Guilty until proven guiltier

London Times | Jan 29 2005

From Galileo to Vaclav Havel, history shows that house arrest is not only unjust, but counterproductive

OF THE draconian measures unveiled by the Home Secretary in the name of national security, none casts the shadow of a police state more ominously than the newly brandished weapon of house arrest. The practice of shuttering suspects and enemies in their own homes has a long and dishonourable history: it is usually the last resort of a regime without the evidence or stomach for a trial. House arrest not only breaches the European Convention on Human Rights, but is also impractical, often counter-productive and historically naive. The very term is itself freighted with connotations of overweening state control.
In an accident of good timing, the Tories’ call for more history teaching in schools coincided with a fresh bout of historical amnesia on the part of the Government. A mere glance at the past suggests that house arrest is simply a way of making imprisonment without trial appear less onerous, and a dangerous infringement of liberty that usually does not work.

Totalitarian states have traditionally resorted to house detention as a way to silence dissent without the bad publicity of criminal proceedings, so creating a form of extralegal limbo that indicates guilt on the part of a suspect without having to go to the trouble of obtaining a conviction. As the fate of the late Zhao Ziyang demonstrated so chillingly, house arrest imposes lingering, silent political death. The purged Chinese Communist leader could leave his home rarely and then only with the permission of the party bosses. Thus was he consigned to a purgatory of impotent anonymity, and occasional golf, for 16 years. When Saddam Hussein came to power in 1979, he placed his enemies under formal house arrest, and murdered them later when no one was watching. Nikita Krushchev, deposed in 1964, vanished into the Siberia of home detention for seven years until his death.

Michael Foot once argued that life imprisonment was “a declaration of society’s intellectual bankruptcy”, but the imposition of house arrest, by political order rather than by the courts, may be a sign of even greater impoverishment, for too often house arrest is not a legal or penal solution, but a stalling mechanism. Faced with the problem of Mary Queen of Scots, Elizabeth I first opted to put her cousin under house arrest, before eventually (and reluctantly) agreeing to her execution. In Chile, General Augusto Pinochet has been returned to the unsatisfactory no man’s land of house arrest, neither imprisoned nor free, neither guilty nor innocent.

Repressive regimes from apartheid South Africa to Zimbabwe to Burma have used house arrest to buy time and silence critics, but in Britain there is an instinctive revulsion at such methods. The saying about an Englishman’s home being his castle is fundamentally true, like all clichés. Private property is still sacrosanct in the British mentality, and the idea of being imprisoned in one’s own sitting room is almost a contradiction in terms. Even so, this is not the first British government to resort to detention in times of war. In 1940, Sir John Anderson, the Home Secretary, made orders for the detention of 1,428 people who were considered to threaten national security. Hundreds of suspected IRA extremists were interned in Northern Ireland in the 1970s.

But internment was plainly a failure, merely intensifying resentment and radicalising opposition, and there is some evidence that house arrest can prove similarly counter-productive. Aung San Suu Kyi, the pro-democracy activist in Burma, has suffered house arrest for what amounts to a life sentence. Her home jailers hoped that the years of detention would break her; instead, her imprisonment became the badge of her heroism. An individual who is arrested but not brought to trial, denied liberty but not formally imprisoned, often emerges as a symbol of a regime’s contradictions, and a magnet for opposition. Vaclav Havel’s house arrest in Communist Czechoslovakia was a case in point; the Inquisition put Galileo Galilei under house arrest for the last nine years of his life, but only helped to publicise the heretical truths he had discovered.

For the term “house arrest” is, in the end, a sly political euphemism intended to imply leniency while ensuring imprisonment, rendering a suspect guilty until proven guiltier. Given this Government’s mania for euphemism, it is surprising its spin-doctors have not come up with a new PR term for this method of incarceration: “domestic detention”, “community-based custody”, or perhaps “homemade porridge”. Charles Clarke has argued that house arrest is preferable to detention in Belmarsh, but that is only a difference of circumstance, not of essence. Indefinite detention without charge or trial remains just that, whether the suspect is banged up behind bars, or trapped in his own bedroom.

The terrorist threat plainly requires tough measures, including temporary detention of suspects in some instances until their cases can be tested in a courtroom, but the open-ended threat of house arrest goes much too far. Under the new measures detention could be indefinite; the decision to detain will be made by a politician, not a judge or jury; there is no threshold of evidence, just those nebulous “reasonable grounds for suspicion” as adjudged by the Home Secretary. All of these definitions are open to abuse, as they have been abused by the powerful down the centuries.

The only way to combat terrorism is to arrest terrorists, charge them, produce the evidence in court and then convict them. If this requires changing the rules of evidence to protect intelligence sources and disguise anti-terrorism methods, then that is a far smaller price to pay than the damage done to democracy by permitting politicians to order house arrests.

Waiting in the rain for the prison transport to Reading jail, Oscar Wilde remarked glumly: “If this is the way Queen Victoria treats her prisoners, she doesn’t deserve to have any.” It was a good joke, but a serious one, for our society’s principles are reflected in how we treat our prisoners, in Britain as much as in Iraq. Mr Clarke now plans to restrict the freedom of menacing individuals, detain suspects without trial and without having to reveal the evidence against them, limit and track their movements and communications, and hold them, if necessary, in their own homes, for as long as he pleases. If this is what we consider a reasonable way to treat suspects, then we don’t deserve to have any.