10 June 2009

Secret evidence no good in English terror trial

Three terror suspects on control orders have unanimously won a major ruling over the use of secret evidence.

Nine Law Lords allowed the men's appeals after they had argued they did not know what they were accused of.
A control order seems to be a kind of house arrest scheme: curfew, ankle bracelets with electronic surveillance transponders, and restrictions on association and travel. In the U.S., equivalent house arrest restrictions would pose major First Amendment problems, I would guess, so the government would have to prove to a very high standard that the restrictions were required. (On the one hand, the government would probably say, "They're prisoners so the government has more discretion." And the counterargument would be that they're only suspects, not convicts, so the reason for allowing all those First Amendment violations in prisons shouldn't apply.) But in the U.K., until this ruling, a terror suspect under a control order would not be allowed to know "any of the secret intelligence assessments that form the basis of the restrictions." Yikes: the government calls you a terror suspect, won't let you see the evidence they have for the charge, and puts you under house arrest anyway.

Control orders haven't been abolished, however. Some 2 dozen men are still under control orders in the U.K., and the prosecutors appear to be waiting for them to take the initiative themselves to try to get released.


Mithras said...

"On the one hand, the government would probably say, 'They're prisoners so the government has more discretion.'"

I think it would be perfectly permissible if someone who otherwise could be held without bail were to be released on bail with such restrictions.

Glomarization said...

Good point -- I'm not sure that these suspects are formally charged or arraigned (or whatever the English equivalent is). It certainly doesn't seem to me that they share the same status as people who could otherwise be held without bail, but I could be wrong. I haven't looked into the issue beyond this one news article.

I'd be much more qualified, at this point, to explain how you can make a restrictive covenant run with the land, than to explain how U.K. criminal law justifies the way it treats its "terror suspects."