Amicus Curiae Brief — Hamdan v. Rumsfeld

IN THE

Supreme Court of the United States

SALIM AHMED HAMDAN,

Petitioner,

Vv.

DONALD H. RUMSFELD ET AL., ,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE BAR HUMAN RIGHTS

COMMITTEE OF THE BAR OF ENGLAND AND

WALES AND THE COMMONWEALTH LAWYERS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

PETER CARTER QC TIMOTHY OTTY, BARRISTER

18 RED LION COURT 20 ESSEX STREET

London EC4A 3EB London WC2R 3AL

Tel: 44 207 520 6070 Tel: 44 207 842 1200

MARK MULLER, BARRISTER STEPHEN J. POLLAK*

GARDEN COURT CHAMBERS JOHN TOWNSEND RICH

London WC2A 3LS GOODWIN PROCTER LLP

Tel: 44 207 993 7600 901 New York Avenue NW

Washington DC 20001

Tel: 202-346-4000

Attorneys for the Amici

January 6, 2006 : *Counsel of Record

TABLE OF CONTENTS

TA Ge AF eee BD cece cccscctnneccsssscnscsnemmnnserenneonenetes il

INTEREST OF THE AMICI CURIAE .........cccccesessesseesessees l

SUMMARY OF ARGUMENT. .........ccccccocscoscsccssscesssossssocssees 2

IE trenicsscentvinsenicicnidesuitinicsinanndincnainsnnimninneiiet 4

[. The origins and history of the writ of habeas

corpus illustrate the importance of the wnt and the

breadth of protection it affords. ...........0.ccceeceeeeeeeeeee 4

I]. As a principle of English law the writ of habeas

corpus applies in war as well as peace time. It

applies to all forms of military tribunal. Speed is at

the essence of the remedy, and it can be relied

upon at any stage of detention. 2.0.0.0... ee eeeeeeeeees 6

Ill. Any statutory ouster of review by the courts over

lower tribunals should be strictly construed.

Current leading judicial and academic opinion

supports the view that a complete ouster of review

over lower tribunals would be unconstitutional. ....... 16

IV. Respects in which the proposed procedures of the

Military Commission would violate fair trial

principles of English law and the stage at which ~

CRG PONE MAM BO TEIBOE. ....2ccccscsccsccceccscscsesccsessesesones 20

Se bet esensiictetamnciatiinsienniannidintiuiindisunnedanpianaionn 30

(1)

TABLE OF AUTHORITIES

CASES

A and others v. Secretary of State for the Home

Department [2005] UKHL 71 (appeal taken from

Sin issinitsiaibchaeilipsehaieelidlacdasceiihdgisicsoenibathodaaigidsslardians cod 27-28

Bradstone v. High Commission, (1613) 2 Bulst. 300,

I SI, SUITE Uansesctusiicietescinnccnnnicibeghcitnbelpienpissoatisiien 13

Chancey, (1611) 12 Co. Rep. 82, 77 Eng. Rep. 1360

SOIT sietidniniieneptadlenscidledilcabhadiiagiidiicinidasilaneisiatidadsniaibiaibiienmds 13

Cox v. Hakes, (1890) 15 App. Cas. 506 (H.L.)

(appeal taken frome Eng.)........ccccssecccccsocccssessescseseeee 10-11

Codd v. Turback, (1615) 3 Bulst. 109, 81 Eng. Rep.

Son Ta aii ivcticsisehehsiosbaeihcscinttebipeibateaiiibdiapisdtetaciuaiesiditeaneanbtinininiaa 13

Darnel’s Case, (1627) 3 How. St. Tr. | (K.B.)......0...000000.. 5

Eshugbayi Eleko v. Government of Nigeria, [1931]

A.C. 662 (P.C.) (appeal from Nig.).............:::.scccceeeees 17

Ex parte Drydon, (1793) 5 T.R. 417, 101 Eng. Rep.

SP UIT cies tiectsideieigisisesiiusonbibinctiasag ingliaaanianidtiesiabaanipenenion 7

Fa U.P, Die es BOO Ce ccctncrctnsiccnsainiccanvsaisinncn 2

Franklyn v. Regina, [1993] | W.L.R. 862 (P.C.)

IIE CIID GUNNER cictsinitasedassscocsaiinibnievenscemisnedsnets 29

Goldswain's Case, (1778) 2 Wm. BI. 1207, 96 Eng.

hs RRR nsietceecianiocisscgcicibceicncasiauiiensnadlenihdisiiniindisiuseninitins 7

Good, (1760) | Wm. BI. 251, 96 Eng. Rep. 137

STATI ccsiaisisiddldiaslassisinpebeiabaiiliaciteplinactetinniaclsktasepindisbedaateduititigii 7

Hinde, (1576) 4 Leon. 21, 74 Eng. Rep. 701 (K.B.)......... 13

Hodd v. High Commission, (1615) 3 Bulst. 146, 81

I I I heat lacittciiatierecadiidadint iin caiiaaiiideed 13

iti

Inland Revenue Commissioners v. Rossminster Lid.,

[1980] A.C. 952 (H.L. 1979) (appeal taken from

BAR, ) nceccccesasevcerssosensenvcnsssorovensoovecsssecssnneessensesssssoneneasosesoes 6

Johnson v. Eisentrager, 339 U.S. 763 (1950)........:cccceeeee 2

Kadem v. Malta, (2003) 37 Eur. Ct. H.R. 18.............. 15-16

Khera v. Secretary of State for the Home Depart-

-ment, [1984] A.C. 74 (H.L.) (appeal taken from

TI isis ccscssiepiaatinecstiltontnaneiibiionicheienabetabianiptatdseanmnasenes 17-18

Liversidge v. Anderson, [1942] A.C. 206 (H.L.

1941) (appeal taken from Eng.)....................e. 6-7, 16

Millar v. Dickson, [2002] 1 W.L.R. 1615 (P.C.

2001) (appeal taken from Scot.) .............0...:.:00 22-23

Ocalan v. Turkey, (2003) 37 Eur. Ct. H.R. 10.0.......... 25-26

Ocalan v. Turkey, (2005) 41 Eur. Ct. H.R. 45............ 23-24

R (Bancoult) v. Secretary of State for Foreign and

Commonwealth Affairs, {2001} Q.B. 1067

EEE nee ane et aE 4,18

’

R v. Bow Street Magistrate, ex parte Pinochet (no.

2), {2000} | A.C. 119 (H.L. 1999) (appeal taken

Ne IED seceenichniecdieincieidienciecesitdiianiitdgaiatadianitealineiistnenetauniens 21

R v. Davis, (1993) 97 Crim. App. 110 ................. esses. 29

R v. Dundon, [2004] EWCA (Crim) 621.000.0000... cece 23

R v. Gokal, [1997] 2 Crim. App. 266 (1996).................... 29

R v. King, (1674) Comb. 245, 90 Eng. Rep. 456

ISI scab dkheaibincheshhdeiculesahced cialasibendeaphsabtiaenpentasiiladichiapsiiadibadbedidtinedases 7

R v. Young, (1808) 9 East. 466, 103 Eng. Rep. 650

NS EEE ESA EPS 3S oe aN OO NS a 7

Rasul v. Bush, 542 U.S. 466 (2004).........cccccccecccsseeeeeees ia

Roper, (1607) 12 Co. Rep. 45, 77 Eng. Rep. 1326

© EEL SPE RARE AAS ee la Sere 13

1V

Secretary of State for Home Affairs v. O'Brien,

[1923] A.C. 603 (H.L.) (appeal taken from Eng.)....6, 10

Throgmorton, (1610) 12 Co. Rep. 69, 77 Eng. Rep.

