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Question/Comment
14 September:   Aspals comment on the employment case does make an interesting point about the applicability of article 6 rights to summary hearings. I seem to recall some time ago that there was a suggestion that these hearings can try serious offences but the soldier isn't allowed legal representation. How did anyone think that was Convention compliant?    Tess
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Theft and possession of drugs, are two of the serious offences that can be dealt with by the CO but, with permission from higher authority , he may also deal with the more serious offences of eg section 47 of the Offences against the Person Act 1861 (assault occasioning actual bodily harm), section 1 of the Prevention of Crime Act 1953 (possession in public place of offensive weapon), section 1 and section 11 of the Fraud Act 2006 (fraud, dishonestly obtaining services). It is of some concern that crimes of violence have victims and justice requires that the case is handled properly and transparently, with the victims interests taken into account upon conviction/finding of guilt. With no public right of access, no right for the accused to be legally represented, the fact that oral evidence is not always given and when it is, there is great scope for hearsay and prejudicial material to be introduced, and no right for the victim to be present during the proceedings (after he has given evidence), one begins to feel a little uneasy about the process from both the view point of the accused and the victim    Aspals
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14 September:   Briony makes the case for the defence. A balance has to be struck in cases like this. They do not fit the normal circumstances. Informants and covert operations should be protected from the scrutiny of ruthless men and the network of evildoers they associate with and are bankrolled by. Judges are not fools. If the closed evidence is not strong enough then they will see its weaknesses and chuck it out. I would guess that there's a bit more than just informant evidence which the prosecution relies on in cases like this. It does seem bonkers, though, that men are released when judges examine the evidence and say it's strong, but have to let dangerous people out of prison because the courts are bound by the decisions of the house of lords.   David
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14 September:   I can't agree with Briony. The courts have given more rights to suspected terrorrists than those suspects would give to us. Thanks to our liberal courts we are conceding our way of life, our culture, religion and even laws. If I wore a mask when I drove a car, I would be stopped by the police and questioned. Yet women are permitted to wear a costume that hides their identity and gives restricted vision. They create a danger to other road users. In fact, these outfits could hide a man. There's no real way of telling whose underneath them. Terrorists and criminlas can disguise themselves easily. If people want to come and live in this country, then they should accept our way of life. We need to be a bit more like France and Germany and stand up for our values. If we don't, there will be terrible consequences brought about by an apartheid in society which favours non-ethnic people. That must not happen for all our sakes. It will cause huge damage to society. People who do not want to integrate, and insist on wearing distinctive clothing to mark them out from the rest of use are really making a political statement that they reject our values. We have a right to take measures to protect ourselves from people like that and to ask what the hell they are doing here in that case. That's where human rights come to help them and to prevent anyone questioning their rejection of our society. Is it any wonder ordinary people are suspicious of people who don't want to make a conscious effort to integrate. In the meantime, the suspected terrorist has a special advocate to help him and look after his interests but the house of lords wants the police to reveal who grassed him up so that he can go out and kill them. Like people say, it's a mad world.    Will
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14 September: does anyone think these guys are not guilty except the juries who couldnt make there minds up in the face of pretty good evidence by the sound of thinkgs like the fact that they made jihad videos like the others who were convicted.   pete 
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12 September:   It is interesting that the DPP is going to try the acquitted terrorist defendants again. Clearly, he doesn't think the two juries have got it right by acquitting them. Third time lucky perhaps? Maybe these cases are just too difficult for juries. It any case it doesn't engender faith in the jury system.    Tess
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10 September:  To answer Will's comments, what concerns me is that there is no way of testing the veracity of evidence from informants when it is not even disclosed whether the evidence is actually from an informant or from surveillance etc. Only the special advocate has access to it, on behalf of the defence, and then he is not allowed to disclose it to the defendant. It's all a bit Kafkaesque. Perhaps the informant had a grudge against the defendant and so a motive for lying and trying to get him into trouble. Unless there is proper disclosure there is no method of challenging what might otherwise appear to be credible damning evidence.    Briony
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9 September:   Some while ago there was an interesting discussion on the Sounding Board between Major Antony Jack and a contributor named Ian, concerning the plight of those subjected to an internal disciplinary hearing and, more to the point, whether those proceedings constituted a determination of civil rights and obligations under article 6. Ian suggested that they did. I agreed. Aspals readers might find of value the recent case of Dr Kulkarni who was not allowed to have legal representation at a disciplinary hearing into an allegation that he had sexually touched a patient. On eventual appeal to the Court of Appeal, the court held that he was entitled to legal representation. The case is reported at http://www.bailii.org/ew/cases/EWCA/Civ/2009/789.html and may be of use to others who are refused legal assistance at hearings where their right to practice their livelihood is at stake. The court distinguished employment tribunal proceedings from disciplinary proceedings, which were regarded as of a different nature (§73). Of particular interest in the case was the fact that Dr Kulkarni was "facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job." Only proceedings before the General Medical Council can deprive a doctor of the right to practise. (§66) His counsel pointed out that if Dr Kulkarni were found guilty of the charge against him he would be unemployable as a doctor and would never complete his training. The court interpreted the applicable policy under Maintaining High Professional Standards (MHPS) as including among those who might represent the individual, legally qualified persons such as those from the Medical Protection Society, who are then allowed to act in their professional capacity. The important question was whether it is lawful for the employer to restrict the employee's rights of legal representation in the way that the court held them to be restricted under paragraph 22 of MHPS. The court referred to the case of In Le Compte v Belgium [1981] where it was held that Article 6 rights were not usually engaged in disciplinary proceedings but that they could be in some circumstances. What those circumstances might be was not explained. In the present case, it was held that the right to practise medicine was a civil right and article 6 was engaged. Where the effect of the proceedings could be far more serious than the loss of a specific job and could deprive the employee of the right to practise his or her profession, the article would be engaged (see §65). It was also held that, if the employer refuses to grant representation in a case which does engage Article 6, his refusal will be unlawful. It may be that an employer who receives such a request would be well advised to give it fair consideration and when doing so to bear in mind the possibility that a denial of full rights of representation might be held to be a breach of Article 6.
