Indefinite detention: not very British

8 February 2012 by

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog.  Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.

The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.

by Colin Yeo

The decision that he must now be released on bail after over six and a half years detention without trial and with no real prospect of his future removal from the United Kingdom is very much based on our own home-grown laws and traditions. It is certainly not due to the Human Rights Act.

After all, indefinite detention is not something one would normally associate with the British. The attorney general, Dominic Grieve, said on Tuesday morning in response to the Abu Qatada bail decision that the UK does not have “indefinite internment without trial”. Unfortunately, he is wrong. The word ‘indefinite’ means without fixed limit, not definite or until further notice. An increasing number of foreign nationals are in fact detained indefinitely.

For centuries we have proudly defined ourselves as different to the Other of the absolute monarchies of the ancien regime and the communist and fascist ideologies that infected the twentieth century in so many parts of the world. Orwell’s 1984 and the works of Kafka make us glad to be British, safe from such horrors.

Smug this may be, but also largely justified.

The great English charter of liberty, Magna Carta, sets out the right to freedom from arbitrary detention:

‘No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.’

Liberty was also a theme to the seminal Bill of Rights of 1689, where Parliament complained of excessive bail in criminal cases being used ‘to elude the Benefitt of the Lawes made for the Liberty of the Subjects’, illegal prosecutions and illegal and cruel punishments being inflicted.

We pride ourselves on being the birthplace of habeas corpus, an ancient legal protection against detention without trial. The words mean literally ‘you may have the body’ and an application requires the custodian of the named person to produce that person in court and account for why he or she is detained.

These freedoms were hard-won. Maintaining them is also hard, though, and many will not realise that it is a constant unseen battle against encroachment to do so. The rule of law is by its nature universal or it is nothing, and unpopular minorities are always the first to feel the hand on their shoulder: Jews, gays, the Irish, travellers and Gypsies and now immigrants.

It may surprise some that the writ of habeas corpus is alive and kicking. Once used as protection by noblemen against a tyrannical monarchy, today it is used on behalf of foreign nationals to require the Crown to account for imprisonment without end. This is the situation in which a growing number of foreign nationals find themselves, some of them desperate to leave but prevented from doing so by the international bureaucracy of borders.

Back in 1983, before we had all become so habituated to detention without end, Mr Justice Woolf (as he was then) held in Hardial Singh, one of the first modern uses of the writ of habeas corpus, that a period of five months of immigration detention was unjustified. Today, five months is sometimes considered too short a period to bother to challenge. The small charity Bail for Immigration Detainees reports that the number of long term immigration detainees is constantly growing. A recent inspection report showed that over 25% of foreign national prisoners have now been detained under immigration powers for over a year, with the average length of detention increasing to over six months. The latest Home Office statistics showed that 36 individuals had been detained under immigration powers for two years or longer.

It is impossible to imagine what it must be like stuck to be in a detention centre with no idea of when, if ever, you will be allowed out. Self harm and mental illness are rife, unsurprisingly.

Immigration law is something of a niche area. We immigration lawyers keep ourselves to ourselves and try to avoid adverse publicity for our clients. Sometimes, though, this low key approach may do the rest of the legal system a disservice. Infringements on liberty are in modern times usually tried first on foreigners, from secret evidence in secret trials to ID cards to indefinite detention. It is wise to heed Niemoller’s famous warning:

‘Then they came for me and there was no one left to speak out for me.’

None of the British legal tradition of liberty derives from the Human Rights Act, nor from the European Convention on Human Rights. This is, hopefully, a reminder that the label ‘human rights’ is really just a rebranding of the freedoms and liberties of which we are justifiably proud, but which are in constant danger of compromise and surrender.

This guest post is by Colin Yeo of Renaissance Chambers, editor of the Free Movement blog

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  1. Kushal says:

    Any body remembers Bobby Sands ???!!!

    And oh anybody ever pondered over Entick v Carrington [1765] EWHC KB J98 at all !

    I think all the hue and cry about human rights to be scrapped might end up terribly backfired upon those values with which Britain is Britain, and nothing but best !

