LawyerI G SocialistMagazine of the Haldane Society of Socialist Lawyers Number 44 July 2006 £2.50 FORE

Donald? IGN Dubya? CRIMI

NALSFRANCES WEBBER LIZ DAVIES RICHARD SULTANA & ALEX GASK GO ON THE HARVEY TAFADAR Haldane AGM: 3rd October BENEATH THE ‘RESPECT ON SHOOT FOREST TonyBenn SCARE STORIES AGENDA’ TO KILL GATE see back page HaldaneSocietyof SocialistLawyers PO Box 57055, London EC1P 1AF Contents Website: www.haldane.org Number 44 July2006 ISBN 09 54 3635 The Haldane Society was founded in 1930. It provides a forum for the discussion and News & comment ...... 4 analysis of law and the legal system, both Haldane at 75; Child deaths scandal; Asbo play; Tooks conference and more nationally and internationally, from a socialist perspective. It holds frequent public meetings Weak constitution? ...... 11 and conducts educational programmes. Young Legal Aid Lawyers’ regular column The Haldane Society is independent of any political party. Membership comprises Now stop their housing benefit...... 12 lawyers, academics, students and legal Liz Davies on the latest not-so-bright idea from Labour’s ‘Respect Agenda’ workers as well as trade union and labour movement affiliates. ‘Foreign Criminals’… ...... 14 President: Michael Mansfield QC Frances Webber on the disgraceful twists and turns in the Home Office Vice Presidents: Kader Asmal; ...... Louise Christian; Jack Gaster; Tess Gill; …or innocent citizens? 20 Helena Kennedy QC; Dr. Paul O’Higgins; Alex Gask on foreigners residing in the UK believed to pose a terrorist threat Michael Seifert; David Turner-Samuels; Professor Lord Wedderburn QC Chair: Richard Harvey ([email protected]) Vice-Chair: Liz Davies ([email protected]) Secretary: Christina Gordon ([email protected]) Socialist Lawyer Editor: Rebekah Wilson ([email protected]) Treasurer: Declan Owens ([email protected]) International Secretary: Bill Bowring ([email protected]) Membership Secretary: Marcus Joyce ([email protected]) Executive Committee: John Beckley; Adrian Berry; Claire Bostock; Tom Bradford; Hannah Brooks; Kevin Cobham; John Hobson; Ashok Kanani; Rekha Kodikara; Catrin Lewis; Monika Pirani; Alex Gask; Nick Toms Regional Contacts: I West Midlands: Brian Nott, Flat 3, 64 Prospect Road, Mosley, Birmingham

B13 9TD Picture: / reportdigital.co.uk Jess Hurd I Manchester: John Hobson ([email protected]) Shoot to kill...... 26 Sub-committees Richard Harvey dissects the police’s “shoot to kill” policy I Crime: Richard Harvey ([email protected]) ‘I thought I was dead’ ...... 32 I Employment: Daniel Blackburn Sultana Tafadar on the day 250 police officers raided a house in Forest Gate ([email protected]) ...... I International: Bill Bowring Book review 34 ([email protected]) Piers Mostyn reads Helen Duffy’s book on ‘War on Terror’ and international law I Immigration and Asylum: Adrian Berry Editor: Rebekah Wilson Assisted by: Hannah Rought-Brooks, Cate Briddick, ([email protected]) Declan Owens, Liz Davies & Richard Harvey I Student contact: Tom Bradford Design & Production: Smith+Bell Design ([email protected]) ([email protected]) Printed by: The Russell Press Many thanks to all our contributors and members who have helped with this issue

2 I Socialist Lawyer G July 2006 from the vice-chair

Still fighting

n 3rd May 2006, Haldane celebrated our 75th birth- Frances Webber exposes the myths behind the “foreign crimi- day with a glorious evening of comedy, song and nals” affair. The press and the government behaved as though for- reminiscences. We’re still standing and still fighting. eign “killers, rapists, paedophiles” were free to commit crimes with Sadly, it looks as though our next fight is to defend the impunity. It was based on inaccurate, and inflammatory, figures and Human Rights Act – attacked both by the Tories with racist language. It led to Charles Clarke’s downfall (no tears for him, their “British Bill of Rights” and by New Labour. but anyone committed to civil liberties should be wary of his suc- OSocialist lawyers also find ourselves in the unexpected position of cessor), to the smearing of all refugees and asylum-seekers as crim- defending the judiciary against government interference. inals, and to a crackdown on any foreign national (and some British The furore over “foreign criminals”, “soft judges”, “lenient sen- citizens) who had served a period of imprisonment, no matter how tences” and “the human rights culture” comes from both the tabloids long ago and how out of character. and the government – indeed it’s impossible to work out who is the As the CPS announces that no police officers will be prosecuted instigator and who the follower. Both have equally authoritarian for the killing of Jean Charles de Menezes, Richard Harvey looks at instincts. Both use language that encourages racism and xenopho- the history of police “shoot to kill” policy. The tactics now being used bia. Both pretend that they are merely following public opinion when on London streets and resulting in the deaths of Harry Stanley, really it is they who create an atmosphere of fear. Diarmiud O’Neill, de Menezes and the shooting of Mohammed In this issue, Alex Gask, Liberty’s Legal Officer, describes the Abdulkahar, were pioneered in Northern Ireland. The “right to life” unlawful treatment that some foreign nationals have been experi- enshrined in the European Convention is meaningless if police offi- encing since 2001. These men, not “foreign criminals” because they cers – from the bottom to the top – are not to be held accountable for have never been charged, let alone convicted, of any criminal their use of lethal force. offence, have been detained under regimes that, one after another, Every time the government doesn’t get its way in the Courts, it have been held to be incompatible with the European Convention. blames the “human rights culture”. Instead of accepting that it might First detention without trial, and now control orders. Not content with have behaved unlawfully, and taking the necessary steps to respect having been told that each of its “anti-terror” measures is unlawful, the the Human Rights Act that it was so proud of introducing back in 1998, government is now attempting to circumvent Chahal v UK, which pre- it attacks the Convention and the judges who interpret the Convention. vents deportation to a country where there may be a risk of torture. The Tories’ proposed “British Bill of Rights” contains no meaningful “Memorandums of understanding” have been agreed with Jordan, proposals, but plenty of attacks on Europe as somehow imposing Libya and Lebanon and are being negotiated with Algeria, Morocco, unreasonable burdens under the guise of human rights. New Labour Tunisia and elsewhere. The underlying theme of these men’s experi- is more coy, but Blair’s letter appointing John Reid made clear his ences, for some of them since autumn 2001, has been the illegality impatience with recent judicial decisions: “we will need to look again and repressive nature of each of the government’s actions. at whether primary legislation is needed to address the issue of Court rulings which over-rule the Government in a way that is inconsistent with other EU countries interpretation of the European Convention on Human Rights”. There can be little doubt that the immediate task for socialistl lawyers is to defend the Human Rights Act, unamended. Tony Benn, a politician who is committed to human rights, and spent his entire career defending the rights of the vulnerable and unpopular, is our guest speaker at our Annual General Meeting on 3rd October, speaking on “The Law, Society and the New World Order”. We will be deciding our political and campaigning priorities for the next year, and electing a new executive. We’re sorry that our chair for the last two years, Richard Harvey, has decided to stand down from the office. He has really made a difference in keeping the Haldane Society on the map. We’ve improved our administra- tion and fundraising base. Above all, he has been instrumental in directing our campaign to Close Down Guantanamo. We thank him for all his hard work and we’ll miss his presence as chair. All members of the Haldane Society, and anyone thinking of joining or just wanting to hear Tony Benn speak, are very welcome to attend the AGM. Do you have a view on what our main tasks for 2006 – 2007 should be? Submit a motion - any motions for debate can be sent to the Secretary at Haldane Society, PO Box 57055, London EC1P 1AF. Why don’t you stand for the executive and help us campaign? Put your name forward in advance, or just turn up and volunteer on the night. We’ll be delighted to see you. G Liz Davies, vice-chair, Haldane Society

[email protected] Picture: / reportdigital.co.uk Jess Hurd

Socialist Lawyer G July 2006 I 3 News&Comment

which we raffled, notably Mike Mansfield’s gift of brass miners’ At 75, still standing lamps and door knockers, given to him by Arthur Scargill and books (legal and non-legal) signed by their authors. up for what’s right Mike Mansfield and Richard Harvey kept the whole evening he Haldane Society used the rhetoric of the women’s rattling along and numerous celebrated our 75th liberation movement and rights volunteers made sure that birthday on 3rd May for rape victims to introduce everything went smoothly. Twith a party at Conway punitive criminal justice laws, By far the best thing about Hall in central London. It was under the mantra of “what the whole evening was the great to see old friends and about the victims?” number of supporters, members comrades, and new members just Phil Shiner and Imran Khan and non-members, who turned joining the legal profession and both expressed their out to give us their money, meet looking for some socialist appreciation to the Haldane old friends and comrades, and support. Society for support that we have celebrate the fact that the Non-lawyers Jeremy Hardy, provided to peace campaigns Birthday bash was a hit Haldane Society has reached the Ian Saville and Leon Rosselson and anti-racism campaigns. grand old age of 75. provided the official Imran reminded us that the legal Haldane Society should not We’re not complacent. We get entertainment. Jeremy’s stand-up profession is now much more accept members of the by on shoe-string finances, and incorporated Israel-Palestine, multi-racial than it was when he Communist Party. There was a the hard work of the executive private schools and voting first joined and there was a long, bitter, very personal debate. who take out time from practice Labour. Ian Saville showed us sombre moment as he talked The motion was narrowly or studying to keep us going. how magic can be Marxist. Leon about his clients still in jail five defeated and the losers left, to But, we can continue flying the Rosselson inspired us with “The years after the Bradford riots. found the Society of Labour flag for socialist lawyers and, World Turned Upside Down” Louise Christian let slip a few Lawyers. Gerald Gardiner later more importantly, for the clients and then led us all in a chorus of personal secrets as she told us became the Lord Chancellor. and causes represented by “The Red Flag” (at the specific about representing miners in the The winners were not materially socialist lawyers, because so insistence of the chair). They all magistrates courts of South rewarded, but may have slept many lawyers want us to keep made us smile, laugh and Yorkshire and Nottingham in with a clearer conscience. going and provide us with applaud. 1984-85. We received some generous support. The best buzz, though, was Shami Chakrabarti revealed a extraordinary generous gifts, Liz Davies the warmth and affection for the talent for stand-up and warned Haldane Society expressed by that, as New Labour is whipping our lawyer speakers, and by the up racism over ‘foreign audience. Helena Kennedy criminals’, what would it be like Britons killed by Israeli army reminded us of three significant if they decided to turn on times for the Society: ‘socialist lawyers’? We are n April an inquest jury found Tom Hurndall, a British peace The 1930s, when the Society prepared for the challenge of that the shooting dead of activist, had been unlawfully was founded in the midst of being public enemy number one. British cameraman James killed by an Israeli soldier and de- racism, war, attacks on civil Perhaps the star turn was IMiller by an Israeli soldier in liberately shot “with the intention liberties; the 1960s, when the Michael Seifert who told us of Gaza was murder, but the soldier of killing him”. Sergeant Taysir Society pioneered lawyers’ the crunch-point in the Haldane responsible is still free. Israel said a Hayb was convicted of involvement in the struggles Society’s history, told to him by two-year investigation had been manslaughter by an Israeli court against racism and for women’s his father. In the 1950s, at the carried out, but results were “in- and jailed for eight years. He said liberation; and now, a time again height of McCarthy-ite witch- conclusive and could not provide that his commanders had issued of racism, war and a New hunting, Gerald Gardiner a basis for proceeding under crimi- orders allowing him to shoot even Labour government that has proposed a motion that the nal law”. Another jury found that unarmed civilians. April May 5: Amnesty International 8: Government rebuffs 18: Research by the 4: Trade unions announce 8: Government wins its appeal calls for an independent campaign to give MPs a right to Institute fo Public Policy campaign for a change in the law against a high court ruling that inquiry into all aspects of vote on Britain going to war, and Research shows that the after a law lord’s ruling drastically allowed anti-war protester Brian British involvement in will not support either a new law poor and unemployed cut compensation for the Haw to continue his vigil, despite secret CIA “extraordinary nor a new convention giving are twice as likely to be housands of workers who die new legislation aimed at controlling rendition” flights. More parliament war-making powers. victims of violent crime from lung cancer mesothelioma demonstrations around parliament. than 200 CIA flights have Lord Falconer stated that it and nearly three times after exposure to asbestos dust. Brian said: “they’ve bent the law to passed through British would put “an unwise and more likely to suffer About 1,900 people die in the UK get rid of me”. The police used 78 airports. artificial inflexibility” on troops emotional damage as a each year and the total is officers to end the protest, an and government. result of being attacked. predicted to reach 160,000. operation costing £27,000.

