Detention without trial (again: sorry!): a letter in The Independent

The Independent, Letters, 18 February 2005

Special courts are the answer to ‘house arrest’ dilemma

Sir: The Conservatives and Lib Dems (and reportedly many Labour back-benchers) are right to reject Charles Clarke’s proposals for a new law replacing the present regime under which non-British nationals may be detained without trial by order of the Home Secretary.

It now looks as if when Michael Howard and Charles Kennedy meet the Prime Minister and the Home Secretary on Friday to try to hammer out an agreed way forward following the Law Lords’ condemnation of the present law, Tony Blair may offer as a "concession" the admissibility of intercept evidence (from phone tapping etc) in the criminal courts, in exchange for the Tories and Lib Dems dropping their opposition to the rest of Charles Clarke’s "house arrest" proposals.

Mr Howard and Mr Kennedy should reject any such deal. Quite apart from the difficulties raised by David Raynes (letter, 14 February), admissibility of intercept evidence would make very little difference to the number of suspects who could be tried in court instead of detained by the Home Secretary. The much more difficult problem is evidence which, if disclosed to a suspect, could identify the informer who supplied it, endangering both the informer and the security services’ ability to recruit informers in future, a vital weapon against terrorism.

If we are to return the power to deprive people of their liberty to the courts, where it belongs, and remove it from an already over-mighty executive, the least bad solution is to give a special criminal court the power, when absolutely necessary and subject to stringent safeguards including trial by jury and proof beyond reasonable doubt, to withhold certain kinds of evidence from the accused, hearing it in closed sessions where the accused’s interests are represented by a security-cleared special advocate (as happens now in the Special Immigration Appeals Commission).

This breaches the important principle of the right of the accused to know all the evidence against him: but the only practical alternative is something like the Clarke proposals, which still breach the principle of full disclosure but in addition breach the even more important principle that no one should be deprived of his liberty, without trial, by order of a politician.

London SW18


"We fight on: we fight to win" — © M Thatcher (just before giving up)

6 Responses

  1. Owen says:

    I agree that it is preferable to have “half a court” – in which some of the evidence is not revealed to the accused – than to have people locked up by administrative fiat.

    But I’m not convinced we should be locking people up with out due process – which includes allowing the accused to respond to the evidence against them.

    If we have evidence that we are not willing to reveal to the accused, then my preference would be to put them under close surveillance, to make sure they do not commit a crime and to gather evidence necessary to convict them in open court. A little patience and some investigative resources should be enough to allow us to gather evidence that can be shown to the accused, and allow a fair trial. (We are not, after all, talking about a large number of suspects.)

    So I’m not yet willing to concede the argument for convictiing people on evidence they have not seen. Too Kafka.

    your loving son

  2. Brian says:


    I agree that in an ideal world we would hold out for no compromise over ‘closed’ evidence: no charge or trial unless all the evidence can be disclosed to the accused. But I fear that no political party, in or out of government, would be brave enough to risk the media’s representation of this as “knowing that someone is a terrorist whose activities may cause thousands of innocent people to be massacred, but not doing anything about it because of some archaic and academic doctrine which is irrelevant to the modern threat from international terrorism” — or, to translate that into tabloidese, “Soft on Terror”.

    There’s a dilemma here. Should we campaign for what we know to be right, but almost certainly politically unattainable? Or should we try to get the best outcome likely to be on offer? Perhaps the best we can hope for is that perfectionists like yourself speak up loud and clear for what’s right but unobtainable while the reluctant compromisers like me campaign for the best we’re likely to get. And actually, I suspect that even what I’ve been advocating is going to prove a step too far, even for the opposition parties who don’t have to take responsibility for whatever is eventually decided: if there’s going to be a special court with powers to hear ‘closed’ evidence withheld from the accused, as I advocate, my guess is that it will be a Diplock-style court without a jury and probably using a lower standard of proof than the normal level in criminal cases, ‘beyond reasonable doubt’, neither of which I regard as acceptable. Even more unacceptable, and even likelier, I fear, will be a ‘compromise’ solution under which the home secretary will have the power to detain (either in prison or under house arrest) and a judge will have to be told the basis for the home secretary’s decision with the right to disallow it if he thinks it unreasonable — in effect ‘SIAC Lite’.

