Saturday, May 28, 2016

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Insulated From Challenge


Tony Taylor is a Republican prisoner from Derry who has been sent to Maghaberry prison indefinitely on the orders of the British Secretary of State, Theresa Villiers. Ms. Villiers who has no mandate in the north of Ireland, revoked Tony's release licence in March of this year when Tony was arrested in full view of his family whilst on a shopping trip by armed PSNI officers who surrounded the family car.

The decision to return Tony Taylor to prison is not based on a new conviction which has been proved beyond reasonable doubt by a competent legal authority. This decision has been made by Northern Ireland Office, the British Secretary of State, the NI Parole Commission and all on the strength of alleged MI5 intelligence.

Within these unaccountable structures secret evidence is produced in a closed room during what is known as Closed Material Proceedings. In these cases the state that makes the decision to detain you appoints a ‘Special Advocate’ to represent you. However the advocate who has been appointed as your representative cannot discuss the alleged evidence with you. What he or she can do is give your legal team a 'gist' of what is being alleged, which needless to say is insufficient in terms of building a robust legal defence. The role of the special advocate was described by the late British Law Lord, Lord Bingham as being akin to ‘taking blind shots at a hidden target’.

A core principle within the justice system is to know the case against you so as to have the opportunity to build a defence in respect of that case. Closed Material Proceedings (secret evidence) remove this basic right. These procedures may meet the minimum standards required by article 6 of the European Convention on Human Rights but they are not and cannot be objectively fair as has been acknowledged by senior members of the British Judiciary.

In an article written by Martin Chamberlain QC which was published in the Daily Mail on March 13th 2012 he provides a scenario to explain the challenges he faced when he acted as a special advocate in court.

Whenever I have acted as a special advocate, I have done my best to try to undermine the Government’s case – and sometimes I have succeeded. But not often. That is in part because, after seeing the closed material, I am prohibited from speaking to my client. If the state alleges that my client met a terrorist at a particular time, I cannot ask him whether he was there and if so, why. So I will never know if he had an alibi or an innocent explanation for the meeting; and nor will the court.

In the case of Al Rawi and others v The Security Service, Supreme Court Justice Lord Kerr had this to say in respect of Closed Material proceedings:

The central fallacy of the argument … lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.

In the above case the government argued that they had the right to hold civil trials in secret, despite no law permitting this. The UK Supreme Court threw the case out, with Lord Kerr further stating that the "right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness."

Despite this Closed Material Procedures were later introduced in UK Civil Courts in 2013 via the Justice and Security Act.

With Lord Kerr's comments in mind we must question the use of Closed Material Proceedings and whether or not they are really in the interest of national security or if they are a way of covering over information the government don't want disclosed. This was witnessed in the case of Binyam Mohamed. Binyam Mohamed from Ethiopia who was granted refugee status in Britain in 1994 was later detained in Pakistan in 2002 on suspicion of involvement in terrorist activity. Following this he was taken to Morocco and Afghanistan. Here he was subjected to torturous treatment at the hands of his US captors before being sent to Guantanamo Bay in 2004.

During his trial Mr Mohamed said that MI5 was complicit in his torture as they could have intervened but instead chose to help his interrogators by supplying questions for them to ask. In this case the government attempted to cover information which the High Court insisted ‘could never properly be described in a democracy as a "secret" or an "intelligence secret" or a "summary of classified intelligence"’. It was later found that the paragraphs that had been kept hidden contained ‘admissions of what officials of the US did to BM during his detention in Pakistan’. In this case there was an attempt to use the national security card as a veil of secrecy as opposed to being a mechanism to protect the public. This is the same national security card being used in the case of Tony Taylor and the same card which will no doubt hinder attempts to deal with the North's murky past through new proposed mechanisms outlined in the now redundant Stormont House Agreement.

In a 100 page report compiled by the Committee for the Administration for Justice in 2012 the following points were raised in relation to MI5's role in the north: “MI5 – secret, unreformed and unaccountable – is now running one of the most sensitive areas of policing”. The report went on to stress that “this is a disaster waiting to happen to confidence in the rule of law and our peace settlement”. With this and the role of M15 in the above case of Binyam Mohamed how are people expected to have any faith in policing when an organisation described as being opaque and dangerously unaccountable play a prominent role in policing albeit covertly?

When you consider the case of Binyam Mohamed you have to wonder if the alleged intelligence used to incarcerate Tony Taylor is in the interest of national security or if it's been kept behind closed doors because it won't stand up to scrutiny. Moreover I would question if the framework used in Tony Taylor's case and in other cases involving closed material proceedings is being abused to curtail the lawful political activity of ex-prisoners such as Tony Taylor with the information used to hold Tony being insulated from challenge.

Tony Taylor's situation is reminiscent of that of Lurgan man Martin Corey who was incarcerated in Maghaberry in similar circumstances. Corey was released four years later into internal exile in that he could not return to his own home despite never being charged with any crime. If a person has a case to answer then they should be given the opportunity to do so as anything else amounts to internment without trial irrespective of how the state tries to sell it.

To play your part in helping address the treatment of Tony Taylor I would ask that people register their concerns in writing with the relevant authorities and with the press outlets that publish public letters. I would also ask that you write to your local human rights groups, trade union groups and elected representatives to have them raise this case on every platform available to them. Tony's incarceration demonstrates a blatant abuse of power, scant regard for basic human rights and a complete disregard for the fundamental principles of justice.

There are elected representatives who think that raising Tony's case in Stormont is a pointless exercise with this situation falling under the remit of the Northern Ireland Office. For MLA's of this opinion I would urge you to rethink this with every injustice and human rights abuse worldwide deserving of a public platform. Retired SDLP MLA Pat Ramsey raised issues similar to that of Tony Taylor's. His input alone helped attract press attention and in doing so elevated the profile of each case he raised.

The higher the public profile the more pressure can be applied to those in a position to release Tony Taylor.

2 comments :

AM said...

Good job Pauline for highlighting this. The British security state wants people like Tony Taylor to be buried out of sight and out of mind.

DaithiD said...

The security services are not infallible,Iraqis are still paying in blood for that assumption in Fallujah today. If there is evidence, it must be challengable.This secret court and secret evidence stuff is all very Saddamesque actually.