EAE (ital Pivissessnesseenenontnisivenvesiaiieisinatiiiaiaalaansamaaacannanan 13

STATUTES

An Act for the More Effectually Detaining in

Custody Napoleon Buonaparté, 56 Geo. 3, c. 22

(TIBI .cseccoccnessctuevnasienssispiinmnntssmagediaiemianiiiaaaaan 8

Defence of the Realm Act, 1914, 4 & 5 Geo. 5, c. 29...... 16

Emergency Powers (Defence) Act, 1939, 2 & 3 Geo.

Habeas Corpus Act, 1640, 16 Car. 1, c. 10 (repealed)........5

Habeas Corpus Act, 1679, 31 Car. 2, ¢. 2........... 5, 8, 12, 13

Magna Carta, | Stat. at Large (Runnington rev. to

Ruffhead ed., London, Charles Eyre et al.

PFIBID .<x<scvsesssasseenvessiousdsbeesssseinioteiiiiainmniaaaamaall 4,9, 11

TREATIES

European Convention for the Protection of Human

Rights and Fundamental Freedoms..................... 3, 15, 23

OTHER AUTHORITIES

Blackstone, William, 3 Commentaries on the Laws

OE BRIS cinema 5-6, 28-29

Coke, Edward, Second Part of the Institutes of the

Laws of England (1817 ed., London, printed for

ae fF fl: . Ee eta ee )

Fordham, Michael, public legal opinion to the

Refugee Legal Centre, Common Law Illegality of

Ousting Judicial Review (Jan. 8, 2004), available

at http://www.blackstonechambers. com/

pdfFiles/Blackstone MF_THE%20LEGALITY%

20OF%20OUSTING%20IR 1 pdf... .ecccceceeeeeeteeeeeee 20

Vv

Forsyth, William, Cases and Opinions on Consti-

tutional Law (London, Stevens & Haynes 1869)......... 16

Jenks, Edward, The Story of the Habeas Corpus, 18

ad ntceeatipnetnantesiegsbenseraccens 14

Joint Committee on Human Rights, House of Lords,

House of Commons, Fifth Report of Session

2003-04, HL Paper 35, HC 304, Asylum and

Immigration (Treatment of Claimants, etc.) Bill

(Feb. 10, 2004), available at http://www.lib.

gla.ac.uk/Depts/MOPS/Offpub/newaware0304.

aa alacant anidensssnstnngesenenie 19

Lester, Antony, QC, Speech at Inner Temple

Parliament Chamber, London: The Constitutional

Implications of Ouster Clauses (Feb. 26, 2004),

available at http://www.odysseustrust.org/

SEES EE AIRS SN Ee a nO oe to CD 20

Paterson, James, 2 Commentaries on Liberty of the

Subject and the Laws of England Relating to the

Security of the Person (London, MacMillan

AREER TICES aD dvb Sr Oe ea ee 11-13

Pollock, Frederick, & Frederic W. Maitland, | The

History of English Law Before the Time of

Edward | (reprint 1923) (London, Cambridge

|, ee 4

Sharpe, R.J. (Robert J.), The Law of Habeas Corpus

ER EN a 4,11, 13-14, 19

Wilmot, John Eardley, Notes of Opinions and

Judgments Delivered in Different Courts

i csopnasuunsnnd &

Woolf, Harry (Lord Woolf), Squire Centenary

Lecture to Cambridge Univ.: The Rule of Law

and a Change in the Constitution (Mar. 3, 2004),

v1

available at http://www.dca.gov.uk/judicial/

ee

INTEREST OF THE AMICI CURIAE '

The first named amicus, the Bar Human Rights Committee

(“BHRC’”’) is the international human rights arm of the Bar of

England and Wales. It is an independent body primarily

concerned with the protection of the rights of advocates and

judges around the world. It is also concerned with defending

the rule of law and internationally recognised legal standards

relating to the right to a fair trial.

The second named amicus, the Commonwealth Lawyers

Association (“CLA”) is a body dedicated to the rule of law

throughout the Commonwealth.’ All Law Societies and Bar

Associations of the fifty-three countries compnsing the Com-

monwealth are institutional members of the CLA.

This brief is submitted in support of the Petitioner, but the

amici wish to make it clear at the outset that the main purpose

of this brief is to explain how the courts of England and

Wales have historically exercised jurisdiction in habeas

corpus cases and in challenges to the jurisdictional compe-

tence or structural fairness of proceedings and how they

would do so if confronted with issues of the kind understood

to arise in these proceedings. We hope this may assist this

Honourable Court, for the following reasons:

a) the writ of habeas corpus has its origin in England;

b) in Rasul v. Bush, 542 U.S. 466 (2004), the Supreme

Court referred to the English origins of habeas corpus

(citing English authority) and to habeas becoming “an

integral part” of the common-law heritage of the two

' The content of this brief is entirely the work of the authors identified,

and no party other than the amici and their legal representatives have

made a monetary contribution to the preparation or submission of this

brief. Letters from the parties consenting to the filing of this brief have

been filed with the Clerk of the Court.

> The Commonwealth is a voluntary association of fifty-three indepen-

dent sovereign states. Its 1.7 billion people account for thirty percent of

the world’s population.

(1)

2

countries by the time the Colonies achieved

independence;

c) because of Britain’s history of Constitutional struggles

between Crown and Parliament, issues relating to the

jurisdiction to grant the remedy of habeas corpus have

not infrequently arisen in the High Court in England in

the context either of statutory provisions purporting to

restrict the availability of the remedy or executive

power attempting to override it either through an

executive order or through legislation;

d) the English courts have also recently had occasion to

consider the consequences of a lack of structural inde-

pendence or impartiality on the part of military tnbunals

and the admissibility of evidence which may have been

obtained under torture by foreign states, both of which

issues it is understood may arise in these proceedings.

English case law on these issues and on the further

questions addressed in Section IV of this brief is of very

longstanding and of the highest authority.

SUMMARY OF ARGUMENT

In the English courts the ability of a person in detention to

access the courts in order to challenge the basis of his

detention is paramount. The jurisdiction of the courts in such

a case has been jealously guarded for centuries and extends to

a review of the vires of any lower tribunal purporting to try

any detainee. There are numerous judicial statements

* $42 U.S. at 473-74 (internal quotation marks omitted). Note too John-

son v. Eisentrager, 339 U.S. 763, 779 (1950), where the Court referred to

the English origins of habeas corpus and the harmony between the rele-

vant laws of the two junsdictions. See also Fay v. Noia, 372 U.S. 391,

399-400 (1963), where the Court, per Brennan J., spoke of the “extraor-

dinary prestige of the Great Writ * * * in Anglo-American jurisprudence”

and also stated (at 401): “It 1s no accident that habeas corpus has time and

again played a central role in national crises, wherein the claims of order

and of liberty clash most acutely, not only in England in the seventeenth

century, but also in America from our very beginnings, and today.”

3

emphasising the immediacy of the right to seek relief and the

speedy nature of the remedy. —

As to the question of ouster, were the legislature of the

United Kingdom to enact a complete and unequivocal remov-

al of the remedy in circumstances which would result in there

being no effective form of challenge of any kind to detention

before an English court, it is likely that the court would

consider the ouster unconstitutional and unlawful as being in

breach of the paramount principles of the rule of law and the

separation of powers central to any constitutional democracy.