    I think that the Blairs and Clarkes, and probably the Kennedys and Howards too, would regard my proposals (if they ever came to hear of them) as hopelessly Utopian — and yours as completely out of sight!

    Your loving Pa

  3. Owen says:

    I’m not convinced.

    There are three separate egregious aspects of the Home Secretary’s proposal. They are:

    a. having politicians rather than courts putting people in prison;

    b. imprisoning people on the basis of evidence they have not seen and which they therefore cannot defend themselves against;

    c. imprisoning people not for what they have done, but for what they are thought to be likely to do.

    Your proposal deals with (a) but not with (b) or (c).

    I agree with you that in the current climate of political (though perhaps not public) opinion, politicians might get away with (b), but we should expose this if (as I believe) it is an unnecessary curtailment of our liberties.

    I’m also very alarmed about (c). Conspiracy is a crime – as it should be – and we should be seeking to prove conspiracy. If we can’t prove that a crime has been committed, then the person should go free. I cannot see how we can tolerate imprisoning people for crimes that they have not committed.


  4. Brian says:


    You wrote:
    >>c. imprisoning people not for what they have done, but for what they are thought to be likely to do.
    Your proposal deals with (a) but not with (b) or (c).< < But with respect (as they say), my proposal does deal with (c), although I recognise that my letter in the Independent didn’t spell this out (I was at the edge of the length limit as it was). But I have spelled out in other articles and letters, all available on or from my web site, my strong criticism of the present SIAC system as interpreted by the Court of Appeal and the law lords in the Rehman case, under which the home secretary is not required to ‘prove’ any specific allegations about what the suspect has actually done: all he has to do is show that his ‘suspicion’ and ‘belief’ about the suspect’s likely behaviour in the future are ‘reasonable’. Indeed, this completely unacceptable feature of the present system was one of the two reasons for my own resignation from SIAC last year.

    Under my proposals a suspect would have to be charged with a specific offence, or offences, under existing law, which would have to be proved to a jury ‘beyond reasonable doubt’, the highest level of proof in criminal cases. Existing laws are sufficiently — indeed, excessively — sweeping and all-embracing in the scope of their definitions of terrorism-related offences to cover any specific past activity that might lead to a reasonable suspicion and belief that the accused, if convicted, was a person likely to commit other terrorist offences in the future, and in such cases, as in any other criminal cases, the judge would naturally take that into account in sentencing. But under my proposals, for a person to be sentenced to go to prison, that person would have to have been convicted by a jury after an ordinary criminal trial of an offence or offences under the criminal law proved to have been committed in the past. Speculation about possible future behaviour based on proven past behaviour would, as I say, be within the judge’s discretion in determining the length of sentence, exactly as happens now in (e.g.) murder or burglary cases. It would also of course be a legitimate factor later in decisions on remission of sentence, early release, probation, release on licence, etc. But it would emphatically not be a sufficient basis for the original guilty verdict or sentence of imprisonment.

    I don’t think we’re that far apart, although I fear that we’re both a very long way apart from Mr Clarke’s thinking. And I have a worrying suspicion that Charles Kennedy, and possibly even Michael Howard, are going to sign up for slightly revised government proposals involving immediate ‘scrutiny’ by a judge or group of judges of the ‘reasonableness’ of decisions made by the home secretary to issue ‘control orders’ up to and including house arrest: i.e. apparently strengthening ‘judicial involvement’ (although not in effect any more than SIAC’s involvement under the present system), but still entailing deprivation of liberty by a politician, and still not giving the detainee the right to a proper trial by a properly established criminal court with judge, jury and proof beyond reasonable doubt of specific acts constituting offences under the law. I hope I’m being unduly pessimistic. We shall see.


