Court of Appeal backs jail without charge or trial

Liberty: by pretending this is about immigration not terrorism, Court has stripped away all the protections of justice for any foreigner our secret services dislike

The Court of Appeal ruled today that the internment of 'terrorism suspects' without charge or trial is lawful and is not discriminatory. The Court unequivocally supported this draconian power in the Anti-Terrorism, Crime & Security Act 2001, overturning July's decision by the Special Immigration Appeals Commission.

The UK Government currently holds nine people in jail under the Anti-Terrorism, Crime & Security Act; some of them have been locked up since before Christmas 2001 - all without charge or trial, some without even being questioned by police.

They are held because the Home Secretary 'reasonably suspects' them of involvement in terrorism. In practice, this means that people can be locked up not on the basis of evidence, but on the basis of potentially tenuous "intelligence". The Attorney General himself in argument for the Home Secretary said that intelligence material is often fragmentary, suggestive, incomplete and may be contradictory. This cannot possibly be a fair basis on which indefinitely to lock people up without the chance to clear their name in a trial.

Terrorist suspects belong to all races and nationalities. Even though many such people are British nationals, this power only applies to foreigners, who cannot be deported to their own countries because they face persecution, possibly torture and death, there; and they cannot find anywhere else to go.

Shami Chakrabarti, one of the Liberty lawyers who intervened in this case, says:

"By pretending that this is not about terrorism but about immigration, the Court has allowed the Home Office to strip away all the protections for innocent people that our criminal justice system can offer. It has also undermined our core value of equality before the law. It's not a proud day for British justice".

Last week, the Lord Chief Justice spoke of the challenges facing judges when small groups of people are singled out for attack. Judges must stand up when the Government fails to strike the right balance:

"If initiatives which are thought to be in the interests of the public are interfered with by the judiciary because of their adverse effect on the human rights of a minority, the judiciary will not be popular. But the temporary unpopularity of the judiciary is a price well worth paying if it ensures that this country remains a democracy committed to the rule of law".

BACKGROUND

The Special Immigration Appeals Commission (SIAC) ruled in July that the Government had breached the Human Rights Convention, in particular Article 14 - the provision guarding against discrimination - in its implementation of indefinite detention powers in the Anti-Terrorism Act.

The SIAC judges had found that there was a public emergency justifying the derogation from Article 5 of the European Convention on Human Rights - allowing people to be detained without charge or trial - but found that the derogation was unlawful and discriminatory because the new powers only concerned foreign nationals. The judgment means a core part of the Anti-Terrorism, Crime & Security Act is contrary to the Human Rights Convention. The Court of Appeal has ruled that there is no discrimination, the detainees being unlike British nationals. British nationals have a right to remain in the country while the detainees merely have a "right not to be removed".

To introduce the power to intern alleged 'terrorist suspects' under the Anti-Terrorism, Crime & Security Act 2001, the UK derogated (effectively opted out) from the Article 5 protection against detention without charge or trial of the European Convention of Human Rights.

The Council of Europe is the guardian of the Convention and of the European Court of Human Rights; the UK is one of 43 member states, and the only one to have opted out of Article 5 since September 2001.

The Council of Europe's Human Rights Commissioner recently published his damning conclusions on the UK's internment power. He concluded that

"general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention. Several European states long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown.

"Even assuming the existence of a public emergency, it is questionable whether the measures enacted by the United Kingdom are strictly required by the exigencies of the situation".

He also notes that this misguided Act's measures "allow for the detention both of those presenting no direct threat to the United Kingdom and for the release of those of whom it is alleged that they do. Such a paradoxical conclusion is hard to reconcile with the strict exigencies of the situation ... it should be recalled that an ill-founded deprivation of liberty is difficult, indeed impossible, to repair adequately".

Liberty intervened at both hearings, arguing that these arbitrary detention powers were unlawful and discriminatory.

John Wadham, director of Liberty, said:

"Liberty has argued all along that this detention power is unjust and discriminatory, wrong in principle and a violation of human rights. The Government should revoke this unfair law and end internment. This power allows the Government to lock people up without charge or trial, not for anything they have done but for something someone thinks they might do. Those detained should be charged if there is any evidence against them, or released immediately if not.

"The Home Office says there is an imminent and extreme national emergency - but it refuses to tell either the people it is imprisoning or the general public why: that evidence was all confined to secret sessions".

Leave to appeal to the House of Lords was not granted so application for leave must now be made by the detainees directly to the House of Lords.