First, any restriction on fundamental rights must be imposed in accordance with the rule of law. And second, while we must be flexible and be prepared to countenance some limitation of fundamental rights if properly justified and proportionate, there are certain principles on which there can be no compromise. Fair trial is one of those – which is the reason we in the UK have been unable to accept that the US military tribunals proposed for those detained at Guantanamo Bay offer sufficient guarantees of a fair trial in accordance with international standards.
This impeccable statement of principle, which was made by Lord Goldsmith, the attorney-general, in a speech on 25 June to the International Criminal Law Association, was widely reported. What was not reported was his attempt in the same speech to fit into the same principled framework the government’s policy of detaining indefinitely without trial foreign nationals suspected of having links with terrorists:
I want to spend a few moments on these provisions both because they are controversial but also as they illustrate what I have been discussing in abstract terms about the need for flexibility and imagination while not compromising on fundamental principles. These immigration measures relate to the treatment of certain foreign nationals, who have come voluntarily to the UK and have no immigration right to remain, but who are suspected of involvement in international terrorism. Our preference when faced with evidence of terrorist activity is to prosecute the suspects using the criminal law. However, as you will appreciate, it is not always possible to bring criminal prosecutions.
This was the situation in relation to a small number of foreign nationals where there were strong grounds for suspicion but no prospects of a prosecution. This presented us with a considerable problem. Under our immigration laws we have the right to deport them due to their risk to national security because they have no right to be in the country . . . However, due to our international obligations, notably under the European Convention of Human Rights, now part of our domestic law, we cannot deport them to a country where they would face death, torture or inhuman and degrading treatment. Based on the submissions of the individuals themselves, it is our current assessment that to remove the detainees to the countries which could be required to accept them would be struck down by our courts as contrary to Article 3 of the ECHR as there would be substantial grounds for believing there to be a real risk of ill treatment there.
We are content for them to go; they have no right to be here but we cannot force them to go because of concerns for their own human rights. It is important to emphasise that they are entitled to leave.
So we were faced with a choice; either to leave them to roam freely in the country or to detain them unless and until they voluntarily leave the country or we could remove them compatibly with our ECHR obligations. We considered the first course gave rise to an unacceptable risk, given the heightened threats since 11 September and so we legislated to provide for detention. This required a derogation from Article 5 of the ECHR which provides a guarantee against arbitrary arrest and detention. The right to derogate is provided for in Article 15 of the ECHR in times of ‘public emergency threatening the life of the nation’ .
Mahmoud Abu Rideh, for whom I have been acting since last year, was living with his wife and five children in South London when he was arrested and detained on 19 December 2001. He and his wife arrived in Britain in 1995, and in 1998 he was given indefinite leave to remain, on the basis that the UN had classified him as a stateless refugee. Abu Rideh, a Palestinian, was born in a refugee camp in Jordan, but he is not entitled to Jordanian citizenship and does not have a right of return to Jordan, Palestine or any other country. There is no country, in other words, which ‘could be required’ to accept him.
The attorney-general claims that Abu Rideh and the ‘small number of foreign nationals’ referred to by Goldsmith were held because there were strong grounds for suspicion of terrorism but no prospect of a prosecution. On 29 November 2001, when the Anti-Terrorism, Crime and Security Bill was being rushed through Parliament, Lord Rooker, then minister of state at the Home Office, considered ‘whether it should be stated as a requirement of the bill that the secretary of state will not detain someone under Clause 23 unless, for example, he has done all that he reasonably can to bring about a criminal prosecution’. The Crown Prosecution Service, he said, will in such cases ‘already have reached a view that there is insufficient evidence and that it is not in the public interest to prosecute’. Parliament was assured that a decision to detain would be a last resort, made only if the CPS believed that no criminal prosecution could be brought.
Abu Rideh was taken to Belmarsh Prison without being questioned by the local police, the Special Branch, the Anti-Terrorist Branch or the intelligence services. He has still not been questioned by them. During his detention in Belmarsh, he became so ill that he had to be transferred to Broadmoor Hospital in July 2002, under the provisions of the Mental Health Act 1983.
Despite Lord Rooker’s promise, the CPS has never been asked to consider the evidence in his case. It has confirmed to Gareth Peirce, who also acts for Abu Rideh, that it had not been consulted in relation to any of the detainees – there have been 15 in all.