  5. Brian,
    The real difficulty is securing any conviction against the suspect. Conviction of a substantive offence under the Firearms Act, Explosive Substances Act or Terrorist Act(s), or conspiracy to commit such offences would allow the tribunal to impose a lengthy custodial sentence. But your proposal seems to leave open the possibility of securing a conviction of a much less serious offence or series offences and then allowing the judge to pass a longer than commensurate sentence on the basis that the defendant poses a substantial risk to the public and such a sentence is required to protect the “public from serious harm�. Such a provision is already available to courts under S161 Powers of Criminal Courts (Sentencing) Act 2000 in the case of “violent or sexual offences�.
    Your suggestion that judges be allowed [to speculate] “about possible future behaviour based on proven past behaviour would, as I say, be within the judge’s discretion in determining the length of sentenceâ€? needs fleshing out. On precisely what basis do you think the judge should engage in this speculation? What standard of proof should he apply? On whose shoulders should the burden of proof lie?
    There seems to me only two ways through.
    Firstly, the defendant must have been convicted of relevant offences. I would not be happy to accept convictions from jurisdictions with questionable human rights records. A ragbag of unsubstantiated and untested allegations simply would not fit the bill. The defendant would, in my opinion, have the right to challenge those in detail, calling evidence to rebut, considering the effect they would have on the length of his incarceration.
    Secondly the court may be assisted by a psychiatric/psychological assessment to determine whether the defendant has the predisposition to commit terrorist acts in the future. Though I doubt whether lawyers would be happy to advise their clients to undergo such an assessment, bearing in mind the uncertainty of the science involved and the effect a positive finding would have on their client’s prospects. Would the effect of such a refusal, allow a judge to make an adverse inference?
    How would your proposals deal with the case of “C�?

  6. Brian says:


    I don’t see a huge problem here. Offences under both the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 are very widely defined and would certainly cover membership of or support for the proscribed organisation Egyptian Islamic Jihad which SIAC found on the evidence was the case with ‘C’. The 2000 Act also says that ‘”terrorist” means a person who-
    (a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
    (b) is or has been concerned in the **commission, preparation or instigation** of acts of terrorism’, accompanied by an equally broad definition of acts of terrorism. Without seeing the closed evidence against C, it’s impossible to be more specific, but there seems to be ample scope for prosecuting him under the 2000 Act provided that the court trying him is empowered to hear the closed evidence, as it would be under my proposals. The reason that C wasn’t prosecuted, as I understand it, wasn’t that there was no offence with which he could have been charged, nor that there was insufficient evidence available to the security services and police on which to get a conviction, but that some of the evidence required for a conviction couldn’t safely be disclosed to C, nor heard in an ordinary criminal court. My suggested remedy is designed to resolve that difficulty.

    I don’t think we differ seriously about the duty of the judge, in assessing the appropriate sentence for someone convicted of a terrorism-connected offence, to ‘speculate’ on the basis of the evidence he has heard during the trial and the offences of which the accused person has been convicted, about the probable risk that on his release the accused would be likely to re-offend, depending of course on the length of time he would by then have spent in prison and subsequent assessments of the extent of his rehabilitation, remorse, behaviour as a prisoner, etc. The element of the sentence designed to protect the public from the danger of the accused re-offending if released too early, or at all (as distinct from the elements of retribution and deterrence) would naturally reflect this assessment, bearing in mind that it could and would be adjusted in the light of the accused’s later behaviour. This would be no different from the assessment made by a judge in sentencing, say, a serial killer, of the likelihood or otherwise of a fresh offence on release. Thus Brady, say, would be given a whole life tariff because his propensity to murder would be unlikely to be affected by being in prison for however long, while the tariff awarded to Mary Bell reflected the fact that she was unlikely in the extreme to repeat a solitary offence committed when she was a child. The tariff system applies strictly speaking I think only to those sentenced to life imprisonment, but there’s a close equivalent in the case of lesser sentences in which the judge may make a recommendation about the minimum amount of time he thinks the accused should serve before being eligible for assessment for early release, probation, etc.

    But you’re a lawyer, and I’m not, so it’s quite possible that I have got it wrong!


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