Evidence submitted by Amnesty International
PURPOSE
1. On 12 January 2005, the Constitutional
Affairs Committee announced an inquiry into the workings of the
Special Immigration Appeals Commission (SIAC) and issued a call
for written evidence. This submission sets out some key concerns
of Amnesty International on SIAC, particularly with respect to
its operation in the context of internment proceedings under Part
4 of the Anti-terrorism Crime and Security Act 2001 (ATCSA).[10]
KEY POINTS
2. Amnesty International considers that
the scheme established under Part 4 of ATCSA is incompatible with
the Appellants' internationally recognised fair trial rights,
in particular under Article 6 of the European Convention on
Human Rights (ECHR) and Article 14 of the United Nations
International Covenant on Civil and Political Rights (ICCPR)
and/or under Article 5(4) of the ECHR. It is also incompatible
with Article 3 of the ECHR, Article 7 of the ICCPR and Article
15 of the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
because, according to the Court of Appeal's judgment delivered
on 11 August 2004, the scheme requires the admission of evidence
obtained by torture or other ill-treatment where the torture or
other ill-treatment was neither committed nor connived in by UK
officials.
3. Amnesty International considers that
the certification and detention process established under Part
4 of ATCSA, in substance and effect, amounts to the determination
of a criminal charge. This is so even though it is plainly not
categorised as such under domestic law. Under international human
rights law a state cannot circumvent fair trial guarantees by
placing outside the ordinary criminal process a procedure which
in substance amounts to the determination of a criminal charge.
4. In Amnesty International's view it is
the Secretary of State and not SIAC who determines the criminal
charge. Under international law, an appeal may be capable of remedying
any violation of Article 6 that results from the determination
by the Secretary of State. Accordingly, the assessment of the
compatibility of the scheme contained in Part 4 must encompass
not only the determination by the Secretary of State but also
the appeal process. Amnesty International notes that the appeal
process is plainly key as it marks the first point in the procedure
at which an individual has any possibility to challenge the decision
to certify and detain him. If the fair trial guarantees of Article
6 are to be met, then this must be in the proceedings before SIAC.
5. Amnesty International considers that
the following aspects of the scheme established under Part 4 of
the ATCSA are inconsistent with the UK's international obligations.
6. INDEPENDENCE—The
right to a determination by an independent and impartial tribunal.
It is a fundamental aspect of a fair trial that the accused's
guilt is established by an independent and impartial tribunal
and not by the executive. Amnesty International considers that
the scheme contained in Part 4 of ATCSA fails to meet the most
basic of fair trial guarantees, namely that the determination
of the charge be by an independent tribunal. Inherent in the notion
of an independent tribunal as guaranteed by Article 6(1) of the
ECHR, is that a tribunal has the power to make binding determinations.
SIAC's jurisdiction does not have the necessary decision making
power required to meet the condition of independence. This is
so for two reasons. Firstly, and generally, because the Secretary
of State is empowered to issue a fresh certificate and so to override
any successful appeal against certification, even absent any change
in circumstance. Whether he exercises this power or not, the fact
that he is possessed of it in law is sufficient to offend the
right to an independent determination. Secondly, SIAC, disconcertingly,
ruled that under ATCSA the standard of proof that the Home Secretary
has to meet to justify internment is not the criminal standard
of "beyond reasonable doubt" but, instead, is even lower
than that in a civil case. This means that anyone involved in
a civil claim to recover damages (for example as a result of a
car accident) must prove their case to a standard higher than
that required of the Home Secretary under ATCSA in order to have
his decision to intern people—potentially indefinitely—confirmed
by SIAC. SIAC ruled, in its "generic" judgment of 29
October 2003, that it does not have full jurisdiction under section
25 of ATCSA because it may not substitute its own finding for
that of the Secretary of State. Thus:
It is a possibility that the Commission could
conclude that there were reasonable grounds for the suspicion
or belief without itself holding the requisite suspicion or belief.
