Ministers lose terror law appeal

[scott_forester]

Even if the "inadmissible evidence" is a) excluded because its hopelessly unreliable, or b) could be admitted with a simple change in the law?

I'm - possibly naively - giving the Government the benefit of the doubt here, we are talking about a dozen people. There is a difference between knowing and proving. Also you don't know why they don't want a even a closed case if people linked to the suspects are still active and being tracked or whatever these spook types get up to.

But I have to say if I was under house arrest for something I didn't do I'd be making as much noise as possible. And don't forget these people are welcome to leave the UK whenever they want.

I was borne in a Police State and if anyone thinks the UK is anything like one I think they are wrong. The problem the Government has is they have spun so many lies that even if they are right people don't believe them.

 

[Azrael]

I was borne in a Police State and if anyone thinks the UK is anything like one I think they are wrong. The problem the Government has is they have spun so many lies that even if they are right people don't believe them.

The government has spun lies, so we should give them the benefit of the doubt?

We're not a police state. Yet. It doesn't need to happen overnight. It often happens in steps so small we don't even realise its happening until it's too late. Steps like these.

 

[detective-boy]

This is not about having inadmissible evidence; it's about having no evidence. Until the government show us what they have, they have nothing.

I think this sums up your position.

If YOU don't know what it is, then it doesn't exist. You refuse to accept that anything can be proved beyond reasonable doubt except by the admissibility rules of criminal trials. In that you defy common sense.

Your arguments in relation to the processes and procedures used in control orders are reasonable and, to a large extent I agree. But when you deny that there can ever be a situation in which something could be proved beyond reasonable doubt except by the use of the admissibility rules of criminal trials you have your head in the sand, doing a very convincing impression of an ostrich.

And in saying that you wold not even consider a control order of any sort proved on the balance of probabilities you are taking a position which, I would argue, takes too much note of the rights of the individual and too little note of the rights of others. In fact, there is hardly a "balance" struck at all - individual rights trump public rights full stop.

 

[detective-boy]

As far as I know, the government has never claimed it has enough phone tap evidence to convict the men. If it did, do you seriously
think they'd go through this fiasco instead of admitting it?

Yes. They would. And are.

The majority of serious control orders are based on significant amounts of intercept material. The police CANNOT admit or discuss that because, just as it is illegal to admit it in Court it is ilegal to even discuss it's existence. It can't admit it has it. It can't use it.

I agree that it is fucking stupid that it can't be used - I have posted to this effect repeatedly in the past. But the reality is that that IS the current position and I am afraid I do not agree that we should not try and prevent someone committing murder when we know perfectly well, based on perfectly reliable intercept evidence and the evidence of their own words, that that is what they intend.

 

[TAE]

I think this sums up your position.

If YOU don't know what it is, then it doesn't exist. You refuse to accept that anything can be proved beyond reasonable doubt except by the admissibility rules of criminal trials. In that you defy common sense.

I think the problem is this: An independent third party needs to (a) verify the conclusions (b) make sure that everything is done in good faith.

 

[detective-boy]

I think the problem is this: An independent third party needs to (a) verify the conclusions (b) make sure that everything is done in good faith.

I have no problem with that as part of the procedure. There should be judicial involvement / oversight and, so far as I can see, there is. Whether it is sufficient or not I don't know as I have no involvement in the process. But what I can say is that the process appears very similar to other processes where ministers are authorised to do certain things (e.g. warrant telephone intercepts) but with some measure of judicial oversight.

I would not have a problem with the judicidary being the authority from the outset. I am not at all sure why the minister needs to have the power at all. The courts have always dealt with very confidential information in certain circumstances. For ten years now (since the introduction of the concept of formal disclosure with the Criminal Procedure and Investigations Act 1996) they have been quite specifically balancing the needs of justice in an individual case with the wider needs of justice for the public at large. There is no reason to believe that ministers would be any more trustworthy than judges with the most sensitive information - quite the contrary, in fact. I would far rather trust a court with information than a politician and their office.

 

[TAE]

I guess my concern is how robust the judicial oversight actually is. Simply a case of briefly looking at the accusations and hearing a summery of the intelligence and then rubber stamping the control order? Is the evidence questioned? I doubt that informants are cross examined, and I don't think that independent experts are consulted to double check the conclusions reached by the police. Is there a way to find out without learning legalese?

