Brown, intercept evidence and disclosure

Craig Murray, our sometime man in Tashkent, sounds a note of warning about Gordon Brown’s proposal to allow intercept or wire-tap evidence in terrorism cases.

He writes,

The concern [in the Home Office] is that intercept evidence might be more helpful to the defence than the prosecution. Where communication intercepts are used, as in the USA, the laws of evidence are that the prosecution must make complete disclosure of all the wiretaps made. The defence can then search this for evidence that points to innocence.Compare this to the situation that operates with control orders, or indefinite house arrest without trial. Here the prosecution just feeds to the judge (no jury) an isolated snippet of information from “intelligence”, reflecting not a whole picture but just the security services’ interpretation. Judges tend to be impressed by this “Top Secret” stuff.

To let the defence at raw intercepts threatens the intelligence services’ greatest lever of power – their monopoly of interpretation of raw data. Even Ministers, or Ambassadors as I was, don’t get the raw data, but a “Report” summarising, interpreting and selectively quoting.

In criminal cases in general, there are pretty complicated rules on ‘disclosure’ that are supposed to make sure the defence gets to see anything that may be relevant to the case, and in particular anything that may strengthen the defence or weaken the prosecution. And, most of the time, the defence can ask to see — and often insist on seeing — anything that’s been turned up during the investigation even if the prosecution don’t think it’s in any way relevant.

Now, according to Craig Murray, he’s been told by a friend of his who’s still in the senior civil service that

the proposal being considered by the Home Office is this – that the defence should not be allowed access to all the material from wiretaps of the accused. The prosecution would have to disclose in full only the conversation, or conversations, being directly quoted from. The security services are prepared to go along with that, and the Home Office believe that the public demand for wiretap evidence to be admissible will drown out any protests from lawyers. We will be told the Security Services are not staffed to cope with fuller disclosure.You read it here first. As my friend put it: “You see, in the minds of the Home Office, justice equals more convictions.“

If this turns out to be the case, then it’s really rather sinister; it’s the equivalent to the defence only getting to see those witness statements that support the prosecution or, indeed, not getting to see the complainant’s past history of making false allegations. A good recipe, in other words, for miscarriages of justice.

Murray also raises the possibility that, slightly further down the line, doubts will be raised about the propriety of letting juries see some intercept evidence because of its security classification and that, a year or so from now, we’ll be seeing a move to introduce Diplock Courts in terrorism cases.

I don’t know about this, but it’ll certainly bear watching carefully when the detailed proposals are finally announced.

Dr Reid in discussions with the judiciary

The Home Secretary, House of Commons, 24 May:

I entirely accept that we should speak to a range of people, including retired members of the judiciary, but at the end of the day this is a matter for politicians. It is not a matter for judges or lawyers. They are a vital tool in interpreting existing laws, but it is for politicians to address the historical disjunctions that arise because of changes in the world. It is for them to address the law of conflict as it currently exists and its inadequacies in terms of the nature of today’s conflict, the law of peace and the disjunction between it and the nature of today’s peace—for we currently have something between war and peace—and the nature of the threat that we face. […]Let me put it simply. The European convention on human rights was intended to defend the individual from the unparalleled destructive capacity of the fascist state. That is what gave rise to it. People did not envisage at that time that the state and the community might now be under threat from the unparalleled destructive capacity of fascist individuals working in networks. That is what we face today. The arbitrary imposition of one’s will on another by destructive power is fascism, whether it emanates from Europe or any other area. We now face a historical development that requires all of us to build on the European convention on human rights, strengthen it and ensure that the most fundamental of all rights—the right to life and to protection of that life—without which no other right—

Lord Hoffman (a not-yet retired member of the judiciary) in his dissenting judgment in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56, 16 December 2004:

If the finger of suspicion has pointed and the suspect is detained, his detention must be reviewed by the Special Immigration Appeals Commission. They can decide that there were no reasonable grounds for the Home Secretary’s suspicion. But the suspect is not entitled to be told the grounds upon which he has been suspected. So he may not find it easy to explain that the suspicion is groundless. In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person’s house and take him away to be detained indefinitely without trial.The technical issue in this appeal is whether such a power can be justified on the ground that there exists a “war or other public emergency threatening the life of the nation” within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of “war or other public emergency threatening the life of the nation”, accurately states the conditions in which such legislation has previously been thought necessary.