I should point out that there is no impediment to applicants before the Army Board being represented by lawyers. However, they do so at their own expense. The next question to be decided is whether the rights under article 6 are engaged before CO's summary disciplinary hearings where there is the potential for loss of liberty. It seems perverse, somehow, to say that the breach of a serious civil right would engage article 6 but the potential loss of liberty would not. It may be that the old authority of Albert v Belgium (1983) is now out of step. That case makes the proviso that some administrative and disciplinary decisions which do not engage article 6 do not necessarily taint or invalidate the further stages of decision-making consequent on that initial decision, provided either the jurisdictional organs themselves comply with the requirements of Article 6(1) or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1). That was always the argument used by MoD to support the accepted non-compliance of CO's orders by the relying on the soldier's right of appeal to the compliant Summary Appeal Court. But, those in the know about the manner of proceedings before COs will perhaps view with some scepticism the claim that soldiers freely waive their article 6 rights and agree to the CO determining the case. Try arguing that with the RSM and CO. There are remarkably few appeals to the SAC. From statistics provided to me by the Director SPA, covering all three services, of the 11,000 or so cases dealt with summarily during 2008, only 125 appeals were prosecuted before the SAC (114 Army and 11 RAF). Up to 17th July this year, only 73 such cases were prosecuted. So, either soldiers are ecstatically pleased with their CO's justice or they are dissuaded from appealing or electing trial by court-martial. As there is no right to legal representation, we shall not know the real reason. What I can say, though, is that there would be even fewer appeals were it not for the Reviewing Authority picking up procedural errors.    Aspals
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9 September:   Replying to Briony. I find it difficult to believe that the she would prefer to allow terrorists to see the names of informers and others who give evidence against them which would then allow them to go round and kill the informers, their families and friends, than have a system where the judge sees the evidence, the special advocate sees the evidence and the case proceeds on that basis and informers and covert surveillance methods are safe. And terrorists get locked up and taken out of circulation, therby making us safer. Seems a no brainer to me.    Will
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9 September: spare us the bleeding heart briony. cant see how releasing a dangerous terrorist can be regarded as sensible in anyones book. looks like the yanks may have had a similar idea with regard to rashid rauf the nutter in Pakistan who was allowed to escape and then probably wasted. saved a lot of money, time and breast beating by the holier than thou brigade. probably also saved us paying compensation for arresting him.    pete 
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9 September;  Complaints like those made by Will show a disrespect for the law and the idea that anyone accused of a crime should know the nature of the allegation against him and therefor be able to answer his accuser. This is a long established principle and is part of the concept of a fair trial. I find the thought of killing suspects as a measure of expediency quite horrible.    Briony
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9 September;  Interesting point that Will makes. Judges are sticking two fingers up to what the government wants over terrorism and refusing to uphold the control orders placed on terrorists. It looks as if Lord Neuberger agrees that the creation of a supreme court will increase the scope for further differences and that the court will be tempted to take on too much power to overturn the laws set by Parliament. I think he's right to say that the introduction of the Human Rights Act in 1998 has greatly increased the power of the courts to challenge laws passed by Parliament and that judges have used it to force changes to a string of laws, including those governing the deportation of terrorists and terror suspects. Like others say, this really shows how out of touch they are with society. It is quite scary that judges overturn the will of parliament which is made up of elected representatives who are answerable to their constituents. Who are these aloof judges answerable to? What sort of a future can our children expect when loony decisions are made that free dangerous terrorists and let them walk the streets again to involve themselves in more violence against us? I just wonder whose side the judges are on. It is madness beyond belief.    Thinners
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9 September;  The country continues its descent into madness as vividly described by Andreas with the latest news that Britain's most dangerous terrorist suspects are likely to be released from detention to avoid the disclosure of secret intelligence evidence. The law that is supposed to protect us seems hell bent on the opposite. This idiocy has all originated or so it would seem from the house of lords. It now looks like the security services will have to have the occasional negligent discharge when arresting these maniacs in future. That way our judges will not put law abiding citizens at risk by releasing terrorists back onto the streets where they are then free to endanger us all. Sometimes I think that they take human rights ideas to silly extremes. They are definintely out of touch with the man and woman on the street.    Will
