We should follow the US and allow intercept evidence to bring extremists to justice.
The Abu Qatada fiasco is a wake-up call, not just for Britain’s relationship with the European Court of Human Rights, but for our whole counter-terrorism strategy.
Here we have the spiritual leader of al-Qaeda in Europe, a man who raised funds for terrorist training camps in Afghanistan and inspired the ringleader of the September 11 attacks. British judges have described him as “truly dangerous”.
That Abu Qatada is now out on bail is not solely the fault of judges or human rights laws. It is the result of an intelligence-driven counter-terrorism strategy that for too long has focused on disruption, not prosecution.
This is not a new problem. Control orders (now watered down and renamed TPIMs — terrorism prevention and investigation measures) are the archetypal manifestation of this flawed strategy. Brought in by Labour in 2005, these draconian measures saw terrorist suspects placed under virtual house arrest, banned from using phones and the internet or even forcibly relocated. The 50 subjects of control orders are supposedly the most dangerous would-be terrorists in the country. Yet not one “controlee” has ever been charged with a terrorism offence, let alone convicted. This is unacceptable.
Similarly, it took seven years for Abu Hamza, the former Finsbury Park mosque cleric, to be charged. Despite his overt promulgation of violence, we were told that the authorities did not have the evidence or the laws to charge him. However, when after years of delay this terrorist suspect and al-Qaeda sympathiser was eventually imprisoned, it was on 11 counts (so much for no evidence) and under section four of the Offences Against the Person Act 1861 (so much for the need for new laws).
Many have criticised the ECHR for preventing the deportation of Abu Qatada to Jordan to face terrorism charges. The Home Secretary made it clear that the Government “disagrees vehemently” with the ruling, and who can blame it? This is not the first time that European judges have overstepped the proper limits of their power. Last year they tried to give prisoners the vote, a move prevented when Jack Straw, Dominic Raab and I forced a debate on the issue and MPs voted overwhelming against it.
However, while it is right to see the mote in the Strasbourg court’s eye, we must not ignore the beam in our own. The release of Abu Qatada on bail is not the fault of European judges. It is the result of British authorities failing to build a criminal case against him.
How do we stop this happening again? First, we should scrap TPIMs. It should be apparent even to the most fresh-faced police recruit that terrorist suspects confined to their homes cannot engage in activities that would provide material for a prosecution. Similarly, it should be obvious that a suspect who is tagged and told he is under surveillance is unlikely to be a useful source of evidence.
Second, we should lift the ban on using intercept evidence in court. When asked about this in Parliament, the Home Secretary could say only that the Government “is considering it again”. We have been “considering” intercept evidence for years. It is time for the dithering to end. Many in Parliament and the police cannot understand why successive governments have dragged their feet on this issue. The answer lies with our Secret Services, who are terrified that using intercept evidence in court will reveal secret intelligence tactics.
This is nonsense. The Department of Justice in American uses intercept evidence in almost all counter- terrorism and organised crime cases. In fact, intercept evidence is used so often that, on the odd occasion the prosecution does not use it, juries often ask where the tapes are. Despite this, I am yet to see details of top secret FBI intelligence-gathering methods posted on Wikipedia. What is more, the FBI says that in literally thousands of cases it was intercept evidence that clinched the guilty verdict.
And what about national security? With proper safeguards, British courts would not have to choose between allowing intercept evidence and protecting sensitive information such as informers’ names. For instance, in counter-terrorism cases the Americans have a CIPA (Classified Information Procedures Act) hearing before the main trial. At these, security-cleared lawyers for defendant and prosecution each make their case and a judge decides what evidence can be heard in open court. This way the defendant’s lawyers can see and challenge all the evidence, but confidential information is not disclosed.
What is more, if the prosecution wins the CIPA hearing, then the case often goes straight to plea bargaining, so not only is a conviction secured, it is done in days, not years. If the Americans can do it, why can’t we?
The way for a civilised society to destroy terrorist organisations is through convictions in open court. This puts the terrorist away for a long time, displays to the world the evil and hypocrisy of their cause and demonstrates that we really believe in the standards of justice that are the hallmark of our society. Aggressive prosecution, conviction and incarceration, using all the tools at our command, are the only way for a civilised nation to defeat terrorism.
This week James Brokenshire, the Home Office minister, will fly to Jordan to discuss the Abu Qatada case. Even if the capable young minister comes back with a deal, this issue will not go away. If the Government wants to avoid the embarrassment of seeing more terrorists walk free, it must do more than talk tough. It must focus less on disruption and more on effective prosecution.