In his speech on 25 June the attorney-general said:
There are important safeguards under the Act of which the most important in this context is the right of full judicial scrutiny by an independent judicial body presided over by a senior judge. We have used for this purpose a body known as the Special Immigration Appeals Commission, or SIAC – a body already used, although some adaptation was needed, in a special category of immigration appeals in relation to people posing a national security risk. This body is able to hear evidence in private if required. This enables it to consider any secret intelligence information, the disclosure of which might otherwise endanger the life of an undercover source or compromise, through the revelation of security methods, our ability to get early warning of impending threat without any security risk. The commission is therefore able to reach a decision about an individual based on the full facts of the case against him. Although certain material cannot be disclosed to the detainee (although the gist of the case and as much material as can be, is), it does not go without being tested. A special advocate is instructed who is provided with all the material and is given the job of retesting it rigorously before the commission, albeit in closed session, and of representing the interests of the detainee there. And the detainee’s own chosen counsel is entitled to participate fully in all the open sessions. The process is so fashioned that it meets the needs of the difficult situation, whilst committing fully to our traditional view of the rule of law.
It is true that the SIAC was able to consider all the evidence against Abu Rideh, but it was not able to consider his own comments on that evidence because Abu Rideh was not allowed to know what the evidence was, and so the hearing could not be described as a fair one in accordance with ‘our traditional view of the rule of law’.
This is what Abu Rideh was told about the evidence against him:
Abu Rideh is a contact of the UK-based spiritual advisor Abu Hamza alias Mustafa Kamel Mustafa. Abu Hamza is an Islamic fundamentalist cleric based at Finsbury Park Mosque. Abu Hamza, who lost his hands and one eye in Afghanistan, maintains an interest in organising and sponsoring extremist training camps, and has stated his approval of using violent methods to enforce Shariah Law. Abu Rideh is actively involved in raising funds, which the security services assess are used to finance terrorist training, operations and procurement in countries such as Afghanistan and Chechnya. He has been in contact with a number of UK and overseas-based extremists believed to have carried out terrorist acts. He was a regular visitor to some of those imprisoned in the UK in connection with their activities on behalf of the EIJ (Egyptian Islamic Jihad).
The evidence produced in support of these allegations consisted of copies of newspaper reports and internet downloads which established the existence of terrorist groups such as Islamic Jihad, al-Jihad and al-Qaida; claimed the involvement of these groups in terrorist activities, including the assassination of President Sadat in 1981 and the US embassy bombings in Nairobi and Dar es Salaam; described Abu Hamza’s contacts with a group which carried out kidnappings in the Yemen; provided the names of terrorist suspects connected with some of these outrages; and reported inflammatory remarks made by Abu Hamza.
None of this material refers to Abu Rideh and none of it was found in his possession. However ‘flexible and imaginative’ the state is in its approach to legal process, it’s hard to see how any of this can be considered evidence of anything against Abu Rideh. Maybe the Home Office realised this, because by the time of the SIAC hearing in June 2002 it had slightly amended the allegations, and produced a further document. This was the opening statement of the Home Office barrister at the SIAC hearing:
He is a contact of Abu Hamza. In 1998 he visited a member of the EIJ and a man awaiting extradition to the US in relation to the 1998 East African embassy bombings, both of whom were detained in prison. Mr Abu Rideh admits to using covert methods to transfer funds to Afghanistan. £147,000 passed through Mr Abu Rideh’s various bank accounts between 1997 and 2001, during which time he was on state benefits.
The new document was a two-page summary of the bank statements taken from Abu Rideh’s house at the time of his arrest.
All the rest of the evidence was given in closed sessions and Abu Rideh and his legal team have no idea what it was. Was it intercept evidence? Was it evidence from informants? If so, were the informants at liberty or were they prisoners? If prisoners, had they been subject to torture in another country? (In linked proceedings the government specifically refused to exclude the possibility of relying on evidence obtained by torture.) Abu Rideh’s SIAC special advocate heard the evidence, but was not allowed to have any contact with him or his legal team, and so could neither cross-examine effectively nor arrange for the bona fides of any witnesses to be investigated (Abu Rideh has no idea what interventions his advocate made in the proceedings). There may not have been any witnesses who weren’t members of the security services. It is possible, therefore, that all the evidence heard by the SIAC was hearsay.
