Yes

This is nuts. The role of the law is to promote the wellbeing of citizens, not to threaten it. Something has gone badly wrong when judges decide that it is more important to preserve the legal principle that everyone accused of a crime should have full access to the evidence against them than it is to prevent a major terrorist attack. Can anyone seriously maintain that stopping mass murder is less important than violating that legal principle?

I can and do maintain that the legal principle is more important than the stopping of mass murder.

I\’ll not use weasel words in doing so either. I don\’t mean only in cases where some bearded fanatic is actually found actively pulling on the bomb vest. I\’m not talking about the analogy that people use about torture, the ticking bomb.

But plain and simple, must people be tried fairly, with the evidence against them presented so that they can argue against it, whatever they are accused of, whether it be to ricin the entire water supply of London, fiddle with kiddies or cough up the supposed proceeds of a life of crime?

Must that fair trial include all of the historic twiddles that the modern world so derides? Habeas corpus, the presumption of innocence, the right to silence, the revelation of evidence, the right to question accusers and witnesses……?

Yes, it must. For the alternative, the dropping of any of those barriers painfully (if not by design, rather through a combination of whimsy and hard won experience) built over the centuries, is a system in which any one of us can be put away, stripped of our property, our freedom, our very liberty to be at large in this country, simply by the powers that be declaring that we\’re a bad \’un.

It would be a world in which Harriet Harman, Peter Mandelson, Jack Straw, Geoff Hoon, please do add your horror list here, would be able to shuffle whoever they liked off into a twilight world of near non-existence.

And the terrors of that are a great deal worse than a tube train or three blown up of a morning. I realise that those blown up, those who lost those blown up, might not agree, but that is indeed my argument.

There is a tension between the physical safety of some fraction of us, those who might be killed or maimed by those that a just system does not jail or restrain, even if they are bad \’uns but we cannot prove it, and the liberty and freedom of us all. And in weighing that balance the liberty of 60 million outweighs the corporeal beings of 50 people.

Harsh calculation no doubt. One that can indeed be argued with, possibly even derided.

But think of it another way. Giving our Lords and Masters the powers to lock away anyone they desire, anyone they think not conducive to public order. Well, look around the world at societies which have done that, which have abandoned the law and justice in this matter.  Doesn\’t it lead to more death and disaster over time than the terrorist terrors that we have been subjected to?

13 comments on “Yes

  1. Always pertinent is this, from “A Man For All Seasons”

    “This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! “

  2. Amen. presumably those who think that maintenance of the rule of law is not worth anyone’s death also feel that Europe should have simply surrendered to Hitler- or maybe Stalin (with a very large saving of life- at least initially).

  3. Habeas corpus was introduced at a time when one person with a suitcase bomb did not exist, but inside a decade he might, at which point blogger arguments about principles get immolated by reality.
    But since you’re so hot on principles, does your principle extend beyond the deaths of 150 people in three tube trains to 150,000 or 1.5 billion? Would you accept the loss of the entire human race to extend every legal protection to everyone? The answer to this must be ‘no’ so where would you draw your line?

  4. Agreed, in principle, but all such analyses ineluctably run into the Sorites Paradox. How many grains of wheat is a heap? We can plausibly, all of us, agree that a million grains of wheat is a heap. We can equally agree that a single grain of wheat is not a heap. Now subtract a grain from the first, and add a grain to the last. At what point does the former cease to be a heap? At what point does the latter become a heap? Crucially, if we can decide numbers, are they the same in both cases?

    We agree that allowing ten guilty men to go free is preferable to incarcerating an innocent. But it would be a commonplace to observe that letting ten million guilty men go free to avoid jailing an innocent is not indicative of a just but a broken judicial system.

    And what about the ‘Rogue Male’ scenario? What if, in 1934 say, one had the opportunity to kill Hitler? Should one have taken it, despite the fact that all his depredations lay as yet unrealised? Ah, but you say, that is arguing from a privileged position of knowledge: that of hindsight. Yet in pursuing many of the Jihadist malefactors, our security services are often in a position of privileged information that is not applicable in a judicial setting. Where do we draw (or re-draw) the line? At this point, many feel it apposite to quote Benjamin Franklin: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” But note the qualifications: essential liberty. Temporary safety.

