Actions That Imperil Our Security

Owen Jones writes:

The Daily Mail and the left don't often find themselves on the same side, but when they do it is worth paying attention.

The Daily Mail is absolutely right (not a sentence you will catch me typing on a regular basis) to splash on "Britain's first secret trial". It's an affront to basic principles of justice, and a frightening precedent to boot.

At risk of sounding like a Mail columnist myself: where will it end?

Two men, known only as AB and CD, have been charged with terrorism; journalists were forbidden from disclosing even this simple fact until newspapers overturned a gagging order.

But for the first time in centuries – and in a direct challenge to the Magna Carta of 1215 – the entire trial will be held in secrecy.

A basic principle that democrats of all hues should surely champion is that justice is done, and is seen to be done.

As Liberty's Shami Chakrabarti has put it: "Transparency isn't an optional luxury in the justice system – it's key to ensuring fairness and protecting the rule of law."

But it is the precedent that should disturb us.

It isn't one of the authoritarian anti-terror laws passed by New Labour or the coalition responsible for this assault on justice, it is being justified with provisions under common law.

Yet once this precedent is established and a centuries-old tradition of justice broken, it will be much easier to hold trials in total secrecy in future.

Indeed, this government's Justice and Security Act, passed last year, allows for the extension of secret courts, or "closed material procedures" to use the proper legal jargon.

Instead of judges, ministers will be given powers over evidence in court, risking the principle of a fair trial. 

Liberty has suggested it could be used to keep "dirty state secrets" away from victims and the public, and 700 legal experts signed a letter condemning it as "dangerous and unnecessary".

Sadly, to no avail.

When the state asks for more power, it invariably justifies it as being for our own good, to protect our security.

We are fed seductive lines about such powers only being used when strictly necessary, with cast-iron promises that they will not be abused.

When Margaret Thatcher introduced the Public Order Act in 1986, it was not explained that criminalising words or behaviour causing "harassment, alarm or distress" would be used against groups ranging from gay rights activists to Christian street preachers.

When the Protection from Harassment Act 1997 was passed, it was not clear it would be used against activists protesting outside US intelligence bases or Oxfordshire villagers protesting about turning a lake into a dump for fly ash.

Neither did proponents of the Terrorism Act suggest that the sorts of people on the receiving end would include an octogenerian refugee called Walter Wolfgang who had fled the Nazis who had the temerity to heckle a minister.

Many of the freedoms and liberties we have today were won at huge cost and sacrifice by our ancestors. If we allow them to be discarded without a fight, then what is to stop the powerful coming for other rights?

This is how freedom is eroded, when we accept the comforting rationale of a state that will quite happily amass power at the expense of individual liberties until it is prevented from doing so.

Yes, let's have a debate about preserving our security.

If the state wishes to provide terrorists with ready-made propaganda, then flaunting its attacks on civil liberties is one way of going about it.

Our governments have served as highly effective recruiting officers for terrorism in other ways, too – whether it be backing the Afghan Mujahideen in the 1980s, backing various hellish regimes such as the witch-beheading gangsters running Saudi Arabia, or the invasion of Iraq which handed vast swathes of the country to al-Qaida.

These are actions that imperil our security. But if we want to ensure our safety, cracking down on civil liberties is as counter-productive as it is wrong-headed.

• Comments on this article will remain closed for legal reasons.

Then allow me.

Light sentences and lax prison discipline are both expressions of the perfectly well-founded view that large numbers of those convicted, vastly in excess of the numbers that have always existed at any given time, are in fact innocent.

We need to return to a free country’s minimum requirements for conviction, above all by reversing the erosion of the right to silence and of trial by jury, and by repealing the monstrous provisions for anonymous evidence and for conviction by majority verdict. And we need to return to proper policing.

Then we could and should return to proper sentencing, and to proper regimes in prison, with no suggestion that prisoners should have the vote. But only then.

We need to abandon the existing erosion of trial by jury and of the right to silence, the existing reversals of the burden of proof, conviction by majority verdict (which, by definition, provides for conviction even where there is reasonable doubt), the admission of anonymous evidence other than from undercover police officers, conviction on anonymous evidence alone, both pre-trial convictions and pre-trial acquittals by the Crown Prosecution Service, the secrecy of the family courts, the anonymity of adult accusers in rape cases, identity cards or any thought of them, control orders or anything like them, police confiscation of assets without a conviction, stipendiary magistrates, Thatcher’s Police and Criminal Evidence Act, the Civil Contingencies Act, the Legislative and Regulatory Reform Act, and the Official Secrets Acts.

We need to raise the minimum age for jurors at least to 21. We need to extend to the rest of the United Kingdom the successful Scottish extension of the right to serve on a jury without compromising its restriction to those with a tangible stake in society. We need to repeal the provision for “no win, no fee” litigation, while at the same time protecting, restoring and extending Legal Aid.

We need the current judicially imposed arrangement on privacy to be enacted into the Statute Law, but with the burden of proof in libel actions placed on the plaintiff, and with Legal Aid made available for defamation actions.

We need to end and reverse the patenting of genes, algorithms or facts of nature, and to end and reverse any retrospective extension of intellectual property laws in the interests of corporate copyright holders. Instead, we need the open development of software and other creative works.

