Coalition Against Secret Evidence

By Aisha Maniar

On 23 May 2011, Foreign and Commonwealth Office Minister Jeremy Browne giving oral evidence to the Foreign Affairs Committee concerning the Foreign Office’s report on its human rights work in 2010-2011  stated that the Memorandum of Understanding with Libya was no longer operative (Question 68). It is not clear, however, as other EU states have done, whether Britain will sign new agreements with the current government in Libya along the same lines. The agreements with Jordan, Algeria, Ethiopia and Lebanon remain effective. In the 2010 report, Human Rights and Democracy the government reiterated its support for deportation with assurances as part of the UK’s foreign policy which it is planning to roll out to other states.

by Aisha Maniar

On 5 September, the Terrorism Prevention and Investigation Measures (T-PIMs) bill had its third reading in the House of Commons followed by its first reading in the House of Lords the next day. The bill is to have its second reading at the Lords stage in early October and is expected to become law by the end of the year, with a transition period between the current control order regime, which it is to replace, and the new measures.

In her Review of Counter-Terrorism and Security Powers published at the beginning of this year, the Home Secretary Theresa May announced that she was going to abolish control orders, which had been introduced as a temporary emergency measure under the Prevention of Terrorism Act 2005. They are to be replaced with a new set of measures under the Terrorism Prevention and Investigation Measures Bill 2011. The new measures have faced considerable criticism as they will essentially continue the current regime, which amounts to house arrest for controlees and their families, with the same secretive procedures leading to the imposition of the measures by the Home Office and courts. The measures will apply to individuals alleged to be involved in terrorist activity but who cannot be prosecuted or deported. As with control orders, this will be punishment without charge or trial, on the basis of secret evidence which cannot be meaningfully challenged. Current restrictions such as on freedom of movement, association, residence, etc. will remain. Tagging and curfews will continue to be used as part of the measures. Criticisms have been made by human rights NGOs, legal organisations and some politicians; they are overall considered to be little more than superficial changes as opposed to real concessions to address the current imbalance of civil liberties.

Short Amnesty International review of the provisions of the bill – June 2011:
http://www.amnesty.org/en/library/asset/EUR45/007/2011/en/b32bbee7-5efe-4722-b1b9-65d6e2ef06f5/eur450072011en.pdf

Amnesty International UK press release on the latest version of the bill – 4 September 2011:
http://www.amnesty.org.uk/news_details.asp?NewsID=19666 

Liberty on the latest version of the bill – September 2011:
http://www.liberty-human-rights.org.uk/news/2011/anyone-for-tpims-control-orders-with-a-twist-.php

Statement by Caroline Lucas MP:
http://www.carolinelucas.com/cl/media/indefensible-tpims-are-control-orders-rebranded.html

The following is the text of an unprinted letter from CASE to the London Evening Standard last week

Control orders set dangerous precedent

The Coalition Against Secret Evidence want control orders scrapped in their entirety, not just rebranded. They have set a dangerous precedent whereby individuals can be detained on the basis of intelligence that they have not been able to see or have tested in a court of law. Under habeus corpus, every citizen has the right to know of what he is accused and to defend him or herself against such accusation – those subjected to control orders do not have this right.

There have been a number of individuals held under various forms of detention, including control orders, since 2001. CASE has seen the debilitating effect this has had on the individuals concerned who see no light at the end of the tunnel. All they want is the right to have any charge against them heard before a court of law. Surely any democratic and just country cannot deny that right.

We hope that the Liberal Democrats will hold their nerve and deliver on their promise to end control orders. There were many Liberal Democrats, now ministers in the government (among them Sarah Teather, Lynne Featherstone, Nick Harvey and Chris Huhne), who 198 months ago signed a CASE early day motion 18 months ago (number 1308) calling for an end to the use of secret evidence as utilised under control orders. Now is the time for them to deliver on that promise and demonstrate the confidence of their convictions by abolishing control orders.

Paul Donovan,  Adrienne Burrows

Hussain Saleh Hussain Alsamamara is a Jordanian man living with his family in the UK but under dehumanising immigration bail conditions set by the Special Immigration Appeals Tribunal (SIAC). In practical effect, these bail conditions also impose degrading living conditions on his whole family.

On 16 June 2010, BBC Newsnight aired a short film featuring Hussain that focused on everyday life under SIAC bail conditions. The film displeased SIAC and Hussain was summoned to court two days later to face potentially more severe bail conditions or even a return to a “real” prison. In the end the SIAC judge, Mr John Mitting gave Hussain a verbal warning and left his bail conditions unchanged, but he also asked the Attorney General to pursue the film makers.