In respect of the issues of due process understood to be

among those raised in these proceedings, as a matter of

English law the right to trial before an independent and

impartial tribunal is a fundamental aspect of the right to a fair

trial both at common law and under the European Convention

for the Protection of Human Rights and Fundamental Free-

doms (the “European Convention”) and a breach of this right

will inevitably lead to a quashing of any conviction. Similarly

the right to exclude evidence obtained by torture is absolute

as is the mght to sight of all evidence relied upon by the

prosecuting authorities. Furthermore only in limited and care-

fully defined circumstances will it be permissible for evidence

to be admitted without the witness responsible for that evi-

dence being tendered for cross-examination. In such circum-

stances a detainee is entitled to raise each of these points at

the earliest stage of proceedings and need not await the

conclusion of those proceedings.

In summary, were the English courts to be faced with a

challenge of the kind raised by the petitioner in this case, they

would not refuse to hear it on the grounds that ongoing

proceedings had yet to reach their conclusion and would, on

the issues of independence and impartiality and use of

coerced evidence, rule in the petitioner's favour.

4

ARGUMENT

I. The origins and history of the writ of habeas corpus

illustrate the importance of the writ and the breadth

of protection it affords.

The origins of the writ of habeas corpus in England and the

Commonwealth may be found in Magna Carta. Article | of

Magna Carta states that all the freedoms set out therein were

“given to all the free-men of our realm, for us and our Heirs

forever,” and Article 29 provides that “[n]o Freeman shall be

taken, or imprisoned, or be disseised of his Freehold, or Li-

berties, or free Customs, or be outlawed or exiled, * * * but

by the Jawful Judgment of his peers or by the Law of the

Land.” A Divisional Court of the Queen’s Bench has recent-

ly endorsed the following statement as accurately reflecting

Magna Carta’s present day significance in English law:

“(Magna Carta] becomes and rightly becomes a sacred

text, the nearest approach to an irrepealable ‘fundamental

statute’ that England has ever had. * * * For in brief it

means this, that the king is and shall be below the law.”

Although it appears that it was in the sixteenth century that

the writ of habeas corpus first began to be used as a means of

testing the validity of executive committals,° it was in 1640

that the English Parliament made its first express attempt to

* Magna Carta arts. | & 29, | Stat. at Large (Runnington rev. to Ruff-

head ed., London, Charles Eyre e¢ al. 1786).

* | Frederick Pollock & Frederic W. Maitland, The History of English

Law Before the Time of Edward I, at 173 (reprint 1923) (London, Cam-

bridge Univ. Press 2d ed. 1898), cited and quoted with approval by Lord

Justice Laws in R (Bancoult) v. Secretary of State for Foreign and Com-

monwealth Affairs, [2001] Q.B. 1067, 1095 (Q.B.D. Admin. Ct.).

" R.J. Sharpe says in the leading textbook on the subject, The Law of

Habeas Corpus (2d ed. 1989), at 7: “By the time of Elizabeth [I] it was

becoming clear that the claim to a power to commit for reasons of state

could be tested on habeas corpus. There are cases as early as 1567 in

which habeas corpus was used by persons detained by order of the Privy

Council to obtain their release on bail.”

5

curtail the power of executive detention. Section VIII of the

Habeas Corpus Act of 1640, 16 Car. 1, c. 10, provided that

“any Person” imprisoned by order of the King or Council

should have habeas corpus and be brought before the court

without delay with the cause of imprisonment shown. The Act

was passed against the background of the first case of major

constitutional importance to address the question of habeas

corpus, Darnel's Case, (1627) 3 How. St. Tr. 1 (K.B.).’

In 1679 a second Habeas Corpus Act, 31 Car. 2, c. 2, made

it clear that the scope of the protection afforded by habeas

corpus—the guarantee against arbitrary detention—was

intended to be broad. Section II describes it as for “the more

speedy Relief of all Persons imprisoned for any such criminal

or supposed criminal Matters” (emphasis added), and Section

XII made it an offence to remove detained persons to places

where the writ could not be served.

Over the centuries English judges and lawyers have empha-

sised the importance of the wnt of habeas corpus and its

fundamental purpose. The jurisdiction of the High Court in

England to grant the writ was recognised as extending to any

part of the King’s dominions. Blackstone described the writ

thus:

“(T]he great and efficacious writ in all manner of illegal

confinement is that of habeas corpus ad subjiciendum;

*** This is a high prerogative wnt, * * * running into

all parts of the king’s dominions: for the king is at all

time intitled to have an account, why the liberty of any of

” In Darnel’s Case, the King, Charles |, had imprisoned five Knights as

a result of their refusal to contribute to the repayment of a forced loan he

had taken out. The Knights sought their freedom by issue of writs of

habeas corpus and, in response, the King simply asserted (at 33) that they

had been detained “per speciale mandatum domini regis.” The issue in the

case was whether the Court was required to assume that there was

substantive legal justification for the imprisonment or whether the failure

to disclose specific grounds entitled the prisoners to be bailed pending

trial. The Court ruled in favour of the King and refused to bail the

Knights. The Habeas Corpus Act of 1640 in effect reversed that decision.

6

his subjects is restrained, wherever that restraint may be

inflicted.”

The breadth of the remedy was reaffirmed in the House of

Lords by the Earl of Birkenhead in Secretary of State for

Home Affairs v. O'Brien, [1923] A.C. 603 (appeal taken from

Eng.), when he said the following (at 609):

“We are dealing with a writ antecedent to statute, and

throwing its root deep into the genius of our common

law. The writ with which we are concerned to-day was

more fully known as. habeas corpus ad subjiciendum.

** * It is perhaps the most important writ known to the

constitutional law of England, affording as it does a swift

and imperative remedy in all cases of illegal restraint or

confinement. It is of immemorial antiquity, an instance of

its use occurring in the thirty-third year of Edward I. It

has through the ages been jealously maintained by the

Courts of Law as a check upon the illegal usurpation of

power by the Executive at the cost of the liege.”

(Emphasis added.)

ll. As a principle of English law the writ of habeas

corpus applies in war as well as peace time. It applies

to all forms of military tribunal. Speed is at the

essence of the remedy, and it can be relied upon at

any stage of detention.

innumerable judicial statements to the effect that the writ of

habeas corpus applies in times of war as well as peace could

be cited. The well known dissent of Lord Atkin to this effect

in Liversidge v. Anderson, [1942] A.C. 206 (H.L. 1941)

(appeal taken from Eng.), has come to be recognised as

stating the true position in English law (/nland Revenue

Comm'rs v. Rossminster Lid., [1980] A.C. 952, 1011, 1025

(H.L. 1979) (appeal taken from Eng.)). His words written in

one of the darkest periods of the war stated (at 244):

* 3 William Blackstone, Commentaries *131.

7

“In this country, amid the clash of arms, the laws are not

silent. They may be changed, but they speak the same

language in war as in peace. It has always been one of the

pillars of freedom, one of the principles of liberty for

which on recent authority we are now fighting, that the

judges are no respecters of persons and stand between the

subject and any attempted encroachments on his liberty

by the executive, alert to see that any coercive action is

justified by law.”

Against this background, as a matter of English common

law, an English court would not recognise or accept a judicial

abstention said to be applicable because the detention arose in

military tribunal proceedings. On the contrary, English courts

have long regarded both military detentions and detentions of

inferior courts and tribunals as core areas requiring habeas

review. There are innumerable cases stretching back to early

times in which military detentions have been subjected to

habeas corpus review.’

