Not Saussure

October 12, 2006

Contradictory evidence in secret trials

Filed under: civil liberties, Law — notsaussure @ 2:58 pm

A good example of why evidence against the accused needs to be tested openly and why the defence needs access to unused materials in a prosecution:

A judge in a secret hearing has criticised the Home Office over contrary MI5 intelligence in the trial of two terrorism suspects.

The intelligence only came to light because – by chance – the same barrister was acting in both cases.

Mr Justice Newman said the “administration of justice” had been put at risk in the trial of Algerian Abu Doha and a suspect known as MK.

Human rights group Liberty has called for an urgent review.

Both sets of contradictory evidence had come from MI5.

The BBC’s home affairs correspondent Daniel Sandford said the cases were being heard separately by a secretive terrorism court known as the Special Immigration Appeals Commission.

But after MK’s case had finished it became clear that the evidence against him was being contradicted by that in the Abu Doha hearings.

The Times has further and better particulars:

MK, 33, was arrested in 2004 because of his association with Abu Doha, an Algerian militant who has been charged in America in connection with the plot to bomb Los Angeles International Airport on December 31, 1999. Abu Doha has been described as Al Qaeda’s chief recruiter in Europe.

Among the allegations made against MK, based on intelligence gathered by the British security services, was the charge that he let Abu Doha use his French passport to travel to Ireland in 1997 and the Netherlands the following year.

But during MK’s secret hearing on May 19 this year, the Government withdrew the alleged passport violations after being shown evidence by Mr Nicol, who represented Abu Doha in a separate hearing relating to his deportation to the US.

In an addendum to the closed judgment for MK, which was released today, Mr Justice Newman wrote: “Had the coincidence of Mr Nicol’s instruction in both cases not occurred, the Commission would have been left to determine the question whether Abu Doha used the appellant’s passport, on a false basis.”

“It is unnecessary to elaborate on the consequences which might have flowed had the Special Advocates not drawn the Commission’s attention to the existence of these documents.”

Mr Justice Newman observed that the security services do not “establish an evidentiary trail” when preparing material for Siac cases and criticised the Home Office lawyers for not preparing their case more thoroughly.

It’s also a good example of why determining these matters is best left to courts, rather then Home Secretaries who’ve been woken in the middle of the night, even if they’re on the verge of a breakdown at the time.

The point of testing evidence in court and insisting on proper procedures isn’t to give the guilty a sporting chance of getting off; it’s to try to ensure that you don’t go off on tangents and reach the wrong decision. As this case shows, ‘intelligence’ isn’t evidence and shouldn’t be used as such.

‘Intelligence’ — according to friends of mine in NCIS and HM Customs who deal in the commodity — is a collection of more or less well informed rumour, gossip and speculation based on fact. ‘Good intelligence’ is what my HM Customs chum wants before he’s willing to commit time and resources to investigating whether there’re any facts to back it up; and one reason why he very much dislikes dealing with the security services is precisely that they’re very unwilling to give even him — a senior customs officer — the information he needs to assess whether their ‘intelligence’ is worth following up or if it’ll be a wild goose chase. ‘Take it from us, old boy,’ really isn’t adequate.

But then my Customs chap has to justify his operations by results. He can’t say that his ‘overriding duty’ is ‘to protect the British people from gun and drugs’ and go around locking up people on spec, even supposedly well-informed spec.

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