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23 August:   The release of al-Megrahi the Lockerbie bomber is an understandable source of anger for the American families of those who died on that airplane. Compassion shown for him who was found guilty of murdering 270 people was more than the compassion shown for great train robber Ronnie Biggs who never killed anyone. It also makes it look as if UK is soft on terrorists. If the government wanted to show compassion, why didn't it expedite the appeal and let the court decide whether the evidence which he was originally convicted on has been undermined since sufficiently to introduce a doubt about that conviction. The way things have happened makes all those suspicions look more plausible about secret deals being done for oil and gas supplies.    Thinners
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11 August: brilliant. couldnt have put it better myself. just shows how loony this country is.   pete 
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10 August:   The hand wringing goes on in today's papers. They're full of it. Now let me see. Diary of a terrorist: "I am a terrorist so where is the best place to target. Oh, I know, it must be UK. After all, they've got human rights. So I can kill as many as I can and, if I'm caught, they can't be nasty to me, cos I've got human rights too (even though I'm not a British citizen and come form a country that isn't party to the European Convention on Human Rights), so all they can do is put me in jail and give me three meals a day, with all my legal and prisoner expenses paid for by the people I want to kill. And guess what, I've got human rights in jail too. And any person who's nasty to me, like those horrible secret service people, will be vilified by Parliament, Liberty, the press and the public. And I can take my case all the way to the European Court of Human Rights in Strasbourg, where foreign judges can decide whether UK is treating me (a foreigner too) fairly. I'm laughing all the way. The UK looks after terrorists very well. It's UK for us."
No wonder we are regarded as such a soft touch. We're completely stark raving mad and the liberal left is behind it, supporting the growing number of so-called human rights lawyers who earn loads of taxpayer cash exploiting our liberal laws on behalf of foreign terrorists. One news report even suggested that, if we knew that a terrorist was headed for another country that was known to torture people, we should not alert the authorities there that the individual was a terrorist. While you're trying to catch your breath at that foolish and dangerous idea, just imagine for a minute the situation the other way round. How on earth can we fight terrorism when people have such idiotic and idealistic beliefs? We need to show more resolve and understand that we are fighting evil people who have no wish to negotiate with us. They just want to impose their version of morality upon the rest of us. Now the liberals should think about that for a moment. What impact upon gay rights, women's rights, freedom of religion?    Andreas
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8 August:  The recent hand wringing over supposed British involvement in torture of terrorists rumbles on in the press and elsewhere. There is a surprising amount of hysteria being whipped up about this matter. There is no evidence of direct complicity by our agents in torture - not that I have read about, anyway. If there is, produce it and then we'll see some justification for the criticism. The most we have is that questions were fed by our agents to foreign intelligence agencies holding terrorist suspects who allege they were tortured. The purpose of those questions, presumably, was to elicit information about any threat to our national interests. That, as far as I can see, is the height of the allegation of being complicit in torture. There is no suggestion that, in asking questions, our agents employed torture against any captive terrorist. For any national intelligence agency to ignore the opportunity to ask questions of dangerous terrorist suspects would be the height of negligence. Those agencies are there to protect us. One can imagine the justifiable public furore if it were ever discovered in the aftermath of some terrorist atrocity being committed against us that it might have been prevented if the intelligence services had asked questions of a terrorist prisoner but failed to do so because there was a suspicion he might have been tortured.

What we do not know is whether the intelligence obtained by foreign agencies is in fact effective in preventing an attack. There is some evidence that it is. Two weeks ago the BBC's File on 4 programme reported that, according to Gary Berntsen, a CIA covert operator, it was a British officer whose de-brief of a prisoner in Afghanistan helped to prevent one of the first major terrorist attacks that was planned to follow 9/11. He said "the British did that by talking to prisoners, not interrogating them, but talking to them and interviewing them, and a very capable young man from your country was the person that was able to get someone to tell him that a major attack was coming, and where it was, and it was the Singapore attack."

