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					W R I T I N G WO RT H R EA D I N G   G   ISSUE 30   G   SEPTEMBER 2008


                                                              ⁄ 1
      WAS IT
     FOR THE
            Human rights lawyer
           Gareth Peirce examines
          the treatment of Muslims
             in Britain since 9/11
                             Gareth Peirce is noted for taking on controversial cases, including high
                             profile human rights issues. Her clients include the Birmingham Six, the
                             Tipton Three, the Guildford Four, former MI5 operative David Shayler,
                             Abu Qatada (who has been called 'Europe's Al-Qaeda Ambassador'),
                             Judith Ward, Mouloud Sihali, the family of Jean Charles de Menezes,
                             Mozzam Begg and Bisher Amin Khalil al-Rawi, a detainee at the
         Guantanamo Bay detainment camp.
             In the mid 1970's Gareth Peirce supported specific campaigns for reform of laws and
         police procedures that permitted the wrongful prosecution and conviction of persons solely
         on identification evidence. In the 1960s, she worked as a journalist in the United States,
         following the campaign of Martin Luther King; when she returned to Britain in the 1970s,
         she took a postgraduate law degree at the London School of Economics. She joined the
         firm of the radical solicitor Benedict Birnberg as a trainee, and was admitted to the Roll of
         Solicitors on December 15, 1978.
             She was appointed CBE in 1999, but later she returned its insignia. She is currently a
         senior partner at Birnberg Peirce and Partners, and lives in Kentish Town, north London. In
         the film In the Name of the Father, Peirce was portrayed by Emma Thompson (though
         Thompson's character was actually a composite of several lawyers who worked on the case,
         including Peirce).
             Peirce was one of the initial eight people inducted in March 2007 into Justice Denied
         magazine's Hall of Honor, for her lifetime achievement in aiding the wrongly convicted.

         This essay was first published in the London Review of Books


2 TheREADER |        | September 2008
                   WAS IT LIKE THIS
                   FOR THE IRISH?
                                         GARETH PIERCE

                   he history of thirty years                             tered by the community most af-
                   of conflict in Northern Ire-   Before Bloody           fected, but the British public, in whose
                   land, as it is being written   Sunday, when British    name these actions were taken, re-
                   today, might give the im-      soldiers shot and       mained ignorant: that the state was
                   pression of a steady pro-      killed 13 unarmed       seen to be combating terrorism suf-
                   gression towards an in-        Catholic                ficed. Central to the anger and despair
evitable and just conclusion. The new             demonstrators who       that fuelled the conflict was the reali-
suspect community in this country, Mus-           were marching to        sation that the British courts offered
lims, want to know whether their experi-          demand not a united     neither protection nor justice. The
ence today can be compared with that of           Ireland but equal       Widgery Report into Bloody Sunday,
the Irish in the last third of the 20th cen-      rights in employment,   which was carried out by the lord
tury. It is dangerously misleading to assert      education and housing   chief justice, absolved the British army
that it was the conflict in Northern Ireland      (as well as an end to   and backed its false account of 13 mur-
which produced the many terrible wrongs           internment), the IRA    ders, ensuring that Irish nationalists
in the country’s recent history: it was in-       was a diminished        would see the legal system as being
justice that created and fuelled the con-         organisation, unable    aligned against them.
flict. Before Bloody Sunday, when British         to recruit                  We should keep all this in mind as
soldiers shot and killed 13 unarmed                                       we look at the experiences of our new
Catholic demonstrators who were march-                                    suspect community. Just as Irish men
ing to demand not a united Ireland but                                    and women, wherever they lived,
equal rights in employment, education                                     knew every detail of each injustice as
and housing (as well as an end to intern-                                 if it had been done to them, long be-
ment), the IRA was a diminished organi-                                   fore British men and women were
sation, unable to recruit. After Bloody Sun-                              even aware that entire Irish families
day volunteers from every part of Ireland                                 had been wrongly imprisoned in their
and every background came forward.                                        country for decades, so Muslim men
Over the years of the conflict, every law-                                and women here and across the world
less action on the part of the British state                              are registering the ill-treatment of their
provoked a similar reaction: internment,                                  community here, and recognising, too,
‘shoot to kill’, the use of torture (hooding,                             the analogies with the experiences of
extreme stress positions, mock execu-                                     the Irish.
tions), brutally obtained false confessions                                   As good a place to start as any is 19
and fabricated evidence. This was regis-                                  December 2001. On this date a dozen

