The unexplained release a few days ago of an Egyptian, known as C, who had been imprisoned by the home secretary for three years without charge or trial as a terrorist suspect, has made a new dent in Charles Clarke’s controversial (and probably unsustainable) proposals for introducing a new system of ‘control orders’ under which he would be able to place anyone, regardless of nationality, under house arrest, or impose other lesser restrictions on him or her, on the mere suspicion of involvement in terrorism. The case raises interesting issues.
C was arrested and detained in prison without trial on the then home secretary’s orders in December 2001. His appeal against detention was heard and dismissed by the Special Immigration Appeals Commission in October 2003. SIAC carried out its statutory review of his continued detention in July 2004, and decided that he should stay in prison. SIAC’s judgment on the appeal and decision on the review are available on the Web and well worth reading.
On 31 January 2005 C was suddenly and unexpectedly released, one day before his case was due to be reviewed again by SIAC. The Home Secretary did not attempt to impose bail or any conditions on his release (as he could have done). He issued a statement about the release on the following day. It raises more questions than it answers.
Shortly before these events, and in response to the law lords’ judgments on 16 December 2004 holding that the detention of foreigners without trial contravened the European Convention on Human Rights by discriminating against foreigners and by being disproportionate to the threat against which it was designed to protect, the Home Secretary announced that he would not oppose the release of all the remaining detainees on conditional bail, including where appropriate the imposition of house arrest, tagging, a ban on meeting designated people, bans on use of computers and mobile telephones, etc. These measures, potentially involving a curtailment of liberty little different from imprisonment, are the same as those which Mr Clarke had announced on 26 January as his proposed system for replacing the present law, with the significant differences that they would apply to British citizens as well as foreigners, and that the extent of the restrictions imposed would be varied according to the degree of threat that the suspect was believed to pose. Some of the existing detainees had already declared that to be indefinitely confined to their homes, in some cases small one-bedroom flats shared with several family members including children, and deprived of the other activities likely to be banned, would be worse than remaining in prison, and that they would not accept such restrictions as a condition of their release. (Mr Clarke has even suggested that under his proposals, some of the restrictions imposed on suspects under the new control orders might be imposed on members of their families, too.)
Against this background, what is the explanation for the sudden decision to release C from prison without bail or any other conditions being imposed?
The likeliest explanation, the one assumed by most media commentators, seemed to be that very recent developments, or new information very recently received, must have removed or diminished the threat posed by C if he were to be released: i.e. that key parts of the evidence on which the then home secretary had based his decision to lock up C in December 2001, and SIAC had based their decisions in October 2003 and July 2004, no longer reflected a new and changed situation, or else had turned out to be untrue or more unreliable than had earlier been supposed. There was speculation that C’s terrorist associates could have been dispersed or arrested or otherwise removed from the scene, perhaps even killed in another country; or that Egyptian Islamic Jihad (EIJ), the terrorist organisation linked with al-Qa’ida and with which C was supposed to have been connected as a leader and fund-raiser, had somehow been disrupted and could no longer be seen as a threat to the UK.
The trouble with this explanation is that it is not put forward, even by implication, in the Home Secretary’s statement on C’s release. If C’s release is justified by a recent change in circumstances or by new information casting doubt on the previous evidence, one would expect the statement about it to refer to “changed circumstances” or “new information” (or similar wording), and that C was accordingly judged to be “no longer” a threat. No such language appears in the statement. In her television interviews on 1 February, the Home Office minister, Hazel Blears, refused to comment on the “circumstances of individual cases”, even though the subject under discussion was obviously an individual case. Ms Blears would not say what change in circumstances or what new information had persuaded the home secretary that “that the weight of evidence in relation to C at the current time does not justify the continuance of the certificate” under which C has been detained. Ms Blears would not even say whether there had been a change of circumstances or new information. She merely stressed that the threshold for justification of detention was set very, very high and the home secretary had concluded that the evidence at the present time did not cross that threshold. The release of C demonstrated, as Ms Blears endlessly repeated, that all these cases were regularly subjected to genuine and searching review, and that the criterion for detaining anyone was extremely demanding. C’s release, she insisted, did not mean that C no longer posed any threat at all: just that according to the current assessment the threat could no longer be considered great enough to justify detaining him. Ms Blears injudiciously went on to suggest that this illustrated the problem with the present system: the government had to choose between the two extremes of detention without trial, or unconditional release. The purpose of the new proposals, she suggested, was to permit gradations of restriction between those extremes, to permit a proportional response. This, though, is misleading: the home secretary is free even under the present system to invite SIAC to release any of the detainees on bail and to impose as conditions of bail any of the restrictions short of, or up to and including, house arrest that he seeks to be able to impose under his proposed ‘control orders’. Why has he not sought to impose any such restrictions, even the most minimal, on C as condition for his release?
Unidentified ‘Home Office sources’ are reported to have asserted in background press briefings that “new information had emerged in a regular review of [C's] case that meant his indefinite detention was no longer justified”: but there is no suggestion of this in the carefully worded published statement, and Hazel Blears didn’t so much as hint at it in her television and radio interviews.
The “changed circumstances” explanation also seems to be contradicted by SIAC’s own verdict in confirming C’s continued imprisonment in July 2004, when the Commission noted that already, six months ago, “arrests and detentions [had] disrupted [C's] range of associates and contacts, [but] there are other prominent contacts at liberty with whom he would readily resume contact and re-establish his activities. He continues to have many contacts abroad… He would still have the will, commitment and ability to resume his activities in the UK were he to be released.” It seems unlikely, to say the least, that all his “prominent contacts… many contacts abroad” have suddenly vanished, been locked up or killed, or otherwise become unavailable; and even less likely that C will suddenly have lost his “will, commitment and ability to resume his activities in the UK were he to be released.” C’s solicitor told Newsnight on 1 February that the Home Office fax notifying C’s legal team of his impending release had referred to all his terrorist contacts having now been ‘disrupted’, but she found this mystifying, since there had been no change of any kind in the past few months in the situation on which C’s detention had been based.
