Yesterday, having read reports of the speech by Sir Ken Macdonald, the Director of Public Prosecutions, to the Criminal Bar Association, I called for three cheers on learning he told them
“London is not a battlefield. Those innocents who were murdered on July 7 2005 were not victims of war. And the men who killed them were not, as in their vanity they claimed on their ludicrous videos, ‘soldiers’. They were deluded, narcissistic inadequates. They were criminals. They were fantasists. We need to be very clear about this. On the streets of London, there is no such thing as a ‘war on terror’, just as there can be no such thing as a ‘war on drugs’.
I’ve now read the speech, called Security and Rights, which is online at the CPS website; I gather that a video, which I very much hope will include the questions and discussion, should be online in a week or so at the Criminal Bar Association website.
It’s gone down to two-and-a-half cheers, since I’m rather disappointed by his defence of 28 day detention for terrorist suspects, which he justifies on the grounds it’s sometimes necessary because of the amount of evidence that needs scrutinising before a charging decision can be made; well, yes, but that’s not unique to terrorism cases and, as we’ve seen recently with the proposed Serious Crime Prevention Orders, ideas that started out aimed at terrorists have a nasty habit of being applied more generally. I’m similarly concerned about his defence of the law on encouraging acts of terror, which he says
amounts to proselytising acts of terror, deliberately and carefully just short of actual incitement
Well, yes, but if we concede the point that something that’s almost but not quite incitement to a criminal act should also be a criminal offence, then before too long someone’s going to suggest that something that’s almost but not quite encouraging a criminal offence is almost as bad… and where do you stop?
Elsewhere in the speech he provides an example the sort of thing that worries me; speaking of incitement to religious hatred, he says
Of course you can be critical and rude about religion. You can be very critical and very rude about particular religions. Some people may find that offensive. But who wants to live in a country where offensiveness is a crime?
But if your speech is such that it is likely to create a situation where people’s personal safety is threatened – you can be arrested. This is a human rights balance and an entirely appropriate one.
Indeed, but what are we to make of speech that deliberately and carefully just short of actual incitement to religious hatred, that amounts to proselytising acts that threaten people’s personal safety? Seems to me that we’re in danger of finding ourselves on the slippery slope to the salami-slicer if we’re not very careful.
However, and this is why I still give him his two-and-a-half cheers, he is adamant that all this has to be done within the tradition protections of the criminal law in general and the rigorous observance of the Human Rights Act and the European Convention on Human Rights in particular; as he says,
our enduring criminal law framework, underpinned by the European Convention on Human Rights, properly directs us towards justice and due process. Towards fair procedures and evidence-driven policing.
So in fighting terrorism, we shouldn’t make exceptions to the rule of law; we should use the strength inherent within it.
Critical to this is that individual rights and national security are not seen as being mutually exclusive. This is not a zero-sum game. Improvements to national security do not have to come at the expense of rights
We may think we’ve heard this before, from Tony Blair and successive Home Secretaries, but, unlike them, he actually seems to mean it. In defending 28-day detention and the like, he stresses the importance of implementing them in ways that are compatible with the ECHR, not because the ECHR is an unfortunate restraint on prosecutors that must, nevertheless, be observed but because he realises not only that civil liberties are part of what we’re fighting for but also that due process and proper protections for defendants to ensure the fairness of trials are integral to maintaining public confidence in the legal system. There’s not, as the Prime Minister would have it, a
conflict between the traditional protections for the suspect and the rights of the law-abiding majority
On the contrary, as he says,
We know that unfairness, oppression, cheating, breaches of the law, separately or together, can doom a case before it begins.
He warns, quite rightly, that
There is a real danger of measures for combating terrorism-related offences being counterproductive. Compromising the integrity of the trial process would blight the criminal justice system for decades. It would severely undermine public confidence.We should recall the impact the Birmingham Six case had on public confidence in the 1970s and 1980s. Nothing is more offensive to the Constitution of a country than men and women sitting for years in prison cells for offences they did not commit.
and he’s quite clear about how this conflicts with the government’s approach to these matters.
Much of the speech is a barely veiled attack, in terms, on the Prime Minister and successive Home Secretaries; he begins by remarking, before demolishing the proposition:
It is often said, isn’t it, that the pendulum has swung too far in favour of defendants. Too many due process restraints are Victorian in culture. They are no longer relevant.