                                                                           September 2008 |         | TheREADER 3
                                                 GARETH PEIRCE

men, all foreign nationals, were interned in                          nationals, the ‘evidence’ to be heard in se-
this country. Recognising the connotations       Each of the dozen    cret with the detainee’s lawyer not permit-
of the term ‘internment’, discredited and        men snatched         ted to see the evidence against him and an
abandoned in Northern Ireland, the gov-          from his home on     auxiliary lawyer appointed by the attorney
ernment insisted this was not equivalent         17 December          general who, having seen it, was not al-
to arbitrary detention without trial, a prac-    2001, and            lowed to see the detainee. The most use-
tice forbidden by the European Conven-           delivered to HMP     ful device of the executive is its ability to
tion on Human Rights except in extreme           Belmarsh,            claim that secrecy is necessary for national
emergencies, because each man was free to        expressed            security. Each of the dozen men snatched
leave. The premise on which they were            astonishment:        from his home on 17 December 2001, and
detained was that the United Kingdom             first at finding     delivered to HMP Belmarsh, expressed as-
could not in fact send them back to their        himself the object   tonishment: first at finding himself the ob-
countries of origin, since it was accepted       of the much          ject of the much trumpeted legislation and,
that they would be at the very least a tar-      trumpeted            second, at discovering who his fellow de-
get for torture, if they were not killed on      legislation and,     tainees were. Each asked why, if he was
arrival.                                         second, at           suspected of activity linked to terrorism, he
   December 2001 did not in fact mark the        discovering who      had never been questioned by police or the
beginning of Britain’s official interest in      his fellow           Security Services before it was decided
men described as ‘Islamists’, since some         detainees were       that he was a ‘risk to national security’.
from Egypt, Jordan, Tunisia, Libya and Al-                            The sole activity which some speculated
geria who were in this country as refugees                            might be the reason for their detention
had long been the subjects of complaints                              was their attempt to support Chechens
to the UK by the regimes they had fled. Af-                           when in 1999 their country was the subject
ter 9/11, however, Tony Blair professed a                             of a second brutal invasion by Russia. But
desire to stand ‘shoulder to shoulder’ with                           thousands of others had acted similarly,
President Bush. It would have been diffi-                             and such support was not unlawful.
cult to match Bush’s executive onslaught                                 Each man was told that, for a reason
on constitutional rights in the US, by                                that could not be disclosed, he was in
means of the Patriot Act; the designation                             some unspecified way thought to be linked
of ‘enemy combatants’ and their deten-                                to unspecified persons or organisations, in
tion by presidential order; the abolition of                          turn linked to al-Qaida, which was then
habeas corpus; the subjection of detainees                            depicted by now discredited ‘al-Qaida ex-
to torture in Afghanistan and Guantá-                                 perts’ as taking the form of the hierarchi-
namo or their unofficial outsourcing via                              cal pyramid of classic Western military sys-
rendition flights to countries specialising in                        tems. At the base of the pyramid were
even more grotesque interrogative prac-                               those who had been interned, almost all of
tices, many of them those same regimes                                whom said that they had never heard of
which had pressured the UK to take ac-                                al-Qaida before 11 September 2001. All of
tion against their own dissidents. Claiming                           this echoed other wrongful detentions, like
that a parallel emergency faced Britain,                              that of John Walker in 1974, when the West
Blair bulldozed through Parliament a new                              Midlands police coerced an innocent Irish-
brand of internment. This allowed for the                             man into confessing that he was an IRA
indefinite detention without trial of foreign                         ‘brigadier’, ignorant of the fact that such a

4 TheREADER |            | September 2008
                                      WAS IT LIKE THIS FOR THE IRISH?

title existed only in the British army. This                          sometimes denied. While the world knows
confession was nevertheless swallowed            Two British          and can assess for itself what chains of re-
whole. Walker was one of the Birmingham          residents,           action were created by the wars in Iraq
Six, all of whom spent 16 years in jail be-      acknowledged to      and Afghanistan and by the enormity of
fore the assertions of their prosecutors         have been seized     injustice suffered by the Palestinians, the
were finally discredited.                        in 2002 in the       cumulative effect of many other policies
    There should have been no need for           Gambia and           deserves analysis. It emerged for instance
the Muslim community to anticipate a             subjected to         that in late 2001 the UK had begun to tip
similar wait, since just before Christmas        rendition by the     off other governments, for the ultimate
2005, three and a half years after intern-       US as a direct       benefit of the US, of the whereabouts of
ment had been rushed through Parlia-             result of            British nationals and British residents.
ment, the House of Lords gave its judg-          information          Moazzem Begg, who was living with his
ment on that legislation in what should          provided by          wife and children in Pakistan, was kid-
have stood as the most important legacy          British              napped in January 2002; within hours he
of British law in recent history. The law        Intelligence, were   was in the hands of Americans (with a
lords swept aside what had been said by          for the next five    British Intelligence agent to hand), and
the attorney general to constitute a just        years subjected      transported without any semblance of le-
system necessary for national security. Fo-      to interrogation     gality to Bagram airbase in Afghanistan, by
cusing on the government’s disproportion-        (including           this time an interrogation camp where tor-
ate response to a claimed emergency, and         torture) primarily   ture was practised. After a year during
its indefinite detention only of foreign na-     to obtain            which he witnessed the murders of two
tionals, the language of the law lords was       information about    fellow detainees, he was moved to Guan-
heroic in its strength. There was a sense        a man interned in    tánamo Bay. Until he finally returned to
that the ruling’s importance went far be-        this country         this country in 2005, nothing was known
yond its importance to the 12 detainees,                              of the presence at his abduction of a British
eight of whom had now been driven into                                agent. Instead, for the whole of that year in
mental illness, four of those into florid psy-                        Bagram, the Foreign and Commonwealth
chosis, and had been transferred by the                               Office repeatedly told his father that they
home secretary from Belmarsh to Broad-                                had no information about Begg and that
moor.                                                                 the Americans would tell them nothing.
    Since the judgment, however, signalling                               Seemingly unrelated areas of injustice,
as it did that the government had imper-                              we now learn, have all along been con-
missibly crossed the legal barriers guaran-                           nected. Two British residents, acknowl-
teed by domestic and international                                    edged to have been seized in 2002 in the
treaties, it has become clear that the gov-                           Gambia and subjected to rendition by the
ernment intends to ignore the spirit if not                           US as a direct result of information pro-
the letter of the decision. It has also be-                           vided by British Intelligence, were for the
come clear that the government had, and                               next five years subjected to interrogation
continues to have, a wider strategy of                                (including torture) primarily to obtain in-
which internment legislation was only one                             formation about a man interned in this
part. Little by little, ripples of information                        country. One of those interned in Decem-
have found their way to the surface, some-                            ber 2001, a Palestinian, trying to guess the
times confirmed by the government,                                    reason for his detention the next year, told