But its task under section 25 is to consider the reasonableness
of the grounds rather than to cancel a certificate if, notwithstanding
the reasonableness of the grounds, it were unable subjectively
to entertain the suspicion or hold the belief to which the statute
refers [para 40].
In summary, the fact that SIAC has neither the
power to make a finally determinative ruling on the lawfulness
of detention, nor to substitute its own assessment of the facts
for that of the primary decision maker means that it fails to
meet the requirements of Article 6(1). In addition, SIAC comprises
only a very small number of members. It is clear from the generic
judgment of the Commission that much of the evidence adduced by
the Secretary of State will be applicable to more than one appeal,
it is therefore inconceivable that there will not be occasions
on which the same individuals are required to determine disclosure
issues and then also to consider the substantive appeal. This
situation is further exacerbated by the fact that even if the
Commission rules certain material to be disclosable, the Secretary
of State may nonetheless decide to withdraw it, rather than disclose
it. This results in a real risk of unfairness in that the Commission,
in determining the appeal, may have been influenced by such material.
7. THE PRESUMPTION
OF INNOCENCE—The
removal of the presumption of innocence and the attendant lowering
of the standard of "proof" to one of reasonable belief
and suspicion a standard lower even than the civil standard of
proof. The presumption of innocence contains a number of vital
safeguards for the avoidance of miscarriages of justice. Implicit
is the duty on the state to prove its case so that any doubt is
resolved in the accused's favour. The presumption of innocence,
enshrined in Article 6(2) of the ECHR and 14(2) of the ICCPR is
a peremptory norm which states cannot lawfully violate by invoking
Article 15 of the ECHR or Article 4 of the ICCPR. Section 21 of
ATCSA permits the Secretary of State to certify not on the basis
of proof, but merely of suspicion and belief, albeit held on reasonable
grounds. As SIAC noted this "is not a demanding standard
for the Secretary of State to meet".
8. The absence of sufficient information
and particularised allegations such as to enable detainees to
know the case against them and to mount a defence. Open "evidence"
consists in the main of assertions. The bulk of the "evidence"
supporting those assertions is withheld from the detainees and
their counsel of choice and admitted in "closed evidence
proceedings". Under the "closed evidence proceedings",
detainees and their counsel of choice are denied disclosure of
the most important "evidence" against them. This is
contrary to Article 6(3)(a)-(c) of the ECHR and Article 14(3)(a),
(b) and (d) of the ICCPR.
9. Under the scheme established under Part
4 of the 2001 Act, the first opportunity for the detainees to
mount any form of challenge to the process is after the charge
has been determined by certification, at the appeal stage. But,
even then the decision on the appeal is largely made on the basis
of secret evidence heard in his absence in the "closed evidence
proceedings" when the state puts forward and the court considers
most, if not all, of the specific evidence which forms its case
against the accused. This secret process, from which the detainee
is excluded, replaces wholesale the ordinary trial process together
with the accompanying guarantees of the presumption of innocence,
equality of arms, including disclosure and the right to mount
a defence. The procedure established under Part 4 is the antithesis
of the protections that Article 6 requires.
10. The incursion into the right to be represented
by counsel of one's choosing, contrary to Article 6(3)(c) of the
ECHR and Article 14(3)(d) of the ICCPR. Under the Part 4 scheme,
the special advocate's ability to "represent the interests"
of the detainee is hopelessly circumscribed by the restrictions
under which he is required to operate. S/he is unable to challenge
the evidence or cross-examine witnesses effectively because s/he
lacks the material on which to do so, namely informed instructions
from the accused. Despite the statutory function with which s/he
is charged, s/he is in truth, able to do little if anything to
safeguard the interests of the accused. Even if the safeguard
of the special advocate is the least restrictive measure that
can be applied, in substance, it does little to repair the total
eradication, under Part 4 of the ATCSA, of the right to defend
oneself that is an essential element of a fair proceeding. The
ability of the special advocate procedure to meet the requirements
of a fair trial is yet further undermined by the fact that counsel
who perform this function are assigned by the Attorney-General;
not only a member of the Government seeking to defend the certification
under appeal, but the very individual who, in some cases, will
be appearing in court to argue against the detainee. This, in
and of itself, undermines at least in appearance, the right of
the detainee to independent counsel—and thus the right to
defence. In summary, the Special Advocates appointed to "represent
the interests" of ATCSA detainees are no substitute for legal
counsel of one's choice. They are restricted in what they can
and cannot do and are unable to discuss secret "evidence"
with the individuals concerned, undermining the detainees' ability
to challenge "evidence" and the Special Advocate's ability
to represent his or her interests.
