Today the Government will argue in court that controversial ‘secret court’ measures, introduced in 2013, should be used for the first time in relation to a criminal case.
At a High Court hearing this morning, the Foreign Office and the Director of Public Prosecutions will argue that a criminal matter relating to the 2004 rendition of a Libyan couple by MI6 should be heard in secret.
Abdul-Hakim Belhaj and his wife Fatima Boudchar – who were ‘rendered’ to Gaddafi’s Libya in a joint MI6-CIA-Libyan operation – are challenging the Crown Prosecution Service’s decision in 2016 not to charge a former head of counter-terrorism at MI6, Sir Mark Allen, for enabling their kidnap.
The Government is proposing to use so-called ‘Closed Material Procedures’ or CMPs, introduced under the 2013 Justice and Security Act, in defending its decision not to prosecute. The couple will argue in court tomorrow that the review of the CPS decision should not be heard in secret.
Secret hearings have never before been used in a criminal case of this kind. The 2013 Act, a controversial law that introduced a system of secret hearings in civil trials, specifically excludes criminal matters from its scope.
Under CMPs, victims, press and public are excluded from the courtroom and cannot hear the Government’s case. The measures have attracted criticism, because of the unfair advantage they give Government in court, and because of the risk ministers could use the law to avoid embarrassment over past abuses.
Documents uncovered in Libya in 2011 show that Sir Mark Allen took credit for the 2004 operation. Mr Belhaj and Ms Boudchar, who was pregnant at the time, were tortured at a CIA ‘black site’, before being sent to jails in Gaddafi’s Libya. Mr Belhaj went on to be tortured for years and sentenced to death in a secret Libyan trial.
London’s Metropolitan Police spent over two years investigating the rendition, providing a file of over 28,000 pages of evidence to the CPS in June 2014. However, two years later, the CPS announced that it would not charge the lead suspect (Sir Mark) due to ‘insufficient evidence’. The CPS conceded that he was involved in the renditions and had “sought political authority for some of his actions.”
Commenting, Cori Crider, a lawyer for the family at human rights organisation Reprieve, said:
“My client was sentenced to death in a secret Libyan trial – but he didn’t expect Britain to follow in Gaddafi’s footsteps. Abdul-Hakim and Fatima still don’t understand why the CPS refused to file charges in this case, when the evidence showed a top MI6 officer helped send them to Gaddafi’s torture chambers. Now CPS are hiding behind a cloak of secrecy to stop Abdul-Hakim and Fatima challenging their decision. This is just wrong – secret courts have no place in our system of criminal justice.”
Rosa Curling, of the human rights team at law firm Leigh Day, said:
“We are extremely concerned by the government’s attempt to expand the use of closed, secret hearings in cases such as our clients’. The Justice and Security Act makes clear that closed hearings cannot take place in proceedings which are ‘in a criminal cause or matter.’
“Our clients are challenging a decision by the CPS not to prosecute those involved in the events which led to their kidnap and subsequent torture in Gaddafi’s Libya. This decision is by its very nature a ‘criminal cause or matter.’ We hope the Courts will make clear this attempted expansion is not lawful and our criminal justice system will be protected from secret hearings.”