The government continued to attempt to return individuals to states where they would face a real risk of grave human rights violations on the strength of unenforceable “diplomatic assurances”. Secrecy in the implementation of counter-terrorism measures led to unfair judicial proceedings. There were continued failures of accountability for past violations, including in relation to alleged state collusion in killings in Northern Ireland.
Counter-terror and security
Extension of pre-charge detention
In October, the House of Lords – the upper house of parliament – voted against proposals contained in the Counter-Terrorism Bill 2008, to give a government minister the power to extend from 28 to 42 days the period for which people suspected of terrorism-related offences could be detained by the police without being charged with an offence.
The government responded to the vote by withdrawing the proposals from the Counter-Terrorism Bill, and publishing a new piece of draft legislation containing similar proposals. The Home Secretary told Parliament that the government would ask it to pass this legislation in the future, “should the worst happen, and should a terrorist plot overtake us and threaten our current investigatory capabilities.”
In October, before the vote in the House of Lords, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment expressed its considerable concern over the existing provisions – and even more so over the possible new ones – regarding the permissible length of pre-charge detention in cases falling under the terrorism legislation.
Changes to coroners’ inquests
In October, the government withdrew from the Counter-Terrorism Bill provisions which related to coroners’ inquests, announcing its intention to re-introduce the proposals in forthcoming new legislation reforming the system of inquests more generally. These proposals, if passed, would have given a government minister the power to order that part or all of the evidence heard by a coroner’s inquest should be heard in secret, in the absence of the family of the deceased person and their legal representatives, where the minister considered it in the public interest to do so.
As of 10 December, there were 15 control orders in force under the Prevention of Terrorism Act 2005. These allow the government to impose restrictions of movement and association on people suspected of involvement in terrorism-related activity, if deemed necessary for the protection of the public.
In October the Court of Appeal of England and Wales decided four appeals from individuals subject to control orders. The individuals were referred to as A.F., A.M., A.N. and A.E. In three of these cases – A.F., A.M. and A.N. – the High Court had ruled that the men had not been given a fair hearing; in the fourth, A.E., the High Court had ruled that the hearing was fair.
In each case the government had relied heavily on information which had not been disclosed to the individuals or their lawyers, and which had been heard in secret sessions of the court from which they were excluded.
The Court of Appeal ruled that there was arguably “no principle that a hearing will be unfair in the absence of open disclosure to the [controlled person] of an irreducible minimum of allegation or evidence”; but that, even if such a minimum of disclosure was required for fairness, this could “be met by disclosure of as little information as was provided [to A.F.]... which is very little indeed”. The Court of Appeal ruled that the cases of A.F. and A.N. should be reconsidered by the High Court. It dismissed, on grounds which were kept entirely secret, the government’s appeal against the High Court’s decision, itself entirely secret, in A.M.; and upheld the High Court’s ruling that A.E. had been given a fair hearing.
"Attempts continued to deport individuals alleged to pose a threat to national security..."
An appeal against aspects of these decisions to the UK’s highest court – the Appellate Committee of the House of Lords (the Law Lords) – was pending at the end of the year. In July, the UN Human Rights Committee noted that control order hearings “in practice [deny] the person on whom the control order is served the direct opportunity to effectively challenge the allegations against him or her,” and recommended that the UK should “ensure that the judicial procedure […] complies with the principle of equality of arms, which requires access by the concerned person and the legal counsel of his own choice to the evidence on which the control order is made.”
Detention without trial
- In February, the Court of Appeal of England and Wales ordered the Home Secretary to reconsider the government’s decision to refuse to give any compensation to Lotfi Raissi.
On 21 September 2001 Lotfi Raissi, an Algerian national, was arrested in London for his alleged participation in the attacks on 11 September 2001 in the USA. He was subsequently detained for almost five months, on the basis of an extradition request from the US authorities. In April 2002 a judge dismissed the request, saying that there had been “no evidence whatsoever” to support the allegation that Lotfi Raissi was involved in terrorism.
In February 2007, the High Court had endorsed the Home Secretary’s refusal to compensate Lotfi Raissi. The Court of Appeal overturned this decision, finding that the extradition proceedings had been “used as a device to circumvent the rule of English law”.
By the end of the year no new decision on compensation had been reached.
