Control Orders in terminal state? There is a better way (with update of 25/02/07)

Yet another of "Dr" Reid's noxious Control Orders has been struck down in the High Court on appeal, this time on two interesting grounds which, if upheld on further appeal along with other pending cases, may mean the long overdue end of this unprincipled system altogether.

The first of Mr Justice Beatson's grounds for quashing the control order was that the home secretary had failed to keep under review, in the light of fresh evidence that had come to light, the possibility of prosecuting the alleged terrorist suspect in the ordinary way instead of keeping him subject to the restrictions imposed under the control order, without trial.  If this objection to a control order survives the home secretary's appeal, other existing control orders may well also be disqualified in the same way.

The second of the judge's disqualifying objections was that the restrictions on the suspect's life imposed by this control order were so onerous as to amount to deprivation of his liberty without trial, contrary to his rights under the European Human Rights Convention (nb: the Convention, not the UK Human Rights Act: the government is finding it a hard task to get agreement on any amendment of the Convention).   Here too if the judge's finding is upheld on appeal it may become impossible for the home secretary to devise a set of meaningful restrictions under future control orders that won't also fall foul of the Convention.  The home secretary, who (pending the outcome of his appeal against the Beatson judgements) has imposed a new and less restrictive control order on the suspect, has already complained that the weaker order increases the risk that the suspect will abscond, as three previous suspects under control orders have already done.

Previous High Court rulings against control orders have raised similar questions about the viability of the whole system, which is increasingly obviously deeply flawed and irreparably so, as many of us asserted from the beginning.  Instead of pursuing appeal after appeal through the grinding processes of SIAC, High Court, Court of Appeal and House of Lords, with more and more meaningless variations on the restrictions imposed under the orders being tried out for court approval, the government really needs to face reality and scrap the whole decrepit and discredited system forthwith. 

No substitute system is going to be wholly satisfactory so long as some of the essential evidence against a person reasonably believed to be involved in terrorism can't safely be revealed to the accused or his lawyers in an ordinary criminal court, for example if parts of the evidence have come from secret informers whose lives could be in danger if their identity could be deduced from the information they have supplied.  (And if the revelation of their identity through their evidence being revealed in open court leads to informers being exposed, the prime means of discovering terrorist activity, namely getting information from secret informers, will dry up very quickly indeed.)   The only solution to this dilemma, apart from something like the present control orders régime, is to permit some limited kinds of evidence to be heard in 'closed' session, i.e. without the presence of the accused or his lawyers (and a fortiori with press and public also excluded), in an ordinary criminal court, with judge and jury and the ordinary criminal procedures and safeguards, and subject to the presiding judge's confirmation that the specific evidence in question can't safely be disclosed to the defendant but that it is essential to the prosecution case.  This procedure would be exceptional, not commonplace, and would apply only to a small proportion of the prosecution evidence:  corroboration by other ordinary evidence, disclosed to the defendant, would be essential. No-one should be convicted on the basis of closed evidence alone.  

This alternative is of course imperfect and would be rejected by libertarian purists as breaching the principle that an accused person is entitled to know the evidence against him or her — as it clearly does.   But the existing system, in which the Special Immigration Appeals Commission can under existing rules hear certain kinds of evidence in closed session, already embodies this breach, while adding to it an even more monstrous breach of the principle that no-one should be deprived of their liberty except after conviction in a fair trial by a proper court.  We should not resist the huge improvement represented by moving the whole procedure into the proper criminal court system and guaranteeing a fair trial to anyone threatened by deprivation of his liberty, simply because the need for some closed evidence in some cases would be undesirable but unavoidable.  No other viable alternative has so far been suggested.  We should not continue to allow the best to be the enemy of the good.