What I fear in all of this band wagon climbing is that our intelligence services will be forced to take their eyes off the ball, with the result that we suffer some terrible attack. That does not mean torture should be condoned. But I think it would be the greatest folly not to ask questions of a captive dangerous terrorist held by an ally, or to ignore intelligence gathered by that ally from such interrogation that shows intent to harm our national interests, purely on the basis that the prisoner may have been tortured.   Anthony
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5 August:   Does anyone know what's happening in the Baha Mousa inquiry? After some initial press interest it's gone quiet.   Tess
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Nice to hear from you again Tess. The Inquiry does publish its proceedings on its website, which is very well set out and informative.    Aspals
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3 August: just shows you cant trust a thing the beeb say these days.   pete 
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2 August;  Aspals comment ot the news item about the two brothers retiring (BBC NEWS, Thursday, 23 July 2009) sounds mistaken. The report says that Ron went into the army air corps not the army prosecuting authority.    Will
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I would agree that the article is perhaps not as detailed as it should have been, but I am correct in the comment I made. As a retired officer, Ron served for many years, up to his retirement, with the APA in Germany, where he was much loved and respected. I wish him a happy retirement.   Aspals
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31 July:  It is rather refreshing that Mr Ainsworth has been as frank in his admission as he has. The disappointment is that it has all come a bit too late and after the MOD has made rather strange decisions in relation to soldiers' welfare. Perhaps it is all a ploy by civil servants to damage Labour even further, by showing them as heartless and incompetent (as if it needed any help in this respect). If so it is a rather cynical approach to take. However, you don't need to be a strategist to know that the forces need more personnel and equipment on the ground in Afghanistan. Our military leaders have contradicted just about every silly statement made by Gordon Brown to the contrary. But it is the PM's and Treasury's indifference to the suffering of our soldiers - men who they and their government placed in harm's way in full knowledge of the risks, but without providing the proper resources to get the job done - which is most disgraceful. And why has this come about? Simply because the government failed to listen to its military commanders. I would hazard a guess that they know a little bit more about how to run a military campaign than the White Hall chinless wonders and Labour ministers do. I wonder if Gordon Brown or Alastair Darling had their own sons or close family members fighting out there they would be quite so reluctant to spend money on the cause their government took us into.
On a separate note, today's ruling by the High Court, overturning yet another control order, is a reminder of the unfortunate ruling by the House of Lords which the court was obliged to follow. Fortunately, as a result of some rather fancy footwork by the Home Office, the suspect has been where he was before. And all of this is against the background that the judge saw the closed evidence and "stressed that he had not ruled that the secret evidence, which he had read, was in anyway unreliable".  This really highlights the differences between Intelligence Service mission and the way the criminal justice system operates, as influenced by Human Rights law. Intelligence work is aimed at protecting our society from those who wish to harm it. It focuses on the interests of the majority. The criminal law, on the other hand, and the Human Rights Act, focuses upon the rights of the individual. It seems pretty obvious why the Security Services should want to prevent the release of sensitive evidence against an individual, which shows that he is as bad as they say he is, to anyone other than a select few, as the defendant would most likely identify the source(s) who would then be in danger - not just for their own lives but also perhaps those of their family. That is why we have the Special Advocate procedure. However, the House of Lords, supposedly guided by the Human Rights Act, says that this is not good enough and that more evidence should be disclosed to these dangerous suspects. Their judgment, supposedly upholding values of freedom and justice in fact, has the potential to undermine those very ideas. It seems puzzling that someone who is assessed by the Security Services, on evidence seen by the judge, to be a serious threat to our security, should be turned loose because the danger he poses to us is so great that he cannot be shown where that evidence came from lest he or his cronies were then to kill them. So, the moral is: the more dangerous you are the more likely it is that you won't be prosecuted. All this in the name of the law! I guess one can imagine how long our Security Services would have the cooperation of informants if their identities were released to the very dangerous men they had helped to catch. Seems like a "no-brainer" really.   Anthony
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29 July: this goverments treatment of wounded soldiers beggars belief. just when you think their treatment of the squaddy has sunk to an all time low they prove that there is still more to go. if theyd provided the right equipment and force size in the forst place maybe there wouldnt have been so many wounded. if the company i work for treated its employees like the government does soldiers they would be prosecuted under h and s.   pete 
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26 July;  It's interesting that Anthony says the Daily Hate refused to publish his post. They also do it regularly to me. The best paper I've found for posting comments where a proper cross-section of views is allowed, is the Guardian or Telegraph.    Will
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23 July:   As the Daily Mail refused to publish this comment I will publish it here. There has been a lot said about the provision of helicopter support to our troops. The governement position stated today is that there are sufficient helicopters to task. If it were not so tragic it would actually be funny. Here we have Gordon Brown, never having spent a day in the Services or commanded men in battle, saying that there are sufficient helicopters to do the job in Afghanistan, and then we have experienced and seasoned military commanders, including General Dannatt and Sir Jock Stirrup, the Chief of the Defence Staff, saying we need more. Now, who should we believe?
It is gross negligence for this government, who made the political decision to send our boys to Afghanistan, to insist upon failing to equip them and man them sufficiently for the job, subsituting their amateur judgment for the judgments of seasoned professionals.    Anthony
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19 July:   Dear Sir/Madam
I am a serving soldier with very quick question. Are my wife and daughter subject to military law? Both are currently resident in the UK, and neither are serving, nor have served in the Armed Forces themselves.