It is this kind of 'taking apart' of the case against the suspect which to me seems to be missing when it comes to control orders, especially if the accused does not have access to the evidence against him and/or even knows what he is accused of.

 

[Azrael]

The majority of serious control orders are based on significant amounts of intercept material. The police CANNOT admit or discuss that because, just as it is illegal to admit it in Court it is ilegal to even discuss it's existence. It can't admit it has it. It can't use it.

I'll not bother asking, yet again, how you claim to know this.

This position demands absolute trust in government. I'm mild in my phrasing when I call it a dictator's charter.

I agree that it is fucking stupid that it can't be used - I have posted to this effect repeatedly in the past. But the reality is that that IS the current position and I am afraid I do not agree that we should not try and prevent someone committing murder when we know perfectly well, based on perfectly reliable intercept evidence and the evidence of their own words, that that is what they intend.

OK, you agree it's fucking stupid it's excluded. So demand the law's changed to admit it, don't demand due process be changed because it can't be.

Government failure in one does not in any way justify government abuse of the other.

And in saying that you wold not even consider a control order of any sort proved on the balance of probabilities you are taking a position which, I would argue, takes too much note of the rights of the individual and too little note of the rights of others. In fact, there is hardly a "balance" struck at all - individual rights trump public rights full stop.

Public rights are individual rights. Separating them with this "balance" notion is a poisonous new Labour marketing tool, not a compelling reason to reverse centuries of progress.

You don't "balance" the rights of the suspect to a fair trial with the "right" of public safety. The two are not in conflict. When due process is denied the danger is increased. Terrorists still kill. More terrorists are recruited. And people are imperilled by their own government.

And by bartering their rights away, they deserve it.

 

[detective-boy]

I guess my concern is how robust the judicial oversight actually is. Simply a case of briefly looking at the accusations and hearing a summery of the intelligence and then rubber stamping the control order? Is the evidence questioned? I doubt that informants are cross examined, and I don't think that independent experts are consulted to double check the conclusions reached by the police. Is there a way to find out without learning legalese?

In the first instance I think there is probably very little evidence given or cross-examined - it reads like a search warrant application, but those orders appear to be time-limited before a full hearing is needed.

In reation to the subsequent full hearings, I think you're right when you say the actual informants are not cross-examined - but I would not expect a Control Order to be issued purely on informant's information and I am not aware that they are. The majority of evidence would usually come from the results of police enquiries - surveillance, technical surveillance (not intercepts but non-telephone bugs, financial investigation, examination of computers or whatever). As far as I am aware all of this would be both given in court and cross-examinable by the defence.

I don't know the full details of control order proceedings, however, and will make enquiries of those who do when I meet them.

 

[detective-boy]

Separating them with this "balance" notion is a poisonous new Labour marketing tool, not a compelling reason to reverse centuries of progress.

But it isn't. It is nothing new at all. That is where you are, quite simply, wrong.

 

[Azrael]

But it isn't. It is nothing new at all. That is where you are, quite simply, wrong.

How, exactly? Telling your oponent he's wrong without giving a reason does not a good debate make.

 

[detective-boy]

How, exactly? Telling your oponent he's wrong without giving a reason does not a good debate make.

For a start it's the whole idea of the European Convention on Human Rights (balancing the rights of the individual with the rights of other individuals)(dates from the post-War period). It's the whole principle behind many bail conditions (balance the rights of the individual suspect with the rights of the population at large). It's the principle behind legislation based on reasonable suspicion - arrest, stop/search, search of premises - balancing the potential breach of an individuals rights with the rights of the population as a whole. Pretty much the whole of the application of the criminal law.

Which, last time I looked, had been operating somewhat longer than New Labour's marketing campaign ...

 

[Azrael]

For a start it's the whole idea of the European Convention on Human Rights (balancing the rights of the individual with the rights of other individuals)(dates from the post-War period). It's the whole principle behind many bail conditions (balance the rights of the individual suspect with the rights of the population at large). It's the principle behind legislation based on reasonable suspicion - arrest, stop/search, search of premises - balancing the potential breach of an individuals rights with the rights of the population as a whole. Pretty much the whole of the application of the criminal law.

Which, last time I looked, had been operating somewhat longer than New Labour's marketing campaign ...

We've already debated every single one of those at length. The common theme is that a low-threshold removal of liberty is only acceptable if it's finite and part of the process of obtaining a conviction. If a conviction wasn't in prospect, you walked.

