Justice Equals More Convictions 11


Brown is attempting to establish his hard man credentials by trailing the next bunch of anti-terror laws. The most publicity has been given to the proposal that wiretaps should be available as evidence in court.

I have always favoured this, provided the wiretap is legal; and not just in terrorism cases. I blogged recently that I had never understood the government’s objection, but suspected it was because they did not want juries to be exposed to the extremely tenuous interpretations which the security services often put on communications ‘ which I have personally seen on the inside.

After I posted this, I met with a friend, still in the senior civil service, who filled me in on a fuller picture. I now realise, which I did not at the time, that he or she was telling me this because a move was imminent.

The concern is that intercept evidence might be more helpful to the defence than the prosecution. Where communication intercepts are used, as in the USA, the laws of evidence are that the prosecution must make complete disclosure of all the wiretaps made. The defence can then search this for evidence that points to innocence.

Compare this to the situation that operates with control orders, or indefinite house arrest without trial. Here the prosecution just feeds to the judge (no jury) an isolated snippet of information from ‘intelligence’, reflecting not a whole picture but just the security services’ interpretation. Judges tend to be impressed by this ‘Top Secret’ stuff.

To let the defence at raw intercepts threatens the intelligence services’ greatest lever of power ‘ their monopoly of interpretation of raw data. Even Ministers, or Ambassadors as I was, don’t get the raw data, but a ‘Report’ summarising, interpreting and selectively quoting.

So the proposal being considered by the Home Office is this ‘ that the defence should not be allowed access to all the material from wiretaps of the accused. The prosecution would have to disclose in full only the conversation, or conversations, being directly quoted from. The security services are prepared to go along with that, and the Home Office believe that the public demand for wiretap evidence to be admissible will drown out any protests from lawyers. We will be told the Security Services are not staffed to cope with fuller disclosure.

You read it here first. As my friend put it: “You see, in the minds of the Home Office, justice equals more convictions.”

The other point my friend flagged up was that some in the Home Office are arguing that the classification of many intercepts is such that they could not be available to juries. The demand to bring in intercept evidence might therefore be used to push the case for Diplock Courts in terrorist cases. I should be surprised if we see that kite flown at this stage; the government’s technique so far is to push back liberty by a series of hefty shoves. That is probably next year’s argument. But then I hadn’t realised my friend was warning me about something imminent on Wiretaps, so I could be wrong.

The other proposed Brown measure getting most attention is another call for ninety day internment without charge. But in many ways the most insidious proposal of all is the idea that you should still be subject to questioning after you have been charged.

This is a fundamental rebalancing of our legal system. It means that the police can charge you on spec, and then harass you for a confession when you are banged up in jail on remand and subject to extreme pressure, and all kinds of possibilities of physical abuse from fellow convicts -‘trusties’ working with the police. It removes a fundamental safeguard, that once charged the questioning takes place in open court before a jury. It is a huge change.

This proposal also completely obviates the whole ninety day detention question. At the moment, the police do not charge without a firm case, because then they can no longer question. If this new proposal goes through, then the police can just charge willy-nilly and hold the suspect for the usual remand of two or three years in terror cases.

Needless to say, the BBC and Sky have been able to find Lord Windbag Carlile, various ‘security experts’ and Gordon Brown himself to explain while all this is necessary. Even Simon Hughes turned up to pledge Lib Dem support for the right to question after charging. Obviously the whole country supports all this, as they have been unable to find anyone to argue against.


11 thoughts on “Justice Equals More Convictions

  • Randal

    "As my friend put it: "You see, in the minds of the Home Office, justice equals more convictions.""

    Your friend has, of course, hit the nail squarely on the head.

    And this is neither a new thing, nor something confined to the New Labour clique or to the anti-terrorism pretext. For decades now we have been told that justice requires us to increase the proportion of rape cases that result in convictions, for instance. Never mind that there seems little doubt there are an awful lot of false or wrongful accusations, nor that a wrongful conviction for rape is probably much worse for the victim than some forms of rape itself.

