Britain’s Guantánamo: Calling For An End To Secret Evidence
1.4.09
On Monday, in a packed committee room in the House of Commons, politicians, lawyers and human rights campaigners came together to discuss how to both confront and publicize the British government’s increasing reliance on the use of secret evidence, and evidence obtained through torture. The meeting focused in particular on the cases of five men held under strict bail conditions or in prison, on the basis of secret evidence, who are facing deportation, even though they face the risk of torture, as a result of “diplomatic assurances” agreed between the British government and the governments of their home countries. However, the use of secret evidence also affects other men, held under control orders, who cannot be deported either because they are British nationals, because the British government has failed to secure “diplomatic assurances” that it regards as credible, or because, on occasion, the courts have intervened to prevent their deportation.
Since the terrorist attacks in the United States on September 11, 2001, our government has aped the horrendous flight from domestic and international law that was introduced by the government of George W. Bush in its brutal and chronically ill-advised “War on Terror,” and, as a result, has fatally undermined Britain’s reputation as the country that introduced habeas corpus — establishing that no one may be imprisoned “except upon the lawful judgment of his peers or the law of the land” — and exported it to the rest of the world. As the American lawyer Tom Wilner explained to me in an interview for a forthcoming documentary about Guantánamo, “That’s the most basic protection of the law and you in England should be very proud of it because it is the basis of the rule of law around the world.”
It is, moreover, just as disturbing to realize that this descent towards tyranny has taken place while largely ignored by the British public, or hidden from it through the complicity of the media, and to note that, while many British people were happy to bash the Bush administration for its brutal and lawless policies, they have been far less willing to accept that similar policies have been implemented in their own backyard.
As Gareth Peirce, the solicitor for many of the men held in Britain on the basis of secret evidence, explained in an introductory letter to the meeting,
Reliance upon secret evidence in this country, in ways that avoid any proper open scrutiny, increases daily. In recent months this reliance, far more extreme in the UK than in any equivalent democracy, has been commented on with intense disapproval by every relevant international body including the “Eminent Jurists Panel” of the International Committee of Jurists (which studied over two years the use of anti-terrorism practices worldwide), the United Nations Committee on Human Rights, the United Nations Special Rapporteur on Human Rights (PDF), and the European Court of Human Rights in the case of A and Others.
The nightmare that surrounds this particular small group of men upon which the meeting focuses, is not therefore an isolated event; it takes place in the context of an important, far wider and ever increasing way in which we find our laws and their application on a collision course with the most basic of concepts; that an accused person knows the case against him, and can contest it in a fair, open and public hearing.
The concept is easy, but the need to explain it and debate it adequately is not easy — it is elusive and appears not to affect most of society.
As well as attracting a wide range of lawyers and activists, Monday’s meeting also succeeded in drawing support from a number of MPs, including Peter Bottomley, David Davis, David Drew, Lynne Featherstone, Kelvin Hopkins, David Lepper, Sarah Teather and Des Turner, and members of the House of Lords, including Baroness Howells and Lord Avebury. The MPs were asked to pledge their support for an early day motion declaring “That this house believes the use of secret evidence in UK courts is fundamentally wrong,” and Diane Abbott opened the meeting by declaring that it had three additional aims:
1) To form a group of interested parliamentarians, lawyers, doctors and activists to continue to work on this issue;
2) To call for an independent inquiry into the use of secret evidence in the UK;
3) To ask for assurances from the FCO and the Home Office that secret evidence used here is not based on evidence obtained through torture.
Also mentioned was a proposal to ask those MPs who have constituents who are being detained — whether in prison or in their homes — to visit Long Lartin prison, or their constituents’ homes, to see for themselves the conditions in which they are held.
The speakers — Gareth Peirce, Shami Chakrabarti, the director of Liberty, Ben Ward of Human Rights Watch, and Dinah Rose QC — then ran through the history of secret evidence, and addressed its significance. Gareth Peirce said that we were two-thirds of the way down a slippery slope, from which there could be no return, and called the current situation a “national emergency.” She noted that, when Guantánamo opened, and people saw the shackled prisoners in their orange jumpsuits, they were reminded of slavery, and instinctively knew that it was wrong, and that when Stephen Lawrence was murdered, people again knew instinctively that what had happened was wrong, but that in the case of the men detained in the UK over the last seven years, these instinctive responses have been stifled by the use of secret evidence.