Update (25 February 2007:)  In answer to some comments (below) on this piece  about the status and procedures of the Special Immigration Appeals Commission (SIAC), and in particular objections raised to SIAC hearings held 'in camera' (or rather in 'closed session'), I have added the following further clarifications — at least, I hope they clarify rather than obfuscate:

The phrase 'in camera' is not helpful in relation to the Special Immigration Appeals Commission (SIAC) and is not used (as far as I remember) in the Act establishing it.  The main distinguishing feature of SIAC is that it has the power to hear certain kinds of evidence that may not be disclosed to the appellant or his lawyers:  'in camera' is an inadequate description of this procedure.  The term 'Commission' has no significance: SIAC has the status of a court of first instance and its members are judges (its Chairman is a High Court judge).  It is an appeal court, not a criminal court.  It hears appeals against orders made by the home secretary to deport aliens on grounds of national security or to impose control orders on terrorist suspects (of any nationality including British).  Appeals from SIAC's findings of law lie to the Court of Appeal and thence to the House of Lords.  To say that because it is in some sense a 'special' court it somehow resembles the Inquisition … or the tribunals of the Puritans is really several logical jumps too far. There are lots of 'special' courts dealing with specialised issues.  SIAC's powers are in effect limited to upholding or quashing orders already made by the home secretary.  It can't impose fresh penalties, or indeed any penalties, on anyone.  Denouncing SIAC as some kind of kangaroo court or inquisition is pretty obviously aiming at the wrong target.
It is perfectly legitimate to criticise the existence of the home secretary's power to deport aliens on various grounds (although I know of no country whose government doesn't have such powers), and also to criticise the whole 'control orders' régime, which personally I condemn, as you might have noticed from my original post above.  But that is not the same thing as condemning SIAC itself, which provides a valuable avenue of appeal against both kinds of order.  Nor is it the same thing as condemning the procedure, available to SIAC and to (I think) only one other court, under which it may in certain tightly defined circumstances hear evidence not disclosed to the appellant.   AFAIK, there has never been a SIAC case in which none of the evidence has been disclosed to the appellant.  In the one case of which I have personal knowledge, only a tiny fraction of the overall evidence was withheld from the appellant;  the appellant's interests at the hearings from which he was excluded were represented conscientiously and extremely effectively by the Special Advocate, cleared to see and hear all the closed evidence and to challenge and cross-examine on it on behalf of the appellant; and the result of this particular case was that SIAC allowed the appeal and quashed the home secretary's deportation order.  SIAC is not a 'secret court', the great majority of its hearings are held in public, its findings are published, and its Chairman scrutinises with special rigour any application by the respondent (the home secretary) to classify any part of the evidence as 'closed' (i.e. to be admissible but not disclosed to the appellant).  I know of concrete cases in which such applications have been refused and the respondent has had to choose between putting forward the disputed evidence in the knowledge that it will be disclosed to the appellant (and might, for example, lead to the appellant being able to identify a secret informer) or else trying to present the case against the appeal without using the evidence in question. 

I have tried in my original post above, apparently without much success, to explain the rationale for the SIAC procedure under which certain limited kinds of evidence may be withheld from a terrorist suspect, while condemning the whole control orders system and arguing that the SIAC procedure should be transferred to the ordinary criminal courts (or at any rate those trying defendants on terrorist charges).  It seems obvious to me that there is no wholly satisfactory solution to the dilemma that arises when to obtain a conviction against a person reasonably suspected of being involved in terrorism, it's necessary to use evidence against him which, if dislosed to the defendant or his lawyers, might endanger the life of a secret police informer as well as the ability of the security services to recruit informers in future. (There are in fact some other categories of sensitive information that may be needed to rebut an appeal or secure a conviction but which can't safely be disclosed to an appellant or defendant, but I think information from a secret informer is the clearest example.)  The libertarian purist will say that if you can't get a conviction without disclosing to him all the evidence against him, you shouldn't prosecute him or take any other action to limit his capacity for committing a terrorist act, even if that means accepting a substantial risk to the lives of innocent citizens, possibly a very large number of them.  That's a perfectly tenable point of view.  I happen to think that in present conditions it's simply not realistic, and that no British government of any political persuasion in the foreseeable future would take it seriously.   Arguing for it is thus a waste of time, except as a purely academic exercise.  Promoting the achievable and seeking to improve the present system by eliminating as many of its defects as possible are much more useful activities.

