Taliban suspects cannot be tried in UK

Ministers told cases would be thrown out of court

Ministers have been told by the Government's lawyers that the case against the seven British al-Qa'ida suspects held in Guantanamo Bay would be thrown out of court if they were sent for trial in this country.

The men have spent between three and six months at the American naval base on Cuba where they were flown after the collapse of the Taliban regime in Afghanistan. None has been charged or told how long they can expect to be held without trial.

The confidential advice, prepared by lawyers working for the Attorney General, Lord Goldsmith, and sent to the Home Office and the Foreign and Commonwealth Office, makes clear that a prosecution would fail under criminal law in Britain. The US government has said that it would like all 564 alleged Taliban and al-Qa'ida fighters, from more than 30 nations, to be tried in their own countries. But British ministers have remained silent on how they want to proceed. The legal advice shows that Britain could not guarantee the Americans a prosecution taking place in this country.

This week a US judge ruled that the captive Britons could not take their case for habeas corpus to an American court because it would not have jurisdiction over Guantanamo Bay.

The US authorities now have three choices – release the men without charge, put them on trial at a military tribunal or send them to their home country on condition they will face a criminal prosecution. The legal advice makes clear that the third option is a very unlikely prospect.

Government lawyers believe that evidence gathered by security service personnel during interviews with the British suspects in Guantanamo Bay would be thrown out of court. They argue that because the men did not have access to legal advice any interviews would be inadmissible in court under the rules of the Police and Criminal Evidence Act. Some of the suspects have written to their families asking for legal representation.

The Government's written advice also makes clear that any other evidence obtained during their capture and subsequent detention is vulnerable to a successful legal challenge.

Next week ministers must declare their defence to legal action in this country brought by the family of the Taliban suspect Feroz Abassi, 22, a former computer studies student from Croydon, south London, and one of the seven held by the Americans. The family's case is that the British Government has a legal duty to uphold his human rights.

Last month the Court of Appeal gave permission for the case to go ahead. It will be heard before the High Court at the start of next month. The family's solicitor, Louise Christian, who is also acting for two more of the British suspects, said yesterday: "It is clear that there is no evidence against them and they should be released. They went to Afghanistan for religious reasons to support a regime which was not criminalised at the time. It does not make them international terrorists."

Ms Christian said there were growing concerns for the health of one of the detainees, Tarek Dergoul, 24, a former care worker from east London. She said he had been injured while held, suffered frostbite, and as a result had part of his arm amputated.

Yesterday a spokeswoman for the Foreign Office said that discussions were continuing with the Americans on the future detention of the British suspects.

She said. "We consider the status of each detainee under humanitarian law in the light of the circumstances of each case. Whatever their status they are entitled to humane treatment and, if prosecuted, a fair trial."

The Americans have introduced lawsto set up military tribunals to try the suspects but no hearings have been held.