    Or are we now having a punchline ‘Das beste oder nischt’ in a way the Nazis might have said about themselves !

    Fact is destruction of civil liberties by raising frugal issues of charge is destruction of democracy in reality Mr. Griffin shall be first one to head for being perpetually detained for inciting violence of the sort we want to deport people as if that will solve the problem…..what will be next gas their legitimate and illegitimate children, or their 80 year old mothers and fathers……parliament sovereignty is immensely powerful…..go ahead !

    Then watch the funfair ! it will be the worst move of all…………….there will be generations regretting Mrs. May’s Sandal fetish by those who will decide today to lick it, grime shit and all. Good luck to nation building !

  2. Exenon says:

    Human rights in the U.K.??? applies to all except the Irish. Remember how many thousands were imprisoned without trial, tortured and stabbed to death. Shot down unarmed women and children in the streets of what was ostensibly the United Kingdom.
    Hypocritical and typical of the “land of hope and glory”

  3. Dadzarmy says:

    Qatada entered this country illegally, then threatened it, then demanded to stay in the country claiming the rights of the country he had just threatened.The ECHR simply wanted to make a cause out of Qatada by shifting the articles by which they were basing the judgement for him to stay to wrong foot the UK Government. The ECHR in this political gesture have just sown the seends for their removal from the UK legal system.

  4. James Lawson says:

    It was interesting to hear Theresa May labelling the man a ‘Terrorist’ who has been convicted of no offence under the Terrorism Act 2000. Compare this to the very different treatment the government have accorded to people like Simon Mann and Mark Thatcher. Qatada may be a loud-mouthed cleric but unlike Mann, Qatada did not attempt to take over an entire country. The activities of Mann fall squarely within the definition of ‘Terrorism’ as defined within section 1 of the 2000 Act, while the effect of subsections (1) and (2) of the Act is to automatically confer upon Mann, as well as Thatcher who pleaded guilty before a South African Court of funding Mann, the status of ‘terrorist’. See the judgement of Collins J in CC v Commissioner of Police for the Metropolis heard in December as to the effect of section 40. Simon Mann has made a handsome profit from the book he has written describing his part part in an attempted coup in the Central African Republic which reads like a ‘Boys Own’ adventure while he portrays himself as a latter day ‘Andy McNab’. So the question becomes, why has the government allowed someone like Mann, a ‘terrorist’ under the sections 1 and 40 of the Terrorism Act 2000 to profit from the proceeds of Terrorism derived from a book that ‘glorifies it? Is Mann or Thatcher for that matter subject to a control order? Why is Qatada a dangerous terrorist while Mann and Thatcher are not? What is the difference between what Qatada preaches and what people like Mann and Thatcher practice? All that separates Mann & Co from Qatada is a background of Eaton, Sandhurst and the Guards and it certainly helps if you are the son of a former Prime Minister!

    The difficulty with the labelling process and a preference for a model which sets up a separate regime of terrorism from that of the ordinary criminal law is that it tends to produce absurd results in practice.

    1. OnlyMe says:

      Your first sentence is a poor point. If one has not been convicted under the TA 2000 it does not mean they are not a terrorist. For solid evidence that he IS a terrorist see the SIAC judgment. The evidence that he is a terrorist is overwhelming.

      1. James Lawson says:

        Thank you for your comment. Most appreciated.

        I have read the judgement of Collins J of 8 March 2004. Collins J refers to Qatada as a ‘dangerous man.’ The Kingdom is full of dangerous men but there must be something that separates a dangerous man from a terrorist. If all loud-mouthed firebrand clerics eulogising acts of violence are to be classified as dangerous then perhaps Ian Paisley might be invited to deliver his sermons from a Belfast prison.

