Blunkett, ID cards and the Madrid bombings

Big Blunkett reports, citing the Sunday Times, that the Home Secretary wants to fast-track ID cards in the wake of the Madrid bombings.
Spy.org.uk's blog also reports on this and on a Sunday Times poll carried out by Experian showing a rise in support for ID cards since the bombings.

It is worth noting however that Spain has a system of ID cards that did nothing to prevent the Madrid bombings. Possessing a legitimate ID card does not mean you're not a terrorist. Moreover terrorists are able to forge or fraudulently obtain such things if they need them. And no one has ever explained to me precisely how ID cards could be used to stop terrorists. Not Blunkett, not the Home Office, nor have I seen any article from others who support ID cards which spell out how they're supposed to help.

Finally, as Spy.org.uk notes, Experian have a vested interest in promoting ID cards -- they could make money out of them.

Is Blunkett really this mad?

According to the Sunday Herald:

On Tuesday, Blunkett will fight in the Royal Courts of Justice in London for the right to charge victims of miscarriages of justice more than £3000 for every year they spent in jail while wrongly convicted.

So if you get wrongly convicted and have to do time, you've to pay for the cost of keeping you in prison! And all this whilst the govt is working hard to make it easier to convict the accused...

How can anyone trust a government that displays such contempt for individual rights?

On dealing with terrorism

March 11's horrific events in Madrid have underlined the seriousness of the threat posed by terrorism in the modern world. Clearly the perpetrators of such acts have no regard for human life and do not care about the suffering they cause. Naturally, we wish to see something done to stop this sort fo thing from ever happening again.

Since Sept 11th 2001, governments across the world have been under considerable pressure to "do something" about terrorism, and to be seen to be doing it. Each new atrocity, whether in Bali, Turkey, or, as now, in Spain, puts further pressure on governments and lends credence to the often repeated assertion that the terrorists can strike anywhere they choose, that no country is safe from such attacks. Indeed, it has been my opinion for some time now that it will only be a matter of time before a terrorist group tries a similar attack on Britain. A rare point of agreement between myself, Tony Blair and a certain Mr Blunkett!

Many governments have responded to the terrorist threat by enacting draconian laws that attack civil liberties. Already, in the aftermath of 11/03/2004, there is talk of yet more draconian measures and finding a new balance between protecting civil liberties and preventing terrorism. Indeed according to the BBC, David Blunkett has stated that the greatest challenge was to protect democratic rights in the face of the threat posed by suicide bombers who had changed all the rule books. Further he said:

With new forms of terrorism, with the suicide bombers, with those who are prepared not only to take the lives of others but their own, there is no prosecution, there is not punishment, there isn't the usual norms of human and social behaviour.

A leader from today's edition of the Scotland on Sunday newpaper (you'll need to register to see the leader itself, I'm quoting from the print edition) states:

The only way to prevent the carnage bombers can wreak is to anticipate their actions and arrest them before they act. It is difficult to see how this can be done without lowering the burden of proof currently required of the police and security forces and this is a debate we must have. It will pitch those on the right who would dilute human rights to save human lives against those on the left who, it seems, would sacrifice lives to preserve liberty.

In this debate it is continually assumed by the government, and many others, that civil liberties stand in opposition to effective action against terrorists, that they prevent the government, police and security forces from doing their job in trying to protect us from terrorists. Whilst there may be specific situations where this might happen, in general I reject this whole way of framing the problem.

Recall the very first sentence in the quotation from Scotland and Sunday; "The only way to prevent the carnage bombers can wreak is to anticipate their acts and arrest them before they act". I agree! But lowering the burden of proof faced in court will make damn all difference to the ability of the police and security services to arrest those they think may be planning or carrying out an act of terrorism. Under the Terrorism Act 2000, a person can be arrested without a warrant in the police merely suspect them of being a terrorist. They can then be held for up to 2 weeks without charge. The offences available to the police/security services to subsequently charge someone with include:

• being or claiming to be a member of a proscribed organisation
,


• possessing information or articles in circumstances which lead to suspicion that their possession is for a purpose related
  to the commission, instigation or preparation of acts of terrorism
and,


• directing the activities of a terrorist organisation at any level
,

These are in addition to offences related to illegal possession of firearms, explosives and other materials, and offences related to murder, assault, kidnapping, etc. My point is that the police and security services already have the legal powers necessary to arrest someone they think might be involved in terrorism. And if those people are genuinely planning a bombing, suicide or otherwise, they most likely have commited some or all of the above offences and can be charged and convicted as a result.

