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Amnesty International’s concerns about Part 4 of the Anti-terrorism, Crime and Security Act 2001

Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA) allows for detention of non-deportable foreign nationals certified by the UK Secretary of State as national security risks and “suspected international terrorists” without charge or trial, for an unspecified and potentially unlimited period of time, principally on the basis of secret evidence which the detainees have never heard nor seen, and which they have, therefore, been unable to effectively challenge. Prior to the enactment of this legislation, the UK authorities derogated from Article 5(1) of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

 

Amnesty International considers that the application of Part 4 of the ATCSA amounts to a perversion of justice. The organization believes that the emergency provisions of the ATCSA are inconsistent with international human rights law and standards, including treaty provisions by which the UK is bound.
Amnesty International has repeatedly expressed concern about serious human rights violations that have taken place in the UK as a consequence of the implementation of the ATCSA since its enactment on 14 December 2001. The organization opposes detention under the ACTSA, and has consistently called on the UK government to release anyone detained under it unless they are charged with a recognizably criminal offence and tried by an independent and impartial court in proceedings which meet international standards of fairness.
In November 2004, 11 people continued to be interned in prisons under the ATCSA in the UK. They are held in high-security facilities under severely restricted regimes. Most of the internees have been in detention for nearly three years. They are detained in two high security prisons (HMP Belmarsh and HMO Woodhill) and a high security psychiatric hospital (Broadmoor). A twelfth person, known to the public as “G” for legal reasons, has been “released” from indefinite detention under bail conditions amounting to house arrest.
Amnesty International has closely monitored the operation of the measures relating to administrative detention under Part 4 of the ATCSA since its implementation. As part of this monitoring process, a delegate of the organization has attended a number of the open hearings, relating to the appeals against certification before the Special Immigration Appeals Commission (SIAC) and before the Court of Appeal, as well as the open sessions of the proceedings concerning the challenge against the derogation brought in July 2002 before the SIAC and in October 2004 before the Appellate Committee of the House of Lords. In addition, a delegate of Amnesty International has monitored a number of hearings before the SIAC arising from bail applications and review of bail conditions. Furthermore, Amnesty International intervened, in writing, as Amicus Curiae, in the proceedings before the House of Lords.
Amnesty International believes that, for all intents and purposes, under this shadow criminal justice system people have been effectively “charged” with a criminal offence, and have been “convicted” and “sentenced” to an indefinite term of imprisonment without a trial. In addition, in light of the fact that these powers can only be applied to non-UK nationals, the organization considers that Part 4 of the ATCSA violates the prohibition against discrimination enshrined in international law.
In addition, Amnesty International considers that the UK authorities, both the executive, including the Crown Prosecution Service (i.e. the prosecuting authorities in England and Wales), and the judiciary, are violating the prohibition against the use of statements obtained through torture as evidence in any proceedings, except against a person accused of torture. In July 2003, in the course of an appeal before the SIAC against certification, counsel for the internee concerned cross-examined an MI5 witness known as witness A. During his cross-examination, A made statements to the following effect: that it was possible that evidence extracted under torture could be assessed as reliable by MI5, and that, therefore, it could be relied upon by the Home Secretary in the context of the SIAC proceedings. On 29 October 2003, the SIAC ruled that “evidence” extracted under torture of a third party was not only admissible in judicial proceedings but may also be relied on by the SIAC in reaching judgment. This ruling was appealed. The admissibility of, and reliance on, “evidence” obtained through torture was one of the grounds on which the Court of Appeal of England and Wales, the second highest court, ruled on 11 August 2004. In a most disturbing judgment, with a two-to-one ruling, the Court of Appeal “clarified” that “evidence” obtained by torture of a third party (i.e. not the ATCSA internees) would not be deemed admissible only if it had been directly procured by UK agents or if UK agents had connived in its procurement. Otherwise, “evidence” obtained through torture would be admissible and could be relied upon.
Following this ruling of the Court of Appeal, the scheme established under Part 4 of the ATCSA has been interpreted as allowing the admission of evidence obtained by torture or other ill-treatment where the torture or other ill-treatment was neither committed nor connived in by UK officials. In light of this, Amnesty International considers that Part 4 of the ATCSA violates, inter alia, Article 15 of the Convention against Torture, Article 3 of the ECHR, Article 7 of the ICCPR, as well as being incompatible with UK domestic legislation, for example, the Human Rights Act 1998. A petition by the lawyers for the internees for leave to appeal this ruling of the Court of Appeal remains pending before the House of Lords.
Amnesty International continues to be profoundly concerned that the caveat introduced by the Court of Appeal does nothing to prevent torture at the hands of agents of other states; in fact, it effectively encourages and fosters it. Amnesty International is gravely concerned at the UK executive’s and judiciary’s willingness to rely on “evidence” adduced as a result of torture. The organization considers that reliance on such “evidence” by the authorities, and its admission by the courts, undermine the rule of law and the very prohibition of torture. It in effect gives a green light to torturers.