4 Socialist Lawyer July 2006 News&Comment

Twenty-thousand people BNP loses in demonstrated in London’s Trafalgar Square on 21st May against the Israeli occupation of Palestine. the courts Organised by the Palestine Solidarity Campaign, Association of Palestinian recent court ruling Community and the Palestinian (Roberts & Roberts v Return Centre, it was supported by Gable & Searchlight, dozens of organisations from peace A12th May 2006) groups to trade unions. A replica of upheld the “Reynolds Defence”, the Israeli wall and a large banner so named after former Taoiseach with the words “Stop Starving Palestinians, End Israel’s Occupation Albert Reynolds and his libel and Recognise Palestinian action against the Sunday Times. Democracy” acted as a back drop In an article in Searchlight in for the speakers who addressed the October 2003, Gerry Gable (ex- demonstrators. Anti-Zionist Israelis, editor and a stalwart anti-fascist in large fur hats, took up a prominent position near the speakers while campaigner) reported allegations young people waving Palestinian being made between opposing flags stood on the railings in factions in the British National Youngsters on the march through London against Israeli occupation Trafalgar Square. Party, and two BNP members sued for defamation. legals who can be paid at a The defendants pleaded both ‘We demand safeguards in cheaper rate and who will not justification and qualified privi- demand additional resources re- lege, arguing that Searchlight quired to meet training criteria. was under a duty to publish alle- scheme’ say young lawyers This will almost certainly effect gations and counter allegations small firms in particular – if they and that, irrespective of their he Young Legal Aid quality of services for clients but survive at all under the scheme. truth, these allegations were a Lawyers group (YLAL) fear that the Preferred Supplier “Bigger is not always better. matter of public interest. Gable has called for firm mea- scheme will be meaningless unless Young lawyers benefit from said that he was viewing the dis- Tsures to ensure a place firm steps are taken to ensure it is working in small niche firms pute as an outsider, and that he for new lawyers under the pre- possible and desirable for the alongside experienced practition- had not adopted, endorsed or ferred supplier scheme in re- next generation of lawyers to ers, says Trainee Solicitor Ashley embellished any of the allega- sponse to the Legal Services commit to legal aid work. Dias-Patel. tions in his article. He said he Commission’s Consultation YLAL has called for an inde- “Equally, many smaller firms had no reason to believe either Paper: ‘Quality Relationships pendent assessment of the are black and ethnic minority side and he believed it would be Delivering Quality Outcomes’. impact of the scheme on new firms, where clients often benefit clear to his readers that he was “Without any safeguards or lawyers entering legal aid and from practitioners’ understand- not in a position to determine plans to assess the impact of the consideration of whether a com- ing of their cultural background. who was telling the truth. scheme on the next generation of mitment to training could be a Losing the benefits these smaller Mr Justice Eady upheld the legal aid lawyers or incentives nonmandatory criteria for Pre- firms offer for the sake of con- defence, finding that “there is a and assistance for providers to ferred Supplier status with some tracting with fewer larger firms duty (social or moral) upon po- commit to training young level of assistance from the LSC would be a false economy litical commentators generally, to lawyers, it will be impossible to to enable small firms to achieve indeed”. YLAL believes that cover the goings on in political provide quality outcomes for this. Without such incentives, steps must be taken to ensure parties, including disputes, fully clients in the future,” said Laura firms will understandably seek to that the implementation of the and impartially. There is a corre- Janes, the Chair of YLAL. The provide services at the lowest scheme does not result in the ir- sponding legitimate interest in group welcomes the LSC’s pro- possible expense, in line with the reversible loss of high quality the public, and especially those posals to reduce bureaucracy, Commission’s emphasis on fi- legal services. who have a vote, to have such engage in genuine partnerships nancial stability and “value for Jenny White information available”. with providers and to raise the money”. Firms will engage para- www.younglegalaidlawyers.org

12: The House 18: The Law Society, the 25: Attorney General Lord Goldsmith 30: Lord Phillips, the Lord 31: Recommendations from the of Lords votes professional body for told his officials he had changed his Chief Justice, makes wide Law Commission are unveiled that to block a bill solicitors in England and mind over the legality of the invasion of criticisms of the criminal will give unmarried couples the right which would Wales, is facing an Iraq on 13th March 2003, it’s revealed. justice system and warns to the same financial claims after a permit assisted unprecedented £250,000 Freedom of Information Commissioner prison overcrowding is break-up as those who have gone suicide for the fine from the legal complaints allows government to withold all its proving ‘absolutely fatal” for through a marriage or civil terminally ill. commissioner for failing to documents apart from already-leaked efforts to tackle the partnership. A draft bill has been bring the system for handling text of Goldsmith’s original advice when treatment of inmates. promised by summer 2007. complaints against solicitors he said it would be “safer” to obtain a up to scratch. second resolution from the UN.

Socialist Lawyer July 2006 5 News&Comment

So what about Guantánamo?

he United States issued ticle 3 prohibits acts such as a statement on 12th “outrages upon personal dignity, July conceding that the in particular, humiliating and de- TGeneva Conventions grading treatment.” However, apply to the “War on Terror”. So the Pentagon continues to argue what about the rights of prison- that the Defence Department is ers at Guantánamo Bay and already largely in compliance other US military facilities? with Common Article 3. But The White House issued the human rights lawyer Clive statement following a Pentagon Stafford Smith, recognising that order mandating that all Defence “humiliating and degrading Department practices and proce- treatment” has been a hallmark dures comply with Common Ar- of US military prisons in recent ticle 3 of the Conventions. Both years, disputes that assessment. the statement and the Pentagon “It is an important and posi- order cited the recent US tive development that the Bush Supreme Court decision in administration, which for years Hamdan v. Rumsfeld, in which has argued that the Geneva Con- the Court, in striking down the ventions do not apply to the “War military commissions created by on Terror”, has reversed its posi- the Bush Administration for tion in response to the Supreme Guantánamo prisoners, held that Court’s decision in Hamdan,” Street art spotted near Chapel Street market in Islington. Picture: Paul Heron Common Article 3 applies to the said Clive, Legal Director of Re- conflict with Al Qaeda. prieve, which represents 36 Guan- up by the Administration.” objects to the Administration’s President Bush issued an exec- tánamo prisoners. “But by In the Pentagon’s memo, efforts to reinvent the law, and utive order back on 7th February insisting that with the exception Deputy Defence Secretary say they will press for proper 2002, shortly after US-led forces of the military commissions at Gordon England commands the trials for anyone who may have ousted the Taliban government in issue in Hamdan the Defence De- following: “You will ensure that actually committed a crime; the Afghanistan, stating in part that partment is already in full compli- all [Defence Department] person- rest should be returned home. the Geneva Conventions do not ance with Common Article 3, the nel adhere to these standards. In Three prisoners in Guantá- apply to Al Qaeda and Taliban Administration already provokes this regard, I request that you namo Bay committed suicide on detainees. Now the White House doubt that this conversion to due promptly review all relevant di- Friday 9th June, once again shin- states that it would formally process is sincere.” rectives, regulations, policies, ing a spotlight on the horrors of withdraw that component of the “Indeed, Article 3 specifically practices, and procedures under the Cuba-based facility. Using executive order, abandoning its requires that a fully competent your purview to ensure that they nooses made from bed-sheets and long-running argument that the court judge prisoners, and the comply with the standards of clothing, the three men – two nature of the “War on Terror” Conventions elsewhere require Common Article 3.” The White Saudis, Mana Shaman Allabardi renders the Geneva Conventions that prisoners be given the same House and Congress have begun Al Otaibi (Al Tabi) and Yasser obsolete. rights as US soldiers – in other to debate new procedures Talal Al Zahrani, and Yemeni Ali In addition to the judicial words, that the Uniform Code of through which to prosecute the Abdullah Ahmed – hanged them- guarantees noted by the Supreme Military Justice be applied, not ten Guantánamo prisoners selves in their cells. Colleen Court in Hamdan, Common Ar- some novel legal system dreamed charged with crimes. Reprieve Graffy, a senior official in the June 6: Commons public 7: Inquiry names 14 countries 17: Figures emerge 19: The Government’s own terror 20: John Reid says he is accounts committee report which are involved in CIA’s showing that the numbr of law watchdog warns that the police considering importing a recommends that programme of detaining terrorist prisoners being jailed for life risk damaging their credibility. Lord version of ‘Megan’s Law’ thousands of remand suspects for transfer to countries has nearly doubled in the Carlile wants a reduction in the use which would allow the public prisoners, inmates with where they may be tortured. UK last 10 years and sentences of section 44 ‘stop and search access to a register of known mental health problems and is accused of not only offering served are now more than powers and added there was “little paedophiles. He’s sending children should be released logistical support to the CIA but 50% longer than they were or no evidence” that they had the his junior minister, Gerry from prisons to relieve the also providing information that when firste introduced, potential to prevent an act of Sutcliffe, to investigate how it growing overcrowding in was used during the torture of a despite claims that judges terrorism compared with ordinary has worked in the US since England and Wales. terrorism suspect in Morocco. are being too lenient. police powers. implementation in 1997.

6 Socialist Lawyer July 2006 News&Comment

Subsequent to being moved, Pitman received a stay of execu- Fatal judgment tion pending the outcome of his appeal to the JCPC in London, thanks to the sterling efforts of attorneys at Trinity Chambers in for Trinidadian? Port of Spain. The effect of this rollercoaster ester Pitman’s mother, a his promise earlier this week to ride of impending death and slight and soft-spoken resume hanging as part of Gov- sudden, if temporary, reprieve woman, never misses a ernment’s war against crime.” has had untold effects on Lester Lvisit to her death row- After the first warrant is and his mother. Pitman’s last inmate son, and never gives up read, the inmate is transferred to chance now lies with the JCPC, hope for him. She arrives at State an uninhabited section of the where his fate is due to be de- Prison, 103A Frederick Street, prison and is placed in a cell op- cided later this month, July Port of Spain, Trinidad & posite the execution chamber; 2006. If the appeal is dismissed, Tobago for a family visit and is Lester recalls being moved there he will undoubtedly be the first admitted, as a familiar face, by in June 2005: “After the war- person to be hanged in Trinidad gruff guards. She sits quietly in rant was read, five or six officers and Tobago since 2000. stifling heat awaiting her son in handcuffed me, took my belong- Executions are carried out in the family and friends waiting ings out of my cell and took me the utmost secrecy and no area, about 20 metres away from to F2 wing, where the hanging member of the public is allowed the execution chamber. gallows are. They told me to to witness a hanging and those The executions are carried take off my blue shirt and gave involved cannot speak publicly out on the foot of death war- me a cream of it afterwards. Friends and rel- rants and there are two read to uniform atives of the executed are in- each inmate; the first a few days formed by a notice, signed by before the execution, and the the Registrar and attached to second is read minutes before the front gate of the State Prison execution. Last year, Lester had after the fact. When the patholo- a ‘first’ warrant read to him, gist is satisfied the inmate is state department, told the BBC despite an ongoing appeal at the dead, the body is sent to Golden that the suicides were a “good Judicial Committee of Privy Grove Prison, about an hour’s PR move to draw attention.” Council (JCPC): drive outside of Port of Spain. Britain’s Attorney-General “At 3.55 pm yesterday Here prison inmates dig an un- Big news in Trinidad and Tobago Lord Goldsmith said on 10th [Wednesday, 8th June 2005], the marked grave at the Happy May 2006: “…the existence of death warrant was read to con- to put on. They told me that Valley Cemetery. The family is Guantanamo Bay remains unac- demned killer Lester Pitman at these were my sleeping clothes, not allowed to attend the burial, ceptable. It is time, in my view, the Port-of-Spain Prison by Reg- but a prisoner told me they hang conducted without ceremony. that it should close. Not only istrar of the Supreme Court, you in a cream suit. After I put In 2006 we could be facing a would it… be right to close Evelyn Ann Petersen. The death on the cream suit, an officer situation where the British-tax Guantanamo as a matter of prin- warrant gave instruction that took my blood pressure and funded JCPC, by their direct ac- ciple, I believe it would also help Pitman be hanged by the neck weighed me. Then another offi- tions, allows a man in a foreign to remove what has become a until dead on Monday [13th cer pushed my back against the territory to be brutally hanged symbol to many – right or June] at 6am. Pitman was con- wall and measured my height, without his mother’s knowledge wrong- of injustice. The historic victed for murder on 11th De- which was marked on the wall and she will not be allowed to tradition of the United States as a cember, 2001. The reading of with chalk. I understood that attend his funeral. Mrs Pitman re- beacon of freedom, liberty and of the death warrant to Pitman was they needed to take my measure- mains calmly hopeful, but time justice deserves the removal of a swift move by Attorney Gen- ments to get the gallows right may be running out for her son. this symbol.” eral John Jeremie, to keep good for hanging me.” Thomas MacManus

26: David Cameron 27: Three former NatWest 28: Charities bill being 28: John Reid announces that the post 29: Russian authorities says “a modern British bankers, wanted in the United debated in parliament removes of Chief Inspector of Prisons will be have refused to grant bill of rights needs to States in connection with the the presumption of public abolished in March 2008. Anne Owens, legal status to 40 foreign define the core values Enron scandal, face extradition benefit from all types of the current chief inspector, is non-governmental which give us our identity after their last possible legal charities – those with an annual concerned the merger of five criminal organisations which as a free nation” and be challenge to the European income of more than £5,000 justice inspectorates (including the submitted paperwork to “a clear articulation of Court of Human Rights failed. must register with the regulator, police, the courts, prison and probation the justice ministry under citizen’s rights that British The court decided yesterday the Charity Commission, which services) would mean the ”sharp focus stringent new legislation people can use in British not to grant an interim stay of must, in turn, apply a test of and direct voice of prisons’ inspection that requires them to re- courts”. extradition. public benefit. will be lost or muffled”. register by 18th October.

Socialist Lawyer July 2006 7 News&Comment

Blair tries to save face in ID card crisis eaked emails from the Home Office at the be- ginning of July admitted Lthat it could no longer give a date for when the first na- tional identity cards would be MPs and peers hear powerful testimony from the families of children who have died in custody issued. Putting contracts out for tender was generally expected to start in March, when the legisla- tion reached the statute book. Child deaths scandal: why does But tendering has now been de- layed until at least the end of the year, with no date set. The the government refuse an inquiry? timetable for the cards, with the first due to be issued in 2008-09, NQUEST held a parliamen- of child deaths in custody and which have brought the awful is in the hands of Home Secre- tary briefing on child deaths the fact that despite the 29 chil- toll of death to 29, have not tary John Reid and his funda- in custody at the House of dren who have died in penal cus- been sufficiently shocking to fi- mental review of the department. ICommons on 4th July. A tody since 1990, there has never nally force through a public in- “We have not abandoned the crowded meeting in Parliament been a public inquiry into any of quiry encompassing all the ID card project, nor have we put heard MPs, peers and bereaved the deaths. Investigations and in- deaths. Instead their families too it on hold,” said a Home Office families call for a public inquiry quests into the death are subject face many years of distressing spokesperson. The leaks had re- into the death of 16 year old to appalling delay and limited in delays before any kind of public vealed that the ID cards plan Joseph Scholes, who died in scope and therefore cannot ex- scrutiny of the circumstances was in such crisis that Tony Blair March 2002 in Stoke Heath amine the wider policy issues which led to the loss of their ordered a dramatically trimmed- young offender institution. surrounding the deaths. children. I think you will all down version to be prepared as a The briefing was hosted by Yvonne Scholes told the meet- agree that to delay justice is to “face-saving exercise”. the Scholes family’s constituency ing: “Since 2002, while Home deny justice.” A senior Treasury official told MP, Chris Ruane and chaired by Office ministers have been pre- Jean Elphick, mother of Sam his Home Office colleague last former Chief Inspector of Pris- occupied with ensuring that they Elphick who died in Hindley month: “Even if everything went ons, Lord Ramsbotham. It was evade accountability for Joseph’s YOI in September 2005, added: perfectly (which it will not) it is addressed by Joseph’s mother death, a further five imprisoned “We are going to fight this all very debatable (given perfor- Yvonne, myself as co-director of children have lost their lives. the way and we will get a public mance of government ICT pro- INQUEST, Imtiaz Khan (Uncle Home Office ministers and their inquiry at any cost. It’s not going jects) whether whatever the of Zahid Mubarek) and cohorts demonstrate callous in- to bring him back, it’s not going national identity register turns Baroness Stern. The briefing also difference to the grief of be- to bring any of them back. But out to be (and that is a worry in heard powerful testimony from reaved families and force them we want and we need peace of itself) can be procured, delivered, the families of other children to suffer years of agonising psy- mind and we need closure. We tested and rolled out in just over who have died in custody since chological torture in the legal need to know that it is not going two years, and whether the re- Joseph, who were speaking pub- arena. I am appalled that the to happen again to somebody sources exist within government lically for the first time. tragic deaths of Ian Powell, else’s son. That’s all we are and industry to run two overlap- The meeting was a painful re- Gareth Myatt, Adam Rickwood, asking for.” ping procurements.” minder of the continuing scandal Gareth Price and Sam Elphick, Zahid Mubarek’s uncle Imtiaz July 3: Ministry of Defence accused 3: John Reid plans for 5: Irish Government proposes 6: John Reid decides a Briton 6: A decision in Istanbul's of perpetuating discrimination tougher official secrecy new privacy legislation, in accused of hacking into the seventh high criminal court by withholding compensation to laws to prevent whistle- conjunction with proposals to Pentagon's computers is to be reopens the prosecution of scores of people discharged blowing. He wants to stop introduce a statutory press extradited to the US. Gary Turkish novelist Elif Shafak from the forces for being gay security, intelligence council and reforms to the 1961 McKinnon, from north London, on charges of "insulting and lesbian when their sexuality agency and Whitehall libel and slander laws. Litigants stands accused of what Turkishness". She faces a became known, are still awaiting officials with access to will have to submit a sworn American prosecutors call the maximum jail term of three payment, even though the sensitive information from affidavit and verifiable evidence ‘biggest military hack of all time’, years if convicted. government accepted their claiming they acted in the to support it to demonstrate the and potentially faces a sentence dismissals were illegal. public interest. offending article is not true. of 70 years if found guilty.

