Guardian Article “Freed: But Why?,3605,1408124,00.html

Freed – but why?

A terrorist suspect held for three years without charge has suddenly been released. Brian Barder suspects the home secretary had little choice

The Guardian Tuesday February 8, 2005

There’s a mystery surrounding the sudden, unexpected, largely unexplained, unconditional release on January 31 of an Egyptian known as C, imprisoned by the home secretary for three years without charge or trial as a terrorist suspect. The event has implications not only for the existing law permitting such imprisonment (and already condemned by the law lords last December as contravening Britain’s human rights obligations), but also for the viability of Charles Clarke’s proposals for replacing it by control orders under which various restrictions could be imposed on a suspect’s liberties, up to and including house arrest.

Following C’s detention in December 2001, the Special Immigration Appeals Commission (SIAC) confirmed it in October 2003 and again in July 2004, hearing some of the evidence against him in secret to protect its sources but publishing a summary of the rest on the internet. SIAC was due to review C’s case again just two days after his release. Coincidence?

In the wake of the law lords’ judgment, Clarke had already indicated that he would not oppose bail for the remaining detainees on conditions including, for example, tagging, a ban on meeting designated people and use of computers and mobile telephones, up to and including house arrest – the kind of restrictions envisaged in his new proposals, this time to apply to Britons as well as foreign nationals. Ministers have stressed that C’s release should not be taken as implying that he is not now a threat: only that the threat doesn’t now justify his detention.

The immediate assumption of most media commentators was that there must have been new developments since the SIAC review last July that made C less of a threat and his release now an acceptably low risk: perhaps the terrorist network he had allegedly been involved in, Egyptian Islamic Jihad, reportedly linked with al-Qaida, had recently been broken up or his other terrorist contacts arrested or dispersed. Or perhaps new information had just come to light that cast doubt on the reliability of the evidence originally thought by both the home secretary and SIAC to require his detention.

The trouble with this explanation is that it is not put forward, even by implication, in the home secretary’s formal statement on C’s release. If there had been a recent change in circumstances or new information casting doubt on the previous evidence, one would expect the statement to refer to “changed circumstances” or “new information” (or words to that effect), so that C was judged to be “no longer” a threat. No such language appears in the statement. In her media interviews the home office minister Hazel Blears refused to comment on the “circumstances of individual cases”. She would not even confirm that there had been a change of circumstances or new information, still less say what they were. She stressed that the threshold for justification of detention was set very high and the home secretary had concluded that the evidence at this time did not cross that threshold. There were hints from “Home Office sources” that “new information had emerged in a regular review of [C’s] case that meant his indefinite detention was no longer justified”: but these were unattributable and unverifiable: indeed, unsupported by the home secretary’s statement or by any other ministerial statements.

The “changed circumstances” explanation also seems to be contradicted by SIAC’s own confirmation of C’s continued imprisonment last July, which noted that already, six months ago, “arrests and detentions [had] disrupted [C’s] range of associates and contacts, [but] there are other prominent contacts at liberty with whom he would readily resume contact and re-establish his activities. He continues to have many contacts abroad … He would still have the will, commitment and ability to resume his activities in the UK were he to be released”. It seems highly unlikely that all C’s “prominent … many contacts abroad” have been dispersed or otherwise eliminated in just the past few weeks; and even less likely that C has suddenly lost his “will, commitment and ability to resume his activities in the UK were he to be released.” C’s solicitor has said that the Home Office fax notifying her of his impending release mentioned that all his terrorist contacts had now been “disrupted”, but she found this mystifying, since the situation on which C’s detention had been based had not changed at all in recent months.

On last Sunday’s Breakfast with Frost, Clarke for the first time confirmed, in reply to a direct question, that C had been released because “circumstances had changed”: but he was curiously reticent about which category of circumstances had changed.