We need absolute submission to the facts of the historical record, assisted by our own past or present support for none of Nazism or Fascism, Stalinism or Maoism, neoconservatism or Islamism, the terrorism of the Far Left or the terror inflicted by regimes of the Far Right. Yes, that submission is a civil liberties issue.

We need to return to preventative policing based on foot patrols, with budgetary sanctions against recalcitrant Chief Constables.

We need police forces at least no larger than at present, and subject to local democratic accountability though police authorities composed predominantly of councillors, not by means of elected sheriffs, which, like directly elected mayors, have no place in a parliamentary rather than a presidential res publica, and are wholly incompatible with the defence, restoration and extension of the powers of jurors, magistrates and parliamentarians.

We need to restore the pre-1968 committal powers of the magistracy, restore the pre-1985 prosecution powers of the police, and restore the network of police stations and police houses placing the police at the very heart of their communities.

We need each offence to carry a minimum sentence of one third of its maximum sentence, or of 15 years for life.

And we need a single category of illegal drug, with a crackdown on the possession of drugs, including a mandatory sentence of three months for a second offence, six months for a third offence, one year for a fourth offence, and so on.

The murderers of Stephen Lawrence were and are racists. But the Macpherson Report found no evidence of racism on the part of the police.

Rather, it was a case of plain, old-fashioned bent coppers, in the pocket of a criminal family on whose behalf they have, among other things, pursued a very long campaign of harassment against the only witness.

Those bent coppers should get their comeuppance. Certainly, two of those whom they acted to protect have done so. Including the one to try and to convict whom the double jeopardy law had to altered.

But that alteration has now done its job. That ancient liberty should be restored. Henceforth, as historically, no acquitted person should ever have to stand trial again for the same offence.

Can anyone explain to me how the conviction rate for rape is demonstrably wrong? What, exactly, would be the correct rate? And why, exactly?

That a woman has had a most unpleasant experience of this kind, the far greater likelihood of which is a direct consequence of the Sexual Revolution, does not necessarily mean that she has experienced the offence of rape as the law defines it.

Either that, or the real scandal is that there are so few prosecutions for what is clearly very widespread perjury, attempting to pervert the course of justice, and making false statements to the police. Not that those two possibilities are mutually exclusive.

We need to consider that the specific offence of rape might serve only to keep on the streets people who ought certainly to be taken out of circulation, and that instead we might need to replace the offences of rape, serious sexual assault and indecent assault with an aggravating circumstance to the ordinary categories of assault, enabling the maximum, and therefore also the minimum, sentences to be doubled.

That way, those poor women with broken bones and worse, whose assailants were never convicted of anything, really would have received justice.

We must insist on a return to the situation whereby a Bill which ran out of parliamentary time was lost at the end of that session. On the restoration of the power of a simple majority of the House of Commons to require a General Election, whether by rejecting a motion of confidence or by approving a motion of no confidence.

On the restoration of the supremacy of United Kingdom over European Union law, and its use to repatriate industrial, regional and agricultural policy and to restore our historic fishing rights (200 miles, or to the median line) in accordance with international law.

On the requirement that EU law apply in the United Kingdom only once it has passed through both Houses of Parliament exactly as if it had originated in one or other of them. On the requirement that British Ministers adopt the show-stopping Empty Chair Policy until such time as the Council of Ministers meets in public and publishes an Official Report akin to Hansard.

On the requirement of a resolution of the House of Commons before any ruling of the European Court of Justice, or of the European Court of Human Rights, or of the Supreme Court, or pursuant to the Human Rights Act, can have any effect in the United Kingdom.

On the disapplication in the United Kingdom of anything passed by the European Parliament but not by the majority of those MEPs certified as politically acceptable by one or more seat-taking members of the House of Commons.

On the restoration of British overall control of our defence capability. On the removal of all foreign forces and weapons from British territory, territorial waters and airspace, together with the complete operational independence of our Armed Forces under the Crown in Parliament, subject to no foreign command whatever.

On the repeal of one-sided extradition arrangements, entirely to refusing to implement them while they remain in place. And, especially now that Norman Baker is a Minister, on the coroner’s inquest that has mysteriously never been held into the death of Dr David Kelly.

There must be an extension to Scotland of the historic liberties, largely as set out above, which have never applied in that far more oligarchic country, where middle-class institutions and upper-middle-class power have been defined as the esse of national identity, a situation which has been made even worse by devolution’s weakening of the Labour Movement.

While this might have been a factor contributing to the retention of more rigorous minimum qualifications for jurors in Scotland, criteria which should be applied nationwide as surely as should be the Scots Law requirement of corroboration of evidence, nevertheless it means that, while there is an automatic right to trial by jury for serious offences in Scotland, the decision on which way to proceed in an ‘each-way’ case lies with the prosecution rather than with the defence.

The police have no power to caution, and they proceed entirely under the direction of the locally unaccountable Procurator Fiscal, who does not prosecute unless it is in the public interest to do so, which it is for the prosecution alone to decide and for which it does not have to give any explanation. It is extremely difficult to bring a private prosecution, far in excess of the necessary restrictions on that practice which rightly exist elsewhere. These profoundly illiberal arrangements must change.

That would be a start, anyway.

Ed Miliband and Jon Cruddas, over to you. As much as anything else, what would the Daily Mail then say? If not “Vote Labour”, then why not?

All that Blair managed was The Sun, always a floating voter. Bagging the Daily Mail would put Miliband in a different league altogether.