8 Socialist Lawyer July 2006 News&Comment

tects everyone’s right to life and everyone benefits. This could be anyone’s child. A lot of people get sent to prison who clearly and manifestly should not be there. Sending them there is not only a lack of normal human empathy, but in some cases it is an act of gross cruelty.” In his concluding remarks, Lord Ramsbotham said: “I have noticed that the Prime Minister wants to rebalance the scales of justice in favour of the victims. If he really means this, what better Amin spoke in support of the illustration could he give than struggle for a public inquiry, announcing that he is going to drawing from his family’s own allow a public inquiry and press experience: “I’ve been in contact for it as soon as possible?” with a number of victims’ fami- Early Day Motion 2410 was Amelia Cuffy-Nash in ASBO: The Show: “ a comedy, rich and provocative” lies whose hopes are also ex- tabled by Chris Ruane MP on pressed in [the Mubarek 20th June, renewing the call for Inquiry]. With such families we a public inquiry, and has already A grassroots response have a common aim: that is, the received 60 signatories. It fol- culpability of the prison service lowed an earlier EDM that re- ‘ASBO: The Show’, play by ing twins and the landlord and in the tragic deaths of our loved ceived 112 signatories. The Moston Active Drama (MaD) loan shark are knocking at the ones and the difficulty faced in NSPCC has joined the growing door. Homelessness seems in- finding out the tragic facts. Our list of individuals and organisa- SBO: The Show is a evitable and things are looking legal challenge in the House of tions supporting the campaign. comedy about urban bleak. The drama unfolds chaot- Lords gave us the victory which The closed word of penal cus- survival, performed by ically but the apparently dys- resulted in a public inquiry. This tody means that it is absolutely Aover twenty young functional community eventually highlights the need for victim- vital it is open to independent in- people from North Manchester. unites against the proposed gen- lead campaigning.” spection and investigation and Set in the city’s Moston district, it trification of the local area. Baroness Vivien Stern, held to account when human quickly grabs the audience by the Rich in local humour and member of the Parliamentary rights abuses occur. What greater scruff of the neck. Enmeshed in provocative in its portrayal of Joint Committee on Human abuse of human rights can there the quick humour, music and urban youth culture, ASBO: The Rights, said: “This is a human be than a child dying in custody? fantastic photographic backdrops Show is a magnificent grassroots rights issue because everyone has Investigations and inquests into are serious struggles about evic- response to some immediate and the right to life and when the deaths in custody are subject to tion, debt, unemployment and hard urban realities. state takes away liberty it has a appalling delay, are limited in for the hope of respect and love. As Manchester City Council’s duty to protect life. What you remit and cannot deal with the Central to the plot is Calvin newly knighted leader prepares have all said today makes it very thematic issues that these deaths Longbottom, who becomes to welcome the Labour Party clear how grossly the state has raise. The case for a public in- Moston’s 1,000th recipient of an conference in September, this failed. It is also a duty whenever quiry is as urgent and pressing as Anti-Social Behaviour Order and, play is a sharp reminder of com- there is a death in the care of the it was when the coroner at the as a consequence, receives a munities not far from the town state that there should be a inquest recommended such an cheque for £100 from the City hall whose inhabitants include proper and prompt investigation. inquiry at the conclusion of the Council. His mother then loses “the few” for whom the Prime Those who attack the human inquest into Joseph Scholes. her job when the local bakery is Minister has always made clear rights framework of this country Deborah Coles taken over by an unscrupulous he is not interested in governing. should bear in mind that it pro- www.inquest.org.uk new owner. His sister is expect- John Hobson

7: ‘War on terror’? Two-week 9: More than two dozen 10: ‘Hug-a-hoody’ David 10: Britain faces a ‘severe’ 10: Attorney-General United Nations conference on independent and opposition Cameron: “We have to terrorist threat - meaning that an Goldsmith refuses to allow gun control collapses after US newspapers in Egypt show more love to those attack is ‘highly likely’, and will appeal over a five-year delegates veto further meetings suspend publication in who stay within the law remain so for a long time to minimum term imposed on and block discussion of protest at a law that would while still ensuring ‘painful come. John Reid unveils a new a paedophile. John Reid domestic gun laws. Cuba, Iran, put journalists in prison if consequences’ for those public system of five different had played to the press by India, Pakistan and Russia also convicted of libelling who don’t.” threat levels, ranging from calling the sentence ‘unduly vote down measures to prevent Government officials, 300 ‘normal’ to ‘critical’ will be lenient’. Tough on the the export of arms to countries journalists demonstrated introduced next month. causes indeed... that abuse human rights. outside parliament.

Socialist Lawyer July 2006 9 News&Comment

Tell Tony it’s time to go!

n the week that Tony Blair said that Muslims have “a completely false sense of Igrievance against the West” a police report confirmed what the majority of people in this country have always known – that the bombings last 7th July were a direct consequence of the carnage inflicted on Muslim communities in Iraq and Afghanistan. A private briefing document, compiled by anti-terrorist spe- cialists and sent to senior Scot- Michael Mansfield addresses the first panel at the Tooks conference; and a speaker from the floor at the second panel land Yard officers, marked ‘restricted’, says the conflict in attitudes to crime and punish- Iraq has had a “huge impact” Timely debate as ‘old ment of ‘we want people to go to and a headline introducing one prison but we don’t want them section says: “Foreign policy and back’. Dangerous rhetoric from Iraq; Iraq HAS [its emphasis] certainties no longer exist’ the media and politicians which had a huge impact.” leads to a disingenuous debate. By the day, the statistics ooks Court Chambers’ dict after’ will become more of a A proper debate on imprison- coming out of Iraq become more Annual Conference, reality in this country. ment has to be clear and calm. horrific. Even the Pentagon now held on 24th June, Michael Mansfield QC called Geoffrey Bindman gave an in- admits that 50,000 have lost Tcould not have been for a proper discourse rather formed analysis of the impact of their lives since March 2003, a more timely – the day after Tony than more legislation. Imran the Human Rights Act at a time figure which must be a massive Blair called for an increase in Khan gave a chilling account of when it is under threat. He re- underestimate, given that Bagh- summary justice. The conference the impact of terrorist legislation called that when the Human dad’s central morgue alone re- was titled ‘State Powers, Individ- that is not clearly defined and Rights Act was created it was ceived 30,204 bodies in the same ual Lives: a Legal Perspective’, can result in criminalisation of aimed at assisting victims as period, most of whom died vio- and all of the speakers provided banal acts such as carrying an much as defendants. He dis- lent deaths. welcome antidotes to the in- A-Z guide through London. pelled, easily, the numerous Tony Blair wants to hang on creasingly reactionary headlines Erwin James provided a myths of its impact to date and in number ten as long as he can. in relation to the justice system. salient reminder of life for that reminded us of the importance of We need to tell him to go, now. Adrian Fulford QC opened rapidly increasing number of the Human Rights Act for all of Demonstrate: TIME TO GO the first session, observing that, people serving prison sentences us, and that we must defend it. ‘Troops Out of Iraq, No in the thirty years he had been in the UK. He observed that, The conference highlighted Attack on Iran, No Trident involved in law, the issues dis- “There are lots of broken, de- how exercises in spin by the Replacement’ cussed today had never been feated people in prison, the most Government divert from the real Saturday 23rd September more important. He observed vulnerable become the most dan- issues, preventing an informed Assemble 1pm, Albert Square, that old certainties no longer gerous”. He talked of the dan- debate. Manchester. Organised by Stop exist and that ‘sentence first, ver- gerous times we live in with our Rebekah Wilson the War and CND. July 11: Government 12: A ruling by five Law Lords 12: Cash for peerages 12: Thousands of self- 13: So-called NatWest Three threatens to sue former opens the way for many scandal moves perilously employed fathers will have to appear before judge at hearing in Uzbekistan Ambassador people who are bullied at work close to Tony Blair's door: pay more in child support Houston. David Bermingham, Craig Murray for breach to sue their employers for the Metropolitan Police after a divorced mother, Giles Darby and Gary Mulgrew are of copyright if he does damages, using legislation nicked Lord Levy, Blair's Helen Smith, won a House of former NatWest executives not remove from his intended to curb stalkers, the tennis partner, and spends Lords ruling over whether accused of embezzling $7.3m website intelligence Protection from Harassment all day interviewing him at a capital allowances for assets (£4m) but are white and not material that was Act 1997, as long as the north London police station bought for the business could terrorists so their one night in jail censored out of his newly bullying was closely connected before releasing him on bail be deducted from payments before they were granted bail was published memoirs. with the duties of the job. without charge. for child support. actually spent in a hotel.

10 Socialist Lawyer July 2006 YoungLegal Aid Lawyers

fied problems will go unspotted. The future is bleak. Govern- A weak constitution for the next ment will be able to pass what- ever laws it wishes as we slide into elective dictatorship and its generation of legal aid lawyers citizens will be unable to effec- tively challenge bad law through the incapacitated legal process. oung Legal Aid vague in detail and provides for Why? In recent years, we Lawyers (YLAL) fear the profession to be controlled have seen bad decisions and bad that we are in the midst by the Minister for Constitu- laws challenged time and again: Yof a constitutional tional Affairs and a board ap- the enforced destitution of crisis. Parliament and the democ- pointed by the Minister. asylum seekers and the detention ratic process are being sold for a The third is the impending without trial of suspects declared peppercorn rent. “reforms” to legal aid. By the illegal by the Lords to name but Loans for peerages and iden- time this edition is published, a few. It’s all rather troublesome tity cards are powerful symbols www.younglegalaidlawyers.org Lord Carter will have produced for New Labour. What better of a worrying trend when consid- his report. If it is anything like way to deal with it than to ered along side the triple blow mons. The Bill is currently in the “The Fairer Deal”, government’s bypass the democratic process so that threatens to smash the fabric Lords and appears to be creeping overarching vision for legal aid, that it can introduce any law it of our constitution over the through the system with assur- it will deny access to legal aid likes and incapacitate the largest coming months. Deeply uninspir- ances from Government that it for all but the most destitute. El- thorn in its side, the law. And the ing for young legal aid lawyers will only be available to cut “red igibility rates for civil work will climate is perfect: the govern- starting out with the aim of fight- tape”. But government assur- be cut further – and there will be ment knows that its electorate is ing injustice within an increas- ances have become less reassur- an increase in the use of loans. unlikely to be sufficiently moti- ingly fragile framework. ing of late: just a few weeks after Criminal legal aid solicitors vated and engaged to prevent the Over the past few months, their assurances on this Bill, our (whose rates have been frozen grossly undervalued sale of our YLAL members have had to Prime Minister initiated a debate for the best part of a decade constitution for a peppercorn. divert their energy to consider on the need to reform the while the cost of running a prac- As lawyers, we are trained and respond to an array of pro- Human Rights Act! tice has risen by 60% in the fighters. Yet when it comes to posals for the legal system that, The second and third blows same period) will have to work preserving our own battle taken together, paint a deeply threaten the principle of the sepa- at punitive fixed rates on yearly ground we are often too busy worrying picture. ration of the powers and the effi- contracts. There will be plenty with our case work to see the The first blow came in the cacy of the judiciary to check, of telephone advice provided by woods for the trees – or too busy form of the Legislative and Reg- and balance, the power of the non-qualified professionals, but and tired to stomach the fight. ulatory Reform Bill which legislature. YLAL have been for those with complex prob- But YLAL are determined to threatened parliamentary su- monitoring and responding to lems, it’s going to be NHS direct fight the changes with strong premacy by providing Ministers both proposals. all over again: five hours later, (but possibly empty!) stomachs with the power to make new pri- The second blow is the Legal clients will be told they need to to prevent a weak constitution mary legislation, including the Services Bill on the future of go and see a lawyer (if they can for the future. introduction of criminal offences legal services. The Bill proposes find one); or worse, easily recti- Laura Janes, Chair YLAL of up to two years imprison- to diminish the independence of ment, without the usual recourse the legal profession, allowing for Young Legal Aid Lawyers (YLAL) are very pleased to congratulate Laura to Parliament. Shockingly, only commercial ownership of legal Janes on being named Young Legal Aid Solicitor of the Year. The awards, chaired by Cherie Booth QC, recognise excellence from lawyers working in about half the House even both- practice and stripping the profes- publicly funded fields of law. Laura was noted for her initiative in founding ered to turn up to vote itself out sion of its self-regulatory func- YLAL to support young lawyers in publicly funded work and campaign against of the parliamentary process at tions. The new regulatory legal aid cuts. Laura's award is a recognition of her professional achievements the second reading in the Com- structure is ill-conceived and and the successes of YLAL and our efforts in fighting for access to justice. advertisements

for the Haldane Society of Socialist Lawyers SOLICITOR designers £29,200 & 8% pension & generous package To provide legal advice to young adults (18 – 21 year olds) in the prison and penal system, take cases and judicial reviews in relation to their treatment and conditions as prisoners and +bell care leavers, work as part of Howard League for smith Penal Reform legal team and campaigning team. email: [email protected] or call: 07968 588729 Job description and application pack at journals www.howardleague.org or email magazines newspapers [email protected] flyers posters book covers newsletters Provisional closing date 15th September – please refer to stationery books annual reports cds web site for confirmation of closing date.