The other speakers highlighted different aspects of the government’s policies. Shami Chakrabarti described the history of SIAC (the Special Immigration Appeals Commission, which assesses the deportation cases, often taking evidence in closed sessions), and explained how, after 9/11, it had mutated into a “secret terror court,” and Ben Ward drew the meeting’s attention to a troubling passage in the FCO’s recent report on human rights (PDF, p. 16), in which, after stating, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” the report’s authors added, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”
Although this was followed by a declaration that it is “quite clear” that “information obtained as a result of torture would not be admissible as evidence in any criminal or civil proceedings in the UK,” the passage as a whole confirms not only that the FCO is committed to keeping open a torture loophole, but also that, because that information cannot be used in a court, it will, instead, undoubtedly contribute to perpetuating the very system of detaining people on the basis of secret evidence that Monday’s meeting was convened to address.
I was particularly impressed by Dinah Rose’s statement, in part because, as a barrister, she has direct experience of SIAC 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 (the barristers who represent the detainees in closed sessions, but who are prohibited from discussing anything that takes place in these sessions with either the detainees or their lawyers).
Dinah stated that it was “hard to explain just how shocking an experience SIAC is for an advocate used to the basic norms of our legal system,” adding, “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 explained that, as a result,
although 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.
Dinah proceeded to provide two anecdotes which vividly demonstrate how SIAC and the use of secret evidence have undermined the principles of natural justice. In the first, she recalled an incident a few years ago, when she was working as a special advocate in a hearing at which the Home Secretary applied to revoke a detainee’s bail on the basis of secret evidence. This related to alleged attempts by the detainee to breach his bail conditions, but, as she explained, “The special advocates were told what the evidence was, but we were prohibited from discussing the material with the appellant or his lawyers. We were simply unable to offer any resistance at all to the application, in the absence of any instructions, which might have explained or cast a different light on the evidence.” She proceeded to explain that, as a result, the judge revoked the detainee’s bail, and ordered him to be sent to Belmarsh, and added,
I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.
On another occasion, Dinah was working with a colleague on the case of another detainee, who, it was alleged, “had attempted to travel on a particular date, using a passport which belonged to another suspected terrorist.” It was only because her colleague was working on another case, in which another detainee was accused of exactly the same offence — using the same passport, on the same day and at the same time — that it became apparent that the intelligence services had made a serious mistake in compiling their evidence, but she explained that when she subsequently went on a training session with the intelligence services, and asked for an explanation of how such a mistake had been made, she was told, “very firmly,” that it was “impossible.”
Bringing the story up to date, Dinah then described what happened five weeks ago, after SIAC was convened to assess the bail conditions of the five detainees facing deportation. As she described it, she and her colleagues “successfully resisted” an application by the Home Secretary to revoke their bail, but instead of abiding by the Court’s ruling, the Home Secretary then arranged for the two men who had attended SIAC to be sent to Belmarsh prison instead of going home, and imprisoned the other three after seizing them from their homes. Dinah then explained what happened next:
The next morning we returned to SIAC urgently to seek habeas corpus and a renewal of bail, and asked politely on what basis our clients had been detained. The explanation, in relation to four of the five, was not that there had been any new development or evidence which had emerged since the hearing. Rather, the Home Secretary had simply disagreed with the judge’s assessment that it was not necessary or proportionate to lock the men up. So, notwithstanding the decision given on the previous day, she had decided to go ahead and detain them anyway.
She added that, although she was constrained from commenting further, because the Home Secretary’s decision “remains the subject of legal proceedings,” she “made the point at the time that such conduct by a government minister is a basic violation of the principle of the rule of law,” and she concluded her statement by declaring that “we should be more disturbed than we are about what goes on in SIAC. Unless its activities are subject to the scrutiny of parliament and the media, there is a significant risk that principles which I had always comfortably assumed to be so deep rooted in the UK that they no longer needed defending could be further eroded.”
In a successful attempt to humanize the detainees, who are mostly identified only by initials (Detainee Y, Detainee BB, Detainee U, and Detainee Z), the speakers’ statements were punctuated by other statements, written by the detainees themselves, or compiled from interviews conducted by their friends, which were read out by Honor Blackman and a group of actors from the National Theatre. The first three of these statements will be published after this article, and the other two will be published tomorrow, along with another article, “Britain’s Guantánamo: Fact or Fiction?” which compares and contrasts the regimes implemented by the Bush administration at Guantánamo, and the British government in the UK.
For an introduction to this series of articles and statements on the British government’s use of secret evidence in terrorism cases, see Britain’s Guantánamo: An Introduction, and for two more articles see Torture taints all our lives (published in the Guardian’s Comment is free) and Britain’s Guantánamo: Fact or Fiction?. For the five statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara and Five Stories From Britain’s Guantánamo: (5) Detainee Z.