It has never been an answer to the jurisdictional question

that military and national needs may be more compelling than

the interests of the detainee. An early example of this is

Goldswain’s Case, (1778) 2 Wm. Bl. 1207, 96 Eng. Rep. 711

(K.B.), heard at the time of the American War of

Independence. There the prisoner’s argument for release was

met by the Admiralty’s plea that it was a time of urgent

necessity, the French having recently declared alliance with

the American Revolutionaries, such that the Navy’s conduct

was justified and should not be reviewed. Rather than accept

this plea, the court expressed disapproval of the detention and

required the Admiralty to set out any question of law it meant

* E.g.. Rv. King, (1674) Comb. 245, 90 Eng. Rep. 456 (K.B.); Good,

(1760) | Wm. Bl. 251, 96 Eng. Rep. 137 (K.B.); Goldswain's Case,

(1778) 2 Wm. BL. 1207, 96 Eng. Rep. 711 (K.B.); Ex parte Drydon,

(1793) 5 T.R. 417, 101 Eng. Rep. 235 (K.B.); and R v. Young, (1808) 9

East. 466, 103 Eng. Rep. 650 (K.B.).

8

to argue (and the Admiralty then consented to the discharge

of the detainee without further argument).

The position is not made different where the detainee is

foreign or has been on the other side of combat. It was after

all in order to avoid an application for habeas corpus by

Napoleon, on grounds that there was no authority in English

law to hold him after termination of war, that special

legislation was passed for his continued detention.'°

English law knows no separate principle whereby the

hearing of any application for habeas relief may be postponed

out of comity or reluctance to interfere with related tribunal

proceedings or military affairs. As the wording of the 1679

Act referred to above makes clear, speedy resolution is at the

essence of the remedy, and it is a rule in English law that

habeas corpus is not a discretionary remedy but issues ex

debito justitiae. Further recognition of this principle appears

in Lord Chief Justice Wilmot’s Opinion to the House of Lords

in 1758: Siakegi ke

“(Habeas corpus] is a remedial mandatory Writ, by which

the King’s supreme Court of Justice, and the Judges of

that Court, at~the instance of a subject aggrieved,

commands the production of that subject, and inquires

after the Cause_of his-Imprisonment; and it is a Writ of

such a sovereign and transcendent authority, that no

privilege of person or place can stand against it. It runs,

at the Common Law, to all Dominions held of the

Crown. It is accommodated to all persons and places.”"'

(Emphasis added. )

The rule that habeas is not discretionary means that an

English court may only refuse relief where there is no legal

basis for the application and not on discretionary grounds

° See An Act for the More Fffectually Detaining in Custody Napoleon

Buonapartée, 56 Geo. 3, c. 22 (1816).

'' John Eardley Wilmot, Notes of Opinions and Judgments Delivered in

Different Courts 77, 88 (London, Hansard | 802).

9

such as inconvenience, inexpediency or indeed judicial

abstention. Accordingly, detentions by the military and by

courts martial are fully reviewable in English law from the

moment of detention. There is no doctrine of abstention or

deference to military tribunals by which a court could decline

to hear a habeas application. The English court’s interest can

be only in the legality of the detention and the merits of the

application before it. If this case were in an English court, an

abstention argument would inevitably have to be dismissed.

As for when an application for habeas may be made, it is

clear from both the origins of the remedy and the way it has

evolved since that an intrinsic element of the remedy is that it

be implemented speedily and without delay. As already sub-

mitted, habeas corpus owes its origins to Article 29 of Magna

Carta establishing the nght to trial and to due process and the

right against arbitrary detention.'* That article also empha-

sised the importance of securing those rights speedily:

“We will sell to no man, we will not deny, or defer, to

any man, either Justice or Right.” (Emphasis added.)

Similarly Sir Edward Coke underlined the importance of

the right enshrined in Magna Carta by stating:'*

“(T]he law did so highly hate the long imprisonment of

any man, though accused of an odious, and heynous

crime, that it gave him [the writ de odio et atia] for his

reliefe.”

“And * * * [Magna Carta enacts that the prisoner] shall

have [the writ] gratis, without fee, and without delay, or

deniall * * *.” (Emphasis added.)

The importance of ensuring immediate access to a court on

a writ of habeas corpus is axiomatic to English law. It is

settled law that as a matter of principle a writ may be brought

'? See p. 4 above.

'? Edward Coke, Second Part of the Institutes of the Laws of England

*42 (1817 ed., London, printed for W. Clarke & Sons) (1642).

10

before the trial of any proceedings. There is a long line of

authority stretching back to early cases in which this is impli-

cit. In Cox v. Hakes, (1890) 15 App. Cas. 506 (H.L.) (appeal

taken from Eng.), Lord Halsbury, L.C., stated (at 514, 522):

“For a period extending as far back as our legal history,

the writ of habeas corpus has been regarded as one of the

most important safeguards of the liberty of the subject. If

upon the return to that writ it was adjudged that no legal

ground was made to appear justifying detention, the con-

sequence was immediate release from custody. If release

was refused, a person detained might * * * make a fresh

application to every judge or every Court in turn, and

each Court or Judge was bound to consider the question

independently and not to be influenced by the previous

decisions refusing discharge. If discharge followed, the

legality of that discharge could never be brought in

question.”

“It is the right of personal freedom in this country which

is in debate; and | for one should be very slow to believe,

except it was done by express legislation, that the policy

of centuries has been suddenly reversed and that the right

of personal freedom is no longer to be determined

summarily and finally, but is to be subject to the delay

and uncertainty of ordinary litigation, so that the final

determination upon that question may only be arrived at

by the last Court of Appeal.”

In Secretary of State for Home Affairs v. O’Brien, supra,

the House of Lords cited Cox v. Hakes with approval. Lord

Shaw (at 643-44) stressed the importance of urgency:

“My Lords, I think it right further to observe that

urgency is written all over the face of habeas corpus pro-

ceedings. ‘Preventing delay,’ ‘immediate determination

of the right to the applicant's freedom,’ the avoidance of

‘the delay and uncertainty of ordinary litigation’—these

11

expressions are significant of urgency as an essential

quality of the proceedings.”

And as R.J. Sharpe puts it:'*

“From the seventeenth century to the nineteenth century,

habeas corpus was an important aspect of day-to-day

criminal procedure. It was the accepted method by which

a person committed by the local justices could appeal to

the general power of the King’s Bench to grant bail, and

it generally provided a method of review over pre-trial

proceedings. It was, and still is, thought to provide a

measure of protection against arrest and detention

unauthorised by the ordinary criminal process.”

The interrelation between Magna Carta and habeas corpus

has long been recognised by legal commentators. The

nineteenth century commentator Paterson described habeas

corpus and the bond between the two thus:

“It 1s now a familiar code, and represents a whole

armoury of strength, for every line and syllable of which

each citizen would fight to the last, as for his household

gods. Holt said every man should be concerned for

Magna Carta. And the Habeas Corpus Act is only a

natural sequel and development of Magna Carta. No

dictator, whether single handed or hydra-headed, can

long breathe the same air with those who have caught the

secret of its power. It appeals to the first principles of

security, and to the law of nature, if any such be.”

By the late seventeenth century the writ of habeas corpus

began to fall into disrepair as a result of the delays caused by

those who sought to thwart its effectiveness. Paterson

described the mischief created thus:

'* R.J. Sharpe, supra, at 128.

'® 2 James Paterson, Commentaries on Liberty of the Subject and the

Laws of England Relating to the Security of the Person 208 (London,

MacMillan 1877).

12

“The writ of habeas corpus, as has been said, was thus a

right preserved with great difficulty, and even in 1591,

eleven judges in a body remonstrated against its abuses

and insufficient remedy. That memorandum stated, that

the subject was often committed or detained in prison by

commandment of any nobleman or councillor, and after

discharge put again in secret prisons, and not the ordinary

known prisons * * *, so that the Queen’s Court did not

know where to direct the writ to.”'°

The Habeas Corpus Act, 1679, referred to above sought to

remedy this mischief. The securing of the right speedily was

conceived as an essential element of the act. This much is

clear from the introductory words to Section II of the Act

already cited. However, the Act went much further by cre-

ating a system of safeguards to ensure expeditious relief.

