Not Saussure

February 15, 2007

Lord Falconer and the HRA Act, yet again

Filed under: civil liberties, Law, War on Terror — notsaussure @ 9:46 pm

I don’t know about other ministers, but Lord Falconer, at least, has been pressing on with his blitz on nonsense about the Human Rights Act, this time arguing to the Royal United Services Institute that the HRA, far from hindering the fight against terrorism, helps both by protecting the values we seek to defend and, by acting as a brake on some of the wilder ideas Home Secretaries have (he doesn’t quite put it this way, obviously), helps prevent to authorities, by using ill-thought-out and disproportionate measures, alienating people whose cooperation and confidence they seek to gain. All good stuff as far as it goes, and pretty much not only what Lord Falconer himself was saying last year, but also what Lord Phillips, the Lord Chief Justice, was saying at the same time and what Sir Ken Macdonald, the Director of Public Prosecutions, was saying rather more recently (both the latter two gents put it, I think, rather more forcefully and eloquently than did Lord Falconer, but you can’t have everything).

I’m rather worried, though, about one direction in which he seems to be taking the argument. Quite rightly, he is very concerned about the accusation levelled on Newsnight by Abu Bakr, one of the men arrested in the recent raids in Birmingham over an alleged kidnap plot, questioned and released without charge after a week — he devotes part of the speech to attacking it — that ‘it’s a police state for Muslims’. As he says, if it were, Mr Bakr wouldn’t be able to make that sort of accusation on Newsnight, and the HRA is an important safeguard against the government behaving like a police state (one of the reasons, of course, some of us have found it so alarming that John Reid and the PM have both found the HRA such an inconvenience over the last few years).

Having said that, one can see why Mr Bakr is feeling a bit upset. Most people would, I think, if they were arrested in the small hours in front of their terrified young family, held for a week in connection with crimes they knew nothing about, and were then unwillingly released by the police because a District Judge decided there wasn’t enough evidence on which to continue to hold them. It’s even worse than the treatment meted out to Ruth Turner, for heaven’s sake, which so scandalised some of Lord Falconer’s colleagues.

I’m not completely sure there is a way round this one. A conspiracy investigation — any sort of conspiracy, not just the terrorist sort– is a dreadful thing in which to get caught up, since what can be quite innocent behaviour or, and this is often when it turns very nasty, something not quite innocent but, at worst, a pretty innocuous favour for a friend can, looked at with the suspicious eyes of the police, seem something very much more sinister. It’ll doubtless resolve itself in the end, but, in the meantime, it’s by no means unusual for people who are, on the most hostile reading of the evidence, at worst very minor players and, in fact, frequently unknowing ones, too, to find themselves remanded in custody for months at a time awaiting trial for conspiracy.

It’s further complicated when you’ve got small communities — in the real sense of people who know each other, frequently are related to each other and live near each other — involved. One of the problems with the anti-terrorist investigations back in the ’70s and ’80s was that Republican Belfast and Derry are small places; someone who came over — and I’ve got in mind here an actual person I know — to London from the Bogside because he wants to get away from all that nonsense was still more than likely connected with some rather suspicious people because he grew up a few streets away from them, went to school with them, was probably in some way related to them by marriage and couldn’t help but run into them — and be seen to run into them — when he went back home to visit family and friends. And, of course, he had no way of knowing what some of his family and friends were up to that they didn’t tell him about. What’s the investigator to make of such connections, which inevitably he’s going to find?

What worries me rather about the speech is the way Lord Falconer stresses that the various anti-terrorist measures mustn’t be perceived as discriminatory combined with some of his remarks, as reported in the Telegraph, made after the speech itself. One of my main gripes against people who rather complacently say that they’re not worried because they’re not going to be mistaken for terrorists — possibly what the Natwest Three would have said, at least initially — is that the Home Office is, in some ways, very logical. All the arguments deployed in favour of special anti-terrorist measures — primarily the complexity and scale of anti-terrorist investigations — apply, it seems to me, to the investigation of many serious crimes. Lord Falconer speaks of

the enormously complicated nature of terrorism investigations, the seamless nature of a threat that could stretch from Hyderabad to Hounslow and back,

Well, that seems to apply equally to smuggling investigations and, while terrorism certainly carries with it ‘the potential for massive devastation’, you could quite convincingly argue that so, in its way, does the smuggling of hard drugs (and certainly firearms). Seems to me — and doubtless it does to the Home Office, too — both discriminatory and illogical that the police should be given special powers they say they need because of the difficulties of investigating terrorist offences and be denied them when investigating equally complex and similarly grave non-terrorist crimes.

This, doubtless, is why, at least according to the Telegraph, not only is the government thinking of trying to double the 28 days detention to 56 — though apparently they accept they won’t get a consensus in favour of this while Blair’s around — but

Lord Falconer indicated that he also supported allowing the police to continue questioning suspects after they have been formally charged, something that is prohibited at present.

This change would apply to all arrestees, not just alleged terrorists.

Speaking after delivering the keynote speech at a Royal United Services Institute conference on terrorism, Lord Falconer said: “You could have post-charge questioning which is one of the things we are looking at. It may be a very sensible thing to do.”

It may indeed be a sensible thing to do, though I have my very strong doubts — off the top of my head, I want to see what guarantees we get against oppressive post-charge questioning and against people being charged in the hope that, by the time the case comes to trial, there’ll be sufficient evidence against them — but it’s something that’s going to be done in all cases.

To my mind it is always best to remember that, whatever the government tries to do as part of its anti-terrorist strategy, it’s more than likely to extend to the whole of the criminal law. And, while people might well think there’s little danger of their being mistakenly thought to be a terrorist, we’re all of us possibly rather less secure against being mistakenly thought to be guilty of something else.

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2 Comments »

  1. Regarding Falconer mentioning,
    “the enormously complicated nature of terrorism investigations…” to justify special measures in terrorism cases.

    One of the Government’s ‘justifications’ for the Fraud (Trials Without A Jury) Bill was that fraud trials can be enormously complicated.

    And of course, there are “no plans” to extend this to non-fraud trials, just as there are “no plans” to extend 90-day detention to people suspected of crimes other than terrorism.

    Comment by ukliberty — February 16, 2007 @ 12:11 pm

  2. Indeed. I don’t know much about big fraud trials, but I’m told both by people who’ve prosecuted and defended them that the trials themselves — as opposed to the investigations leading up to the trials — aren’t particularly complex and, if counsel on both sides are doing their jobs properly, the jury has no difficulty following what’s going on and understanding the issues.

    The problem is — and I’m not sure if there’s a solution that’s not worse than what we have at the moment — rather that there’s just so much evidence that has to be produced in a major fraud trial that it’s inevitably going to go on for months on end. Not unlike a major terrorism case, in fact.

    Comment by notsaussure — February 17, 2007 @ 7:19 pm


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