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 see here for my definitive Guantánamo prisoner list, published in March 2009.
For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009).
Who's still at Guantánamo?
18 Responses
Connie says...
And this may also be of some future use for the prisoners of the war crimes as well!
US in Reversal (from Bush Policies) Runs for UN Rights Council (whom Cheney/Bush chose to be as far away from as possible!)
http://oneheartforpeace.blogspot.com/2009/04/us-in-reversal-runs-for-un-rights.html
...on April 1st, 2009 at 8:38 pm
Eleanor Boyd says...
Thanks again, Andy, for an excellent article. I just hope something will come from this meeting. Dinah Rose is impressive! Wish there were more like her! It’s so good to have a first-hand account!
...on April 1st, 2009 at 11:19 pm
Andy Worthington says...
Yes, the brain-power and commitment to justice in that committee room on Monday was extraordinary. It was good to see more parliamentarians on board, and I look forward to Diane’s early day motion, but it remains, of course, bitterly disappointing that the people of Britain are largely unmoved by this travesty of justice.
...on April 1st, 2009 at 11:51 pm
Andy Worthington says...
This is from Brian Barder, a retired diplomat who served on SIAC when it was first established, and later resigned:
I hesitate to express reservations about the strongly held views of such eminent civil rights experts, with whom I usually agree strongly. But none of them really addresses the dilemma. Inevitably much of the evidence on which the security authorities rely in seeking to forestall acts of terrorism (an obviously laudable and legitimate aim) comes from secret informers, ‘moles’, providing indispensable information from within radical groups, mosques and madrasas, and other circles. If their evidence is given in open court, in the presence of the suspect and his lawyers and other observers, it may well be possible to work out the identity of the mole. This could well endanger the mole’s physical safety and even his life. It would also ensure that these vital sources of information would dry up: no-one will secretly give information to the police or the Security Service if he knows that his cover may be blown if the information he has provided is made available to the suspect and others in open court. But it’s obvious that in many cases the first and most important warning of terrorist activity necessarily comes from a secret informer, and if it becomes impossible to recruit informers, the detection rate of terrorist plotting is bound to diminish to dangerous levels.
If we observe the golden rule that anyone accused of a crime always, in whatever circumstances, has the right to know all the evidence against him, as those quoted in this post demand, the consequence will inevitably be that terrorist suspects who can’t be prosecuted (because the main evidence against them can’t safely be disclosed to him or indeed to others attending the trial) will be detained without trial, either in prison or in what is to all intents and purposes under house arrest, because they can’t safely be left at liberty. Hence the deeply objectionable régime of Control Orders under which people who have not been charged or tried for any offence are deprived of their liberty, perhaps indefinitely, with their family lives ruined, jobs lost and pariah status in their communities.
The alternative is to allow a limited amount of evidence, especially if provided by secret informers, to be given in closed court, without the presence of the accused, his lawyers or the public, but on the strictest of conditions that:
a. the presiding judge has seen the relevant evidence and agrees that it can’t safely be given in open court;
b. the court’s decision may not rely solely or mainly on the secret evidence, which must be corroborated by other evidence given in open court;
c. the interests of the accused are represented by a senior QC, the “Special Advocate”, who has been security-cleared, has seen and heard all the evidence, open and closed, and can cross-examine the Crown’s witnesses and analyse the secret evidence; and
d. the decision of the court is subject to appeal to a higher court and ultimately to the new Supreme Court (currently the House of Lords).
All these conditions have to be met in the Special Immigration Appeals Commission (of which I was a founding lay member when it heard its first ever case). My own experience tended to confirm that the role of the Special Advocate is crucial as going a long way to protecting the interests of the accused or appellant, that the Commission is scrupulous in rejecting applications for specified evidence to be heard in secret if the need for this is not adequately demonstrated, and that secret evidence should never be deemed sufficient on its own for a conviction, rejection of an appeal, or other decision adverse to the suspect.
So in practice the choice is between (i) a limited system for some evidence to be withheld from the suspect, subject to the safeguards described above: and (ii) indefinite detention of some suspects without trial or charge. It seems to me that of the two admittedly highly unsatisfactory options, limited secret evidence with safeguards is by far the lesser evil. Others may differ; but if they do, they should at least recognise and accept the consequences of their choice. There is no wholly satisfactory solution. As so often in real life, the only available choice is between two or more evils.
