Friday, 8 June 2007

A bowl of Petunias, anyone?

For some time, Justitia has been calling me to tell you a little more of current legal issues. Hopefully we'll see a few of them. First of all, though, current legal affairs. Civil liberties and terrorism are once again lowering their heads for the charge.

The proposals

Gordon Brown and John Reid have had a good time of announcing some anti-terrorism proposals recently. Presumably because the political world is on stand-still until the 27th June.

Detention without charge

Heading up the proposals once more is the wish they share to extend the time that one can be held (under anti-terror laws) without charge to more than 28 days. This means that someone, at the moment, can be held for a month without being formally accused of any crime. That in itself is highly questionable. What happened to the principle of not imprisoning someone without a trial?

This principle was first set down in 1215, in our famous Magna Carta:

XXIX. Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

(XXIX. No Free man shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.)

Magna Carta is perhaps too often quoted by our civil rights movements. But it is important because of one fact: it is the first set of laws stipulating how our country should be run: it is our first attempt at limiting the power of the State. It worked: ever since, we've not had a police state. There have been a few hiccups here and there, but we've been free from Soviet/Nazi-style oppression. I'm very concerned about this lengthening of detention without charge. Very concerned indeed.

Post-charging questioning

Another proposal is to allow police to question a suspect after they have been charged. Now this sounds, at first, to be a sensible move. Why should the police have this artificial barrier to questioning? Thinking about it further has perturbed me increasingly, though. Consider the principles involved. When a person is charged with a crime, that means that a prosecution will (probably) occur. It means that the prosecutors have sufficient evidence to proceed with a trial with the probability of a conviction. That means that they must be convinced a Jury could be sure of the person's guilt. In terrorism offences, when a person is charged, they will generally appear before a Magistrate, plead 'not guilty', and proceed to a Trial by Jury and Judge in the the stereotypical court-case. This will happen a lot later.

Such changes in the law as are proposed would change all of that. For 3 months, a person could be held in police cells, then charged. Then he could be questioned further - (for how long?) - before appearing before a court. This will lead to a trying time for the accused - he could be questioned by police daily for months before appearing in court whilst they try to scrape together the evidence to have a chance of conviction. Of course, I am presenting the worst-case scenario - or at least a bad one. But we cannot assume we'll only arrest terrorists. Think of the police shooting of the innocent Asian chap in Forest Gate last year.

The Control order furore

All of this could possibly be tolerated if it weren't part of a wider worrying trend away from a free society. The worst part, I think, has been the row over control orders. Control orders are used when there is insufficient evidence to try someone, but the government believes them to be a terrorist. They're often similar to house arrest. Recently, 3 men on control orders absconded. John Reid's reaction was nauseating:

"They were brought in because the courts prevented the government from jailing people who were believed to be terrorists...we were stopped from jailing them because we didn't have the evidence to convict them here."

Can Dr Reid be serious? Are we to accept that control orders - questionable in themselves - don't work? And are we to accept his excuse - that the House of Lords, that august body (and seemingly more concerned with democracy than the government) had told him it was illegal to bang people up in jail without trial? It really does defy belief.

But what shocks me most is that no-one's kicking up a storm in our slow but steady slip towards a police state.



Fergus said...

Detention without charge is certainly a worrying situation - what leaves a bitter taste is that it is a law forced through under the premise that it is in the interests of national security. Drop terrorism into the flimsy rationale and suddenly it becomes justifiable. I recently had a discussion with some about this - they said, "If you have nothing to hide, you have nothing to fear." There are two main problems with this - the first is that I am a law-abiding citizen and, therefore, like many others I should be entitled to my freedom. The second is that actually, you can be detained if you have nothing to hide - the idea, at least to my understanding, of the 28 days is that the Police can collect evidence, therefore they need none or very little in the first place. Innocent until proven guilty, anyone?

My knowledge of how post-charge questioning will affect the justice system is incomplete. However, I would venture to agree with Phil here - surely once charged the Police must have sufficient evidence of sufficient quality. Otherwise the case would not be brought to trial - so surely, as Phil says, this facet will merely place undue pressure on the defendant. The most worrying thing is the time between arrest and verdict - it would be most beneficial for both parties to keep this as short as possible, but all these new measures do is lengthen that time. A paradox perhaps? I see little value in making a system less efficient by meddling; but the current government has become rather apt at this.

Control orders - seems like another way of using terrorism as an excuse. Sadly, this is the problem - and it's what makes me smart at the whole issue. Phil says there is little debate on the subject - he's right, there isn't. This is the next big mistake of our nation - we are told these measures are necessary in the 'War on Terror'. Who in their right mind would object to that? Of course, it becomes very hard to, especially when supporters make outlandish claims such as "...this will stop another 7/7...". Clearly it won't, but the vast majority of people think it will. Of believe it will, that's probably more accurate. This is part and parcel of Modern Britain, I fear - we see the same process happen with climate change arguments and much more besides. I just wonder if the people of this Great nation actually have the zeal to object to this brand of irrationality - the kind forced upon us with spurious fear-driven claims attached, the kind we should fear. For fear is being used to drive through 'reform', and this brand of politics is not dissimilar to that of the "Soviet/Nazi-style oppression" of which Phil speaks. We should be very wary of this.

