Court delivers setback to anti-terror strategy
By Joshua Rozenberg, Legal Editor
Last Updated: 1:26pm BST 27/04/2007
The Government’s anti-terrorism strategy suffered a major setback this morning when a court ruled that two Libyans with links to Islamist terrorist groups could not be sent back to their own country.
Siac, the special anti-terrorist court, found a “real risk” that the un-named men could be tortured or ill-treated in breach of the Human Rights Convention if they were deported — despite an agreement between Libya and Britain signed in 2005.
“There is also real risk that the trial of the appellants would amount to a complete denial of a fair trial,” Siac found.
The two men will be freed within days after Siac granted them bail in principle, pending an application by the Home Secretary for permission to appeal.
Counsel for the Home Office had opposed bail on the grounds the Libyans would abscond if let out of Long Lartin maximum security prison, where they have been under immigration detention.
However, Mr Justice Mitting, the Siac chairman, said keeping the men in detention after they had won their appeal would be on the “cusp of legality”.
The court heard that a strict set of bail conditions had been agreed between the Home Office and lawyers for the two men, including a daily 12-hour curfew.
The addresses at which the pair will be required to live will be finalised in a hearing next Thursday.
At the heart of the Government’s case is a memorandum of understanding between Britain and Libya, which provides for an independent body to monitor the way in which a detained person is treated.
However, the monitoring body is headed by one of Col Gadaffi’s sons.
Siac found that this non-governmental organisation would not be able to prevent abuses by the Libyan dictator or his security organisations.
“The fact that it may be the best NGO in Libya for the task does not make it necessarily sufficient,” Siac said.
There was an “element of unpredictability” about Col Gadaffi’s actions, the court found. “The need in this case to make a large allowance for the unpredictable reaction, which in the short term or occasionally diverges from the pragmatic path on which the Libyans are set, means that we cannot eliminate the real risk we have identified.”
The Home Office said it was “very disappointed” with the decision.
“We believe that the assurances given to us by the Libyans do provide effective safeguards for the proper treatment of individuals being returned and do ensure that their rights will be respected,” a spokesman said.
John Reid, the Home Secretary, would be appealing against the decision, the spokesman added.
However, Mr Justice Mitting said: “My provisional view is that the prospects of successfully applying for permission and of challenging the decision of the commission on a point of law in the Court of Appeal are scant.”
The Home Office said its policy would not change.
“We firmly believe that our policy of seeking assurances from other countries in respect of those considered to pose a threat to national security strikes the right balance between safeguarding their rights and enabling us to protect the British public and Siac has accepted this previously,” the spokesman said.
Mr Justice Ouseley, who heard the appeal last year with two other members of Siac, said in a written ruling this morning that they were required to consider only the risks that the two men could face if they were returned to Libya, “no matter how grave and violent the risks … they pose to the UK”.
That was because Siac was bound to follow a ruling in by the European Court of Human rights from 1996 in a case brought against Britain by a Sikh nationalist, Karamjit Singh Chahal.
That decision, Siac stressed, would have been binding even if Parliament had not passed the Human Rights Act in 1998.
Britain has been trying for more than a year to overturn the Chahal ruling, but there is still no date for a challenge to be heard by the European Court of Human Rights.
The two Libyans who won their appeals are not linked.
The first, known as DD, claimed asylum when he arrived in Britain in January 2004 with his pregnant wife, a Moroccan. He was carrying a Spanish passport in another name.
Siac concluded that he was a member of the Libyan Islamic Fighting Group, involved in supporting Islamist extremists loosely affiliated to al-Qa’eda.
They were said to have been engaged in terrorist activity for a substantial period of time and well placed to help those who were planning terrorist attacks in Britain and abroad.
The second Libyan, AS, arrived in 2002 and also claimed asylum. He served a brief prison sentence for using a forged Italian identity card and handling a stolen British passport.
He is alleged to be a committed Islamist extremist who had been actively involved in providing logistic support to individuals linked to al-Qa’eda.
Italy sought his extradition for serious terrorist offences but later withdrew the application.
After being tried in his absence in Italy, AS was acquitted of terrorist crimes but convicted of other offences. Siac concluded today that “each appellant is a danger to national security and the Refugee Convention provides no protection against removal”.
But there remained a real risk of breaches of Article 3 of the Human Rights Convention, which prohibits torture and degrading treatment.
“That is because there is too much scope for changes to happen, for things to go wrong; and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring.”
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