Friday, 21 November 2008

Closed Doors.

It is said that Edward the Confessor once demanded that the people of Dover be put to the sword. But that Earl Godwin refused to kill those to whom he owed a Feudal duty, and so he marched to London with an army...

The principle of the people being defended from arbitrary power is not a modern one. What is meant by this has changed throughout the ages. Doubtless the provisions of the 1998 Human Rights Act would be incomprehensible to the medieval mind. However, one theme persists, that of a limited executive. The Monarch, and more recently, the government, have often had huge power. Alongside that fluctuation in power has been a fluctuation in how that power is limited by the houses of parliament, the courts, and the people's suffrage. The principle that governs this relationship is that of justice.

How today do we define what is just? On the 11th September 2001 some men, twisting the wisdom of Islam to bloody purpose, engaged in a momentous and terrible work of art. They were not interested in body count or market effect, they wanted the world to witness their faith. In doing so they changed our world, and changed our understanding of justice.

'One of the central dilemmas which our Government and other Governments face can be shortly stated: what are they to do about individuals in their country who, according to intelligence, pose a serious threat to national security, cannot be deported because they face a real risk of torture or death in their own country, and cannot, at least on current understandings of the criminal process, be prosecuted because the nature of the information against them would not be admissible in a criminal prosecution?'1
The current answer to this dilemma in the UK is the use of control orders. These orders are used for those cases where criminal trial is not an option. Control orders can involve house arrest for over 10hrs a day, electronic tagging, limitations on travel, association etc... They limit and restrict the freedoms of those who pose a threat but cannot be prosecuted. It has been argued that such arbitrary power is a breach of the right to liberty. However, the Courts have held that the stringent provisions control orders are legal and do not necessarily breach the right to liberty and security (Article 5 of the Human Rights Act 1998)2

A key issue here is evidence. The security services have given reasons why evidence they hold against individuals cannot be brought into open court for a criminal prosecution. These reasons include, that the evidence is hear-say, that it is coupled with expert analysis, that it may compromise methods or sources, or, most tellingly, that it may fall below the standards of proof required for a conviction beyond reasonable doubt.3

How then is it decided if an individual should be placed under a control order? As things stand a person can be placed under a control order on the basis of evidence which would not be admissible in a criminal trial. Moreover this evidence may be, and often is, given behind closed doors, without the accused having a chance to hear it. An individual may have his freedom limited without knowing of the claims being made, and with no chance of refuting them. This use of 'closed evidence' changed the balance of the need for state secrecy in certain areas and the right to fair trial (Article 6 Human Rights Act 1998):

'The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law.'4
The courts have been critical of the use of closed evidence in control order hearings, though they have not disallowed it in principle. The argument goes, that a control order is not a punishment, so the application of one is not a conviction, so there is no criminal trial, and so no issue of whether it is fair.5

There is one safeguard in place, that is the use of a special advocate who will defend the individual. In a judgment Lord Bingham acknowledged their role in the process:

'The assistance which special advocates can give has been acknowledged ..., and it is no doubt possible for such advocates on occasion to demonstrate that evidence relied on against a controlled person is tainted, unreliable or self-contradictory'6
The characterization of closed evidence given here is deeply concerning, and the learned judge seems less than enthusiastic as to the effectiveness of the special advocate system. In fact he goes on to quote Lord Wolf:

'The use of [a special advocate] is, however, never a panacea for the grave disadvantages of a person affected not being aware of the case against him'7
It should be noted that while the special advocate can hear the closed evidence he cannot relay, or discuss this with the individual affected without special permission. Permission that in practice is almost never given.8 As such the claims made in closed evidence cannot be effectively verified or disputed.

This is a remarkable development, the state now has the power to restrict the liberty of an individual on the security services' say-so. Further to that the security services may be getting these orders on evidence that can be “tainted, unreliable or self-contradictory”. Evidence which the accused may never get to hear or oppose.

