A chronicle of injustices

The European Convention on Human Rights gives us certain rights if we are arrested or detained. These rights are also deep-seated principles of English common law. How then can a government apparently committed to the Human Rights Act keep people locked up on the basis of evidence that can't be shown to the detainees or their lawyers? The use of secret evidence was rare before September 11 2001. In December that year Parliament consciously broke the Human Rights Act when it decided that foreign nationals could be indefinitely detained without charge or trial; as a result eleven men were imprisoned in Belmarsh until December 2004, when the House of Lords ruled that indefinite detention was unlawful. Before that decision, the men had tried to obtain bail or release from the Special Immigration Appeals Commission, only to find that they were turned down because of evidence kept secret from them and their lawyers. In February 2009, after a series of conflicting and confusing decisions by the British courts, the European Court of Human Rights considered the use of secret evidence. The government argued that revealing the evidence would jeopardise national security and that using "special advocates" made secret evidence acceptable.

Special advocates are lawyers approved by the Home Office to consider the secret evidence and to make what arguments might be available in the detainee's favour about that evidence. As soon as the special advocate receives the evidence, he or she must not speak to anyone about it and in particular must have no contact with the detainee and his or her lawyers. In the absence of being able to ask the detainee about the evidence, how does the special advocate know where any holes might be, whether a particular informant has a motive to lie or whether the detainee has an alibi? The European Court of Human Rights disapproved. It said: "The special advocate could not perform this function (of testing the evidence) in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate." At the very least, the evidence disclosed to the detainee should be "sufficiently specific ... for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed." So surely that should have been an end to the matter.

But the problem has been that the European Court of Human Rights was considering secret evidence used to justify indefinite detention which had officially ended in 2005. How did this ruling apply to the labyrinthine system of detention without charge or trial that has sprung up since 2005? Indefinite detention still exists, just in new forms. In 2005 the government proposed that house arrest should replace the by then unlawful system of indefinite detention - Parliament refused but did back the more neutrally termed "control orders." The men who had been detained were released and immediately subject to control orders. Control orders are not a soft option. They involve 16-hour curfews, restrictions on where the person can go during those hours when he or she is allowed out, visitors restricted to an approved list of people, bans on using the phone or internet and electronic tagging. One South African judge has said: "We had measures like that in South Africa. We called them house arrest." When the Belmarsh detainees and others went to the Special Immigration Appeals Commission, they again found that the government was relying on secret evidence - yet again they could not be told why they were being held in these conditions. In June the House of Lords decided that the European Court of Human Rights decision on secret evidence applied to control order cases too. Anyone subject to a control order should be told at least the gist of the evidence used against them. But by that time there were more people indefinitely detained on the basis of secret evidence, this time by the use of "immigration detention."

These are people who have been served with deportation notices by the Home Office on the grounds that they are a threat to national security and who are then refused bail while they challenge the decisions to deport them through the courts. And while the court battle is fought out over years, the people themselves are either imprisoned or released on bail on even more stringent conditions than those used in control orders - 22-hour curfews, advance approval of the routes of walks during the remaining two hours and so on. Yet again they don't know why the government thinks that they are such a risk. On December 1, the Court of Appeal decided that the refusal of bail in these cases, and any draconian bail conditions, was so close to control orders that the same rules should apply and at least the gist of the secret evidence should be disclosed. All well and good. But not for Mr U, who was imprisoned first in Belmarsh and now for immigration reasons for all but eight months of the last eight years. He has been refused bail despite the new rulings for reasons that still haven't been given to him or to his lawyers. The government claims that revealing the secret evidence would jeopardise the work of the security services and put informants at risk. But who knows how reliable this information is without the person it is used against knowing what is said? And who knows whether any of this information was obtained by foreign governments using torture, making the information unreliable?

The bottom line is that none of these people has ever been charged with a criminal offence. Yet they have all been detained or subjected to effective house arrest because of information that they aren't allowed to know about and can't challenge. The decision to refuse bail to Mr U may be an aberration and it may be that the courts will implement the higher courts' decisions properly. But the government will still twist and turn to retain as much secrecy as possible.