The Politics of the Judiciary

richardscorer Thu Jun 26, 2008 at 06:24:17 PM GMT Print-friendly version Facebook

An article I’ve written for the Progress website today, prompted by a recent House of Lords decision on anonymous witnesses- and also in part by a recent post on Labourhome…




Thirty years ago a left wing law Professor, John Griffith, wrote a famous book entitled 'The Politics of the Judiciary.' In his book Griffith challenged the traditional belief in judicial 'neutrality'.   This traditional view held that judges are apolitical neutral arbiters, who decide cases based on the correct view of the law, and divorce their decisions from their own political beliefs and assumptions. 

Judges, Griffith argued, are frequently required to make assessments of where the public interest lies, and as such, they regularly make political decisions. And in making political decisions, judges cannot, and do not, act 'neutrally'. Their decision making is informed by their personal backgrounds, world views and assumptions, whether conscious or not. More often than not those backgrounds and assumptions are white, male and upper middle class.

Griffiths' insights shaped left wing thinking about the legal system for many years. His book led to demands for a judiciary more representative of British society, more diverse in terms of race and gender, and more in touch with the real world.

Recently, however, I wonder whether some people on the left have lost this capacity for critical thinking about the pronouncements of senior judges, treating them as fonts of unchallengeable wisdom on matters concerning the relationship between the individual and the state. Whereas in the 1970s and 1980s judges were often seen as reactionary, now they are perceived by many on the left as a bulwark of civil liberties against an over mighty executive. Judges once considered as right wing and anti trade union are now applauded for their defence of traditional civil libertarian principles in areas like crime and terrorism.  

Yet often, I’d suggest, that applause is unjustified.  A case in point is the recent decision by the Law Lords to halt the use of anonymous witnesses in criminal trials, a decision which Jack Straw has announced the government will attempt to overturn. Straw points out that in the real world witness intimidation is a fact of life, and that particularly in cases involving serious drug and gun crime, witnesses will often simply refuse to testify unless they have the protection of anonymity.

As John Yates, Assistant Commissioner of the Metropolitan Police, points out, the Law Lords’ decision means that around 50 men convicted of serious crimes and serving lengthy sentences could now be set free. Unless Parliament intervenes, this will undo alot of policing work in inner city communities.  It will mean that the police will be seen in those communities as having “broken their word”. It will be deeply damaging to the fight against drug and gun crime.

And what do we the public know of the judges who made this decision? How many of us can even name them? Is it right that this issue should be decided by judges who overwhelmingly come from public school and commercial and chancery law backgrounds, and who know virtually nothing of the realities of policing and law enforcement? These are questions which need to be asked, and at one time the left would have had no hesitation in asking them.

It could be argued that, as an MP for a constituency which has suffered from drug and gun crime, Jack Straw may be better qualified to weigh the public interest on this subject than judges who have spent their careers immersed in commercial contract cases. But some people on the left now seem to assume that judges possess some unique and incontrovertible wisdom on matters of civil liberties and that to disagree with them, as Straw has done, is an illegitimate usurpation of power.    

In the US, Supreme Court judges are nominated by the President and vetted, and often vigorously challenged, by Congress. Their backgrounds, previous judgements and political views are the subject of fierce debate. Presidents know that their Supreme Court appointments may be their most lasting political legacy.  This process has many flaws, but at least it recognises judges for what they are: players on the political stage. 

That’s what we need to remember about senior judges in this country: they are players on the political stage. Just as Griffith argued, in a democracy their motives, assumptions, backgrounds and suitability to make decisions affecting all of us are matters of legitimate public debate. They may not always be particularly well qualified to determine where the public interest lies. They can and often should be challenged and criticised. And people on the left should know that better than most.




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The Politics of the Judiciary | 19 comments (19 topical)

Re: The Politics of the Judiciary (#1)

by Free Radical on Thu Jun 26, 2008 at 10:56:41 PM GMT

It is ironic indeed that the judiciary, as you say overwhelmingly from the public schools - the upper classes if you like - should be seen now by many on the left as a "bulwark of civil liberties against an over mighty executive." But the reason for this is very simple.

You have to go back some distance in history to find governments undermining civil liberties at the rate that it has happened in past 10 years. And so, irony of ironies, we find that our liberties are being defended not by our Commons - which is where they ought to be championed and defended - but in the feudal House of Lords and the mainly upper class judiciary. It is a consequence of a dreadful disregard for civil liberties by the executive. There is no great mystery to this.

