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."

The Prevention of Terrorism Act 2005: Summary

The Prevention of Terrorism Act 2005, i.e. the control orders legislation, is available online here.
This is the version of the legislation that has become law. This article summarises the key features of the Act.

Sections 1 to 4 set out the powers to create control orders. The main points are:

• Control orders have two forms: derogating control orders are those incompatible with the right to liberty set out in article 5 of the ECHR and thus require a derogation from that article, non-derogating control orders are those which do not derogate from article 5.
• Control orders can be imposed on a person by a court on application by the Home Secretary, except for non-derogating control orders where the Home Secretary can impose an order without first going through the courts if, in his opion, it is urgent.
• Control orders can impose any obligation that the Home Secretary (or court where appropriate) believes is necessary for "purposes connected with" preventing or restricting the involvement of the person in "terrorism-related activity".
• Possible obligations include prohibitions or restrictions on a person's possession of specified articles and substances; their use of specified facilities; who they can communicate or associate with; their work, occupation, business or other specified activities; their movements and their place of residence.
• Other possible obligations include requirements on the person to surrender specified possessions for the duration of the order; to allow access to and searches of their place of residence or any other premisses they have access to; to allow items to be removed from their residence/premisses for testing and to remain in a particular place for specified times or periods or generally.
  
• Terrorism-related activity is defined as activity one or more of the following: the commission, preparation or instigation of acts of terrorism; conduct which facilitates the commission, preparation or instigation of acts of terrorism; conduct which encourages the commission, preparation or instigation of acts of terrorism; or conduct which gives support or assistance to individuals known or believed to be involved in terrorism-related activity.
• Terrorism is defined as it is under Section 1 of the Terrorism Act 2000.
• The Home Secretary can impose a non-derogating control order on a person if he has "reasonable grounds for suspecting" someone is or has been involved in terrorism related activity, and if he considers it necessary to do so for to protect members of the public from "a risk of terrorism".
• Non-derogating control orders last for 12 months but can be renewed by the Home Secretary.
• Courts must give permission for the Home Secretary's application for a non-derogating control order unless they find that the decision to make such a control order is "obviously flawed". They can also quash specific obligations if they believe the decision to impose them is "obviously flawed".
• For a derogating control order to be imposed, there must be a public emergency resulting in derogation from article 5 of the ECHR in force.
• A court can impose a derogating control order if it is satisfied, on balance of probabilities, that the person concerned is involved in terrorism-related activity and if it considers the control order necessary for purposes connected to protecting the public from a risk of terrorism. Note that my earlier article on control orders was thus mistaken about the burden of proof for derogating control orders -- house arrest would use the balance of probabilities, but non-derogating orders would not.
  
• Derogating control orders expire after 6 months unless renewed.

Section 5 enables a person to be arrested and detained by the police as soon as the Home Secretary makes an application for a derogating control order. This detention can last for upto 48 hours, or with court approval, a further 48 hours.

Section 6 stipulates that derogating control orders can only have effect if a derogation from article 5 of the ECHR is in force. Such a derogation is made by the Home Secretary making an order and putting it before both Houses of Parliament. The order to derogate ceases to have effect 40 days after it has been made, unless both Houses approve of the order. If approved an order lasts for 12 months, but can be renewed by Parliament.

Section 7 sets out various matters on modifying and proving control orders including giving the police the power to enter any premisses, by force if necessary, to search for someone who is to be subjected to a control order, where they suspect the person to be on those premisses.

Section 9 creates various offences. It is an offence to contravene an obligation imposed by a control order, punishable by upto 5 yrs in prison. Obstructing officials who try to enter premisses to search for someone subject to a control order is an offence carrying upto 1 yr (6 months in Scotland) in prison.

Section 13 stipulates that Sections 1 to 9 expire after 12 months, but allows them to be renewed for a year at a time by Parliament.

Section 14 requires the Home Secretary to make 3 monthly reports on the use of control orders, to appoint someone to review the legislation, for that person to review the legislation after 9 months and then every 12 months thereafter (if the legislation is renewed).