Secret "justice" is nothing of the sort

Plans for secret courts in Britain would keep abuses secret too.

Judges often look at a person’s intention to understand the true meaning of their actions. A similar approach is needed with the controversial Security and Justice bill, which the House of Lords will begin reviewing on Tuesday (June 19).

The widely criticized bill would widen the use of secret hearings in the civil courts whenever national security grounds are invoked, excluding the person affected and his or her lawyer from the courtroom, thereby undermining a basic principle of justice: the ability to know the case against you. The bill would also prevent disclosure of material showing UK involvement in wrongdoing by other countries.

Notable opponents of the plans include most of the lawyers who act in secret hearings (known as “special advocates”) who are well placed to understand how such hearings undermine fairness. They are barred under current rules from consulting with the person on whose behalf they are supposed to be acting, or that person’s lawyers, about the secret part of the case.

Earlier proposals from the government to permit inquests into suspicious deaths to be held in secret and to allow secret hearings on even broader “public interest” grounds have thankfully been dropped, although opinion is divided on whether their original inclusion was merely a negotiating tactic.

The government’s intentions can be traced back to July 2010, when the Prime Minister first announced the proposals, alongside plans for an inquiry into UK complicity in torture and rendition, and changes to the guidance given to security services about interrogating suspects held outside the UK.

The announcement came after a series of embarrassing revelations under the previous government about UK knowledge and involvement in US and other government’s abuses against British citizens and residents in Guantanamo Bay, Pakistan and elsewhere.

The decision to hold an inquiry made all the headlines, and was welcomed at the time by Human Rights Watch and other NGOs. But when the terms of reference for the inquiry were made public in July 2011 it became clear that the government was not prepared to give the inquiry the independence and authority it needed to get to the truth, leading to a boycott by NGOs and lawyers. In January 2012 it was scrapped, with a commitment to hold a fresh inquiry at a later date.

The secret justice plans drew less attention at the time. The Prime Minister told Parliament that they were needed because the security services being “paralysed by paperwork” and Britain’s intelligence relationship with the US was being put in danger by public disclosure of US intelligence material shared with London.

But set in the context of the government’s efforts to limit its own inquiry and having seen the detail of its plans, it is evident that the government’s intention with the Justice and Security bill is to ensure that if abuses are repeated in future they will never see the light of day in British courts.

Recall how the previous Labour government fought tooth-and-nail for the British courts to prevent the publication of seven paragraphs of a court judgement in a civil case brought against the Foreign Secretary by former Guantanamo detainee Binyam Mohammed.

As his lawyers have made clear, the material that the UK sought to block had already been made public in the US courts. When it was published, the real reason for the strength of the government’s objections became clear – the paragraphs showed that the UK knew early on that Binyam Mohammed was being tortured, a deeply embarrassing revelation.

The bill does contain one welcome element. The MPs and Lords who sit on the body that oversees the security services will now be appointed by parliament rather than the Prime Minister as now.

But the Intelligence and Security Committee (ISC) will otherwise remain toothless, with the Prime Minister able to veto investigations or block publication of material on broad grounds, and without the committee having the power to compel witnesses and evidence as the US Senate Intelligence Committee has. The Lords should use the bill as an opportunity to strengthen the oversight powers of the ISC.

Evidence continues to mount that the UK government was complicity in torture and rendition overseas. Last September, Human Rights Watch found evidence in Tripoli linking the British security services to the rendition of two Libyan men and a woman into the hands of the Gadaffi regime and the likely torture of the two men. Those cases are now rightly the subject of ongoing criminal investigations in the UK (the stated reason for halting the Gibson Inquiry).

The Libya cases are also the subject of civil suits against former UK government officials and the UK government itself. Those cases are an important measure of accountability and bulwark against future abuse. Yet if the government gets its way with this bill, such cases will be held behind closed doors, the victims and their lawyers, journalist and the public excluded. That is no justice at all.

Former Guantanamo detainee Binyam Mohammed speaks. With these plans, his story would be depressingly commonplace. Photograph: Getty Images

 

Benjamin Ward is deputy director in Human Rights Watch’s Europe and Central Asia division

Photo: Getty
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In focusing on the famous few, we risk doing a disservice to all victims of child sexual abuse

There is a danger that we make it harder, not easier, for victims to come forward in future. 

