At the beginning of November I posted a story here at FREErad!cals about the curious legal limbo of remand prisoner XC. Having not been prosecuted for terrorism offences for which he was previously suspected and arrested duringOperation Pathway, XC remained in custody whilst the Home Office continued deportation proceedings against him. The case against him had hinged on the interpretation of emails which his defence lawyers claimed were innocuous but which the security services suggested were evidence of conspiracy to commit terrorism. Although the Crown Prosecution Service refused to bring a case on this basis, the Home Office pursued it, citing national security concerns.
In my piece I queried this process, wondering how evidence the CPS had rejected as unsound could subsequently be the basis for deportation. I was taken to task by an anonymous commenter¬ – come on people, please have the balls to show yourselves – for being ‘naive’, and for not understanding the difference between intelligence and evidence, duh. Well, neither then must the High Court judges who today ruled in favour of XC and a co-defendant, who had been denied bail pending resolution of the deportation hearings:
Two men suspected of terrorism-related activities won a landmark high court battle today when judges ruled a person could not be denied bail solely on the basis of secret evidence.
Lord Justice Laws, sitting with Mr Justice Owen, said bail applications should be treated the same as control order cases, where terror suspects must be given sufficient material to enable them to answer effectively the case made against them.The ruling, which could have wider implications for the use of secret evidence, was described as a ‘historic victory by the human rights lawyer Gareth Peirce. The home secretary, Alan Johnson, said he was ‘surprised and disappointed’.
The two judges said it was ‘impossible’ to conclude ‘that in bail cases a less stringent procedural standard is required [than in control order cases]’.
This does not mean that XC will not eventually be deported but it does mean that the ‘secret evidence’ on which the case hinges is insufficient grounds for holding someone without legal hearing, even if national security reasons are cited for doing so. The judges refused permission to appeal in the High Court, but the Court of Appeal may yet end up ruling on this issue.
In the meantime, I agree with Shami Chakrabarti, the director of Liberty, who saidthat it had taken 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’ – as it is required to do with other types of case. ‘Terrorism’ is a crime, not an excuse to suspend legal process. It was this failure of process to which I initially objected, and which assertion now seems to have been validated. It’s nice to be right sometimes.