On Liberty (6 page)

Computer expert Babar Ahmad, from South London, was accused, along with Talha Ahsan, of setting up terrorist fundraising websites, and detained for eight years without charge. Again the alleged criminal conduct took place here in the UK, but again the authorities refused to prosecute Mr Ahmad here – or allow a private prosecution attempted by the businessman Karl Watkin – and set about facilitating the accused’s extradition to the US. Again, the serious impact of extradition on Mr Ahmad and his family – not to mention the inevitable difficulties involved in prosecuting the crime in the US, with many of the witnesses and much of the evidence being in the UK – were ignored. Had the evidence passed to the US been properly considered by the CPS, it was highly likely there would have been sufficient material to charge Mr Ahmad and place him on trial in Britain. But that never happened and, after a lengthy legal battle, both the European Court of Human Rights, in April 2012, and the UK High Court, the following October, ruled that Mr Ahmad could be lawfully extradited to the US to face terrorism charges. In December 2013, he pleaded guilty before a court in Connecticut. It was difficult to see how such outsourcing of justice under our lax extradition laws would do anything for the public’s trust in British law enforcement.

Thankfully some victims of our rotten system have escaped extradition. Sheffield student Richard O’Dwyer was able to reach an agreement with US prosecutors to avoid his removal – but not before a desperate two-year legal battle, led by his mother Julia. Richard was accused of copyright infringement by US authorities for hosting a website, TVShack, offering
links to downloadable pirate films and TV shows. Not actual content – just
links
. He built the site from his Sheffield bedroom, and his computer server was not even based in the US. Yet still Richard faced being hauled across the Atlantic to stand trial. His extradition order was approved by the Home Secretary (by then Theresa May) despite the Conservatives and the Liberal Democrats committing to extradition reform while in opposition. In January 2012, Westminster magistrates ruled that Richard could be extradited to the US on piracy charges – another reminder of just how unfair our extradition laws had become. Mercifully, in November 2012, it was announced that an agreement had been reached and that all charges had been dropped. Richard’s case, like the others’, underlined the need for our extradition arrangements to be overhauled to allow people who have never even left our shores to be dealt with here at home. Only urgent legislation can prevent similar torment in future.

But perhaps the most famous case to emerge since the introduction of the Extradition Act 2003 is that of Gary McKinnon. He is the British man who was charged with hacking into US Pentagon and NASA systems between 1999 and 2002. For ten long years, Gary faced the threat of extradition to the US in order to stand trial. He was diagnosed with a form of autism known as Asperger’s syndrome and his lawyers argued in an appeal to the European Court of Human Rights that, because of this and given that the crime was committed on British soil, he should be tried in the UK. Regrettably, the court refused to intervene and Gary lived for a decade with the prospect of sixty years in a US jail hanging over him.

However, in October 2012 the Home Secretary Theresa May announced her refusal to extradite Gary on human rights grounds. Her decision came after a report by Home Office-appointed psychiatrists warned that Gary would very likely attempt suicide if sent for trial across the Atlantic. The sparing of this vulnerable man was a great day for rights, freedoms and
justice in the UK and a testament to the campaign supporting him, led by his fearless mother Janis Sharp. Janis, like my dear friend Doreen Lawrence, should be an inspiration to mothers and campaigners everywhere. These great women didn’t go to law school as I did and then take the path of human rights as a professional and political choice. Tragically, they had no choice and when others, perhaps myself included, would have crumbled in the face of such enormous adversity, they converted their love and responsibility towards their own children into broader campaigns for other people’s children and generations to come. It has been a privilege to sit beside these women at important moments in their lives.

Janis’s was a fight that united lawyers, politicians, press and the public from across the spectrum in the cause of compassion and common sense. But the Home Secretary gives and she also takes away. Subsequent Home Office legislation removed the very same compassionate power that had allowed her to help Gary.

Theresa May announced that the law would be changed to introduce the ‘Forum Bar’ – the reform which we at Liberty had long called for. This, we hoped, would mean that British courts would be allowed to bar extradition where the alleged conduct has taken place, in whole or in part, in the UK and it is in the interests of justice to do so. Had such a law been in force when Gary’s case first came before the courts, his extradition could have been barred on this basis and he would not have had to wait so long.

Frustratingly, there is already a provision that would achieve precisely this, which has laid dormant on the statute book since 2006. But, rather than activate it, the government brought forward new legislation which fell well short of the mark. Rather than giving judges the ability to consider what the interests of justice demand in a case where the activity complained of took place in this country, the Crime and Courts Act makes provision for what is little more than a nominal discretion. Judges’
hands are tied by the inclusion of a prescriptive list of considerations, all of which skew the balance in favour of extradition. Perhaps more concerning still, no consideration can be given to barring extradition in cases where a decision has been made not to prosecute in the UK. Not much help to the Gary McKinnons and the Richard O’Dwyers who were not facing prosecution at home. Perversely however, those whose alleged conduct is capable of amounting to serious offending in this country can avail themselves of this albeit very limited discretion. At Liberty, we will continue to call on the coalition government to honour its vow, and the principles both parties strongly supported while in opposition, by making meaningful changes to our extradition system. Extradition should prevent fugitives escaping – not allow for people like Gary to be parcelled off around the world based on allegations of offences committed here at home.

So what did I learn from stop and search and summary extradition as well as other bad, sloppily conceived laws? I learned that if you don’t speak up for the terror suspect, there may be no one to speak up for you and that politicians’ promises won’t even come close to hard-edged legal human rights protection when it’s you or a loved one who is in trouble.

‘
Does Magna Carta mean nothing to you? Did she die in vain?
’

– from ‘Twelve Angry Men’, BBC TV Series
5 of
Hancock’s Half Hour
(first broadcast
16 October 1959)

By December 2004 I had been officially in post for fifteen months. These were tumultuous days in British politics. After months of media scrutiny of his private life the Home Secretary David Blunkett resigned on 15 December. He was accused of helping to fast-track a visa for his ex-partner’s nanny. Mr Blunkett was the first Home Secretary I encountered as director of Liberty (having worked for Michael Howard and then Jack Straw as a Home Office lawyer). With hindsight, Blunkett’s instincts were probably no more authoritarian than those of his two immediate predecessors. But when he assumed office in 2001 and was faced almost immediately with 9/11 he grasped the moment as one of political opportunity rather than ethical dilemma. The forced destitution of asylum seekers, the grand folly of identity cards and the Belmarsh internment policy were introduced with gusto on his watch.

Unsurprisingly, my colleagues and I had a lot of contact with Blunkett. In my dealings with him, I found him courteous, but at times when we had been vocal in our criticisms of his
approach, his faintly menacing special adviser would send portentous emails late in the evening. We were ridiculed as the ‘liberati’ with ‘airy fairy’ concerns about rights and freedoms. This latter phrase was later parroted by Conservative Prime Minister David Cameron in the context of the mass surveillance by our security agencies. Moreover, the judiciary, even particular judges, were castigated for sometimes ruling against the Home Office in legal challenges. Once he stopped drinking the Home Office Kool–Aid, Blunkett came to show some sensitivity and even regret about summary extradition and aspects of data retention in particular. (All irony notwithstanding, my liberal heart bled more than a little at the personal intrusions he suffered at the time.) However, it was his thoughtful and subtler successor, Charles Clarke, who inherited the mother of all hangovers and an in-tray full of splitting headaches. On his first day in office, 16 December 2004, the Law Lords – the judges of the highest court in the land – finally ruled on the post-9/11 policy of interning foreign terror suspects without charge or trial indefinitely in Belmarsh Prison. Eight out of nine judges found these procedures incompatible with the Human Rights Convention. By this time seven of the claimants had been detained without so much as a police interview for three years each. Those suspected of recruiting them – British nationals all – remained uncharged under the criminal law of the land and lived their lives at liberty. And here, in this disproportionate and irrational discrimination, lay the rub.

The European Convention on Human Rights is the child neither of nineteenth-century legal purity nor of 1960s hippy liberalism, so often derided by Tony Blair and too many of his colleagues when in office. Rather, it was drafted in the aftermath of the Second World War, when enemy aliens in the form of German and Japanese citizens had been interned by Allied powers on both sides of the Atlantic. Its rulings carry the echoes of a world still recovering from conflict. Although the
Convention absolutely and unequivocally condemns torture and slavery, most rights and freedoms stipulated in it are qualified. Even the rights to liberty and to a fair trial may be curtailed or ‘derogated’ from in a ‘time of war or other public emergency threatening the life of the nation’. This is a tradition that in England can be traced back to Magna Carta. This curtailment can only happen, though, ‘in so far as is strictly necessary’.

Two months after 9/11, Blair and Blunkett authorized such a ‘derogation’ from the Convention. This was a gesture that many saw as an act of symbolic solidarity with the cages of President Bush’s Guantanamo. In both cases non-nationals only were interned. But while the US government was able to circumvent its own Bill of Rights by maintaining that it applied only to American citizens, and that Guantanamo, as an offshore jurisdiction outside US territory, was beyond the bill’s reach, this was never going to work in the UK where the ECHR is built upon universal rights contingent on humanity not nationality. It was drawn up in the immediate and shocking knowledge of how the European Jews had been deprived of the ‘privilege’ of nationality in the 1930s and 40s and in the belief that whatever the whims of the powerful – and even of political majorities – humanity should never again be so easily cast aside.

You will remember the legal fiction that this was ‘immigration detention’ in a ‘three-walled prison’. You are free to leave at any time to take your chances with the torturers back home. This was created to avoid the charge of illogical and unlawful discrimination against foreign national terror suspects. In order to get the derogation approved, Blair and Blunkett went out of their way to embroider the 2001 legislation with apparent safeguards against oppression. A Home Office appointee scrutinized the working of this ‘exceptional measure’. A long-standing Liberal Democrat peer, he called himself the ‘independent’, rather than the ‘Statutory’ or ‘Home Office’ reviewer. There were
lopsided appeals to the secret SIAC tribunal as a saccharine substitute for habeas corpus and judicial review in open court.

From the time of its introduction in 2001, Liberty had campaigned relentlessly against this policy in Parliament, the media, the courts and civil society. Others would come only much later to the victory party when it was easy, fashionable and more popular to do so. When the bill was first published, we commissioned an opinion from David Pannick QC, highly respected in government circles. Pannick advised Parliament that, however horrific the 9/11 attacks had been, they did not constitute a ‘threat to the life of (our) nation’ – that is, the UK. In his view the proposed exception to the Human Rights Convention was unwarranted. What was more, the illogical and discriminatory nature of the proposed internment provisions could not possibly meet the second test of ‘strict necessity’ required for a lawful derogation. I will never forget telephoning David from Liberty’s ramshackle former offices in South London, just as I had done from the mighty Home Office on so many occasions before. This time there was no brief fee or carefully prepared bundle of manicured instructions on offer, but his response was as professional and enthusiastic as ever. ‘Come and see me with whatever papers you have this afternoon,’ he said. ‘Don’t worry, Shami. Always ask a busy person.’

As the legislation proceeded through Parliament, we convened a small group of the private practice lawyers most likely to represent those affected. The most prominent of these was the legendary terror trial lawyer Gareth Peirce, of whom I was in considerable awe. Peirce was renowned for her work representing alleged IRA defendants such as the Birmingham Six and Guildford Four, righting a number of actual and potential miscarriages of justice in the process.

Three things struck me from my early encounters with this iconic campaigning solicitor and bulwark against complacency in our legal establishment. Firstly, her courage and experience are exceeded only by her personal and intellectual humility: she
was more than willing to collaborate with relative litigation novices and unknowns like me. Secondly, her radical beliefs sat perfectly comfortably alongside a street-smart wisdom and loyalty to her clients’ best interests. Unlike many others at the time, she never seemed suspicious of this youngish former Home Officer lawyer, but was genuinely intrigued by the different insights and experience that I might bring to the struggle. Finally – and perhaps most significantly – Gareth was genuinely aghast at the draft provisions of what would become Part 4 of the Anti-Terrorism, Crime and Security Act 2001, as the Belmarsh legislation was technically known. How could such an experienced lawyer, who had seen much prejudice and injustice in the context of anti-terror law, be shocked? The answer was relatively simple. Even the anti-terror legislation of the 1970s and 80s, with its limitations on solicitor access, reverse burdens of proof and broad drafting, bore some distorted semblance to the ordinary criminal law, with some kind of trial to follow in due course at the Old Bailey. Not so under ‘administrative law’ and the fiction of ‘immigration detention’ in particular. This genuine consternation from a great legal veteran where there could so easily have been cynicism was as inspiring as it was humbling to the former Home Office hack that I had been.