[…]

Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

“Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours”

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

[…]

I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Dr Reid’s farewell performance?

Dr Reid is understandably annoyed that about the three terror suspects who’ve just gone missing. Reassuring, though,

As the hunt for the three men continued, Home Secretary John Reid said they were not a “direct threat” to people in the UK.

Nevertheless,

Mr Reid also said ministers could suspend – or “derogate” from – parts of the European Convention on Human Rights to allow tougher control orders to be imposed in future.”We will consider other options, which include derogation, if we have exhausted ways of overturning previous judgments on this issue,” he said.

Now, this is a bit puzzling. People will recall that these control orders were introduced after the Law Lords ruled against Part 4 of the Anti-Terrorism, Crime and Security Act 2001, whereby David Blunkett had given himself the power indefinately to lock up foreigners he suspected (but could not prove) were terrorists. This involved ‘derogating’ from Article 5(i) of the European Convention on Human Rights (habeas corpus, fair trial and suchlike), which you’re allowed to do under Article 15:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law

Note the two preconditions —

war or other public emergency threatening the life of the nation

and

to the extent strictly required by the exigencies of the situation

While the Lords agreed — possibly surprisingly, since no other signatory to the ECHR had found it necessary to derogate, and we have frequently been told, have we not, that Britain’s foreign policy has nothing whatsoever to do with any risk of terrrorism we may face — that we were, indeed, facing a ‘public emergency threatening the life of the nation’, they thought that banging people up in Belmarsh was rather more than was ‘strictly required by the exigencies of the situation.’ Which is why we’ve got these ‘non-derogating’ orders that Dr Reid finds so unsatisfactory. (This account is based on an excellent lecture by Lord Phillips, the Lord Chief Justice, last year on Terrorism and Human Rights, should anyone want to go into the subject in more detail).

To be fair, there were various other flaws in David Blunkett’s stab at the problem (the Lords thought it illogical that it only applied to foriegners and not to Brits, and also thought it illogical that the detainees were free to leave the country at any time), so I can see that their Lordships might take a different view of some new regime. But go to the Lords it assuredly would, and there’s every chance it would be struck down again, not least on the basis that the escape of three men who the Home Secretary doesn’t consider ‘a “direct threat” to people in the UK’ fits too well with ‘to the extent strictly required by the exigencies of the situation.’

Such a proposal would doubtless run into opposition from many quarters, not least from Sir Ken Macdonald, the Director of Public Prosecutions, who told the Criminal Bar Association in no uncertain terms this January,

Terrorism is designed to put pressure on some of our most cherished beliefs and institutions. So it demands a proactive and comprehensive response on the part of law enforcement agencies. But this should be a response whose fundamental effect is to protect those beliefs and institutions. Not to undermine them.So, although a development in the role of the security services and the police is essential and desirable in this context, 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.

All this, of course, is almost certainly academic; it seems to me a bit unlikely that Dr Reid, who’s said he’s going at the same time as is Blair, is going to be allowed to saddle the incoming Prime Minister with the political consequences of derogating from the ECHR or his successor with getting through yet another anti-terrorism bill which will almost certainly end up in a dubious fight in the Lords, just because he wants to distract attention from the fact he can’t keep an eye on these chaps who’re apparently dangerous enough to need control orders imposing on them but don’t pose ‘”direct threat” to people in the UK’ (no, I can’t quite work that out, either).

I know that there are apparently fears they might make their way to either Iraq or Afghanistan, without passports, there to take up arms against British soldiers, but I don’t really see that they can make things much worse in either place than already they are. Indeed, it could be argued that this would be a desirable outcome, since if they survive the experience, if we catch them we can charge them with treason. But really, this is just Dr Reid blustering, yet again, and telling everyone that it’s everyone’s fault but his when something goes wrong with everything he touches.