To be sure, if you take a Marxist viewpoint - which appears to be where you are coming from? - you can say that the judiciary are partisan in defending class interests - those interests represented by the status quo. And I follow this argument. But we are not seeing an attack on society from the revolutionary left, but effectively from the authoritarians of "New Labour."

You are also neglecting a basic feature of Western systems of government, which is the separation of powers - best illustrated perhaps by the US system. You are of course quite correct that the Supreme Court judges are political appointments, but it would be a mistake surely to say that because of a political element to the judiciary (like our own Lord Chancellor) we should abandon the separation of powers altogether. The fact that Jack Straw represents a consituency which has suffered drugs and gun crime does not mean that he knows better about the quality of justice in this country than the Law Lords. Surely you are not saying that we should abolish the independence of the judiciary? That way lies totalitarianism and fascism.

Now, of course the issue of anonymous witnesses is a very difficult one. And it may be that a way might be found to separate out those cases where anonymity does not prejudice a fair trial from those where it might. Anybody can understand the tremendous difficulties. But it is also true that throughout our history witnesses have been for very good reasons afraid to come forward to testify. And what it would not be right to do is to correct one injustice by instituting another. Our common law has certainly stood the test of time and we tamper with that at our peril.


Re: The Politics of the Judiciary (#2)

by richardscorer on Fri Jun 27, 2008 at 09:06:28 AM GMT

"Our common law has certainly stood the test of time, and we tamper with it at our peril."


With respect, that's nonsense. Common law is judge-made law. Parliament tampers with it pretty much every time it legislates. If we hadn't tampered with the common law, we'd still have child labour. It would still be permissable to incite racial hatred. There's a pretty good argument that it's precisely because we've tampered with the common law that we live in a more civilised society than we did 100 years ago.

Of course, that's not to say that there's nothing valuable about the comon law. And i'm certainly not saying that we should abolish the judiciary (I'm not a Marxist, Griffith was, but he didn't believe in abolishing the judiciary either. He believed in looking at it with a critical eye, and he believed, as I do, that it should be far more representative of society - an aim we are still some distance from achieving...).


You talk about New Labour trampling on our liberties. Again, an oft- repeated cliche, but what do you actually mean? Yes, the government has passed alot of legislation in the last 11 years, and it's often said that this of itself is evidence that our liberties are being destroyed. How do the Human Rights Act and the Freedom of Information act undermine our liberties?

And, of course, it depends whose liberties you're talking about. Liberty can be the freedom to do something, it can also mean freedom from harm caused by others. If you're a victim of domestic violence, or child abuse, or hate crime, your liberties have substantially increased over the past decade. Of course, the rights of women, children and ethnic minorites don't feature in David Davis's beloved Magna Carta. They don't always get much recognition from the commentariat. They don't feature very strongly or at all in much of the common law. They've been established and protected by parliament, (usually opposed, in the process, by David Davis amongst others).


Of course, there's a necessary and creative tension between the courts, the executve and the legislature. Sometimes the government gets it wrong -as over 42 days, which I opposed (and I'm fairly dubious about ID cards, although I think the arguments are more finely balanced). Sometimes the government gets it right, but dosen't explain the case very well, as over the DNA database, which has and will greatly enhance the freedom and liberty of victims of serious crime. But my point is that the courts are making political decsions too, and more often than not we need to be rather more critical of them, just as we're (rightly) critical of the executive.


[ Parent ]

Re: The Politics of the Judiciary (#3)

by Free Radical on Fri Jun 27, 2008 at 10:06:32 AM GMT

Perhaps I would have been better saying there are aspects of the Common law that have stood the test of time, and among those are basic provisions for the fairness of a trial. We tamper aspects such as those guaranteeing the fairness of a trial at our peril.

Now, as I said, it may be that it is possible to disentangle those cases where anonymity of witnesses would not be relevant to fairness, from those in which they would. I would hope that that is what our legislators and judiciary are working on now.

I don't know if you would like me to provide an exhaustive list of all the measures this government has proposed that trample on our liberties, because I think it would be quite a long one. It would of course include:
1. Various provisions in the several counter terrorism acts (obviously I don't object to every clause - the abrogation of habeas corpus being perhaps the most serious - others being criminalising the general supporting of terrorism which would have incriminated supporters of the ANC)
2. Proposals, thankfully resisted in party by the judiciary, to limit rights to trial by jury - though some defendants have lost such a right for less serious crimes
3. Removal of the right to silence
4. Failure to remove DNA samples of the innocent from the DNA database
5. ID cards proposals
6. Massive increase in surveillance of all kinds (perhaps the most electronically monitored society on earth - including things like proposals to charge vehicles by road use which would track every vehicle everywhere at all times) - we have lost the right, referred to by Churchill in his writings, to travel with anonymity.