11. The right to a review suffers from precisely
the same deficiencies in securing fair trial guarantees as the
original appeal to SIAC under section 25. In essence it is a right
in form but not substance. Once an individual is certified it
is difficult to conceive of circumstances in which he, rather
than the Secretary of State, can bring an end to his certification.
There is nothing he can usefully put forward in the review hearing
that he has not already advanced in the appeal before the Commission
because he remains just as ignorant of the evidence against him
as he was at that time.
12. In addition, Amnesty International considers
that the consideration by the Secretary of State and SIAC of evidence
obtained as the result of torture or other ill-treatment constitutes
a further violation of Article 6 of the ECHR and Article 14 ICCPR.
It is also a violation of the prohibition on the admissibility
in any proceedings (save those against the alleged torturer) of
evidence obtained by torture is an essential component of the
absolute prohibition on torture and inhuman or degrading treatment
contained in Article 3 of the ECHR and Article 7 of the ICCPR.
AMNESTY INTERNATIONAL'S
RECOMMENDATIONS TO
THE UK AUTHORITIES
13. Amnesty International continues to call
for the immediate repeal of Part 4 of the ATCSA.
14. Amnesty International continues to call
on the UK authorities to release immediately all persons detained
under the ATCSA unless they are charged with a recognisably criminal
offence and tried by an independent and impartial court in proceedings
which meet international standards of fairness.
15. Amnesty International continues to call
for an outright ban on the admissibility of any evidence extracted
under torture and for full compliance with relevant international
law in this respect.
BACKGROUND
16. Amnesty International has closely monitored
the operation of the measures relating to administrative detention
under Part 4 of the ATCSA since its implementation. As part of
this monitoring process, a delegate of the organisation has attended
a number of the open hearings, relating to the appeals against
certification before SIAC and before the Court of Appeal, as well
as the open sessions of the proceedings concerning the challenge
against the derogation brought in July 2002 before SIAC and in
October 2004 before the Appellate Committee of the House of Lords.
In addition, a delegate of Amnesty International has monitored
a number of hearings before SIAC arising from bail applications
and review of bail conditions—the latest being the application
of two internees heard on Monday 31 January 2004. Furthermore,
Amnesty International intervened, in writing, as Amicus Curiae,
in the proceedings before the House of Lords in the case of A
& Others v Secretary of State for the Home Department,
the so-called derogation challenge. Amnesty International has
documented extensively the organisation's concerns arising from
the implementation of the ATCSA and SIAC's operation there under.
17. Both prior to and in the wake of the
ATCSA's enactment, Amnesty International expressed grave concern
that some of its emergency provisions were draconian and would
have far-reaching repercussions for the protection of human rights
in the UK.
18. The ATCSA was enacted on 14 December
2001, barely a month after draft legislation had been laid before
Parliament. Such a rushed legislative process raises doubts as
to the thoroughness, adequacy and effectiveness of the legislative
scrutiny that the ATCSA was afforded by the UK Parliament. At
the time of debating the draft legislation, Amnesty International
expressed concern at the extraordinarily short time made available
for parliamentary and public scrutiny of the complex draft legislation,
particularly as most of its provisions were permanent, and the
temporary provisions allowed for potentially indefinite deprivation
of liberty without charge or trial.