Only just over a month to go, though.

Blair on the effects of the invasion

The BBC, reporting Mr Blair’s warning that

that terrorism continues to be a “global” threat and needs to be fought whether it is in “Iraq, Afghanistan or anywhere else”,

a view he concedes, with remarkable candour, is “not popular”:

Mr Blair acknowledged the situation in Iraq was “hugely difficult”.”It’s difficult because you have external elements – al-Qaeda up near Baghdad, and Iranian-backed elements down in Basra – who are deliberately creating the problem.”

He said it was not true that Saddam Hussein “was a kind of lid” on sectarian violence which “poured out” once the dictator was toppled.

“If you talk to ordinary Iraqis – whether they are Sunni or Shia – they want to live together. You have these outside terrorists coming in and linking up with internal extremists and causing this carnage.”

So isn’t he saying, in terms, that the carnage in Iraq wouldn’t have happened if it hadn’t been for the invasion? That the invasion was, at least in part, the cause of the current sectarian strife?

Yes, yes, if you’re foolish enough to ignore warnings not to keep your PIN number in your wallet along with your cards and you then leave your wallet lying around in a pub, that doesn’t excuse someone making off with your wallet and emptying your accounts, but you couldn’t thus wholly absolve yourself of your responsibility for the misfortune, could you?

Technorati Tags: Blair, Iraq, Sectarian carnage

More on Des Browne and the Navy media fiasco

There’s a petition on the Number 10 Website,

We the undersigned petition the Prime Minister to name and sack the person responsible for declaring that members of the armed services can sell their stories to the media

In the further details section, its creator, Mike Critchley of Warship World magazine, writes

We the undersigned consider the statement to allow members of Her Majesty’s forces to sell their stories to the media to be a major government failure -and PR disaster for the Royal Navy – and “heads should roll” at the highest level.

It’s only been up a couple of days and already has over 3,700 signatures. St Tone has already replied to it (I don’t know if this is normal practice or not); the site tells us

The Prime Minister has already made it clear that he recognises that the Navy were trying to deal with a wholly exceptional situation. He has no intention of engaging in a witchhunt against people who acted honourably and in good faith in very difficult circumstances.

Nevertheless, it’s up there to sign, should you wish so to do. The Telegraph suggests that it’s a sign Downing Street is leaving the incompetent Mr Browne out to dry since it’s apparently unusual for it to accept petitions calling for people to be sacked (wholly exceptional circumstances, one might say).

Encouragment of terrorism?

Boris Berezovsky and his big mouth. To my mind, he’s certainly presented HMG with a bit of a problem in the form of his interview with The Guardian:

“We need to use force to change this regime,” he said. “It isn’t possible to change this regime through democratic means. There can be no change without force, pressure.” Asked if he was effectively fomenting a revolution, he said: “You are absolutely correct.”

The Guardian have the whole 42 minute interview here,to which I haven’t listened, and a couple of brief clips where he discusses using force to get rid of President Putin here and here. He also told the Guardian,

“There is no chance of regime change through democratic elections,” he says. “If one part of the political elite disagrees with another part of the political elite – that is the only way in Russia to change the regime. I try to move that.”While declining to describe these contacts – and alleging that they would be murdered if they were identified – he maintained that he was offering his “experience and ideology” to members of the country’s political elite, as well as “my understanding of how it could be done”. He added: “There are also practical steps which I am doing now, and mostly it is financial.”

Due process

At last, an encouraging story from the US legal system. A lengthy article by Jesse Bravin in The Wall Street Journal of March 31 (pay per view article, but here’s a link to a mirror of the full piece). It begins,

When the Pentagon needed someone to prosecute a Guantanamo Bay prisoner linked to 9/11, it turned to Lt. Col. V. Stuart Couch. A Marine Corps pilot and veteran prosecutor, Col. Couch brought a personal connection to the job: His old Marine buddy, Michael “Rocks” Horrocks, was co-pilot on United 175, the second plane to strike the World Trade Center on Sept. 11, 2001.The prisoner in question, Mohamedou Ould Slahi, had already been suspected of terrorist activity. After the attacks, he was fingered by a senior al Qaeda operative for helping assemble the so-called Hamburg cell, which included the hijacker who piloted United 175 into the South Tower. To Col. Couch, Mr. Slahi seemed a likely candidate for the death penalty.

