Mr Justice Mitting versus Jacqui Smith in SIAC

It's not everyday that you hear that the Home Secretary accused of 'conduct comprehensively unlawful' and has demonstrated 'an abuse of power', but any visitor to the Special Immigration Appeals Commission (SIAC) last Friday would have heard just that. Along with this, an application will be sought against the Home Secretary for breach against the Commission. Powerful words were being said by defence barristers in SIAC, accusing Jacquie Smith in essence of having broken the law. On Thursday night the Home Secretary ordered the detention of five men who, through the day in SIAC, had fought and subsequently won their right to remain under bail conditions in their homes until a further hearing date. Through this act she had demonstrated a blatant disregard of the SIAC judge’s decision.

It was a dramatic 24 hours in SIAC, Britain’s most secret of courts. From the moment the hearing for five men, all under bail conditions facing deportation orders to Algeria and Jordan began, proceedings were wholly unusual, in this already 'Kafkaesque' commission, as described by Dinah Rose QC, barrister to the appellants.

The men, known publicly only as, Y, U, Z, BB and VV had their cases heard in SIAC last week when an application to revoke bail had been made by the Home Secretary a week ago following the announcement by the House of Lords of their decision that three of the men, U, BB and Mr Othman (Abu Qatada) could be deported back to their countries of origin on the grounds of safety on return. The argument then followed that this also would be relevant to the other men, also affected by deportation orders. Although these men are not in anyway connected to Abu Qatada, they are being treated in the same way. All of the men involved have been accused of being a threat to national security based on secret evidence which has never been heard by either the appellants themselves or their lawyers. A return to their countries of origin will result in detention and a high risk of torture.

Safety on return, especially with Jordan, who has signed a memorandum of understanding with the UK, refers to the right of a fair trail in an open court (which is more than they are getting here) and a promise to not torture. Believe that at your own peril. Algeria has not signed any such documentation and makes no such promises other than a right to trial.

The application to revoke bail had been made by the Secretary of State on the grounds that there is a heightened risk of absconding on all of the five men. Thus they need to be detained, indefinitely until the cases go through the relevant courts, be it the High Court, Court of Appeal or ultimately the European Court. This could take years and if the Home Secretary is successful in her bid, the men will be back where they started in this never ending saga of hijacked liberties.

I was present visiting Y, for whom I am Home Office cleared, on the day of the House of Lords announcement. In his isolated location, where he has been housed, Y has been extra vigilant in doing his best to demonstrate that absconding is not at all present in his mind. This involves not allowing visitors to even park their cars outside his house for fear of giving the impression that he might be leaving in that car. House lights are kept on for most of the night. He will not even step over the doorway to put rubbish into the bins unless it is within his allocated times of being allowed outside. Under his bail conditions that is a total of fours a day. Forget about calling for a taxi to the train station-he will not allow it for fear of giving the impression that the taxi is for him. This is not a man who is planning on going anywhere. Y is a single man, living alone. Now let’s turn to those who have wives and children. It must be remembered that Z, BB and VV have all previously been detained indefinitely without any charges or trial, for periods lasting between 3 to 4 years. They are now living under strict bail conditions which they have worked hard to adhere to. The stress and the anxiety associated with this ongoing issue has had a detrimental affect on the mental health of all involved. Depression, suicidal ideation and elements of self harm can be found in their legal and medical files. The men are fighting to keep the right to remain with their wives and children - all of which are living on a knife edge. The wife of BB is six months pregnant and has extensive medical reports regarding her poor psychiatric state. Z's wife has become a virtual recluse, not venturing outside the home, not even to the local shop. In the two days prior to the hearing in SIAC, which is when the men found out about Jacqui Smith’s desire to lock them up again, Z was trying prepare his wife for a further period alone by taking her out to the local shops so at least she knows where to get a pint of milk from. Does this really sound like a man wanting to run off and leave his family to fend for themselves? The enormous strain on the men, fighting to keep the scraps on the table representing their freedom and also care for their families, cannot be underestimated. This does not fit in with Smith's accusation of the men wanting to abscond to me. They want the time with their families and the thought of being away from them and unable to care for them is filling them all with great anxiety. But the repeated grounds of absconding, on which Jacquie Smith has made her application for bail revocation, keep being stated. It makes me wonder just how faraway from the real picture she actually is.