It is difficult to have much faith in the secret evidence, when one considers the quality of that given in the open sessions. The Home Office alleged that £147,000 moved through Abu Rideh’s bank accounts in the four years leading up to his arrest. The details were not presented to his lawyers until the hearing started, but they managed to establish that this figure included the welfare and housing benefit paid to Mr and Mrs Abu Rideh for themselves and their five children; that one of the accounts belonged to Abu Rideh’s father; and that about £35,000 had been counted twice (once when it was paid into a bank account and then again when it was transferred to Abu Rideh’s credit card account). Stripping out all of this removes about £70,000 from the total of £147,000. This leaves £77,000 to be accounted for.
Abu Rideh produced documents and photographs (the validity of which the government did not challenge) to show that this money had been raised by him in order to build and run orphanages in Afghanistan; to build and run schools (for girls as well as boys) in Afghanistan; to dig wells in remote villages; to provide sewing machines for widows to make a living; and to provide livestock and food.
The Home Office argued that ‘some of the work in which Abu Rideh was engaged (including fundraising) may have been legitimate,’ but ‘the secretary of state assesses (from the totality of the open and closed evidence) that some of Abu Rideh’s activities were for terrorist purposes.’ We know nothing about the closed evidence, and the defence lawyers didn’t manage to find out much in the open sessions. Consider this exchange between the anonymous Home Office witness known as Witness B – a member of the security services – and Abu Rideh’s barrister, Ben Emmerson QC:
Witness B: So far as the open assertion is concerned, it is that he was involved in the facilitation of travel to training camps in Afghanistan. There is obviously evidence to be analysed there and which is analysed in the closed material.
Emmerson: Are we entitled to know what is meant by ‘helping to facilitate travel’?
Witness B: I am afraid again all the evidence there is closed.
Emmerson: What about the allegation of the provision of false documents; is he entitled to know what is alleged against him there?
Witness B: All the evidence there is closed.
Emmerson: I do not think I can take this questioning any further.
One of the few pieces of direct evidence against Abu Rideh is that he visited two terrorist suspects on remand in prison in England in 1998 (it wasn’t mentioned that one of them was released in 1999, and has been living freely in England ever since). The following exchange took place between Emmerson and Witness B:
Emmerson: Al-Zebai and al-Fawaz. You know, obviously, from the documents that you have read that Mr Abu Rideh’s case is that he came to visit them in prison as a result of association between his wife and the wife of Mr al-Zebai. He was asked to give them a lift and went there, never having met them or visited them before. Is that accepted as true?
Witness B: That is a question that I can only answer in the closed session I am afraid.
Emmerson: You cannot tell us even if it is accepted as true or not?
Witness B: No, I can’t.
The witness is not being asked whether there is any evidence that Abu Rideh’s contact with these men was more sinister than he claimed, let alone being asked the nature of such evidence. He is simply being asked whether Abu Rideh’s evidence was accepted. There is no legitimate reason to refuse to answer the question.
There are trial-like features in an SIAC hearing, such as the calling and cross-examination of witnesses, and the Home Office should ensure that its witnesses and barristers follow trial procedures as far as possible. In a criminal trial, if the prosecution wishes to rely on a piece of evidence that the defendant disputes, the prosecution must cross-examine the defendant on the disputed evidence, and must put forward its own witnesses in support of that evidence. We don’t know whether Witness B was asked about the visits to terrorist suspects in the closed sessions. What we do know is that the Home Office barrister did not ask Witness B about these visits in the open sessions or cross-examine Abu Rideh about them, and they were not mentioned in the Home Office’s summing up of the case in the open hearing.
The justification for detention as opposed to prosecution is that in cases like Abu Rideh’s the evidence could not have been put before a jury either because it would be inadmissible (intercept evidence), or because it would jeopardise security sources or methods. But if there was intercept evidence which justified Abu Rideh’s detention, there was no reason not to give it in the open SIAC sessions even if it would have been inadmissible in court. Maybe there was no intercept evidence. Maybe all the evidence was from informants – and we know from Iraq that security sources aren’t always accurate.
