LONDON (Reuters) - Britain’s highest court, the House of Lords, ruled against the government on Wednesday in a sensitive case involving the use of secret evidence to justify imposing home curfews on terrorism suspects.
Nine law lords unanimously upheld an appeal by three men who argued it was against their human rights to be subject to control orders, a form of house arrest, based on secret evidence they are not privy to and cannot challenge in court.
“A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him,” wrote Nicholas Phillips, Britain’s most senior law lord, in issuing the lengthy judgment.
“If the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.”
The decision does not overturn the use of control orders, introduced by the government in 2005 and which allow terrorism suspects to be kept under curfew for up to 16 hours a day, but it does call into question a central element of the policy.
The orders have been used to restrict the movements of individuals the authorities suspect of involvement in terrorism, but against whom they lack sufficient evidence to mount a trial.
Human rights and justice organizations say they violate fundamental rights and freedoms, running the risk of turning Britain into a police state, with suspects placed under tight surveillance without knowing what they have done wrong.
Because the orders rely on secret information collected by the security services that cannot be made public, they also presume guilt without evidence being presented and without it being able to be challenged in court.
The cases of the three men — a British-Syrian, an Iraqi and a joint British-Libyan national — will now return to the High Court for review. It is the second time the House of Lords has ruled against control orders, 17 of which are in force.
The government said it was “extremely disappointed” by the ruling and would consider it carefully.
“Protecting the public is my top priority and this judgment makes that task harder,” Home Secretary (interior minister) Alan Johnson said in a statement.
“We introduced control orders to limit the risk posed by suspected terrorists whom we can neither prosecute nor deport. All control orders will remain in force for the time being and we will continue to seek to uphold them in the courts.”
Since their introduction, control orders have been used relatively sparingly, with a total of 38 people subjected to them. Seven of those have absconded while under watch.
Rights campaigners said the law lords’ decision could mark a turning point in the use of secret evidence in control orders.
“One thing is clear from this judgment, it’s going to be much more difficult for the government to sustain the use of control orders when they have to disclose the evidence to the suspects,” said Eric Metcalfe of the campaign group Justice.
“Parliament and government have to decide whether they are going to limp on with using secret evidence in control orders or whether they can actually take the bold step of getting rid of it once and for all,” he told the BBC.
Reporting by Luke Baker; Editing by Kate Kelland and Mark Trevelyan