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Lord Bingham’s judgment on detention without remains to be one of the most recognized judgments in the United Kingdom. The issue of detention without trial in A and Other v Secretary of State for Home Department(2004) focused on the subject of detaining foreign nationals after they were accused of terrorism and other offences related to terrorism. During this time, so many foreigners were held hostage in Belmarsh prison as they waited to be deported. According to Bingham’s argument, the act of detaining foreign nationals without trial was not compatible with article 5(1) of the European Convention on Human Rights (ECHR). An exception to article 5(1) of the European Convention on Human Rights is allowed by ECHR on the basis that the exceptional action is proportionate. He added that there has to be a ‘public emergency’ that poses serious threats to the life of a nation. In reference to the issue of detaining accused foreign nationals, Bingham was not convinced if the case exhibited elements of threat to the life of a nation or had an indication of exceptional action. Instead, he viewed it as an issue of undue political influence and criticized the view that the immigration measure was addressing security problems. In addition, Bingham advised that evidence gathered through torture should not be accepted in the court of law. Having cited over 500 years’ worth of jurisprudence, Bingham argued that evidence gained through force and torture is unreliable hence, should be admitted.
Belmarsh case presented a state of dilemma between Article 5 and Article 15 of the UK constitution. According to the view of the government, the rights of terror suspects could be suspended if there was proof of war or a public emergency that threatens the life of a nation. Lord Hoffmann argued that there was neither war nor case of public emergency. He differed with other eight judges in the House of Lords on the basis that they had misunderstood the provisions in Article 15 on the issue of an emergency that could be a threat to the ‘life of a nation’. Despite the fact that Al-Qaeda proved to be a threat to individual lives, Lord Hoffmann argued that terrorist violence was not a threat to the institutions of the government or UK’s existence as a civil community. It is important to note that the difference between Lord Hoffmann argument and the view of other eight judges indicates how relative importance of individual rights should be viewed. It induces the sense of the extent to which the individual rights of a person or group should be sacrificed with the interest of securing other people’s rights.
Giving relenting considerations to issues like security threats can put the life of a nation at high risk. It is the duty of the government to protect the lives of its people and resources of the nation against threatening foreign invasion. Bingham’s view of public emergency provides adequate protection to individual rights and protects the life of a nation. It prevents biased action against foreigners accused of terrorism-related offenses. It also allows for rational argument on the conditions under which a suspect can be detained without trial. In this case, Bingham’s concern for a more individualist notion of equality before the law allowed him instead to uphold the appellants’ challenge to the government on discrimination grounds. The appellants had been detained prior to deportation, but deportation could not go ahead for human rights reasons (risk of death or torture in their home countries). They were therefore held in indefinite detention. This, Bingham concluded, constituted unlawful, unequal treatment contrary to Article 14 of the ECHR (from which the 2001 Act did not derogate): “The appellants were treated differently because of their nationality or immigration status.” Other non-UK nationals could be removed from the country and UK nationals could not be removed. Thus the appellants’ immigration limbo led to their detentions being unlawful on the basis of discrimination, not on the basis of whether indefinite detention was unlawful per se or whether Britain was right to claim an emergency to justify derogation when other countries in Europe, also subject to al-Qa’ida terrorism, had not.

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