[A-List] UK state: fascism

["Michael Keaney" <michael.keaney@xxxxxx>]

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