Coalition Against Secret Evidence

The parliamentary Joint Committee on Human Rights (JCHR) published a report on 25 March:Counter-Terrorism Policy and Human Rights: Bringing It Back In

The report called for a review of all counter-terrorism laws passed since September 2001.

Commenting on the expanding use of secret evidence the report comments “It can now be used in a wide range of cases including deportation hearings, control order proceedings, parole board cases, asset-freezing applications, employment tribunals, and even claims for damages. We note that in Binyam Mohamed’s and others’ claim for compensation the High Court has held that special advocates and secret evidence may be used for the first time in a civil action for damages” (55).

The report calls for a review of the use of secret evidence and special advocates and the Special Immigration and Appeals Commission:

“The Government’s response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board’s procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review”(62).

“I’m Afraid I Can’t Tell You That…”

By Aisha Maniar

A three-week appeal hearing started at the Special Immigration Appeals Commission (SIAC) on Monday 8 March in a case involving five men seeking to clear themselves of the “terrorist” label and Home Office attempts to remove them from the UK on the grounds that they “pose a threat to national security”. On the first day of the actual hearing, Tuesday 9, counsel for the alleged “ringleader” of an unsubstantiated terrorist plot cross-examined a security service agent, known only as witness ZR.

In April 2009, twelve men, one Briton and eleven Pakistani nationals, were arrested in anti-terror raids under “Operation Pathway” in the northwest of England. Accused of planning a “very big plot”, no material evidence was found to back up the claims and the men were later released without charges under the Terrorism Act 2000.  Shortly after, however, ten of them, all foreign nationals, were rearrested pending deportation on national security grounds.  Held as Category A (high-risk) prisoners, the men decided to appeal their deportation and clear themselves of being smeared with the “terrorist” tag.  Due to enormous pressure from various sides, several of the men decided to drop their appeals and returned to Pakistan.  By the time the appeal started this week, only two of the men remained in the country. Abid Naseer, 23, considered the “ringleader” of the plot, still held as a Category A prisoner without charge or trial, and Ahmed Khan, also 23, recently bailed under strict immigration bail conditions, both attended the hearing and will do so throughout the open parts of it.  Three other men have decided to bring out of country claims to appeal the security service’s assessment of them.

Following the arrests last April, no charges were ever brought and hence no trial was held at which the men, all students whose costly education in a foreign country was brought to an abrupt end, could openly state their own case. Appeals against deportations on national security grounds are heard at SIAC where proceedings are held both in open and closed (secret) sessions. It is important to note that, to date, no charges or convictions have been made in relation to these allegations and the basis for the allegations made has not been fully revealed to the men involved.

At an initial hearing in May 2009, lawyers for the government accused the men of having links to Al Qaeda. Although much of the alleged evidence against the men remains secret, some disclosure was made in August 2009 and then later in November 2009 and March 2010. The core government argument against these individuals remains the same, that Abid Naseer and his associates were planning an attack in the UK which was directed and orchestrated by Al Qaeda. Coded e-mails formed a substantial part of the planning process and the attack was to be carried out in April 2009. In disclosures made in November 2009, it was stated that although the men were not ready to carry out an attack when arrested, there was still the possibility that they could have, with the most probable dates being between 15 and 20 April. E-mail correspondence between Mr. Naseer and a man known as Shoaib, who was possibly in Pakistan, constitute a large part of the evidence that has been disclosed.  ZR stated that the e-mail evidence is “designed to look like correspondence about girls between two people but that is not what it means. They are coded messages for an attack planned by Al Qaeda”.

Counsel for Mr. Naseer argued that the e-mails, which contained discussion about girls, cars and marriage, were the only basis for the assessment.  ZR claimed that they were an important part of the overall understanding of Mr. Naseer’s activity. Initially in their correspondence, the two men had not used their own names but had used girls’ names instead. In his statement, Mr. Naseer stated that there were cultural reasons for this and for him to be able to gain access to particular websites.  Once they were familiar with each other and had identified each other, they started using their own names openly. The security services’ assessment, however, is that girls’ names were used to disguise the nature of the e-mails, which was allegedly to communicate with Al Qaeda abroad and to report on progress and plan terrorist attacks. Other use of the e-mail addresses for social purposes and the fact that real women were referred to was simply a cover. The names of women referred to in the discussion between the two men have also been assessed to be codes. Although there are various theories as to what the “code” may refer to, the prevalent one is that they refer to ingredients that could be used to make explosives.  No explosives or ingredients were found in the possession of any of the appellants or information of any plans to procure them.

