UK Law Lords rule control orders based on secret information violate right to fair trial

The highest court in the United Kingdom has ruled that people have the right to know the information used against them to impose control orders, so that they can effectively challenge those orders.

The Law Lords‘ unanimous ruling on Wednesday, goes some way towards restoring the right of all people, including those people whom the government alleges to be or have been involved in terrorism-related activity to know the secret information that forms the basis of the government’s claims against them.

The Law Lords recognised that, if such information is kept secret from the individual, he is unable to contest the allegations against him.  Lord Hope of Craighead stated: “This [right to a fair trial] is a right that belongs to everyone […] even those who are alleged to be the most capable of doing us harm by means of terrorism. […] The controlled person must be given sufficient information about the allegations against him to give effective instructions […] This is the bottom line […] that cannot be shifted.”

Amnesty International welcomed the ruling by the Law Lords.

“The fact that the Law Lords ruled unanimously in assessing that the system of control orders as it stands violates the right to a fair trial should signal a beginning of the end of the control order regime in the UK,” said Nicola Duckworth, Amnesty International’s Europe and Central Asia director.

“The ruling goes some way to allay Amnesty International’s longstanding concern that the control order regime imposes restrictions on some individuals’ right to free movement – and, in some cases these restrictions have been tantamount to a deprivation of liberty – on the basis of secret information, withheld from these individuals and from their lawyers.

“Amnesty International continues, however, to call for the repeal of the control order regime. A number of elements of the system remain problematic, despite today’s decision by the Law Lords.”

The right to challenge the information against the individual is still undermined as some of the court hearings that will result in decisions about whether an individual will have a control order imposed on him are closed to the individual and his lawyer. Instead, a court-appointed Special Advocate, who is not necessarily a lawyer of the individual’s choice, participates in closed hearings.

Once the special advocate has seen or heard secret information, he or she is unable to consult the individual concerned or the individual’s lawyer without permission from the court, which in practice is rarely sought or granted. Amnesty International considers this process to be gravely unfair.

Despite the Law Lords’ ruling, it appears that there is no concrete government strategy in place to end the seemingly indefinite renewal of control orders against some individuals who the government claims are involved in terrorism.

The control order regime has had a profound detrimental impact on the mental and physical health of individuals who have been subject to control orders, and on the lives of their immediate families.

Mahmoud Abu Rideh, a stateless Palestinian refugee, for instance, has been under a control order for four years after being detained for almost three and a half years in a high security prison and hospital. In all of this time, the authorities have not charged him with violating any of the range of the UK’s laws which aim to combat and criminalize terrorism.

A consultant psychiatrist examining Mahmoud Abu Rideh in 2008 described certain conditions of the control order at that time, as “having the most deleterious effects on his mental health”. Mahmoud Abu Rideh’s lawyers believe that he “has reached a high level of despair” and that there is a real risk he would commit suicide if he remains under control orders in the UK and is denied an internationally-recognized travel documentation that would allow him to leave the UK.

“Amnesty International considers that the most effective ways to counter-terrorism are by ensuring the effective protection of human rights of all persons and respect for the rule of law, not by eroding those protections,” said Nicola Duckworth.