3. Submission from Amnesty International
1. Amnesty International is a world-wide membership
movement. Our vision is of a world in which every person enjoys
all of the human rights enshrined in the Universal Declaration
of Human Rights. We promote all human rights and undertake research
and action focussed on preventing grave abuses of the rights to
physical and mental integrity, freedom of conscience and expression
and freedom from discrimination.
Purpose
2. On 13 May 2004, the Joint Committee on Human Rights
invited written submissions for a response to the Home Secretary's
discussion paper on Counter-Terrorism Powers: Reconciling Security
and Liberty in an Open Society (Cm 6147). This submission
sets out some key concerns of Amnesty International on the existence
and use of the internment powers under Part 4 of the Anti-terrorism
Crime and Security Act 2001 (ATCSA).[170]
Key points
3. 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 United
Kingdom (UK).
4. 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.
5. Amnesty International continues to be concerned
about serious human rights violations that have taken place in
the UK as a consequence of the implementation of ATCSA since its
enactment on 14 December 2001.
6. 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.
7. Under the ATCSA, non-UK nationals, whose removal
or deportation from the UK cannot be effected, can be certified
as "suspected international terrorists" by the Secretary
of State and immediately detained without charge or trial—that
is, interned—for an unspecified and potentially unlimited
period of time, principally on the basis of secret evidence.
8. 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.
9. 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.
10. 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.
11. In the course of the appeals brought by ten individuals
against their certification as "suspected international terrorists"
under the ATCSA the individuals concerned did not benefit from
the presumption of innocence, given that the Special Immigration
Appeals Commission (SIAC), disconcertingly, ruled that under the
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 the ATCSA in order to have his decision
to intern people—potentially indefinitely—confirmed
by the SIAC.
12. The organization 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. In addition,
in light of the fact that these powers can only be applied to
non-UK nationals, Amnesty International considers that Part 4
of the ATCSA violates the prohibition of discrimination enshrined
in international law. In August 2003 this was echoed by the UN
Committee on the Elimination of Racial Discrimination which expressed
deep concern about provisions of the ATCSA targeting exclusively
foreign nationals.
13. In February 2003, the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) published the report of its February 2002 visit
to the UK to review the detention conditions of those held under
the ATCSA in two high-security prisons. The CPT noted allegations
of verbal abuse; expressed concern about the detainees' access
to legal counsel; and remarked that the detention regime and conditions
of ATCSA detainees should take into account the fact that they
had not been accused or convicted of any crime and the indefinite
nature of their detention. The CPT expressed concern about the
fact that secret evidence may be considered in hearings under
the ATCSA and that detainees and their legal representatives of
choice can be excluded from such hearings. In addition, the CPT
expressed concern that since at least some of the internees were
victims of torture, the "belief that they had no means to
contest the broad accusations made against them also was a source
of considerable distress, as was the indefinite nature of detention".
The prospect of indefinite detention without charge or trial,
principally on the basis of secret evidence, has had a profoundly
debilitating effect on the internees' mental and physical health.[171]
14. In addition, the internees' chances of getting
bail are next to nil. Under the ATCSA, the SIAC is empowered to
grant bail to the ATCSA detainees. However, having monitored bail
proceedings before the SIAC in the past, 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 organization 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.
15. 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 (i.e. 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 Guantánamo Bay, Bagram
and possibly in other undisclosed locations where people are held
in US custody purportedly in the so-called "war on terror".
16. 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 Guantánamo
Bay to interrogate them and extract information for use in ATCSA
proceedings before the Special Immigration Appeals Commission
(SIAC) here in the UK.
17. In this connection, Amnesty International is
also deeply disturbed at the recent reiteration by Baroness Scotland
of Asthal on behalf of the UK government in the House of Lords
on 26 April 2004. Baroness Scotland stated that the UK authorities
stand by their approach to "evidence which may have been
obtained elsewhere through the use of torture—save for the
evidence that is obtained from a party (usually the defendant
in a criminal trial), [and that] all evidence is admissible, however
unlawfully obtained".[172]
18. 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 criminalize all acts of torture, as well as any acts
which constitute complicity or participation in torture. The organization
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.
19. Amnesty International notes the UK authorities'
dismissal of the recommendation of the Privy Counsellor Review
Committee (also known as the Newton Committee) to replace, as
a matter of urgency, existing "anti-terrorism" powers
with new legislation which should "deal with all terrorism,
whatever its origin or the nationality of the suspected perpetrators"
and "will not require derogation from the European Convention
on Human Rights" (para 25 of the report).