As a postscript, it may be argued that we currently have both secret evidence (in SIAC) and detention without trial (control orders), the worst of all possible worlds. I have no doubt, though, that if all evidence in SIAC had to be given in open court, there would be far fewer SIAC cases and many more people detained without trial under control orders. Moreover, if the SIAC system, including the safeguards, were to be extended to the criminal courts, there should be no need for control orders or for any other system of detention without trial. Can it seriously be argued that this would not be greatly preferable to the situation we have now?
Brian Barder
2 April 2009
http://www.barder.com/ephems/
...on April 2nd, 2009 at 8:52 am
Andy Worthington says...
Brian,
Thank you very much for taking the time to provide such detailed comments, and for taking the discussion to where we need it to be.
You have, to be fair, exposed the shortcomings in the most reductive arguments about “open” v. “closed” evidence (and my apologies if I have overstated the case for “open” justice at the expense of some necessary nuances — though I think bold statements are required to try and awaken the British public to what is going on).
When I recently analyzed the Law Lords’ ruling on the deportation of Abu Qatada, U and BB, it was apparent to me that the British government’s refusal to adapt its approach to the use of evidence — blithely ignoring how many other countries have addressed the question of how to use sensitive information without compromising intelligence sources and methods — was the key to breaking the deadlock, and moving towards what you correctly describe as “the lesser evil” of using “limited secret evidence with safeguards.”
The article is here:
http://www.andyworthington.co.uk/2009/02/22/abu-qatada-law-lords-and-government-endorse-torture/
May I ask if you have any suggestions for how to move forward on this? After Monday’s meeting, there were some discussions about approaching special advocates to seek their opposition to the current system, but as some were aware, and as you have pointed out, often “the role of the Special Advocate is crucial as going a long way to protecting the interests of the accused or appellant” — as was demonstrated, in slightly different circumstances, in the judicial review of Binyam Mohamed’s case last year. See, for example:
http://www.andyworthington.co.uk/2008/11/10/guilt-by-torture-binyam-mohameds-transatlantic-quest-for-justice/
My feeling was that these difficult questions need to be addressed by lawyers themselves — or, ideally, their representative bodies — as the current situation ought to be intolerable to the legal profession as a whole.
...on April 2nd, 2009 at 9:18 am
Saleyha Ahsan says...
Thanks Andy for getting this out there. Brilliant on getting that input from Brian Barder. It might be worthwhile quoting from a letter we recieved from Vernon Coaker MP, Minister of State from the Home office in a response to a letter sent to our MP Mike Gapes about concerns on the use of secret evidence in British courts. Mr Coaker believes that the use of Special Advocates makes the system acceptable and fair. He writes:
“Special Advocates are independent barristers of the highest integrity, experience and ability whose role it is to represent an appellant’s interests in cases where sensitive material is presented. they have access to all of the closed material adduced by the government and will make the submissions on behalf of the appellant. The Special Advocate can communicate with the individual before being served with the sensitive material and can recieve written instructions from the individual after he has seen the closed material or communicate directly with the commission’s permission.”
It is interesting that he feels this makes the system fair and legitimate whereas those who have carried out this duty find it unfair and does not allow the appellant to a fair hearing.
It might be prudent to gain as much feedback at this stage from Special Advocates on this matter themselves. I found it very worrying when Ben Ward from Human Rights Watch mentioned at the parliamentary meeting that other countries such as Canada are modelling their legal system with the UK and SIAC and have started using Special Advocates. No this is not progress.
...on April 2nd, 2009 at 12:30 pm
Very Real Dilemmas… « Back Towards The Locus says...
[…] Worthington has been to a relevant Parliamentary meeting… “On Monday, in a packed committee room in the […]
...on April 3rd, 2009 at 8:36 am
Andy Worthington says...
A great response from Valtin:
Andy,
This is all shocking material. I had never heard of the “control orders” before. I can’t compare them to anything precisely like that in the States. I will make sure this gets top billing in the Sunday Daily Kos Torture series, which I’m hosting this weekend.
I’m sure you heard by now of Leahy’s defeatist statements re his “Truth Commission”, which was likely to be a farce anyway. The Democrats are caving like a house of cards, and none too soon, for Levin is supposed to release his unclassified report on the DoD torture any day, and the OLC memos are going to be released sooner or later. The most explosive expose hanging out there are the Abu Ghraib photos that have not yet seen public airing.
All depressing material. The National Security State never sleeps, it never stops pushing its agenda, while liberals of many stripes sleep as if they were the reincarnation of Rip van Winkle.