    Adopting the die-hard position that this is liberty, here I make my stand is certainly a defensible premise, but it has to be acknowledged that there is room for argument that the nature of the threat makes such an absolutist position untenable.

  5. “Can anyone seriously maintain that stopping mass murder is less important than violating that legal principle?”

    Strawman? There is no proof the people concerned have actively attempted to commit mass murder, fund mass murder or solicit mass murder. If there were they should be put on trial properly.

    We are either innocent until proven guilty or not. If there is proof enough for the State to want to detain people without trial there is enough proof for a trial. Locking people up without knowing the charges and evidence against them is to admit defeat – either the security services aren’t doing their job* or the State is saying ‘We’ve allowed a massive problem to develop without allocating the appropriate resources to the security services’. Either way you cut it this situation does not justify secret control orders which are detention without trial. Nor does it justify surveillance without warrants under RIPA or warrentless mass surveillance of the population through internet monitoring, ID cards and what have you.

    You only have to look at the stop and search legislation that has been abused from day one to see what will happen. Rather than having a credible and specific threat prompting a Cheif Constable to authorise a temporary stop and search policy a number of Police forces kept reapplying for them so that it was continuous.

    * Which they seem to be doing well enough. There have been a few derailed plots where successful intelligence operations have proved crucial to securing convictions.

  6. “should have simply surrendered to Hitler- or maybe Stalin”: for the two years while they were allies it would have been very easy to surrender to both.

  7. David Gillies hits tangentially on an interesting point about evidence admissability. The most common defence of detention without trial I’ve heard is that the evidence proving guilt is inadmissable in court. Why should any evidence be inadmissable? We’re trusting the jury to make a decision about whether someone is guilty or innocent, so trust them to work out what evidence is relevant and what isn’t.

  8. The problem is, the people called “terrorists” currently are in an undefined category. If a person shoots you, he commits a criminal act under the law of the land and is arrested and has a right to a trial, and then a punishment decided by law.

    If he is a soldier fighting in an officially declared war, he hasn’t committed a crime. But he may be captured, detained indefinitely, with no right to trial or means to prove his innocence, and will not be in fact punished for shooting any number of people- his release will come at the whim of the government as a prisoner exchange, or when an armistice is declared or whatever.

    Terrorists are in neither category, and thus the legal system cannot actually cope with them, because it isn’t designed to. What needs thinking about here is definitions- of whether a terrorist attack, or plotting one, is a criminal offence or not, or an act of war, or some other thing.

  9. “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety”

    – Benjamin Franklyn

  10. “Can anyone seriously maintain that stopping mass murder is less important than violating that legal principle?”

    If you violate “that legal principle”, you will get no Law AND mass murder. Look at the states around the world without the just and universal rule of Law which we enjoy (or at least used to). Are these stable countries? Do their citizens live in peace and plenty? Of course not.

  11. “If you violate “that legal principle”, you will get no Law AND mass murder.”

    What Rob said. Further, the reason we insist on proof of guilt is that the alternative is actually worse – Lock up the wrong man and you’ve got TWO things wrong:
    – an innocent man is punished
    – the guilty man remains free.

    Insisting on proof of guilt reduces the chance that this will happen.

  12. Benjamin Franklin (to spell him correctly) was not the author of that quote, just its publisher – and note that he specified “essential liberty” and “a little temporary safety” rather than suggesting that there was no interplay between the two concepts at all, as some misinterpret him as saying.

    It ought to be pointed out that despite Tim Worstall’s feably attempted ad hominem against “Harriet Harman, Peter Mandelson, Jack Straw, Geoff Hoon” etc, all those named and indeed the entire British government adopt exactly the principle he outlines. The British government’s stance against the use of torture to extract evidence is absolute.

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