Amnesty International
Group 27, Victoria

Anti "terrorism" bill

In the reporting period [July to December 2004], AI continued to be concerned about serious human rights violations that have taken place in the UK in the context of the UK authorities’ response to the 11 September 2001 attacks in the USA.

By the end of December, 11 foreign nationals continued to be interned under the Anti-terrorism, Crime and Security Act 2001 (ATCSA) – legislation adopted in December 2001. Most had been detained for more than three years in high-security facilities under severely restricted regimes. They were detained in two high security prisons (Belmarsh and Woodhill) and a high security mental hospital (Broadmoor). A twelfth person, an Algerian former torture victim, known only as "G", continued to be held under strict bail conditions amounting to house arrest.

In July an AI delegate observed the judicial proceedings before the Court of Appeal of England and Wales brought by eight individuals against the confirmation of their certification, as "suspected international terrorist" under the ATCSA, handed down by the Special Immigration Appeals Commission (SIAC) in October 2003. One of the main planks of these appeals was the admissibility of, and reliance on, evidence extracted under torture in the proceedings before the SIAC.

On 11 August the Court handed down judgment dismissing all grounds of appeal, including by ruling that "evidence" obtained by torture of a third party would be inadmissible only if it had been directly procured by UK agents or if they had connived in its procurement. Otherwise, "evidence" obtained through torture would be admissible and could be relied upon. An appeal against this judgment was set to be heard in 2005 by the Appellate Committee of the House of Lords.

AI strongly criticized the judgment (see AI Index: EUR 45/019/2004), expressing concern that it effectively encouraged torture at the hands of agents of foreign states.

Reliance on such "evidence" by the authorities, and its admission by the courts, undermine the rule of law and the very prohibition of torture. AI was concerned that the Court of Appeal had shamefully abdicated its duty to uphold human rights and the rule of law.

On 13 October an AI delegate attended the launch of a report compiled by 11 Consultant Psychiatrists and one Consultant Clinical Psychologist about the serious damage to the health of eight of the internees detained under the ATCSA. The report highlighted the impact that detention under the ATCSA had had on eight detainees and three of their spouses: progressive deterioration in the mental health of all those detainees and their families was observed. The report concluded that such damage was inevitable under a regime which consisted of indefinite detention. It described how "their detention has had major adverse consequences for their mental health" and "a severe adverse impact on the mental health of all detainees and the spouses interviewed. All are clinically depressed and a number are suffering from PTSD [post-traumatic stress disorder]. The indefinite nature of detention is a major factor in their deterioration." These conclusions were based on a series of reports originally commissioned for legal purposes from the doctors over two-and-a-half years by the internees’ solicitors.

Also in October, an AI delegate monitored proceedings before the SIAC concerning a review of the bail arrangements imposed on the internee legally known as "G", who had been released on bail under very strict conditions amounting to "house arrest" in April 2004. At the end of the hearing, the SIAC relaxed some of the bail conditions. In December the application of Mahmoud Abu Rideh, a Palestinian refugee and torture victim, to be released on bail from detention under the ATCSA was adjourned indefinitely. At the end of 2004, he continued to be held in a high-security psychiatric hospital.

Law Lords’ judgment

In October AI delegates observed the proceedings before a panel of nine Law Lords (the Appellate Committee of the House of Lords) in the case of A & others v Secretary of State for the Home Dept. The case concerned the powers of the Home Secretary to certify – and subsequently indefinitely detain without charge or trial – non-deportable foreign nationals as "suspected international terrorists" and "national security risks" under the ATCSA.

Given the paramount importance of this case to human rights protection in the UK, AI took the extremely rare decision of lodging written submissions (an amicus curiae brief) with the House of Lords (see AI Index: EUR 45/027/2004). An amicus curiae brief was also lodged by Liberty – a domestic human rights organization –which was also granted permission to make oral submissions.

In its amicus curiae brief, AI invited the nine Law Lords hearing this appeal to find that indefinite detention under Part 4 of the ATCSA was of a criminal nature: that it, as such, violated the most fundamental fair trial rights guaranteed in international standards, including treaty provisions by which the UK is bound. In addition, AI argued that the admissibility of, and reliance on, evidence obtained as a result of torture or other ill-treatment (of a third party) in proceedings before the SIAC was in violation of the UK's obligations under international law.

On 16 December, the nine Law Lords ruled in an eight-to-one judgment that a key provision (i.e. section 23) of the ATCSA was unlawful. The Law Lords declared that these powers were discriminatory and disproportionate, and therefore incompatible with human rights law. The Law Lords ruled that the powers of indefinite detention without charge or trial contained in the ATCSA were unlawful, given their discriminatory nature. The judges declared that these powers were incompatible with the appellants' rights under the European Convention on Human Rights (ECHR), specifically the right to liberty and security of person and the right to be free from discrimination. As the Law Lords made clear, they did not, in giving this judgment, have powers either to free those detained or strike down the legislation. It was for the executive and parliament to consider the Law Lords' judgment and to take remedial action.

In the immediate aftermath of the judgment, AI urged the UK authorities to repeal this legislation and to release all detainees immediately unless they were charged with a recognizably criminal offence (see AI Index: EUR 45/032/2004 and AI Index: EUR 45/033/2004). Noting that the Law Lords had not come to any conclusion as to the admissibility of evidence obtained through torture in SIAC proceedings, AI also continued to urge the UK authorities to comply fully with the international prohibition of torture, including the use of "evidence" obtained through torture or other ill-treatment, in any proceedings, including judicial ones, except against a person accused of torture.

However, immediately following the Law Lords’ judgment, in a statement to the UK Parliament, the newly appointed Home Secretary stated, amongst other things, that "[t]he Part 4 provisions [of the ATCSA] will remain in force until Parliament agrees the future of the law. Accordingly I will not be revoking the certificates or releasing the detainees…I will be asking Parliament to renew this legislation in the new year but in the meantime we will be studying the judgment carefully to see whether it is possible to modify our legislation to address the concerns raised by the House of Lords."