The High Court handed down an important judgment yesterday and a further reminder to the government that it must act within the law.
Two men suspected of terrorism-related activities won a landmark high court battle today when judges ruled a person could not be denied bail solely on the basis of secret evidence.
Lord Justice Laws, sitting with Mr Justice Owen, said bail applications should be treated the same as control order cases, where terror suspects must be given sufficient material to enable them to answer effectively the case made against them.
The ruling, which could have wider implications for the use of secret evidence, was described as a “historic” victory by the human rights lawyer Gareth Peirce. The home secretary, Alan Johnson, said he was “surprised and disappointed”.
The two judges said it was “impossible” to conclude “that in bail cases a less stringent procedural standard is required [than in control order cases]”.
The court also rejected the claim that the Special Immigration Appeals Commission (SIAC), which deals with terror suspect cases, are immune from judicial review.
Lord Justice Laws said judicial review was “a principal engine of the rule of law”.
The government seems unwilling to deal with a basic principle of our law and the right to a fair trial. It is not so much the decision of the High Court that is ‘disappointing’ it is the approach taken by the Home Office which is ‘disappointing.’
The Guardian notes: “Shami Chakrabarti, the director of Liberty, said it had taken a senior judge “to point out what most people already know – if the government is going to lock you up, it needs to tell you why”.
Mr Justice Eady comes under fire.
The Guardian reports: “In a rare public speech, Mr Justice David Eady – who was accused last year of “moral and social nihilism” and “arrogance” by the Daily Mail, said there was an increasing tendency for judges to become the target of anger from the media. “The media have nowhere to vent their frustrations other than through personal abuse of the particular judge who happens to have made the decision,” Eady said. “It has become fashionable to label judges not as independent but rather as ‘unaccountable’, and as hostile to freedom of speech.”
Mr Justice Eady may well be out of step with current thinking on libel tourism and the developing law of privacy but I do agree that members of the judiciary should not be subject to vulgar abuse or uninformed ranting, whether by newspapers of others. The Daily Mail has been banging on about Mr Justice Eady for some time. I don’t, personally, feel that Mr D’Acre’ s more severe statements are particularly helpful but, of course, we must defend his right and freedom to make them – even if we then solemnly go on and ignore his views in favour of deeper analysis elsewhere.
However, that being said – I can see absolutely no reason why judicial decisions should not be subject to very close inspection and analysis and, indeed, this seems to be very much the official view these days with the Supreme Court preparing summaries for the Press so that important judgments are clearly explained. Academic and practitioners for many years have analysed decisions with great care in the press, in leading journals and in texts and, no doubt, this very fact raises the bar for the judiciary as much as it helpful in explaining and developing our common law.
Not surprisingly, given my own leanings, I agree with Mark Stephens. The Guardian notes: “In the face of Max Mosley, all the newspapers lost their bottle and settled everything because they recognised that there was a change in law,” said Mark Stephens, a media lawyer. Eady’s comments today, at a conference by the human rights organisation Justice and legal publishers Sweet and Maxwell, are his first since last year’s criticisms.He is described by friends as “profoundly hurt” by the attacks. His remarks come amid claims by media lawyers that the court system for dealing with cases of privacy and libel needs reform.
“The problem is that the common law is meant to be a commonality of judicial voices,” said Stephens. “There is a system flaw in that we have historically concentrated libel and now privacy law into the hands of only a handful of judges – because of the dearth of cases that has meant we have effectively had Eady doing them full-time.”
Let’s hope that Jack Straw’s review of libel law actually leads to a change in the law and the current law on libel (and privacy?) is put on a rather more equable, balanced, reasoned and fair footing.