The Bloody Asides - Lawyers? Judges? Who needs them?
We do if we are to defend our hard won constitutional rights against attack by politicians, foreign Governments, the traffic police and Her Majesty’s Revenue and Customs.
A cursory read of the newspapers will tell you, whatever ill is being examined at the time, “the Problem” is fat-cat lawyers and/or the Human Rights Act. The weird part is just how many people buy all of this without further question.
The history of practitioners in law is not entirely noble, and as the rule of law has been so wantonly prostituted by politicians, praising lawyers can be a bit of a hard sell. Lawyers, however, can lay claim to some of the credit for the “great” in Great Britain and we should recognise this.
Without our participation there would have been no Magna Carta, the Reformation would have stalled, Charles I would have escaped trial, there would have been no Bill of Rights, and no Convention on Human Rights - which, by the way, was drafted by British lawyers.
Furthermore, we owe much of the development of our modern criminal law to an independent - not to say fearless - group of 19th and 20th Century barristers. My worry is that the 21st Century will be notable for a marked decline in the rights these lawyers so fiercely fought for. You doubt this? Read on.
The use of fixed penalties has mushroomed to cover everything from possession of drugs (probably not altogether a bad thing) to polluting the environment (almost certainly a very bad thing). Why the proliferation? Fixed penalties are a nice little earner and to challenge them is expensive, certainly too expensive for most businesses to bother with.
Her Majesty’s Revenue and Customs are about to be granted the powers to raid bank accounts and grab any monies in dispute if you happen to be arguing with them about a tax assessment. We all know that these powers are very unlikely to be used in pursuit of those who can afford accountants and lawyers, but are far more likely to be used against some hapless sole trading plumber in Standish or a struggling takeaway owner in Nottingham. HMRC are beginning to make Charles I look a bit amateur and poor John Hampden must be spinning in his grave.
And what about Abu Qatada? We know, because we read it in a newspaper, that Abu Qatada is a very bad person with a history of very serious badness. Despite his badness, this cunning man was not guilty of any crime in Britain. He was, however, allegedly involved in a lot of badness in Jordan. Thanks to that hateful Human Rights Act, we were unable to get rid of him. Some very senior judges (pause here for booing) ruled that Abu Qatada’s deportation to Jordan would be in violation of Article 6 of the European Convention on Human Rights, for there was a very real risk that in Jordan evidence offered at his trial might have been obtained by torture of the witnesses.
As the judge at the original hearing put it –
“no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.”
A right to a fair trial? Abu Qatada? The very idea! Just because the Convention says that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”, that surely doesn’t apply to allegedly very bad people with a history of very serious badness, alleged or otherwise.
Of course the European Convention on Human Rights also contains the dreadful heresy that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. It gets worse! Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
As you can see it’s just a lot of liberal/leftie mumbo-jumbo and no sane democracy should have any truck with such nonsense. In the meantime, and of course very inconveniently, Abu Qatada has now been acquitted of all the charges we spent all that money trying to make sure he faced.
If we are to continue to call ourselves a civilised society, everyone, no matter how unattractive, has to be entitled to and receive a fair trial. In the face of years of government interference, our own system of justice is staggering under the weight of excessive regulation.
Despite the fact that Parliament seems determined to devote its best efforts to fettering the discretion of the judges, if it were not for the efforts of overworked District and Circuit Judges and a diminishing band of lawyers devoted to publicly funded advocacy, the whole system would have ground to a halt a long time ago. In the family courts it is doing exactly that now, grinding to a depressing halt because no one is represented, largely because there is no legal aid available.
Lawyers, of course, don’t pass the laws. The politicians do, and the fact that these laws have to comply with certain fundamental requirements (the right to a fair trial being one of them) seems to be regarded by the law making politicians as an unnecessary inconvenience. The European Convention on Human Rights dates back to the immediate aftermath of the Second World War. It is not an invention of Brussels bureaucrats; it is a response to the Universal Declaration of Human Rights adopted by the United Nations in December 1948,
“[It] was the result of the experience of the Second World War. With the end of that war, and the creation of the United Nations, the international community vowed never again to allow atrocities like those of that conflict, to happen again. World leaders decided to complement the UN Charter with a road map to guarantee the rights of every individual everywhere”. (http://www.un.org/en/documents/udhr/history.shtml)
The presumption of innocence was recognised as a rule of evidence as far back as the 6th Century, but up until the late 17th/early 18th Century torture of criminal suspects was commonplace throughout Europe. The lesson of history is that this stuff really matters, but apparently not to some governments including our own. Our government has recently been engaged in trying to save their red faces having, allegedly, allowed the Americans to use Diego Garcia - part of the British Indian Ocean Territories - as a stopping off point in their “rendition” of suspected terrorists.
I put the term “rendition” in quotation marks because it is nothing more than a ghastly euphemism for arresting someone without any due process or representation and removing them against their will to a place where they can be water boarded, privately, without unnecessary inconveniences such as, oh I don’t know, a habeas corpus application? Lawyers! Who needs them? I think I may need to go and lie down.
The Bloody Asides is an occasional column written by Tim Randles associate director at Penningtons Manches LLP. Tim's specialism is employment disputes, especially those involving serious misconduct, negligence and fraud. Tim also handles regulatory criminal cases including health and safety and environmental issues. Tim is a regular speaker at conferences and provides expert commentary for specialist publications, television and radio.
The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of The Information Daily, its parent company or any associated businesses.
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