Weighing up the evidence
10 Jun 2009

old-bailey2The House of Lords ruling on secret evidence raises the need for the admission of intercept intelligence in terror trials, says Roger Smith

Nine-nil. A judicial decision of the House of Lords does not get more decisive than that. It was by this margin that their Lordships fatally holed the current arrangements for control orders. Alan Johnson, the new boy at the Home Office, was given somewhat of a baptism of fire in his first week of office. He declared the judgment “disappointing”; indicating that he would carry on as now for the moment and consider the judgment.

The fundamental point was, as Lord Hope put it, “that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him”. He was rather forceful: “The slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against them”.

Control orders affect very few people but have a major effect on their lives. Currently, there are 14: there have only ever been 38. However, they allow the Home Secretary to make one or more of a set of 22 restrictions on your liberty. These include electronic tagging, daily reporting to the police, restrictions on visits, banning of Internet access and a curfew. Previous court hearings suggest that they allow house arrest for up to 16 hours a day.

Control orders are a response to a tension between recognition of the importance of liberty and a desire for, as their name suggests, control. They were a response to a previous judgment of the House of Lords. This declared that 2001 legislation was incompatible with the European Convention on Human Rights when it sought to authorise imprisonment of foreign nationals who could not be immediately deported to their countries of origin because they might be tortured. However, control orders are now applied both to foreign and UK nationals.

This court judgment does not attack control orders directly but it will require the security services to give details of allegations. They argue that this is difficult without giving away their sources of information. This objection may prove overblown. However, a different way of addressing the consequent problem would be to remove the current block on allowing courts to hear evidence obtained from phone taps. Most other countries allow this: we prohibit it. If our courts could hear intercept evidence then there would be more chance that these cases would properly be dealt with by the mainline criminal justice system. Hopefully, this is the direction in which Alan Johnson will take policy.

Roger Smith is director of JUSTICE

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