                                                                           September 2008 |        | TheREADER 5
                                                GARETH PEIRCE

his lawyers that he had raised money for                             placed a substantial number of restrictions
many years to build wells and schools and       Three of the         on the now released detainees. Any breach
to provide food in Afghanistan. One of          detainees,           would constitute a criminal offence carry-
those wells, he said, bore the name of the      including the        ing a penalty of up to five years’ imprison-
son of its donor, Moazzem Begg. The             Palestinian, were    ment. Three of the detainees, including
Palestinian’s lawyers, knowing by now           pitch-forked out     the Palestinian, were pitch-forked out of
that Begg was in Guantánamo, started to         of Broadmoor         Broadmoor during the night and driven by
think the unthinkable. During hearings at       during the night     police to empty flats. One of them, a man
the Special Immigration Appeals Commis-         and driven by        without arms, was left alone and terrified,
sion, at which these cases are heard, there     police to empty      unable to leave the flat or to contact any-
is a brief opportunity for the detainee’s       flats. One of        one without committing a criminal of-
lawyer to question an anonymous Security        them, a man          fence, subject to a curfew and allowed no
Service witness concealed behind a cur-         without arms,        visitors unless approved in advance by the
tain, before the lawyer is asked to leave the   was left alone and   Home Office. Two of these three detainees
court so it can continue its consideration of   terrified, unable    were immediately readmitted to psychi-
secret evidence. The witness was asked:         to leave the flat    atric hospitals; neither of them had been
‘Would you use evidence that was ob-            or to contact        hospitalised before being interned. These
tained by torture?’ The unhesitating an-        anyone without       men had already been found to have pat-
swer was: ‘Yes.’ The only issue that might      committing a         terns of psychological damage explicable
arise, the agent added, would be the            criminal offence,    only as a result of their indefinite deten-
weight such evidence should be given.           subject to a         tion.
Three years after this, in December 2005,       curfew and               Other former detainees, particularly
the House of Lords affirmed the principle       allowed no           those with wives and children, soon began
that no English court can ever admit evi-       visitors unless      to recognise the disturbing effects of the
dence derived from torture, no matter how       approved in          Control Orders. The electronic tag they
strong the claimed justification or emer-       advance by the       had to wear, which registered every entry
gency. The message for the government           Home Office          and exit from the house, was only one el-
was again unequivocal: the principles of le-                         ement of a family’s altered existence; a
gal obligation must be adhered to in all cir-                        voice recognition system was supposed to
cumstances.                                                          confirm the detainee’s presence at home
   Despite the strength and intended per-                            during curfew, but the machines, of US
manence of these two rulings by the                                  manufacture, often failed to recognise the
House of Lords, however, many Muslims                                accents of Arabic speakers, with the result
have come to see any protection from the                             that uniformed police officers would enter
courts as constituting only a temporary                              the house in significant numbers at all
impediment before the government starts                              times of the day and night. No visitor
to implement a new method of avoidance.                              would come near their homes because to
After three months of prevarication, the in-                         enter required first to be vetted by the
ternees were released on bail under strin-                           Home Office. Children could do no school-
gent conditions, but the Home Office was                             work that involved the internet, the use of
simultaneously pushing yet more emer-                                which was forbidden. Families had end-
gency legislation through Parliament, this                           lessly to involve lawyers in the most triv-
time to introduce Control Orders which                               ial matters: to obtain permission to go into