Brian 

7 Responses

  1. Phil says:

    Amen to most of that (I'm enough of a civil libertarian to find any in camera proceedings distasteful, but enough of a realist to agree with your advocacy of an achievable reform).

    What strikes me about ECHR article 5, which I had occasion to look up the other day, is that it makes very few allowances for any form of detention other than in the course of standard criminal procedure. I am not a lawyer – although I do teach them – but it seems to me that even the 7-day pre-charge detention written into the PT(TP)A back in 1974 would fall foul of the ECHR, let alone the 28 days of the TA 2006. Perhaps it's only because the UK had got away with that for so long that New Labour felt they could get away with control orders.

    Brian writes:  Of course I agree that court proceedings in secret are at best distasteful; but I think we are agreed that in present circumstances they may be the least of the available evils.  As to article 5 of the European Convention on Human Rights, there are of course six specified situations in which detention may be allowed, the first naturally being after "conviction by a competent court", but two of the others being —

    (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
    and
    (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

    I'm not a lawyer either, and I don't even lecture to lawyers (except privately!), but I would have thought that these provided adequate authority for the circumstances you mention.  90 days before even being charged might push the envelope a bit, though.

  2. To cast a man into prison without forming any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes (Winston Churchil, 1943)

    Control orders, house arrest, call it what you will, empowers a politician to deprive an individual of their liberty without recourse to a court of law.  Any system that allows such procedures cannot call itself democratic, free or fair in any way whatsoever.  When the government can use secret evidence against you, when there is no way of even challenging the charges brought against you, then the country is well down the path of totalitarianism.

    There is ample legislation on our statute books to charge and prosecute people suspected of terrorism.  This regime’s behaviour is all about assuming total power and has nothing whatsoever to do with protecting the people of this country (see also the new, frankly terrifying, mental health proposals), except perhaps as human resources.  Now, how are those disused army barracks coming along?  Renovation contracts gone to Atkins no doubt.

  3. Peter Harvey says:

    I merely refer you to the Spanish Constitution (in English):

    Section 24
    1. All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense.
    2. Likewise, all have the right to the ordinary judge predetermined by law; to defense and assistance by a lawyer; to be informed of the charges brought against them; to a public trial* without undue delays and with full guarantees; to the use of evidence appropriate to their defense; not to make self-incriminating statements; not to plead themselves guilty; and to be presumed innocent.
    The law shall specify the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding allegedly criminal offences.

    [*my emphasis, PH]

  4. Peter,

    Does  "public trial" referred to in S24(2) preclude any evidence being heard in camera?
    t

  5. Peter Harvey says:

    Tony,

    I believe so. I can’t see what else it means and I have never heard of it happening here. I know that there are provisions for witnesses to appear in court with their identity protected.

    On the other hand, the ‘instruction’, where the judge investigates the case before the trial, can be secret so perhaps sensitive witnesses can be heard then. But even so, it could be challenged in court, I imagine.

    A Google search in Spanish for "juicio a puertas cerradas" (trial behind closed doors, the dictionary equivalent for in camera) came up with nothing for Spain but things for China, Iran, Cuba, Peru, Russia (the usual suspects) — and Guatemala wondering if it would be a good idea for rape trials.

    A search for "juicio secreto" came up with DemocracyNow saying that Blair has been allowed to hold a secret trial of some people connected with Al Jazeera.

    I have not heard any suggestion that any part of the Madrid bomb trial should not be heard in public.

    Having written all that, I have now found this from the Constitutional Court, but it only appears to be dealing with disruption. I don’t remember the case but there have been cases of ETA people disrupting court proceedings (my rather hurried translation).

