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COVERT UK
EXPERIMENT IN BRITISH FACISM
This covert experiment in
injustice
Blunkett's proposals for secret trials will shame the country
Gareth Peirce
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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