    In my opinion, we in the west are dealing with a generations long backlash against the liberal victory on criminal justice. As a culture, we have lost our intellectual grip on the insight that underlies the famous quote about it being better to let 10 guilty men go free than to wrongfully convict one innocent man.

    The broad popular acceptance of this insight was probably based upon a proper grasp of the importance of responsibility, and also upon a strong faith that recognises that we cannot right all wrongs in our material reality, and the atempt to do so will end in disaster, but that there will be an ultimate accounting – in other words, vengeance is not ours, but God's. Neither of those would seem to apply to our culture today.

    Is it therefore the decline of real Christianity (or as a minimum – Deism) within our intellectual elite that is at the root of the illiberal backlash? (And no, I am not a Christian. I was raised as a Buddhist and I have not converted to Christianity).

  • peacewisher

    I WAS brought up a Christian. And Jesus is still one of my my biggest inspirations.

    However, as Tony Benn recently put it, the Church contains some Christians, just as the Labour Party contain some socialists (!)

    Some in the church even tried to justify attacking Iraq on the basis that it would save lives. Since when has the invasion of a sovereign country saved lives!!!

    Tony Benn offers and interesting comparison – which of these group ARE currently the biggest hypocrites?

  • Randal

    It's a fair point, that many professed Christians are in no way to be considered Christian in their acual sources of inspiration. Certainly, I do not believe it is possible to be genuinely Christan and to support the invasion of Iraq, or torture of suspects.

    As for the Labour party, does it still have members who claim with a straight face to be socialists?

    Craig also draws attention to another, characteristically New Labour, facet of the latest proposals:

    "The other proposed Brown measure getting most attention is another call for ninety day internment without charge. But in many ways the most insidious proposal of all is the idea that you should still be subject to questioning after you have been charged."

    This method of using a high profile issue as cover for getting something worse through under the radar is standard government practice these days.

    Aren't we fortunate to live in a "democracy", eh?

  • peacewisher

    I'm confused about "democracy" these days, Randal.

    I'm not that old, but whenever in the recent past there has been unpopular and/or repressive legislation in the offing, processes happened in our society to get that legislation removed, or at least neutered.

    I assumed that those processes were part of democracy – of politicians eventually listening to the public, and accepting they had got it wrong.

    Now, something has happened that makes sure that the public no longer have a say, no matter how much they complain. I rather fear that the "something" was the run up to the illegal, immoral, and unjust war with Iraq. If "they" could get away with an old fashioned Imperialistic war that 80% of the public was opposed to (figures in the Summer of 2002), they could get away with anything.

    I guess they figured that the unions' power had been taken away by Thatcher's legislation, and they could "try it on", as an experiment. If the experiment was failing, they could always pull out – indeed, if I remember correctly Donald Rumsfeld offered them a way out.

    However, by then, Blair (or his advisers) obviously felt he was in a strong enough position to do as he liked. They were right. No more demonstrations were even PLANNED by STW before war broke out, and of course then it would be too late.

    So now they think they can get away with anything. The opposition party seem to be of like mind, so no good looking to an election for a way out.

    It will take a peoples' rebellion to make them think again. Wasn't there one in the 1930s, regarding proposed legislation restricting roaming in the countryside.

    As we still have the right to roam, That must have been effective! But are people nowadays sufficiently motivated?

  • Alien

    Peacewisher, democracy now is practiced only every few years, at the time of elections. We practice our right to democratically choose people who will eventually abolish democracy for the following years in favor of a miniature form of limited debates guided by anything other than the interests of the people who chose them! There must be some way the public can have a real say about whatever is decided "on their behalf".

  • quasimodomouse

    Randal,

    "…nor that a wrongful conviction for rape is probably much worse for the victim than some forms of rape itself."