19. Amnesty International believes that
Part 4 of the ATCSA is inconsistent with international human rights
law and standards, including treaty provisions by which the UK
is bound.
20. Amnesty International opposes detention
under Part 4 of the ATCSA. It is detention ordered by the executive,
without charge or trial, for an unspecified and potentially unlimited
period of time, principally on the basis of secret evidence which
the people concerned have never heard or seen, and which they
were therefore unable to effectively challenge.
21. Amnesty International has repeatedly
expressed concern that Part 4 of the ATCSA has created a shadow
criminal justice system devoid of a number of crucial components
and safeguards present in both the ordinary criminal justice system
and national procedures for the determination of refugee status.
22. Amnesty International continues to express
concern that proceedings under the ATCSA fall far short of international
fair trial standards, including the right to the presumption of
innocence, the right to present a full defence and the right to
counsel.
23. The organisation believes that, for
all intents and purposes, under the executive's application of
Part 4 of the ATCSA people have been effectively "charged"
with a criminal offence, and have been "convicted" and
"sentenced" to an indefinite term of imprisonment without
a trial.
24. In addition, having monitored bail proceedings
before SIAC, Amnesty International is concerned about the content
of the right to bail under the ATCSA which is more restrictive
than that provided for under international law. The organisation
understands that under the ATCSA, bail could only be granted if
the detention conditions were such as to fall within the ambit
of Article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, which enshrines the prohibition
of torture or other ill-treatment.
25. Amnesty International is also profoundly
concerned at the likely reliance by the UK executive on "evidence"
that was procured under torture of a third party (ie not the appellants),
in the UK executive's presentation of such "evidence"
in ATCSA proceedings before the SIAC. This "evidence"
is said to have been obtained at Guantanamo Bay, Bagram and possibly
in other undisclosed locations where people are held in US custody
purportedly in the so-called "war on terror".
26. Amnesty International continues to express
concern that the UK authorities have taken advantage of the legal
limbo and the coercive detention conditions in which UK nationals,
and possibly others, were and have been held at Guantanamo Bay
to interrogate them and extract information for use in ATCSA proceedings
before SIAC here in the UK.
27. Amnesty International has continued
to remind the UK authorities, including the judiciary, of the
fundamental prohibition on accepting evidence in any judicial
proceedings if obtained as a result of torture, enshrined, inter
alia, in Article 15 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment
to which the UK is a State Party. Article 4 of the same instrument
states that state parties must criminalise all acts of torture,
as well as any acts which constitute complicity or participation
in torture. The organisation considers that the use of evidence
obtained under torture undermines the rule of law and makes a
mockery of justice. Torture not only debases humanity and is contrary
to any notion of human rights, but it can also lead to decisions
based on totally unreliable evidence. The willingness of the UK
authorities to rely on evidence extracted under torture fundamentally
undermines any claim to legitimacy and the rule of law and contravenes
international human rights law and standards. Amnesty International
has continued to express concern that in showing such a willingness
to rely on evidence extracted under torture the UK government
and the SIAC have given a green light to torturers world-wide.
Amnesty International
7 February 2005
10 For more information about the ATCSA and Amnesty
International's concerns in relation to serious human rights violations
that have taken place as a consequence of its enactment, see,
inter alia, Amnesty International's written submissions to the
House of Lords in the case of A & Others v Secretary of
State for the Home Department, published by the organisation
on 4 October 2004; UNITED KINGDOM-Justice perverted under the
Anti-terrorism, Crime and Security Act 2001 published by the
organisation on 11 December 2003. Copies of these two documents
are attached to this briefing for ease of reference (not printed).
In addition, see Amnesty International's Memorandum to the
UK Government on Part 4 of the Anti-terrorism, Crime and Security
Act 2001 and UNITED KINGDOM-Rights Denied: the UK's Response
to 11 September 2001, both published on 5 September 2002 and
available at http://web.amnesty.org/library/eng-gbr/reports Back
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