So Gareth represented the ‘detainees’, another War on Terror euphemism, this time for people who had been imprisoned without trial. She represented them at all three levels of appeal and Liberty ‘intervened’ as a third party in the public interest. Liberty’s role was, and remains, particularly significant in this regard. Individual claimants are not always best placed to make broader public-interest or policy arguments, particularly with decimated legal aid provision and in the face of arrogant and sweeping government arguments about the greater good in general and public safety in particular. It was a role that would become increasingly important in human rights litigation as government sought to trump the rights of ‘the few’ – foreign
nationals, suspects or particular communities – with the supposed rights ‘of the many’, whether in the context of privacy, liberty or, subsequently, even torture.

Despite Liberty’s efforts, the Court of Appeal accepted the Blair government’s ‘Bill of Goods’ about emergency, necessity and immigrants being ‘different’ from the ‘law-abiding majority’. The House of Lords, though, did not. Instead, it protected our modern Bill of Rights in thought, word and deed. Of the nine Law Lords who sat on the appeal, one found with the government. Of the remaining eight, one found against the government even on the delicate issue of whether an ‘emergency or threat to the life of the nation’ existed at all on account of 9/11. Lord Hoffmann noted that:

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

… The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
*

This may have been Lord Hoffmann’s most lyrical hour. Naturally, my Liberty colleagues and I agreed with him, to the extent of taking out a full-page newspaper advert the next day quoting his final eloquent flourish about the ‘real threat to the life of the nation’ under the banner: ‘Guantanamo Bay – closer than you think’. By doing this, we were urging the government to reflect and amend the shameful, unjust and counterproductive law. On reflection, what the majority of Law Lords did was more astute. They effectively deferred to the government on the issue of the nature of any emergency that may or may not have existed. Judges, after all, are not – and in my view should not be – privy to any secret intelligence assessments that are not made available for scrutiny by the press, public, prisoners and suspects.

Instead the majority relied on the cold forensic legal logic that senior judges do so much better than politicians and campaigners. Whatever the intelligence assessment or debate about whether a particular threat can be called an emergency, the discrimination argument was inescapable and effortlessly non-political in its reasoning.

The Attorney General submitted that the position of the appellants should be compared with that of non-UK nationals who represented a threat to the security of the UK but who could be removed to their own or to safe third countries. The relevant difference between them and the appellants was that the appellants could not be removed. A difference of treatment between the two groups was accordingly justified and it was reasonable and necessary to detain the appellants. By contrast, the appellants’ chosen comparators were suspected international terrorists who were UK nationals. The appellants pointed out that they shared with this group the important characteristics a) of being suspected international terrorists and b) of being irremovable from the United Kingdom. Since these were the relevant characteristics for the purposes of the comparison, it was unlawfully
discriminatory to detain non-UK nationals while leaving UK nationals at large.

Were suspected internationals who were UK nationals, the appellants’ chosen comparators, in a relevantly analogous situation to the appellants? … In my opinion, the question demands an affirmative answer. Suspected international terrorists who are UK nationals are in a situation analogous with the appellants because, in the present context, they share the most relevant characteristics of the appellants … The comparison contended for by the Attorney General might be reasonable and justified in an immigration context, but cannot in my opinion be so in a security context, since the threat presented by international terrorists did not depend on their nationality or immigration status.
*

A terrorist atrocity in London less than a year later would prove them absolutely right. When nations are not at war in the conventional sense and the battle is either one of ideology or pure victimhood, British nationals are just as capable of abomination as their foreign counterparts. A policy of interning foreign nationals only is irrational and discriminatory; it cannot therefore possibly be ‘strictly necessary’.

I would add that discrimination, as much or more than any other profound injustice, results in a festering resentment that recruits more terrorists than it can ever prevent. In any event, the majority of Law Lords found the Belmarsh policy unlawful for its irrational and disproportionate discrimination, and my friend Gareth Peirce printed the Hoffmann quote that so riled the government on a T-shirt for my toddler: ‘Dignity, equality and fairness and the greatest of these is equality.’