To justify his detention, the Home Office had to show not only that Abu Rideh could reasonably be suspected of being a terrorist, but also that it was reasonable to believe that he was a threat to national security. The argument went like this: Abu Rideh, allegedly (he denies it and no evidence has been produced) took part in the Afghan resistance against the Russians in the early 1990s. Between 1998 and 2001 he allegedly (he denies it and no evidence has been produced) raised money to help those – including al-Qaida – fighting the Coalition forces in Afghanistan and the Russians in Chechnya. Since al-Qaida has made threats against this country, Abu Rideh’s alleged support for al-Qaida supporters in Afghanistan and Chechnya can be seen as a threat to national security in the UK.
There is clearly a strong case for dealing with anybody who is involved, directly or indirectly, in terrorism. But the law says that a person can be detained only if ‘his presence in the United Kingdom is a risk to national security.’ If someone’s alleged activities involve sending people and money abroad to enable terrorist activities elsewhere, it’s hard to see how his case satisfies the legal conditions for detention. It’s also difficult to see how national (or international) security would be enhanced by allowing an international terrorist to leave the country, which Lord Goldsmith claims any detainee can do as soon as he asks.
The only questions that SIAC had to consider were whether it was reasonable for the home secretary to believe that Abu Rideh’s presence in the United Kingdom was a risk to national security, and whether it was reasonable for him to suspect that Abu Rideh was a terrorist. As one of the SIAC judges, Mr Justice Collins, put it in the case of one of the other detainees:
We are concerned to decide whether reasonable suspicion is established and so the existence of an innocent explanation may not prevail. The question always is whether the suspicion was reasonable. We can only answer that question by submitting all the evidence to a close and penetrating analysis, and then deciding whether it does establish a reasonable suspicion notwithstanding that there might be an innocent explanation.
To put this in context, when a person stands trial in a crown court for an offence which could have been dealt with in a magistrates court, the magistrates, in committing the case to the crown court, have to be satisfied that the prosecution has made out a sufficiently good case to justify the person’s conviction, in the absence of any defence. Clearly, the SIAC test is similar: has the home secretary made a reasonable case, leaving aside anything the detainee might have said had he known the home secretary’s case? But the magistrates are giving an interim decision. If the defendant continues to plead not guilty, he will have a full trial at the crown court, where the jury will hear not only the prosecution evidence but also the prosecution witnesses being cross-examined, and the defendant putting his case. The number of acquittals at crown courts reflects very well on the system of trial by jury. The SIAC commissioners were not in the position of a jury: all they heard was the government’s case and the evidence of Abu Rideh, who did not know the detail of the accusations he had to answer.
Witness B appeared to invoke the closed sessions as a way to avoid answering questions, or admitting that he didn’t know the answers to them. For instance:
Emmerson: You accept, do you, that the account he gives of the various activities he was involved with and the various projects for which he was raising money is a truthful account?
Witness B: We are obviously not in a position to confirm everything he says. We accept that the – I say, some of the work that he was engaged in was for charitable purposes and some of the money he collected may have been for charitable purposes. There is another comment that I could make there specifically to answer that question in closed [session], which I can’t make here.
Emmerson: Did you know about these activities before he was certified?
Witness B: I am afraid, again, that’s a question which I can only answer in the closed session, but obviously we formed our assessments on the basis of all the information that we had available and maintain our assessment that he was at least in part fund-raising for terrorist purposes.
Emmerson: That is not the way in which it was put in the original witness statement, Witness B . . . As it was originally drafted that statement read: ‘Abu Rideh is actively involved in fund-raising’– yes?
Witness B: Yes.
Emmerson: ‘The security service assesses that the funds are used to finance terrorist training.’ Is that right? Is that how it originally read?
Mr Justice Collins: I have got in my bundle the deleted original. Paragraph 20 reads as follows: ‘Abu Rideh is actively involved in raising funds which the security services assess are used to finance terrorist training operations, procurement in countries such as Afghanistan and Chechnya.’ That is what it originally read.
Emmerson: The original form of the allegation makes no mention of the possibility that he is raising funds for charitable or other purposes and describes the funds that he has raised as being, in the assessment of the security services, funds that are intended for training operations and procurement for terrorism.
Witness B: Yes.