In its public disclosure, the security services referred, without providing any basis for its assessment, to the similarities between this alleged plot and past planned and/or executed terrorist plots. Represented by leading barristers with extensive experience of defending terrorism plots over the past few years, Joel Bennathan QC for Abid Naseer and Baroness Helena Kennedy QC for Ahmed Khan, the counsel for the appellants sought to ascertain exactly what these “similarities” may be, particularly given that the reason for this assessment of the men and the greater part of the evidence against them remains secret. Going through the allegations made, such as of the “mindset evidence” of Mr. Naseer possessing a USB drive containing nashids (Islamic songs) in Arabic and Urdu, with the Arabic ones – a language he barely knows – supposedly jihadist in nature, it was asserted that actual possession of such materials is not an essential ingredient for involvement in terrorist activity and cannot alone be taken as evidence of radicalisation.  ZR refused to comment on these points. Mr. Bennathan pointed out that from the assessment made there were no apparent similarities to any other plots, to which ZR stated the linguistic fact that “similar” and “identical” do not mean the same thing.

Other points of similarity to other plots, particularly the 7/7 bombings and the airline bomb plot, such as the procurement of materials, training abroad and modes of communication with others involved were also points ZR felt “uncomfortable” commenting on as he did not know what information was and was not in the public domain. While ZR could confirm points mentioned in the evidence already provided and before the appellants in any case, he could not provide any reasons for how the conclusions in the security assessment that these men should be removed from the country on “national security” grounds were reached. Instead the security services’ witness was more of a broken record answering each question along the lines of “I’m not comfortable…” or “I cannot answer that in open. I can say more in closed session”. Having effectively answered no questions or having moved the argument on at all, Mr. Bennathan asked ZR if he actually knew what it meant for him to give evidence in an open court of law and if he knew the difference between closed and open evidence. It was also suggested that perhaps he should go and read up on the topics and return once he knew what he could and could not say, however it was decided that process could take a long time. When held in closed session, only individuals who have been vetted  by the security services may attend, which excludes the appellants and their lawyers.  Instead, in these sessions, they are represented by “special advocates” who are not allowed to communicate with them or their lawyers once they receive the secret evidence and can only defend them based on the materials they have without being able to refer back to them. As shown through the largely pointless and tiresome proceedings on the first day, the use of secret evidence makes it almost impossible for the barristers to do their job of defending clients and for any progress to be effectively made. The effect is largely a charade of justice. On day 2, Baroness Helena Kennedy put her questions in cross-examination to ZR on behalf of her client, Mr. Khan.

The hearing is scheduled to last three weeks until 26 March. Please check the SIAC website www.siac.tribunals.gov.uk website if you are planning to attend. A handful of supporters and journalists turned up for the first day of the hearing. The two in-country appellants will be attending the hearing at all open sessions. Please do attend if you can to show them your support and to witness this theatre of justice in person. In week three of the case (w/c 22 March), the hearing will be held in private – the appellants and their counsel can attend – and the media and public are not invited to attend. The judgment made as a result will be open but the materials and rationale will remain private. The case has also sparked a good deal of interest in Pakistan. Various government ministers in the country have stated that these men have nothing to do with any terrorist organisations or activity there.

Sarbjit Johal from the J4NW10 campaign has also put together extensive notes from the opening day of the hearing. Please e-mail sarbjitj@hotmail.com if you would like a copy.

To coincide with the hearing the London branch of the Justice 4 the NW10 (J4NW10) campaign will be holding a public meeting about this case on Saturday 13 March at 2pm at Conway Hall (Artist’s Room), 25 Red Lion Square , Holborn, WC1R (nearest tube: Holborn).

·        What has been the experience of each of these students?

·        Where do we stand now – with the case and the campaign?

·        What are the wider implications?