Many thanks    ap
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To briefly answer your question, as they are not serving members of the military, your family is not subject to military law while in the United Kingdom. You, of course, are. Should they accompany you abroad on a posting, they would be.   Aspals
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17 July:   The Board has been a little quiet of late, so I thought to try and stimulate some discussion. I received the following item from the excellent Employment Law updater. It is an article saying "German judges rule that National Court should have final say on interpretation of EU law - German Federal Constitutional Court - 30/06/2009". It is particularly interesting that, in spite of being so overtly pro-European, German judges's are not prepared to kow-tow to European supra-national law in matters affecting "areas which shape the citizens' circumstances of life, in particular the private space of their own responsibility and of political and social security".
Is there a lesson here for our judges? I continue to argue that matters touching our national security are not for the ECtHR to determine. The problem, I fear, is that even a derogation from article 5 (Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition) will not be enough, as it leaves the door open to article 6 arguments of a fair trial (which some HR lawyers seem to think is a new ECHR concept and not one enshrined in English law well before the ECHR came into being) in spite of the special advocate procedure being one that has been "cleared" by the ECtHR. Our courts sometimes appear mesemerised by the ECtHR. One only hopes that the ECtHR will tread very carefully in these matters and not seek to interfere (for that, I suggest, is what would amount to) in matters of our security.    Anthony
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5 July;  Liek has been said, I don't deny Shami her freedom of expression but the rubbish she talked this time was straining that liberty, pardon my pun.   Will
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5 July (sent 4th):   IMs Chakracati is a very bright lawyer but it is a bit disappointing when she comes out with the sort of thing reported. It's almost like taking an anti government stance as a matter of principle without ever recognising that perhaps the government have genuine concerns that an individual is actually a danger. So I agree with Will that sometimes she would be better to say nothing.    Thinners
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5 July (sent 4th): just cos theres freedom of speech doesnt mean we have to listen to every bit of drivell people say.    pete 
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3 July:  Will, when you comment about Shami Chakrabati you might learn a thing or two from Evelyn Beatrice Hall (not Voltaire, by the way), who wrote "I disapprove of what you say, but I will defend to the death your right to say it." It is synonymous with freedom of speech, something enshrined in the ECHR.    Briony
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3 July: just when you thought it couldnt get any madder we get decisions like this one. what with cofe schools banning the cross but letting sikhs wear bangles at a christian school and anyone who speaks out about immigration being called racist for even mentioning, or criticising poofs marrying cos its aginst the bible and the church not condemning it, with the same church agreeis the muslim law should be ruling in uk, the place has gone completely mad. who would vote for cameron and his like. their no better.    pete 
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3 July;  I wonder if Ms Chakrabati would think about the decision in the same way if the closed evidence showed that this man was someone who had been recruited by Al Qaeda to carry out bombings in revenge for the decision of the French to ban the burqa? Her comment that courts have stood up for common decency while Parliament lags behind makes me wonder if she actually thinks that every person on a control order is wrongly suspected of terrorism. There are times when she should just shut it.    Will
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3 July:   The report today that a High Court judge had no choice but to revoke the the government's exile order against a man accused of being "a prominent member of a network of Islamist extremists" because of the recent House of Lordsruling that terror suspects subject to control orders must be given a good sense of the allegations against them is a good example of the mess the law is in. The judge was reported as saying "On the basis of the closed material, I would have decided that the decision was not flawed" and that had the law had allowed him to take into account "closed material" - evidence heard by him in secret - that would have led him to a different decision. At least the judge (Mr Justice Mitting) had the courage to speak out and let us know he felt uncomfortable about the HoL decision. It appears that the closed evidence justified the course the government wished to take. Is this a victory for justice and freedom or a victory for purist lawyers? Whither common sense in all of this?    Anthony
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29 Jun:   I suppose it is quite interesting that the security commission report from the Institute of Public Policy Research recognised that control orders and lengthy of pre-charge detention were sometimes necessary. I admit that I'm a bit uneasy about the non-disclosure of evidence to suspects, but I suppose there are extreme cases when it is necessary to keep the informaiton from them and only let their special lawyers see it. The trouble is that most people who comment on these things have the luxury of never having faced terrorim, so they can afford to stick to their high principles. It's when you deal with it day in and day out that your perception of reality changes and you might at that stage agre that control orders are a valuable tool.    Thinners
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26 June: the europeans have no right to stick their noses into our business. its typical of money grabbing human rights lawyers taking these cases which the taxpayer pays for to defend people who are out to kill us. dont our judges know about the london bombings. sharing intelligence or letting dangerous men know what information you ve got is not a clever thing to do. the point about ni is right on.    pete 
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26 June:   I agree that the HoL in Qatada did want rid of him, and I agree that the article 6 right to a fair trial was a concept well known to English law well before the Convention came into being. However, the ECHR is problematic, in my view, because that is the body of law which now governs us ultimately and, more importantly, creates the jurisdiction of a foreign court over our own. That court is staffed by non-UK judges (apart from one). While arguments over control orders and the relationship with the concept of a fair trial quite rightly should be decided by our courts, even though I think their reservations over control orders are a little too cautious bearing in mind the level of threat to our nation, it is a domestic decision made by our own courts. That is quite different to the situation with the ECtHR making decisions over our security. That is where their jurisdiction should be ousted. Domestic security is no business for the ECtHR.