Socialist Lawyer July 2006 11 BLAIR’S ‘RESPECT’ AGENDA ‘LEGISLATE TO P FAIL TO PROVID

One of the latest ‘big ideas’ from Tony Blair’s ‘Respect Agenda’ is that “anti-social neighbours could face the loss of their housing benefit” but Liz Davies sees too many flaws… ou may be experiencing deja vu. whilst the possession claim is still proceeding, underlying problems causing the anti-social be- Yes, you did read it before – two and backed up by a power of arrest. haviour can be resolved etc, providing social years ago – when it was quietly Once evicted, the family is almost certain work, having a multi-agency and multi-disci- dropped, another New Labour to be found intentionally homeless. Local au- plinary approach etc. Day-to-day experience in idea designed to attract headlines thorities have no duty to provide accommo- the Courts suggest that ‘good practice’ is but impossible to implement. dation except for a very short period and the mainly ignored by the authorities. YThe proposal is that tenants evicted for family has to find its own accommodation in Once the family is evicted, the multi-agency “anti-social behaviour” would then face the the private rented sector. It will shuttle be- approach is supposed to continue, so as to pro- loss of their housing benefit if they “refuse to tween assured shorthold tenancies, often find- tect the children. If the family is to be found in- take help to address the underlying causes of ing that housing benefit (still available) doesn’t tentionally homeless, social services should be their behaviour”. The suggestion is that help pay the whole of the contractual rent and so contacted and asked to help find a home will be on offer, something that many workers rent arrears accrue until they lose that accom- (s.213A Housing Act 1996). In practice, social in hard-pressed local authorities or the volun- modation. Perhaps, once alternative accom- services tend to regard such requests as dis- tary sector will find hard to stomach. modation has been exhausted, the local tractions from their main statutory function of authority will accept the family and not find it child protection, and attempts to obtain hous- What does this mean in practice? intentionally homeless. But only if there has ing through the backdoor. The referral often Local authorities, housing associations and the been intervening settled accommodation. If the results in nothing but a few sheets of paper. So Courts are now pretty tough on “anti-social family has wandered from one particular in- what exactly is the “help” that the government behaviour”. Just ten years ago, the number of secure accommodation to another (staying is suggesting could be offered by the state? claims for possession on the grounds of nui- with family or friends etc), the local authority Why would withdrawing housing benefit sance behaviour were few and far between, and will still look back at why it was evicted in the act as a deterrent? If the behaviour could be those that were brought were frequently ad- first place. deterred, surely the prospect of being evicted, journed on terms. At worst, usually a sus- If housing benefit is withdrawn, households found intentionally homeless, dependent on the pended possession order was made so that the evicted for anti-social behaviour will find it im- private sector or the charity of friends or family household wasn’t evicted provided that it com- possible to obtain private rented accommoda- would act as a deterrent. Why add the loss of plied with terms. In my practice, just ten years tion. They won’t be housed by local housing benefit on top of all that? ago, evictions for anti-social behaviour only authorities. Far more of them will be shuffling None of this should be read as a justification usually happened after there had been a between friends and family, facing the break-up for racism, violence, threats of violence and breach, or several breaches, of a suspended of their family, and unable to afford accom- abuse of neighbours. Where households put possession order. modation that would constitute intervening their neighbours in fear or at risk, there should Nowadays, tenants are regularly subject to settled accommodation, so as to allow them to be intervention by the landlord. There should possession proceedings for all sorts of reasons, re-apply to a local authority and not be found even be the ultimate threat of eviction by the including the behaviour of their children. And, intentionally homeless. Court. But that should all be coupled with even though the adult tenant might be blame- Supposedly, there are carrots as well as early offers of intervention and effective help less, if the behaviour is considered serious sticks. Good practice policy in anti-social be- to tackle the causes of anti-social behaviour, enough, the Court may consider it appropriate haviour recommends early intervention once and a step back from the knee-jerk use of evic- to make an outright order for possession (see there are complaints, trying to ensure that any tion, in many cases a sledgehammer to crack a Manchester City Council v Higgins). nut. Remember “tough on crime, tough on the And there are a whole raft of additional causes of crime”? With anti-social behaviour, powers available, which social landlords are as with crime, the government seems to ignore only too keen to ask for and Courts only too ‘Day-to-day experience the causes in favour of a punitive approach. keen to grant. ASBOs are well documented. in the Courts suggest The government spins its ‘Respect Agenda’ The Court can also order that an individual or as being a mixture of punishment and deter- a family is excluded from a particular area (an that ‘good practice’ is rence, on the one hand, and increased multi- exclusion order s.153C Housing Act 1996) and agency help to problem families, on the other. subject to a power of arrest. An exclusion mainly ignored by the The reality is that it legislates to punish and order, prohibiting entry into a tenant’s own fails to provide the promised help. This pro- home, can also be an interim remedy, made authorities…’ posal will be just the same. I

12 I Socialist Lawyer G July 2006 DE’ PUNISH, Socialist Lawyer G July 2006 I 13

Picture: Jess Hurd / reportdigital.co.uk FORE“ CRIMI

14 I Socialist Lawyer G July 2006 EIGN“

INALSHome secretary John Reid spent his first day in his new job making a high profile visit to the Government teams responsible for finding “foreign criminals”. He’s been the Daily Mail’s gofer in the Government ever since. Frances Webber looks at the disgraceful twists and turns in the Home Office in the last few months, while Alex Gask runs a critical eye over the Government’s methods for dealing with foreigners residing in the UK who are believed to pose a terrorist threat

Socialist Lawyer G July 2006 I 15 FIT FOR PUR he release of prisoners at the end of their sen- tence seems, to the uninitiated eye, a fair and just conclusion of their encounter with the crim- inal justice system. The scandal that broke to- wards the end of April, which resulted in the removal of one Home Secretary and a whole- Tsale condemnation of the Home Office as ‘not fit for pur- pose’ by his replacement, illuminates the double jeopardy principle which sharply discriminates against foreign pris- oners by enabling them to be deported in addition to serv- ing the sentence imposed for the crime. The Immigration Act 1971 allows the Secretary of State to deport foreign nationals (including EC citizens), either on the recommendation of a judge after conviction of an offence punishable by imprisonment,1 or on his own ini- tiative (whether or not the person has been convicted of an offence) on the grounds that his or her deportation is con- ducive to the public good.2 Amid all the outcry about for- eign prisoners, the fairness or correctness of the double jeopardy principle has not been called into question – in fact, the Prime Minister and his new rottweiler at the Home Office seek to extend its application. The result has been the reinforcement of popular racist stereoptypes equating ‘foreigners’ and ‘asylum seekers’ with ‘criminals’, and the subjection of many fully rehabilitated ex-offenders to arrest for deportation, or to recategorisation within the prison system. On 25th April 2006 Home Secretary Charles Clarke re- vealed in a written statement that 1,023 foreign nationals had been released between February 1999 and March 2006 on completion of their sentences without being considered for deportation. On 23rd May, in a further written state- ment, his successor John Reid indicated that the total of ‘missed’ foreign prisoners was in fact 1,019, of whom 186 had been convicted of serious offences. Clarke’s April state- ment released a storm of ill-informed and hysterical media coverage which fanned the flames of popular racism. The Daily Mail screamed: ‘Killers, rapists, paedophiles … 1,000 convicted foreign criminals who should have been deported are at large – and the Home Office hasn’t a clue where they are.’ (Reid’s later statement indicated that of the 37 who had been convicted of ‘most serious’ offences, including rape, child sex offences, murder and manslaughter, he said, 27 were in prison. Eight had re-offended (but only six con-

Picture: / reportdigital.co.uk Jess Hurd victed), but there were no re-convictions for violent or “Clarke’s April statement

1. Section 3(6). released a storm of ill-informed 2 Section 3(5). and hysterical media coverage which fanned the flames of popular racism” 16 I Socialist Lawyer G July 2006 RPOSE? sexual offences among this group, although 13 of the 149 all non-EEA nationals who have received 12 months prison ‘more serious’ offenders had committed violent or sexual sentence, either in one sentence or as an aggregate of two offences following their release.) Even the Guardian re- or three sentences; the decision-making criteria of the rules, ferred in its 26th April story to ‘more than 1,000 foreign- which go wider than the requirements of the ECHR, will be ers who … should have faced deportation’ after serving interpreted much more tightly.” their sentence, when the issue was the failure to consider them for deportation action. In later stories it referred to Current criteria for deportation the foreign ex-offenders as being ‘on the run’, as if they No automatic presumption to deport would be held lawful, had escaped from prison.3 never mind the breach of the ECHR obligations which It may well be appropriate to criticise the Home Office would be involved. The Court of Appeal gave guidance to for its failure to consider foreign offenders for deportation, judges on when a recommendation should be made over 25 through administrative oversight. But it rapidly became an years ago, a long time before the ECHR was incorporated. issue about the failure to deport them. Thus on 2nd May, In R v Nazari,5 it held that in deciding whether to recom- Clarke told MPs that over half of the cases which Home mend deportation, the court must consider whether the ac- Officials had missed had now been considered, and that a cused’s continued presence in the UK is to its detriment, decision to deport had been made in respect of 446 cases. taking into account the seriousness of the offence, the harm But Clarke was doomed for his perceived softness, and was caused to the community by it and the risk of further of- reshuffled out of his job three days later. A memo from fences. The sentencing court was not concerned with the Prime Minister Tony Blair to Clarke’s successor John Reid, political system in the receiving country or what the of- released to the Observer (14th May) complained about the fender’s life would be there; that was for the Secretary of judges’ failure to take adequate account of victims of crime State in considering whether to give effect to the recom- in their interpretation of the European Convention of mendation, but it must have regard to the effect of any rec- Human Rights, and indicated that it might be necessary to ommendation on innocent third parties. amend the Human Rights Act so that foreign criminals The power to deport EU nationals and their family could be deported. A few days later, Blair told the Com- members may only be exercised, according to EC law, if mons that he would press ahead with plans to deport ‘the their conduct represents a genuine, present and sufficiently vast bulk’ of foreign prisoners after their sentences, re- serious threat affecting one of the fundamental interests of gardless of the threat they might face in their home coun- society.6 Those who have the right of permanent residence tries. ‘There will be an automatic presumption to deport … can be deported only on serious grounds of public policy or and those people … should be deported irrespective of any public security, and after ten years’ residence, can be de- claim that they have that the country to which they are ported only on imperative grounds of public security.7 going back may not be safe’.4 As for the provisions of the immigration rules on the Since the Prime Minister’s remarks, John Reid has indi- criteria for deportation, they have been the same since the cated that he is prepared to be ‘radical’ in order to con- 1970s. The factors to be considered by the Secretary of vince the public (by which he means the Daily Mail) that State in deciding whether to exercise the power to deport, the government is tough on foreign criminals. In addition including the offender’s age, length of residence and to reforms to the Home Office bureaucracy so as to ensure strength of connections with the UK, personal history in- that foreign offenders are properly identified in the prison cluding character, conduct and employment record, do- system, his 23rd May statement indicated that ‘all deci- mestic and compassionate circumstances, the previous sions on deportation [will now be] made according to the criminal record and nature of the offence, and any repre- most robust interpretation of the requirements of our in- sentations received on the person’s behalf.8 In 1986 the ternational obligations’. As part of the prioritisation of House of Lords held in R v Secretary of State for the Home cases according to the degree of risk posed to the public, he Department ex p Bakhtaur Singh9 that the Secretary of

announced that: State and the appellate body had to take all relevant cir- L “The Home Office will now consider for deportation cumstances into account including the impact of the

3. ‘System “not fit for purpose”, says 5. 71 Cr App R 87. 7. Directive 2004/38/EC Art 28. Reid, Guardian 23.5.06. 6. Directive 2004/38/EC Art 27, 8. HC 395 para 364. 4. Guardian 18 May. reflecting the 1964 Directive 64/221 9. [1986] Imm AR 352. and the cases of R v Bouchereau, Case 30/77 [1978] ECR 1999; Bonsignore C-67/74 [1975] ECR 297; Calfa C-348/96, [1999] ECR 1-11.

Socialist Lawyer G July 2006 I 17 “After 29 years in the UK, Ernesto Leal faces deportation for a one-off, out-of-character offence in an otherwise law-abiding and productive life” L person’s removal on others (family, employers and com- courts, since British citizens cannot be deported by law. But munity). It is noteworthy that for over thirty years the Sec- most of those who have been rounded up have no such retary of State and the courts have accepted that protection, not being British, since they are legally liable consideration of deportation should look at the person and to deportation. They have to persuade an Asylum and Im- his or her circumstances fully, in the round. migration Tribunal that they should be allowed to stay. Any attempt to impose automatic deportation, even for One of these is Ernesto Leal, a Chilean refugee who serious offences, would not only depart from this clearly came to the UK with his family in 1977, when he was thir- beneficent and fair limitation to the double jeopardy prin- teen, and was given permanent residence rights. On 1st ciple, but would seriously distort the balance required by May, 30 police officers arrived at Leal’s Stoke Newington Article 8 ECHR in cases where the deportee has family in home to serve him with a decision to deport him to Ja- the UK, and would result in many more applications to the maica, and took him to Belmarsh maximum security Strasbourg court, which in a series of clear decisions from prison. In 2002, following a brawl in a bar, he was sen- the early 1990s onwards, has set clear limits on the double tenced to 42 months for GBH with intent. He served 18 jeopardy principle, recognising in particular that integrated months, mostly in an open prison, and on release complied aliens should not normally be deported except for very se- meticulously with the conditions of his licence and started rious criminality.10 to get on with his life. Now, after 29 years in the UK, he Concern had already been expressed by lawyers, before faces deportation for a one-off, out-of-character offence in the foreign prisoners row blew up, that the Court of Appeal an otherwise law-abiding and productive life. has, in R v Nelson Carmona,11 diluted the stringent re- On 31st May, the Guardian reported another such case, quirements of EC law, allowing sentencing judges to deport that of Antonio Guarita, a 44-year-old Portuguese man EU nationals committing several minor criminal offences. who had rehabilitated himself after a three-year sentence Judges are required to assess significant risk of serious for robbery. Guarita worked with a homeless charity and harm in other contexts, such as in deciding whether to had just got a full-time job with the charity and his own impose a mandatory sentence for the protection of the flat, and was about to receive an adult learning award, public, under the new provisions of the Criminal Justice when he was sent back to prison pending a decision to Act 2003,12 and the test for deportation should, we sug- deport him.14 gest, be equally stringent, given what is likely to be at stake. Sentenced prisoners are categorised for security pur- poses when they first enter the prison system, and there- The effects on the ground after security categories are regularly reviewed. Those in On 5th June, Langstaff J ordered the Home Office to re- open prisons were categorised as the lowest security risk, lease a British citizen who had been detained for deporta- category D. Now, many are being recategorised upwards as tion to Bangladesh in the wake of the foreign prisoners prisoners who cannot be trusted in open conditions. scandal. Although the man has a British passport, which At least 200 foreign prisoners have been moved from was seen by immigration officers who searched his home open to closed prisons since the scandal broke. In mid-May, and arrested him, the Home Office refused to release him according to the Guardian,15 300 prison officers in riot gear without a court order. Their decision said that his offence rounded up 141 foreign prisoners at Ford open prison in of conspiracy to rob made his removal from the UK neces- Sussex and taken them to closed jails, following the escape sary for the prevention of crime and the protection of of 11 foreign prisoners in two weeks. A Prison Reforms health and morals. The letter noted that his family came Trust spokesman said that the escapes from Ford may well from Bangladesh and could return with him if they did not have been provoked by the fear of deportation.16 Thirty want to be separated from him.13 According to the press foreign prisoners were also transferred from Latchmere report, five more British citizens had been rounded up for House resettlement prison, outside London, to closed con- deportation. British citizens of foreign origin in the prison ditions. At least two judicial review challenges have been system have also found themselves recategorised with a lodged in response to the sudden recategorisation, on pro- view to deportation. portionality grounds. It would clearly be wrong to recate- In such cases, the Home Office is forced to act by the gorise a prisoner solely in response to a media panic.