Speakers include: Tariq Mehmood, Parents of the students (Speaking from Pakistan), Person under control order (Speaking by phone link).

For further details call: 07846873341

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On Monday, 1 March 2010 the parlimentary Joint Committee on Human Rights (JCHR) presented its report Annual Renewal of Control Orders Legislation 2010 to parliament.

The JCHR report is highly critical of the control order regime, concludes that “the current control order regime is no longer sustainable” and calls for it to be scrapped altogether. The cost of control orders and their impact on the individuals, families and communities affected were singled out as particular concerns. The report criticised the government for failing to give MPs sufficient information about control orders to be able to scrutinise them effectively. Also criticised is the use of special advocates and their ability to communicate or represent a controlled person once an advocate has received closed material.

On Monday, 1 March 2010, after a 90 minute parlimentary debate in the House of Commons, the control order regime was renewed. Some 206 MP’s voted to continue with the control order provision compared with 85 MPs who voted against. It is the fifth time control orders have been renewed.

There are currently 12 control orders in place, with 9 applying to British nationals. In support of renewal, the Minister for Policing, Crime and Counter-Terrorism, Mr. Hanson cited potential national security and safety concerns and threats.

Members of the Coalition Against Secret Evidence marked the day of the debate with a morning protest outside the House of Commons and also added their support to an open letter to all MP’s.

The full House of Commons debate can be read on Hansard at: http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100301/debtext/100301-0013.htm#10030158000001 (from column 271 onwards).

To view a breakdown of voting among MP’s visit http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100301/debtext/100301-0018.htm

Control orders came about as a response to the House of Lords judgment in the Belmarsh case in 2004, ruling against arbitrary and indefinite detention for terrorism suspects without charge, and were introduced in the Prevention of Terrorism Act (PTA) 2005. They were immediately imposed on the former Belmarsh prisoners. Their stated purpose is “protecting members of the public from a risk of terrorism” and are imposed by the Home Secretary. The law is reviewed annually and may be either renewed or repealed. The debate for renewing these provisions will take place in parliament on 1 March and will be voted on shortly thereafter. There are currently less than a dozen control orders still in place and both foreign nationals and British citizens can be subject to them.

On 1 February 2010 a draft order for the renewal of control order powers under the Prevention of Terrorism Act 2005 was laid before parliament. Also presented to parliament was a review of the control order regime that was ordered last September by the Home Secretary and undertaken by government’s independent reviewer of terrorism legislation, Lord Carlile. That review concluded control orders were necessary for the safety of the country and “that abandoning the control orders system entirely would have a damaging effect on national security”. However, Lord Carlile is reported as having said the control order regime should only be used on a small number of cases where the information is robust, the risk serious and when a conventional criminal prosecution is not possible.
http://www.guardian.co.uk/uk/2010/feb/01/carlile-backs-control-orders-terror

On 3 February, the parliamentary Joint Committee on Human Rights (JCHR) held a public evidence session on “Counter-Terrorism Policy and Human Rights: Control Orders” at which oral evidence was given by solicitors Gareth Peirce and Sean McLoughlin and special advocates Helen Mountfield, Angus McCollough and Thomas de la Mare. The session was held to inform committee members before the forthcoming parliamentary debateon renewing the control order provisons.

Commenting on the use of secret evidence in these cases, Mr. McLoughlin stated, “The evidence we get justifying the control order is limited, and for us to take instructions from a client to address the assertions is very difficult, and for that client to be able to respond in any meaningful way. In essence his evidence is given in a vacuum because he does not know quite a lot of the case that is being alleged against him. Equally the client will be suspicious of how any information he gives may be used, and clearly if you are trying to challenge an allegation against you the allegation needs to be made to you”. The discussion covered the effects of control orders on the individuals affected and their family, the development of control orders over the past five years and other pertinent points. An uncorrected transcript of the evidence can be read at: http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/uc356-i/uc35602.htm

Liberty has a started a campaign against the renewal of the control order legislation. The campaign includes a public petition and asks that you lobby your MP on this issue.