For having the temerity of providing the public a glimpse of the kind of degradation the government and SIAC would prefer remained as secret as the secret evidence uses against Hussain, Attorney General Dominic Grieve is now looking to see how he might punish Fat Rat Film makers, Fred Grace and Gemma Atkinson.

To spare a government an embrassment or to shield a potentially criminal behaviour, the threat of fine or imprisonment against the members of the UK media in general, but in particular against campaigning independent journalists and film makers has a long and ignominious history.

While Fred Grace and Gemma Atkinson await the next moves from Attorney General, Fat Rat Films has made the following statement:

The fact that we have been threatened with prosecution for telling the story of a man who has never been charged, tried or convicted is shocking. Hussain Al Sammamara wanted to tell his story and we, as documentary filmmakers had the means to tell it. If we hadn’t, we wouldn’t have been doing our jobs. The film was made to bring the issue to a wider audience, to engage with them and to spark debate on the question of whether we should have detention without trial in 21st century Britain.

The film showed how Hussain and his family have suffered and continue to suffer over the last four years, putting a human face on what is often reported in an impersonal manner.

It is not controversial to say that the previous government has rolled back many hard won civil liberties and human rights. The new coalition government has the opportunity and what looks like the will to reinstate these basic rights. We hope very much that they take on board and act on the recommendations that Liberty have made today.

No matter what anyone thinks of Hussain and his situation, he should be allowed to voice his concerns in the public domain. Everyone has the right to tell their story; everyone has the right to freedom of speech.

As intimidating and frustrating as our position is, Hussain has had a much greater threat hanging over him for the last four years. Our wish is that he and his family are released from the horror of indefinite detention without trial or charge as soon as possible.

Responding to the new coalition government’s review of anti-terror laws, Liberty at it’s press conference hightlighted the threat against Fred Grace and Gemma Atkinson as yet another timely example of the excessive and coercive use of current anti-terror laws.

no place like home
Fat Rat Films

by Aisha Maniar

While there has been a good deal of focus on individuals subject to control orders, their human rights and general living conditions, very little focus has been put on the issue of national security deportations and those subject to it. The new Conservative government has over the past few weeks oft repeated its determination to continue the previous government’s foreign policy of seeking to sign Memoranda of Understanding (MoU) – little more than diplomatic assurances – with regimes known to carry out torture, and then to  return “terrorism suspects” to their country of origin. It has been argued many a time that such assurances are not worth the paper they are written on and if safety from torture could be ensured, assurances would not need to be sought in the first place.

Thus, unusually, on 16 June, the first day of ahearing to decide fate of several individuals under threat of deportation under the mask of MoU the case, national security deportations with assurances and the process at SIAC were the main story for the whole first half hour on Newsnight on BBC2. With a panel including former Home Office minister Tony McNulty, the former head of SIAC and the imam of Leyton Mosque in east London, the discussion was preceded by a film about life under immigration bail conditions for VV, the Jordanian appellant in the above case, who real name is Hussain Alsamamara, and his family. The moving film featured Mr. Alsamamara and his young daughter as he talked about life under strict bail conditions and the effects it has had on him and his young family. Mr. Alsamamara is a Jordanian asylum seeker who escaped persecution and torture in his own country only to find himself stuck in a web of secret evidence and perpetual detention without trial or charge for over 5 years. He was later interviewed live on the telephone during the programme by presenter Gavin Esler. A short excerpt of the film can be seen at: http://news.bbc.co.uk/1/hi/programmes/newsnight/8743947.stm

Taking part in the film was a breach of Mr. Alsamamara’s bail conditions and as a result of appearing in a film broadcast publicly and speaking to the BBC, he was summoned to appear at SIAC on the morning of Friday 18 June for a bail hearing. It was feared that his bail may be revoked as a result, however after being reprimanded by the judge, none of the current terms of his bail were varied and he was allowed to return home to his family. In spite of the government’s insistence on keeping this form of house arrest and detention without trial in Britain today as secret as SIAC procedures, over a million people either tuned in to watch the programme or watched it on BBC iPlayer.

