“Summary Justice”

Last Wednesday the Attorney-General, Lord Goldsmith, gave a speech on “UK Terrorism Legislation in an International Context”. At the outset he said ‘You have asked me particularly to talk about the UK legislative response to the threat of terrorism and that is what I shall focus on.’

That hasn’t, however, been the headline-grabbing part of the speech. And I don’t believe for a moment that Goldsmith didn’t know perfectly well that the headline would actually be this bit buried in the middle:

“there are certain principles on which there can be no compromise. Fair trial is one of those – which is the reason we in the UK were unable to accept that the US military tribunals proposed for those detained at Guantanamo Bay offered sufficient guarantees of a fair trial in accordance with international standards. As you may know having spent time negotiating with counterparts in the United States I was unable to accept that the procedures proposed for the military tribunals were adequate to ensure a fair trial. I am pleased to note that, following this decision, all the British detainees were returned to the UK.

But the existence of Guantanamo Bay remains unacceptable. It is time, in my view, that it should close. Not only would it, in my personal opinion, be right to close Guantanamo as a matter of principle, I believe it would also help to remove what has become a symbol to many – right or wrong- of injustice. The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol.”

That’s significantly stronger than Hain’s comment that he would prefer that it wasn’t there and would prefer it was closed, still more Blair’s “yeah but no but” effort:

“[…] I think Guantanamo is an anomaly and should come to an end. I also think, however, it is important that we never forget the context in which this has happened, which is the context of the war in Afghanistan and the reason for that was the slaughter of 3,000 innocent people on 11 September.

Now, it is important of course that we pursue the action against terrorism, maintaining absolutely our commitment to proper civil liberties and human rights.

But it’s also important that we remember those people that died in that terrorist act and have some understanding therefore of the huge amount of anger there is in American over what happened there.

Well, hurrah for Goldsmith. If you want to be a shining beacon of liberty, democracy and justice to the rest of the world, and that’s a theoretical basis of your foreign policy, Guantanamo is just a bit of a fly in the ointment. Vague references to “anomalies” are not enough.

Goldsmith’s key point is clear: there can be no compromise on the right to a fair trial. Except…

Those paragraphs were only two buried in the middle of a fairly lengthy speech, which was indeed about the domestic legislative response to terrorism, going through the various Terrorism Acts since 2000, the Law Lords 2004 judgment in A v. Home Secretary (not to be confused with the 2005 judgment in the same case, which was about use of evidence obtained by torture), and then the Government’s use of control orders, particularly against non-UK nationals and the effect of the European Convention and the Human Rights Act.

Leaving aside that deportation is only relevant when the accused isn’t of UK origin, the problem I have with all this is that the evidence of involvement in actual or proposed terrorist acts is, by definition, never properly set out in these cases, whether about deportation or about control orders. The problem wouldn’t arise if it was, because they could be charged and tried in the ordinary way. As it is there is a very real question about whether those dealt with under these provisions are receiving anything approaching a fair trial.

Take this bit from later in Goldsmith’s speech:

Just before Easter, a Judge of the High Court declared the control order legislation to be incompatible with the European Convention on the basis that there was a breach of the right to a fair trial before an independent and impartial tribunal. The judge’s main concern was that the court only had power to review the decision of the Home Secretary to make the order rather than being able to take its own decision and furthermore in reviewing the Home Secretary’s decision, it was limited to considering only the material that was before the Home Secretary at the time of the original decision.

[First] this is only a first instance decision which will be appealed. Second, and more fundamentally, the legislation has been declared incompatible on a procedural point, namely the level of scrutiny […]. The heart of the policy on control orders – namely the protection of the public from the risk of terrorism by means of civil orders and the use of secret intelligence to make out the case – is untouched.