Back in the 1970s when relations between journalists and police were somewhat different to today a simple ritual would be carried out around the country at various times throughout the week.

Reporters, eager for information for their regional newspaper, would take a trip to the local station and there would be met by a desk sergeant who would helpfully skim through details in the crime Incident Book.

Among the entries about petty thefts, burglaries and road accidents there would occasionally be a reference to an allegation of incest. And at this point the sergeant and journalist might well screw-up their faces, shake their heads and swiftly move on to the next log. The subject was basically taboo, seen as something ‘a bit mucky,’ not what was wanted in a family newspaper.

And that’s really the way things stayed until 1986 when ChildLine was set up by Dame Esther Rantzen in the wake of a BBC programme about child abuse. For the first time children felt able to speak out about being sexually assaulted by the very adults whose role in life was to protect them.

And for the first time the picture became clear about what incest really meant in many cases. It wasn’t simply a low level crime to be swept under the carpet in case it scratched people’s sensitivities. It frequently involved children being abused by members of their close family, repeatedly, over many years.

Slowly but surely as the years rolled on the NSPCC continued to press the message about the prevalence of child sexual abuse, while encouraging victims to come forward. During this time the corrosive effects of this most insidious crime have been painfully detailed by many of those whose lives have been derailed by it. And of course the details of the hundreds of opportunistic sexual assaults committed by Jimmy Savile have been indelibly branded onto the nation’s consciousness.

It’s been a long road - particularly for those who were raped or otherwise abused as children and are now well into their later years - to bring society around to accepting that this is not to be treated as a dark secret that we really don’t want to expose to daylight. Many of those who called our helpline during the early days of the Savile investigation had never told anyone about the traumatic events of their childhoods despite the fact they had reached retirement age.

So, having buried the taboo, we seem to be in danger of giving it the kiss of life with the way some cases of alleged abuse are now being perceived.

It’s quite right that all claims of sexual assault should be investigated, tested and, where there is a case, pursued through the judicial system. No one is above the law, whether a ‘celebrity’ or a lord.

But we seem to have lost a sense of perspective when it comes to these crimes with vast resources being allocated to a handful of cases while many thousands of reported incidents are virtually on hold.

The police should never have to apologise for investigating crimes and following leads. However, if allegations are false or cannot be substantiated they should say so. This would be a strength not a weakness.

It is, of course, difficult that in many of the high-profile cases of recent times the identities of those under investigation have not been officially released by the police but have come to light through other means. Yet we have to deal with the world as it is not as we wish it would be and once names are common knowledge the results of the investigations centring on them should be made public.

When it emerges that someone in the public eye is being investigated for non-recent child abuse it obviously stirs the interest of the media whose appetite can be insatiable. This puts pressure on the police who don’t want to repeat the mistakes of the past by allowing offenders to slip through their hands.  And so there is a danger, as has been seen in recent cases, that officers lack confidence in declaring there is a lack of evidence or the allegations are not true. 

The disproportionate weight of media attention given to say, Sir Edward Heath, as opposed to the Bradford grooming gang sentenced this week, shows there is a danger the pendulum is swinging too far the other way. This threatens the painstaking work invested in ensuring the public and our institutions recognise child abuse as a very real danger. 

Whilst high profile cases have helped the cause there is now a real risk that the all-encompassing focus on them does both victims of abuse and those advocating on their behalf a fundamental disservice.

As the public watches high -profile cases collapsing amidst a media fanfare genuine convictions made across the country week in week out go virtually unannounced. If this trend continues they may start to believe that child sexual abuse isn’t the prolific problem we know it to be.

So, while detectives peer into the mists of time, searching for long lost clues, we have to face the unpalatable possibility that offences being committed today will in turn only be investigated fully in years or decades' time because there is not the manpower to deal with them right now.

So, now the Goddard Inquiry is in full swing, taking evidence about allegations of child sex crimes involving ‘well known people’ as well as institutional abuse, how do we ensure we don’t fail today’s victims?

If they start to think their stories are going to be diminished by the continuing furore over how some senior public figures have been treated by the police they will stay silent. Therefore we have to continue to encourage them to come forward, to give them the confidence of knowing they will be listened to.

If we don’t we will find ourselves back in those incestuous days where people conspired to say and do nothing to prevent child abuse.

Peter Wanless is Chief Executive of the NSPCC.