    Constitutional Court ruling No. 65/1992, of 29 April 1992

    Summary:

    1. The decision to hold a trial behind closed doors is an exception to the right to a public trial recognised and protected by art. 24.2 of the Constitution, the purpose of which right, as this Court has ruled, (STC 96/1987), is to protect the parties from justice removed from public knowledge and to,maintain the confidence of the community in the Courts. However, it is not an absolute, as results from the provisions in that respect by the Universal Declaration of Human Rights and by the international treaties in this subject signed by Spain. In fact, it is deduced from art. 29, in relation with art 10, both of the Universal Declaration, from art. 14.1 of the International Compact of Civil and Political rights (?? English name) and from art. 6.1 of the European Convention of Protection of Human Rights and Fundamental liberties that the right to a public trial and, in particular, the access of the public and of the press-to the Court Room during the Hearing may be limited or exclude, among other reasons, for reasons of public order justified in a democratic society, as provided by Law [F.J. 2].

    2. As this Court has ruled in numerous decisions, the the judgement on the relevance of the proposed evidence, relevance that condition or delimit the right to the use of the evidential resources in accordance with art. 24.2, lies with the competent judicial bodies in each trial, so that this Court can only review that assessment of the decision to deny the evidence appears to be lacking in foundation, or its foundation or motivation is incongruent, arbitrary or unreasonable.

    3. The failure of witnesses to appear may affect the right to use the relevant evidence, a right that the judicial bodies are obliged to ensure as far as possible. So art. 746.3 of the Criminal Justice law provides for the suspension of the oral trial «when the witnesses offered by the parties do not appear and the Court considers their evidence to be necessary». So, the obligation of the Courts to suspend the trial in these cases, to give effect to the right to evidence recognised in art. 24.2 is not absolute or automatic, but depends on the need for the evidence in question [F.J. 4].

  6. Peter Harvey says:

    PS It seems from my previous comment that any decision here [sc. in Spain — BLB] to hear evidence in camera (rather than as a response to disruption to court proceedings at the time) would have to be cleared beforehand with the Constitutional Court. There would inevitably be an appeal from the defence under Art. 24.2 of the Constitution. I will try to find out more.

    How are such decision taken in the UK?

    Brian writes:  I think it depends what you mean by 'in camera'.  The Special Immigration Appeals Commission, a special court for hearing appeals in national security cases, can hear parts of the government side's evidence in 'closed session', i.e. in the absence of the appellant and his or her lawyers, with the appellant represented by a 'Special Advocate'.  Obviously the press and the public are also excluded from the 'closed sessions':  the only persons allowed to be present at these are those with the relevant security clearances.  I think, but stand to be corrected on this, that any UK court (including SIAC) may hear all or part of the case 'in camera', i.e. without the public or press being allowed to attend but with the accused or appellant and his/her lawyers present, at the discretion of the presiding judge.  

    The problem arises in an ordinary criminal court when the prosecution case depends on evidence provided by secret informers, where if the information is disclosed to the defendant in a terrorism case, it may be possible for him or his lawyers to identify the informant, with potentially dire consequences for the informer (and for the ability of the Security Service to recruit informers in future);  yet not to prosecute for fear of blowing an informer's cover may mean leaving a known terrorist free to commit an atrocity.  Even the most fervent libertarian has to recognise that there's a real dilemma here, to which there's no problem-free solution.  Hence the SIAC procedure of closed evidence and closed hearings, and control orders which don't require a prosecution, proof, etc.

    There's also sometimes a problem about disclosing to a suspect information derived from telephone tapping, e.g. when the tapped telephone belongs to a third party who doesn't know his telephone has been tapped, but will discover that it is if evidence of conversations held over it is disclosed in court.  This could cut off a source of invaluable information.

    I believe that any court may hear evidence from witnesses whose identity may be concealed from the accused (or appellant) in various ways, e.g. testifying from behind a screen, or over a video link with voice purposely distorted and face in shadow.

    And finally (?), there can be a problem with hearsay evidence, admissible in SIAC but not in ordinary courts.  Thus it may be obviously impossible for an informer himself or herself to testify in person, in which case his or her handler in Special Branch or elsewhere may have to give evidence about the information provided by the informer.