Following the House of Lords decision in the AF and others case last year, ruling that individuals subject to such orders must be given sufficient reasons as to why they are being controlled, several control orders have been lifted. The outcome of this ruling means that the government has the choice of either providing disclosure of the reasons the control order has been made or of dropping the order; without this disclosure, such orders are illegal. In all cases, the government has chosen not to provide disclosure and the control orders have been lifted. In some cases, however, the government has chosen to work around the secret evidence issue to impose new “lite” control orders, without curfews, tags or visiting restrictions, arguing that the duty to provide disclosure does not apply to such orders.

Even where control orders have been dropped, the men concerned who have sometimes had these orders imposed on them, and their wives and children if they have families, for several years, still have no way of knowing what that secret evidence used to restrict their freedom was, ensuring that the ruling has not undermined the arbitrary power of the government.

Faraj Hassan, a Libyan former control order subject, had his order lifted in late December last year. It was imposed after the government decided that he and another Libyan national, who had his order lifted last month, were a threat to national security who could not be removed by deportation from this country as this move was blocked by a Court of Appeal ruling in a separate case in 2008. Commenting on the ruling in his case, Mr. Hassan said, “A control order is nothing more than a euphemism for what is basically Apartheid-style house arrest. Likewise there should be no doubt that its purpose is the same as well to break you and make you want to leave that country.” (Source: Cageprisoners). By the time an it is lifted, the secretive and arbitrary nature of control orders will have already had a destructive effect on the physical and mental health of the men involved and their families.

On 18 January 2010, two former controlees, AE and AF, had their control orders quashed, as the Home Secretary refused to provide disclosure of the reasons these orders were made. Mr. Justice Silber ruled that without this evidence being made known to AE and AF, there was no case for imposing or renewing the control orders, which were thus effectively illegal, as was the nature of the restrictions. This has paved the way to the possibility of these former controlees suing the Home Secretary for damages for the unlawful restrictions. The Home Secretary has said that he will appeal this decision.

http://petitions.number10.gov.uk/secret-evidence/

We the undersigned petition the Prime Minister to ensure that everyone in the United Kingdom has the right to a fair trial by ending the use of secret evidence to obstruct the judicial process.

For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence in a fair, open and public hearing.

The injustice caused by the use of secret evidence is illustrated by Dinah Rose QC, who recalled how a man in a bail hearing asked the judge: “why are you sending me to prison?” to which the judge replied: “I cannot tell you that”. Rose added, “They simply took him to jail, without any explanation at all.”
Secret evidence is used to hold and detain individuals in prison and under house arrest conditions for years (affecting their families as well). It is used also in employment cases, to prevent disclosure of information about the role of Britain’s security and intelligence agencies in complicity with torture, and to refuse or revoke British citizenship.

The government must fully restore habeas corpus rights to the British justice system and sweep away all vestiges of a secretive process that is effectively a denial of justice.

Justice, an independent legal human rights organisation founded in 1957 have recently released their report on the use of secret evidence in the judicial system.  An Executive Summary the report details the following concerns;

• It is a basic principle of a fair hearing that a person must know the evidence against him.

• This core principle of British justice has been undermined as the use of secret evidence in UK courts has grown dramatically in the past 10 years.

• Secret evidence can now be used in a wide range of cases including deportations hearings, control orders proceedings, parole board cases, asset-freezing applications, pre-charge detention hearings in terrorism cases, employment tribunals and even planning tribunals.

• Defendants in some criminal cases are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in hundreds of criminal trials and is widespread in ASBO hearings.

• Since they were first introduced in 1997, almost 100 special advocates – lawyers prohibited from communicating with those they represent – have been appointed. Indeed, the government itself does not know how many special advocates have been appointed.

• This report calls for an end to the use of secret evidence. Secret evidence is unreliable, unfair, undemocratic, unnecessary and damaging to both national security and the integrity of Britain’s courts.

• In its place, this report sets out a series of recommendations that include the strengthening current disclosure procedures by the creation of public interest advocates to replace special advocates in PII claims; increasing the transparency of existing court procedures; and ending reliance on ‘reasonable suspicion’ in such proceedings as deportation and control orders.