6 TheREADER |           | September 2008
                                      WAS IT LIKE THIS FOR THE IRISH?

the garden; to attend a parent-teacher                                  the invasion of Iraq to the UN. (One juror
meeting; to arrange for a plumber to enter        Those detainees       described how for him a moment of truth
the house.                                        who remain in the     came early in the trial, when a witness
    What happened to these men? Are they          United Kingdom        from Porton Down nervously drank three
still, three years later, trying to live normal   are still in prison   containers of water while in the witness
lives despite the restrictions? The answer        or under extreme      box seeking to explain why an early lab re-
came only five months after their release.        bail restrictions.    port said to have been conveyed to the
On 7 July 2005 bombs exploded in London.          One has been          police and confirming that there was no
Within days it was known that the bomb-           returned twice to     trace of ricin, had, curiously, never reached
ings had been carried out by young men            Broadmoor from        the Cabinet Office.)
born and bred in Yorkshire. On 5 August           prison before            Those detainees who remain in the
Blair announced that ‘the rules of the game       being bailed to a     United Kingdom are still in prison or un-
have changed’ and that diplomatic agree-          psychiatric           der extreme bail restrictions. One has been
ments were being made to deport the               hospital              returned twice to Broadmoor from prison
same small group of detainees to their                                  before being bailed to a psychiatric hospi-
countries of origin, although the govern-                               tal. There are now two more Jordanian
ment knew that the use of torture was                                   detainees and several Algerians, while
still routine in these countries. It was said                           Libya rapidly became the third state to
that an assurance would be obtained that                                promise safe re-entry to its dissident citi-
the men themselves would not be tor-                                    zens. As for the promised monitoring or-
tured after they were returned, and that                                ganisations, one was purpose-built in Jor-
an independent monitoring organisation                                  dan in 2005, a husband and wife team
in each country would guarantee that this                               bankrolled by the UK, which by the sum-
was being adhered to. Despite such as-                                  mer of 2007 (when two thousand inmates
surances, these deportations flew in the                                in one Jordanian prison were beaten the
face of two important legal commitments                                 day after the first ever visit of an NGO,
to which this country is obliged to adhere:                             Human Rights Watch, to whose represen-
one, to send no person to a country where                               tatives they had complained of torture),
there is a risk to him of torture, the central                          had still never visited a prison. In Libya,
premise of the Refugee Convention, and,                                 the independent monitor agreed to by
two, to achieve the eradication of torture                              Britain is the Ghadafi Foundation, headed
(and not by negotiating a single excep-                                 by Colonel Ghadafi’s son.
tion, while offering no protest to a regime’s                              Algeria never signed a memorandum of
use of torture on others).                                              understanding with Britain, nor did it ap-
    On 11 August the Algerian and Jordan-                               point an independent monitor, although
ian former internees were again arrested.                               both safeguards were said by Blair to be
There were soon more arrests, this time of                              non-negotiable precursors to deportation.
two Algerians who had been acquitted                                    Constant prevarication was ascribed ini-
unanimously in a trial at the Old Bailey in                             tially to the Algerian president’s ill-health,
April 2005 of involvement in a conspiracy                               and then to meetings being postponed,
to use ricin, an allegation that had been                               until finally the detainees’ appeals against
seized on at the time of their original arrest                          deportation could be delayed no longer.
by Colin Powell in his attempt to justify                               SIAC, hearing evidence in large part in se-

                                                                              September 2008 |        | TheREADER 7
                                                GARETH PEIRCE