    This is off topic somewhat but I find this statement difficult to let pass without comment. False accusations get far more press than actual reported rapes. Leaving out the epidemic of unreported rapes, there is a tendency to hype false accusation cases and hold them up as proof that (primarily) White Anglo Males are under siege and victims. Your unsupported statement undermines the main thrust of your argument which we agree on, that convictions don't equal justice.

    As Robert Anton Wilson put it, Convictions make Convicts. Of course he meant that "personal convictions" are rigid and make one a prisoner of one's own unadaptable mindset.

  • Randal

    "It will take a peoples' rebellion to make them think again. Wasn't there one in the 1930s, regarding proposed legislation restricting roaming in the countryside. "

    As you suggest, peacewisher, I suspect people these days are not sufficiently motivated to resist the slide (further) into authoritarianism.

    But I'm a notorious pessimist, so who knows…

  • Randal

    "This is off topic somewhat"

    "False accusations get far more press than actual reported rapes. Leaving out the epidemic of unreported rapes, there is a tendency to hype false accusation cases and hold them up as proof that (primarily) White Anglo Males are under siege and victims."

    As you suggest, quasi, this would take us into controversial and hugely off topic areas if we were to debate these points, so I will merely note that we probably differ sharply on both the facts and their consequences.

    However, do you really dispute the specifics of the part of what I said that you quoted, namely that "a wrongful conviction for rape is probably much worse for the victim than some forms of rape itself"? Rape (especially if you use the modern literal definition to include any and all non-consensual sex) can vary from the utterly horrific to the relatively trivial. I don't doubt that the experience of being wrongfully convicted for such a heinous crime, imprisoned, and thereby often losing almost everything you have built up in your life to date – career, reputation, family, etc – falls somewhere within that range. Do you?

    I'm happy to accept that there can be legitimate disagreement on the actual prevalence of false complaints – such issues are by definition often based upon one party's word against the other's. This thread is probably not the place to debate that question.

  • Craig

    Mmmm. I think being raped must be appalling, and being wrongly convicted as a rapist must be appalling. I don't see much point in wondering which is worse.

    False accusation must be horrible too, but not quite so horrible if you do get acquitted.

  • Randal

    "Mmmm. I think being raped must be appalling, and being wrongly convicted as a rapist must be appalling. I don't see much point in wondering which is worse."

    The point is not, obviously, to downplay the seriousness of being raped, but rather to highlight the horrific consequences of a wrongful conviction.

    The reason for doing so is that we are constantly told that the low percentage of rape convictions means that we must tilt the rules to make convictions more likely. Tilting the rules means more innocent people wrongfully convicted, as the rules are designed to prevent wrongful convictions, on the basis that it is better to let a few of the guilty go free if by doing so we can avoid a wrongful conviction.

    People have a tendency, I think, to under-rate the real horror of a wrongful conviction, as compared to being raped.

    "False accusation must be horrible too, but not quite so horrible if you do get acquitted"

    Indeed, although it seems that a lot of the damage has already been done if, for instance, you were a teacher.

  • KAYSTELLA

    Hello everyone,

    This is in support of all the falsely accused and wrongly convicted.

    Please could you sign my petition to parliament by using the link below, if you agree with the content. If you could also forward the link to as many people as possible it would be greatly appreciated.

    I feel the law needs to be changed to help the falsely accused and wrongfully convicted who have committed no crimes but are serving indefinite sentences nonetheless. At least 200 signatures are required for the government to take notice of my petition. There are 184 signatures to date but the more the better. Since the introduction of the indeterminate sentence for public protection in 2005 it's possible for a person to be detained for up to 99 years if they do not address their offending behaviour. What hope then if you are an innocent person wrongly convicted!? How can anyone be expected to feel remorse and guilt for crimes that never happened? This outrageous sentence must be scrapped as it is adding to the already overcrowded prison system and is placing many innocent people in a bureaucratic limbo from which there is no escape.
    http://petitions.pm.gov.uk/OUTRAGEOUS/

    Many thanks

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