10. See eg Beldjoudi v France (1992) 11. [2006] EWCA Crim 508, February 14. Eric Allison, ‘Second offence’, 14 EHRR 801; Nasri v France (1995) 21 2006. See the note by the AIRE centre, Guardian 31.5.06. EHRR 458; Boultif v Switserland (2001) May 2006. 15. Guardian 26, 31.5.06. 33 EHRR 50; Amrollahi v Denmark 11 12. Sections 224-229; see R v Lang July 2002. [2005] EWCA Crim 2864. 13. Guardian 6.6.06.

18 I Socialist Lawyer G July 2006 “John Reid has indicated that he is prepared to be ‘radical’ in order to convince the public (by which he means the Daily Mail) that the government is tough on foreign criminals”

The real scandal There is a real scandal in the Home Office’s treatment of foreign prisoners, but it doesn’t make the headlines. It is the weeks and months which many foreign prisoners serve in immigration detention following their release date, when so far as the prison is concerned they are free, but they remain detained under Immigration Act powers pending deporta- tion. Frequently, their detention is unlawful, since the Sec- retary of State has given no consideration to whether to deport them or not, and there have been a number of suc- cessful challenges by way of judicial review, in cases where no reasons have been given for continued detention follow- ing expiry of sentence. A 2004 report by the Prison Reform Trust concluded that the main problems of foreign prison- ers in this situation were lack of information, the language barrier and a sense of isolation. More seriously, the report found there were significant causes for concern relating to mental health, racism and disrespect. Applications for parole, for transfers to lower category prisons or to immi- gration detention, or release on licence often took months to process. The Guardian’s Eric Allison revealed17 that out of 4,000 staff at the headquarters of the Prison Service, the National Offenders Management Service and the National Probation Directorate, just three were responsible for deal- ing with all foreign national prisoners – estimated at one- eighth of the prison population, over 10,000 people. For Kingsley Williamson, a prisoner awaiting deportation in Norwich jail following open conditions at Hollesley Bay for the last few months of his sentence, it became too much; he hanged himself on 14th March. And on 10th June, Oleksiy Baronovsky, a 34-year-old from the Ukraine, died in HMP Rye Hill in circumstances suggestive of suicide. Baronovsky had served a seven-year prison sentence for burglary and had been granted parole, but was detained beyond his re- lease date under Immigration Act powers pending deporta- tion. The government’s determination to remain one step ahead of the Mail in punitive authoritarianism will certainly give rise to more despair and more suicides. Garden Court Chambers has produced a cross-discipli- nary fact sheet on the deportation of foreign nationals, with contributions from specialists in criminal, immigration and prison law, to enable lawyers to respond to clients’ predica- ments. Following an open meeting on the deportation of for- eign nationals on 7th June, a steering group was set up to coordinate a response. Contact Louise Hooper for details at [email protected] G Frances Webber Picture: / reportdigital.co.uk Jess Hurd

Socialist Lawyer G July 2006 I 19 Picture: / reportdigital.co.uk Jess Hurd

ony Blair’s government’s efforts to obtain ‘diplo- matic assurances’ that prisoners will be well treated from states where torture is known to be rife are the latest, and some would say murkiest, in a long line of attempts to deal with foreign ter- rorist suspects residing within the UK. TSince 11th September 2001 the government has entered DIPLOMA into a series of battles with the human rights fraternity (and some would say with human rights themselves) over its methods for dealing with foreigners residing in the UK who are believed to pose a terrorist threat. While there is no principled conflict over the most obvious way of dealing with such suspects – arresting them and charging them with ASSURA 20 I Socialist Lawyer G July 2006 1. See Immigration Act criminal offences – the problem the government faces is 1971, section 3(5) what to do with those individuals it believes to be ‘terror- ists’ but does not possess sufficient (admissible) evidence on to be able to prosecute. From the government’s point of view the next obvious solution that presents itself is the Home Secretary’s power to deport foreign nationals when he considers doing so to be “conducive to the public good”1. This is an extremely wide power. It can be used even where a terrorist suspect has refugee status, since the protections offered by the 1951 Refugee Convention do not apply to a refugee where there are “serious reasons for considering” that he “has been guilty of acts contrary to the purposes and principles of the 2. Article 1F of the 1951 2 UN Convention relating United Nations” – and the prohibition on “refoulement” to the Status of Refugees in Article 33 specifically offers no protection to an indi- vidual “whom there are reasonable grounds for regarding 3. Article 33(2) ibid as a danger to the security of the country in which he is”3. However, despite the lack of protection offered by the Refugee Convention, the option of deporting the foreign terrorist suspects is not available to John Reid, and was not to his many predecessors. This is due to the bane of 4. [1996] 23 EHRR 413 many a Home Secretary – what has come to be known as ‘the Chahal problem’, arising from the Chahal v United 5. [1989] 11 EHRR 439 Kingdom4 case before the European Court of Human 6. Article 3 of the Rights (‘ECtHR’). 5 European Convention on In the earlier case of Soering v UK , brought by a man Human Rights: “No one who was due to be extradited to the USA to face ‘death shall be subjected to row’, it was held by the ECtHR that an individual cannot torture or to inhuman or degrading treatment or be removed to a jurisdiction if “substantial grounds have punishment.” been shown for believing that…[s/he] faces a real risk of being subjected to torture or to inhuman or degrading 7. Article 15 of the treatment or punishment” there. To do so would amount Convention allows signatory States to to a violation by the removing State of that individual’s derogate from parts of rights under Article 36 of the European Convention on the Convention in times Human Rights (‘the Convention’). of war or emergency “threatening the life of Chahal was an application brought some years later by the nation”. Article 3 is a British resident who the then Home Secretary, Michael one of the fundamental Howard, was attempting to deport due to suspicions that rights specifically he was a Sikh separatist. In ruling that Mr Chahal could excluded from this possibility. not be removed from the UK, the European Court extended the principle set down in Soering to cover deportation as 8. Chahal para 80 well as extradition. Importantly, it was held that since the prohibition on torture in Article 3 is absolute and non- 9. It is not just the ECHR 7 that provides such a limit derogable the prohibition on removal applies even to a on expulsion of person considered to be a dangerous terrorist. Indeed, “the individuals to situations activities of the individual in question, however undesir- where they are likely to able or dangerous, cannot be a material consideration”8. face torture. Along with other international Thus the Chahal ruling makes it clear that if there is instruments, Article 3 of cogent evidence that an individual is at risk of Article 3 the UN Convention treatment in a receiving state, he cannot be removed there against Torture makes it 9 clear that: “No State shall – even if that person is believed or known to be a terrorist . expel, return (“refouler”) The individuals whom the government suspects to be ter- or extradite a person to rorists are wanted men in their own countries, and prison- another State where ers in these countries are known to be at risk from torture. there are substantial So what could be done with these men who seemingly ATIC grounds for believing that he would be in cannot be removed? danger of being The first horrendous idea was that set down in Part 4 of subjected to torture”. the Anti-terrorism, Crime and Security Act 2001, which 10. Certified by the provided a regime of indefinite detention for certified “sus- 10

Home Secretary under pected international terrorists” . To pass such a law the L ANCES s21(1) of the 2001 Act. UK was forced to derogate from Article 5 of the Conven- Socialist Lawyer G July 2006 I 21 L tion, which prohibits arbitrary detention. As was argued vociferously by many, including both the Haldane Society and Liberty, this regime was internment by another name. Quite apart from the insult to the rule of law and the ap- palling suffering of the 17 detainees held for up to 39 months under this regime, Part 4 showed the hypocrisy of a government claiming that the war on terror was necessary to uphold our principles and values whilst simultaneously flushing those values away. In addition, like internment in Northern Ireland, Part 4 arguably acted as a recruiting 11. R (A & others) v sergeant for future terrorists or terrorist sympathisers. Secretary of State for the Happily, in the A case11 in December 2004 the House of Home Department Lords found that Part 4 was unlawful. While the majority [2004] UKHL 56 accepted that there was a “public emergency threatening the life of the nation”, a breach of Article 14 was found and the derogation from Article 5 was considered unlawful be- cause the detention of foreign nationals was dispropor- tionate and discriminatory –British nationals could pose just as much of a threat but could not be interned. The government response to the A decision was almost as rushed and ill-conceived as Part 4 itself. The Prevention of Terrorism Act 2005 introduced ‘control orders’ – a sort of ‘anti-terrorism ASBO’. Since the foreign terrorist sus- pects could no longer be detained without trial they had to be released, but the control orders ensured that their liberty was still severely curtailed. Restrictions include being con- fined to their homes for 18hrs per day, requiring prior ap- proval before meeting anyone, and not being allowed to use mobile phones or the internet. And still no charges had ever been laid against these men. Once again the courts signing memoranda of understanding (‘MoUs’ – the term have done their constitutional duty and applied the rule of used to describe the formal diplomatic assurances obtained) law, with the High Court recently finding that two differ- 12. See Re MB [2006] with Jordan, Libya and Lebanon. ent aspects of the control order regime still constitute an EWHC 1000 (Admin) In legal terms, the aim of seeking to obtain a State’s as- 12 and 28/06/06 judgment unlawful interference with human rights . The Court of of Sullivan J (not yet surance that particular individuals will not be subjected to Appeal will consider one appeal at the end of June and an- published) torture on their return is to remove the “substantial other is sure to follow. grounds” for believing the individual will face “a real risk” So we are left with the last, and most simple, of the gov- Article 3 treatment. The argument is an obvious one – if ernment’s attempts to remove foreign terrorist suspects. If there is sufficient evidence that the receiving country will there is evidence that the country to which an individual is not allow torture to take place, then the Article 3 obligation to be removed will subject him to torture (or, at best, not on the UK is not engaged. protect him from it) then why not just get them to promise The core of any memorandum of understanding is a that they will behave? Surely that would be enough to sat- straightforward assurance that individuals removed will isfy those concerned about the safety of these dangerous not be tortured. The emptiness of such a promise is not dif- men, and the pesky requirements of international law? ficult to identify. All of the countries with whom the UK has entered into negotiations (with the exception of the Memoranda of understanding UAE) are signed up to the UN Convention Against Torture While the story of diplomatic assurances comes after indef- and the International Covenant on Civil and Political inite detention and control orders, it is clear that efforts were Rights, and have therefore already made more formal and being made in this regard even from well before 9/11 oc- binding promises to the rest of the world that they will not 13 13. See the Hani Youssef curred . However, it is only recently that these efforts have case discussed below. allow torture. It is clear that these promises are not trusted been stepped up and placed in the public eye. In late Febru- by the UK, or we would never have needed to enter into ne- ary 2005 it was reported that Baroness Symons travelled to gotiation with these countries in the first place. So, all that Algeria, Morocco and Tunisia to negotiate with those coun- is left is the repetition of an already broken promise. tries’ governments for the return of terrorist suspects from It would therefore seem obvious that a mere promise the UK. In addition to these three countries, it is either not to torture could not alone be considered enough to known or believed that attempts have also been made to seek remove the real risk of Article 3 treatment. In the case of assurances from Egypt, Syria, Yemen, and the United Arab 14. [2004] EWHC 1884 Hani Youssef v. Home Office14 the High Court was pro- Emirates. (QB) vided with a large amount of information relating to ne- Perhaps the most glaring change between more recent gotiations with Egypt over diplomatic assurances. Amongst efforts and those being conducted behind the scenes over that information was a 14th June 1999 letter from the the years is that the UK has actually now been successful in Prime Minister’s Private Secretary to the Private Secretary

22 I Socialist Lawyer G July 2006 Protest outside News International following a News of the World sting operation on 1st June, when 70 migrants, promised employment by an undercover journalist, were taken by coach to Colnbrook removal centre.

nated body will give a report of its visits to the authorities of the sending state.” It is this agreement to allow for independent monitoring of detainees that appears to be the main tool with which the Government intend to establish that torture is no longer a significant risk. Post-return monitoring is presumably in- tended to work both to dissuade the receiving state from al- lowing torture to occur, and also to allow the sending state to hold the receiving state accountable once that torture has occurred and has been detected by the monitoring body. The problem is that neither of these goals can realisti- cally be achieved. The first obstacle is an obvious one. Who will the reli- able and independent body be? The International Com- mittee of the Red Cross, along with international human rights bodies such as Amnesty International and Human Rights Watch, have made it clear that they will not co-op- erate with any such monitoring, since to do so would be to approve tacitly the use of diplomatic assurances (and to promote double standards in relation to torture prevention – see the comments of Louise Arbour below). The only in- dependent monitor that has so far been agreed is a small, relatively unknown Jordanian organisation (which has agreed to carry out monitoring with financial support from the UK Government). Secondly, a fortnightly visit to a detention facility by “an

independent body” is absolutely no guarantee that torture Picture: / reportdigital.co.uk Jess Hurd will be identified. Torture can be conducted in such a way at the Home Office which read: as to avoid external physical symptoms – for example elec- “The Prime Minister’s view is that we should now revert tric shocks, sexual torture or psychological torture. Also, a to the Egyptians to seek just one assurance, namely that the detainee who has been tortured is likely to be reluctant to four individuals, if deported to Egypt, would not be sub- report that it has occurred for fear of reprisals – perhaps jected to torture. Given that torture is banned under Egypt- specifically threatened. ian law, it should not be difficult for the Egyptians to give Thirdly, accountability is unrealistic since by drawing such an undertaking.” attention to torture that occurs the sending state will be re- “He believes that we should use whatever assurances the quired to acknowledge that it has itself failed to uphold the Egyptians are willing to offer, to build a case to initiate the obligation not to send a person to such a fate. And even if deportation procedure and to take our chance in the courts. the sending state is prepared to advertise its error, there is If the courts rule that the assurances we have are inadequate, simply no mechanism for enforcement of a MoU beyond then at least it would be the courts, not the government, who the usual international diplomacy. would be responsible for releasing the four from detention.” The ineffectiveness of diplomatic assurances, even when Despite the Prime Minister’s cavalier approach to supported by monitoring by the sending state, can be high- human rights, the Egyptian authorities would not agree to lighted by looking outside the UK and considering the case even this minimal assurance. of Ahmed Agiza, an Egyptian national suspected of being Subsequent attempts to negotiate MoUs appear to have a leader of the terrorist group ‘Al-Gihad’. Lest it be thought recognised that a simple promise not to torture cannot be that Mr Blair is alone in his attempts to negotiate out of his enough. For example, the MoU agreed with Jordan guar- Article 3 obligations, it was Sweden that removed Mr Agiza antees inter alia that anyone returned under it will be to Egypt (one of the nations with whom the UK is currently “treated in a humane and proper manner” if subsequently negotiating) in December 2001 following diplomatic as- 15. This guarantee detained, will be “brought promptly before a judge” in surances being given by the Egyptian authorities. Once in essentially repeats the order to challenge the lawfulness of that detention, will be Egypt he was immediately detained. Allegations of torture wording of Article 6 of granted a fair trial15 if charged with an offence, and will be followed, and in 2003 a complaint was made to the UN the Convention. “allowed to follow his religious observance”. Committee on Torture16. 16. The information on However, there is nothing here that doesn’t already In accordance with the diplomatic assurances given, this case set out here is appear in the ICCPR. What is of more significance is that once returned to Egypt and detained Mr Agiza was visited taken from the the MoU with Jordan also guarantees that if the individual by representatives of the Swedish Embassy at monthly in- Committee Against Torture’s Communication returned is detained within three years, “he will be entitled tervals. On each occasion the representatives were appar- No. 233/2003 dated 24 to contact, and then have prompt and regular visits from, ently convinced of Mr Agiza’s well-being by a combination May 2005

the representative of an independent body nominated of his own assurances and by observance of his physical L jointly by the UK and Jordanian authorities…The nomi- condition. It was not until March 2003 that Mr Agiza in-