Torture and other ill-treatment
Attempts continued to deport individuals alleged to pose a threat to national security to countries where they would be at real risk of grave human rights violations, including torture or other ill-treatment. The government continued to argue that “diplomatic assurances” – unenforceable promises from the countries to which these individuals were to be returned – were sufficient to reduce the risk they would face.
In April, the Court of Appeal of England and Wales ruled that the UK could not proceed with deportation in two cases involving diplomatic assurances.
In the case of two Libyan nationals, referred to as “A.S.” and “D.D.”, the Court of Appeal upheld the judgment of the Special Immigration Appeals Commission (SIAC), the tribunal which hears appeals against deportation on national security grounds, that the assurances obtained from the Libyan authorities were not sufficient to protect them from a real risk of torture or other ill-treatment.
In the case of Omar Othman (also known as Abu Qatada), a Jordanian national, the Court of Appeal found that the trial which he would face in Jordan – a trial in which SIAC said there was a high probability that evidence which may have been obtained by torture or inhuman or degrading treatment would be used against him – would amount to a flagrant violation of the right to a fair trial, and that the assurances given to the UK by Jordan would be no protection against this.
Following these decisions the Home Secretary announced that the government had “decided to discontinue deportation action in [the cases of D.D. and A.S.], and in the cases of 10 other Libyan nationals”. At least five of those Libyan nationals were later made subject to control orders.
In October, the Law Lords heard an appeal by the government against the Court of Appeal’s decision regarding Abu Qatada. At the same time they heard appeals by two Algerian nationals, referred to as “B.B.” and “U.”, against an earlier decision of the Court of Appeal which had upheld SIAC’s conclusions that they could safely be returned to Algeria on the strength of assurances obtained from the Algerian authorities.
The Law Lords were asked to consider the reliability of diplomatic assurances and the fairness of SIAC’s reliance on secret material.
By the end of the year, no judgment had been given in these appeals. The men facing deportation with assurances remained either in detention or subject to extremely strict bail conditions.
In February, the Foreign Secretary announced that he had been informed by the USA that, contrary to repeated assurances, the USA had used the UK overseas territory of Diego Garcia on at least two occasions in 2002 for the purposes of transferring detainees in its programme of rendition and secret detention. The Foreign Secretary did not name the detainees involved.
- Binyam Mohamed, an Ethiopian national formerly resident in the UK, remained in US custody at Guantánamo Bay, Cuba. In May, the Foreign Secretary told Parliament that “[UK] officials continue to discuss his case with the US”, but that the USA was “not currently inclined to agree to our request for [his] release and return”.
In October, a High Court hearing confirmed that an agent of the UK Security Service (MI5) had questioned Binyam Mohamed while he was detained in Pakistan in May 2002. The UK intelligence agencies had supplied information to the US authorities for use in the interrogation of Binyam Mohamed, in the knowledge that he was detained incommunicado and had been denied access to a lawyer. UK intelligence agents had continued to supply information for use in his interrogation even when it became clear that he was no longer detained in Pakistan but was in a third country, where US agents continued to have direct access to him.
The High Court found that in principle, the government should have disclosed to Binyam Mohamed’s lawyers information in its possession which could support his claim to have been subjected to torture and other ill-treatment, on the grounds that “the relationship of the [UK] Government to the [US] authorities in connection with [Binyam Mohamed] was far beyond that of a bystander or witness to the alleged wrongdoing”.
In October, the Home Secretary asked the Attorney General to investigate possible “criminal wrongdoing” by agents of the UK and USA in the treatment of Binyam Mohamed.
- In March, a Spanish judge ruled that the physical and mental health of Jamil El Banna and Omar Deghayes, two UK residents returned to the UK from Guantánamo Bay in 2007, had been so severely damaged by their treatment during their years of detention that it would have been “impossible, even inhuman” to proceed with their extradition to stand trial in Spain.
By the end of the year, no decision had been made as to whether these two men, or a third man returned from Guantánamo at the same time, Abdennour Sameur, would have restored to them the indefinite leave to remain in the UK which they had enjoyed prior to their detention and transfer to Guantánamo.
Armed forces in Iraq
- In March the Secretary of State for Defence admitted that “a substantive breach of Articles 2, right to life, and 3, prohibition of torture, of the European Convention on Human Rights” had taken place in the case of Baha Mousa, and that breaches of Article 3 had taken place in the treatment of a number of other individuals detained alongside him.
