On Blair’s "rebalancing" of the justice system

From “Just Law”, by Baroness Helena Kennedy QC, Chapter 1, page 26
(hardback edition, ISBN: 0-701-17506-0)
:

“In the criminal courts the victim is a witness, a crucial and central witness for the state. So, when the government talks about rebalancing the system, it is really about rebalancing in favour of the state.That is the fraud in the government’s rhetoric, the sleight of hand.”

Kennedy puts this point quite well, but I have a problem with the language.

It is the accuser who is the witness for the state.

Who the victim(s) is(are) depends on whether the defendant is innocent of the crime he’s charged with and on whether the accuser has had a crime committed against them. These are questions for the court to decide.

It may well be that the defendant is the victim, e.g. of a false accusation.

It may even be that both the accuser and the defendant are victims, with the accuser misled as to who the perpetrator is and the defendant the unfortunate scapegoat or victim of mistaken identity.

Or it may be that the accuser is indeed a victim of a crime committed by the defendant.

But the language of the government’s rhetoric, and much of the debate over these issues, implicitly assumes that the accuser is the victim.

Yet surely part of the purpose of the trial is to determine whether or not the accuser has in fact had a crime committed against them? And thus whether or not the accuser really is a victim?

And when Tony Blair says, e.g. “It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished”(1), it is simply wrong.

Logically speaking you have 4 possible miscarriages of justice:

  1. The accused is punished for a crime someone else commited.
  2. The accused is punished for a crime he didn’t commit and no one else committed.
  3. The accused is punished for something he did do, but which wasn’t a crime.
  4. The accused walks free from a crime they committed.

It is arguable that cases 2 and 3 are as serious as 1 — assuming like crimes — because in each of these three cases, 1 party is punished or not incorrectly.

However (1) is clearly more serious than (4) because 2 parties are punished (or not) incorrectly — the accused and the actual perpetrator(s). To make matters worse, the actual perpetrators also remain free to commit further crime.

Moreover since it is the state that brings a prosecution, there is an inequality of arms which safeguards like the presumption of innocence, the right to a jury trial and the right to silence seek to redress.

Weakening or jettisoning those safeguards thus makes it easier for the state to lock anyone they choose up and thus increases the risks to us all from the state.

This is where those who criticise civil libertarians for preferring the rights of criminals over victims get it so wrong with regards to those who try to uphold the accused’s rights.

When the rights of the accused are weakened, this is an attack on the rights of all, because anyone could be accused of a crime and these rights are there to try and ensure that only a sound accusation will result in loss of liberty.

Defending the rights of the accused is not the same as defending the rights of criminals.

Convicting the accused is not the same as convicting the guilty.

Making it easier to convict the accused by lowering the burden of proof, or standards of evidence, will simply make the system less reliable, thus increasing both the incidence of innocent people being punished and the incidence of the guilty walking free.

It will also lead to less trust in the system (though I grant trust in the system has already been compromised in Britain).

The only sound way to ensure the guilty are convicted and the innocent are either not put on trial, or are acquitted if they are, is to ensure a sound and thorough investigation of crime, and to ensure that each case is thoroughly tested in court.

Principles such as presuming innocence, having to prove guilt beyond reasonable doubt and allowing a trial of someone by a jury of their peers should not have been jettisoned as they are there precisely to ensure such thorough investigation and testing of cases.

Of course the criminal justice system was not perfect when these principles applied. There may well have been a need to provide better protection for witnesses for example, but this was not an excuse for abandoning sound principles that had been tried and tested for hundreds of years.

Footnote

(1) Kennedy attributes this quote to Tony Blair for the 18th June 2002, but does not give a proper source. Indeed, one problem I have with the book is the poor citation of sources. A bit of googling got me this article however:

http://www.number-10.gov.uk/output/Page1717.asp

Near the bottom it says:

“And it’s perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished.”

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UK Govt can put control orders on those who are, on balance of probability, innocent…

Update (April 9th, 12:12 am BST):

I was mistaken about this matter. House arrest will actually require the balance of probabilities, but non-derogating control orders can be imposed on the “reasonable suspicion” test. Thus I have changed the title from “UK Govt to house arrest those who are, on balance of probabilities, innocent…” to the new title above.

Anyway sorry for the error. With all the fuss it was hard to keep up with the changes and it’s only with my reading the actual Act of Parliament that I realised the mistake.

The extraodinary battles in the Houses of Parliament over the Abandonment of the Rule of LawPrevention of Terrorism Bill have done little to protect civil liberties. The main changes the Lords insisted on include:

  • judges issuing all control orders
  • the Director of Public Prosecutions declaring there’s no possibility of prosecuting
  • a sunset clause so that the legislation expires at end of November
  • use of evidence gained from torture abroad prohibited
  • the standard of proof being “balance of probabilities” instead of “reasonable suspicion”

Given that it will still be the case that suspects will not know the evidence or the charges against them, they won’t be able to defend themselves and these changes are fairly minor (despite the fuss the government is making).

The most significant change is raising the standard of proof. Although this barely touches the problems with this bill, it gives judges greater room to decide that a control order is not justified.

