placed on any individual to freeze their assets and remove their ability to earn any money. Governments must submit an application to the UN to outline why an individual should be subjected to financial sanctions with a claim that they have information that comes from intelligence sources.

The lack of oversight by the UN in relation to the placing of sanctions essentially allows the UK government to provide any list of allegations and sources that they want against an individual to keep them from having any recourse to proving their innocence. In the cases of those that cannot be charged due to lack of evidence, the sanctions provide the perfect tool to effectively ‘detain’ the men in their homes without meeting any evidentiary standard.

Please download Cageprisoners leaflets on UK detentions from the links attached below.