 

Amnesty International also continues to be concerned about detention conditions amounting to cruel, inhuman or degrading treatment in high security prisons in the UK of those detained under the ATCSA. Such concern has been heightened by the findings of a report -- published on 13 October 2004 -- prepared by 11 Consultant Psychiatrists and one Consultant Clinical Psychologist about the serious damage to the health of eight of the internees who continue to be detained under the ATCSA. The report focuses on the impact that detention under the ATCSA has had on eight detainees and three of their spouses. The report outlines how all the detainees examined have suffered serious damage to their health and explains how such damage is inevitable under a regime which consists of indefinite detention. These conclusions were based on a series of reports originally commissioned for legal purposes from the doctors over the past two and a half years by the internees’ solicitors. Progressive deterioration in the mental health of all those detainees and their families was observed. It describes how “their
detention has had major adverse consequences for their mental health” and “a severe adverse
impact on the mental health of all detainees and the spouses interviewed. All are clinically
depressed and a number are suffering from PTSD [post-traumatic stress disorder]. The
indefinite nature of detention is a major factor in their deterioration.”

The organization is also concerned at the extremely limited chances of the internees ever being granted bail. Under the ATCSA, SIAC is empowered to grant bail to the ATCSA detainees. However, having monitored bail proceedings before the SIAC in the past, Amnesty International is concerned about the content of the right to bail under the ATCSA which is more restrictive than that provided for under international law and domestically. The organization understands that under the ATCSA, bail could only be granted if the detention conditions were such as to fall within the ambit of Article 3 of the ECHR, which enshrines the prohibition of torture or other ill-treatment.
On 26 November 2004, upon its examination of the UK’s fourth periodic report under the Convention against Torture, the (UN) Committee against Torture (CAT) issued its Conclusions and recommendations. Among other things, the CAT expressed concern about the UK’s “resort to potentially indefinite detention under the Anti-terrorism, Crime and Security Act 2001”, and about “the strict regime applied in Belmarsh prison” to people detained under the ATCSA. In addition, the CAT expressed concern that UK domestic legislation had been “interpreted to exclude the use of evidence extracted by torture only where the State party’s officials were complicit.” With respect to this, the CAT recommended that the UK authorities should not “rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture”. The Committee also recommended that the UK authorities should “provide for a means whereby an individual can challenge the legality of any evidence in any proceeding plausibly suspected of having been obtained by torture”.


Article 15 of the Convention against Torture reads as follows: “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
Article 3 of the ECHR reads as follows: “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 7 of the ICCPR reads as follows: “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment….”
Committee against Torture, Thirty-third session, Geneva, 15-26 November 2004, CAT/C/CR/33/3,
Conclusions and recommendations of the Committee against Torture on the United Kingdom of Great
Britain and Northern Ireland, Crown Dependencies and Overseas Territories.

 

 

   
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