To answer Briony, I am absolutely not advocating murder - I am naive enough to hope that we can live in peace together if we try, but that does not mean ignoring threats posed by those who wish to harm us. All I am saying is that a failure by the institutions of law and order in a country to deal with threats to its citizens can lead to the situation where people lack confidence in those institutions and feel the need for more extreme responses in order to protect themselves from perceived danger. To ignore that possibility is a bit of a gamble, to say the least. Most people I talk to are concerned genuinely about the terror threat and cannot understand why we have so many suspected terrorists and extremists living in this country. One person mentioned to me that government policies and political correctness had placed our entire way of life at risk and pointed out that the US has listed the UK as a nation that harbours some of the most dangerous terrorists - and I had thought that accolade lay with a country a little further east from here. [Added this evening: See the London Evening Standard and also The Scotsman articles].    Anthony
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26 June:  Is Anthony advocating murder of suspected terrorists. He referred to targetted killings so it looks like he is. Everyone has the right to a fair trial and to know the evidence agains them.    Briony
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25 Jun:   The House of Lords in the Qatada case was in favour of kicking him out of the country. They were not persuaded by the arguments he put forward. On the control order cases, I dont think the point that Anthony raises about the ECHR entirely fair. The question of whether a defendant gets a fair trial or not would be of concern to our judges, with or without the convention, and I can see where they are coming from when they express concerns about the way evidence is hidden from a defendant subject to a control order. The special advocate isn't allowed to discuss the closed evidence with him and take instructions, due to the sensitivity of the information, and worse still it makes it difficult for the defendant to answer. He might have an innocent explanation for it or might be able to supply an alibi. The trouble is he doesn't know what it is that the prosecution have on him, only that he's suspected of being a terrorist.    Pegasus
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23 June:   I agree with Roger that judges should apply the law dispassionately, but with common sense and sensitivity to the community in which they live and work. The law does not exist in a vaccuum, but is there to serve the community. We all know of the presence of serious threats to the lives of the people of this country by those whom the security services have identified. Human Rights lawyers exploit the fact that the really damning evidence against their clients cannot be released to them as it is so sensitive, so this in turn leads to the appointment of a Special Advocate, a procedure which they challenge. But inspite of this procedure, - which the ECtHR has approved of (see Lord Hoffman's dicta) - the House of Lords goes wobbly at the knees. What the courts seem to do is precisely what Roger suggests, applied the law in an academic vacuum, without taking into account the dangers to society presented by these people. I would reiterate that for those from non ECHR Convention countries who pose a threat to us, the ECHR should not be applicable. Then the court would need to be satisfied that, in order to meet its international obligations, the returning suspect would not be tortured or mistreated by the authorities of his homeland. Senior level government assurances to that effect combined with evidence that previous such assurances were honoured would be cogent evidence supporting the return of dangerous individuals and would satisfy our obligations. As I said before, in the Qatada case, the House of Lords were willing to deport Qatada to Jordan broadly along these lines (although they considered the ECHR applicable) . Because Qatada exercised his "right" to appeal to the ECtHR he is still in this country, and it is the ECtHR that has unfrozen his assets here. The physical remoteness of those judges from the threat we face is what I find so troubling when it comes to foreign judges making decisions that affect our domestic security. In my view, they should not have a role to play in these circumstances.    Anthony
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23 June:  Anthony's post is quite thought provoking. Something does need to be done about the way our country has become a refuge for just about every dangerous dissident and weirdo in the world. I think he makes a good point about the conventions being designed to protect those who plot against regimes in their home countries from being sent back there from their safe haven here. That exactly is the situation when courts need to look for reassurances that returning suspects will not be tortured. All the same, I am not sure about the last bit of his message where he talks about judges taking account of the views of the public. Should judges' decisions be based upon the views of society or upon their interpretation of the legal principles they are to apply? I might worry about that. Surely judges are there to apply the law in a dispassionate way.   Roger
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17 Jun:   Referring to Tess's remark about prosecuting corporate manslaughter, according to section 17 of the act prosecutions require the consent of the DPP. So it looks like the SPA would not be the correct advising agency. From the small amount of information available on the case I agree that there could be a case to answer against the army.
Posted 22 June: Thanks for the references to the 2006 Act. I overlooked them.   Pegasus
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Pegasus, please take a look at sections 61(2) and 326 of the AFA 2006. The SPA doesn't need the Attorney General's consent to prosecute those subject to military law. Section 326 says :
"Subject to section 61(2), no enactment requiring the consent of the Attorney General or the Director of Public Prosecutions in connection with any proceedings has effect in relation to proceedings under this Act for a service offence."
