UK Liberty

Director of Public Prosecutions on Free Expression and the Rule of Law

Posted in freedom of speech, law and order, politicians on liberty, rule of law by ukliberty on March 11, 2008

Ken McDonald QC, head of the Crown Prosecution Service.

[The Human Rights Act] regulates the exercise of power by those in public authority on behalf of all citizens. The framers of the US Constitution could have explained with great eloquence quite why this was necessary in their day. It’s no different today.

In that context, it is worth recognising that in some countries around the world, post-9/11 rhetoric has encouraged knee-jerk legislation inconsistent with traditional rights. Indeed, in some jurisdictions, legislation which is even purposefully hostile to those rights.

Say, Part 4 of the UK’s Anti-terrorism, Crime and Security Act?

A particular danger, it seems to me, has been the increasing resort to parallel jurisdictions. These have existed in extradition and in imprisonment.

In these parallel jurisdictions, quite deliberately, standard protections are no longer available. Suspects are removed from the protections of criminal justice and placed, instead, in quasi-judicial or even non-judicial fora deliberately hostile to due process.

Say, control orders and Belmarsh?

If, on one powerful analysis, this is an absolute negation of the rule of law- then surely it is the State itself, whose continued legitimacy depends upon respect for that same rule of law, which is the main loser.

That seems a ridiculous thing to say!

It is after all the victims of the hostility to due process who are the main losers. They could have spent years in prison.

What happens is that some victims get the opportunity to challenge the state, their cases are argued for months if not years, all the way up the court hierarchy to the Law Lords, who then say “The Government acted wrongly for this reason”, and there might be a quashing order with respect to some secondary legislation, and/or the Government are asked to think again about the problem or be forced to release the prisoners.

The victims may or may not be freed – or indeed subsequently made subject to control orders.

The important thing to remember is this: no-one responsible for breaking the rule of law is punished for doing so!

For us, freedom from arbitrary arrest and imprisonment, the right to a fair trial, the freedom to protest peacefully and the freedom to speak openly are crucial ingredients of British life. Each is guaranteed to us by the European Convention on Human Rights.

But not always respected by the Government or the police, as regular readers will know. Furthermore, we only have a right to a fair trial within certain bounds (for example we don’t get to challenge secret evidence); we only have a ‘freedom’ to protest unless our methods are “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”; our freedom to speak “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

And we must hold onto these important aspects of our culture. If they are to be any legitimate limitations upon any of them, even in times of grave crisis, we must think very carefully about where the appropriate boundaries should lie.

We must be absolutely clear about what is not negotiable. And the Human rights Act guides us in this.

So it is monumental in promoting human rights principles in the UK.

Of course it protects the vulnerable and marginalised in our society – those without the means of protecting themselves and who are consequently most open to abuse, whether by the state or by fellow citizens.

But this doesn’t represent the whole picture. It is a mistake to focus only on protections afforded to defendants. This is the trick played by those who label it a ‘charter for criminals’.

Those who argue it is unable to address the threat posed by terrorists. Or even that it positively impedes the struggle against crime and political violence.

Actually the Act addresses both security and the individual rights of everyone involved in the criminal justice process, including victims and witnesses.

But only post hoc, that is, ‘after the fact’. It doesn’t deter the Government or the police from infringing our rights, in the sense that a punishment for a crime may be a deterrent to criminals.

It also upholds community rights. It bears stark witness to the fact that security and rights go hand in hand.

For example, some rights are absolute. As we would want them to be.

The Article 6 right to a fair trial is a shining example. You are entitled under this provision to a fair trial in all circumstances and in every situation.

For various meanings of ‘fair’, depending on whether you are a suspected criminal or terrorist. For example, there may be ‘closed evidence’, which you are not entitled to see.

I think his speech is worth reading nonetheless.

Some examples of our Government breaking the rule of law

Raissi v Home Secretary:

We also consider that the way in which the extradition proceedings were conducted in this country, with opposition to bail based on allegations which appear unfounded in evidence amounted to an abuse of process. The proceedings were used as a device to circumvent the rule of English law that a terrorist suspect could (at that time) be held without charge for only 7 days.

SK v Home Secretary:

I have to say that the melancholy facts that have been exposed as a result of these proceedings are both shocking and scandalous. They are shocking even to those who still live in the shadow of the damning admission by a former Secretary of State that a great Department of State is ‘unfit for purpose’. They are scandalous for what they expose as the seeming inability of that Department to comply not merely with the law but with the very rule of law itself.

Foreign Secretary v Bancoult:

The unannounced withdrawal of the Chagossians’ right of return by the two Orders in Council in 2004 has been defended in court not on the ground of an ineluctable change of circumstance and policy but on the ground that, by using Orders in Council, ministers could do with impunity something which was known to be unlawful when done by Ordinance. If, as I would hold, there is no prior inhibition either under the 1865 Act or at common law upon the jurisdiction of the courts to adjudicate upon the validity of Orders in Council, the critical question is whether the instant case is a proper case for the court’s intervention. Notwithstanding the great latitude which the prerogative power of colonial governance enjoys, I consider the material Orders to have been unlawfully made, because both their content and the circumstances of their enactment constitute an abuse of power on the part of executive government.

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One Response

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  1. […] quite! One of the problems here, perhaps the main problem, is that some agents of the state don’t refrain from the arbitrary exercise of power. Worries about the current condition of the constitution and popular discontents have been well […]


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