Socialist Lawyer G July 2006 I 23 Many countries have signed up to the UN Convention Against Torture – but the UK doesn’t trust many of them not to torture L formed his monitors that he had been tortured17. At this 17. Although earlier complaints of ill- stage he apparently declared “It does no longer matter treatment had in fact what I say, I will nevertheless be treated the same way.” In been made to the contrast, Mr Agiza’s family, who were able to visit him in Swedish authorities. detention, reported that he had told them of torture (in- These complaints were not revealed by Sweden cluding electrocution) throughout the period during which until years later. the monitoring Embassy were satisfied that he was being treated well. This case also shows diplomatic assurances’ lack of ‘teeth’ since the Egyptian authorities failed to conduct any genuine investigation when Sweden did at last seriously raise with them Mr Agiza’s allegations of mistreatment. While the UN Committee on Torture found only that Sweden had breached Article 3 of the Convention against Torture by sending Mr Agiza back to Egypt when there were substantial grounds for believing that he would be tortured, the contradictory evidence coming from those who visited the complainant privately and independently and those who visited him formally, together with the Committee’s criticism of Sweden’s withholding of evidence of Mr Agiza’s ill-treatment, indicate at best that the effec- tiveness of diplomatic assurances, even with monitoring provisions, is dubious. In its conclusion, the Committee noted that “the procurement of diplomatic assurances, 18. Prominent in the which, moreover, provided no mechanism for their en- Committee’s conclusions on this matter was forcement, did not suffice to protect against this manifest concern over the 18 risk [of torture].” involvement of “a foreign However, while many human rights organisations have intelligence service” in made it clear that they consider national and international removing Mr Agiza from Sweden to Egypt. That law to prohibit reliance on diplomatic assurances, it would foreign intelligence be incorrect to suggest that case law indicates a definitive service appears to have rejection. Indeed, the ECtHR has itself given some indica- been the CIA engaging tion that the efficacy of such assurances has not been ruled in an early example of ‘extraordinary rendition’ - out. Going right back to Chahal, the Court commented see part 3.3 of Dick only that “[t]he assurances of the Indian Government were Marty’s report for the of little value since that Government had shown themselves Council of Europe: This concern over double standards and the inevitable unable to control the security forces in Punjab and else- “Alleged secret dilution of the content of the international treaties that al- detentions and unlawful where.” Far more recently, in the Grand Chamber case of inter-state transfers ready bind the nations being asked to give diplomatic as- 19 Mamatkulov and another v Turkey the ECtHR found no involving Council of surances arguably undermines any reliance even on violation of Article 3 in relation to the extradition from Europe member states”. properly monitored and effective guarantees. Turkey to Uzbekistan of two men following diplomatic as- In conclusion, despite its failed attempts at detention 19. Apps. No. 46827/99 surances not to torture being given. While not explicitly & 46951/99. (18 BHRC without trial and (hopefully) control orders, it appears that recognising the force of the assurances, the Court did refer 2003, (2005) Times 8 the UK government remains detached from its human to them immediately before concluding that there were not March.) rights obligations. Notwithstanding the obvious practical substantial grounds for Turkey to believe that the appli- obstacles it is still intent on pursuing the policy of obtain- 20 20. In other ECtHR cants risked Article 3 treatment. cases, guarantees ing diplomatic assurances in its efforts to rid these shores Yet even convincing assurances from states where tor- regarding the death of terrorist suspects. Unless the battle over the Human ture is suspected do not deal with the separate concern over penalty in the US have Rights Act that is on the horizon ends in a sickening defeat, the use of diplomatic assurances noted by Louise Arbour, been accepted (see it appears likely that it will be left to the courts to remind Aylor-Davis v France the High Commissioner for Human Rights: App. No. 227422/93 the government of its obligations under domestic and in- “even if some post-return monitoring were functioning, the (unrecorded)). However, ternational law in respect of torture and inhuman treat- fact that some Governments conclude legally non-binding even aside from the ment. If the practical obstacles identified above are agreements with other Governments on a matter that is at different political overcome it is to be hoped that the domestic courts will situations in the US and the core of several legally-binding UN instruments threatens Egypt etc, the death take a tough line and rule out any exception to non-re- to empty international human rights law of its content. penalty is considerably foulement. Diplomatic assurances basically create a two-class system easier to monitor than The simple truth is that the government is in a Catch 22 among detainees, attempting to provide for a special bilateral torture. situation: the only country with which a memorandum of

protection and monitoring regime for a selected few and ig- 21. Taken from her understanding could genuinely be sufficient to satisfy Arti- noring the systematic torture of other detainees, even though address on Human cle 3 is a country with which there would be no need to all are entitled to the equal protection of existing UN in- Rights Day, 10 enter into one. struments.”21 December 2005. G Alex Gask

24 I Socialist Lawyer G July 2006 Parliament Square installation by anti- war artist David Gentleman. Each drop of blood is meant to represent the estimated 100,000 lives lost in Iraq since the occupation began. Picture: Jess Hurd/ reportdigital.co.uk

Socialist Lawyer G July 2006 I 25 ne year ago, on 22nd July, Jean Charles de Menezes was dragged by armed undercover officers from his seat on a tube train at Stockwell, South London and shot seven times in the back of his head. Within two weeks, Tony Blair told us “the rules of the Ogame have changed” and attacked judges for refusing to deport people to countries that routinely practise torture. Two days after Jean Charles was shot to death, Commis- sioner Ian Blair warned that we can expect more people to be shot as the police hunt for suspected suicide bombers.1 In the cliché of the day, ACPO continues to insist that its anti- suicide-bomber programme, “Operation Kratos,” is “fit for purpose.”2 It is not and never has been. Both Prime Minister Blair and Commissioner Blair have it badly wrong. Shooting to kill is not a game and the rules – so far, at least – have not changed. To state the obvious, we are talking about a matter of life and death. The more the police get it wrong, the more we are also talking about the death of policing by consent and the birth of policing without accountability. In other words, a police state. As far as accountability goes, it appears that no police officer is to be prosecuted in relation to the de Menezes killing and that the closest his family will come to seeing accountabil- ity will be an investigation into Health and Safety at Work violations by the Met. Both Blairs may not be in post much longer. Tony is facing an enquiry potentially far more serious than health and safety in Downing Street, while Sir Ian is embroiled in yet another policy and public relations debacle following the shooting, fortunately non-fatal, of Mohammed Ab- dulKahar and the terrorising of his family’s neighbours in the heart of the Muslim community of Forest Gate in East London. The insistence that the threat of terrorism poses a new and unique problem to policing and to civil society’s hu- manitarian values is fundamentally flawed. The new threat lies in the failure to respond correctly to terrorism and its causes. Question: In which year did the first bombing of the London underground take place? Come on, let’s not always 3 SHO see the same hands. That’s right, 1883. In its aftermath there was an immediate rush to blame … yes, of course, the Irish. Then it transpired the bomb was the work of anar- chists. But who were these anarchists? What did they look like; where did they live? Some, it seems, were Jewish refugees from the pogroms of Tsarist Russia. And so, by a familiar manipulation of the press, the finger of suspicion was pointed at the entire Jewish community, many of whom had been in Britain for generations. Thus two entire com- munities, Jewish and Irish, were criminalised and victimised as misinformation and disinformation ran riot. From 1883 to today it seems little has changed. Certainly not for Harry Stanley, a Scotsman with a table leg, shot to TO death in 1999 on the say-so of a man in a pub who thought he was Irish and that the table leg was a sawn-off shotgun.4 Not for Diarmuid O’Neill either, killed in 1996. O’Neill was unquestionably an IRA man, however, equally unques- tionably he was not only unarmed but the Security Services knew he was unarmed – information they apparently with- held from the SO19 team whose adrenalin had been pumped by watching videos of the Canary Wharf bombing immediately before they charged in and shot him dead. Consider also Neil McConville, in 2003 the first man to be shot dead by the PSNI. They were acting on information that he was travelling with a man with a gun in his car. In KIL fact there was a gun wrapped in a cloth in the passenger ONE YEAR AFTER T seat well with no ammunition and no police officer saw it before he was shot dead, allegedly because of a fear that his car might run over a police officer. And now, Jean Charles JEAN CHARLES DE de Menezes, an innocent Brazilian who did nothing to bring suspicion on himself. The Jewish community at the end of the 19th century; by Richard Harvey the Irish community at almost any time in history; and now

26 I Socialist Lawyer G July 2006 1. BBC News 24th July 2005 “Police chief ‘sorry’ over death.” “Police officers are apparently 2. BBC News 8th March 2006 “Police defend being trained to shoot to kill shooting strategy.” without being trained in the 3. I, for one, was completely unaware of this fact until I read the legal duties imposed on them” intriguing article by Antony Taylor of Sheffield Hallam University at:

Picture: / reportdigital.co.uk Jess Hurd www.chartist.org.uk/ articles/econsoc/nov05 taylor.htm Much of the information in this paragraph is drawn from at the dawn of the 21st century, the Muslim community all his research. have something deeply disturbing in common with African Americans and Afro-Caribbeans; living with the daily fear 4. For general information on the specific cases that their ethnicity alone puts them in the cross-hairs as mentioned as well as on members of a suspect community. police use of lethal force None of this is to suggest that terrorism is anything less generally, see the than deadly serious. But if we are not to go any further down detailed submissions of British Irish Rights Watch the road of the crudest forms of racial and ethnic stereotyp- to the Joint Parliamentary ing – and we all know where that road leads – then I offer Committee on Human the police (who love acronyms with a passion) an acronym Rights, September 2005: to embrace. “TACTICS.” Training; Accountability; Com- http://www.publications.p arliament.uk/pa/jt200506/j munity Co-operation; Truth and Transparency; Intelligence; tselect/jtrights/uc701- Confidence of the public; Security for all. ii/701m202.htm. Training: I was asked recently to speak to an audience composed largely of senior police officers and was alarmed 5. s.3 (1) A person may use such force as is to read in the flyer for this “Fatal Shootings” conference reasonable in the that: circumstances in the “The ACPO Manual for the use of firearms states that prevention of crime, or in every authorised firearms officer should be aware of the do- effecting or assisting in the lawful arrest of mestic and European law relating to the use of lethal force. offenders or suspected It places a clear onus for responsibility on the individual of- offenders or of persons ficer. Yet it is clear that training is not routinely available, unlawfully at large. creating significant vulnerabilities for firearms officers and 6. Article 2(1) Everyone’s ACPO ranks in a climate of increased firearms incidents right to life shall be and more stringent accountability.” (Emphasis added) protected by law … Police officers are apparently being trained to shoot to (2) Deprivation of life shall kill without being trained in the legal duties imposed on OOT not be regarded as inflicted in contravention them. The language of domestic common law and statute of this Article when it (“force reasonable in the circumstances” under section 3, results from the use of Criminal Law Act 19675) differs significantly from the re- force which is no more quirement of “absolute necessity” imposed by Article 2 of than absolutely 6 necessary: the European Convention . What is, or seems, “reasonable” a. in defence of any in all the circumstances may not be “absolutely necessary”, person from unlawful particularly in circumstances where the identity or the mo- violence; tives of a person are only suspected rather than established b. in order to effect a lawful arrest or to prevent to a certainty. the escape of a person This has long been a complex area of the law lawfully detained; and remains so today, notwithstanding the c. in action lawfully taken observation of Collins J. in Bennett v HM for the purpose of O Coroner for Inner South London7 that “to quelling a riot or insurrection. kill when it is not absolutely necessary to do so is surely to act unreasonably,” and there- 7. Edmund Lawson QC, fore, presumably, unlawfully. The public needs keynote speaker at Fatal Shootings Conference, to be assured that those to whom it en- quoting Collins J. in R (ex trusts the power to use deadly force on parte Bennett) v HM its behalf are thoroughly trained not Coroner for Inner South only in how to use firearms but in London and others [2006] EWHC 196 the circumstances where it is lawful (Admin) to deploy them. According to the ACPO 8. Annex 3B of ACPO Manual, firearms may only be Manual of Guidance on LL discharged “when absolutely Police Use of Firearms. THE DEATH OF necessary after traditional meth- 9. See ods have been tried and failed or www.met.police.uk/ must, from the nature of the circum- communities_together/ 8 E MENEZES docs/v_05-11-08_srb_ stances, be unlikely to succeed if tried.” anna_de_vries_1_.pdf However, that “absolute necessity” stan- dard is conspicuously missing from the 10. See Peter Taylor’s Operation Kratos Guidelines published BBC Panorama programme: “Stockwell, by the Metropolitan Police Service in the

