Suspicion of Terrorism
Lucy Scott-Moncrieff on Mahmoud Abu Rideh, detained without trial
First, any restriction on fundamental rights must be imposed in accordance with the rule of law. And second, while we must be flexible and be prepared to countenance some limitation of fundamental rights if properly justified and proportionate, there are certain principles on which there can be no compromise. Fair trial is one of those – which is the reason we in the UK have been unable to accept that the US military tribunals proposed for those detained at Guantanamo Bay offer sufficient guarantees of a fair trial in accordance with international standards.
This impeccable statement of principle, which was made by Lord Goldsmith, the attorney-general, in a speech on 25 June to the International Criminal Law Association, was widely reported. What was not reported was his attempt in the same speech to fit into the same principled framework the government’s policy of detaining indefinitely without trial foreign nationals suspected of having links with terrorists:
I want to spend a few moments on these provisions both because they are controversial but also as they illustrate what I have been discussing in abstract terms about the need for flexibility and imagination while not compromising on fundamental principles. These immigration measures relate to the treatment of certain foreign nationals, who have come voluntarily to the UK and have no immigration right to remain, but who are suspected of involvement in international terrorism. Our preference when faced with evidence of terrorist activity is to prosecute the suspects using the criminal law. However, as you will appreciate, it is not always possible to bring criminal prosecutions.
This was the situation in relation to a small number of foreign nationals where there were strong grounds for suspicion but no prospects of a prosecution. This presented us with a considerable problem. Under our immigration laws we have the right to deport them due to their risk to national security because they have no right to be in the country . . . However, due to our international obligations, notably under the European Convention of Human Rights, now part of our domestic law, we cannot deport them to a country where they would face death, torture or inhuman and degrading treatment. Based on the submissions of the individuals themselves, it is our current assessment that to remove the detainees to the countries which could be required to accept them would be struck down by our courts as contrary to Article 3 of the ECHR as there would be substantial grounds for believing there to be a real risk of ill treatment there.
We are content for them to go; they have no right to be here but we cannot force them to go because of concerns for their own human rights. It is important to emphasise that they are entitled to leave.
So we were faced with a choice; either to leave them to roam freely in the country or to detain them unless and until they voluntarily leave the country or we could remove them compatibly with our ECHR obligations. We considered the first course gave rise to an unacceptable risk, given the heightened threats since 11 September and so we legislated to provide for detention. This required a derogation from Article 5 of the ECHR which provides a guarantee against arbitrary arrest and detention. The right to derogate is provided for in Article 15 of the ECHR in times of ‘public emergency threatening the life of the nation’ .
Mahmoud Abu Rideh, for whom I have been acting since last year, was living with his wife and five children in South London when he was arrested and detained on 19 December 2001. He and his wife arrived in Britain in 1995, and in 1998 he was given indefinite leave to remain, on the basis that the UN had classified him as a stateless refugee. Abu Rideh, a Palestinian, was born in a refugee camp in Jordan, but he is not entitled to Jordanian citizenship and does not have a right of return to Jordan, Palestine or any other country. There is no country, in other words, which ‘could be required’ to accept him.
The attorney-general claims that Abu Rideh and the ‘small number of foreign nationals’ referred to by Goldsmith were held because there were strong grounds for suspicion of terrorism but no prospect of a prosecution. On 29 November 2001, when the Anti-Terrorism, Crime and Security Bill was being rushed through Parliament, Lord Rooker, then minister of state at the Home Office, considered ‘whether it should be stated as a requirement of the bill that the secretary of state will not detain someone under Clause 23 unless, for example, he has done all that he reasonably can to bring about a criminal prosecution’. The Crown Prosecution Service, he said, will in such cases ‘already have reached a view that there is insufficient evidence and that it is not in the public interest to prosecute’. Parliament was assured that a decision to detain would be a last resort, made only if the CPS believed that no criminal prosecution could be brought.
Abu Rideh was taken to Belmarsh Prison without being questioned by the local police, the Special Branch, the Anti-Terrorist Branch or the intelligence services. He has still not been questioned by them. During his detention in Belmarsh, he became so ill that he had to be transferred to Broadmoor Hospital in July 2002, under the provisions of the Mental Health Act 1983.
Despite Lord Rooker’s promise, the CPS has never been asked to consider the evidence in his case. It has confirmed to Gareth Peirce, who also acts for Abu Rideh, that it had not been consulted in relation to any of the detainees – there have been 15 in all.
In his speech on 25 June the attorney-general said: