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Guardian | This covert experiment in injustice

28 March 2012

This covert experiment in injustice

Blunkett's proposals for secret trials will shame the country

Gareth Peirce
Wednesday February 4, 2004
The Guardian

In the course of 12 months, 13 years ago, more than 20 innocent Irish men and women were branded "terrorists" and convicted by English courts. That the evidence was false was known only to the accused and their accusers. For the accusers, even that clarity undoubtedly became blurred, since in their minds the means - twisting and coercing evidence - justified the ends: combating terrorism. Brutality, falsification, exaggeration of scientific evidence, concealment of prosecution evidence and of intelligence pointing in a different direction was the order of the day.

So is it possible that the Home Office is suffering from collective amnesia? What lessons should any home secretary have learnt from these terrible cases? David Blunkett, adopting the same dangerous justification of the means justifying the end, this week proposes trials based on evidence that will never see the light of day, the abolition of juries, substitution by judges, and a reversal of the burden of proof so that suspicion is enough.

The eventual revelation that so many innocent people had been buried alive in English jails was a shaming exercise for the country. Lessons, it was said then, must be learnt. And anyway, those were crude times, when investigators might have resorted to brutality.

Also in question was the ability of the judiciary to correct those injustices. But the judiciary - which Blunkett now proposes to substitute for juries where the issue is terrorism - for decades showed itself as seriously wanting. In the cases of the more than 20 innocent men and women, at least 30 senior judges had come to wrong and unjust conclusions, even where - as happened in the case of the Birmingham and Guildford appeals - they saw evidence that would have driven any jury to acquit. In the Birmingham appeal, for example, a master plan for fabrication of police interviews in the handwriting of the senior officer in charge of interrogation caused the court of appeal only to comment that they did not think that the officer had the brains to orchestrate a conspiracy.

For the Guildford defendants, extraordinary evidence was put before their appeal court. Members of the IRA who had, in fact, carried out the bombings for which the four young defendants had been convicted were prepared to provide compelling detail of their role. Instead of quashing the convictions, the court of appeal returned the four innocent defendants to prison for another 13 years.

There were only two honourable exceptions, seen as critical in guarding against future injustice. The court of appeal, considering the case of Judith Ward, by then imprisoned for more than 18 years, thundered that it would not permit "trial by ambush" in this country. What the prosecution knew, the defence should know.

Equally authoritatively came the voice of Lord Devlin, who saw with a clear eye that juries - constitutionally the arbiters of fact - could not find a substitute in the judiciary. When judges attempted, as happened in appeal after appeal, to consider fresh evidence as if they were a jury, they were committing a constitutional sin in addition to the fact that they then went on to demonstrate grotesque incomprehension of the evidence on which they were commenting.

Those voicing concerns about these new proposals should be aware that they are the second part of an experiment that has been ongoing for the past two years, largely without protest. A number of men, all foreign nationals, have been locked up indefinitely without trial on the basis of the suspicion only of the home secretary that they have links with terrorism.

The suggestion that I and other lawyers are representing them is in itself a travesty; neither they nor we know the evidence against them. We know only that it is claimed to be in large part based upon "intelligence", and this is why - it is argued - the men cannot be prosecuted in a trial with mandatory safeguards before the only tribunal of fact allowed to consider criminal offences in this country: a jury.

What is "intelligence" and why does it ask to be heard in secret? In particular, what is likely to be the source of intelligence that relates to refugees from regimes known to practice torture as their interrogative method of choice? Defence lawyers who represent members of Muslim refugee communities in this country know, on the basis of almost daily reports, that the security services have been pressing for information through methods likely to produce unreliable testimony - offering regularised immigration status as the carrot, and return to the countries from which those individuals have fled as the stick.

Exposed to scrutiny, the falsity of informant evidence can be exploded. But secure in the knowledge that neither the identity nor the content of the information will ever be known to the accused or to the public, not only the informant but the accuser remains safe in the security of secrecy. As far as the regimes are concerned from which those refugees have fled, we know with sickening certainty, that there is now two-way traffic between our intelligence services and theirs to exchange "intelligence".

While our government publicly sheds crocodile tears for the British detainees in Guantanamo Bay, it has emerged only recently that British intelligence agents have been there, and in Afghanistan's Bagram airbase, interrogating those detainees. This country has been wholly complicit in obtaining the product of sustained interrogation in the absence of any safeguards of due process. Then, very deliberately, it has been putting it to use in our own secret hearings. So far these have been confined to foreign nationals, and have stirred scarcely a breath of protest. Now the home secretary says he wishes to extend secret hearings to all those accused of the mere suspicion of terrorism, even though short of evidence that could be proved beyond reasonable doubt in a public trial before a jury.

We should not be deceived. What is happening in Guantanamo; what is happening in the secret hearings with foreign nationals already taking place in this country; and what is proposed for the future, is in the nature of an ongoing experiment. This is the pooling of access to internationally condemned methods of investigation. Since their utilisation will be covert, the overt experiment is into how willing the public of this country and those concerned in the passage of legislation are to allow basic safeguards to be jettisoned without protest. The lack of protest over the imprisonment of innocent men and women in 1974 is a badge of shame for this country. The confidence with which this home secretary can express so unchecked an appetite for further powers that violate every international minimum norm is in itself a further badge of shame that hardly needs legislation to compound it. For this time, unlike those convicted in 1974, the men and women detained or convicted now will never have the possibility of knowing, let alone undoing, the false testimony that has buried them alive.

· Gareth Peirce is a solicitor representing detainees under the Anti-Terrorism Crime and Security Act 2001

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