With the “reasonable suspicion” standard, it is hard to see how one could seriously dispute the reasonable suspicion except by claiming it is unreasonable which begs the question of whether, in law, the Home Secretary, acting on advice and secret evidence from the security agencies, can ever seriously be regarded as acting on unreasonable suspicion.

ISTM thus that this standard of “proof” is a joke, and will ensure that the Home Secretary can still apply control orders to anyone he/the security agencies choose, with the judge acting as a mere rubber stamp.

With balance of probabilities, if a suspect has a sympathetic and independent minded judge, there is room for the judge to say he’s not convinced it is more likely than not that the suspect is involved in terrorism.

Of course it is still a very subjective and arbitrary standard (unless they actually compute the probabilities, but how would one do that?) but it does give room for maneouvre.

Anyway, the government is tonight opposing this change. This has the logical implication that they want control orders imposed on people who would be judged more likely to be innocent than not

And the govt claims it is doing this for our own good.

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Blunkett’s kangaroo courts — unnecessary and dangerous

For prosecuting terrorist offences, David Blunkett recently proposed trials where evidence is kept secret from the defendant, judges and lawyers are vetted by the security agencies, and guilt is determined on “the balance of probabilities” test rather than “beyond reasonable doubt”. According to the Guardian:

But Mr Blunkett said during his visit to India and Pakistan that new powers might well be necessary because the nature of “suicide terrorism” meant the only effective measures were preventative.

There was no point in threatening to put terrorists on trial after they had blown themselves up. Mr Blunkett’s new thinking on counter-terrorism were voiced as he visited the site in Amritsar of a massacre by British troops in 1919 of more than 400 Indians who were protesting at the introduction of the Rowlatt Act, which gave the British emergency powers to imprison without trial.

Clearly Blunkett is emphasising the need to preempt suicide bombers to deal with them effectively. This can already be done under existing legislation. Consider that under the Terrorism Act the following all apply:

  • It is an offence, punishable by 10 years in prison, simply to be a member of a proscribed organisation.
  • It is an offence, punishable by 10 years in prison, to provide support (financial or otherwise) for, further the activities of, or claim to be a supporter or member of a proscribed organisation (e.g. al qaeda).
  • It is an offence, punishable by 10 years in prison, to arrange meetings in support of a proscribed organisation
  • Police can arrest someone, without a warrant, simply on suspicion of being a terrorist.
  • People arrested on suspicion of being a terrorist can be held without charge, originally for upto 1 week but recently this has been extended to 2 weeks (see comment on this article from spy.org.uk).
  • It is an offence, punishable by 10 years in prison, to possess something in circumstances where the police suspect you possess it for a purpose connected to instigating, committing or planning acts of terrorism.
  • It is an offence, punishable by 10 years in prison, to possess or record information in circumstances where the police suspect you possess it/recorded it, for a purpose connected to instigating committing or planning acts of terrorism.
  • It is an offence, punishable by life imprisonment, to direct, at any level, the activities of a terrorist organisation.

It is also illegal to possess firearms, explosives and various other materials without licences under other laws.

Clearly there is plenty of scope for arresting and detaining for upto 1 week, anyone the authorities have the slightest suspicion of.

Then, if you can’t get them for actually carrying out a terrorist attack, you can get them for:

  • membership of a proscribed organisation
  • ,

  • providing funds to terrorists
  • ,

  • possessing information or equipment that can be used to carry out acts of terrorism
  • ,

  • weapons training
  • ,

  • or for directing any of the activities of any organisation concerned with committing acts of terrorism(the organisation does not need to be proscribed)
  • .

Someone planning to become suicide bomber is likely to commit more than one of the above offences before setting out to execute the bombing. He will have had to get materials and equipment from others, who can also be targeted. What happens once the suspect is in custody and/or taken before a court is irrelevant to preemptively stopping the attack occurring. These are only relevant to whether a would be bomber might be set free to try again. Good intelligence and a solid investigation are the best defences here. A solid investigation will the best means of ensuring a suspected terrorist can be convicted, if not of attempting/carrying out an attack, then of one of the myriad offences above.

And even if this fails, a suspect who is prevented from an attack, and then released, can be kept under surveillance and hauled in again at a moment’s notice under existing legislation.

Thus there is plenty of scope to stop suicide bombers, using preemptive action already available under Britain’s anti-terrorist legislation. About the only thing one might wish to add would be a specific offence of planning terrorist activities.

The key to preventive action is good intelligence and solid investigation of any terrorist events that do occur. The problem here is that Blunkett’s proposals may undermine the latter.

If you lower the burden of proof, you reduce the need/incentive for a solid investigation to convict someone. Thus investigators will decide to move to prosecution earlier in their investigations than they do now. This increases the likelihood of getting the wrong person and letting the real perpetrators go free.

If you allow evidence to be kept from the defence/defendant, you effectively lower the burden of proof and allow defendants to be stitched up very easily, and again increase the risk of letting real terrorists go free.

