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The Cost of Indefinite Detention

The fact that detention powers under Part 4 cannot be used against U.K. nationals highlights a fundamental weakness of the reliance on indefinite detention as a means of combating terrorism. Such a detention regime cannot counter the terrorist threat from nationals of the U.K., providing only the illusion of security. Moreover, undue reliance on indefinite detention of non-nationals may hamper the development of a comprehensive counter-terrorism strategy based on effective law enforcement and enhanced capacity to address terrorism through the criminal justice system.

This weakness is at the core of the Newton Committee’s concerns about indefinite detention under Part 4. The committee notes that “what is important is the nature of the threat, not the ideology behind it, or the nationality of the perpetrator,” adding “we have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals.”⁴⁹ The Newton Committee thus recommends the repeal of Part 4 of ATCSA and its replacement with legislation to deal with all terrorism “whatever its origin or the nationality of its suspected perpetrators.”

The impact of Part 4 on U.K. nationals, however, is not neutral. First, the indefinite detention of foreign nationals creates a disincentive to the overall development of a criminal justice counter-terrorism strategy. An analogy can be drawn from the experience of “M,”⁵⁰ the first ATCSA detainee to be released by the SIAC on the grounds of insufficient evidence to merit certification. M, a thirty-eight-year-old Libyan national, was held in Belmarsh maximum security prison for sixteen months. During that entire period M was never interviewed about what he knew or might have known by the police, security services or any other agency.⁵¹

Were M to have been arrested on terrorism charges under the Terrorism Act 2000, he could have been held for a maximum of seven days and questioned extensively, with a view to his prosecution and to obtain intelligence and evidence against others. Neither prosecution, nor intelligence and evidence gathering appear to have been objectives of the U.K. authorities with respect to M, raising serious concerns that the indefinite detention regime does not contribute to the effort to combat terrorism on key operational measures. The fact that M was released after sixteen months due to lack of evidence against him indicates that his detention did not meet the most obvious objective of Part 4 of the act: taking suspected terrorists into custody, even indefinitely, in order to inhibit future terrorist activity.

Second, the internment of foreign nationals under Part 4 has had an adverse impact on race and community relations in the U.K. The ATCSA detainees are predominantly (if not exclusively) Muslims who are being held indefinitely and have not been charged with any crime. A number of the detainees have alleged ill-treatment in detention, and groups such as Amnesty International have challenged the conditions of detention as cruel and degrading.⁵² The ATCSA detentions are regarded by some observers as an injustice suggestive of the detentions at Guantanamo Bay. The concern among British Muslims, in particular, over the treatment of the detainees is linked to a perception that the U.K. government and security services regard all Muslims as potential terrorists. The Newton Committee commented that “we have heard evidence that the existence of these powers, and uncertainty about them, has led to understandable disquiet among some parts of the Muslim population.”⁵³ Speaking of seven men arrested during a January 2003 raid on a mosque in London, Inayat Bunglawala, who is the Secretary of the Muslim Council of Britain’s Media Committee, argued “[t]o detain them indefinitely – as is already the case with several suspected terrorists in Belmarsh prison – will only undermine the trust of Muslims in our judicial system and the rule of law.”⁵⁴

The practical consequence is that British Muslims are less likely to have confidence in the actions of the security services, courts and police, and are thus less likely to cooperate with those institutions.⁵⁵ The spokesman for Muslim issues at the Commission for Racial Equality, who has noted the “tremendous disquiet within the [Muslim] community,” argues that “[t]he community has the responsibility to co-operate with security agencies to ensure our own safety - but the way to get that co-operation is not by terrorising people.”⁵⁶ The U.K.-based Islamic Human Rights Commission has made a similar argument: “The targeting of Muslims in the war against terrorism has served no purpose but to alienate the Muslim community, increasing fears that the security forces and the judiciary are not serving them equally. The danger is that it makes policing with consent difficult.”⁵⁷

The government has justified the use of its powers under Part 4 on the ground that it has done so “sparingly.”⁵⁸ When assessing this argument, it is important to examine the human cost of indefinite detention. Two recent SIAC cases make clear that for the detainees it has been extremely high.

