Thu, 25 Jan 2007
Ken Macdonald QC, the Director of Public Prosecutions, gave a
surprisingly refreshing and positive speech on ‘
Security
and Rights’ to the Criminal Bar Association on 23rd
January 2007. Several similar extracts have been published, but its
worth reading it in its entirety. It encouraging to hear a
person in such a position expressing the view that we can't give up our
freedom and that some fundamental principles ensuring due
process and the rule of law are not negotiable. Some specific points of
the speech do not convince me, such as that the safeguards in the
pre-charge detention of 28 days are sufficient, but the thesis is
remarkable. Here are a few brief extracts that should convince you to
read the whole speech:
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.
And that is the point I want to emphasise this evening. Our criminal
justice response to terrorism must be proportionate and grounded in due
process and the rule of law.
We must protect ourselves from these atrocious crimes without
abandoning our traditions of freedom.
...
London is not a battlefield. Those innocents who were murdered on 7
July 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'.
The fight against terrorism on the streets of Britain is not a war. It
is the prevention of crime, the enforcement of our laws and the winning
of justice for those damaged by their infringement.
Acts of unlawful violence are proscribed by the criminal law. They are
criminal offences. We should hold it as an article of faith that crimes
of terrorism are dealt with by criminal justice.
And we should start by acknowledging the view that a culture of
legislative restraint in the area of terrorist crime is central to the
existence of an efficient and human rights compatible process.
...
But more generally, I want to emphasise that we need to avoid a
response to terrorism which is based only on fear and suspicion. This
kind of climate has no room for the rule of law. Indeed it encourages
the opposite.
...
Critical to [fighting terrorism] 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. As the title of this lecture has it: security
and rights. Not security or rights.
So what are the fundamental principles? What is the essence of
fairness? I think we need to start with a clear understanding that
certain principles are absolutely not negotiable, whatever the pressure.
It seems quite appropriate that as head of the prosecuting authority I
should state these plainly and clearly, even though they are mainly
obvious.
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.
This cuts both ways. Defendants have a fundamental right to
transparency of proceedings. But the public also have a fundamental
right to know. This is especially true in cases of terrorist crime,
where rumour and unease are endemic and very dangerous.
...
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.
....
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.
...
We have a great responsibility to make sure that entire communities are
not stigmatised by the law or by the general public.
...
It is absolutely essential that terrorism legislation is capable of
upholding the law and securing public safety, without threatening
different communities in a way that undermines their freedom. Without
creating unjustifiable discrimination.
And two days later, The Times
reveals
that:
an SAS unit is now for the first time
permanently based in London
on 24-hour standby for counter-terrorist operations. [...] Although the
Metropolitan Police has its own substantial firearms capability, the
fatal shooting of Jean Charles de Menezes, the Brazilian electrician
who was mistakenly identified as a terrorist bomber on the run, has
underlined the need to have military expertise on tap.
So one one hand we witness an elite army surveillance unit being
involved
in the shooting of Jean Charles de Menezes, the officer in charge of
the operation that lead to the killing being
promoted,
one of the police marksmen that shot him
shooting
another person,
no
officer prosecution, and now bringing in the SAS on a
permanent basis, and on the other hand we hear the head of the Crown
Prosecution Service state that we need to avoid a
response to terrorism which is based only on fear and suspicion, and
that our criminal
justice response to terrorism must be proportionate and grounded in due
process and the rule of law. Will it get worse, will the
government order
mistakes
so that there's no opportunity for fair trial and the rule of law; or
will it get better, will the rule of law and due process apply to all
and we'll see
Tony
Blair in the International Criminal Court?
