Secret justice: How Cameron and Clegg vowed to hand back our liberties but are instead planning illiberal changes to justice system | Mail Online
Sunday January 8, 2012 3:53 pm Leave a comment
always slightly astonished and pleasantly surprised to find this authoritarian cheerleader for the establishment coming out against increased powers to the state. To paraphrase Samuel Johnson: “Sir, [the Daily Mail preaching against Authoritarianism] is like a dog’s walking on his hind legs. It is not done well; but you are surprised to find it done at all.”
Their motives, as ever, are somewhat less than pure altruism and concern for liberty of the individual. Their focus is on their own freedom to publish salacious gossip about victims and villains being processed by the Judicial mincing machine, but still, on this occasion, the enemy of my enemy…
The serious issue underpinning the story is one that cannot be solved by government, but can be resolved by the democratic reform to the Jury System I first advocated here.
In short, there ARE situations which arise in the process of fighting crime, tracking terrorists etc, where revealing how we acquired the information can seriously impede future investigations or threaten the lives of those who provided the information. And there ARE situations where publicizing some aspect of the story may seriously threaten the interests of the State or even legitimate commercial interests.
For example, if the reason we know about what is going on in an Islamic terrorist cell is that one of its members is an agent for MI5, who, after 10 years effort has achieved a senior position with considerable trust within the organisation, it would be ludicrous to expose him for the short term benefit of successful prosecution of a suspected terrrorist at the cost of loss of the ongoing intel.
How can we get the best of both worlds?
Government solutions are always “Trust Us”. A brief study of history will reveal that such trust has almost always been misplaced. I’m sure I don’t have to rehearse examples here but if you need any, you could start with my collection of Police State of America stories.
Trusting the judiciary is rarely a better option because although, in most modern western states, the judiciary is nominally independent of government, it is deeply rooted in and remains a major part of the establishment with a vested interest in the status quo. Most critically it does not, is not designed to and cannot represent the views and wishes of We The People. Indeed, in republics like the US of A, it is deliberately designed as a bulwark AGAINST the wishes of We The People (and, to be fair, a balance against the otherwise overriding authority of a President or Parliament)
The only path left is Democracy. Normally my emphasis is on democratic creation of the law, but democratic implementation and execution of the law is equally important. And the most important element of democratic implementation of the Law is the Jury.
Not the pitiful vestigial stump of a Jury you currently think of as a Jury but the full blooded original designed and practiced for a couple of hundred years by the Athenians two and a half thousand years ago. Juries with teeth. Juries with never less than six dozen and often over 500 members. Juries which invented the secret balloting system to prevent undue pressure and the influence of vested interests. Juries which were the sole and final arbiters of disputes and justice.
Juries’ duties are not limited to their current passive role as witnesses of a “fair trial” and arbiters of limited aspects of guilt or innocence. In part the American system still nods in the direction of their wider role with the “Grand Jury” system. The Fifth Amendment of the US Constitution includes:
“”no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury”
and that jury, nominally at least, wields enormous authority. It does not decide guilt or innocence but whether or not a case goes to trial at all. Ostensibly, therefore, it should fulfill its original (US) purpose:
“the American grand jury originally began, not as an arm of the executive, but as a defense against monarchy.”
and prevent “arbitrary justice”. Clearly it rarely does so today (or we wouldn’t have seen the progression towards the Police State, supported at almost every stage by the Judiciary, that we have watched in America over the past century or so) Why that is so will have to wait for another day. In passing, though, it is fascinating, when you go looking for the history of Grand Juries, how references to such history start in 12th century England and appear completely unaware of the much more significant Greek precedent.
Nevertheless, the idea of pre-vetting legal moves by the State is not, itself, a novel concept and is eminently suitable for dealing with the kind of issues the current UK authoritarians are trying to address.
If a Jury of my peers – large enough to be truly representative of We The People; large enough not to be intimidated by Judges and other representatives of the State; and empowered as per my previous recommendation – if such a Jury decides that it should hear evidence in secret and if such a Jury decides even that the relevant evidence is so sensitive it cannot be shared with the defendant, then, and only then, would I be prepared to accept that such secrecy was probably justified.
I am prepared, in other words, to accept the judgement of my peers, not the judgement of my “rulers”.