Traditionally remand was to stop the accused interfering with justice. It ensured they didn't intimidate witnesses and showed up at trial. You might impose it on the balance of probabilities, but that was only after certain burdens had been met by the prosecution (presenting a case capable of delivering a conviction). Rights themselves were not "balanced". Suspicion of guilt + no prospect of a conviction = no loss of liberty.

All this bunk about "balancing" a suspect's rights with the "rights of the public" (suspects are the fucking public) wasn't even a spark in the eye of the no doubt splendid genetic material of the family Blair.

 

[detective-boy]

All this bunk about "balancing" a suspect's rights with the "rights of the public" (suspects are the fucking public) wasn't even a spark in the eye of the no doubt splendid genetic material of the family Blair.

You can keep saying that as often as you like. You are simply wrong. Don't take my word for it - go find a lawyer who will agree with you.

 

[Azrael]

Silks lecturing at the Cambridge Faculty of Law do you? -- backed up with the shelves of the Squire Law Library.

The idea of defining rights as a "balance" between "liberty and security" is a recent philosophy alien to our traditions. For centuries we had a core set of inviolable rights. This balance gubbins only got a word in as the idea of "inalienable rights handed down by God" dwindled. (Almost enough to turn you back to religion.) Of course a judge could balance the freedom of a suspect/convicted prisoner with the perceived safety of the public, but only within the limits those rights imposed. Defining rights themselves purely in terms of a crude and distorted "balance" with "public safety" was not on the cards.

Or as the famous axiom put it: Fiat justitia, ruat coelum. "Let justice be done though the heavens fall." (Funnily enough they didn't.)

I'm being (slightly) unfair laying all this on Anthony. He and his cronies are only the scab on a festering boil that's clamped itself to our jurisprudence. Even Liberty prattles on about "strik[ing] a balance between the interests of the community on the one hand and the rights and liberties of the individual suspect on the other". This artificial separation between suspect and community is not only alien; it's responsible for making us much less safe and far less free.

 

[detective-boy]

Silks lecturing at the Cambridge Faculty of Law do you? -- backed up with the shelves of the Squire Law Library.

....

Even Liberty prattles on about "strik[ing] a balance between the interests of the community on the one hand and the rights and liberties of the individual suspect on the other".

Maybe, just maybe, that's because Liberty and I are aware of what the truth of the matter is ... and you are talking bollocks.

I look forward to links to learned articles by the "silks lecturing at the Cambridge Faculty of Law" or which particular page / volume of the Squire Law Library you care to refer me to.

 

[Azrael]

Maybe, just maybe, that's because Liberty and I are aware of what the truth of the matter is ... and you are talking bollocks.

Or maybe, just maybe, that's because Shami Chakrabarti is an ex-Home Office lawyer fully versed in the trendy balance argument. That you seem completely unaware it's even a matter of legal debate gives a good indication which one of us is talking bollocks.

Especially when even Chakrabarti said, of a recent report from the parliamentary committee on human rights, "Above all, it speaks of the often false choice between liberty and security."

I look forward to links to learned articles by the "silks lecturing at the Cambridge Faculty of Law" or which particular page / volume of the Squire Law Library you care to refer me to.

http://www.law.northwestern.edu/journals/jihr/v2/3/ <--- Sir John Baker (lectures on Law Tripos, Part 1B, Mondays if you want to be exact) touching on some of the historical issues I have.

Sir Sydney Kentridge, QC, adresses the Euro convention's idea of rights, and, although he also goes in for the balance argument on some subjects, quotes (approvingly) Lord Hope of Craighead: "The right to a fair trial is absolute in its terms and the public interest can never be invoked to deny that right to anybody under any circumstances."

David Pannick, QC, is closer to your position than mine (he accepts some sort of control order as a legitimate option) but does neatly explain an absolute right that has survived into the Euro Convention: "Article 3 is an absolute prohibition of torture, and involves no balancing of interests." (my italics) Times

The index to Squire isn't going to do you much good (it's not open to the public) and anyway I'm on vacation, but if you want historical background, Sir William Blackstone's Commentaries on the Law of England and Thomas Hobbes' Leviathan are as good an explanation of the old concept of liberty as any.