    There are no easy answers — unless the Spanish system has devised some? 

  7. Peter Harvey says:

    Brian,

    I don’t think there’s any problem with the meaning of ‘in camera’. The Concise Oxford Dictionary says quite clearly: ‘in private, in particular taking place in the private chambers of a judge, with the press and public excluded.’

    The problem seems to be in the meaning of a court. Can a commission be a court? What is a ‘special court’? Sounds like Star Chamber to me. And when did you last see your father? Spain’s memory of that sort of thing is more recent than England’s and acts as a warning. Interfering with people’s liberty without the involvement of proper legal procedure is just plain wrong, as is recognised by the Spanish Constitution in Art. 117:

    3. The exercise of judicial authority in any kind of action, both in ruling and having judgments executed, is vested exclusively in the courts and tribunals laid down by the law, in accordance with the rules of jurisdiction and procedure which may be established therein.

    4. Judges and courts shall not exercise any powers other than those indicated in the foregoing subsection and those which are expressly allocated to them by law as a guarantee of any right.

    5. [Jurisdictional unity and military jurisdiction]

    6. Courts of exception are prohibited.

    A court of exception (Tribunal de excepción) cross-references in Spanish to the Danish constitution, which says in English:

    § 61 The exercise of judicial authority shall be governed only by statute. Extraordinary courts of justice with judicial authority shall not be established.

    It looks to me as if this Immigration Commission that hears cases in secret would be a non-starter in other countries because it’s a) an ad hoc entity that’s b) not a proper court.

    As for immigration, you may have read the FT report the other day which said that Spain is relaxed about immigration while the UK is highly concerned, almost paranoid, about it – as it has been for the last half-millennium (and as I have mentioned here). Spain, on the other hand, sees no natural link in the public mind between immigration and security, with immigration generally being seen as positive, while security is a matter for the courts and the police (and terrorism is the greatest worry for the Spanish public).

    The Spanish Constitution does say:

    Section 120

    1. Judicial proceedings shall be public, with the exceptions specified in the laws on procedure.

    2. Proceedings shall be predominantly oral, especially in criminal cases.

    3. Judgments shall always specify the grounds therefore [sic], and they shall be delivered in a public hearing.

    The Spanish law governing the legal system (an ‘Organic Law’, which requires a special majority to approve it) accepts that: ”exceptionally, for reasons of public order and of protection of rights and freedoms, the Judges and Courts may, by a reasoned ruling, limit the scope of publicity and agree…” and that’s all I get without a subscription to that site. Practically all Google references in Spanish to in camera trials are to Latin-American countries; the very few Spanish ones are to protect the privacy (not the confidentiality) of witnesses, in one spectacular case at the accused person’s own request. I have heard of cases where witnesses have been obliged to appear in open court wearing bizarre disguises; wigs, false noses and the like. There are now better precautions (picture here then click on the picture). In theory protected witnesses have police escorts and so on but it is still a hazardous occupation. There are 300 in Spain, some having turned State’s evidence in drug-smuggling, people-trafficking etc.  and others who just happened to be in the wrong place at the wrong time; forty are connected with the Madrid bombs (in which two are accused). And as far as I can make out, that is as far as it goes here.

    However, in any case, the debate on confidential information and hearings in camera must start from the Constitution, which says that it is not allowed; so if the State wants to make an exception it must go to its sovereign power, the people, and ask for it. That’s the way round it should be.

    Vive la République. Vive la Constitution!