For further information contact Eric Metcalfe, Director of Human Rights Policy, emetcalfe@justice.org.uk, direct line: 020 7762 6415

By Frances Webber

A recent meeting in the House of Commons gave a fillip to the campaign against secret evidence in terrorism cases. In a packed committee room in the House of Commons, on 30 March 2009, MPs, lawyers, journalists, human rights campaigners and activists listened to testimonies (read by actors) from five men whose lives have been terribly changed and damaged by secret evidence. The five, from Algeria and Jordan, described how ordinary life ended when they were arrested, on suspicion of being terrorists, and taken to high security prisons, and how on their release their private and family lives were destroyed by requirements to stay indoors for up to 24 hours, to do without mobile phones or access to computers, to have their home searched at all hours of the day or night, to report to police and monitors several times a day, to have all visitors vetted, and to wear electronic tags. These conditions continue, and one man has been returned to detention, so the men could not be physically present at the meeting. Although all of the men had had hearings, none had been able to challenge most of the evidence against them, since neither they nor their lawyers had been allowed to see it.

The Special Immigration Appeals Commission (SIAC), where the Attorney General appoints ‘special advocates’ to hear evidence deemed too sensitive for the appellant or his lawyers to hear, is at the heart of the burgeoning system of secret evidence which hides collusion with torture or worse. Diane Abbott MP chaired the meeting, organised by a coalition of groups including CagePrisoners, Peace and Justice in East London, the Campaign Against Criminalising Communities (CAMPACC), the Muslim Prisoner Support Group, the Association of Muslim Lawyers and others. Liberty director Shami Chakrabarti gave a brief history of anti-terrorist legislation and called on MPs to reject a ‘British Bill of Rights’ which, she feared, would water down existing rights and remove rights from unpopular groups such as terror suspects.

Gareth Peirce, solicitor, pointed out that the twin evils of secrecy, and the torture that it covers, are disguised and buried behind the facade of national security, and contrasted the appetite for secrecy of UK state institutions with the openness of the US government in dressing suspects in orange, shackling and caging them – blatant actions producing visual images of cruelty and degradation which provide a clear focus for campaigners. Without such clear visual signs of cruelty, the secrecy and the complicity it hides embed themselves and grow, she said. Deference to government was positively dangerous, she added, and the government’s proposal for a secret inquiry into the allegations of complicity revealed by Binyan Mohammed and others was simply unacceptable.

Ben Ward, representing Human Rights Watch, reminded the meeting of the way so-called exceptional measures, supposedly designed for a particular one-off purpose, bleed into other areas. He urged MPs to strike down clauses of the Coroners and Justice Bill which allow inquests into deaths caused by state officials to be held in secret, away from juries and family members, and not only where there are national security issues but also where the evidence might be diplomatically harmful or for other so-called ‘public interest’ reasons.

Dinah Rose QC is a senior barrister with vast experience of SIAC, and her condemnation of SIAC as a place which is ‘not a court, if a court is a place where evidence is tested so that the truth can be discovered’, carried authority. She told a chilling story of how a mistake by the security services was behind control orders against two men. They (secretly) accused two different men of simultaneously using the same false passport to travel abroad in two separate cases. The mistake was only discovered by the coincidence that the special advocate was the same person in both cases; it would never have come to light otherwise. But even then, the security services denied that such a mistake was possible. She also described how the Secretary of State illegally detained the men after SIAC declined to revoke their bail, on the basis that she ‘disagreed’ with SIAC’s decision.

A fair sprinkling of MPs and peers attended the meeting, including veteran campaigner Lord Avebury and Tory shadow home minister David Davis. The lines were drawn to take the campaign forward. A serious challenge to SIAC and its secrecy, about which the Bar Council expressed concern in 1997, is clearly on the cards, and campaigners will expect to see renewed parliamentary opposition to the secret inquest provisions of the Coroners and Justice Bill. And the inquiry into complicity with torture must not be allowed to take place in secret. A thorough and public investigation into the uses of secrecy is called for if the rule of law is to be preserved in the country still lauded as the model for fair and open justice.

Frances Webber’s commentary was orginally titled ‘Campaign against secret hearings’ and first pubished on 2 April 2009 by the Institute of Race Relation’s news service. We are grateful to the IRR for permission to reproduce this article.