*Terror law an affront to justice - judge*

Control orders breach human rights

*Vikram Dodd and Carlene Bailey
Thursday April 13, 2006
The Guardian <http://www.guardian.co.uk/>*

A high court judge branded the government's system of control orders against
terrorism suspects "an affront to justice" yesterday and ruled that they
breached human rights laws.

The ruling by Mr Justice Sullivan came after a challenge to the first
control order issued against a British Muslim man, alleged by the security
services and the home secretary to have been planning to travel to Iraq to
fight UK and US forces.

At least 11 control orders have been issued, allowing the government to
restrict the liberty and movement of people it claims endanger public safety
because of their involvement in terrorism but who can not be tried in the
courts.

The judge said the anti-terrorism measures were "conspicuously unfair" and
dismissed supposed safeguards of suspects' rights as a "thin veneer of
legality". He had to say "loud and clear" that the laws were unfair
otherwise "the court would be failing in its duty."

But he said the laws passed had been drafted in a way that prevented the
courts overturning control orders.

In this case, the judge said, Charles Clarke had made his decision to issue
the order based on "one-sided information", but he was "unable to envisage
the circumstances" allowing the court to quash the home secretary's
decision. As a result, the judge said, he would have to leave the order in
place, even though he ruled that it contravened human rights law.

The ruling gives hope to two Muslim men who will go to the high court next
month to challenge control orders they are subject to. They are relying on
broadly similar arguments to the ones Mr Justice Sullivan found so
convincing.

The judgment led government critics to point out that twice in two years the
courts have found that anti-terrorism laws breached human rights. It also
came on the eve of new laws coming into effect designed to tackle the threat
of Islamist violence.

The Home Office rejected the court's ruling and vowed to appeal. "The ruling
will not limit the operation of the act," the Home Office said in a
statement. "We will not be revoking either the control order which was the
subject of this review, nor any of the other control orders currently in
force on the back of this judgement.

"Nor will the judgment prevent the secretary of state from making control
orders on suspected terrorists where he considers it necessary to do so in
the interests of national security in future."

The independent reviewer of the government's anti-terrorism laws, Lord
Carlile, said if the appeal was not successful ministers would have to
consider amending the law.

He told the BBC: "I hope we will not get another piece of rushed
legislation. I think this really does need mature reflection."

Muddassar Arani, solicitor for the Briton, who is of Arab heritage, said:
"This was the first British Muslim subject to a control order and he's being
treated as a second-class citizen.

"It is clear the home secretary is acting as the judge, jury and
prosecutor."

The man, a student originally from South Yorkshire, was stopped by
counter-terrorism officials on March 1 2005 trying fly to the Middle East
from Manchester airport, and then again the next day at Heathrow. He says he
was travelling to Syria for a holiday, but security services say he was
planning to fight in Iraq.

In September 2005 Charles Clarke signed a control order against him,
revoking his passport, banning him from buying plane tickets, and banning
him from airports and train terminals from where he could travel abroad.

The judge said the system was unfair because the man could not know the
evidence, which was so sensitive it had to be kept secret from the accused.

A special advocate could not properly represent him, because the secret
evidence could not be discussed with the client. The judge said: "If, as in
this case, the substantial part of the case against him is not disclosed to
the individual in question, it is difficult to see how the very essence of
the right [of access to the court] is not impaired."

Mr Justice Sullivan said the court cannot review whether the facts exist to
support the home secretary's suspicions and therefore "the overall procedure
is manifestly ineffective and unfair".

This meant the Briton's right to access to a court, guaranteed by the
European convention on human rights, was denied and the judge ruled the
control order system was "incompatible" with human rights law.

Mr Justice Sullivan concluded: "Controlees' rights ... are being determined
not by an independent court ... but by executive decision making
untrammelled by any prospect of effective judicial supervision." Closing the
case and addressing lawyers for the Muslim man, Mr Justice Sullivan made
clear his frustration at the control order system: "If you erect a structure
where people in the position of your client, to be frank, don't have a
chance, the secretary of state is always going to win."

The system of control orders replaced the "Belmarsh system", whereby foreign
nationals suspected of terrorist involvement could be detained without
charge or trial.

Lawyers for the Briton say counter-terrorism officials racially abused him
after he was first stopped travelling.

The government was granted leave to appeal, but last night they faced a
torrent of criticism from Conservatives, Liberal Democrats and civil
liberties campaigners.

*Shami Chakrabarti, director of Liberty, said: "Fundamental human rights,
such as the right to a fair trial, are what distinguish democrats from
terrorists and dictators*. The government's policy is in tatters - we hope
that this time they are listening."

The judiciary dealt a second blow to Mr Clarke yesterday by finding he was
wrong to try to refuse a British passport to an Australian national held in
Guantánamo Bay by the US. David Hicks qualifies for a British passport, but
the court of appeal rejected a challenge by the home secretary to an earlier
court decision that he must grant citizenship.

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