Not Saussure

September 24, 2006

Terrorists, judges and the criminal law

Filed under: civil liberties, UK, War on Terror — notsaussure @ 2:54 pm

Alasdair Palmer considers the implications of the government’s apparent change of mind about using wiretap evidence in terrorism (and, I assume, other) cases. There is a real problem in such cases with disclosure, the requirement that the prosecution turn over to the defence relevant evidence that may be in its possession that could help the defence. This, it is argued, can compromise security operations; Mr Palmer quotes

Andy McCarthy, who prosecuted Omar Abdel Rahman and 11 others in 1995 for their part in the first attempt to destroy the World Trade Centre, [who] notes bitterly that he discovered during the trial that “when there is any dispute about whether a sensitive piece of information needs to be disclosed, the decision is made by a judge on the basis of what a fair trial dictates, rather than on the basis of what public safety demands”. Mr McCarthy was obliged to provide the defence with a list of 200 people whom the US Government thought were involved in the bomb plot, but had insufficient evidence to charge. “Within days of my having sent [that list],” states Mr McCarthy, “it was in the hands of Osama bin Laden.” Mr McCarthy’s letter turned up as evidence in the trial of those who bombed the US embassies in Africa: a copy had somehow found its way to al-Qaeda in Sudan.

(quite why it should come as a surprise to an attorney, even in the USA, that the judge sees his over-riding duty to conduct the trial fairly, I do not know).
However they decide to deal with the problem, it’ll have to include some version of Public Interest Immunity Certificate, whereby the trial judge reviews the evidence the prosecution don’t want to disclose and tries to balance the conflicting demands of providing a fair trial with those of state security. Mr Palmer seems a bit worried about this because

British judges have demonstrated that they do not think that human rights should be outweighed by considerations of state security. Lord Phillips, the Lord Chief Justice, famously replied, when asked if he and his colleagues would see the balance of human rights against state security differently in the light of 7/7, that “the judges will not see anything differently”.

And quite right, too, to my mind; as the Crown Prosecution Service guidance puts it,

In criminal proceedings, there must be a presumption in favour of disclosure, and that substantial justification would be needed for not doing so. The liberty of the individual is at stake. The need to avoid a miscarriage of justice weighs heavily in the balance both for judges and prosecutors. For this reason, the public interest is more likely to favour disclosure than in civil proceedings.

That is, the courts are not trying to balance the public interest of security against the private interest of the defendant to a fair trial; they’re trying to balance two sometimes conflicting public interests — security vs the right of all of us to a legal system that provides fair and impartial trials (including our trial if — as sometimes happens — someone jumps to the wrong conclusions*). Given that the balancing act is difficult enough anyway, it seems vital that the judges strongly and publicly resist any attempts to enlist them as part of the War on Terror.

Alasdair Palmer concludes

When it attempts to change the law to allow wire-tap evidence, the Government is likely to discover that the principles of the criminal law and the requirements of national security run straight into each other. If so, it will not be the first time that ministers have been reminded that the criminal law is not designed to deal with terrorists who want to replace democracy with Sharia law. The criminal law was developed to interrogate and convict criminals, not terrorists.

I think he’s mistaken. Terrorists are criminals, and the criminal law managed to deal perfectly well with Irish terrorists who refused to recognise the validity of British courts (and who, I have to say, were, and are, considerably more professional and better organised than, thank God, the present crop are).

One factual correction to Mr Palmer’s piece — he’s concerned that

Abdullah el-Faisal was tried and found guilty of soliciting murder and inciting racial hatred. His views and objectives were similar to those of the “Saviour Sect”: the establishment of Sharia law and an Islamic state in Britain. He advocated the murder of Jews and the use of chemical weapons to “exterminate non-believers”.El-Faisal was given nine years in prison, a sentence that shocked many civil libertarians, who thought that all he had done was to “exercise his right to free speech”. His lawyers appealed: they managed to get his sentence reduced to seven years. But el-Faisal’s time in jail will soon be up. Under the Government’s regulations, every prisoner is entitled to be considered for early release halfway through his sentence. Given the time he spent on remand awaiting trial, el-Faisal has now reached that point.

The Home Office is expected to have to release him soon. Yet does anyone seriously believe that he has moderated his views in any way?

Probably he hasn’t, but he’d better watch his step for the next three-and-a-half years, at least, since for that period he’ll be on licence. This means that, at any point, he can be recalled to prison to serve the remaining three-and-a-half years in part or in full (that is, he can be recalled in three years’ time to serve the full three-and-a-half years). That’s a completely administrative decision by the Home Office; the courts don’t get involved.

*I’ve had first-hand experience of this, incidentally. I’ve never had anything to do with Irish Republicanism, let alone terrorism. This is one reason why I have nothing to do with some members of my extended family back in the Irish Republic. However, one of my oldest friends is a reporter who, at one stage, was covering Northern Ireland. Unbeknown to me, my then girlfriend — who was not particularly interested in political matters — had had a previous relationship with an Italian chap who found it advisable to live in London because, back home, prosecutors wanted to ask him about his connections with the Red Brigades. Someone in the Security Services, looking at my chum’s and my girlfriend’s phone records, noticed that my number showed up frequently on the incoming and outgoing call records for both of them, and — combining that with my name — put two and two together and made twenty two. I had a very un-nerving conversation with a Special Branch chap about it all; with hindsight, I’m sure they were using me to lean on my reporter chum a bit , since he was then covering a story that they didn’t really want publicised, rather than genuinely suspicious, but it really was rather worrying at the time.

Had it been 20 years later, circumstances rather different and my father an immigrant from a different part of the world, I can quite well imagine I’d have spent a year or so in Belmarsh before we managed to sort out the little misunderstanding.


1 Comment »

  1. The air conditioner is now placed back into the system and regular neglect accelerate the end.

    Comment by — April 16, 2013 @ 10:07 pm

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