ECtHR, XX & XX against the United Kingdom, 6610/09 and 326/12
- 2009
- United Kingdom
Topics
Membership in a terrorist organisation Violent extremismLegal bases
European Convention on Human Rights United Kingdom: Police and Criminal Evidence Act 1984 (PACE)Courts
European Court of Human Rights (ECtHR)Laws
Right to a fair trial Torture, degrading and inhuman and treatmentFacts
Mr. XX (Applicant), is a joint British and Pakistan national who is currently detained in HMP Whitemoor (UK). He was born in Pakistan in 1975. In 1994 he moved to the UK but returned to Pakistan in November 2001. On 30 March 2004 six men were arrested in the UK and charged with conspiracy to cause explosions. Mr. XX’s uncle, a Brigadier in the Pakistan army who had contacts with the Pakistan authorities, heard that the UK authorities were seeking Amin in connection with the arrest of these six men. He encouraged Mr. XX to surrender voluntarily to the authorities in Pakistan. The applicant complains that he was beaten and tortured by the ISI (Pakistani Intelligence Services). He states that he was also threatened with deportation to Guantanamo by American agents. Mr. XX never stated or claimed that British intelligence officers carried out the abuse or threats; however, they did visit Pakistan to question him about his involvement in the terrorist organisation, al Qaeda. Mr. XX gave up the names of six other operatives in London that were arrested on charges of terrorism offences. He states that he was told he could walk free now that the six had been arrested based on the intelligence that he provided to ISI. However, on immediate return to London he was arrested by the Met Police; he confessed to being involved in a terrorist organisation when questioned upon which he is later charged with the offence of 'conspiracy to cause explosions' likely to endanger life or cause serious injury to property contrary to section 3(1)(a) of the Explosive Substances Act 1883. The applicant was sentenced to life imprisonment with a recommended minimum term of seventeen years and six months. The applicant had stated in his defence that he was not at all involved in terrorism and that he had been treated 'inhumanely' in Pakistan; that his previous admissions given in Pakistan to the ISI confirming his involvement in the terrorist conspiracy which had led to the arrest of the six men in London were false. On 3 May 2005 the applicant’s solicitor wrote to the Crown Prosecution Service (“CPS”) requesting disclosure of all records, documents and communications between the authorities of the UK, USA and Pakistan concerning the applicant’s apprehension, detention, interrogation and treatment while in custody in Pakistan and all documents concerning his “deportation” to the UK. A request was also made for a record of all confessions together with any information bearing on the legality of his removal from Pakistan to the UK. The CPS replied that the material requested was subject to Public Interest Immunity (“PII”) and that there was no guidance and comparatively little case-law on the steps to be taken when material was in the hands of agencies outside the United Kingdom. The judge subsequently made an order that the Crown should serve the material bearing on these issues which was already in their possession within seven days. On 24 October 2005 the Crown made an ex parte application for a ruling that the disclosure of certain material in its possession would be injurious to the public interest. On 14 November 2005 the Crown served a formal notice of an application for those parts of the evidence that related to the applicant’s treatment while in detention in Pakistan to be heard in camera. The Crown submitted that if this evidence were to be heard in public, there would be a substantial risk to national security. In a decision dated 28 November 2005 the Court accepted that general publication of the evidence in question could give rise to a substantial risk to national security and granted the order sought. The applicant’s appeal against this decision was dismissed on 13 January 2006. Pursuant to Rule 67.2 of the Criminal Procedure Rules 2005, the appeal was determined without a hearing. The applicant applied for the prosecution to be stayed as an abuse of process. In particular, he submitted that United Kingdom agents had been complicit in his torture and inhuman and degrading treatment in Pakistan and that the United Kingdom had made use of the “fruits of this abuse”.
Legal grounds
Section 76 of the PACT; Section 78 of the PACT (admission of confessions in evidence); Article 3 ECHR.
Findings
On 17 February 2006 the trial judge announced his decision not to grant a stay for abuse of process and not to exclude from the evidence confessions obtained from the applicant in the United Kingdom. The judge held that while he accepted that the applicant had been treated in Pakistan in a manner that would be wholly unacceptable in the United Kingdom, and which amounted to “oppression” he did not accept that his treatment was as severe as he had alleged. As the confessions made in the United Kingdom were neither directly nor indirectly the product of any abuse, the judge did not consider that it would be unfair to admit them in evidence. The applicant appealed to the UK Court of Appeal against his conviction and sentence on the grounds that the trial judge should have allowed his abuse of process application. More particularly, he complained that the trial judge failed to conduct the pre-disclosure process in a way which minimised the restriction upon equality of arms, that he wrongly approved the outcome of the disclosure process, and that the defence was significantly hampered in investigating material relevant either to the issue of United Kingdom complicity in the applicant’s ill-treatment or to the admissibility in evidence of the applicant’s London interviews. The Court of Appeal had dismissed the appeal. The court found that there had been no transgressions by the UK government as they were found not to have been involved in the imprisonment of Mr. XX in Pakistan. Furthermore, the confessions of the applicant in London happened outside of a reasonable time to be considered under duress and were gained with access to UK criminal defence lawyers. There was no evidence that the UK was complicit in the applicant’s treatment or had organised any mistreatment of him. When he was arrested in London, he was so fairly treated and so his confession of terrorist involvement was fairly obtained. The UK was also seen to have complete justification and reason to arrest Mr. XX on his arrival to the UK at Heathrow Airport.