So what is justice today? When the Edward the Confessor ordered the deaths of the people of Dover Earl Godwin was there to protect them. Since then we have come a long way; we now have right to make our case and a court that will protect us from arbitrary punishment. But; in a climate where curfews, tagging, and house arrest, are no longer considered punishments; in a climate where this can be done to a citizen without ever having to tell him why; who is there to protect us?

Perhaps this is the price we pay for our safety. Perhaps this power is necessary. And surely this power will only be used in the most serious of cases? Cases where the can be little doubt of the need to control these people?

“... all of them agree that groundless charges are never made and that once the court has made an accusation, it is firmly convinced of the accused man's guilt and can be dissuaded from this conviction only with great difficulty.” “Great difficulty?” asked the painter, throwing one hand into the air. “The court cannot be dissuaded at all...” - The Trial, Franz Kafka 9

1House of Lords House of Commons Joint Committee on Human Rights: Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention Twenty-fourth Report of Session 2005-06 / page 14

2Secretary of State for the Home Department v E and another [2008] 1 AC 499 – it should be noted that the court allowed that control orders could be in breach of art5 HRA 1998 if their effects were particularly onerous.

3House of Lords House of Commons Joint Committee on Human Rights: Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention Twenty-fourth Report of Session 2005-06 “The Main Obstacles to Prosecution” pp 15-16

4R v H [2004] 2 AC 134

5Secretary of State for the Home Department v MB Same v AF [2008] 1 AC 440 It should be noted that the court ruled there was protection under art6 in civil procedure terms


7Roberts [2005] 2 AC 738

8Secretary of State for the Home Department v MB Same v AF [2008] 1 AC 440

9The Trial – Franz Kafka, Vitalis 2002
Image courtesy of


dioscuri said...

"inter arma enim silent leges", as Cicero once said - and since 9/11, 7th July, and the Madrid bombings, many people in the West would consider us as being currently inter arma.

James Schneider said...

Very nice post.

RandianProtagonist said...

The tagging, curfews and house arrests that you write about so eloquently are not isolated and resultant of perceived militant islamic threats alone. The horrific legacy of the current administration has been its contempt for the rule of law. For example, we could discuss the ASBO (which criminalises non-criminal behavour), the entirely subjective nature of New Labour 'Hate' & 'Sex' laws (which stray way beyond the realms of public protection), the politicisation of the CPS (see the attempted prosecution of the Dispatches production team by the West Midlands Police)or the curtailment of free speech (i.e. something that has been said that induces anger due to the listeners inability to offer an intelligent response). We could continue by discussing the government obfuscation of facts that are deemed to be 'sensitive'(e.g. the 2002 EUMC report into antisemitism), the sophistry of judicial decisions under direct political influence (numerous) or the enhaced criminal records disclosure rules which (along with aspects of the Macpherson report) make the mere perception of a fact, a fact (see John Pinnington). From cronyism in the House of Lords (Baron Mandelson) to serious fraud within the postal voting system, to the explosion of CCTV and other surveilance, the government seem to have considered 1984 as a guide rather than a warning.

penfold said...


I agree that our law is heading in a far more authoritarian direction. The application of anti-terror legislation to Icesave and the precedent that sets is scary; the lack of critical media response more so.

Having said that the old rules don't apply. Society is changing, and to how we respond to that is important. I am willing to concede that my personal inclination towards increasing personal liberty may be misguided. What concerns me is the lack of public debate. It should be the duty of parliament to regulate the government and they are failing. It should be the job of the media to regulate both and they are failing. And it should be the duty of citizens of a democracy to regulate the lot of them. We are failing.

RandianProtagonist said...

Penfold; I am pleased that you mention the anti-terror legislation that was directed at that hotbed of Islamic extremism, the Icelandic Banking Sector (it was Lansbanki not IceSave but no matter). Anti-terror legislation is increasingly being used for 'inappropriate' uses that have no relation whatsoever to terrorism. The 'lack of public debate' is in my view deliberate. The government avoids open and honest debate and is increasingly prosecuting those who disagree with the bien pensants who oppose it. WAR IS PEACE FREEDOM IS SLAVERY IGNORANCE IS STRENGTH