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Archive for January 17th, 2012

The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.
Dwight D Eisenhower

The Bloody Assizes were a series of trials started at Winchester on 25 August 1685 in the aftermath of the Battle of Sedgemoor, which ended the Monmouth Rebellion in England.  At the risk of understatement – not a particularly creditable part of our long and rich legal history.

Henry Porter, writing in The Guardian, notes:  “Kenneth Clarke, the secretary of state for justice, the man who set up the commission last spring to investigate a new bill of rights – no doubt with half an eye on the 800th anniversary of Magna Carta in 2015 – is also responsible for the justice and security green paper, which threatens to deprive us of one of the vital traditions of common law, guaranteed by Magna Carta.”

Porter notes that the key proposal will  “provide a magic cloak of protection for any minister or government agency that wishes to cover up a wrong, most significantly for members of the intelligence services.”

Justice isn’t blind.  Justice isn’t the tool of the State.  Justice is a concept of laws to underpin a fair and democratic society; prosecuted, in the case of criminal trials, by lawyers with no interest in the outcome and administered by judges who are independent of the executive, according to the laws made  by our elected representatives. And therein lies the rub – for it is within the power of government to bring in laws which then have to be applied by the judges, subject, thankfully, to the dictates of The European Convention – in particular, the right to a fair trial set out in Article 6:

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The proposal being put forward by The Secretary of State for Justice strikes at the very heart of our rule of law – a rule of law based on open trials, where guilt or innocence is determined by a jury.

Porter notes: “Dinah Rose QC summarised the obvious advantage to ministers in her Atkin Memorial lecture last year. The legislation would, she said, “permit courts to try common law claims for damages using a closed material procedure, whenever a government minister, who is, of course, likely to be party to the action, decides that disclosure of particular material would be damaging to national security”.

… We are following America, where the state secrets privilege results in the exclusion of evidence from the proceedings simply on the basis of affidavits delivered to a court by the government, and this is going to make life very difficult for serious journalism in Britain.”

So much for the much vaunted Bill of Rights…talked of by Nick Clegg and others which, as far as I can see, has not appeared as yet in any meaningful form.

On the theme of The Rule of Law – Rosalind English provides an excellent note in the UK Human Rights blog on a decision which will, no doubt, be an irritant for the present government: Suspected terrorist may not be deported to Jordan – Strasbourg rules

And.. if you need further evidence of the slow erosion of our rights..under Magna Carta.. or otherwise.. this from Michael Mansfield QC is worth reading:

Bashing trial by jury is pathetically predictable

The Guardian: Governments needing a facelift often attempt to curtail jury trial. Quick-fix supermarket justice must be resisted

And… a bit more?  Obiter J notes: “Extradition is in the news again.  The USA is seeking the extradition of Sheffield student Richard O’Dwyer and a judge, sitting at Westminster Magistrates’ Court, has ruled that there is no bar to his extradition – see Daily Mail 14th January.  The US authorities allege that Mr O’Dwyer listed on a website places from where pirated films and TV programmes could be downloaded.  This case – like that of Gary McKinnon – brings into focus the Extradition Act 2003…”

[ PS… Happy Second Birthday to Obiter J and his excellent blog – many happy returns to come! ]

While the McKinnon case and the O’Dwyer case may be distinguished – McKinnon is alleged to have hacked into Pentagon computers.  O’Dwyer set up a website linking to copyrighted material – in a manner not dissimilar to a search engine… Google, for example – it is clear to many that our extradition arrangements with the USA, designed to combat terrorism, are both one sided and are, arguably, being misused in the O’Dwyer case for purely commercial ends.  For my part, at first blush – without a deep understanding of the background to the O’Dwyer case as yet, perhaps our government should be more protective of the rights of citizens when it comes to handing them over to the Americans?

Without Prejudice podcasts resume this Thursday!

Well… there we are.  British justice.. being created by a democratically elected government – with a weak opposition which seems more concerned with party leadership issues and train fare prices than issues of civil liberties.

Mind you… Ken Clarke, apparently, thinks that bloggers are just a load of nutters and extremists.  I don’t think we are.  I wonder if Ken has actually read some of the leading Human Rights and Civil Liberties blogs… has he read Carl Gardner’s Head of Legal?  Has he read Jack of Kent?  Has he read the  UK Human Rights Blog ? Has he read Obiter J?

More to come as the week progresses.

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