TPIMs: Franz Kafka’s missing work (warning: a long story ...)
I don’t know about you, but I value my personal freedoms. Choosing where to go, when to go there. Basic stuff. I also accept there can be limitations. On Saturday, for example, I was driving in Tower Hamlets in east London and suddenly found streets blocked off by the police. It was the afternoon of the EDL’s “static” demo. Fine. Public order justifications for redirecting traffic. (Hence I got stuck in a massive jam. Another story …).
But what about if it’s your movements and not just for one afternoon? And if the process is not transparent or remotely easy to understand? Welcome to the world of “TPIMs”. I’ll explain. It’s a long post coming up … so sit down. Relax. Maybe have a drink. What about – ahem – a TPIMs…?
TPIMs, “Terrorism Prevention and Investigation Measures”, are the Home Office’s latest way of dealing with people it deems suspected terrorists in Britain. It’s the third supposed “solution” to the “problem” of what to do with people it believes are a threat but says it can’t deport or put on trial (this last point is crucial, I’ll come back to it …).
Solution no1: from 2001 foreign “terrorist suspects” were detained indefinitely without charge or trial; this was widely criticised as a breach of basic human rights and eventually struck down by the courts. Solution no2: from 2005 “control orders” replaced imprisonment. These relied on the same secretive process (explained below) and applied to foreign and UK nationals. Instead of Belmarsh prison people were confined to their homes, ie placed under virtual house arrest. Now TPIMs are solution number three.
If you’re placed under a TPIMs Home Secretary Theresa May can order that you:
• Remain in a specific residence overnight; the premises may or may not be your own, according to Ms May’s say-so• Do not travel abroad• Are excluded from specific locations (“a specified area or place or a specified description of an area or place”)• Do not have a bank account or a certain amount of money without her permission • Have a mobile phone (no smartphones) or computer only by prior arrangement with her and with a clear understanding that it will be monitored• May not meet or even communicate with named individuals• Do not work in certain jobs (paid or unpaid) or even study (!) certain subjects
Hmm. It’s “a free country” was the refrain I grew up hearing. Not so sure it is now. Of course the government’s line is that these curtailments of ordinary freedoms are necessary to “protect members of the public from a risk of terrorism”. They don’t do them lightly, etc.
So on what basis do they do turn your life upside down like this? Answer: through the highly controversial “closed evidence” system. These are not criminal trials and operate on a much lower level standard of proof (so listen out for the deliberate obfuscation when a politician next says something like “the courts have looked at the evidence in these cases”). From 2001 the government started putting certain “terrorist suspects” whom they wished to deport on the basis of secret evidence before “Special Immigration Appeals Commissions”.
Now a very similar system is used in the High Court in control order cases. The suspect is accused of being involved in terrorism but they or their own lawyer are not able to see the supposed evidence for the allegations. Only a “Special Advocate” appointed by the Attorney General can do this. But once the special advocate has seen the evidence they can’t communicate with the suspect. Meanwhile, the accused’s own lawyer (are you following all this?) is given a general outline of the accusations (the “gist”) but not the details. It’s a farcical system, shrounded in secrecy for the defence team.
On top of secrecy issues, special advocates themselves have complained about how the system is weighted against them workload-wise. One has said it’s “one man and his dog” trying to grapple with enormous volumes of documentation in very little time. Another resigned in disgust, denouncing the system as “an odious blot on our legal landscape”.
The courts – the real courts – have also taken a very dim view of the procedure. They’ve expressed alarm that “bare assertion” by the security services can be enough to restrict a person’s liberty, and the senior judge Lord Brown has warned of basic fair trial principles being “sacrificed on the altar of terrorism control.” Meanwhile, the Joint Committee on Human Rights has described the system as “Kafakaesque”, a well-worn phrase but not far off the mark. In Kafka’s The Trial the central character “K.” is warned by his world-weary lawyer:
But K. should not forget that the trial would not be public …. As a result, the accused and his defence don't have access even to the court records, and especially not to the indictment …. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before. Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it's only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that. So strictly speaking, there is no such thing as a counsel acknowledged by the court, and anyone who comes before this court as counsel is basically no more than a barrack room lawyer.
TPIMs are not fiction though. They’re real and being debated in parliament today. Like inferior writing, they need to be pulped.
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