Amnesty International's recommendations to the
UK authorities
20. The UK authorities should heed the considered
views of the Joint Committee on Human Rights that "there
are serious weaknesses in the protection of human rights under
the detention provisions of Part 4 of the Act" (6th report).
21. Amnesty International urges the UK authorities
to listen to the growing volume of criticism being expressed by
eminent religious leaders, parliamentarians, members of the legal
profession and non-governmental organizations over the continuing
use of Part 4 powers. The Law Society of England and Wales, for
example, has endorsed the Newton Committee's recommendation that
Part 4 powers of the ATCSA should be replaced as a matter of urgency.[173]
22. Amnesty International continues to call for the
repeal of Part 4 of the ATCSA.
23. Amnesty International continues to call on the
UK authorities to release all persons detained under the ATCSA
unless they are charged with a recognizably criminal offence and
tried by an independent and impartial court in proceedings which
meet international standards of fairness.
24. 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
25. Under Part 4 of the ATCSA the Secretary of State
can certify a non-UK national as a "suspected international
terrorist" if s/he "reasonably (a) believes that the
person's presence in the United Kingdom is a risk to national
security, and (b) suspects that the person is a terrorist".
The basis for these determinations may include secret information
that is never revealed to the person concerned or their lawyer
of choice. In addition, under the powers granted to the executive
in Part 4 of the ATCSA, it can order the detention without charge
or trial, i.e. internment, exclusively of people who are non-UK
nationals.
26. Since internment in these circumstances is inconsistent
with the right to liberty and security of the person guaranteed
under international human rights treaty provisions by which the
UK is bound, the UK government has derogated from (i.e. temporarily
suspended) its obligations under these provisions. The UK remains
the only country that has derogated from the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR)
in the aftermath of 11 September 2001. In particular, the UK has
derogated from Article 5(1) of the ECHR and Article 9 of the International
Covenant on Civil and Political Rights.
27. To date, the Home Secretary had certified 17
people—all non-UK nationals—as "suspected international
terrorists". There have been a total of 16 people detained
under Part 4 of the ATCSA in the UK. The 17th individual has been
certified under Part 4 of the ATCSA but has been detained under
other powers. Out of the total of 16 people detained under Part
4, two of the 10 whose appeals were dismissed in October 2003
by the SIAC and who were among the first people detained under
the ATCSA on 19 December 2001 have since "voluntarily"
left the UK as they were able to go to another country, and preferred
doing so rather than facing potentially indefinite detention in
the UK under the ATCSA.
28. In July 2002, Mahmoud Abu Rideh, a Palestinian
refugee and torture victim interned under the ATCSA in Belmarsh
high-security prison, London, since December 2001, was transferred
to Broadmoor high security mental hospital. In addition, in March
2004, a Libyan man, known as "M", was released from
detention under the ATCSA after the SIAC ruled that the case for
detaining him as a "suspected international terrorist"
was "not established". Also, in April 2004, the SIAC
granted bail to another detainee, an Algerian former torture victim,
known as "G", since it was persuaded that G's mental
and physical health had seriously deteriorated as a result of
his detention under the ATCSA. G was released on bail under strict
conditions amounting to house arrest.
29. There are currently 12 people who are interned
under the ATCSA in the UK. Most of the internees have been in
detention for more than two years. They have been detained in
two high security prisons (Belmarsh and Woodhill) and a high security
mental hospital (Broadmoor) under severely restricted regimes.
30. Last year, the SIAC heard appeals brought by
10 individuals against their certification by the UK Home Secretary
as "suspected international terrorists and national security
risks", and against the consequent detention under the ATCSA
of eight of them. Judgments handed down in October 2003 confirmed
the certification of each individual concerned as a "suspected
international terrorist" and dismissed his appeal.
31. Amnesty International considers that the proceedings
before the SIAC fall far short of international fair trial standards,
including the right to the presumption of innocence, the right
to a defence and the right to counsel. 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.
32. Amnesty International is gravely alarmed at the
SIAC's reliance on secret "evidence" in secret hearings.
18 June 2004
170 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, "UNITED KINGDOM - Justice perverted
under the Anti-terrorism, Crime and Security Act 2001"
published by the organization on 11 December 2003 and copy of
which is attached to this briefing for ease of reference. 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. Back
171
In particular, see the case of Mahmoud Abu Rideh and of an Algerian
man, known as "G", in the background section below.
Back
172
Monday, 26 April 2004, House of Lords Written Answer, [HL2060]:
Column WA71. Back
173
See the Parliamentary Brief of the Law Society of England and
Wales prepared on the occasion of the House of Lords Debate on
the Report of the Privy Council Review Committee on the Anti-terrorism,
Crime and Security Act 2001, 2 March 2004. Back
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