Mon, 07 Dec 2009

A visit to SIAC - U to remain in jail

One of London's lesser known attraction is the Special Immigration Appeals Commission (SIAC). One can attend a SIAC hearing by turning up at the Royal Courts of Justice, after checking the hearing list for the week, and sitting at the back of the room behind the rows of barristers and solicitors. Today, Mr Justice Mitting was hearing a Home Office application to revoke the bail of U. This follows last week High Court ruling limiting the use of secret evidence in bail appeals. Similarly to the House of Lords decision about control order hearings made earlier this year, the High Court ruled that an appellant in a SIAC hearing must be provided with sufficient information so that he might know the case against him and give effective instructions to challenge the allegations. The last decision to revoke U's bail was based entirely on closed evidence, this time the Home Office has to justify its new application for bail revocation in open court. In last week's ruling, U was described as follows:

U is an Algerian national born on 8 February 1963. He came to the United Kingdom in November 1994 and claimed asylum. At the end of 1996 he travelled to Afghanistan. He returned to the UK in March 1999. On 27 June 2000 his asylum application was refused. In March 2001 he was arrested and remanded in custody on criminal charges, but they were dropped on 16 May 2001. However he was detained at HMP Belmarsh by the Secretary of State under paragraph 16 of Schedule 2 to the 1971 Act on the grounds that he had breached the conditions of his temporary admission. There ensued a long and complex history whose upshot is that, save for a period from July 2008 until February 2009 when he was on bail, U has been continuously in custody since March 2001. His confinement has been justified from time to time as a prisoner on remand, or under the administrative powers given by the 1971 Act, or at one stage as a fugitive whose extradition was sought to the United States. [...]

In February, Andy Worthington wrote about how Jacqui Smith kidnapped U and others:

The Home Secretary, Jacqui Smith, appears to have declared war on the government’s own secret terror court, overruling decisions made by judges in the Special Immigration Appeals Court (SIAC) yesterday, and — in what can only be described as an act of executive fiat — unilaterally revoking their bail, kidnapping them on their way home from the London courtroom (or in raids on their homes) and imprisoning them in Belmarsh high-security prison in south east London. [...]

More recently he published Maps, wire and fig trees – the Dummies Guide to Revoking Bail a short piece on U by Jack Hazelgrove, a Brighton resident who offered him his home for the eight months he was on bail:

I had offered my home to U, a middle-aged Algerian about whom I knew little except that he had been imprisoned without charge or trial for over six years and who his solicitor described as “very studious.” He would effectively be under house arrest on a 24-hour curfew, tagged and monitored with surveillance equipment, his only relief from confinement being access to the back garden. Parts of the interior of the house were forbidden territory, e.g. the computer room, where my computer had new passwords installed and was put in a specially designed steel safe behind a reinforced door and extra window locks.

It was a relief when the posse of Home Office and security people left and U was able to turn his anonymous student room into his first home for seven years. The Home Office had made clear their objection to Brighton as a bail address and refused to pay any rent or subsistence, which they would have paid had he accepted their offer of an isolated one-bedroom flat somewhere in the North. [...]

The hearing started at 11.30 with Mr Robin Tam QC for the Home Office. Mr Tam favoured outcome was the revocation of U's bail or alternatively the imposition of strict bail conditions comparable to those in place before February 2009. However, if the bail was not revoked, he wanted U to go to another location than Brighton; no reason was given for this request. A key argument of Mr Tam was that U is a risk to national security and, as his deportation case is progressing and getting closer to a conclusion, the attendant risk of absconding is increasing, hence a precautionary approach must be adopted. Mr Tam insisted that the bail application is ancillary to the matter of the deportation, the core issue in the main proceedings.

Mr Justice Mitting pointed out that such a precautionary approach for SIAC could suggest denying bail to all appellants, with the decision effectively becoming that of the Home Secretary. Mr Tam made a more flippant comment later on: it's not because the Secretary of State has the power to detain that he will detain everyone! Mr Justice Mitting asked Mr Tam how does he see the Strasbourg approach to scrutiny of national security assessments apply, to which Mr Tam answered, if SIAC does not have the tool to make the fine assessment required of national security, it has to apply a lighter touch. Some of the verbal exchanges gave me the impression that the Home Office would be happy for the scope of SIAC to be reduced.

It was mentioned that the security services have revealed, for the first time in open evidence, weaknesses in electronic tags. As the problems are apparently so severe this technology can't be trusted, if bail is granted then conditions will need to include 24 hours house arrest.

We had to temporarily vacate the room later in the morning as Mr Justice Mitting asked for a brief closed session. The open session session then continued until 1pm and reconvened at 2pm. Ms Stephanie Harrison, the barrister representing U, countered the Home Office by arguing that fair hearings overrides national security concerns. Bail assumes that the detention is lawful and that the decision is about whether U can be released with conditions. I.e., the decision must be about whether objections from the Home Office were valid, if so whether they can't be met. Ms Harrison pointed out that when he was on bail, U met all the imposed conditions (and Mr Tam confirmed that 'we have made no complaint to the contrary') and that she was confident that these bail conditions could be restored. Ms Harrison also commented that the deportation case has still likely at least 18 months to go in domestic courts and would then likely be appealed to Strasbourg, suggesting that such a length in time would mitigate the alleged increased risk of absconding.

A large part of the interventions consisted in technical legal points about bail legislation, tests for bail granting and revocation (a possible test for new cases could be whether detention is for the purpose of deportation, and whether it is arbitrary? If the answers are respectively yes and no, then bail should be approved with a strict time limit), calibrated approach (relying on the use of secret evidence) vs. the Strasbourg approach (as expressed by the European Court of Human Rights), etc.

Mr Justice Mitting commented that in SIAC (which 'deals with appeals against decisions made by the Home Office to deport, or exclude, someone from the UK on national security grounds, or for other public interest reasons') the statutory presumption is to detain. He recapped some of the issues the judges will have to consider when making their decision: now that we don't have access to closed material, can the risk of absconding be adequately managed. Is it likely that he'll break his bail conditions. We're looking at this solely in the light of the open material.

Before the three judges retired at about 5pm, two special advocates also intervened. The two other judges, sitting on each side of Mr Justice Mitting, have never seen the secret evidence. They remained silent during the proceedings.

About five minutes later, the three judges came back and Mr Justice Mitting announced their decision to uphold the revocation of bail on the basis of the open evidence. Reasons for this decision will be provided in the ruling to be published after Xmas (it has to be vetted by the security service, before publication). The current lack of explanation is not just frustrating for all those present, but is also delaying the judicial review of this decision that Ms Harrison will request.

Next Monday, on 2009-12-14, SIAC will hear the bail revocation applications for XC and UF, two of the Pakistani students arrested in April as part of Operation Pathway, a round-up of twelve men in connection with a purported 'major terrorist plot' and currently detained in prison.

If you can make the time it is worth attending. At times SIAC can feel like a charade. Some of the Home Office arguments appear entirely circular: e.g., there's a high risk to national security as SIAC cases are serious and of high severity, hence SIAC must manage 'the magnitude of the seriousness of the risk should it eventuate'. It is important to realise the damage that the use of secret evidence has done to fair trials and how it stills obstructs the judicial process. (Sign the petition, lobby your MP.) Attending a SIAC hearing demonstrates the damage done to fair justice by the successive Home Secretaries invoking opaque concepts such as 'national security' and resorting to secret evidence.

Update: for more background and another take on this SIAC ruling see Andy Worthington's Calling Time On The Use Of Secret Evidence In The UK.

First published on 2009-12-07; last updated on 2009-12-10.

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