Just great work you are doing. Indispensable.
Keep an eye on Valtin’s blog: http://valtinsblog.blogspot.com/
And his Daily Kos page is here: http://valtin.dailykos.com/
...on April 3rd, 2009 at 9:30 pm
Andy Worthington says...
And my reply:
Very glad to hear that you’ll be mentioning “Britain’s Guantánamo” on Sunday.
Lots of stuff seems to be about to push its way out of the torture closet in the coming weeks, even if the damning OLC report seems to be being rewritten:
http://www.pubrecord.org/law/806-doj-watchdog-revising-report-highly-critical-of-john-yoos-legal-work.html
Levin’s unclassified report, for example, should be savage, but it does appear extremely difficult to waken enough sense of outrage in the Senate, or among the general public. Still, at least people are talking about it in the States. When the Home Secretary here ignored the court’s ruling, kidnapped the bail prisoners and sent them to prison, no one even noticed. Literally.
...on April 3rd, 2009 at 9:30 pm
Andy Worthington says...
I’ve been having another think about Brian’s comments and my response above, on the basis that I’m unsure if I made it clear that, although there may be occasions when some sort of mechanism for using secret evidence is required, we need to start from the position of addressing the shortcomings of the current system, and to begin with a presumption that as much of the proceedings as possible should take place in open court.
So, to make it clear: the criminal justice system is capable of functioning openly, and protecting informers and methods of surveillance. It already does so, to a large degree, and although some additional tweaking may be required, we’re only in this mess because the government decided to regard “terrorism” as a brand-new existential threat, rather than a type of organized crime, which it is.
However, there are problems with the current system that need more than tweaking. For example:
1) The tendency of SIAC to accept, in a generally uncritical manner, whatever arguments are put forward by the Home Secretary to justify keeping evidence secret;
2) The fact that, if any risk to national security is proposed by the government, SIAC’s procedure rules prohibit it from weighing that risk against the interests of the accused;
3) The fact that, although some informers might need protecting, SIAC will not even disclose intercept evidence from a landline that, under the accused’s bail conditions, is the only phone that he can ever use, and that he knows is monitored;
4) The unjustifiable prohibition on contact between the Special Advocates and the accused, or their lawyers, once the Special Advocate has seen closed material. There seems to be a matter of trust here, which there should not be, as the Special Advocates are security cleared, and should clearly be regarded as trustworthy. It should be possible to arrange a method whereby the Special Advocates can take instruction without revealing any secrets, as the present situation is farcical, and yet another unnecessary obstacle to justice.
...on April 3rd, 2009 at 9:56 pm
Britain’s Guantánamo by Andy Worthington -- Antiwar.com says...
[…] to persuade the government to change its policies. A detailed report of the meeting is available here, and the profiles of five prisoners are available by following this link), but I thought it was […]
...on April 4th, 2009 at 4:03 am
Britain’s Guantánamo: Fact or Fiction? by Andy Worthington « Dandelion Salad says...
[…] to persuade the government to change its policies. A detailed report of the meeting is available here, and the profiles of five prisoners are available by following this link, but I thought it was also […]
...on April 4th, 2009 at 9:32 am
Sally Griffin says...
I have just read Andy’s excellent report ( I was not able to get to the meeting) and the correspondence about secret “evidence.”
Brian Barder states that an appellant cannot be locked up on the basis of secret material uncorroborated by open evidence; yet this is exactly what happened to Mr. “U.” Judge Mitting was very clear that his decision to revoke bail was made exclusively on the basis of closed material. Also, we understand that there is no appeal from SIAC in these cases, contrary to what Mr Barder has said. And on the subject of informants, if everything is done in secret, how does anyone know how reliable or otherwise the “mole” may be? Someone on the fringes of the migrant community, who fears deportation, has no papers, is promised, perhaps, citizenship, and even a new identity, if he says things helpful to HM government, can easily be persuaded to oblige with “information” that may be seen as useful, but is quite possibly not truthful. Pure hearsay in these circumstances is not susceptible to verification, simply because of the secrecy that envelopes these whispered conversations between anonymous people. Lack of accountability breeds corruption.
...on April 9th, 2009 at 10:25 pm
Andy Worthington says...
Hi Sally,
Great to hear from you. Apologies for the delay in replying — I’ve been away.
