UK Liberty

SFO judgement now online

Posted in politicians on liberty, rule of law by ukliberty on April 10, 2008

[hat-tip The Register]

The judgement is strongly worded.  Here is the conclusion:

  1. The claimants succeed on the ground that the Director and Government failed to recognise that the rule of law required the decision to discontinue to be reached as an exercise of independent judgment, in pursuance of the power conferred by statute.

    To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat. That threat was intended to prevent the Director from pursuing the course of investigation he had chosen to adopt. It achieved its purpose.

  2. The court has a responsibility to secure the rule of law. The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted.

    No-one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court.

    We shall hear further argument as to the nature of such intervention. But we intervene in fulfilment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 December 2006, the Prime Minister said that this was the clearest case for intervention in the public interest he had seen. We agree.

Do closed allegations and evidence preclude a fair trial?

Posted in control orders, rule of law by ukliberty on April 10, 2008

First the background:

AF was the subject of a non-derogating control order made by the Secretary of State on 11 September 2006 and varied on 18 October 2006. This order also was made under sections 2 and 3(1)(a) of the [Prevention of Terrorism Act 2005]. Following a full hearing under section 3(10) of the Act, Ouseley J on 30 March 2007 quashed the order but dismissed an application by AF for a declaration of incompatibility: [2007] EWHC 651 (Admin). The judge granted a certificate permitting both parties to appeal directly to the House pursuant to section 12(3)(b) of the Administration of Justice Act 1969, and the House granted leave on 17 May 2007. …

Issue (4): Whether the procedures provided for by section 3 of the 2005 Act and the Rules of Court are compatible with article 6 [Right to a fair trial] of the [European Convention on Human Rights] in circumstances where they have resulted in the case made against AF being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material.

The judge decided … issues (3) and (4) in favour of the Secretary of State and adversely to AF, who cross-appeals against those. In his separate appeal, MB complains that in relying heavily on material not disclosed to him to support the control order against him the Court of Appeal acted incompatibly with article 6 and so unlawfully. Thus, despite factual differences between their cases, MB supports the argument of AF on issue (4), as do JUSTICE and Liberty (although Liberty intervene only in the case of Secretary of State for the Home Department v E and S [2007] UKHL 47).


I conclude that Article 6, as interpreted by the House of Lords in MB and AF, requires the substance of the Secretary of State’s case on which she relies to be disclosed to a respondent, with no exception, if there is to be compliance with Article 6. In other words, I respectfully agree with Mitting J’s formulation in AN cited above, but without the exception to which he referred. [the exception was where the defendant would have no conceivable answer to the allegations/evidence]

Was any other conclusion reasonable?

Moving the goalposts

Posted in politicians on liberty, rule of law by ukliberty on April 10, 2008

Despite having been warned, by among others the Joint Committee of Human Rights, that the Government’s proposed changes to the Highly Skilled Migrant Programme would be found unlawful, the Government decided to go ahead anyway, and lo and behold,

The government acted unlawfully in changing immigration rules for highly skilled workers who want to stay in the UK, the High Court has ruled.

In 2006, a new “points” system, based on education, previous salary and age, was introduced, changing the criteria for remaining in the country.

Opponents say 44,000 people in the UK under old rules must leave – but the Home Office says 1,370 are affected.

Judge Sir George Newman ruled that the original scheme should be honoured.

The government is considering an appeal against the ruling.

The point being, that you can change the rules for new applicants, but you can’t change the rules for people all ready here, having spent some time and effort coming here, complying in good faith with the rules as they were at the time, and making a new life in our country, with a legitimate expectation that they would be allowed to remain.

Now, I find it very frustrating that the Government goes ahead with such things despite having been warned by very respectable people and organisations they are unlawful.

I cannot help but feel there is a thinking in Government that, as in Youssef v Home Office, “at least it would be the courts, not the government, who would be responsible” for Johnny Foreigner loose on our streets.

And because of the Government’s bullheaded blundering a large number of immigrants have been needlessly distressed.

Don’t however hold your breath for any Minister resigning, particularly Liam Byrne MP who presided over this debacle, and who seems adamant that there is nothing wrong with it, to the extent of writing this nonsense to the JHCR:

Their only legitimate expectation is that their applications will be judged on the basis of the rules and criteria under the HSMP in force at the relevant time, namely the date of any decision.

The judgement can be found on Bailii.

SFO acted unlawfully in halting BAE probe

Posted in rule of law by ukliberty on April 10, 2008

The BBC:

The High Court has ruled that the Serious Fraud Office (SFO) acted unlawfully by dropping a corruption inquiry into a £43bn Saudi arms deal.

Defence firm BAE was accused of making illegal payments to Saudi officials to secure contracts, but the firm maintains that it acted lawfully.

The SFO said national security would have been undermined by the inquiry.

Two judges allowed the challenge made by Corner House and the Campaign Against Arms Trade (CAAT).

In handing down the decision on Thursday, one of the judges, Lord Justice Moses, told the High Court that the director of the SFO had failed to assure them that everything had been done to meet the rule of law.

“No one, whether within this country or outside, is entitled to interfere with the course of our justice,” he said.

“It is the failure of government and the defendant to bear that essential principle in mind that justifies the intervention of this court.”

CAAT had argued that the SFO’s decision to drop the probe was illegal under the Organisation for Economic Co-operation and Development’s (OECD’s) Anti-Bribery Convention.

“We are delighted.” said CAAT’s Symon Hill after the decision.

“It has been clear from the start that the dropping of the investigation was about neither national security nor jobs. It was due to the influence of BAE and Saudi princes over the UK government.”

Susan Hawley of the Corner House said: “This is a great day for British justice. The judges have stood up for the right of independent prosecutors not to be subjected to political pressure.”

Following the judgement, BAE said: “The case was between two campaign groups and the director of the SFO. It concerned the legality of a decision made by the director of the SFO.

“BAE Systems played no part in that decision.”

For its part, the Serious Fraud Office said it had no further comment, but was “carefully” considering the implications of the judgement. …