Section II went on to stipulate strict time limits within which

a prisoner was to be brought before the court once a writ was

served. Section X provided that any ordinary judge who heard

a writ during the vacation time of the High Court, who

improperly denied or refused to hear a writ would be liable to

the petitioner in the sum of five hundred pounds. Section V

provided that gaolers who improperly sought to avoid,

frustrate or delay a writ were also subject to substantial fines

as well as possible contempt.

As Paterson pointed out, the much improved system of

habeas corpus established by the 1679 Act proved so effective

that it remained in place largely unamended for two centuries:

“The defect, the danger and the delay now referred to,

having never been lost sight of, at length, * * * the

Habeas Corpus Act passed, and after the lapse of two

centuries, it has been found by experience to have made

the machinery revoive so promptly and cut so clearly into

the marrow of all the mischiefs attending the possession

of might, regardless of right, that no king or minister, led

© Id. 205-06.

13

away with the dream of power, has since sought seriously

to battle or disable it.”"”

Indeed the system of detention and habeas corpus in

English jurisdiction today has retained many of the key fea-

tures created and refined by the 1679 Act, principal among

them that detainees must be brought speedily before the

courts, that it is for the courts at the earliest opportunity to

consider the lawfulness of detention, and that the court has a

duty to review the decision to continue to detain and to allow

the detainee the opportunity to make renewed applications.

It is also clear that English law has long recognised the

legitimacy of using the writ of habeas corpus to challenge the

jurisdiction of a tribunal. The concept of jurisdictional review

seems to have emerged early in the history of the struggle

between the common law courts and the other jurisdictions

for control. The cases of the early years of the seventeenth

century generally indicate a growing acceptance of habeas

corpus as a device to test the legality of commitments, and in

particular there are numerous cases of prisoners being

discharged or, bailed having been committed by the High

Commission.'* Relief was awarded if the return failed to

show a good cause for the imprisonment, and the courts were

plainly not willing to accept the returns which did not make

manifest that all had been within the powers conferred by

law. The High Commission cases particularly demonstrate the

effectiveness of the writ where an attack was mounted against

the jurisdiction of the tribunal ordering the committal.

As R.J. Sharpe says:

" Id. 207

'* See R.J. Sharpe, supra, at 7 & 25 and cases cited therein: esp. Hinde,

(1576) 4 Leon. 21, 74 Eng. Rep. 701 (K.B.); Roper, (1607) 12 Co. Rep.

45, 77 Eng. Rep. 1326 (K.B.); Throgmorton, (1610) 12 Co. Rep 69, 77

Eng. Rep. 1347 (K.B.); Chancey, (1611) 12 Co. Rep. 82, 77 Eng. Rep.

1360 (K.B.),; Bradstone v. High Commission, (1613) 2 Bulst. 300, 80 Eng.

Rep. 1138 (K.B.); Hodd v. High Commission, (1615) 3 Bulst. 146, 81

Eng. Rep. 125 (K.B.); Codd v. Turback, (1615) 3 Bulst. 109, 81 Eng. Rep.

94 (K.B.).

14

“There are also many modern cases which illustrate the

operation of jurisdictional review on habeas corpus. The

courts are quite willing to grant relief where an inferior

tribunal has stepped outside the limits of its authority by

misconstruing a statute or by failing to base its decision

upon the proper considerations. The law of extradition

provides many examples where relief has been awarded

on this basis, as in the cases where the offence alleged is

not extraditable or ‘political’ within the meaning of the

statute, or where the committing magistrate has failed to

follow the statutory procedures. Similarly, in the law of

immigration, it is open to the applicant on habeas corpus

to show that he or she is not a person subject to the

statute or that the authorities failed to follow the requisite

procedure.”"”

The habeas corpus procedure has always combined the

qualities of flexibility with an ability to provide a swift and

ready remedy. From its inception it has operated as an inter-

locutory remedy ancillary to other main causes of action.

These essential features of habeas corpus were well under-

stood by the commentator Edward Jenks, who observed:

“{I]t is somewhat disconcerting to find that this high ©

prerogative document is not an Original writ at all, but a

mere interlocutory mandate, or judicial precept, which

occurs in the course of other proceedings.”””

The nature of the procedure therefore is that it can be

invoked at any time during the course of other proceedings

and that its very purpose is that applicants should be able to

challenge their detention at any time as well as (and perhaps

typically) prior to the commencement, let alone conclusion, of

any proceedings.

'’ R.J. Sharpe, supra, at 32.

© Edward Jenks, The Story of the Habeas Corpus, 18 L.Q.R. 64, 64-65

(1902).

15

These safeguards in domestic law are also reflected in

Article 5 of the European Convention, a document very

substantially drafted by English lawyers in the aftermath of

the Second World War. Article 5(3) states:

“Everyone arrested or detained in accordance with the

provisions of paragraph l(c) of this Article shall be

brought promptly before a judge or other officer

authorised by law to exercise judicial power and shall be

entitled to trial within a reasonable time or to release

pending trial. Release may be conditioned by guarantees

to appear before trial.”

Similarly Article 5(4) affords further protection in relation

to detained persons: |

“Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which

the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not

lawful.”

The European Court for Human Rights has provided robust

supervision of Article 5. A recent example is Kadem v. Malta,

(2003) 37 Eur. Ct. H.R. 18. There the applicant was arrested

on the strength of a provisional arrest warrant issued by a

duty magistrate in connection with a request for his extra-

dition made by Morocco. There was no evidence that the

magistrate’s court, which heard Kadem’s challenge against

his detention, had the power to review the legality of his

deprivation of liberty of its own motion. Accordingly,

Maltese law did not comply with Article 5(4) of the Conven-

tion in this respect. The European court recalled (at para. 41)

that under Article 5(4):

“{A]n arrested or detained person is entitled to bring pro-

ceedings for the review by a court of the procedural and

substantive conditions which are essential for the ‘lawful-

ness’ of his or her deprivation of liberty. In particular, the

16

competent court should examine not only compliance

with the procedural requirements set out in domestic law,

but also the legitimacy of the purpose pursued by the

arrest and the ensuing detention and should have the

power to order the termination of the deprivation of

liberty if it proves unlawful.” (Footnotes omitted.)

lll. Any statutory ouster of review by the courts over

lower tribunals should be strictly construed. Current

leading judicial and academic opinion supports the

view that a complete ouster of review over lower

tribunals would be unconstitutional.

Historically, there have been a number of attempts to

suspend some of the protections afforded by the writ in time

of national emergency.’ However, it has long been held that

absent express provision to contrary effect, the right of the

individual to petition the courts challenging the decision of

the executive is in principle preserved.

Furthermore, any Act of Parliament purporting to narrow

the scope of review of a detainee will be strictly construed.

Lord Atkin in Liversidge v. Anderson, supra, stated (at 245):

“that in English law every imprisonment is prima facie

unlawful and that it is for a person directing imprison-

ment to justify his act.”

In an earlier Privy Council decision Lord Atkin made the

same point in the specific case of an executive decision

whereby the Governor of Nigeria (then a colony) purported to

exclude the plaintiff from a particular area of Nigeria and then

to deport him under an ordinance (the “Deposed Chiefs

*" See, e.g, Habeas.Corpus Suspension Acts from 1688 (for a list see

William Forsyth, Cases and Opinions on Constitutional Law 452 (London,

Stevens & Haynes 1869); Defence of the Realm Act, 1914, 4 & 5 Geo. 5,

c. 29, whereby Parliament delegated to the King in Council the power to

regulate generally for the safety of the realm; Emergency Powers

(Defence) Act, 1939, 2 & 3 Geo. 6, c. 62.