Inalienable rights were absolute freedoms necessary to protect us from government abuse. The US Constitution and English Bill of Rights Act 1689 are based on this principle. Absolute rights were eroded over time, but claiming that civil liberties are rooted in a balance of competing rights is anachronistic in the extreme.

 

[detective-boy]

http://www.law.northwestern.edu/journals/jihr/v2/3/ <--- Sir John Baker (lectures on Law Tripos, Part 1B, Mondays if you want to be exact) touching on some of the historical issues I have.

Sir Sydney Kentridge, QC, adresses the Euro convention's idea of rights, and, although he also goes in for the balance argument on some subjects, quotes (approvingly) Lord Hope of Craighead: "The right to a fair trial is absolute in its terms and the public interest can never be invoked to deny that right to anybody under any circumstances."

David Pannick, QC, is closer to your position than mine (he accepts some sort of control order as a legitimate option) but does neatly explain an absolute right that has survived into the Euro Convention: "Article 3 is an absolute prohibition of torture, and involves no balancing of interests." (my italics) Times

Shami Chakrabarti's comments about liberty and security not being mutually exclusive are perfectly right ... and entirely irrelevant to the point we are supposed to be discussing.

The John Baker article is a fascinating history lesson ... but I fail to see how you cliam it adds any weight to your argument that there is no balance.

And the rest is ENTIRELY consistent with there being a balance to be struck by the State between the negative obligation it has to one citizen with the positive obligation it has to another. You seem to think that Lord Hope's comments about the "absolute" right to a fair trial, and David Pannick's comments about the prohibition of torture being "absolute" give some support to your argument. They do not. You are merely demonstrating your ignorance of the law yet again. "Absolute" rights are those which can only be breached by the State in specificially defined circumstances (e.g. the Right to Life is an absolute right - can only be breached in self-defence, defence of other etc. as listed in the actual article). The other type are "qualified" rights which can be breached in more general circumstances (e.g. the Right to Privacy is a qualified right - can be breached to the extent necessary in a democratic society to preserve national security, prevent crime and several other reasons). One of the qualifiers is "for the protection of the rights and freedoms of others". See Article 8(2) for instance:

http://www.opsi.gov.uk/acts/acts1998/80042--d.htm#sch1

You seem to think I am saying that there is balance between the rights of an individual and the rights of the state[/i]. I am not. The State must not interfere with the rights of the individual other than as allowed by the specific or general exceptions.

The balance has to be struck where the State is interfering with one citizens rights to protect the rights of another citizen. That can ONLY be achieved by balancing the relative impacts.

I am afraid you are simply wrong if you continue to assert that there is no balancing process.

 

[Azrael]

The John Baker article is a fascinating history lesson ... but I fail to see how you cliam it adds any weight to your argument that there is no balance.

Rights did not originate out this balance idea, which is very, very recent. Article was background.

You seem to think that Lord Hope's comments about the "absolute" right to a fair trial, and David Pannick's comments about the prohibition of torture being "absolute" give some support to your argument. They do not. You are merely demonstrating your ignorance of the law yet again. "Absolute" rights are those which can only be breached by the State in specificially defined circumstances (e.g. the Right to Life is an absolute right - can only be breached in self-defence, defence of other etc. as listed in the actual article).

Someone who conflates being a threat with making a threat, defines "beyond reasonable doubt" as "85% certain", and who appeared completely unaware of the distinction between negative and positive liberty is hardly in a position to talk about legal ignorance.

But I digress. Slightly.

Absolute rights are rights that can't be breached. End of. The "right to life" is not an "absolute right" under the convention. ("No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.") The torture ban is. ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment.") That's why the government's got itself in such trouble with this issue.

Not what I "seem to think", what the Euro court stated. Unequivocally.

"[T]he Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation.4"

You seem to think I am saying that there is balance between the rights of an individual and the rights of the state[/i]. I am not. The State must not interfere with the rights of the individual other than as allowed by the specific or general exceptions.

The balance has to be struck where the State is interfering with one citizens rights to protect the rights of another citizen. That can ONLY be achieved by balancing the relative impacts.

I am afraid you are simply wrong if you continue to assert that there is no balancing process.

Competing rights are badly defined rights. This just demonstrates the horrible muddle we've ended up in. The fundamental rights of due process did not originate from "balancing the relative impacts"; they originated out of a desire for cast-iron principles the state had to meet before it could take liberty. Read the US constitution or English Bill of Rights Act. Your "competing rights" idea is alien to them. It was all about restricting the state.