    Brian writes:  The phrase 'in camera' is not helpful in relation to the Special Immigration Appeals Commission (SIAC) and is not used (as far as I remember) in the Act establishing it.  The main distinguishing feature of SIAC is that it has the power to hear certain kinds of evidence that may not be disclosed to the appellant or his lawyers:  'in camera' is an inadequate description of this procedure.  The term 'Commission' has no significance: SIAC has the status of a court of first instance and its members are judges (its Chairman is a High Court judge).  It is an appeal court, not a criminal court.  It hears appeals against orders made by the home secretary to deport aliens on grounds of national security or to impose control orders on terrorist suspects (of any nationality including British).  Appeals from SIAC's findings of law lie to the Court of Appeal and thence to the House of Lords.  To say that because it is in some sense a 'special' court it somehow resembles the Inquisition (I abstain from qualifying that body with its usual national description) or the tribunals of the Puritans is really several logical jumps too far. There are lots of 'special' courts dealing with specialised issues.  SIAC's powers are in effect limited to upholding or quashing orders already made by the home secretary.  It can't impose fresh penalties, or indeed any penalties, on anyone.  Denouncing SIAC as some kind of kangaroo court or inquisition is pretty obviously aiming at the wrong target.

    It is perfectly legitimate to criticise the existence of the home secretary's power to deport aliens on various grounds (although I know of no country whose government doesn't have such powers), and also to criticise the whole 'control orders' régime, which personally I condemn, as you might have noticed from my original post above.  But that is not the same thing as condemning SIAC itself, which provides a valuable avenue of appeal against both kinds of order.  Nor is it the same thing as condemning the procedure, available to SIAC and to (I think) only one other court, under which it may in certain tightly defined circumstances hear evidence not disclosed to the appellant.   AFAIK, there has never been a SIAC case in which none of the evidence has been disclosed to the appellant.  In the one case of which I have personal knowledge, only a tiny fraction of the overall evidence was withheld from the appellant;  the appellant's interests at the hearings from which he was excluded were represented conscientiously and extremely effectively by the Special Advocate, cleared to see and hear all the closed evidence and to challenge and cross-examine on it on behalf of the appellant; and the result of this particular case was that SIAC allowed the appeal and quashed the home secretary's deportation order.  SIAC is not a 'secret court', the great majority of its hearings are held in public, its findings are published, and its Chairman scrutinises with special rigour any application by the respondent (the home secretary) to classify any part of the evidence as 'closed' (i.e. to be admissible but not disclosed to the appellant).  I know of concrete cases in which such applications have been refused and the respondent has had to choose between putting forward the disputed evidence in the knowledge that it will be disclosed to the appellant (and might, for example, lead to the appellant being able to identify a secret informer) or else trying to present the case against the appeal without using the evidence in question.  

    I have tried in my original post above, apparently without much success, to explain the rationale for the SIAC procedure under which certain limited kinds of evidence may be withheld from a terrorist suspect, while condemning the whole control orders system and arguing that the SIAC procedure should be transferred to the ordinary criminal courts (or at any rate those trying defendants on terrorist charges).  It seems obvious to me that there is no wholly satisfactory solution to the dilemma that arises when to obtain a conviction against a person reasonably suspected of being involved in terrorism, it's necessary to use evidence against him which, if dislosed to the defendant or his lawyers, might endanger the life of a secret police informer as well as the ability of the security services to recruit informers in future. (There are in fact some other categories of sensitive information that may be needed to rebut an appeal or secure a conviction but which can't safely be disclosed to an appellant or defendant, but I think information from a secret informer is the clearest example.)  The libertarian purist will say that if you can't get a conviction without disclosing to him all the evidence against him, you shouldn't prosecute him or take any other action to limit his capacity for committing a terrorist act, even if that means accepting a substantial risk to the lives of innocent citizens, possibly a very large number of them.  That's a perfectly tenable point of view.  I happen to think that in present conditions it's simply not realistic, and that no British government of any political persuasion in the foreseeable future would take it seriously.   Arguing for it is thus a waste of time, except as a purely academic exercise.  Promoting the achievable and seeking to improve the present system by eliminating as many of its defects as possible are much more useful activities.

    I appreciate the wealth of information that you have helpfully provided, Peter, about the Spanish system and constitution, but I'm really not convinced that it advances the discussion of the points raised in my original post.   

    Vive La Reine!  Vive la Patrie!

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