The case he was talking about was actually not about use of control orders on those suspected of planning terrorism in this country as an alternative to deporting them. It was Re: MB (no, we don’t get to know the chap’s name), judgment of Sullivan J on 12th April 2006. MB was trying to travel to Syria when he was picked up by MI5 on the basis that they believed he was ultimately on his way to Iraq to fight there, and a control order was imposed. It seems slightly bizarre, if the purpose of the legislation is to prevent people doing horrific things here without actually deporting or charging them, to prevent them leaving the country of their own free will even if you do have some suspicion they intend to go and do horrific things somewhere else, but still. The bottom line of the judgment is in paragraph 103:

To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing […] would be an understatement. The court would be failing in its duty under the [HRA], […] imposed […] by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State’s decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair.

Somehow, the view that “there are certain principles on which there can be no compromise. Fair trial is one of those”, has become a “procedural point” so far as “MB” is concerned, despite Sullivan J saying it was “not merely a procedural quibble”.

As for the use of secret intelligence, that was a major issue in the case: paragraphs 66 and 67:

In the present case it has not been possible to provide the respondent with even a summary of the closed material. [The Government’s open case was fairly described] as “relatively thin”. Even if [there was sufficient evidence] to establish a reasonable suspicion that the respondent intended to travel indirectly to Iraq, British citizens are free to travel to Iraq if they wish to do so. A desire to travel to Iraq could not, of itself, be a basis for suspecting that an individual is or was involved in terrorism-related activity. On the open material, the only basis on which anyone could reasonably suspect the respondent of being involved in such activity is the following sentence[…]:

“The Security Service is confident that prior to the authorities preventing his travel [the respondent] intended to go to Iraq to fight against coalition forces” (emphasis added)

The basis for the Security Service’s confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality, the respondent could make any effective challenge to what is, on the open case before him, no more than a bare assertion.

The reason why these defendants are not charged with the criminal offences of which by implication they accuse them is that the authorities either fear compromising ongoing intelligence operations or fear they can’t make the case out: which it is we don’t know because they haven’t been properly charged and the evidence hasn’t been fully examined by a court. Eat your heart out Major Yossarian.

Instead, there’s a hearing in which the open evidence clearly implies they believe the accused to be guilty of serious criminal offences, but the detailed evidence justifying this is not available to the accused. The messy technicalities of criminal procedure are avoided and an order is imposed significantly limiting the accused’s freedom. After all, we know he’s guilty. “Proof beyond reasonable doubt” seems to have become no more than a technical hurdle to be jumped over when we already “know” the accused to be guilty, not only in the terrorism legislation but in criminal justice in general. Proper process becomes an inconvenient technicality and insistence upon it by the courts a source of indignant soundbites from the Government.

And yes, I admit that frankly I wouldn’t be remotely surprised to learn that the security services were in fact correct and Mr MB was indeed on his way to fight in Iraq. But none of us know, and neither my nor anyone else’s biased and ill-informed guess is a sufficient basis for a penal order seriously depriving the accused of ordinary liberty. Proof beyond reasonable doubt is not a mere technical hurdle. In real life, there is always a possible alternative explanation for things that look dodgy.

Since Goldsmith’s speech, the drums have been beating loudly about the HRA, largely as a result of the decision on the nine Afghan dissident hijackers from 2000. Last week Sullivan J (him again) seems (I can’t locate the full judgment so I’ve only read the BBC report) to have gone ballistic at the Home Office’s deliberate delaying of the implementation of a decision that they could not currently be sent back to Afghanistan and ordered the Home Secretary to grant discretionary leave to remain, reviewable every six months. Afghanistan is still not considered a safe place. Fundamentally, the criticism of the government was about deliberate subversion of proper process, a principle closely linked to that of fair trial.

