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.