17

Removal Ordinance”). In Eshugbayi Eleko v. Government of

Nigeria, [1931] A.C. 662 (P.C.), he said (at 670):

“Their Lordships are satisfied that the opinion which

has prevailed that the Courts cannot investigate the whole

of the necessary conditions is erroneous. The Governor

acting under the Ordinance acts solely under executive

powers, and in no sense as a Court. As the executive he

can only act in pursuance of the powers given to him by

law. In accordance with British jurisprudence no member

of the executive can interfere with the liberty or property

of a British subject except on the condition that he can

support the legality of his action before a court of justice.

And it is the tradition of British justice that judges should

not shrink from deciding such issues in the face of the

executive.”

In Khera v. Secretary of State for the Home Department,

[1984] A.C. 74 (H.L.) (appeal taken from Eng.), one of the

applicants for habeas corpus was a Pakistan national held in ~

the United Kingdom pending his removal pursuant to an order

of an immigration officer. The House of Lords again stated

that the dissenting opinion of Lord Atkin was to be treated as

correcfly stating English law, and that the factual basis for an

executive detention was always subject to review on habeas

corpus. In the course of his judgment Lord Scarman expressly

recognised the importance of the power of review over

anyone deprived of their liberty. He said (at 110, 111):

“But, as | understand the law, it cannot extend to inter-

ference with liberty unless Parliament has unequivocably

enacted that it should. * * *

“Such exclusion of the power and duty of the courts

runs counter to the development of the safeguards which

our law provides for the liberty of the subject. The !aw

has largely developed through the process of habeas

corpus.” |

18

“Accordingly, faced with the jealous care our law tradi-

tionally devotes to the protection of the liberty of those

who are subject to its jurisdiction, I find it impossible to

imply into the statute words the effect of which would be

to take the provision, paragraph 9 of Schedule 2 of the

Act, ‘out of the “precedent fact” category’. If Parliament

intends to exclude effective judicial review of the exer-

cise of a power in restraint of liberty, it must make its

meaning crystal clear.” (Citation omitted.)

In R (Bancoult) v. Secretary of State for Foreign and Com-

monwealth Affairs, [2001] Q.B. 1067 (Q.D.B. Admin. Ct.),

the case was concerned with the availability of another pre-

rogative writ” to a territory “under the Crown’s subjection.”

The Crown submitted that the territory although a colony,

enjoyed a separate and distinct sovereignty and that as a result

the writ of the High Court in London could not run there.”

Lord Justice Laws and Mr. Justice Gibbs rejected this argu-

ment. Referring to the writ of habeas corpus and to the issue

of ousting access to the courts, Lord Justice Laws said (at

1097):

“But I conceive it is generally accepted that interference

with a constitutional or fundamental right requires ar

least [emphasis added] specific authority given by Parlia-

ment, and this is a principle of the common law,

independent of our incorporation by the Human Rights

Act 1998 of the rights guaranteed by the European Con-

vention for the Protection of Human Rights and Funda-

mental Freedoms (1953).”

Judicial and academic opinion now supports the view that a

total ouster of court review of the decisions of lower tribunals

or of executive decision-making would be unconstitutional as

a matter of English law. The debate recently arose, in relation

“ The writ of certiorari to quash an ordinance passed by the Commis-

sioner exercising powers over a British Indian Occan territory.

~* [2001] Q.B. at 1072 & 1086 para. 21.

19

to a proposed amendment to the immigration legislation

which sought to preclude an application for judicial review.

In its report addressing this question the Parliamentary Joint

Committee on Human Rights noted that even at the height of

the Second World War a clash between the fundamental

principles of parliamentary sovereignty and rule of law was

avoided by preserving judicial review of the use of emergen-

cy powers of detention without trial. The Committee stated:™*

“57. * * * Ousting the review jurisdiction of the High

Court over the executive is a direct challenge to a central

element of the rule of law, which includes a principle that

people should have access to the ordinary courts to test

the legality of decisions of inferior tribunals. * * *

“58. Apart from the fact that the rule of law is a

fundamental principle inherent in international human

rights law, it is inherent in the fundamental law of the

British constitution. It includes the civil right of everyone

within the jurisdiction of the United Kingdom to have un-

impeded access to the ordinary courts to test the legality

not only of administrative decisions but also of the deci-

sions of inferior tribunals.”

Addressing the same issue Lord Woolf, the then Lord Chief

Justice of England and Wales, in a lecture to Cambridge

University on 3 March 2004, spoke out against the proposal

in the most unequivocal terms:”

“I am not over-dramatising the position if I indicate

that, if this clause were to become law, it would be so

** Joint Committee on Human Rights, House of Lords, House of

Commons, Fifth Report of Session 2003-04, HL Paper 35, HC 304,

Asylum and Immigration (Treatment of Claimants, etc.) Bill at 23-24

(Feb. 10, 2004), available at hittp://www.lib.gla.ac.uk/Depts/MOPS/

Offpub/newaware0304. shtml.

* Harry Woolf, Squire Centenary Lecture to Cambridge Univ.: The

Rule of Law and a Change in the Constitution [third paragraph from end]

(Mar. 3, 2004), available at http://www.dca.gov.uk/judicial/speeches/

1cj030304. htm.

20

inconsistent with the spirit of mutual respect between the

different arms of government that it could be the catalyst

for a campaign for a written constitution.”

Similarly, Lord Lester QC in a lecture given on 26

February 2004 considered that the proposed ouster was

repugnant as an attempt to “repeal the ancient common law

supervisory jurisdiction of the Queen’s courts over statutory

tribunals.””° He stated:

“In my view, it is strongly arguable that there are im-

plied limits imposed by the common law, and by a purpo-

sive reading of our ancient constitutional statutes, upon

the apparently absolute powers of the Queen in Parlia-

ment. Parliament cannot validly destroy or alter the es-

sential features of the basic structure of the constitution,

for example, by purporting to deprive the Queen’s Courts

of their supervisory jurisdiction over statutory tribunals,

where they lack jurisdiction, commit errors of law, or act

in breach of the principles of natural justice.””’

IV. Respects in which the proposed procedures of the

Military Commission would violate fair trial princi-

ples of English law and the stage at which each point

may be raised.

Amici understand that the areas of the Military Commission

procedure under challenge by the petitioner in this case

include the following: the independence and impartiality of

the commission structure and appellate bodies, the potential

for admission of coerced evidence, the inability of the

2 Anthony Lester QC, Speech at Inner Temple Parliament Chamber,

London: The Constitutional Implications of Ouster Clauses 6 (Feb. 26,

2004), available at http://www.odysseustrust.org/lectures.

*? See also public legal opinion of Michael Fordham to the Refugee

Legal Centre, Common Law Iilegality of Ousting Judicial Review: Com-

mon Law (Jan. &, 2004), available at http:)/www.blackstonechambers.

com/pdfFiles/Blackstone MF’ THE%20LEGALITY®e200F%200USTIN

G%205R | pdf.

21

petitioner to cross-examine witnesses relied upon against him,

and the inability of the petitioner to have sight of all material

relied upon against him. In each respect, and as explained

below, English law would favour the petitioner’s position.

Independence and impartiality

One of the leading English authorities on independence and

impartiality of a tribunal in the English courts is R v. Bow

Street Magistrate, ex parte Pinochet (no. 2), [2000] 1 A.C.

