Crucial decisions for detention judges
· Court to rule if control orders rely on coerced evidence
Judges on the special immigration appeals court will have to decide early next year whether evidence obtained under torture is involved in up to 30 cases of foreign terror suspects detained in Britain.
The home secretary, Charles Clarke, insisted after the Lords ruling yesterday that his decision to detain 22 of those suspects pending their deportation and a further five placed under control orders does not rely on "coerced evidence". But human rights lawyers insist it has been a factor in the case of Algerians who were acquitted in last year's so-called ricin trial and now facing being deported.
Home Office ministers took some comfort in the fact the ruling did not include the "nightmare option" that they would have to prove "beyond reasonable doubt" no tainted evidence had been used in building the case against the suspects.
Instead, they will have to demonstrate to the judges that "on the balance of probabilities" the evidence involved was not coerced. "It means we will have shown that we made 'as diligent inquiries into the sources of material as is practicable'," said a Home Office spokesman.
Ministers were also pointing to the fact that the judgment specifically covered evidence obtained by torture and excluded witnesses who were suffering inhumane and degrading treatment. This raised the possibility that evidence from those held in Guantánamo Bay might prove admissible although this will be disputed by human rights lawyers.
At the centre of concern over the use of "coerced evidence" is Mohammad Meguerba, a 37-year-old Algerian who had been in an al-Qaida training camp in Afghanistan. He was arrested in London in 2002 as part of an investigation into the funding of terrorist groups. He was released on bail, returned to Algeria, and arrested and detained there.
In England, he had been an associate of Kamel Bourgass, another Algerian, who was jailed for life in April for the murder of Detective Constable Stephen Oake in Manchester and for 17 years for conspiracy to cause a public nuisance through the use of ricin poison. Four other Algerians, Sidali Feddag, David Khalef, Mouloud Sihali and Mustapha Taleb were acquitted of the ricin conspiracy.
It was claimed by lawyers of the defendants that Meguerba had been tortured under detention in Algeria, a country with a reputation for the use of electrodes and beatings to extract information. His relatives claimed he was severely tortured.
His alleged confession, which he claimed was made under torture, led police to led them to Bourgass's home in north London. Lawyers in the ricin trial claimed that any evidence gathered from Megueba should not be admissible and the prosecution said that they had not used any such information because it would have raised the issue of torture.
Algerian authorities have denied that he was mistreated. Some of the acquitted Algerians face deportation. The issue is whether anything said by Meguerba can be used in any review.
In July 2003, in the review of the case of 10 men detained for security reasons, an MI5 expert admitted the security service would use evidence extracted from prisoners tortured abroad. Witness A said: "It is still obviously, speaking theoretically, possible that intelligence provided which may have been obtained in a way that would not be compatible with somebody's human rights could still be assessed to be reliable." All 10 were asylum seekers or refugees held without charge since December 2001 and it was suggested evidence against them could have come from people tortured in Guantánamo Bay or Bagram air base in Afghanistan. The Medical Foundation for the Care of Victims of Torture supported the lawyers. "We see dozens of victims each year from those countries from which most terror suspects originate," said Sherman Carroll. "Little reliance can be placed on the word of a person being tortured."
'Torture is not acceptable'
Extracts from law lords' rulings