So Cameron jumped on the bandwagon with a knee-jerk reaction describing the Afghanis as dangerous criminals and pledging to reform or scrap the HRA. Blair calls the decision “an abuse of common sense”. Personally I’m of the view that while hijacking is undoubtedly a Bad Thing, the circumstances are somewhat particular. Hijacking a plane to escape the Taliban, and causing no significant injury in doing so, is not quite the same as an “ordinary” terrorist hijacking. There’s a certain irony in the case given recent history, and I find it difficult to see what danger these particular hijackers now pose. So even if the Strasbourg case of Chalal was overturned, which would allow the court to weigh the right to security of UK nationals against the threat to the Afghanis if they returned, I’m not sure it follows they would be. Scrapping the HRA wouldn’t of course, alter the fact the UK remains bound by Chalal and the Convention for the present.

Still, it seems that Blair, Reid and Falconer really are intending to tinker with the HRA, and possibly derogate from the ECHR as well. Blair has also apparently ordered Falconer to deliver “speedy, simple, summary justice”. This, he thinks, is where “ordinary reasonable people” feel let down.

“Summary” is not a good word to use anywhere near the word “justice”, or the phrase “fair trial” and delivering “simple” justice rather requires the world to become a simple place – otherwise it’s hardly justice. If “justice” is to become summary and simple then it will inevitably become less fair, because fairness involves giving each side their say about the interpretation and veracity of alleged events and facts.

What the court service actually needs to deliver justice more efficiently and in the long run more cheaply, on both the civil and the criminal side, is a hell of a lot of investment in infrastructure, but going down that route would probably make Gordon grumpy.

At the same time, Blair’s asked Reid to consider whether new laws are needed to deal with judges over-ruling the government. Apparently the judiciary are at fault for their interpretations of the laws his Government brought in, so we need some more laws for them to interpret. Since the whole point of the HRA as drafted and brought in by this Government was to give judges the power, in practice, to over-rule the executive, that was what sections 4 (declarations) and 6 (“It is unlawful for a public authority to act in a way which is incompatible with a Convention right”) were for, it seems we might as well kiss the whole idea goodbye: this won’t be just tinkering, but emasculating. The HRA wasn’t a particularly elegant way of doing the job in my view, but establishing a superstructure securing the basic principles of justice and civil liberties was nonetheless a genuinely positive achievement of this Government (one of the few, in my book).

Criminal and civil justice, and quasi-judicial proceedings, are about the assessment of the truth of facts, and the application of principle to those facts. Facts are kaleidoscopically varied and complicated, and trying to determine what the “truth” is can be an insanely difficult exercise. This is real life: contrary to popular belief the courts are not ivory towers but see human nature and complexity in all its messy seaminess every day. Nor is the institutional bias that which is often claimed. When public authorities attempt to impose controls on liberty and penal sentences, courts the world over actually tend in practice to instinctively lean to the side of authority, despite the headline-grabbing cases when they don’t.

To obtain a just result, the procedure by which the result is reached has to be as fair as possible, emphasising the right to a proper defence, the presumption of innocence unless the contrary can be shown, and openess. No result can be trusted unless the process by which it was arrived at was fair, and it cannot be for Government to decide what is or is not fair or just, least of all in cases in which the executive is directly involved. The HRA re-emphasised the principles to which we explicitly signed up in the European Convention a generation ago, principles which have been fundamental to the concept of law for centuries, and as its novel twist gave domestic judges the power to tell the Government when they’d breached those principles. Even that wasn’t entirely new, in 1969 the Law Lords bent legal logic almost out of recognition to in effect override the Government’s limited compensation provisions for losses arising out of Suez because of breach of natural justice. Unfortunately for today’s Government, judges have gone ahead and used the HRA powers to override decisions they find to be in breach of those fundamental principles. Goldsmith at least seems to acknowledge the fundamental nature of the right to a fair trial when Guantanamo is concerned. But it sounds increasingly as though both Tories and Labour ministers want fair trials and proper process “except when” that would make it harder for them to get the results they want. Well, that isn’t justice. Part of the role of the courts, and a fundamental plank in the idea of the rule of law, is ensuring that authority is confined to its proper powers exercised under proper procedure. Personally, I’m glad to see it happening.