It is hoped that the film will later be made into a longer documentary by the makers, Fatrat Films. For more details on the upcoming documentary, please visit: http://www.noplacelikehomedocumentary.com/

The Newsnight story was also covered by The Guardian newspaper: http://www.guardian.co.uk/law/2010/jun/16/terror-suspect-control-order-appeal

by Aisha Maniar

On 16 June, a Supreme Court panel of seven judges ruled unanimously that a control order that required the controlee to live 150 miles away from his family in London was a breach of his human rights. The controlee, AP, was moved away from London to prevent him associating with particular members of the Muslim community there and was moved to a location in the Midlands where he was isolated and had to remain indoors for 16 hours each day. For various reasons, it was difficult for his family to visit him there. The judges in their ruling held that the family circumstances of a controlee have to be taken into consideration before an order is imposed and the Home Secretary was wrong to argue that the personal circumstances of a controlee need not be taken into consideration. A week later on 23 June, the Supreme Court handed down a second judgment in this case to maintain AP’s anonymity due to the risks that could arise from his identity being disclosed.

AP is a 32-year old Ethiopian national who came to the UK in 1992 with his family. They have always lived in London since. In 1999, they were granted indefinite leave to remain. After travelling to Ethiopia and Somalia in 2005, he was detained by the Ethiopian authorities at the end of 2006 and upon his return to the UK on 28 December 2006, he was refused entry and was detained pending deportation until July 2007 when he was released under immigration bail conditions. The deportation application was withdrawn in early 2008 when he was instead placed under a control order. The terms of the order were varied in April that year and he was obliged to move to the Midlands where he faced social isolation. He was allowed to appeal in August 2008, however on 2 July 2009, the Home Secretary revoked the control order and instead decided to seek his deportation on national security grounds. He is currently subject, at the same address in the Midlands, to Special Immigration Appeals Commission bail conditions. Thus, while this particular appeal was of no benefit for AP himself, “the points it raises are said to be of some general importance with regard to control orders” (paragraph 8), hence the Supreme Court allowed the appeal.

The judgment can be read at: http://www.bailii.org/uk/cases/UKSC/2010/24.html

More on this judgment: http://news.bbc.co.uk/1/hi/uk/10327696.stm

On 10 June 2010, Justice Secretary Kenneth Clarke announced that under the Inquiries Act 2005 there would be an judicial inquiry into the death of Azelle Rodney, a young unarmed man shot dead by police officers from the Metropolitian police’s CO19 armed unit  in April 2005.  A previous attempt to hold an inquest was abandoned when the coroner ruled the inquest could not proceed because too much evidence from police witness statements had been redacted and that other intercept evidence could not be used because of how it was obtained. Following an Independent Police Complaints Commission (IPCC) investigation, the Crown Prosecution Service decided that there was insufficient evidence to warrent criminal charges against any police officer for killing Mr Rodney.

The government originally sought to introduce the use of secret inquests through the Counter-Terrorism Bill 2008 and then reintroduced it in the Coroners and Justice Bill 2009 but it was again rejected. Instead the inquiry is being set up under the Inquiries Act 2005, under which minister have considerable powers to decide on what can and cannot be made public. The inquiry is to be chaired by Sir Christopher Holland, a retired judge. It is likely that as the inquiry will involve “sensitive material” concerning police procedure and conduct, a good deal of the information will be withheld from Mr. Rodney’s family and the public.

For more on this news: http://www.guardian.co.uk/uk/2010/jun/10/inquiry-police-killing-azelle-rodney

A website has also been set up for the purpose of the inquiry: http://azellerodneyinquiry.independent.gov.uk/index.htm

By Aisha Maniar

On 18 May, judgment was handed down at the Special Immigration Appeals Commission (SIAC) in the national security deportation case of five of the ten Pakistani students arrested in “Operation Pathway” anti-terror raids last year. Two of the men, Abid Naseer and Ahmed Faraz Khan, are present in the country and attended the hearing in March 2010. Three others, Shoaib Khan, Abdul Wahab Khan and Tariq Ur Rehman brought out of country appeals to have their national security threat assessment removed so that they could return to this country and complete their studies. Contact was made during the hearing with these three men in Pakistan and their families by phone link for the purpose of providing testimonies and evidence. The remaing five men from the original ten who were arrested returned to Pakistan in the course of the past year and chose not to challenge the security risk assessment made against them. The three-week hearing was held partly in open session, in camera whereby the Abid Nasser and Ahmed Faraz and their counsel could attend the hearing but not the general public. The last week of the hearing was held in secret.