Defining rights by balance is dangerous beyond the telling of it. We can do just about anything if "the balance" decrees it. The line in the sand is constantly shifting. Moral absolutes are non-existent. It's a greater threat than a legion of Islamist murderers.

But going with your "balancing process" for a second. The government has yet to show any solid evidence. As far as we've seen, it has nothing against the men. Nothing at all. They weren't even interviewed before they were carted off to Belmarsh. Several QCs resigned from the "special appeals" process in disgust at the non-existed standard of evidence. You're arguing we should have our movements restricted indefinitely on no more evidence than is needed to round up drunks.

To sum up your case: We should trust the state to take liberty, in secret, in a way you admit only "reduces the risk" from a genuine terrorist. Your only evidence is the claims of ministers.

Balanced it isn't.

 

[DexterTCN]

I think the problem is this: An independent third party needs to (a) verify the conclusions (b) make sure that everything is done in good faith.

And not a politician, obviously.

 

[detective-boy]

Absolute rights are rights that can't be breached. <snip>

Human Rights used to be discussed in two categories - absolute and qualified. The first definition was difficult for the non-lawyer because if seemed illogical when using the usual (as opposed to legally defined) meaning of the word "absolute" because, as with the right to life, there were some circumstances in which it could lawfully be breached by the State.

For that reason, "absolute" are now sometimes described as being split into two categories - "absolute" (no exceptions allowed - e.g. torture) and "limited" (some, limited, exceptions allowed - e.g. life, liberty). The second category - "qualified" has remained the same - rights which can be breached in general (as opposed to specific circumstances). But "limited" rights are NOT "qualified rights".

http://www.dca.gov.uk/peoples-rights/human-rights/pdf/act-studyguide.pdf See para 3.9

The guide also refers to the balancing process (e.g. in para 3.8) which you claim does not exist. It does. You have failed to explain how the breach of a qualified to safeguard the rights of another citizen could possibly be achieved without such a balancing process.

Again you seem to have the wrong end of the stick - I am NOT saying you can breach the right to liberty for this purpose. I am saying that Control Orders may not necessarily amount to a breach of the right to liberty - they may well be breaches of right to privacy / freedom of expression / freedom of association, all of which are qualified rights and ARE subject to the balancing process.

 

[detective-boy]

To sum up your case: We should trust the state to take liberty, in secret, in a way you admit only "reduces the risk" from a genuine terrorist. Your only evidence is the claims of ministers.

Absolute, total, complete and utter bollocks which bears absolutely no relation to my view, my argument or my posts.

I am not going to waste any more time "debating" with someone who is capable of such deliberate and malicious misrepresentation.

 

[Azrael]

" To sum up your case: We should trust the state to take liberty, in secret, in a way you admit only "reduces the risk" from a genuine terrorist. Your only evidence is the claims of ministers." (me)

Absolute, total, complete and utter bollocks which bears absolutely no relation to my view, my argument or my posts.

I am not going to waste any more time "debating" with someone who is capable of such deliberate and malicious misrepresentation.

If it is a misrepresentation, I promise you there's nothing "deliberate and malicious" about it.

I thought the poster who called you the anti-conspiraloon was going too far -- until now. I've spent a lot of this thread correcting your own multiple misrepresentations of my views without inferring sinister motives. If you choose to see things that were never intended, well, it's your prerogative, but it says a damn sight more about you than it does me.

Again you seem to have the wrong end of the stick - I am NOT saying you can breach the right to liberty for this purpose. I am saying that Control Orders may not necessarily amount to a breach of the right to liberty - they may well be breaches of right to privacy / freedom of expression / freedom of association, all of which are qualified rights and ARE subject to the balancing process.

Let's clear some more things up while we're at it. I'm well aware control orders might not breach the Human Rights Act and the European Convention on Human Rights. I've previously attacked its limited definition of liberty in this very case. And far from denying a balancing process exists, the entire thrust of arguments is that it does where it shouldn't.

What I have been saying is that liberty, as its come to be defined, is woefully inadequate and completely abandons the historical roots of our justice system.

So fair to say you've misrepresented my views yet again. But please note: I'm not so paranoid as to accuse you of doing it deliberately and maliciously. Unless you have a reply that goes beyond variations of "complete bollocks", your own feelings towards this thread are more than mutual.