A service offence is defined in section 50(1), and includes criminal conduct under section 42, namely, an offence under that (a) is punishable by the law of England and Wales; or (b) if done in England or Wales, would be so punishable.
Section 326 is similar in this respect to the old power that existed under section 132 of the Army Act 1955.   Aspals
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17 June:   The dilemmas faced by human rights lawyers were recently brought into sharp focus when the effects of the prohibition on torture produced opposite results. Consider first the case of Abu Qatada, for example. Here is a man who our government decided to deport. That decision was challenged by human rights lawyers but the government's position was upheld by the House of Lords in February this year. Human rights lawyers have since taken his case to the European Court where, in an interim ruling, they have unfrozen his assets on the basis that there have been of breaches of his fundamental rights. The ECHR means, in effect, that decisions over our national security and those who pose a threat to us are the domain of European judges with no connection at all, bar one,to this country.
Then we have the cases of War criminals living in UK 'with impunity', according to the Telegraph. They have been described as "individuals suspected of the most heinous crimes anyone can commit". Here, the Human Rights Convention has been used once more to protect the rights of those whom we do not want in our country and who, for technical legal reasons, we cannot prosecute here, except this time the human rights activists agree with us. However, the very principles relied upon in the Qatada case (the fear of torture if returned to their country of origin which, they argue, would breach article 3), frustrates action in the cases of the alleged war criminals. Clearly, the Human Rights Act and Convention have nothing to do with the homelands of these individuals. Their home countries are not party to the Convention.
Of course, Human Rights lawyers argue that anyone in the UK is clearly within the jurisdiction in accordance with article 1, so the Convention applies. The trouble is that the ECtHR has extended the ambit of the provisions of the Convention quite widely and there seems to be nothing to impose a check on it. It is open to question in my view whether the intent of article 3 ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment"), which is regularly used as the ground to challenge deportation or extradition, was to protect the return of citizens of non-ECHR Convention countries to those countries, especially where they are wanted for terrorism or ordinary criminal acts or where, as in the case of Qatada, he has already been convicted. The reason I say this is because the ambit of the Convention is territorial within article 1, save in the exceptional circumstances envisaged in Bankovic. The present approach of the courts, even in the face of high-level assurances from foreign governments that returning individuals will not be tortured, is to make the fight against international terrorism ever harder. It displays an arrogance which those other sovereign nations may well find insulting. In the face of their assurances, and the absence of any evidence showing that previous assurances from that government have been ignored, how can it be said that there is a real risk of their torture should they be returned? The net effect, therefore, is to make the UK a destination for terrorists, safe in the knowledge that they will not be deported to their country of origin if they say they will be tortured there and secure in the knowledge that the ECtHR will further assist them. In fairness, I should point out that the Lords in the Qatada case did approve his deportation. They were not satisfied that there were substantial grounds for believing that there was a real risk of a fundamental breach of the principles of a fair trial guaranteed by article 6 so as to constitute a flagrant violation of the victim's fundamental rights. Or, as Lord Hoffman put it (§197), "a deporting state will be in breach of article 6 only if there is a real risk that the alien will suffer a "flagrant denial of justice" in the receiving state."
Then, of course, there is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which, in article 3, prevents States from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that he would be in danger of being tortured. In order to determine whether such grounds exist, courts shall take into account the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. But this provision looks at the general situation rather than the specific case of an individual where the national government may give valid and cogent assurances that torture would not be used. Furthermore, these provisions in both Conventions in my view are really designed to protect those who plot against the regimes in their home countries from being sent back there from their safe haven elsewhere, not to protect individuals who are to be deported for plotting violence against others, including the population of the host country. This, with respect, is an important distinction and it is extremely disappointing that it is not made by the courts when examining the cases of dangerous aliens suspected of terrorism against us and our allies.
Sadly our judges are not immune from making eye-watering decisions, such as that of the House of Lords last week concerning Secret evidence on terror suspects which they ruled was illegal (see Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant)). In applying the Human Rights Act and Convention, one would have hoped that a margin of appreciation would be applied, which another Law Lord, Lord Hoffman, has publicly criticised the European Court for not doing. Bearing in mind the specific levels of threat to the UK due to it being a target for terrorists and extremists, the balancing act that the court should have conducted would have meant that majority rights of the community were more important than the extremist minority.
In the Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) case Lord Hoffman was quoted (at §13 et seq) as being of the view that the use of closed material, coupled with the protection afforded by special advocates, had been approved by the Strasbourg court. That court considered that "[t]he confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the state's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.'" This is a description of the Special Advocate's procedure. It seems, however, that few of the judicial committee share Lord Hoffman's pragmatic view which is soundly based in ECtHR jurisprudence.