Phil' said...

I would largely agree with what you say, but I would add one or two comments. The first is that we should not be too hasty to condemn the slow legal system. When you say we should keep the time between arrest and verdict 'as short as possible', Justice must not be compromised in the process of doing so.

The whole issue puts me in mind of that great and tragic case, Liversidge v. Anderson, during World war II. Some of you may know of Regulation 18B, which permitted the internment of Germans and Nazis without trial. The internment did not have to be justified, even before the courts. This was decided - and in my opinion should not have been - in the aforementioned case. lord Atkin, dissenting from the other Lords, wrote this:

"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 in law.

In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I…. But in English law every imprisonment is prima facie unlawful and puts a burden on the person directing the imprisonment of justifying his act."

Is this 'War on Terror' any different?


Gavin said...

Hello Phil.

Magna Carta and later Habeas Corpus state that no man should be imprisoned without charge or trial. Habeas Corpus states that the time between arrest and trial should be no more than three days. I would suggest, in this modern age of advanced technology and international organised crime / terrorism, this is no longer practical. So we now use the "or as soon as possible" get-out. The beauty of the British constitution is that it has evolved slowly over time and is flexible, in stark contrast the the American constitution. Habeas Corpus is a law of statue just like any other law, and, like any other law, may be repealed or replaced with new legislation that is more appropriate to the times. I feel it is this ability to mould and bend that makes the British constitution so admirable. In the days when an American colonist living in a log cabin needed a musket to keep bears and the King of England out of his face, citizens needed the right to bear arms. Now we have automatic guns which, according to US law, may be bought by gangs in supermarkets. In the UK the Westminster Parliament, which is still in theory (thank the Lord) sovereign, can simply step in and ban them. Sorted. It's the same principle with terror suspects. The powers of the monarch (who is still in theory the most powerful person in Britain) are exercised by the PM and his government, so it's all perfectly constitutional. The sovereignty of Parliament is in effect the sovereignty of the Queen, but it's "shared out" a little.

I am very sceptical about the Left wing's yelling of "fascism!" or "totalitarianism!" every time any slightly non-libertarian law is passed; it whips up irrational fear among the people, just as scaring them with pictures of Bin Laden does. The judiciary are also increasingly influenced by naive liberal inclinations about human rights and the like, as most of them have never lived anywhere but in the theoretical world of public school and Oxbridge. So let's not hear any more of this silly nonsense about a police state, please. :P

Phil' said...

You make two points, very different in nature. The first - that all of my quibbles can be over-turned by Parliament - is true. But if we want to change Magna Carta, we should discuss it. it should be election manifesto material, not crept by on the sly by the dying end of a Government. that's not cricket at all! By all means change it, but lets be sure that we are doing so, that everyone knows, and that we want to do it.

Your second point, against the Leftist irrational libertarianism, is entirely flawed. Why do we need civil liberties? Thankfully, we rarely have cause to defend them de nos jours. But that doesn't mean we should just get rid of them! They are difficult to get hold of, and very precious. If we let them go, it will be hard to win them back. But why do we need them? Well, surely there are two ways of stopping abuse of power. The first is to trust them not to abuse their power. I.e. give them it and trust. Does that really stop them? The second is to make it impossible. Enshrine civil liberties to stop them , even if they wouldn't go wrong 99.9% of the time. That's why we need them. Total prevention is better than trust and cure.


Gavin said...

"That everyone knows, and that we want to do it." - ?

My dear Bernard, why should we care whether the plebs know, or what they think?

Anonymous said...

Well, that just really helped with my politics revision...thanks!

Any chance you can do a blog on the EU constitution? :D


Phil' said...

That's easy Ayesha. Here you go:

"It shouldn't exist."


Gavin said...

Well Phil, if you were up to date with your current affairs, you would know that the EU Constitution doesn't exist! It has been dropped after it was vetoed in French and Dutch referenda/ums (take your pick for the plural form). BUT a new EU treaty covering many of the topics of the original constitution is being discussed this very moment. The German Chancellor is determined to "resurrect" the EU Constitution. Tony Blair, despite promising the British electorate a referendum on any treaty of great constitutional significance, has decided that it isn't necessary for this new treaty, as it has dropped the name "Constitution" and is being presented as a mere tidying-up exercise. However, by the German Chancellor's own admission the only real change is the name. The major provisions - an EU President and Foreign Minister and lots of social leglislation - are all still in there.