119 (H.L. 1999) (appeal taken from Eng.). In that case—

concerned with an attempt by Senator Pinochet to overturn an

earlier House of Lords decision refusing to quash extradition

warrants issued against him on grounds of immunity—Lord

Hope reviewed the different formulations of the appropriate

test adopted in different common law jurisdictions. The test in

England was that there was a “real danger of bias” whereas

the test in Scotland and other jurisdictions was whether there

were circumstances which were capable of creating “in the

mind of a reasonable man a suspicion of [the tribunal’s]

impartiality.” /d. at 142. Lord Hope explained (id_):

“Although the tests are described differently, their ap-

plication by the appellate courts in each country is likely

in practice to lead to results which are so similar as to be

indistinguishable. Indeed it may be said of all the various

tests * * * that they are all founded upon the same princi-

ple. Where a judge is performing a judicial duty, he must

not only bring to the discharge of that duty an unbiased

and impartial mind. He must be seen to be impartial.”

More recently the Privy Council”* has had occasion to con-

sider the consequences of a breach of the right to trial before

an independent and impartial tribunal, even where it can be

shown that the trial has been subjectively fair, that the

** As the Court will be aware, under the United Kingdom's legal system

appeals from Scotland are heard by the Privy Council, which is comprised

of the same judges as the Judicial Committee of the House of Lords.

22

complaint relates to structural issues and the absence of

guarantees of independence and that no question of actual

- prejudice can be asserted. In Millar v. Dickson, [2002] |

W.L.R. 1615 (P.C. 2001) (appeal taken from Scot.), their

Lordships made it quite clear that a breach of this nature was

so fundamental that it tainted the entire process and com-

pelled the quashing of any conviction so obtained.

Furthermore, and importantly for present purposes, they held

that the act of prosecuting an individual before such a tribunal

was -itself unlawful. In these circumstances the challenge

could be brought at any stage either before or after the

conclusion of proceedings. The amici wish to emphasise the

following from their Lordships’ judgments:

“(T]he right of an accused in criminal proceedings to be

tried by an independent and impartial tribunal is one

which, unless validly waived by the accused, cannot be

compromised or eroded.” Per Lord Bingham at para. 16.

“By continuing to prosecute the accused before a tribunal

which was not independent and impartial [the Lord

Advocate] infringed the right of the accused to have the

criminal charges against them determined by a tribunal

which was independent and impartial.” /d. at para. 27.

“[T]he question of impartiality, actual or perceived, has

to be judged from the very moment when the judge or

tribunal becomes first seized of the case.” Per Lord Hope

at para. 63.

“The principle of the common law on which these

cases depend is the need to preserve public confidence in

the administration of justice. It is no answer for the judge

to say that he is in fact impartial, that he abided by his

judicial oath and there was a fair trial. The administration

of justice must be preserved from any suspicion that a

judge lacks independence or that he is not impartial. If

there are grounds which would be sufficient to create in

the mind of a reasonable man a doubt about the judge’s

23

impartiality, the inevitable result is that the judge is

disqualified from taking any further part in the case. No

further investigation is necessary, and any decisions he

may have made cannot stand.” /d. at para. 65 (citation

omitted).

The Millar case has since been applied in the context of

challenges to court martial proceedings. In R v. Dundon,

[2004] EWCA (Crim) 621, the court martial appeals court

considered an appeal brought by Mr. Dundon following his

conviction and sentence by court martial. The challenge was

brought at that stage because it was only as a result of a later

decision of the European court that it was appreciated by Mr.

Dundon’s representatives that an argument based on a want of

independence and impartiality was open to him by reference

to Article 6 of the European Convention and the right to a fair

trial there reflected. The breach in question arose from the

involvement of a military Judge Advocate in the trial process.

Although no criticism could be made of the substantive

fairness of the proceedings the conviction was quashed. As

Lord Justice Rose explained (at para. 16):

“[W]e are unable to envisage any circumstance in which

an art. 6 breach having arisen from want of independence

and impartiality in the tribunal, it would be possible to

conclude that the conviction is safe * * * although no

criticism is or could be made of this Judge Advocate’s

conduct, want of independence and impartiality on his

part tainted the basic fairness of the proceedings in rela-

tion to conviction as well as sentence. The Appellant’s

conviction must therefore be declared unsafe, as a matter

of principle and authority * * *.”

In a series of cases against Turkey the European Court of

Human Rights has also directly considered the compatibility

of tribunals including in their constitution a military judge in

proceedings against individuals who are not members of the

State’s armed forces. The leading case in this regard is now

24

Ocalan v. Turkey. (2005) 41 Eur. Ct. H.R. 45. The case con-

cerned the Kurdish leader Abdullah Ocalan accused by the

Turkish authorities of being the leader of a terrorist group

responsible for some 30,000 deaths. Mr. Ocalan was

convicted of treason before a Turkish state security court

which, in the early stages of hearing the case, had comprised

a panel of three judges: one military judge and two civilian.

judges. Notwithstanding the fact that prior to the verdict the

military judge was substituted with a civilian judge (who had

been present throughout the proceedings as a potential

substitute judge), the Grand Chamber held that the presence

of the military judge had violated the right to due process.

The court said the following:

“112. The Court has consistently held that certain

aspects of the status of military judges sitting as members

of the State Security Courts made their independence

from the executive questionable [citation omitted].

“113. It is understandable that the applicant—

prosecuted in a State Security Court for serious offences

relating to national security—should have been

apprehensive about being tried by a bench which

included a regular army officer belonging to the military

legal service. On that account he could legitimately fear

that the State Security Court might allow itself to be

~ unduly influenced by considerations which had nothing

to do with the nature of the case [citation omitted}.

“114. As to whether the military judge's replacement

by a civilian judge in the course of the proceedings

before the verdict was delivered remedied the situation,

the Court considers, firstly, that the question whether a

court is seen to be independent does not depend solely on

its compositién when it delivers its verdict. In order to

comply with the requirements of Article 6 regarding

independence. the court concerned must be scen to be

independent of the executive and the legislature at each

of the three stages of the proceedings, namely the

25

investigation, the trial and the verdict (those being the

three stages in Turkish criminal proceedings ites to

the Government).

“115. Secondly, when a military judge has pustelguted

in one or more interlocutory decisions that continue to

remain in effect in the criminal proceedings concerned,

the accused has reasonable cause for concern about the

validity of the entire proceedings, unless it is established

that the procedure subsequently followed in the state

security court sufficiently disposed of that concern. More

specifically, where a military judge has participated in an

interlocutory decision that forms an integral part of

proceedings against a civilian the whole proceedings are

deprived of the appearance of having been conducted by

an independent and impartiai court.

“116. In its previous judgments, the Court attached

importance to the fact that a civilian had to appear before

a court composed, even if only in part, of members of the

armed forces [citation omitted]. Such a situation

seriously affects the confidence which the courts must

inspire in a democratic society [citation omitted].

“117. In the instant case, the Court notes that before his

replacement on 23 June 1999 the military judge was

present at two preliminary hearings and six hearings on

the merits when interlocutory decisions were taken. It

further notes that none of the decisions were renewed

after the replacement of the military judge and that all

were validated by the replacement judge.

“118. In these circumstances, the Court cannot accept

that the replacement of the military judge before the end

of the proceedings disposed of the applicant’s reasonably

held concern about the trial court's independence and

impartiality.”

One further aspect of the court’s approach to the Ocalan

case also indicates that objections as to the constitution or

fairness of a tribunal may be taken at the outset of

26

proceedings. As paragraph 5 of the earlier chamber judgment

in the case made clear,’ the court had, at a very early stage,

granted interim measures requiring Turkey to “ensure that the

requirements of art. 6 in the proceedings against the applicant

in the State Security Court were complied with and that the

applicant was able to exercise his right to individual

application to the court through lawyers of his own choosing

effectively.” The fact that even an international court such as

the European Court of Human Rights—limited as it was by

the concept of exhaustion of domestic remedies—was pre-

pared to grant interim measures, prior even to the formal

commencement of domestic proceedings, is a strong indica-

tion that matters going. to the fundamental fairness of

proceedings may be raised at any stage and an accused is not

required to await the conclusion of the process before raising

such issues on appeal.