“Of the cases I had seen, he was the one with the most blood on his hands,” Col. Couch says.

But, nine months later, in what he calls the toughest decision of his military career, Col. Couch refused to proceed with the Slahi prosecution. The reason: He concluded that Mr. Slahi’s incriminating statements — the core of the government’s case — had been taken through torture, rendering them inadmissible under U.S. and international law.

The Slahi case marks a rare instance of a military prosecutor refusing to bring charges because he thought evidence was tainted by torture. For Col. Couch, it also represented a wrenching personal challenge. Laid out starkly before him was a collision between the government’s objectives and his moral compass.

These kinds of concerns will likely become more prevalent as other high-level al Qaeda detainees come before military commissions set up by the Bush administration. Guantanamo prosecutors estimate that at least 90% of cases depend on statements taken from prisoners, making the credibility of such evidence critical to any convictions. In Mr. Slahi’s case, Col. Couch would uncover evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated.

Col. Couch, it should be noted, is hardly sympathetic to Mr Slahi and neither is he in any doubt about his guilt; the article concludes,

Col. Couch says he’s still frustrated that the actions of the U.S. government helped ruin the case against Mr. Slahi. “I’m hoping there’s some non-tainted evidence out there that can put the guy in the hole,” he says.

It’s just that, quite rightly, he’s not prepared to convict him on evidence tainted by torture or duress. Members of the ‘decent left‘ (and the present government) please note.

Technorati Tags: Lt. Col. Couch, Guantanamo, Mohamdou Slahi, Due Process

No substitute for foresight

Tony Blair has said “in hindsight” the navy’s decision to allow sailors held captive in Iran to sell their stories to the media was not a “good idea”.The prime minister said he was not involved in the decision, which he said was taken in “good faith”

Hindsight… decision taken in good faith… Oh, yes, I remember. That’s why they were there in the first place, of course. Though, of course, he still hasn’t acknowledged that the invasion perhaps wasn’t a particularly good idea in the first place, despite the humanitarian catastrophe engulfing Iraq, on which the ICRC today reported. It’s not, it seems to me, a question of whose fault it is any more; the fact of the matter is that we and the US are, along with the Iraqi government, presiding over an horrendous situation without any clear plans for resolving it.

Ill-treatment of Iraqi prisoners authorised — by whom?

Now this is very interesting. The BBC reports that the reasons judge advocate Mr Justice McKinnon dismissed the charges against Col Jorge Mendonca of negligently performing the duty of ensuring Iraqi detainees were not ill-treated by his men can now be published, following the dismissal of the remaining charges against the other defendants.

The evidence of Maj Antony Royce was key to the colonel’s acquittal. He told the hearing how the brigade’s most senior legal advisers had approved the “conditioning” of suspects before interrogation.The major also testified that Col Mendonca had asked him about the treatment of detainees.

Mr Justice McKinnon ruled in favour of Col Mendonca’s no case application, saying: “It may be said that Maj Royce’s evidence has greatly undermined the prosecution case.

“His evidence proved uncontroversial [in the legal sense] and credible and more than capable of belief.”

The judge said Maj Royce’s evidence showed that the brigade “sanctioned the conditioning process – the very thing the Crown sought to prove otherwise”.

Maj Royce’s evidence, the judge said, also “shows Col Mendonca sought to satisfy himself that the conditioning process was acceptable under the laws of armed combat and the Geneva Convention”.

“This case is remarkable for the fact that no witness has given any evidence to the effect that Col Mendonca did not do anything that he should have done, or that he did anything he should not have done.”

To do today

Via Chicken Yoghurt, three things to do today:

• Read this, by Rachel;
• Sign this (should you think it appropriate (and I suspect you may);
• Pass on the two suggestions above.

Technorati Tags: London Bombings, War on Terror