Socialist Lawyer G July 2006 I 27 L wake of the public outcry after the killing of Jean Charles de Countdown to a Killing,” 7 March 2006. The Menezes. These refer exclusively to the Criminal Law Act programme itself can be standard of force reasonable in the circumstances and no viewed at: reference is made to Article 2.9 http://news.bbc. With today’s technology, to an increasing extent there is co.uk/1/hi/programmes/p anorama/4779602.stm more than one finger on the trigger. The Dedicated Senior Officer (DSO) at the scene bears an awesome responsibility, 11. BBC News, 8th March as Peter Taylor observed in Stockwell, Countdown to a 2006: “Police Defend Killing.10 Asked whether the DSO effectively pulls the trig- Shooting Strategy.” ger, Assistant Commissioner Steve House said: “There are 12. R (Amin) v Home code words in Operation Kratos which do signify to the of- Secretary [2004] 1 AC ficers on the ground the tactics to be used and one of those 653 at 665. is use of firearms fired at someone’s head, yes.” 13. R (Middleton) v HM Operation Kratos was formulated with the assistance of Coroner for West the Israeli Defence Force, yet the Israelis told Peter Taylor Somerset [2004] 2 AC they are not permitted to shoot to kill a suspected suicide 182 bomber unless they are sure they can see a bomb. Unlike 14. McCann and Others v the Kratos guidelines, the Israelis train their police in alter- the United Kingdom natives to shooting to kill. Chief Constable Barbara Wild- (1995) (ECHR) Series A. ing, one of the architects of Operation Kratos, has admitted No. 324 Paragraph 150 that SO19 was not prepared to deal with a situation of the 15. Mercier Press, Cork kind that led to the death of Jean Charles de Menezes on and Dublin, 1985. 22nd July last.11 It appears that police training is not “fit for purpose.” 16. See The Irish Accountability: If the police are not giving and get- Community: Diversity, Disadvantage and ting the right training, then they are failing in their duties Discrimination, by under Article 2. The obligation on the State to protect life Bronwen Walter. also imposes a duty to investigate deaths cause by State agents. They are accountable for their use of lethal force. 17. See Suspect Community: People’s Their actions must be subject to scrutiny by an independent Experience of the and impartial tribunal, to determine whether or not the Prevention of Terrorism force was unlawful. This applies under domestic law, as the Acts in Britain, Paddy House of Lords clarified in Amin12 and Middleton13. Hillyard, Pluto Press, 1993 Of especial relevance to command officers is the Euro- 18. Vikram Dodd, The pean Court ruling in McCann that: “the Court must, in Guardian, “Surge in stop making its assessment, subject deprivations of life to the and search of Asian most careful scrutiny, particularly where deliberate lethal people since July 7”, 24 December 2005. 27% of force is used, taking into consideration not only the actions all those stopped were of the agents of the State who actually administer the force Asians (12% of London’s but also the surrounding circumstances including such mat- population). Stops of ters as the planning and control of the actions under exam- vehicles were up by 86% 14 for white drivers; 108% for ination.” (Emphasis added) Afro-Caribbean drivers This is very like the notion of command responsibility and 193% for Asians. under the Geneva Conventions and carries similar conno- tations for those dealing with fatal shootings by members of 19. Id. the conventional armed forces. The UK has been censured 20. BBC News: “Muslim by the European Court of Human Rights on more occa- anger over stop and sions than any country but Turkey in relation to killings by search.” 2 July 2004. members of the security forces. Most of those killings oc- 21. Id. curred in relation to Northern Ireland. 22. Report of the Stephen Over twenty years ago, I was asked by human rights Lawrence Inquiry, groups in the UK and the United States to organise an in- February 1999 Cm. 4262- quiry into whether shoot-to-kill tactics were being employed 1. See especially Recommendations, at by the security forces in Northern Ireland. The inquiry was Chapter 47 chaired by Haldane Society Vice-President Professor Kader Asmal, then senior lecturer in law at Trinity College, Dublin 23. See Metropolitan and later a minister in the governments of Nelson Mandela Police Authority Report by Commissioner on and Thabo Mbeki. Together with Geoffrey Bindman and “Women and ethnic other human rights lawyers from the United States and minority staff in specialist France we documented 155 cases of civilians with no units,” 9th May 2002. known connection to paramilitary organisations or activi- Figures for March 2002 indicated that “Visible ties, but who had been shot dead by the security forces. In Ethnic Minority (VEM)” a further 20 cases involving paramilitaries, we found more officers are 4.7% of MPS force than absolutely necessary was used by the security strength and female forces. These cases constituted 65% of all those shot dead officers 16.9%, whilst 5% of borough officers and by the security forces by the beginning of 1985. 4.2% of non-borough In our report, entitled Shoot to Kill?: Report of the In- officers were VEMs and ternational Lawyers, Inquiry into the Lethal Use of 18.8% and 13.9% Firearms by the Security Forces in Northern Ireland15, the respectively were women. Id. most conspicuous failure we noted was the failure of ac- countability. Then and since, the record of holding to ac- 24. Under the Police count members of the security forces who use lethal force Reform Act 2002, all fatal when not absolutely necessary has been abysmal. The shootings by the police must be investigated Picture: / reportdigital.co.uk Jess Hurd impact on the wider community resulted at best in cynicism independently by the IPCC.

28 I Socialist Lawyer G July 2006 “The UK has been censured by the European Court of Human Rights on more occasions than any country but Turkey in relation to killings by members of the security forces”

and disillusionment and at worst it served as a potent re- cruiting weapon for those the security forces claimed to be fighting. Nowhere was this more devastatingly clear than in the impunity with which the Paratroop Regiment was treated in the immediate aftermath of Bloody Sunday. In London, just as in Derry, accountability cannot wait 30 years for a public inquiry if our police, politicians and se- curity forces have any concern for the impact on the public today. Community Co-Operation: One of the chief threats posed by terrorism is the risk that, in the eyes of those re- sponsible for law enforcement, members of entire commu- nities become identified with the threat. In the 1970s and 1980s the Irish community in Britain were subject to arbi- trary arrest, stop-and-search and exclusion at ports of entry on a massive scale. In a study carried out for the Commis- sion for Racial Equality in 1993, the Runnymede Trust re- ported that 60% of Irish people surveyed in Britain had been stopped and questioned under successive Prevention of Terrorism Acts.16 Of over 7,000, mostly Irish, people de- tained under the Act only 14% had any charges brought against them and most were not charged under the PTA itself.17 In the two months following July 7th 2005, the official stop-and-search figures for Asian and Black people in London alone were more than twelve times higher than for the same period the preceding year. 2,405 Asian and Black people were stopped while walking compared with 196 for the 2004 period.18 As Peter Herbert, barrister and member of the Metropolitan Police Authority, has said: “Intelligence cannot lead to a 1,100% increase, this is just random stop and search.”19 When Home Office and police spokespeo- ple deny that there is a plan to target ethnic groups they will not be believed and they risk jeopardising hope of co-oper- ation from those communities they most need to have on their side. Even before the 7th July 2005 bombings, the Home Office admitted there had been a 300% increase in stops of Asians from 2002 to 2003.20 As the Labour party peer Lord Nazir Ahmed said after he had himself been stopped twice: “Anti-terror policing has to be based on in- telligence – they don’t have that intelligence because people are simply being stopped because of the way they look.”21 Despite the Macpherson recommendations, in particu- lar that a ministerial priority be established for all police services “to increase trust and confidence in policing among minority ethnic communities,”22 there is still a woeful under- representation of Black and Asian officers within police forces around the country. This is notably true at command level where under-representation of women as well as what the Met calls “VEMs” is also still a matter for urgent con- cern.23 The Security Services are desperate to recruit from these communities. If terrorism is seen as a phenomenon peculiar to a particular ethnic group, there will be the same failure to learn the lessons of the past. In the words of a former Northern Ireland Special Branch officer, quoted in The Sunday Times on 24th July: “I suspect that the au- thorities in England will make all the same mistakes as we

Socialist Lawyer G July 2006 I 29 L did.” An important ally in obtaining community co-operation is the Independent Police Complaints Commission.24 The IPCC has a specially mandated statutory role to investigate police firearms incidents. However, as the Rowntree Trust reported in November 2005: “Sir Ian Blair, the Metropolitan Police Commissioner, wrote at once [following the de Menezes killing] to the Home Office in an attempt to prevent the Independent Police Complaints Commission (IPCC) from investigating the shooting and barred the IPCC staff from the scene. He requested that the Home Office draw up “rules of engage- ment”, similar to those provided for the military in a war. He described discussing with the Prime Minister “max- imising the legal protection for officers who had to take de- cisions in relation to people believed to be suicide bombers”. The Home Office refused his request and the IPCC inquiries began a few days late. 25 “Community confidence and public co-operation are both undermined when the senior law enforcement officer in the country seeks to bypass the law himself and to keep independent investigators away from the scene of the killing of an innocent man.”26 Transparency: One lesson that seems never to be learned is that if the people are not told the truth and told it promptly, they will rapidly lose confidence in those who have misled them. When direct lies or inspired leaks to the press are subsequently disproved, the police lose credibility. It is hard to recall a single case in which the public was told the truth from the beginning, be it Harry Stanley, Diarmuid O’Neill or Neil McConville. Nothing shows the importance of transparency more clearly than the de Menezes case. Commissioner Blair’s po- sition remains untenable. If he genuinely did not know for 24 hours that the man who had been killed was not a ter- rorist then he was appallingly badly served by those whose job it was to keep him fully briefed. The public interest, let alone that of the de Menezes family, in knowing the truth about such a crucially important event was overwhelming and he should have taken immediate action to restore public confidence in his own and his force’s integrity. The alterna- tive, of course, is that he knew well before his 10:00 am press conference on 23rd July but chose to remain silent for reasons yet to be explained. If he is telling the truth, then his leadership qualities are deeply suspect. If he actually knew, then he must be held to account. The truth principle goes beyond press conferences in the aftermath of individual cases. The repeated denial that there is such a thing as a shoot-to-kill policy simply does not stand up. “Shoot-to-incapacitate”27 is a nice euphemism but when undercover officers empty a magazine into a man’s head then the police should at least have the decency to say what they mean. Sometimes it is necessary to shoot to kill, so why be afraid to say so, so long as the constraints of Article 2 are observed? The denial only increases public concern that the security services do not intend to abide by the European Convention. Operation Kratos was bungled because of this mentality of denial. It should have been made public from its incep- tion so that Parliament, human rights groups and the public in general could discuss whether it was in fact an appropri- “If Ian Blair genuinely did ate response to the threat of suicide bombing. By not oper- not know for 24 hours that ating transparently, ACPO fuelled the perception that the policy is misconceived and inappropriate. the man who had been Another chance revelation that resulted from this tragic killing was the fact that the army is now operating under- killed was not a terrorist cover on the streets of London. The Sunday Times of 24th July 2005 reported: “The highly secretive SRR [Special Re- then he was appallingly connaissance Regiment] draws on members of the 14th In- telligence Company, and the Force Research Unit (FRU), badly served by those which handled all military intelligence informers in North- whose job it was to keep ern Ireland.”28 This was also the unit heavily implicated among other matters in the murder of the human rights him fully briefed” 29 Picture: / reportdigital.co.uk Jess Hurd lawyer Patrick Finucane.

30 I Socialist Lawyer G July 2006 “Tony Blair seems to think problems can be legislated away simply by passing new and more repressive laws”

25. Report by Dr. Andrew It is extraordinary that there has been no public debate Blick & Professor Stuart about the appropriateness of involving this highly suspect Weir, 3 November 2005. branch of our military in policing the streets of the metrop- 26. See British Irish olis. Enoch Powell, not a man often quoted with approval Rights Watch in these pages, once told the Haldane Society he found it Submission to Joint offensive to see the army patrolling the streets of his con- Parliamentary stituency. “An army is a killing machine,” he said, “wholly Commission on Human 30 Rights, September 2005 unsuited to the role of policing.” (Footnote 5 above): Intelligence: The recent cases mentioned above are “While BIRW is ones where, but for faulty intelligence, human beings would encouraged by the be alive today, their families would not be devastated, and referral of the case to the Independent Police the public – especially minority communities – would have Complaints Commission, greater confidence in those sworn to serve and protect us all. we are very concerned Without reliable and carefully researched intelligence by allegations that Sir Ian more commanders will order yet more officers to shoot to argued instead for an internal inquiry into the kill suspects who will turn out to be wholly innocent. With- incident, on the grounds out community co-operation, intelligence is restricted of national security. We mainly to surveillance and electronic analysis. The persis- are also concerned that tent refusal to tell the public the truth and to tell it as soon the IPCC were not handed the papers until as possible after an event has occurred will only discourage five days after the event, people from providing that information which is the and that IPCC lifeblood of attempts to detect and prevent acts of terror- investigators were not ism. allowed to enter Stockwell station for a Confidence of the public: Winning and maintain- further three days. We ing that confidence is key. The alternative is a “them and believe this may have us” dichotomy such as persisted and deepened over the contributed to a loss of years of conflict in Northern Ireland. It leads to increased vital evidence. militarisation of our society and increased polarisation of its 27. The phrase used by racial, ethnic and religious communities. Assistant Commissioner The police need to trust people with the truth, even if Steve House, Central they have botched an operation. Fobbing off the public with Operations Metropolitan Police in response to euphemisms only undermines confidence. As a former questioning by Peter Northern Ireland Special Branch Officer told the Sunday Taylor in Panorama’s Times, “It is a dangerous balance for everyone. ‘You can’t “Stockwell: Countdown be afraid to act if life is at stake but if you alienate people to a Killing.” you can hand the terrorists a long-term support base from 31 28. Liam Clarke & Tony which to operate.’” Geraghty, “Shoot to kill Security – For All of Us: None of us feels more echoes Irish dirty war,” secure when we discover by accident that a shoot-to-kill Sunday Times, 24 July 2005 policy for suicide bombers had been introduced and dis- seminated to all police forces by ACPO shortly after Sep- 29. Lawyers Committee tember 11, 2001 without either parliament or the public for Human Rights (now being told. Nor do we feel safer to awaken to the reality Human Rights First): “Beyond Collusion: UK that a regiment of the army with an unsavoury past is op- Security Forces and the erating on our streets. Our sense of security is undermined Murder of Patrick when we are lied to time and again. Finucane,” February Terrorism is not a new threat, neither is it unique, re- 2002. See http://www.serve.com/ quiring a wholly different policing response. Tony Blair pfc/pf/pf12022002c.html seems to think problems can be legislated away simply by passing new and more repressive laws. The question might 30. Personal recollection reasonably be asked, how many innocent people have to be of author from interview at House of Commons in locked up for ninety days before more people become con- compiling “Diplock and vinced that terrorism is the only response left to them in de- the Assault on Civil fence of their communities or their faith? However, to ask Liberties,” Richard that very question may risk prosecution under the Terrorism Harvey, Haldane Society, 1981. Act 2006. We all need to be and to feel secure. That requires politi- 31. Liam Clarke & Tony cians to recognise that the rules have not changed but Geraghty, “Shoot to kill remain the same: respect the rule of law, respect human echoes Irish dirty war,” Sunday Times, 24 July rights and human dignity and apply the best strategy and 2005. TACTICS to prevent the killing of another Jean Charles de Menezes or the terrorising of another Forest Gate. I

Socialist Lawyer G July 2006 I 31 ‘I THOUGHT I WAS GOING TO DIE’