Blunkett’s proposals, are not merely an offence to the rule of law, they are the abandonment of the rule of law. With secret trials, security vetted judges and counsel, evidence kept from the defendant and a low burden of proof, no-one would be safe from a government (or merely some govt officials) who wanted them out of the way. They are also completely unnecessary for dealing with suicide bombers.

The powers we already have for arresting/detaining suspected terrorists, and the offences they can then be charged with are sufficient, given accurate intelligence and the will to use them when necessary.

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On the Proceeds of Crime Act 2002 (Part 1)

You’re wrongly accused of an offence. The case goes to trial. You’re acquitted. Can you now breathe a sigh of relief that the issue is dead? Not really. Aside from the recent abolishment of the prohibition on double jeopardy for some serious crimes (see the Criminal Justice Act 2003), the govt can have another go at you. Instead of trying to imprison you, they can use civil asset forfeiture to seize assets they allege are the proceeds of crime.

You don’t need to have been charged or convicted of any offence. You may have been acquitted of an offence. It does not matter.

If the govt persuades a judge, on balance of probabilities (i.e. without solid proof, with a case with holes in it, so long as it casts enough suspicion on you), that you received the proceeds of crime they can seize your assets. Indeed a Scottish man has already had £24K seized despite being acquitted of a drugs offence. Note Lord Advocate Colin Boyd’s comment:

“What is significant about the seizure is it demonstrates the new legislation is working and those suspected of profiting through crime are being penalised.

Note that it is those *suspected* of profiting crime who are penalised. Not those who are profiting from crime or those convicted of a criminal offence.

Admittedly in this case the man concerned did not account for £46K worth of deposits into his bank account whilst on benefits and with no other known source of income. ISTM he should have been done for benefit fraud. However he’d been acquitted of the drugs offences and was thus legally innocent, yet they seized his money by claiming it was the proceeds of crime he’d been cleared of.

“So what?” some might respond. “I can easily account for my money and would thus it would be easy to prove where I got it all from if I were unlucky enough to fall victim to this”. However, effectively this means that refusal or failure to account for where your money comes from becomes grounds for losing it to the state. Moreover, whether or not your account for your money and any documentation you produce persuades the judge will depend on the hurdles presented by the state’s case against you, and the state can spend far more time and money, whilst exercising legal powers that others don’t have, on constructing a plausible case than just about any individual could manage.

Some might suggest that it’s no different to any other civil case so why worry? The problem is that it is different. Civil law concerns the resolution of disputes between private parties with the state as the adjudicator. A private party has to bring a case, thus has to be determined and well enough resourced to do it. The balance of probabilities test in civil cases may be appropriate for determing whether a contract has been broken or whether someone should pay compensation for an injury caused in accident they were party to, and where the two parties have relatively equal standing. Furthermore the money is going to the aggrieved party if he wins the case, not to the state.

In criminal law, the state makes the laws, the state performs the investigation, the state makes the arrest, the state constructs the case and the state runs the courts. This is one reason why in criminal law various protections for individuals were made, e.g. the presumption of innocence, the requirement of proof beyond reasonable doubt of guilt, the right to silence and the use of jury trials. The counters the imbalance of power whereby the state has both more resources and more legal powers to make a case than any individual.

With civil asset forfeiture however we have the state bringing a civil case against an individual on the basis of criminal matters (of which they might have been cleared) and acting also as the adjudicator. The odds are set against anyone who has this procedure used against them and they will not have the protections of criminal law. They are unlikely to be able to spend the time and money the state does to defend themselves. I thus contend this is an abuse of civil procedures and a dangerous law.
Innocent people could find their legally held after tax assets being stripped from them, on the basis they are probably the proceeds of crime, without any offence ever being proved against them.

And it gets worse. Suppose the police are investigating someone for crime but don’t believe they have a strong case to present to court. Instead of doing further investigation, they may decide it’s not worth their time and effort to prove the case beyond reasonable doubt but that civil asset forfeiture might work and pass the case to the civil assets recovery agency (CARA). This would lead to criminal cases being less thoroughly investigated, thus lessening the chances of real criminals actually being caught. A thorough investigation is a crucial element of crime fighting and may prove that an initial suspect was innocent. This legislation creates an incentive to cut investigation short by seizing assets on a low burden of proof. Thus looking purely at it from a crime fighting point of view the ability of the state to use this procedure instead of proving someone committed a crime will have counter productive effects.

There is also scope for corruption. Someone could be setup in collusion with the CARA and due to the low burden of proof, and even the possibility of a pliant judge, it would be relatively easy to get their assets. Further more the state is likely to find the income stream from this very useful and thus may end up in collusion with the criminal world to keep the income stream online without taking enough to stop crime, whilst people in the criminal world might direct the state to useful targets for the money in order to keep the state of their own backs.

In short I contend that civil asset forfeiture is bad law, an abuse of civil procedures, a threat to the innocently wealthy, will be counter productive in fighting crime and introduces opportunities for laziness in crime fighting and for corruption of the state. It should be repealed.

Regarding the “Part 1” in the title, I’m afraid that civil asset forfeiture is not the only nasty item in this legislation…

Samizdata have also commented on this legislation. The comments on their article refer to experiences in America where a similar law has been around for some time.

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