After Mr Justice Mitting deliberated on the facts presented to him on Thursday in SIAC, he announced that he would not be revoking bail until an allocated adjournment date. The adjournment had been decided on because the Home Secretary had not properly prepared her case and her team had been trying to push through detention without following correct SIAC protocol. Laughable as it is her commission and she, of all people, knows the rules, or at least is supposed to. U and VV were able to hear the news for themselves as they were sitting in the court room. Smiles broke out all around, especially from VV and U. Each had with them a bag ready should they be taken back to prison, had Mitting accepted the Home Secretary’s argument. It was joked that they would now have to drag their luggage back home with them. At 4.30 pm all other appellants were also informed that they would not be detained whilst awaiting the adjournment date of the 11 March. Relief and reassurance rang round that common sense and adherence to decent law was at last prevailing. Safe in the knowledge that U and VV were going home, and after lengthy goodbyes, friends and solicitors left the men in SIAC awaiting their transport home with their immigration escorts. What happened next was unprecedented. The drivers at some point along with the immigration escorts must have been told that the final destination of the day would never be the home addresses. The end point would be, regardless of the decision announced by SIAC, Belmarsh prison. U and VV had no idea that this was going to happen, the lawyers did not know and neither did friends and families. It had to have been a pre-planned arrangement. When everyone had left the building VV and U were called back into an empty SIAC courtroom, where they were both told they were under arrest. The Home Secretary had ignored the judgement given by Mitting as it had not complied with her overall plan to detain. So she over ruled him, brushing his word aside with her right to detain. In her witness statement it is stated that although the Home Secretary has the right to arrest, she had chosen instead to go through SIAC. It appears SIAC did not produce the outcome she wanted and so carrying out what was described as a disproportionate act, not based on any new evidence, she arrested the men. Dinah Rose QC called it having ‘two bites of the cherry’. When she had awoken that morning, the Home Secretary knew regardless of what Mitting would decide, U, Y, VV BB and Z were going to prison.

Word soon spread that up and down the country the homes of the rest of the men were being visited by police and immigration offices. They had in truth all been expecting such a knock on the door following the House of Lords announcement. For married family men Z and BB, at least ten police in full battle gear arrived at their doors and arrested them. For BB it was at least two hours later after the other men had been taken when the police arrived for him. Yet again no sign of him absconding, even when he knew they were coming for him. The heavily pregnant wife of BB could not contain her distress and argued for her husband to be left alone. It brought back all the previous nightmares when she and her children have seen BB dragged off by police. The daughter of VV kept asking where her father was and all his wife could say was that he was in the mosque and was coming home soon. When the police arrived for Y, they banged on the door. He had barely opened the door before it was forced open and he was pushed back into the room by one police man. In what was described as a menacing approach, two police man and two immigration officers circled him, arrested him and then put him in hand cuffs. The two cars to collect him had been parked some distance away from his house, so when he was led away by his four burly escorts, with hands behind his back, curtains in neighbouring houses were twitching as local people came to see the action. So much for anonymity for his protection.

An immediate judicial review was called for on Friday morning, with the men's solicitors working away into the small hours to prepare for what Gareth Peirce, solicitor to some of the men, later described as ‘a new huge battle, the like of which has never having happened before’. In SIAC courtroom the mood was charged and angry. Disbelief at such an action was evident amongst friends, solicitors and barristers. By law, or the remnants of it we are holding onto today, it states that Home Secretary has to present the men to SIAC within 24 hours. A hearing was called at 10.30am and the men would be present. Ironically it turned out that BB who had the furthest distance to travel was in court, the other 4 who were in Woodhill and Belmarsh were not in court but were able to see proceedings through a web link. Apparently transport to drive them to SIAC from Belmarsh, which is just on the other side of London, was not available.

Mitting was requested to address this action with his 'High Court Judge' hat on, to which he agreed. After consideration he ruled that Y, Z, BB and VV be released. No opinion or statement was provided in reference to the Home Secretary's action; however the relief of all in court, bar Jacqui Smith’s team, was expressed through excited nods of approval of the decision. Any joy however was limited when it was stated that U would remain in detention. This is based on closed evidence, which had been presented on Friday. It was this closed evidence that Smith had not submitted in the correct manner in accordance with SIAC rules on the first day of the hearing which resulted in the adjournment. The appellant to who it referred to had not been detailed neither was it revealed to the Special Advocate who is entitled to see it on behalf of the appellant but must not in anyway tell him what it is. The reason as to why the Home Secretary had failed to comply with the procedure was not told in open court but was revealed in a closed session. The closed evidence was re-submitted on Friday and was in reference to U. An argument put forward on Friday by the QC asked why an adjournment of proceedings had not been applied for had the Home Secretary not been ready in submission of all her evidence. Why instead did the men have to be detained? In response it was suggested that there had always been a plan to have a two day hearing and this was indeed what was happening. It's difficult to take such responses seriously, which appear to be just making a mockery of the system.