At a first bail hearing in this case in May 2009, counsel for the security services stated that Mr. Naseer was the ringleader of a potential bomb plot and an Al Qaeda operative, providing a basis to deny bail to Mr. Naseer and his fellow students. The other students were deemed to be associates of his and involved in the “plot”. Disclosures indicating the basis of this assessment, consisting largely of e-mails and some items found in Mr. Naseer’s possession, was made in August and November 2009 and formed the large part of the open evidence, along with further disclosures this year that was presented at the hearing in March 2010. A security services witness cross-examined by the appellants’ counsel failed to provide any elucidation on the open evidence during the hearing and repeatedly stated that he could only comment in closed session.

In remarks concerning last March’s hearing, Justice Mitting held the assessment made by the security service that the men pose a risk to national security and should be removed on this basis was valid. However, in the case of Naseer and Faraz Khan, they could not be removed from the country as further to Article 3 of the European Convention on Human Rights (prohibition on torture), they would face the risk of ill-treatment on return. The appeal of two of the other men, Abdul Wahab Khan and Tariq Ur Rehman, to be able to return to the UK, was rejected and Shoaib Khan won his appeal on the basis that it was held that he was “not a knowing party to the plans”. With respect to national security, before setting out the judgment, the court stated that “we have taken into account a substantial volume of closed material. Our decisions have been based substantially or, in some instances determinatively, upon that material” (paragraph 8).

Although Abid Naseer and Faraz Khan “won” their appeal against deportation, they are in no better a situation as the assessment on which that deportation was sought still stands and its basis remains unknown to them and their lawyers. As well as seeking to “win” their case against deportation, they were also seeking to be disassociated with the “terrorism” label applied to them. Abid Naseer and Ahmed Faraz Khan now join the dozen or so individuals caught in the twilight zone of the UK’s national security deportation regime, in some cases for almost a decade now: individuals who cannot be deported to their country of origin due to the risk of torture or ill-treatment on return but simultaneously cannot know the basis on which the security risk assessment leading to the deportation order was made.

No charges and no prosecutions of any kind have been brought in Operation Pathway. Like others caught in this twilight zone, there is no viable means of challenging the assessment through the courts as the basis on which it is made is unknown and due to the highly sensitive “national security”-linked nature of the evidence, a prosecution cannot be brought either. As solicitor Gareth Peirce, whose firm Birnberg Peirce represents Naseer and Khan stated at a meeting organised by the Justice for the North West Ten (J4NW10) campaign group last year, it “takes stamina [for SIAC appellants] to fight the State. They’ve taken on the State”.

A statement issued by solicitors for Abid Naseer and Ahmed Faraz Khan following the judgment states:

“The decision of SIAC today in respect of the two students we represent is in fact, for them, the worst of all worlds. On the basis of secret evidence which it refuses to disclose to the students, the court tells the world in its judgment that they are closely connected to an Al Qaeda plot to cause explosions in the UK. The court acknowledges they have not been told why it comes to this conclusion, yet these young men have been branded publicly and thereby exposed to personal danger for the rest of their lives. SIAC moreover refused them permission to appeal against its decision on the basis that they had ‘won’. At the same time SIAC has decided that neither can be deported to Pakistan without the probability that he will be tortured. The risk of such a fate has of course been heightened but in all likelihood created by the Secretary of State’s claim and SIAC decision.” (Source: http://www.independent.co.uk/news/uk/crime/alqaida-operative-wins-fight-against-deportation-1975872.html)

The J4NW10 campaign group has produced a newsletter on the students case.

Letters and messages of support can be sent to Abid Naseer and Ahmed Faraz Khan c/o Birnberg Peirce & Partners, 14 Inverness Street London NW1 7HJ

“Open” judgment in the case can be read at: http://www.siac.tribunals.gov.uk/outcomes2007onwards.htm

An Amnesty International report released in April 2010 illustrating a number of fundamental flaws
inherent in diplomatic promises – for the UK “Memorandums of Understanding” – that those deported from the countries they fled will not be tortured. Europen governments embelish and destort the reality of such diplomatic efforts to their publics and courts by …

” ….. misrepresenting the arrangements in place (e.g. claiming that independent bodies will monitor the individual, without having consulted with those bodies); lack of effective means for the sending government to protect a person once a transfer occurs; the absence of good faith willingness and/or ability to ensure respect for the rights of a returnee on the part of the receiving state—already acknowledged asa country where torture, ill-treatment, and other human rights violations are practised, often with impunity; the absence of incentive on the part of both governments to acknowledge a breach of the assurances and to investigate such breaches; and the vague scope of the promises, including how long they are supposed to apply to a specific person.”

Dangerous Deals