Thu, 25 Jan 2007

There's no such thing as a war on terror in the UK streets... but send in the army just in case

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?

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