The A & Others litigation: Human Rights and Terrorism

Belmarsh CaseThe House of Lords decision in A & Ors v Secretary of State for the Home Department [2004] UKHL 56 demonstrates that the judiciary can act as an important constraint against executive excesses in safeguarding human rights. The Lords ruled that the indefinite detention without trial of non-nationals suspected of committing terrorist offences , who could not be deported, violated Article 5 of the European Convention on Human Rights (right to liberty). Article 14 (non-discrimination) was also violated because the measures were discriminatory as they only applied to non-nationals whereas a national could be just as likely to commit a terrorist offence. Thus the Lords quashed the 2001 Statutory Order, derogating from Article 5 of the Convention and declared Part IV of the Anti-Terrorism Crime and Security Act 2001 as incompatible with Articles 5 and 14 of the ECHR.See Liberty’s response to the ruling, detailing its significance and likely implications:-http://www.liberty-human-rights.org.uk/publications/pdfs/lag-lords-ruling-atcsa.pdfThe full judgment is available at:http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htmControl OrdersIn response to the A & Ors decision in December 2004, the Government introduced control orders under the Terrorism Bill 2005. The House of Lords defeated the Commons over the Bill.http://news.bbc.co.uk/1/hi/uk_politics/4338737.stmUnder the Prevention of Terrorism Bill 2005, control orders were introduced – replacing Part IV of the Anti-Terrorism Crime and Security Act 2001. There are 2 types – one requiring a derogation from Article 5 ECHR, one not.http://www.homeoffice.gov.uk/security/terrorism-and-the-law/prevention-of-terrorism/Challenges to control orders have been through the courts, culminating in the decision of the Court of Appeal in August 2006 where the original control orders were declared a “deprivation of liberty” contrary to Article 5.  The Home Secretary has been given leave to appeal to the House of Lords. http://www.guardian.co.uk/frontpage/story/0,,1835412,00.htmlFor an excellent chronological overview of events from A in [2004], the control order regime, the second decision in A in 2005 concerning the admissibility of evidence obtained through torture, as well as a snapshot of the US position see speech by Lord Phillips, Lord Chief Justice on 19 October 2006.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp191006.htmThe Terrorism Act 2006Note that the controversy surrounding the Terrorism Act 2006 concerns 28-day (reduced from 90-days) and the offence of “glorification of terrorism”. (It does not deal with control orders)http://news.bbc.co.uk/1/hi/uk_politics/4715478.stm For an overview of how recent terrorism legislation fits within political debate see:http://politics.guardian.co.uk/attacks/ A & Ors v Home Secretary (No 2) [2005] UKHL 71.Prohibition on torture (Secretary of State argued that the admission of evidence obtained through torture at SIAC was not precluded by law). Question: Could SIAC, when hearing an appeal under ATCSA by a person detained under that Act, receive evidence “which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities?  HL unamanimously held: They all noted that the prohibition of torture had long been established as a constitutional principle of this land. Held that torture evidence could not be admissible.  Lord Bingham: common law principles “compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice”   Standard of proof required before torture evidence excluded Majority: evidence should not be admitted if it is concluded on a balance of probabilities that it was obtained by torture.  Minority (went further) excluded evidence unless satisfied that there was no real risk that it had been obtained by torture. Lord Nicholls: the approach of the majority “would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture”.