Well, it’s certainly often said by one Tony Blair, who was complaining in his speech in June last year on Our Nation’s Future — the Criminal Justice System, that
the challenges faced by the criminal justice and immigration systems have grown exponentially, not in a small way but in a way that, frankly, mocks a system built not for another decade but another age. So we end up fighting 21st century problems with 19th century solutions.
and who explained, the following month, to News Corps in California, that
In the law and order debate, the nature of organised crime or social breakdown in parts of our communities, not to say the threat of global terrorism bent on mass slaughter, mean that traditional civil liberty arguments are not so much wrong, as just made for another age.
Then again, defending the ECHR, he says,
Yet post 9/11, some of the values enshrined in the ECHR, some of those English common lawyers’ standards, seem to be losing their status. As though some of the freedoms the convention speaks of are no longer quite so fundamental.
Some people around the world seem to think that they aren’t as relevant in the current climate as they were in 1950. That the right to a fair trial, the right to freedom of expression, the right to privacy and the right to liberty can be compromised, even when the ‘life of the nation’ may not be at stake.
(the ‘life of the nation’, as he reminds his audience, is the phrase used in Article 15 of the ECHR, which allows contracting states to derogate from the rights guaranteed by the Convention in time of ‘war or other public emergency threatening the life of the nation’).
Certainly Dr Reid thinks the ECHR isn’t as important as it was when it was originally drafted; speaking to the think tank Demos last year, just before the alleged airline plot was exposed, he quoted the Prime Minister’s words about ‘traditional civil liberties arguments’ being ‘no so much wrong, as just made for another age’ and give the ECHR as an example of what Mr Blair had in mind:
And over time, as the totalitarian shadow retreated from Europe, those rights became a reality for more and more of the 300 million or so living within its borders. Indeed, they became an essential pre-requisite for a country to be considered a member of the European family.
But now we are faced by a new challenge -perhaps greater than any faced in the last fifty years, to this new consensus around the core values of a free society.
before going on to complain about how difficult he found the constraints of the ECHR when it comes to prosecuting suspected terrorists.
Sir Ken is having none of it. It is, he says,
naive and ahistorical to believe that the adoption of increasingly sophisticated means of national and international policing and crime control, which is certainly necessary to meet terrorism, requires a corresponding dilution of Article 6 protections. In fact the reverse is true.For example, the contribution of the Police and Criminal Evidence Act 1984 to improving the quality of policing, and therefore public and private security, whilst simultaneously protecting suspects’ rights, is an excellent example of how due process itself supports the community’s wholly legitimate interest in prosecuting more people fairly to safe convictions.
Even if it is true that victory against terrorism is unlikely ever to be final, the protection of fair trial rights, which is central to the legitimacy of all forms of social control, can always be achieved- given the political will.
And he lists what he, ‘as head of the prosecuting authority’, considers the non-negotiable principles of a fair trial:
First, trials should be routinely open and reported before independent and impartial tribunals.
So we can’t have secret courts, we can’t have vetted judges, and we can’t have secret justice
Secondly, equality of arms – the right to call and cross-examine witnesses under equal conditions. Equal access to the court.
This is not negotiable. Fairness between prosecution and defence is an inalienable aspect of fair trial. A level playing field.
The third principle is closely linked to this. Defendants are entitled to know the case is against them. They must have full access to the State’s case in all circumstances. Without that, there can be no fair trial.
And they are entitled to have any material in the State’s possession which either undermines the prosecution’s case or assists the defence case.
Fourthly, a protected right of appeal is not negotiable.
And finally, the most important of all: the presumption of innocence. The criminal standard of proof beyond reasonable doubt, with the burden resting squarely on the Crown’s shoulders, cannot be compromised. It is not negotiable.
A pretty damning indictment, I think, of many of this government’s anti-terrorist measures — not just David Blunkett’s apparatus for detaining people without trial in Belmarsh, but also Charles Clarke’s control orders that replaced them, and of John Reid’s threats that, if the Court of Appeal keep on frustrating him, he may have to derogate from aspects of the ECHR
Of all this, he says
I believe an abandonment of Article 6 fair trial protections in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.
It really has come to something when the DPP quite deliberately — and quite fairly, to my mind — denounces the Prime Minister and his Home Secretaries for their ‘abject surrender to nihilism’.
The worrying thing is, though, that many of his strictures apply just as much to the opposition.