cret, found that Algeria’s ‘body politic’ ap-                       value on their relationship with Britain to
peared to have moved to ‘a state of lesser      They were both      risk its disapproval. No British official has
danger’ for perceived dissidents, that a lim-   interrogated for    ever attempted to visit either man in
ited amnesty was on offer, so that the          12 days during      prison, despite reports that both continue
refugees would not be put on trial, and         which they were     to be held in conditions that violate every
thus that it was safe to deport them. Sev-      threatened and      international norm; no official attended
eral Algerians in prison here or under se-      subjected to        their trials and the fact that visa applica-
vere restrictions decided to return. As they    serious physical    tions by the men’s UK lawyers have been
said in a letter to a British newspaper: ‘We    ill-treatment.      ignored for a year by the Algerian author-
are choosing the alternative of a quick         They were then      ities, despite repeated requests for help
death in Algeria to a slow death here.’         charged, tried      from our government, has been com-
   In making this decision, two of the Al-      and some months     mented on with amusement during pro-
gerians, Benaissa Taleb and Rida Dendani,       later convicted,    ceedings before SIAC as evidence of Alge-
dramatically miscalculated. Astonishingly,      on the basis of     ria’s independent spirit. A desperate
SIAC allows secret evidence to be given         the ‘confessions’   letter describing how he had been tor-
even on the issue of an individual’s future     forced from them    tured was sent by Dendani from Algeria
safety. Had the men properly understood         during this time    to the president of SIAC. It brought no
the reality (or more important the fragility)                       response. Despite all this, it is still main-
of diplomatic arrangements, perhaps nei-                            tained that it is safe to deport people to
ther would have decided to return. Each                             Algeria. An application on behalf of ap-
was told that an amnesty applied in Alge-                           pellants for a secret hearing at which in-
ria which he should sign even though he                             formation given to lawyers by those
had committed no offence; indeed special                            afraid of providing it in the open could be
arrangements were made by the Home                                  properly and safely examined has been
Office for each man to have bail to attend                          rejected, not because SIAC considered
the Algerian Embassy in London for this                             the proposal without merit, but because
purpose. Each believed that he would not                            the court’s rules, it appears, do not allow
be detained more than a few hours on ar-                            for such a procedure.
rival and that, as the British diplomat or-                             Is the treatment of these two men sim-
ganising these deportations had promised                            ply a blip in an otherwise safe and lawful
SIAC, there was no risk that he would be                            process? Is it reasonable for the Muslim
held by the infamous DRS secret police. In                          community to see wider significance in the
fact they were both interrogated for 12                             treatment of such individuals? Over the
days during which they were threatened                              past year it has emerged that Britain has
and subjected to serious physical ill-treat-                        secretly been willing to disregard the most
ment. They were then charged, tried and                             basic principles of refugee protection. First,
some months later convicted, on the basis                           we learned that Taleb’s interrogation by
of the ‘confessions’ forced from them dur-                          the DRS was indisputably based on infor-
ing this time. Dendani was sentenced to                             mation received by the Algerians from the
eight years’ imprisonment, Taleb to three.                          UK. Not only did Algeria possess the 2003
   At the heart of Britain’s reassurances                           findings against him by SIAC (under the
as to their safety had been the confidence                          internment legislation that the House of
that the Algerians would place too high a                           Lords subsequently held to be unlawful),

8 TheREADER |           | September 2008
                                      WAS IT LIKE THIS FOR THE IRISH?

but it has now been discovered that the                              in a democratic country par excellence,
asylum claims of possibly all of this small       ‘Weren’t you       Great Britain? No one in this court can
group of detainees have been passed to the        imprisoned,        teach us a lesson or put to us the least
regimes from which they had fled. Asylum          confined to your   complaint on this matter, since in this
rests on the central premise of confiden-         home for several   country no person has been subject to
tiality, and a clear promise to that effect is    years without      such treatment.’ Taleb’s claim for asylum in
given by the Home Office to all those who         trial, without     the UK he saw as amounting to a ‘be-
claim asylum here. After all, the contents        charge and         trayal’ of his country of origin. Asylum was
of the application, or the very fact of its       without respect    accorded ‘only to those who hated their
having been made, might create danger             for any procedure own country’, and the judge commented
for the applicant if he returned to his coun-     of either inquiry  at length on Algerians who had gone
try of origin. In the case of one man whose       or investigation   abroad and painted a black picture of the
appeal against the Home Office’s request          in a democratic    country’s human rights situation ‘to the
to deport him has not yet been considered         country par        benefit of NGOs whose time was spent vi-
by SIAC, we have discovered that a spe-           excellence, Great tiating the truth about Algeria’.
cially commissioned medical report de-            Britain? No one in    Taleb’s eventual conviction was, curi-
scribing his vulnerable condition has al-         this court can     ously, for going to Afghanistan in 1991 to
ready been prepared by Belmarsh and sent          teach us a lesson fight the Russians. In fact, he went to Pak-
to Jordzn.                                        or put to us the   istan in 1991 as an idealistic 18-year-old,
   Taleb, known throughout his intern-            least complaint    where he taught refugees from
ment only by a letter of the alphabet so          on this matter,    Afghanistan; the Russians had left two
that his family in Algeria would not be at        since in this      years earlier. As for the amnesty he had
risk, arrived there to find that all the infor-   country no         signed? Not only its relevance but its exis-
mation about him based on secret evi-             person has been    tence was denied. The United Kingdom
dence under now abandoned legislation             subject to such    displayed no interest in any of this. The re-
was held by the Algerians, un-anony-              treatment’         ality is that British Petroleum has sunk £6
mised. Taleb had decided to return to Al-                            billion into obtaining oil from Algerian
geria in the hope he would be safe, and so                           southern Sahara; the US and the EU are
no court in Britain had ordered his depor-                           scrambling with the UK for a slice of
tation. Yet the Algerians possessed all the                          Libya’s economic potential; and Jordan,
British government’s ‘evidence’ about him.                           one fifth of whose annual national income
His subsequent trial confirmed his worst                             is provided by the US, is content to act as
fears. His Algerian lawyers argued, and he                           its most reliable provider of safe destina-
gave evidence of this himself, that he had                           tions for rendition and torture.
signed an unread ‘confession’ after spend-                              In February, a judgment published by
ing 12 days in DRS custody and after hav-                            the European Court of Human Rights in
ing been beaten by his interrogators. The                            the case of a Tunisian whom Italy sought
presiding judge countered by referring to                            to deport, although Tunisia continues to
the ‘West’ and its ‘illusory democracy’:                             practise torture, revealed that the UK had
‘Weren’t you imprisoned, confined to your                            tried to intervene in the case in the hope of
home for several years without trial, with-                          undoing one of the European Court’s most
out charge and without respect for any                               important decisions, Chahal v. UK, in
procedure of either inquiry or investigation                         which the court insisted that the claim of