Detainee M was released on March 18, 2004, after sixteen months in detention under the ATCSA. M was detained at Heathrow airport in November 2002 and certified the same month, but his appeal was not heard until January 2004—largely due to the very slow place at which the SIAC has heard ATCSA appeals.⁵⁹ As the Newton Committee noted before M’s release, this period “is equivalent to a significant custodial sentence,” adding “[s]ome of those involved argue that this [delay] is not intrinsic to the process, and draw attention to earlier, pre-Part 4, [SIAC] cases relating to attempted deportations on national security grounds, which were less protracted.”⁶⁰

In allowing M’s appeal against his certification, the SIAC variously characterized the evidence against him as “unreliable,” “inaccurate,” and “clearly misleading.”⁶¹ It concluded that the certification was unreasonable and that the government had failed to provide evidence establishing a reasonable suspicion that M was involved in international terrorism. M therefore spent sixteen months in detention without cause.

Despite the fact that the Home Secretary has cited the SIAC’s independent review powers to justify detentions under Part 4 of the ATCSA, ⁶² and despite the SIAC’s highly critical findings regarding the quality of the evidence on which the certification was based, the government appealed the decision in M’s case to the Court of Appeal.⁶³ The appeal was effectively a disagreement with the SIAC’s findings of fact, equivalent to an appeal against acquittal in a criminal case. The Court of Appeal led by the Lord Chief Justice Lord Woolf dismissed the government’s appeal and refused to grant permission for an additional appeal to the House of Lords, on the ground that the SIAC judgment disclosed no error of law.⁶⁴ Lord Woolf stated in the judgment: “It has not been shown that this decision was one to which SIAC was not entitled to come because of the evidence, or that it was perverse, or that there was any failure to take into account any relevant consideration.”⁶⁵

The government’s determination to enforce detention no matter the human cost is also evident in its approach to the case of a second ATCSA detainee, known as “G.” As one of the first ATCSA detainees, G was detained at Belmarsh prison following certification on November 2001. His appeal against certification was dismissed by the SIAC on October 29, 2003, after the court accepted the U.K. government’s assessment that G posed a threat to national security. G is disabled from polio and suffers from mental illness. Medical evidence was presented at his appeal demonstrating that he had suffered a mental breakdown and as a consequence of his detention had become “psychotic” and a suicide risk.⁶⁶ SIAC subsequently granted G bail on January 20, 2004, on the ground that his mental health had further deteriorated after the dismissal of his appeal.⁶⁷ Extremely strict bail conditions amounting to house arrest were imposed on G. Under the bail terms, G is electronically tagged and cannot leave his house except under police escort, is forbidden to have contact with persons not pre-approved by the government, and is forbidden to have access to the Internet. His telephone is also monitored. The SIAC President Mr. Justice Collins explained the court’s decision: “Were he to remain in custody there would be a very real risk of a deterioration in his condition. House arrest with very stringent conditions ... will mean the public can be adequately protected.”⁶⁸

Despite the medical evidence and strict bail terms, the U.K. government immediately obtained an injunction preventing G’s release and appealed the grant of bail to the Court of Appeal. The Court of Appeal eventually determined it had no jurisdiction to hear the appeal,⁶⁹ and G was released on bail on April 22, 2004, subject to the stringent conditions imposed by the SIAC.⁷⁰ G’s legal representatives argued that his mental and physical health had deteriorated as a consequence of the indefinite nature of his detention, suffering a marked decline after the dismissal of his appeal in October 2003.⁷¹ 

The Home Secretary criticized the bail decision as “extraordinary” and announced his intention to seek legislative amendments to a pending immigration bill to permit him to challenge future SIAC decisions to grant bail.⁷²

The impact of indefinite detention on mental and physical integrity can be further assessed by reference to another detainee: Mahmoud Abu Rideh. Rideh is a Palestinian stateless person and recognized refugee with a history of being tortured prior to his arrival in the U.K. He was transferred to Broadmoor high security psychiatric hospital in July 2002 against his wishes.⁷³ While his consultant at Broadmoor acknowledges that Rideh is not ill enough to warrant detention at the high security hospital, a Mental Health Review Tribunal has determined in January 2004 that Rideh’s “mental and physical health would rapidly and seriously deteriorate if he were returned to Belmarsh.⁷⁴

While the cost of indefinite detention on the detainees and its incompatibility with human rights standards should be reason enough for the U.K. government to reconsider its exercise of the powers, its adverse impact hardly ends there. The detention regime does nothing to counter the threat from U.K. nationals involved in terrorism, and may actually inhibit the development of effective counter-terrorism strategy that would address that threat. Worse still, the indefinite detention regime has served to alienate British Muslims and weaken their trust in the work of the police and security services at a time when the cooperation and support of that community is most needed.