The four men watching on the screen digested the news within the court. They were asked if they had any questions. Z asked about how his family was, having not heard from them after he was taken away by the police. As Mitting made his announcement a mixed display of emotion was seen, with relief for themselves but sadness for their counterpart, U, who was having to stay behind. The men stood up and hugged him for an extended period before being escorted out of the room. When U was told by the judge he would be detained, what more could he say other than the muted ‘thank you’ that was heard. A slight, slim man who through the years of detention has prematurely lost all his hair. Hard to see how he can be deemed dangerous. An image of three bald heads on the wide screen monitor displayed a picture of young men turned old through the injustice they have suffered over the years. Y lost all his hair in three months of his initial detention.

Jacqui Smith’s eternal cry on these men being a threat to national security is wearing thin. As the men have said time and again, bring forward the evidence and fight it out in a normal court of law. This is not happening. Instead secret courts and secret evidence are in play. As it stands, the only person who is demonstrating any threat to this country carrying out dangerous acts through SIAC is Smith herself. Single handed, she is carrying out a destructive campaign against fair, reasonable due legal process by overruling a Commission’s judgement and basically ignoring all the decisions passed through SIAC-an authority that she has herself instructed to remain in place to preside over these issues. A blatant disregard and disrespect for the law is a threat to the civil liberties of this country which is far more damaging than anything these men have ever done.

As I mentioned earlier proceedings on the first day were unconventional and an adjournment requested and granted. This was based on three points. The first being that there had been a hearing a week previously between the SIAC judge, Mitting and the Home Office legal team. The appellant’s legal team had not been invited to join. A second point was that despite continuous requests by the appellant's team for a copy of the witness statement from the Home Secretary over the last eight days, it was only produced in court on the morning of the first day of the hearing. Thus not giving sufficient time for the team to prepare let alone read and digest the details. The final point was the issue of the closed evidence that had not previously been applied for to be used in SIAC, the Special Advocate not seeing it or which appellant it referred to. On all three counts the adjournment was granted. The afternoon was taken up by a discussion on whether the men should be detained whilst awaiting the adjournment dates of the 4th March for U and the 11th March for the rest of the men. At this stage, Mitting decided to allow the men to remain under bail conditions and on Thursday afternoon it was believed that for now, that was the end of it. Until of course, everyone had gone home and Jacqui Smith set her team loose to arrest the men.

On the adjourned hearing date the issue of revoking the bail for all the men will be heard. Once again they face being detained without charge, indefinitely whilst fighting deportation orders. The House of Lords in the past have already voted against indefinite detention. It appears now that the Home Secretary is applying for the same objective but under a different pretext of fear of absconding.

Is it really all to do with a fear of a threat to national security? We have been hearing this tired old song now for quite some time and I wonder how much longer we will hear it. None of these men have been found to be involved with any of the terror attacks that have taken place since 2001. Two were involved in the ricin trial, in which they were acquitted. The trial that turned out to be a series of lies and conspiracies and was used as ammunition to rally support in the United Nations by Colin Powell for a war in Iraq. Or is it more to do with the fact that these men have now been part of this dance with consecutive Home Secretaries since 2001, costing tax payers a vast amount money, which if calculated could go into billions. They have been branded in the media as a reason why we all need to be afraid thus allowing further encroachments on civil liberties which suits the government's purpose. This has been hungrily propagated by the salivating tabloid press who have constantly demonised and branded the men as ‘terrorists’. To now turn around and say these men are indeed innocent and can live in peace would be the decent thing to do. But that requires decent and brave people to make that move. The cynic in me says we might be waiting for some time before we see such people holding the reins of power, who are able to exercise their power fairly and justly and thus do what should have been done along time ago.

Stephen Bell's cartoon in the Guardian last week says it all. Binyam Mohammed is making his way down the steps of the aeroplane on arrival to the UK. On the tarmac a number of people are waiting to greet him. Jacqui Smith is one of them and she is holding up a black hood. The caption reads 'Welcome to your second home'. I feel safe amongst the men that Jacqui Smith deems a threat to national security, as do a number of people including lawyers, journalists, doctors, politicians and a whole host of supporters which include the likes of Bruce Kent, former head of CND, who are cleared to visit the men. On the other hand I, as a Muslim and a British citizen, do not feel safe knowing that Jacqui Smith is in office, exercising her powers at will without due regard for basic human rights.