The Government this week confirmed that plans for secret courts would extend to challenges against detention without charge or trial – known as habeas corpus proceedings.
This development would see 'Closed Material Procedures' available in cases brought under habeas - the ancient legal freedom which safeguards against unlawful imprisonment by the state – with the result that the Government could be able to detain members of the public, while keeping the reason for that detention secret.
The revelation – made with little fanfare during Wednesday evening's House of Lords debate – is at odds with claims by members of the Coalition that, under the Bill, nobody could "be imprisoned on the basis of evidence in closed proceedings." Should a habeas corpus challenge, made in closed proceedings, fail, the result could be that the prisoner concerned would remain in prison, without being given an explanation why.
Under Closed Material Procedures (CMPs), the Government is able to use evidence in court which the other side is not allowed to challenge or even to see. A significant advantage is thereby handed to the Government, while serious damage is done to the principle of open and equal justice. The Justice and Security Bill, currently at committee stage in the House of Lords, aims to extend CMPs across the civil justice system – including, as confirmed by Justice Minister Lord Wallace this week, habeas corpus proceedings.
Lord Wallace was responding to an amendment to the Bill put forward by Lord Thomas of Gresford, which would have prevented the use of CMP in "any action seeking a person's release from detention."
In opposing the amendment, Lord Wallace confirmed that CMP will extend to habeas corpus proceedings, arguing that, "This amendment would take that justice away from claimants [...] where, as my noble friend explained, the case is about a person's release from detention. [In] cases about a person's release from detention in the UK [...] it is important that all of the material is before the court, if possible, rather than being excluded by PII [Public Interest Immunity]."
Commenting, Reprieve's Executive Director, Clare Algar said:
"This is a genuinely chilling development. For centuries, habeas corpus has been the ultimate safeguard against wrongful imprisonment by the state. Should these proceedings be pushed into secret courts, the possibility emerges that citizens could be detained without the Government having to provide an explanation to them of the reasons for their detention. This removes a key safeguard against a British Guantanamo."
Notes to editors
1. For further information, please contact Donald Campbell on +44 (0) 207 427 1082 / firstname.lastname@example.org
2. The relevant parts of Wednesday 11th July's House of Lords committee stage debate on the Justice and Security Bill can be found in that day's Hansard, specifically columns 1240 and 1242.
3. The Coalition has claimed that the Justice and Security Bill could not result in people being imprisoned on the basis of secret evidence, e.g.: Alan Beith, Hansard, 10 May 2012: " It is important to remember these proposals are not about criminal cases in which somebody might be imprisoned on the basis of evidence in closed proceedings, but about civil cases."
4. Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person's right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.
Reprieve's current casework involves representing 15 prisoners in the US prison at Guantánamo Bay, assisting over 70 prisoners facing the death penalty around the world, and conducting ongoing investigations into the rendition and the secret detention of 'ghost prisoners' in the so-called 'war on terror.'
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