The crucial issue is thus not the powers of arrest and the burden to be satisfied in court, but the intelligence gathering powers the police and security forces have and the resources they have at their disposal to exercise those powers. The govt recently announced a huge increase in manpower for MI5 -- this I have no problem with and I consider justified for fighting terrorism. The security services already have considerable legal powers for conducting surveillance too, under RIPA and the Terrrorism Act. IMHO the main thing that needs to be done is for the security services and police to get on with their jobs, and get the resources they need. Further tinkering with the anti-terror laws, especially to weaken civil liberties is simply not justified.

But surely lowering the burden of proof will make it easier to jail terrorists? It is not that simple at all. By lowering the burden of proof you make it easier to jail the accused but the flipside is you make it easier to jail the wrong person. If you jail the wrong people, then not only do innocent people end up in jail but the terrorists are free to continue their mayhem.

If you lower the burden of proof, you will inevitably ensure that poorer quality cases are taken to court. Hard pressed investigators will make the decision to prosecute earlier than they otherwise might have done. THIS MEANS POORER INVESTIGATION which will undermine the effectiveness of the anti-terrorism efforts at the most crucial point, the point of investigation of and intelligence gathering on terrorist suspects.

The burden of proof and other protections in our system of law are not just there to protect the liberty of individuals (important as that is) but also to ensure that when we jail people we jail the right people. Weakening such protections leads all of us exposed to wrongful imprisonment by the government and can be counterproductive to effective crime fighting and the fight against terrorism.

The automatic assumption by many that civil liberties must be weakened in the fight against terrorism is a trap. The crucial issue in the fight against terrorism is, and always has been, the effective gathering of intelligence. If we don't know who the terrorists are, where they are and what they're doing, we cannot stop them even if we give the government absolute power to do what it wants in the fight against terrorism. Giving the government such power will make it an even more serious threat to our freedom than the terrorists, as history has shown time and time again with examples such as Nazi Germany and Stalinist Russia as testimony. As Benjamin Franklin famous said:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety

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.

The BBC, Kilroy and freedom of speech

So Robert Kilroy-Silk has quit as a BBC presenter for making some controversial remarks in a newspaper article.

The BBC claims that the issue was never about freedom of speech:

Critics had accused the BBC of gagging Mr Kilroy-Silk by suspending his BBC One show, but Director of BBC Television Jana Bennett insisted the corporation's decision had not been about freedom of speech.

She said: "Presenters of this kind of programme have a responsibility to uphold the BBC's impartiality.

"This does not mean that people who express highly controversial views are not welcome on the BBC but they cannot be presenters of a news, current affairs or topical discussion programme."

So one the one hand it was never about freedom of speech, but on the other hand the BBC does not want its presenters to express controversial views even when they're not presenting a programme and are doing so representing only themselves!

It'd be one thing (and entirely right) to demand impartiality whilst presenting a news or current affairs program for the BBC. It is quite another to demand BBC presenters keep controversial views to themselves even when they're not working for the BBC.

If the BBC are serious about this policy, they must stop using MPs as presenters of Have I Got News For You lest they make controversial remarks during their political careers.

They must also prevent their presenters from presenting their own opinions on other BBC programs, such as Question Time, Any Questions or This Week.

Kilroy-Silk should not have given in, though I expect he's saved his company's work with the BBC by doing so. All that said I've long thought the Kilroy programme to be crud...

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.

The new year...

Well I'm back from my Xmas/New Year break, sorry for the lack of articles during this period.

So we have a new year with some interesting things shaping up. There's the report from the Hutton inquiry, Labour splits over tuition fees, the civil contingencies bill (which would allow the govt to give itself dictatorial powers in the event of an emergency), the promise of Libya to get rid of its WMDs, the US presidential elections, and much else to make this an interesting year for those who follow politics and world events.

I fully expect the govt's attacks on civil liberties to continue (e.g. the civil contingencies bill which will allow legislation by decree), but I think British politics has undergone quite a change over the last year. The Blair govt is no longer teflon coated and Blair's credibility has been damaged. However it is yet to be seen if the opposition can exploit the opportunities presented. I think for the moment that developments in the Labour party and its relationship to the govt will be more important than anything the Tories do.