                                                                            September 2008 |       | TheREADER 9
                                                 GARETH PEIRCE

a risk to national security could never                            Hoffman expressed horror at ‘the mean-
trump a European country’s international         Across a note     ness and squalor’ of a regime ‘that moni-
obligation not to return a refugee who           from the Home     tored who had what for breakfast’. The
might be tortured. The European Court re-        Office expressing number of such cases now multiplies daily.
jected this attempt in strong terms.             concern that even They have nothing at all to do with na-
    Through a myriad other routes Britain        hard assurances   tional security, they only succeed, as they
attempts to evade internationally recog-         given by Egypt    are intended to, in sapping morale; they
nised legal restraints. Several years ago        were unlikely to  have everything to do with reinforcing the
Tony Blair attempted to deport an Egypt-         provide real      growing belief of the suspect community
ian human rights lawyer who had been             protection        that it is expected to eradicate its opinions,
the victim of truly terrible torture in his      against torture   its identity and many of the core precepts
own country: Blair argued that an assur-         and execution,    of its religion.
ance from Egypt of the man’s safety would        Blair had             In December 2001 it was a small group
suffice. Unusually, during a court challenge     scribbled: ‘Get   of foreign nationals who paid the price for
to the legality of his detention, private        them back’        Blair’s wish to show solidarity with the
memoranda between Blair and the Home                               US; and their predicament has never been
Office were made public. Across a note                             widely known or understood beyond the
from the Home Office expressing concern                            Muslim community. But joining them in
that even hard assurances given by Egypt                           prison today are more and more young
were unlikely to provide real protection                           British men, and occasionally women.
against torture and execution, Blair had                           Many have little or no idea why they are
scribbled: ‘Get them back.’ Beside the pas-                        there, although even more disturbingly,
sage about the assurances he wrote: ‘This                          the majority were tried by the courts in
is a bit much. Why do we need all these                            conventional trials before conventional ju-
things?’ The man succeeded in his court                            ries. Why is it, therefore, that the accused
challenge, but today, on the basis of secret                       do not seem to comprehend why they are
information provided by Egypt, he is the                           there when the prosecution has in any
subject of a UN Assets Freezing Order                              trial to serve all of its evidence in the form
managed by the Treasury. He has no as-                             of statements, in order to inform the defen-
sets, no income and no work, and can be                            dant of the case against him? The answer
given neither money nor ‘benefit’ without                          is that the vice underlying the intern-
a licence. ‘Benefit’ includes eating the meals                     ment/deportation cases is now being per-
his wife cooks. She requires a licence to                          petrated in conventional trials. The accu-
cook them, and is obliged to account for                           sations are similarly inchoate: defendants
every penny spent by the household. She                            are said to be ‘linked to terrorism’ or ‘linked
speaks little English and is disabled, so is                       to extremism and/or radical ideology’. In
compelled to pass the obligation onto their                        these cases, the evidence before the court
children, who have to submit monthly ac-                           has time and again been found after a
counts to the Treasury of every apple                              search on a defendant’s computer or in a
bought from the market, every bus fare to                          notebook; the defendant is charged with
school. Failure to do so constitutes a crim-                       possession of a certain item or this item is
inal and imprisonable offence. A few                               held to demonstrate the defendant’s desire
weeks ago in the House of Lords, Lord                              to incite, encourage or glorify terrorism.