Last month 250 police officers stormed a house in east London. Sultana Tafadar looks at the consequences of a disastrous ‘anti-terror’ raid… he only crime I have done in suits, were present at the scene. A no-fly zone their eyes is being Asian and was imposed above the area. Having received with a long length of beard”, “specific intelligence” and conducted weeks of reflected Mohammed Abdul surveillance, the police were confident that Kahar, speaking publicly for they would find chemical weapons on the the first time on 13th June premises. “T2006, about his ordeal at the hands of the Wild speculation raged for days about what Metropolitan Police. Many, who had watched ensued thereafter. The brothers, British born the unfolding of one of London’s most public sons of Bangladeshi parents, would later give anti-terrorist raids, shared his sentiments. The a give a harrowing account of what actually shocking blunders committed by the police took place during the raid and the days fol- during the raid, on 2nd June 2006, which left lowing it at a press conference on 13th June. Kahar with a bullet though his chest, sparked Kahar related that how he was woken at outrage within the Muslim community. His around 4am by the screams of his brother. “I subsequent week-long detention, along with could hear him screaming, so I got out of bed. his brother, at Paddington Green Police station I just had my boxer shorts on and a T-shirt. It whilst fruitless searches of their homes were was dark and I assumed a robbery was hap- carried out, and their eventual release without pening. As I made the first step down the charge, left police and community relations in stairs, my brother was still screaming and I tatters. turned round to look at the stairs.” The fiasco of the Forest Gate raid raises dis- Moments later, he was shot in the upper turbing questions as to how this apparently right hand side of his chest, with the bullet ex- ‘intelligence’-led operation turned out to be so iting through his shoulder. He described how flawed; whether the police’s shoot to kill policy an armed man “looked at me straight away that resulted in the death of Charles De and shot. As soon as I turned the steps and we Menezes last year was in operation; and both had eye contact he shot me … As soon as whether racial and religious profiling is em- I turned round, I saw an orange spark and a “It was like a dream at first … But I realised it ployed by the police in targeting young big bang.” was not a dream and my own brother had Muslim men in pursuit of the “War Against He went on to describe how the force of been shot for no reason. They tried to murder Terror”. the bullet thrust him against the wall, and then my brother … After that I saw the officers hit- In the early hours of Friday 2nd June 2006, “I looked at the right of my chest and saw ting my brother.” 250 police officers descended upon the Forest blood was coming down and I saw a hole in Throughout the whole ordeal, the police of- Gate home of Mohammed Abdul Kahar, 23, my chest. I knew I had been shot.” A police of- ficers failed to identify themselves to the occu- and his brother Abdul Koyair, 20. Fifty police ficer struck him in the face with a gun as he lay pants of the house. Kahar related that he officers, including armed officers dressed in there. He begged, “Please, I can’t breathe,” but thought they were the targets of burglars. He black and wearing balaclavas, smashed down “they just kicked me in the face and kept described how he heard his mother crying and the front door of 46 Lansdown Road, Forest saying ‘Shut the f*** up.’ I thought they were screaming and thought, “ ‘One by one they’re Gate, and the adjoining property where the going to shoot me again or my brother. I feel going to kill us.’ I was just shouting ‘I ain’t two brothers lived. The aim of the operation ashamed for asking them to spare my life … done nothing.’ I was worrying about my was immediately made public – to prevent a One of the officers grabbed my left foot and brothers, everyone. At that time, I thought I lethal “suicide” chemical weapon from being dragged me down the stairs, my head was was going to die and thinking of everything at used. Specialist teams, including chemical war- banging on the stairs.” the last minute.” fare experts, wearing chemical protection Koyair gave a similarly harrowing account, The two brothers were subsequently ar-

32 I Socialist Lawyer G July 2006 the expirationof theinitialwarrantfortheir brothers foranadditional48hours following given permission,on7June,to holdthetwo existed onthepremises.Yet thepolicewere raid itbecameapparentthatno suchweapons weapons continued.Within 24hoursofthe ripped apartasthesearchfor thechemical tion wherehisbrotherwasbeingheld. to PaddingtonGreenhighsecuritypolicesta- Two dayslater, hewastakenforquestioning whilst hereceivedtreatmentforhiswound. Whitechapel andwasheldunderarmedguard taken toRoyalLondonhospitalin instigation ofactsterrorism.Kaharwas suspicion ofthecommission,preparationand rested undertheTerrorism Act,andheldon The housewherethebrothers livedwas the raidinForestGate Scotland Yard after protest outside Justice forMuslims’ Defend CivilLiberties, ‘Stop PoliceTerror, counts turnedouttobefalse. result ofwearingthickgloves. Alltheseac- cer had“accidentally”discharged hisgunasa officer. Itwaslaterreportedthatapoliceoffi- shot byhisbrotherwhohadfought withan shooting, andothersclaimedthat hehadbeen evidence tosuggestofficerswere behindthe struggled withofficers,somesaidtherewasno had beenshotintheshoulderafterhe ing policesources,somereportedthatKahar sponsible fortheshooting.Apparentlyquot- alleging thatthebrothersthemselveswerere- as tohowKaharwasshot,nearlyallreports in ForestGate,wildmediaspeculationraged account turnedouttobealie. ture ofaterroristtryingtoevadearrest.This onto anundergroundtrain,paintingthepic- ticket barrieratthetubestationandhadrun police whenapproached,jumpedoverthe sives. Itwasreportedthathehadrunfromthe supposedly todisguiseasuicidebeltorexplo- jacket fromwhichwireswereclearlyvisible, to thepressthathehadbeenwearingapadded the caseofMenezes,policeleakedclaims parently emanatingfromofficialsources.In ings weresurroundedbymisinformation,ap- tionate useofforce. ceeding regardlessandresortingtodispropor- were deeplyflawed,withpoliceofficerspro- fly zonewasestablished. ertheless 250officersweredeployedandano- premises, onlythetriggerormechanism.Nev- to findallthecomponentsofbombon dered togoin.Moreover, thepolicedidexpect intelligence, thepolicewereneverthelessor- rious reservationaboutthecredibility”of single source,anddespiteScotlandYard’s “se- is clearthattheintelligencecamefroma that thesourcewasapoliceinformant.What was beingpreparedatthesite.Othersreported terror “hotline”claimingthatachemicalvest initial intelligencecamefromacalltotheanti- of surveillance.Accordingtosomereports,the gence-led” operationaccompaniedbymonths transpired thattheyhadmadeafatalerror. firearms officersanddiedinstantly. Itlater was shotseveraltimesintheheadbySO19 of flatstoStockwellTube station.Therehe failed bombingsofJuly21,2005,fromablock mistakenly suspectedofbeinginvolvedin rorists orsuicidebombers. agencies onhowtodealwithsuspectedter- tion withIsraeliandSriLankanstatesecurity September 11,apparentlyfollowingconsulta- Kratos, thepolicywasdevelopedsoonafter bombings ofJuly7,2005.PartOperation tivated bytheMetropolitanpoliceafter the firstvictimof“shoottokill”policyac- 22, 2005inStockwellTube station.Hewas shooting ofJeanCharlesdeMenezesonJuly raises disturbingparallelswiththepolice’s shooting ofanunarmedmanduringtheraid, choice buttoreleasethemwithoutcharge. after eightdaysofsearching,thepolicehadno Nothing of“evidentialvalue”wasfoundand continued amidstwildmediaspeculation. detention. Thefruitlesssearchofthepremises Moreover, bothincidentswerefollowed by Similarly, withinhoursfollowingtheraid Both theMenezesandForestGateshoot- It appearsthatintelligenceinbothincidents The ForestGateraidwasalsoan“intelli- Surveillance officersfollowedMenezes, For many, theuseofexcessiveforceand from official sources’ apparently emanating misinformation, were surrounded by Forest Gate shootings ‘Both theMenezesand ally theysimply cannotaffordtolose. Government willhavetogetused tolosingan get usedtosuchhorrifictreatment, thenthe communities. IfMuslimcommunities haveto needs thehelpandsupportof theMuslim “War onTerror” bothhome andaboard,it only bedescribedasterrifying. threat tothelivesandlibertiesofMuslimscan cies inrelationtoIraqandAfghanistan–the volvement inCIArenditionflights,andpoli- threats toscraptheHumanRightsAct,in- als tocountriesthatroutinelyusetorture, powers, stepstakentodeportforeignnation- terror laws,alarmingextensionofpolice Terror” –theincreaseduseofdraconiananti- other measuresdeployedinthe“War Against those statisticsareviewedinthecontextof victed ofterrorism-relatedoffences.When Act 2000,ofwhichjust23havebeencon- 895 peoplewerearrestedundertheTerrorism Office figures,upto30thSeptember, 2005, handful ofconvictions.AccordingtoHome dreds havebeenarrested,leadingtoonlya been subjectedto‘stopandsearches’hun- than theirwhitecounterparts.Thousandshave subject tostopandsearchessixtimesgreater is apparentfromthefactthatMuslimmenare persons basedontheirreligiousbackground religious devotion. ment, becauseoftheirappearanceand community willbetargetedforsuchtreat- fears that,likeKahar, manymorefromthe disenchanted Muslimcommunity. Itconfirms ments rubsaltintothewoundsofanalready having tobesaferatherthansorry”,thecom- get usedtothissortofincident,withthepolice police officialthat“Thepublicmayhaveto police.” Addedwiththewarningfromasenior the partofoursecurityservicesand to livewithagreaterdegreeofprecautionon the modernworld,I’mafraid,isthatyouhave vestigate, takeactionon,theyshould....Partof ligence andtheybelievehavegottoin- if thepolice“haveareasonablepieceofintel- of theallegation. woman threeyearsago.Hewaslatercleared smeared byallegationsthathehadrapeda the house.Menezessimilarlyhadhisname in excessof£30,000hadbeenfoundcashat conference, newspapersreportedhowmoney a suicidebomber. Also,thedayafterpress cartoons whereoneparticipantwasdressedas demonstration againsttheDanishanti-Muslim two menbeingarrestedaftertakingpartinthe was speculationaboutanelderbrotherofthe ample, aftertheForestGateincident,there character assassinationofthevictims.Forex- As theGovernmentrecognises, towinthe An alreadydisproportionatetargetingof In defenceoftheraid,Tony Blairstatedthat Socialist Lawyer G July 2006 I I 33

Pictures: Jess Hurd / reportdigital.co.uk BookReview

as to whether torture can be by coalition partners in Iraq and “justified” are not really a debate Afghanistan are highlighted as Devastating legal as to the lawfulness of particular areas where governments may acts in particular situations (as be called to account. criticism of invasion the unqualified prohibition of Duffy takes apart the “legal torture is legally incontrovertible black hole” arguments often at this stage) but as to whether used to justify unilateralism and The War on tanamo Bay, she examines every the rule of law should be applied abuses. And she resists the view Terror and the aspect of the “war on terror” at all”. that state actions post-9/11 have Framework of through the prism of the law. The same point, of course, shifted the boundaries of “cus- International With fully annotated references can be applied to numerous other tomary law”. Their very con- Law she identifies the current legal actual or potential abuses: indis- tentiousness makes this unlikely. by Helen Duffy position, it’s sources, it’s ambigui- criminate aerial bombardment of But she warns of issues at the Cambridge ties and it’s debates in respect of civilian areas, targeted assassina- margins – extradition proce- University Press. each of the plethora of actions tion, grave breaches of the dures, “profiling”, listing of pro- £29.99 and responses that have Geneva Conventions relating to scribed organisations, derogation characterised the period. fair trial and the treatment of – where there is a danger of a n October 2001, Helen Duffy of While she avoids political prisoners etc. longer term low-level corruption Interrights circulated a 39-page comment or condemnation of There is a consistent pattern of standards. Ipaper on the legal issues thrown particular states – the global of failure to utilise available legal The book is critical of inter- up by 9/11 and the responses to impact adds up to a devastating mechanisms in preference for un- national institutions, particularly it. At the time there was some legal criticism of the actions of trammelled force. The relative the United Nations Security disquiet in legal circles – the doc- Britain and the USA and all states paucity of criminal prosecutions, Council. UNSC Resolution ument was circulated at meetings that co-operated, connived with globally, in the past five years is 1373, passed in the aftermath of of the short-lived Lawyers against or failed to stand up to them. one result. 9/11 placed binding obligations the War group in London. But Readers will be familiar with Another thread running on states to take extensive the invasion of Afghanistan came some of the issues raised as they through the book is a critique of counter-terrorist measures with- and went with little critical com- have been covered in this maga- the legal usage of the terms “ter- out simultaneously requiring ment from high profile lawyers. zine. Duffy’s contribution is to rorism” and “war”. The former human rights commitments. Some gave credence to notions of combine meticulously researched has consistently evaded any inter- This new “legislative” role, she “pre-emptive self-defence” or detail with the added benefit of nationally agreed legal definition argues, has reaped unfortunate “humanitarian interventionism”. bringing previously disparate after decades of effort, its utility consequences, not least due to By the time Iraq was invaded issues under one comprehensive seriously undermined by broadness the inadequate definition of this had all changed. Heavy- discussion. of scope and vagueness of mean- “terrorism”. weight legal academics de- Making the connections is ing. And deliberate obfuscation Duffy legally dismantles the nounced that war; a senior essential. It exposes consistent over the application of the latter is main justifications put forward Foreign Office lawyer resigned; patterns and over-arching themes. central to some of the most impor- for the invasions of Afghanistan and the Attorney General’s opin- This is a “war” that as been tant controversies – for instance and Iraq: Security Council ion was under critical scrutiny. fought in the name of “justice” the treatment of prisoners. authorisation, regime change, We then saw the House of Lords and “the rule of law”. But, read- She exposes a consistent pat- humanitarian interventionism, trashing internment without trial ing this book, it is difficult to tern of legal “selectivity” – in self-help in international enforce- and, more recently, the US avoid concluding that the driving respect of which law applies, for ment. She is particularly scathing Supreme Court’s fatal attack on forces are political and military. whom and for whose protection about that favourite excuse of the Guantanamo “military com- The author makes this – against which she asserts the Downing Street mouthpieces – missions”. point forcefully in rela- universality of law. One conse- “veto abuse” by oppositional One wonders whether the tion to torture. A recur- quence of this univer- states such as France. “war on terror” might have pro- rent theme of sality is not just its Events have moved on since gressed differently if, five years government application to state publication last year. An updated ago, the “legal community” had spokespersons in abuses in the “war on edition might cover the US been more urgently vocal. Would Washington and terror”, but also to Supreme Court decision, the parliamentarians and journalists London has been co-operation with or European Council report on have found it more difficult to the suggestion failure to prevent rendition flights and the current cover their abstentionism or that human rights such abuses by other contest over “control orders” in dithering behind confused no- and security are juxta- states. In certain cir- Britain. And a critique of the tions of “legality” for instance? posed as irreconcilable al- cumstances tacit col- “Iraqi Special Criminal Tri- Such criticism cannot be lev- ternatives. This helped laboration or passive bunal”, presently trying Saddam elled against Duffy. She wasted no open up a space for acquiescence is itself a Hussein and others, would be time in circulating her initial criti- debate over the possi- breach of human rights welcome – deserving a chapter cal analysis and that seedling has ble legitimacy of or humanitarian law. on its own. now grown to a 450-page oak. torture. The “rendition An indispensable resource Starting with the 9/11 atroci- But, as Duffy flights” scandal and irrespective of your standpoint. ties and finishing with Guan- argues, “questions abuses committed G Piers Mostyn

34 I Socialist Lawyer G July 2006 Don’t miss an issue…

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