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June 28, 2006

UK: Judge Places Islamists' Human Rights Above Public Safety, Sabotages Terror Laws

The man shown at left is Mr Justice Sullivan, a High Court judge, who today has effectively sabotaged one of the main planks of Britain's anti-terror laws, by claiming that the rights of those detained in effective house arrest, under the government's "control orders", are being denied. As a result, individuals currently subject to such restrictions on their liberty will almost certainly be set free. Sullivan argued that to detain a person without trial is a breach of their human rights, as defined in Article 5 of the European Convention of Human Rights (ECHR).

This is not the first time that Sullivan has put the rights of potential terrorists above the rights of the public, by invoking his own interpretations of the ECHR. On May 10, Sullivan ruled that nine Afghan terrorists, who had hijacked a plane in Kabul, containing 173 passengers, and flown it to Britain in February 2000, were free to stay in Britain indefinitely.

The nine Afghan terrorists had been jailed for five years for hijacking, possessing guns and explosives and false imprisonment of the plane's staff and passengers. The men had threatened to kill hostages, in a four day standoff at Stansted Airport, Essex.

Sullivan was not content to merely allow the men to stay in Britain, but stated that the government "deliberately delayed" acting upon a ruling by an appeals court, which said that the men could not be returned to Afghanistan where their lives would be "at risk". Consequently, he ordered that the Home Office should pay the legal costs at the highest rate, to demonstrate his "disquiet and concern." Sullivan said: "It is difficult to conceive of a clearer case of 'conspicuous unfairness amounting to an abuse of power."

On the case of the nine Afghans, Sullivan had invoked the context of Article 3 of the ECHR, to state that the men may, if returned to Afghanistan, be "put at risk". Article 3 of the ECHR states: No one shall be subjected to torture or to inhuman or degrading treatment or punishment..

This ruling has prevented terrorists being deported to countries where their "human rights" may be denied. For example, on May 9 Abu Qatada, the man dubbed by a Spanish judge as "al Qaeda's Ambassador in Europe", was appealing against his deportation to his native Jordan. Though Jordan had signed an affidavit stating that it would not torture or execute Abu Qatada, to comply with Article 3 of ECHR, his lawyers argued that the affidavit was not legally binding. Abu Qatada had also previously been under a government "Control Order". As a result of Justice Sullivan's decision today, the whole issue of Control Orders have been placed into jeopardy.

On April 12, Sullivan had made a similar ruling, referring to Article 5 of the ECHR. An unnamed 22-year-old male student from Yorkshire, referred to only as "S", had been stopped at Manchester airport in March 2005 after he had attempted to fly to Syria. Security officials claimed that the man had intended to fly from there to Iraq, to fight against coalition forces.

Control Orders had been introduced as an adjunct to the Prevention of Terrorism Act 2005, allowing a suspected terrorist to be placed under house arrest, and also allows evidence to be sealed from the person under such an order. The sealed evidence can only be viewed by a special advocate, appointed by the attorney general, who is forbidden from revealing to his client what is contained in the sealed evidence.

The Manchester man appealed to the High Court, and Justice Sullivan said then: "The court would be failing in its duty under the Human Rights Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedures under the Act are conspicuously unfair."

Control orders can be imposed for a period of up to 12 months, and can be renewed for an unlimited amount of times at the discretion of the Home Secretary.

Article 5 of the ECHR states:

a) the lawful detention of a person after conviction by a competent court;

b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

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;

d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

The case which Sullivan ruled upon today concerned six individuals who comprised one British citizen and five from Iraq. The case is reported by the Daily Mail, the Times, the New York Times, the BBC, the Guardian, the Telegraph and the Independent.

The six individuals were not confined for a 24 hour period within their houses. They had six hours in which they could travel. The individuals were obliged to remain indoors only between the hours of 4 pm and 10 am. Their ability to ise telephone and internet services were also curtailed.

Visitors to their homes had to provide beforehand name, address and photographic identification. The individuals under a Control Order can be searched at any time of day, or night.

The five Iraqis are arguin that they cannot be deported to Iraq, as they would be likely to receive torture back home, which would then be affected by Article 3 of the ECHR.