I just wanted to say how important your comments are about secret evidence and hearsay, and the very real possibility that bribery — or, I must add, threats — played a part in encouraging “witnesses” to produce false allegations. It’s clearly a major part of the process, and much more hidden and submerged than at Guantanamo, where lawyers have been able, over the years, to demonstrate the extent to which false allegations — produced through torture, coercion or bribery — have provided the supposed justification for holding men without charge or trial.
...on April 20th, 2009 at 10:24 am
Sally Griffin says...
Thanks, Andy.
This whole process in SIAC gives one a very queasy feeling. As Dinah Rose said, “It looks like a court”–but it isn’t one. The open material produced against the 5 men was as little deserving of the name “evidence” as the secret material. (I can’t bring myself to refer to secret “evidence” since that seems like a contradiction–isn’t “evidence” by definition something that is seen openly?)
The open material consisted of a “statement” composed by an anonymous “Home Office official.” It wasn’t an affidavit (not sworn, as far as I could see) and since the person or persons who produced it were themselves secret, there was no opportunity for cross-examination by the men’s barristers.
It was written a few hours before the SIAC session, and D. Rose had sight of it only 15 minutes before the procedure opened! She and the other barristers successfully demanded an adjournment, but the Home Secretary’s intention was that the hearing would have proceeded immediately.This looked to me like an attempt to stampede the Commission into a decision without proper time to examine the facts.
The only section of this statement on which I can properly comment was the part relating to Mr “U”, and that was not impressive.It was full of surmise and innuendo and half-truths and untruths,and relevant facts were omitted. Had there not been witnesses, in the form of “U’s” landlord and visitors, to point out these matters to his counsel, these tendentious statements might have got by without being properly challenged. That, I suspect,is why the Home Office was so opposed to having him stay in a house where there were people around to see fair play, and to point out the inconsistencies in the Home Office officials’ case. If they were compelled to let him live at a bail address, they wanted him to be alone and isolated, where any groundless accusations of breaching his bail would come down to his word against theirs.
Ultimately, it seems to me, secret material always trumps open evidence, which makes the procedure something of a pantomime. When the anonymous Home Office official’s statement was shown to be full of holes, the department quickly came up with some new, invisible, scary stuff that nobody is allowed to know about, but which Judge Mitting clearly felt he had to bow to. It was clearly rustled up in a bit of a hurry, because Counsel objected to the lack of notification about its use, but Judge Mitting over-ruled this objection, in order to avoid further delay.
I’m no lawyer, but the more I reflect on what went on in those proceedings, and the more I compare the Home Office’s assertions with what I know from my own observation, the more it troubles me.
...on April 22nd, 2009 at 6:19 pm
gerardmulholland says...
Whilst I wish the very best to those who think that there is still time to pull UK back from the Orwellian brink, I do not share their heady optimism.
The time to complain and protest and reject the peversion of British traditions and British standards was in the first year of the first Thatcher government.
Since then her and Major’s and Bliar’s and Brown’s surrender of every single British traditional value has been absolute.
We thought Bliar was going to roll back the authoritarian Ultra-Right Wing Tory State but within weeks he was using Oswald Mosley’s 1931 term for fascism (when he was still in the Labour Party) – ‘New Labour’ and had Mosley’s apologist son Max round to No 10 for drinks.
It was then that all hope disappeared.
I wish you luck, Dinah Rose, Gareth Pierce, Shami Chakrabarti and Ben Ward.
But I fear that you’re 30 years too late.
Remember what happened in Germany when so many people thought it couldn’t really be true, that there must be some mistake, that those who had nothing to hide had nothing to fear and that it would all come right in the end.
The best thing that any liberty-loving person in Britain can do now is what the wise did in 1930s Germany.
LEAVE.
...on April 24th, 2009 at 8:46 pm
John Allman says...
To answer Brian, informant information that cannot be used in court, lest the informant be placed in peril, can nevertheless identify a suspect against whom safely admissible evidence can be sought, and can suggest where to look for this evidence. If the informant’s information doesn’t enable the gathering of safely admissible and conclusive evidence against the identified suspect, the informant’s purported information amounted to a false lead.
Any other policy is a charter for false informants to wreak havoc by supplying misinformation for gain, perhaps thus taking revenge against their own, innocent enemies, and always risking miscarriages of justice.
...on November 4th, 2009 at 11:58 pm
Living With A Terror Suspect: Detainee U’s Landlord Tells His Story by Andy Worthington « Dandelion Salad says...
[…] been continuously in custody since March 2001,” held without charge or trial, on the basis of secret evidence, “save for a period from July 2008 until February 2009, when he was on […]
...on December 7th, 2009 at 12:33 am