to the Home Office
genuflexion to the
Kelvin Mackenzie Tendency
Once again the instant response of Her Majesty’s Ministers when faced with a judgement of the House of Lords which strikes at the creeping oppression being introduced into our system of criminal trials is a rapid flexing of the knees, followed by a threat to ‘legislate immediately’ to cure the problem. Being an ill-considered move they will act in haste only to repent at leisure.
Our whiny, erstwhile dope-smoking Home Secretary, Jacqui Smith, who thinks she knows a populist measure when see sees it, has rushed to promise that Parliament will be invited to rectify the situation concerning the use of anonymous witnesses, the law pertaining to which was roundly affirmed by the House of Lords in R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))  UKHL 36, almost before the ink from their Lordships’ pens is dry.
Plainly this is a woman who has a Canute-like belief in her own survivability. Terrified of the sort of excoriation that the likes of The Sun, The Daily Mail, Kelvin Mackenzie, Uncle Tom Cobley and all might visit upon her and the sinking Government of which she is a member, she has opened her mouth well before her civil servants and legal advisers will have had time to distil the essence of the judgement into a form readily comprehensible by second-hand comprehensive school teachers.
It was recently mooted by some particularly deranged member of the MSM that Jacqui Smith is a possible replacement for Gordon Brown. She had this put to her, I recall, on one of the Sunday political programmes upon which she visibly and rapidly self-inflated to an alarming degree. That this particularly second-rate individual, who has been over-promoted to one of the great Offices of State for what one strongly suspects are reasons of political correctness, might be advanced as a potential incumbent of Ten Downing Street is testimony merely to the desertification of talent that has taken place in the present Labour Cabinet. Those who continue to believe this tosh have obviously forgotten that she is MP for Redditch where she has a majority of 2716 over the Tories and will be one of the earliest to drown in the blue tide which looks set to engulf Labour whenever the election might be.
Were Gordon Brown to be hustled to the windows of Number Ten Downing Street and defenestrated by his Cabinet colleagues one morning, even the dimbos in the ranks of The Ovine & Bovine might think it a bad idea to choose as their next leader a woman who, having been in Parliament for all of ten years, will be one of the first of ‘Blair’s Babes’ to be sent packing to the oblivion of unemployability that awaits all such second-raters when the Blue Tsunami sweeps over the parapet of Parliament, circa June 2010.
But I digress.
The proposal to legislate forthwith to cure the problem raised by R v Davis is just what one would expect of this administration: Ill thought-out, hasty and doomed to failure.
Why so?, I hear you ask. Surely Parliament may legislate as it pleases?
Since 1972 we have become used, inured even, to the ability of Parliament to legislate as it pleases being restricted. Most of that restriction lies in the fact that successive and utterly supine Governments of hues red and blue have handed over that ability to unelected foreigners in Brussels. But some of the problem goes back even longer: to the signing in 1950 of the European Convention on Human Rights.
In force since our ratification of that Convention, it has taken on much greater immediacy in our law since the passing of the Human Rights Act 1998 which incorporated the Convention into English law directly.
The judgement in R v Davis provides substantial planks for the rule which undoubtedly subsists both in the Common Law and in the jurisprudence of the European Court of Human Rights: that rule is “that no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses”. (per Lord Bingham of Cornhill).
Lord Bingham sets out in extenso the origins and development over many hundreds of years of that rule in the common law and Lord Mance sets out the development of the rule in Strasbourg jurisprudence.
Therein lies the problem. Parliament can legislate all it wants (for the moment) to vary the common law. But unless and until the UK (a) repeals the 1998 Act and (b) withdraws from The European Convention on Human Rights, the rule will remain in effect and any conviction which is based solely or decisively on the evidence of anonymous witnesses is likely to fall foul of a challenge to Strasbourg.
There has been talk that the Conservatives will seek to replace the ECHR with a new British Bill of Rights. One notes with interest that a Google search of the Conservative Party’s website throws up but three references to this policy, the most significant being Cameron’s pledge of 2006 to effect this. Since then little has been heard of this potentially ‘flagship’ policy.
The reason for that may well be obvious. Whilst the idea of such a Bill of Rights is undoubtedly attractive, one wonders if any Government really has the courage to withdraw from the Convention, given the sort of message that such would send about Britain’s attitude towards human rights, rightly or wrongly. That perhaps explains why little more has been heard of this idea from the Tories since August 2006.
But there is another problem: it may well be that withdrawing from the European Convention has little practical effect now that the growth of a huge body of international criminal law and human rights law has been established by the ad hoc International Tribunals, the Rome Statute of the International Criminal Court and the ICC’s jurisprudence which, it may be argued, has placed the rights guaranteed by the ECHR into the realm of being part of customary international law and that such rights are now ‘internationally accepted human rights’.
victim of an egregious
injustice at the hands of
an anonymous witness,
though rightly convicted
of other grave crimes
Lord Mance reviewed the jurisprudence of the Yugoslavia Tribunal (ICTY) in his judgement. He cited the case of Prosecutor v Tadić (IT-94-1) in which the very obvious dangers of allowing anonymous witnesses to testify was starkly revealed:
during the trial in Tadić the identity of one of the anonymous witnesses was eventually discovered by the defence. The witness had asserted that he had seen Mr Tadić execute 30 males including the witness’s own father. After managing to identify the witness, the defence were able to produce his father, still alive, and only then did the witness admit that he had been trained by Bosnian Government authorities to give his evidence against Mr Tadić.
This, surely, points out all too clearly how grave and avoidable injustice was nearly done and which will inevitably occur here if we allow ourselves to abandon any pretence to fair trials, which is what will happen if we abandon our adherence to the standards that, as Lord Bingham sets out in his judgement, took many hundreds of years to develop and set English law up as a shining beacon of light in a sea of State oppression.