Terror suspects cannot be denied bail on the basis of secret evidence after a landmark High Court ruling yesterday that dealt another blow to the Government’s counter-terrorism regime.
Two men, a Pakistani student and an Algerian who are suspected of terrorist activities, won a legal battle against the use of secret evidence by the Government to deny them bail.
In what human rights lawyers are describing as an historic victory, the judges also rejected government claims that decisions in such cases, such as whether to grant bail, cannot be challenged.
The Government had claimed that rulings by the Special Immigration Appeals Commission (SIAC), which deals with terror suspect cases, were immune from judicial review. The judges ruled that bail applications should be treated the same as control order cases, under which terror suspects must be given an “irreducible minimum” of information about the case against them before being held under that regime.
Lord Justice Laws, sitting with Mr Justice Owen, said it was impossible to conclude “that in bail cases a less stringent procedural standard is required”. To deny suspects that information was to breach their right to a fair trial, the judges ruled.
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Lord Justice Laws said: “The court’s ingrained reluctance to countenance the statutory exclusion of judicial review has its genesis in the fact that judicial review is a principal engine of the rule of law.”
In June the law lords delivered a critical blow to the control orders regime, saying that terror suspects could not be detained without being informed of the evidence against them. They should be given enough information to allow them to mount a defence, they said.
The ruling was a victory for the Pakistani student, who is facing removal from Britain and was refused bail on the basis of secret evidence, and an Algerian citizen, referred to as U, whose bail was revoked.
Shami Chakrabarti, director of Liberty, said: “Yet again it takes a senior judge to point out what most people already know – if the Government is going to lock you up, it needs to tell you why.
“Thanks to this historic judgment, the shadowy secret court system that has mushroomed under the war on terror will now be exposed to the light of day. The hard lesson of recent years is that diluting Britain’s core values and abandoning justice makes us both less safe and free.”
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The Pakistani, referred to as Xc, aged 23, was one of 10 students arrested in April 2009 in northwest England. He was later released by police, but immediately re-arrested and held, pending deportation as a “threat to national security”.
Jonathan Glasson, appearing for the Home Secretary, applied for permission to appeal, saying the case raised an “important point of principle”.
He said the ruling meant that Xc and U, who were both considered to be risks to national security, were now “potentially to be released on bail, notwithstanding the existence of closed evidence indicating that they might abscond”.
The judges refused permission to appeal, but delayed the release of both men to give the SIAC time to ask the Court of Appeal to hear the case.
Commenting on the ruling David Davis MP said: “One of the fundamentals of British justice is that you shouldn’t be punished without knowing all of the evidence behind it, so that you have the opportunity to refute it if it’s untrue.
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“These courts are not perfect, and we know they have got it wrong before; something only discovered by a very lucky accident.
“So the judges are simply ensuring that the Government obeys the law of the land, and does not effectively change it to allow it to lock people up or deport them without proper evidence.
“This also demonstrates the urgency of a change in the law to allow intercept evidence in court. We had to bend the law to use intercept evidence to convict people in the Heathrow plot. It is long past the time we changed the law to ensure that justice is done, innocent people are not harassed, and guilty people are convicted.”