Here’s a possible scenario. The new home secretary, confronted on his first day with the poisoned chalice of the law lords’ judgment, looks at the evidence against C hitherto accepted by David Blunkett and SIAC. He finds it much less convincing than his predecessor or his officials did, especially when set alongside the law lords’ declaration that detention is disproportionate to the threat posed by international terrorism. He speculates that this might make SIAC reluctant, at its imminent review of C’s case, to endorse C’s continued detention – or even house arrest. Even if SIAC consented to house arrest, C might reject it and insist on either continued imprisonment or unconditional release – an unpalatable situation for the government, both discrediting the present system (already holed below the waterline by the law lords) and, worse, undermining Clarke’s proposals for its replacement.

Perhaps Clarke takes a more rigorous view than Blunkett of the need for seriously convincing evidence to justify depriving a man indefinitely of his liberty without trial. Perhaps the Home Office lawyers warned that he faced humiliation in just a few hours’ time when SIAC looked again at C’s case in the light of the law lords’ judgment. So, he may have concluded, the least embarrassing course was to release C forthwith before SIAC forced him to do so, in this way hoping to minimise the damage to the credibility of his “house arrest” proposals. Certainly this scenario seems more consistent with the wording of that curious Home Office statement than any other so far suggested.

There are other interesting conclusions to be drawn. In the light of the law lords’ judgment, the evidence said to justify C’s three years in prison without trial, as summarised by SIAC, looks very thin indeed. C’s record of buying goods in some Marks & Spencer branches and then trying to return them in others was judged by SIAC and the home secretary to show an intention to raise money for terrorism, although SIAC admits that there was no evidence of fraud justifying criminal charges. C’s congenital dishonesty was thought to be demonstrated by his lies about his movements before settling in Britain (where he was accepted by the Home Office as a refugee and given indefinite leave to remain, to the consternation of the security service); but refugees commonly lie about where they have come from, to minimise the risk of being sent straight back to the country that has persecuted them. Other evidence amounted to guilt by association.

True, we can see only the “open” evidence. Maybe the “closed” evidence, withheld from C and his lawyers (and us) is more convincing. But even if the closed evidence was so recently conclusive, what has happened since July to warrant C’s unconditional release? Likeliest answer: the law lords’ judgment. In other words, what has changed is not the situation or the available information, but the standards by which the law lords require them to be considered. If, as the law lords decided, detention without charge or trial is disproportionate to the terrorist threat, how can lower courts, from SIAC upwards, uphold the continued detention, even under house arrest, of the few remaining detainees? Some of the detainees and their lawyers are now anyway refusing to accept house arrest as a condition for release. All this has daunting implications for Clarke’s plan to subject not just foreigners but the whole population to the same regime. His fears about likely problems with SIAC in future will have been intensified by its refusal yesterday to approve his application to send a suspect known as “G” back to prison. G had been granted bail under house arrest because his mental health had deteriorated through being held indefinitely in Belmarsh, but was accused of breaking his bail conditions by having unauthorised visitors.

The present law and the Clarke proposals for house arrest on the home secretary’s authority are, as Shami Chakrabarti of Liberty has said, unravelling before our eyes, politically and legally. Objections to the proposals are being voiced from all political directions. Mr Blair has already begun to distance himself from them (“I have not had an opportunity to study those proposals in detail”), accepting with apparent alacrity Michael Howard’s offer of talks to find an agreed way forward. The need now is for a broad consensus on how to restore the key principle that it is for the courts, not a politician, to deprive men and women of their liberty when necessary, after a fair trial by judge and jury. “Concessions” short of this, such as agreeing to make intercept evidence admissible in court or subjecting the home secretary’s decisions to scrutiny by a judge, are not enough.

· Sir Brian Barder is a retired British diplomat who was a lay member of SIAC from 1998 until his resignation in January [2004*].

*omitted in error by the Guardian

Extracts from SIAC judgments on CHome Secretary’s statement on CA fuller analysis

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