There is also, of course, an inherent logic in permitting a

challenge based on want of independence or impartiality to be

brought before a superior court at the earliest possible oppor-

tunity. To require the lower tribunal to rule upon this issue

would effectively make it a judge in its own cause and require

a litigant to submit to a process which he wished to argue was

structurally incapable of respecting his due process and fair

trial rights.

Evidence obtained by torture

The House of Lords has very recently considered whether

there are any circumstances in which evidence obtained by

torture may be admitted in judicial proceedings of any kind.

The question arose in the context of proceedings relating to

the detention of individuals certified by the Secretary of State

for the Home Department as “suspected international

terrorists” and challenges by these individuals to that

certification. The question directly in issue was whether

evidence obtained by the torture of witnesses by a foreign

*9 (2003) 37 Eur. Ct. H.R. 10.

27

State could be admitted in proceedings where the United

Kingdom had not been complicit in the torture in any way. A

specially convened panel of seven Law Lords held that there

was an absolute exclusionary rule precluding admission of

such evidence in any proceedings. See A and others v.

Secretary of State for the Home Department, {2005} UKHL

71 (appeal taken from Eng.).

Because of the signiticance of the issue all seven Law

Lords gave judgments in the case, although they were unani-

mous in upholding the absolute exclusionary rule. The

following are among the important statements in the case:

“[T]he English common law has regarded torture and its

fruits with abhorrence for over 500 years, and that abhor-

rence is now shared by over 140 countries which have

acceded to the Torture Convention.” Per Lord Bingham

at para. 51.

“The principles of the common law, standing alone, * * *

compel the exclusion of * * * torture evidence as unreli-

able, unfair, offensive to ordinary standards of humanity

and decency and incompatible with the principles which

should animate a tribunal seeking to administer justice.”

Id. at para. 52.°°

“The use of torture is dishonourable. It corrupts and

degrades the state which uses it and the legal system

which accepts it. When judicial torture was routine all

over Europe, its rejection by the common law was a

source of national pride and the admiration of en-

lightened foreign writers such as Voltaire and Beccaria.”

Per Lord Hoffmann at para. 82.

* Perhaps notably for the purposes of the instant case, Lord Bingham

also observed, at paragraph 53, that “it may well be that * * * some of the

Category II or Il techniques detailed in a J2 memorandum dated | | Octo-

ber 2002 addressed to the Commander Joint Task Force 170 at Guantana-

- mo Bay [citation omitted] would now be held to fall within the definition

in article | of the Torture Convention.”

28

“The law will not lend its support to the use of torture for

any purpose whatever. It has no place in the defence of

freedom and democracy, whose very existence depends

on the denial of the use of such methods to the executive.

“Once torture has become acclimatised in a legal

system it spreads like an infectious disease, hardening

and brutalising those who have become accustomed to its

use.” Per Lord Hope at paras. | 12—13 (citations omitted).

“(T]he duty not to countenance the use of torture by

admission of evidence so obtained in judicial proceedings

must be regarded as paramount * * * to allow its admis-

sion would shock the conscience, abuse or degrade the

proceedings and involve the state in moral defilement.”

Per Lord Carswell at para 150 (citation omitted).

A further feature of this case before the House of Lords was

that a series of proceedings involving challenges to control

orders’! and deportation notices were stayed pending the out-

come of the case and an indication from the individuals con-

cerned that they wished to contend that evidence obtained

under torture should not be admitted against them. The

powerful statement of Lord Hope referring to the potential for

torture to “spread like an infectious disease” also provides a

strong justification for allowing the point to be resolved at the

preliminary stage before the integrity of the judicial system is

undermined.

Availability of witnesses for cross-examination

For hundreds of years the central principle of the English

criminal law has been that witnesses should be made avail-

able for cross-examination. As Blackstone put it in 1783:

‘! These are orders permitted under the United Kingdom's domestic

anti-terrorist legislation restricting the freedom of movement and associa-

tion of individuals alleged by the Government to be “suspected interna-

tional terrorists” but against whom no criminal proceedings are to be

brought

29

“In short by this method of examination, and this only,

the persons who are to decide upon the evidence have an

opportunity of observing the quality, education, under-

standing, behaviour, and inclination of the witness; in

which points all persons must appear alike, when their

depositions are reduced to writing, and read to the judge,

in the absence of those who made them: and yet as much

may be frequently collected from the manner in which

evidence is delivered, as from the matter of it.””*

Although this absolute rule has been relaxed to a certain

degree, it will only be in exceptional cases where an out of

court statement may be admitted without requiring the depo-

nent to be available for cross-examination—typical examples

are where the witness is overseas or ill—and the presumption

remains strongly in favour of oral evidence. Cf R v. Gokai,

[1997] 2 Crim. App. 266 (1996), where the evidence of an

accomplice was admitted without his giving oral evidence.

Right of an accused to sight of all evidence relied upon

against him

Another principle of the English common law of long

standing which remains absolute is that am accused must be

provided with all evidence to be used against him. See, ¢.g.,

Franklyn v. Regina, [1993] | W.L.R. 862 (P.C.) (appeal taken

from Jam.). Indeed the common law (stimuliated by a series of

high profile miscarriages of justice and informed by the

jurisprudence of the European Court of Human Rights) has

now gone further and made it clear that any material which

the prosecution has obtained and which it does not intend to

rely upon but which may assist the defence must be disclosed.

R v. Davis, (1993) 97 Crim. App. | 10. Both this principle and

that relating to attendance or otherwise of a witness at trial are

of such significance that they—like the matters set out

above—could, under English law, readily be taken as a pre-

liminary point without waiting for the conclusion of trial.

? William Blackstone, 3 Commentaries *374.

30

CONCLUSION

If it were the United Kingdom, and not the United States of

America, which controlled the Guantanamo Bay Naval Base

and the detained persons held there, then the writ of habeas

corpus would be available before the English courts to

challenge the jurisdictional propriety and fundamental fair-

ness of proceedings brought against the detained persons.

Such recourse would be available at the outset, and it would

not be necessary to await the conclusion of any process before

raising complaints of this nature.

Respectfully submitted,

PETER CARTER QC

18 RED LION COURT

London EC4A 3EB

Tel: 44 207 520 6070

MARK MULLER, BARRISTER

GARDEN COURT CHAMBERS

London WC2A 3LS

Tel: 44 207 993 7600

SAMANTHA KNIGHTS

MATRIX

Griffin Building

London WCIR SLN

Tel: 44 207 404 3447

RUFUS D’CRUZ

18 RED LION COURT

London WC2R 3LD

Tel: 44 207 379 3550

TIMOTHY OTTY, BARRISTER

20 ESSEX STREET

London WC2R 3AL

Tel: 44 207 842 1200

STEPHEN J. POLLAK*

JOHN TOWNSEND RICH

GOODWIN PROCTER LLP

901 New York Avenue NW

Washington, DC 20001

Tel: 202-346-4000

ADAM ZELLICK

FOUNTAIN COURT

TEMPLE

London EC4Y 9DH

Tel: 44 207 583 3335

SUDHANSHU SWAROOP

20 ESSEX STREET

London WC2R 3AL

Tel: 44 207 842 1200

Attorneys for the Amici

January 6, 2006

*Counsel of Record