        In his judgment, Collins J does not actually state neither does he rule that Qatada is a terrorist. He will be a terrorist if, under section 40(1) of the 2000 Act he has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63 of the Act. Of course, Qatada has not been convicted of any of these offences. If not, can we rely on the fall-back position provided under section 40(2)? Qatada might fall into it if he has been concerned in the commission, preparation or instigation of of acts of terrorism within the meaning given to it by section 1 of the Act. Does Quatada fall within the definitional requirements of section 1? Unless I have missed something, nothing I can see in SIACs judgement places him within any of section 1’s subsections. I would therefore conclude that he is a ‘suspected terrorist’. As a suspected terrorist and a dangerous man, I would have expected the Home Secretary to have used her powers under section 2(1) for a non-derogating control order while that provision was still legally effective. She has not done so. I suspect hat she has not done so because the permission of the court is required under section 3. Instead, Qatada has been incarcerated in prison under the Asylum laws, with his continuing detention growing more and more untenable with each failure to extradite him to Jordan.

    2. Dadzarmy says:

      I questioned my first terrorist in a military capacity in 1993, I have seen how they live, what the do, how they interact and what damage they can cause even when they are not “active” in the military sense. As any terrorist organisation leader will tell you, terrorism is 5% active terrorism and the rest is propaganda. Abu Qatada is currently operating to near full capacity as a terrorist in the UK thanks to the ECHR and New Labout faffing over the issue. So rather than arguing over what type of terrorist you should start worrying about about the next bomb that goes of in central London, and the abrupt end of their Human Rights.

      1. James Lawson says:

        We have the same background Dazarmey. I did the full ’22’ and we both served at the same time. Propaganda is not the exclusive preserve of the terrorist. It is a tool that was used by the government though a compliant and supine press to manufacture a sufficient degree of support to take this country to war. The terrorist wants the destabilisation of our democracy by goading the government into achieving it for him by the increasing use of anti-terror legislation as an acceptable substitute for the criminal law which left unchecked, will, by the tranquillising drug of ‘gradualism’, transform this country into a place you will not want to live in. The government has a problem with the rule of law. They detest judgments they find inconvenient and will use any excuse to whip up public support against the legal institutions that exist to keep it in check. I have no time for Qatada or his warped ideology but that does not automatically entitle a self-serving politician to blind trust by default. Qatada is nothing more than the current Orwellian ‘Goldstein’ at whom the public are expected to direct their ‘two minute hate’. I do not exist to be manipulated and used by a ‘here today and gone tomorrow politician’ as an instrument of support in her juvenile war against the ECtHR in general and the Human Rights Act in particular.

      2. Dadzarmy says:

        james excellent post,

        I am ashamed that our country has become the Orwellian nightmare which E A Blair predicted so long ago. Instead of Big Society in 2012 we have Big Brother following the erosion of our freedoms during the Nu Labour years, set to continue under the stewardship of the coalition.

        I don’t however believe that the UK Government are solely to blame, we operate secret courts in this country which we should be ashamed of, the inner party (Ken Clarke) seek to have further to empower the state to undermine the rights of our citizens with ‘Closed Material Procedures.

        The UK has become insular, the state oppressive and the judiciary distant and at times seemingly unable to balance theory with reality, particularly with Human Rights.On balance I see the Qatada release as a failure of the ECHR and the UK Government to safe guard our freedoms which we wore the uniform for, there will be a lot more riots to come, particularly since quantum Dave, represents all and nobody at the same time.


  5. Julian says:

    Indefinite detention sits uncomfortably with British legal values. Government Ministers and their shadow counter parts argue that Abu Qatada is a dangerous man, that he is a threat to national security. That may well be the case. He has seldom espoused any admiration for this country, or any other for that matter and has called for Jews and Americans to be bombed, he is undeniably someone one would heistate to invite to dinner.

    Sytripping away the rehtoric and emotive language, the simple fact remains is that the UK authorities have failed to prosecute him and as such stands innocent of any crime in the UK. Even though his views may be repellant and deeply disturbing, British society is founded on fundamental freedoms and legal protection for the individual against the depredations of the state.

    Borrowing from the wisdom of Benjamin Franklin:

    ‘They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety’

    And this is essentially the problem here. As someone who advocates the use of terror to further his political goals, he succeeds in undermining the fundamental fabric of British values when the government detains his without trial.

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