UK Liberty

Sir Ken MacDonald’s lecture

Coming Out Of The Shadows is now online.

Some good stuff, in particular:

Put simply, when the prosecuting authority exercises its vocal chords, it is axiomatic that it must be telling the truth.

This is a critical foundation of public trust.

And this leads to a conclusion which can also be controversial in some quarters: prosecutors must be wary of political rhetoric that cannot deliver. More than that, they must have the confidence to say no to it.

Let me give you a simple example.

I had only been in office a few weeks when, in early 2004, the then Prime Minister [one Tony Blair] and the then Home Secretary [David Blunkett] suggested publicly, and on the same day, that in serious crime cases the criminal standard of proof should be lowered.

Now this proposal was challenging on many fronts.

‘Challenging’ – effing ridiculous, I would say.

Firstly because it appeared to conflict rather crudely with our international obligations, being notably inconsistent with Article 6 of the European Convention on Human Rights.

Secondly, because it appeared to conflict equally crudely with our common law norms and with learning on the civil standard of proof in cases of particular import to individuals whose reputational rights are engaged by the issues in question.

Thirdly because it would inevitably mean sending men and women to prison for many years- in the face of reasonable doubts about their guilt.

I’d put the second and third things before our international obligations, but there you go – good that it was said.

So it seemed inescapable that I should, as head of the prosecuting authority, express my strong public disagreement with this proposal- and I did so.

It is often said that the government’s desire is ‘to re-balance the criminal justice system so as to put victims at its centre’.

Now these are obviously appealing words and all of us may easily identify with them. I myself have often spoken about the appalling history of our treatment of the victims of crime in criminal justice.

No one wants to be a victim of crime. Not many people would wish to witness a crime. Very few relish coming to court. For most that do it’s an unsatisfactory experience. It always will be.

So it is obviously important for us to do all we can, consistent with fairness to all parties, to make things as bearable as possible for those who become caught up in the processes of criminal justice. To treat them in a civilised way.

Yet we all know that what is really at the centre of the criminal justice system is fairness.

Naturally this means respecting the rights of all parties. Of course the government is absolutely right to stress this.

All parties to the criminal process do have rights, including Convention rights that need to be upheld.

But it will never be possible, in adversarial proceedings governed appropriately by Article 6, for the interests of victims to overcome those of defendants.

Rhetoric which suggests that this can be achieved will never deliver. It misleads and prosecutors should stay away from it.

In the case of 42 days, I think [the developing voice of the prosecuting authority] provided an essential practitioner element, beyond political calculation, and of fundamental assistance to Parliament in coming to its important conclusions.

Agreed, I think it was very helpful to have Sir Ken MacDonald and his colleagues claim that they didn’t think 42 days was warranted.

let me, in my final public speech as DPP, repeat my call for level headedness and for legislative restraint in an age of dangerous movements.

We need to take very great care not to fall into a way of life in which freedom’s back is broken by the relentless pressure of a security State.

Over the last thirty years technology has given each of us, as individual citizens, enormous gifts of access to information and knowledge. Sometimes it seems as if everything is at our fingertips and this has made our lives immeasurably richer.

But technology also gives the State enormous powers of access to knowledge and information about each one of us. And the ability to collect and store it at will. Every second of every day, in everything we do.

Of course modern technology is of critical importance to the struggle against serious crime.

Used wisely, it can protect us.

But we need to understand that it is in the nature of State power that decisions taken in the next few months and years about how the State may use these powers, and to what extent, are likely to be irreversible. They will be with us forever. And they in turn will be built upon.

So we should take very great care to imagine the world we are creating before we build it. We might end up living with something we can’t bear.

we have been absolutely right to resist, whenever they have been suggested, special courts, vetted judges and all the other paraphernalia of paranoia.

Of course, you can have the Guantanamo model.

You can have the model which says that we cannot afford to give people their rights, that rights are too expensive because of the nature of the threats we are facing.

Or you can say, as I prefer to, that our rights are priceless. That the best way to face down those threats is to strengthen our institutions rather than to degrade them.

It is difficult to see who will maintain a cool head if governments do not. Or who will protect our Constitution if governments unwittingly disarm it.

The response to terror is, of course, multi-layered. It has to be that way.

In some contexts it is dealt with geopolitically, by engaging relations between sovereign states.

In others it is disrupted by intelligence and by other interventions. In still others the response must plainly be military.

But on the streets of our country, violent law breaking is dealt with as crime. It is taken through the courts as crime. It is confronted with in accordance with our Constitution.

In all the debates that have raged back and forth, Britain has been absolutely right to hold fast to this course.

We would do well not to insult ourselves and all of our institutions and our processes of law in the face of these medieval delusions.

As I say, the response to terror is multi-layered. But it should not include surrender.


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