The End of Secret Evidence?

The government's policy of imprisoning terror suspects without charge or trial on the basis of secret evidence may now be over

Yesterday, two high court judges effectively brought to an end the [UK] government's eight year-long policy of imprisoning terror suspects without charge or trial - depriving them of their liberty under a form of house arrest - on the basis of secret evidence.

Conceived in haste after the 9/11 attacks, when 17 men were imprisoned without charge or trial, mostly in Belmarsh high-security prison, the government's policy mutated in March 2005, after the high court ruled that this Guantanamo-style programme was illegal.

The replacement regime consisted of control orders and deportation bail. These are stringent forms of house arrest, which can involve forced relocation, curfews, tagging, reporting to security firms at all times of the day and night, raids by Home Office officials at all times of the day and night, the vetting of visitors, and a ban on mobile phones and use of internet.

Those who cannot be deported, either because they are British nationals or because the courts intervened to prevent their return to countries where they faced the risk of torture, are - or were - held under control orders, and those whom the government still hopes to deport are held under deportation bail. In both cases, the punishment for breaking any of the myriad conditions imposed on the detainees is relocation to a prison cell.

In June this year, the law lords delivered a crippling blow to the control order regime, which finally addressed the bizarre system developed for dealing with secret evidence in the Special Immigrations Appeal Commission (Siac). In this parallel legal universe, special advocates are responsible for representing the accused in closed sessions involving the use of secret evidence, but are prevented from revealing anything about those sessions to the people they represent.

Unanimously, the lords ruled that imposing control orders breaches Article 6 of the European convention on human rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given "sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him".

Although this was the beginning of the end for the control order regime, and led to the government losing a few more court cases, and in other instances quietly quashing existing control orders, the deportation bail regime remained intact until yesterday's ruling, even though it functioned on the same basis, as was exposed by the Guardian in Slow Torture, a series of films and articles in July.

Yesterday, however, Lord Justice Laws and Mr Justice Owen finally addressed this lapse in the equal application of the law, ruling that it was "impossible" to conclude "that in bail cases a less stringent procedural standard is required" than in control order cases. The judges also rejected a claim by Siac that its decisions should be "immune from judicial review".

The judges' ruling came in the case of XC, a Pakistan student (and one of 10 students arrested in April), who was refused bail on the basis of secret evidence, and the case of U, an Algerian. Imprisoned without charge or trial for seven years, U had finally secured bail last summer, and lived for a short time, under a 24-hour curfew in a rented house in southern England, until, in February, then home secretary Jacqui Smith decided that he was likely to abscond, and persuaded Siac to revoke his bail and return him to prison.

With the high court ruling, it is now time for the government to stop pretending that it is justifiable to hold anyone without charge or trial on the basis of secret evidence, and to test the allegations against alleged terror suspects in a forum that respects Article 6 of the ECHR.

There are many ways in which this can be achieved, including overturning the ban on intercept evidence, as Justice, the all-party law reform group, explained in a report in June, and if the government is still struggling to establish a case, then it must conclude, as true respect for the law demands, that this is because the information it is relying on does not rise to the level of evidence.

© 2023 The Guardian