10 TheREADER |           | September 2008
                                     WAS IT LIKE THIS FOR THE IRISH?

   The right to a fair trial is in many ways                          ‘terrorism’.
difficult to articulate. If a defendant be-      The relevant            This is the context of many current
lieves his or her prosecution is unjust, does    provisos, which      prosecutions. The fruits of a police search
he or she have any concepts to hang onto         underpin the right are uncovered, prosecutions mounted for
that are not entirely nebulous, unless they      to a fair trial, are the ‘possession’ of literature, films and
can prove, as those wrongly convicted in         that the law         pamphlets bought or viewed on websites,
Birmingham or Guildford did, that their          should be clear      even if that viewing was swift and the
confessions had been brutally coerced? Or        and certain so       item discarded or even deleted. The defen-
in the case of Judith Ward, when it was          that individuals     dants are stigmatised as potential terror-
proved that the prosecution had withheld         can be confident     ists and their cases considered by juries
for 18 years evidence that disproved her         that their           more often than not without even one
claimed fantasies, or that of Danny Mc-          behaviour does       Muslim among their ranks to provide
Namee, in which the information that cir-        not transgress       what the concept of 12 jurors randomly se-
cuit boards identical to those he was held       the limits society lected is intended to contribute to the trial
to have used were in the possession of an        has set; that the    process – a reflection of the collective good
actual bomb-maker was kept from his de-          application of the sense of the community.
fence and a fingerprint was claimed to be        law should never        Two young Muslim women were sepa-
his when it was not. In each of these cases,     be retrospective; rately tried at the Old Bailey last year for
bad, misleading and on occasion false ‘ex-       and that there       having written works deemed by the pros-
pert’ evidence also played its part. Less        are protections      ecution to be for a terrorist objective. One
well-known guarantees of a fair trial do,        intended to          was the ‘Lyrical Terrorist’, whose appeal
however, exist, just as clear protections for    preserve freedom against conviction is due to be heard
refugees exist, which were equally in-           of speech,           shortly. The other, Bouchra El-Hor, was
tended to hold good for all time and in the      religion, thought    acquitted by her jury; she had the good
face of all emergencies. The relevant provi-     and privacy          fortune to have as a defence witness Car-
sos, which underpin the right to a fair trial,                        men Callil, who witheringly described the
are that the law should be clear and cer-                             letter that El-Hor had written as a classic
tain so that individuals can be confident                             example of the way devout women,
that their behaviour does not transgress                              whether Catholic or Quaker, Puritan or
the limits society has set; that the applica-                         Muslim, experiment with creative writing
tion of the law should never be retrospec-                            as a means of expression while living iso-
tive; and that there are protections in-                              lated existences. The jury laughed at
tended to preserve freedom of speech,                                 Callil’s savage critique, but one could see
religion, thought and privacy. Young Mus-                             recognition and understanding follow.
lims search the internet in their tens of                                This is very dangerous territory, how-
thousands, as do non-Muslims. Any in-                                 ever, where a lucky accident of interpreta-
ternet search, however, leaves an ineradi-                            tion is critical to a jury’s understanding of
cable trace which can and does provide                                a case and where police and prosecutors,
material that puts its searcher now at risk                           neither of them armed with any under-
of prosecution for possession of informa-                             standing of Islam, press on with prosecu-
tion that might be ‘of use to terrorists’.                            tions although the court struggles properly
They even risk arrest for writing anything                            to understand what is at issue. Where the
that could be said to ‘incite’ or ‘encourage’                         human story is straightforward, the task is

                                                                            September 2008 |       | TheREADER 11
                                                  GARETH PEIRCE

far easier, but even so, now that secret ac-                           require what are in effect interpreters to
cusations and secret courts have intruded         A childhood          establish their innocence? The more reli-
into the sacrosanct forum of an open jury         friend of            giously based the evidence, the greater the
trial in which secrecy is not allowed, what       Bullivant’s told     opportunity for obstinate incomprehen-
is a jury to make of an allegation that a de-     the court that       sion. Conspicuous by its absence in case af-
fendant has breached a Control Order im-          he had been          ter case is any evidence, expert or other-
posed on the basis of secret evidence             approached by        wise, proffered by the prosecution that
which holds that he is a risk to national se-     MI5 officers and     attempts to explain the most basic con-
curity? On trial just before Christmas was        asked to spy on      cepts of Islam to a non-Muslim jury. Take
a young Essex Muslim, Ceri Bullivant, who         local Muslim         the instance of a saying of the Prophet
had been placed under a Control Order             youths. When he      Muhammad familiar to all Muslims: ‘Fight
and then charged with a criminal offence          pointed out this     the unbelievers with your wealth, your-
when he absconded, unable to cope with            was unlikely to be   selves and your tongues.’ Should a man
the restrictions of that order. In his case the   productive since     who made a supplication in those terms in
jury magnificently acquitted him on the           he was not           Regent’s Park Mosque on the holiest night
basis that he had a reasonable excuse to          himself a Muslim,    of Ramadan four years ago, in support of
breach his order. It was only later, how-         he was               the citizens of Fallujah who were that
ever, in the High Court, that what lay be-        encouraged to        night defending their city in the face of
hind the secrecy became suddenly clearer.         become one and       the announced eradication by US troops of
Mr Justice Collins quashed the order itself;      told that            all who remained there, have anticipated
before he did so, an Intelligence agent giv-      ‘converts are        that he might be breaking the law, or that
ing evidence from behind a screen admit-          given a special      he could be charged and prosecuted in
ted that the tip-off which had led to the         welcome’             2008 after a friend’s home video of his
decision that Bullivant was a risk to na-                              prayer was found by police in a raid? He
tional security and ‘associated with links to                          had, after all, repeated those same chal-
terrorists’ had come from a friend of Ceri’s                           lenging words many times over the years,
mother who, after drinking heavily, had                                and explained again and again to the pub-
phoned Scotland Yard, which failed ever to                             lic, to the police and politicians, one of the
contact the caller to ask for further expla-                           most fundamental concepts of Islam, the
nation. Equally disturbingly, a childhood                              Ummah, which makes every Muslim any-
friend of Bullivant’s told the court that he                           where in the world the brother of every
had been approached by MI5 officers and                                other Muslim, so that if one is attacked
asked to spy on local Muslim youths.                                   others are obliged to help. Should he be
When he pointed out this was unlikely to                               surprised to be prosecuted for having reit-
be productive since he was not himself a                               erated these same words of support in a
Muslim, he was encouraged to become                                    mosque? The answer lies in Blair’s warn-
one and told that ‘converts are given a                                ing: ‘The rules of the game have changed.’
special welcome.’                                                      Previously accepted boundaries of free-
    From a distance such blundering negli-                             dom of expression and thought have been
gence might seem merely laughable, but                                 redefined and are now in effect being pros-
those affected by it feel resentment, anger                            ecuted retrospectively, with the result that
and despair. Why should young people as                                our criminal justice system is becoming
much a part of Britain as any other citizen                            further distorted as many truly innocent