And we are talking about just a handful of people here. The House of Lords stated that 38 individuals have been subjected to control orders under the Prevention of Terrorism Act, of which 7 have absconded. The Secretary of State's case against them lay in the closed material. The court held that under article 6 a fair hearing requires that a party must be informed of the case against him so that he can respond to it. In other words, disclosure of the closed material. Yet the material was regarded as so sensitive that disclosure of it to the appellants would have caused significant harm. It was however disclosed to their Special Advocates.
The reasons why evidence against terrorists cannot always be made available to them are pretty obvious, if you think about it. If the sources of that intelligence are revealed, lives will be in danger, no one will ever again provide intelligence and the fight against terrorism becomes truly impossible, with the result that people die. In that way, legal decisions affect the lives of each of us. As Thinners told us, the Telegraph pointed out yesterday that the failure to deport Qatada arguably led to the death in Mali last week of a British citizen who was murdered by al-Qaeda terrorists demanding Qatada's release from a prison in the UK. If we placed intelligence assessments into the public domain, they would be neutralised. It is because of the sensitivity of intelligence sources that prosecutions cannot always be mounted, as that would again require revealing the sources.
When one sees the ineptness of the present system in dealing with serious threats to our safety, one can understand how ordinary citizens, applying principles of common sense, might come to the conclusion that there is something seriously wrong with the law and the way it is applied (an exasperation shared by the government) and that noble views such as those expressed by Lord Hope (§209) in the Abu Qatada case are out of step with modern life and, more importantly, do not address the issue of those who threaten us here in the UK rather than their home governments. The contempt that is engendered also plays into the hands of those who would like to see more direct action against terrorists, such as that highlighted in the articles on targeted killings. When the law goes so far as to stop protecting the innocent then people will lack confidence in the institution of the law that is there to protect them and therefore may feel justified in taking matters into their own hands. Before that happens, the government should take stock of the Human Rights Convention and derogate in relation to terrorism, thereby ousting the ECtHR's jurisdiction. Judges also need to apply the Convention's principles with a little more sensitivity to the rights of the majority instead of being always focused upon the suspected terrorist, where the potential consequences for law abiding citizens can be very grave. Thankfully, many of our judges are fortunate that they have never lived cheek by jowl with terrorism, as did judges in Northern Ireland in the 70s and 80s where some were murdered, along with their families. If they had, they might better understand the true evil of the threat posed to our country and have a totally different approach to the balancing of individual and community rights. That might help to make our country a safer place.    Anthony
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17 June: if the iraq inquiry was held in public half the goverment would be shown up for the w****ers they are specially blair and brown. folk shouldnt forget it was brown who was chancellor and who controlled the cash and wouldnt let the forces buy the kit they needed.   pete 
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16 June:  My heart goes out to Rose Gentle over the governments decision to hold the Iraq inquiry in secret. They should either have not held the inquiry at all or held it with access to the press and public. What's the point of a secret inquiry?   Briony
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15 Jun:   Aspals, You might be interested in the Telegraph item dealing with the dilemma faced by the government after the latest House of Lords ruling in the control orders case. The judges of the House of Lords preferred the rights of individuals to the rights of everyone else. The really scary thing is when the Telegraph says even when the courts say that an individual can be deported, as in the case of Abu Qatada "who was also subject to a control order " the Government has not carried through the threat. This possibly led to the death in Mali last week of a British citizen who was murdered by al-Qaeda terrorists demanding Qatada's release from a prison in the UK when he should have been deported to Jordan, his homeland. And all this because the courts are complying with article 3 ECHR. Whose side are they on?   Thinners
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15 Jun:   I agree with what Will says. It is fundmentally wrong to have members of a system sitting in judgment upon that system. How can it be said that they are impartial. They don't appear to be impartial. Even if they really want to act impartially, subconsciously they may allow their environmental influences to impinge on the decisions they make. But no bosdy will be prosecuted take my word for it.   Tess
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8 June;  To reply to Tess, it's no use letting the military prosecutors advise on it and putting the case in front of a court martial, they would acquit anyway, like they did in the Iraqi cases. I don't have any confidence in the military system doing anything other than protecting itself. No, in my opinion, let the CPS have a look at the case. They are more likely to get a result.    Will
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7 Jun:   (posted 5th June) Doesn't anyone have a view on whether the new service prosecutors could take on the case?   Tess
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Sorry, Tess, for not publishing this comment when first submitted.   Aspals
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4 Jun:   The ARRSE thread shows that there are some serious concerns about not just the way the training is carried out but also with the level of qualification of the trainers. That sounds like systemic failures and taking account of the number of incidents, one that the army was put on notice of. Looks like a good pf case of CM. Could the new SPA decide on prosecution of the army?   Tess
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31 May: interesting thread on arrse about the acf cadet and the catalogue of errors. the link is http://www.arrse.co.uk/Forums/viewtopic/t=124236.html.   pete 
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Thanks, Pete. Many apologies for inadvertently removing this posting. Thank you for pointing it out to me (added 3 Jun).   Aspals
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