On 6 July 2010, in the first innocent days of the Coalition Government, former appeal judge Sir Peter Gibson was asked by the Prime Minister to enquire into “whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11.” Almost 3 1/2 years later, the Detainee Inquiry has produced a report (it was originally presented to the Government on 27 June 2012 but there have been heavy negotiations about sensitive material in the public version).
The report makes clear at the outset that it “does not, and cannot, make findings as to what happened”. Why so? Because the Inquiry was scrapped before it heard evidence from any witnesses, so it couldn’t test any conclusions reached purely on the basis of documentary evidence. The reason given at the time by Sir Peter was that “it is not practical for the Inquiry to continue for an indefinite period to wait for the conclusion of the police investigations“. The “investigations” are those into claims of collusion by the intelligence services with torture in Libya (see this Q&A for more).
El-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment
In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity.
There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively.
The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).
Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.
APPGER and security bodies
First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.
1 Crown Office Row’s Philippa Whipple QC was leading counsel to the Gibson Inquiry. She is not the writer of this post
The Justice Secretary has told Parliament that the Gibson Inquiry tasked with considering whether Britain was “implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” has been scrapped.
Ken Clarke announced that the police investigations into rendition, which were always to come before the formal start of the inquiry’s hearings, would take so long that the current inquiry could not continue. He said the Government remained committed to a judge-led inquiry, but presumably the current inquiry team could not be kept twiddling their collective thumbs for years longer.
The Crown Prosecution Service announced last week that it would not be bringing charges in relation to some of the historic allegations – particularly in relation to Binyam Mohammed and a 2002 incident at Bagram Air Base in Afghanistan. It would, however, begin to investigate more recent allegations in relation to Libya and “a number of further specific allegations of ill-treatment“. Continue reading →
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.