12 TheREADER |            | September 2008
                                      WAS IT LIKE THIS FOR THE IRISH?

defendants plead guilty, against their                                factors, such as the inescapable responsi-
lawyers’ advice, terrified by the prospect, as    Throughout the      bility of the Irish Republic and, above all,
they see it, of inevitable conviction and         thirty years of     the political weight of the Irish diaspora
ever lengthening prison sentences. Thou-          conflict, forty     and the far-sightedness of those who be-
sands of others, all of whom have searched        million Americans gan and maintained contact, long before
the internet, watch with horror the process       of Irish descent    Blair was elected and claimed the ultimate
of criminalisation and punishment.                formed an           prize. Throughout the thirty years of con-
   In this country we did not grow up with        electoral statistic flict, forty million Americans of Irish de-
a written constitution and human rights           that no US          scent formed an electoral statistic that no
legislation entered our law only recently. In     administration      US administration could afford to ignore.
times of tension we struggle to find an-          could afford to     It is said that on the night before he de-
swers to basic questions. Are there rules         ignore. It is said  cided to grant a visa to Gerry Adams, Bill
and can they be changed? Are there legal          that on the night   Clinton watched a film about the cata-
concepts that protect a community under           before he decided strophic injustice inflicted on one Irish
blanket suspicion, or should that commu-          to grant a visa to family by the British state. Here, Lord Scar-
nity’s adverse reaction to suspicion be seen      Gerry Adams, Bill man and Lord Devlin, retired law lords,
as oversensitivity in the face of perceived       Clinton watched a joined Cardinal Hume, the head of the
political necessity? Should we accept the         film about the      Catholic Church in England, in educating
concept of the greatest good for the great-       catastrophic        themselves in the finest detail of three sets
est number? The answer is again the same:         injustice inflicted of wrongful convictions involving 14 de-
we are bound by international treaty and,         on one Irish        fendants. At one critical moment Cardinal
belatedly, by domestic human rights legis-        family by the       Hume confronted the home secretary,
lation, to hold that there are inalienable        British state       Douglas Hurd, challenging the adequacy
rights that attach to the individual rather                           of his briefing.
than society. Article 8 of the European                                   No similar allies for the Muslim com-
Convention protects not only respect for                              munity are evident today, capable of push-
family and private life, but also the individ-                        ing and pulling the British government
ual against humiliating treatment; Article                            publicly or privately into seeing sense.
10 protects freedom of expression, Article                            Spiritually, the Muslim Ummah is seen as
9 freedom of thought, conscience and reli-                            being infinite, but the powerful regimes of
gion, and Article 14 guarantees that in the                           the Muslim world almost without excep-
enjoyment of these rights any discrimina-                             tion not only themselves perpetrate op-
tion is itself prohibited. Occasionally, fierce                       pression, but choose to work hand in hand
campaigning successfully sounds an alarm:                             with the US and the UK in their ‘war on
the proposed extension from 28 to 42 days                             terror’. It is for us, as a nation, to take stock
of the time allowed for questioning those                             of ourselves. We are very far along a de-
suspected of involvement in terrorism is                              structive path, and if our government con-
being energetically fought. But there are                             tinues on that path, we will ultimately
less obvious erosions of parallel rights.                             have destroyed much of the moral and le-
   If this is indeed how it was for the Irish,                        gal fabric of the society that we claim to be
we should urgently try to understand how                              protecting. The choice and the responsibil-
significant change came about for them.                               ity are entirely ours.                        CT
Much current reminiscence ignores vital

                                                                             September 2008 |         | TheREADER 13

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