Of the various illiberal and authoritarian measures introduced by Labour in the last few years one of the most pernicious is the use of control orders against people who are suspected of terrorist activity. People subjected to control orders are effectively under house arrest – they have a curfew of up to 16 hours a day and there are strict restrictions on where they can go and who they can meet, access to telephones and the internet is strictly limited, any vistors have to be notified to the authorities and approved in advanced. Worst of all, control orders are imposed in a way which breaches two of the most fundamental principles of justice – that people suspected of criminal activity should not be subjected to punishment without a fair trial and that they should be allowed to see and contest the evidence against them. They do have legal representation from”special advocates” but although the advocates are allowed to see the supposed evidence against their client they are not allowed to discuss it with them to establish grounds to challenge it.
The government claims that control orders are an essential element of the fight against terrorism, but it is hard to judge how true this is when we do not know what the people concerned are accused of or the evidence against them, and we are entitled to be skeptical when we hear of cases such as this, as described in an excellent article by Gareth Pierce (I would recommend anyone to read the whole piece)
On trial just before Christmas was a young Essex Muslim, Ceri Bullivant, who had been placed under a Control Order and then charged with a criminal offence when he absconded, unable to cope with the restrictions of that order. In his case the jury magnificently acquitted him on the basis that he had a reasonable excuse to breach his order. It was only later, however, in the High Court, that what lay behind the secrecy became suddenly clearer. Mr Justice Collins quashed the order itself; before he did so, an Intelligence agent giving evidence from behind a screen admitted that the tip-off which had led to the decision that Bullivant was a risk to national security and ‘associated with links to terrorists’ had come from a friend of Ceri’s mother who, after drinking heavily, had phoned Scotland Yard, which failed ever to contact the caller to ask for further explanation.
That is why we should welcome yesterdays ruling by the law lords that the use of secret evidence was a breach of the right to a fair trial under section six of the ECHR. One of the law lords, Lord Hope of Craighead summed it up perfectly -
If the rule of law is to mean anything, it is in cases such as these that the case must stand by principle. It must insist that the person affected be told what is alleged against him.
This doesn’t mean the end of control orders but if the government is now forced to release evidence which it would have previously been able to keep secret then hopefully this will be the first step to them finding a way to use such evidence, assuming it is sufficient to make a decent case, in a proper criminal trial so those people subject to control orders can have their rightful day in court. And if it is not sufficient, well it’s a pretty basic principle that in a liberal democracy if you don’t have enough evidence to convict someone of a crime thay have to be released.
The government is predictably bleating about the outcome and resorting to scare tactics
the new home secretary, Alan Johnson, called it “an extremely disappointing judgment” and said it would make it much harder to protect the public.
This of course the same Alan Johnson who many of us were talking up as our preferred successor to Gordon Brown. Well as a member of the public all I can say is that yes, I expect the government to try to protect me but I also accept that it can be very difficult, that they won’t always be successful and that there should be limits to the methods they can use.