Emmerson: All I want to know is this. At the time that the assessment was originally made, were the security services aware that Mr Abu Rideh was engaged in projects, for example, the funding of wells and schools in Afghanistan.
Witness B: Well, I’m sorry, I’m not trying to be awkward, but that is a question that I can answer in closed; I can’t answer it here.
It seems that the commissioners were not very happy with Witness B’s evasiveness, because after going into closed session, Witness B came back to the open session to answer Emmerson’s question and to
confirm that the final assessment offered in the second statement to the effect that we accept that some of the money which Abu Rideh raised may have been for charitable purposes, was at least in part the result of a reassessment based on a range of information, including all the information that was available to us, which is in the closed evidence but also including his own statement.
I think Witness B is saying that the security services did not know about Abu Rideh’s charitable activities, or considered them insignificant, until evidence of them was provided by Abu Rideh’s lawyers.
And how about this:
Emmerson: Were you aware at the time of certification of Mr Abu Rideh’s mental health problems?
Witness B: Again, I think that’s a – I mean, as I understand it, there are issues which I can only comment on – I mean, I can only actually give the answer to that question in closed.
Mr Justice Collins: There are two aspects to that. Were you yourself aware of any mental health problems that we now know Mr Abu Rideh suffers?
Witness B: That is a question which, I am afraid, I can only answer in the closed session.
Neither intercept evidence nor intelligence sources are needed to establish details of the NHS treatment Abu Rideh received. Once again, it seems that the commissioners were not very happy with his answer, because after giving evidence in the closed session Witness B came back and said:
In relation to the medical issue, just to confirm that we were certainly not aware of any medical reason why Mr Abu Rideh should not be or could not be detained under this legislation and that the decision to recommend his detention sprang from a range of evidence which is in the closed material, which did not give rise to any suggestion whatsoever that Mr Abu Rideh wasn’t able to engage in a range of terrorist activities. So that was just a piece of clarification in relation to the situation regarding his medical condition.
This answer doesn’t really clarify anything. It remains startling how little the Home Office seems to have known about Abu Rideh. If it had known about his mental illness it might have known, too, that he’s an unlikely terrorist because he finds it impossible not to talk about what is on his mind.
Having been detained under the Mental Health Act, he was entitled to have his detention in hospital reviewed. His case before the Mental Health Review Tribunal was due to be heard in January this year. His consultant psychiatrist felt that his needs could be met at home, or in a specialist nursing home, and a place was found that would provide him with proper treatment and care, and would also meet the security concerns of the Home Office by preventing unsupervised access to a phone and providing an escort for him whenever he went out. On the day of the hearing I was told by counsel for the Home Office that if I attempted to argue that he could safely be moved to the nursing home, a Home Office witness would be called to give evidence that other allegations, including allegations of violent or potentially violent behaviour, might have been made in the closed SIAC hearings.
This was disgraceful. Abu Rideh was entitled to be told the gist of the allegations against him at the SIAC hearing, and if there had been claims of violent or potentially violent behaviour, he should have been informed. We have no way of knowing for sure if any such allegations were made – and the Home Office took advantage of the fact that we could not get at the truth. Allegations of terrorist violence, or potential terrorist violence, are far more serious than allegations of raising funds for terrorist activities. It thus seems unlikely that SIAC would have allowed such allegations to be made in the closed sessions without any reference to them in the summary given to Abu Rideh. When it reviewed his detention in Broadmoor two years ago, the Mental Health Review Tribunal didn’t know any of this, and there was no opportunity to argue the point. Not surprisingly, no recommendation for transfer to the nursing home was made, and he is still in Broadmoor.
By derogating from the ECHR, the Government has given itself permission, in tightly defined circumstances, to breach Abu Rideh’s human rights. It would not dare claim powers to detain him on a false premise, mislead Parliament, disregard due process, forgo the most elementary inquiries into his background and circumstances, distort evidence and misinform the Mental Health Review Tribunal. Yet it has done all of these things. The Butler Report suggested that intelligence information should be continuously reassessed to ensure that it is still valid. It is too late for Iraq, but not for Abu Rideh and the other detainees held under the recent anti-terrorism legislation. If the attorney-general does indeed subscribe to ‘our traditional view of the rule of law’, he should insist that the home secretary looks into these detentions again, and does it properly this time.