Baha Mousa died at a UK-run detention facility in Iraq in September 2003, having been tortured and ill-treated by UK troops over a period of 36 hours. A number of Iraqis detained alongside him were also tortured and ill-treated.
In May a public inquiry was announced into the case of Baha Mousa under the Inquiries Act 2005, legislation which has been criticized for failing to ensure that inquiries are fully independent. The terms of reference of the inquiry require it to “investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, [...], in particular where responsibility lay for approving the practice of conditioning detainees”.
The inquiry opened in October.
Police and security forces
- In December, the coroner’s inquest ended into the death of Jean Charles de Menezes, a Brazilian man shot dead by police officers in London in 2005. The jury was unable, on the evidence it had heard, to conclude that the police officers who shot Jean Charles de Menezes had done so lawfully. The jury found that a number of failures in the police operation had caused or contributed to his death. The coroner had directed the jury that it could not return a verdict of unlawful killing. He did not consider that there was enough evidence for jury members to be sure beyond reasonable doubt that individual police officers had committed a criminal offence of murder or manslaughter.
Northern Ireland – collusion and political killings
In July the UN Human Rights Committee expressed concern that “a considerable time after murders (including of human rights defenders) in Northern Ireland have occurred, several inquiries into these murders have still not been established or concluded, and that those responsible for these deaths have not yet been prosecuted”. The Committee was concerned that “even where inquiries have been established, [...] instead of being under the control of an independent judge, several of these inquiries are conducted under the Inquiries Act 2005 which allows the government minister who established an inquiry to control important aspects of that inquiry”.
- By the end of the year, the UK authorities had still not instigated the promised independent public judicial inquiry into the 1989 killing of human rights lawyer Patrick Finucane. In July, the UK authorities insisted that “the only way such an inquiry could take place is under the Inquiries Act 2005”. Serious concerns have been expressed by the family of Patrick Finucane and by human rights organizations, as well as by expert bodies of the UN, that any inquiry held under that Act would be insufficiently independent.
- In April, full public hearings began as part of the inquiry (not held under the Inquiries Act 2005) into the 1999 killing of Rosemary Nelson, a human rights lawyer. To date no one has been charged in connection with the killing.
Refugees and asylum-seekers
In March, 60 rejected asylum-seekers were forcibly returned to Erbil in northern Iraq; in October, it was reported that a further 50 Iraqis had been returned to northern Iraq.
In March, the Asylum and Immigration Tribunal (AIT) gave its decision on an important test-case concerning humanitarian protection for asylum-seekers who have fled armed conflicts. The AIT ruled that, although there was an internal armed conflict in Iraq, the appellants in the case would not, just by virtue of being civilians, face a “serious and individual threat” if returned, and therefore were not entitled to protection under EU legislation known as the Qualification Directive. This decision would, if followed, result in even more Iraqi asylum-seekers being denied protection in the UK. By the end of the year an appeal against this decision was pending.
Trafficking in human beings
In December, the UK ratified the Council of Europe Convention on Action against Trafficking in Human Beings.
In October, the concluding observations of the UN Committee on the Rights of the Child in relation to the UK, stated that: “The Committee – while noting that child poverty has been reduced in the last years – is concerned that poverty is a very serious problem affecting all parts of the United Kingdom, including the Overseas Territories, and that it is a particular concern in Northern Ireland, where over 20 per cent of children reportedly live in persistent poverty. Furthermore, the Committee is concerned that the Government’s strategy is not sufficiently targeted at those groups of children in most severe poverty and that the standard of living of Traveller children is particularly poor.” It went on to say: “The Committee would like to highlight that an adequate standard of living is essential for a child’s physical, mental, spiritual, moral and social development and that child poverty also affects infant mortality rates, access to health and education as well as everyday quality of life of children.”
Amnesty International visitsAmnesty International delegates observed court proceedings in England throughout the year, including challenges to control orders, appeals against deportation with assurances, and part of the inquest into the death of Jean Charles de Menezes. Delegates also visited Northern Ireland.
Amnesty International reportsUK: Amnesty International’s briefing on the Counter-Terrorism Bill 2008 (3 July 2008)
UK: Briefing to the Human Rights Committee (25 June 2008)
State of denial: Europe’s role in rendition and secret detention (24 June 2008)