So we need to look elsewhere for the explanation of a decision which throws into almost farcical turmoil the whole system so doggedly defended until now by Messrs Blunkett and Clarke as essential to our security, and which indeed casts a dark shadow of doubt over the plausibility of Clarke’s own proposals for a wholly new and court-proof system.
Here’s a possible scenario. On coming into office as the new home secretary, presented on the same day with the poisoned chalice of the law lords’ judgment, he soon finds time to take a careful look at the evidence on which Mr Blunkett put C in jail, and the supporting judgments of SIAC. He finds it much less convincing than his predecessor or his officials have done, especially when set alongside the law lords’ declaration, binding on the UK’s lower courts, that detention is disproportionate to the threat posed by international terrorism. He realises with an unpleasant jolt that this might make SIAC reluctant, at its imminent review of C’s case, to endorse continued detention — or even to endorse his release on bail with arduous conditions attached, including house arrest. There is also the risk that even if SIAC were to confirm C’s release on bail into house arrest, C might refuse to accept the conditions and insist on either staying in prison or being unconditionally released — a situation which would put the government in a serious quandary, since it would be seen as discrediting both the present system (already holed below the waterline by the law lords and clearly about to sink) and also, even more seriously, as discrediting the proposals for its replacement just announced by Charles Clarke. Perhaps Mr Clarke is taking a more rigorous view than Mr Blunkett’s of the need for genuinely cogent evidence to justify removing a man’s liberty for years on end without giving him his day in a proper criminal court. Perhaps the home secretary was warned by the Home Office lawyers that he faced humiliation in just a few hours’ time when SIAC looked again at C’s case, this time in the light of the law lords’ judgment, and that the less embarrassing course was to release him forthwith and pre-empt a SIAC finding that would be seen as forcing his hand. Perhaps he calculated that by appearing to act off his own bat, on the basis of his own judgment, to release C before he was forced to do so, he would minimise the damage inflicted on the credibility of his ‘house arrest’ control order proposals as replacement for the present system. Perhaps all these factors played a part. Certainly this scenario seems more consistent with the wording of that curious Home Office statement than any other so far put forward.
Some conclusions need to be drawn from all this. Viewed in the light of the law lords’ judgment, the evidence said to justify C’s three years in prison without trial, as set out in the published judgments of SIAC, looks very thin indeed. Much weight is placed on C’s record of buying goods in some Marks & Spencers branches and then trying to return them and get his money back in others, an activity said by SIAC to justify the home secretary’s suspicion that the intention was to raise money for terrorism, although SIAC admits that the evidence of fraud wouldn’t justify a criminal conviction. Much is inferred about C’s congenital dishonesty from his attempted deceptions about his movements around the world before he settled in Britain (and was accepted as a refugee and given indefinite leave to remain in the country by the Home Office, to the consternation of the security service): refugees commonly lie about where they have come from in order to minimise the danger of being put on the next plane back to the country that has persecuted them. Some of the other evidence looks uncomfortably like guilt by association.
Of course only the ‘open’ evidence is available to us: we must assume that the ‘closed’ evidence, withheld from C and his lawyers to protect its human and other sources, is a good deal more convincing. But if the closed evidence was convincing last July, a few months ago, how is it not sufficiently convincing now to justify keeping C behind bars? What event in that short period might have changed the assessment? Likeliest answer: the law lords’ judgment. In other words, what has changed is not the situation or the available information, but the standards by which the law lords require them to be considered. If the whole apparatus of detention without charge or trial is disproportionate to the terrorist threat, what hope can there be of the courts, from SIAC upwards, upholding the continued detention, even under house arrest, of this remaining handful of men? And if the attempt to release them on conditional bail, including restrictions up to and including house arrest, is beginning to look more and more impracticable with some of the detainees and their lawyers refusing to accept them as conditions for release, what will be the effects on Clarke’s plan to subject not just foreigners but the whole population to this very liability?
The present system and the home secretary’s proposals for its replacement are, as Shami Chakrabarti, the Director of Liberty, was saying on the evening after C’s release, unravelling before our eyes, both politically and legally. Already the Liberal Democrats have announced that they will oppose them; the Conservatives have followed, expressing serious misgivings. Michael Howard’s request to meet Mr Blair “to see whether we can agree on a way forward that will command wide public confidence on these vital issues“ was immediately accepted by the prime minister with what looked suspiciously like relief (“I have not had an opportunity to study those proposals in detail“, a perhaps surprising confession, given the importance of the issue and the extent of public concern). Unless the government agrees to a radical overhaul of its proposals, they are unlikely to muster the necessary majority in the House of Lords. If he is to avoid further humiliation, Mr Clarke needs to put his hopelessly flawed proposals on ice: unconditionally release the few remaining detainees (no doubt subjecting them to intensive surveillance): and begin a genuine all-party consultation with high level legal advice on the changes needed to balance the security of the state with our basic civil rights, and on what has to be done to restore the key principle that it is for the courts, not a politician, to deprive men and women of their liberty when necessary, and to do it by means of a fair trial by judge and jury. ‘Concessions’ falling short of this, such as agreeing to make intercept evidence admissible in court, are not enough.