Reiterating his statements made in April, Sullivan said that Control Orders were "incompatible" with Article 5 of the ECHR, which outlaws detention without trial. He said: "It follows that the (Home Secretary) had no power to make the orders and they must therefore all be quashed."

He said of these orders that they were "the antithesis of liberty and equivalent to imprisonment". He stated: "Their liberty to live a normal life within their residences is so curtailed as to be non-existent for all practical purposes."

"Their lives are not free, but are for all practical purposes under the control of the Home Office."

He said the Home Office had no legal rights to make the Control Orders, and stated that arguing to retain them amounted to "the potential to undermine confidence in the integrity of public administration," adding: "The short answer to the Secretary of State is that since he had no power to make them in the first place, there is nothing to revoke or modify."

The case of the six individuals who had today appealed, as well as the case concerning the individual who appealed in April, will both be heard in the Court of Appeal on Monday, July 3.

On this date, the Home Secretary, John Reid, will be expected to have his officials argue that the individuals' rights were not breached when their passports were taken away and that by not allowing the individuals to argue their case in a court of law before the Control Orders were imposed, the government had not breached Article 6 of the ECHR - the right to a fair trial. A Home Office spokesman said: "The Home Secretary strongly disagrees with the judgement of the court that the obligations in these control orders amount to a deprivation of liberty so engaging Article 5 - right to liberty and security - of the ECHR. He will seek to overturn the decision in the Court of Appeal."

Home Office Minister Tony McNulty said: "We think in the balance between public safety and the right to liberty and security for the individual, the public safety outweighs the individual."

A spokesman for Tony Blair said that the government was reviewing the way the courts interpreted the ECHR, which was enshrined into Britain's law in 1998. He said: "Parliament discussed at length both the principle and the implementation of control orders and we always made it clear that, if necessary, we would take it through the courts as far as necessary and possible - but let us see what the final judgment is."

The Conservatives said that the Control Orders had been rushed through. David Davis, their shadow Home Secretary, said: "When control orders were first debated, we warned the government that exactly this might happen, and explicitly offered them the option of extending the time limit on the old legislation, specifically to give them time to think."

He continued: "We raised precisely this risk with them in the debate on control orders, which they ignored. This week David Cameron (leader of the Conservative party) again raised the consequences of not thinking this through, and pointed out what they do in other countries, and they rubbished it."

Natalia Garcia, of law firm Tyndallwoods had represented the six individuals, and stated: "It is heartening that the courts will still act as a check against the government when it seeks to ride roughshod over the basic human rights and civil liberties such as the fundamental right to liberty. The human cost to my clients of being subject to control orders is incalculable."

The European Convention of Human Rights was written up in its most basic form in Rome in 1950, and subjected to various "protocols" in 1963, 1966 and 1985. The government can "derogate" or abstain from the Human Rights Act, but only if it declares that the nation is in a "state of emergency", which the government is unwillng to do.

Richard Ford, in an analysis for the Times, states: "This ruling is highly embarrassing for the Government, and reflects the difficulties that ministers have had in framing laws to deal with suspects against whom there is said to be evidence of links with terrorism but not enough to bring a case in court.....Essentially, two High Court rulings by the same judge have the potential to fatally undermine the Government's key measure for dealing with terror suspects against whom there is insufficient evidence to bring a court case."

David Cameron, leader of the opposition Conservative Pary, argues in a discussion in the Independent: "There is a case for abolishing the Human Rights Act and doing nothing else. But this would not solve the problem on terrorism, and it has the strong disadvantage of taking a step backwards on rights and liberties.

Another option would be to abolish the Act and pull out of the European Convention on Human Rights (ECHR). This would address the security challenge but it has significant disadvantages. The Common Law cannot properly protect the citizen from ministers who have the power to override it by statutory instrument, and the act of leaving the ECHR would send a message to other countries that you cannot have rights and security at the same time."

Posted by Giraldus Cambrensis at June 28, 2006 8:47 PM

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Posted by: Robinson at June 29, 2006 1:28 PM

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