I accept that with the Human Rights Act in particular that there has also been some underpinning of human rights and liberties. The Freedom of Information Act is also welcome. But I am alarmed and greatly disappointed by the overall authoritarianism, indeed it seems an instinctive authoritarianism, of our government.

I accept what you say about the different kinds of rights, which is what makes me a left-wing rather than a right-wing libertarian, and why I belong in the Labour rather than the Conservative party.

There is perhaps an underlying issue here that we should consider. The collision between democracy and justice. Accepting, as I am sure you do, that both are essential, there needs to be a balance between the two. Marxists never accepted this because of the belief in the essential bias of the status quo and the class interest that institutions were supposed to represent - which is why you choose a poor example perhaps with Griffiths. But, although I believe that class conflict is real and important to recognise, I also believe in the importance of justice and liberty as fundamental principles. I also think the concept of inalienable rights - rights that cannot be taken or traded away or balanced against responsibilities (see the US constitution for a great expression of this concept).

In the past, even up until the 1960s, the interests of justice and liberty were represented at cabinet level by the Home Secretary - whose role, it was accepted, was to fight the corner for liberty against the danger of an executive exceeding its powers. Since then we have had a succession of Tory and Labour Home Secretaries, such as Howard and Blunkett, seeking to outdo their predecessor in being "tough" in a nasty populist agenda that pits democracy (and the executive) against liberty and justice, and against the judiciary, playing to the rightwing tabloids. It is essential that we restore that role in cabinet of a minister fighting the corner for liberty against a natural tendency of the executive to undermine liberty for reasons of expediency.

The separation of the judiciary and the House of Commons is essential to our democracy and our justice and liberty and I was very concerned that your posting sought to attack that. I was surprised at this, since your previous posting on the 42 days legislation was thoughtful - so I am disappointed by your current line.




[ Parent ]

Re: The Politics of the Judiciary (#4)

by richardscorer on Fri Jun 27, 2008 at 12:54:06 PM GMT

Yes, in fairness to you I might have done better to make clear in my piece that I support the separation of powers, and an independent judiciary. What I'm arguing is that we shouldn't treat judicial decisions as tablets of stone handed down from above. Judges are capable of getting the balance wrong on civil liberties. And, for example, if some of them lived on housing estates , they might have decided differently on the anonymous witnesses issue. 

Re your list,  I'd agree with you on 42 days, and disagree with you passionately on the DNA database. On jury trial- well, the problem in serious fraud cases is that defendants can befuddle jurors who don't have knowledge of complex accounting issues, as most don't. Right to silence- well, nobody can be forced to talk, the issue is whether adverse inferences can be drawn from that.

But putting those specific debates to one side, I'm interested in your discussion of the underlying issue, which I find useful in clarifying some of my thoughts on this whole area. I think we can agree that over the past decade, the government has done some things which have promoted freedom and liberty (say the Human Rights Act) and others which you, particularly, might feel have gone the other way. But - this is deviating a bit from my original post, but no matter- what I don't feel the government has done is put forward any sort of coherent overall rationale for its position on these issues.  It hasn't told us what philosophical principles it applies when deciding whether to interfere with individual liberty or not. As a Labour PPC, I see that as a problem - I hear people complain that the government is trampling on liberty, and I want to be able to respond by telling them what underlying principles dictate our approach to these issues. As you suggest the danger for New Labour has always been that it is, or seems to be, driven by polls- and what will play with the Daily Mail- and whilst this might garner popularity in the short term, in the longer term the voters just feel that you'll say anything to get votes, and so they give up on you. 42 days might have appeared to Gordon Brown to be a popular position if you look at the polls- 65% of people support it. But in my view his insistence on it has probably damaged him, because he was never able to give a coherent justification for it; after several thousand terrorist attacks around the world from Al Quaida over the past decade, he couldn't come up with a single instance where it had been necessary to hold a suspect for 42 days without trial. It appeared opportunist and poll-driven. It pains me to say it, because I'm pretty loyal to the government, but it probably was.  

My own approach to these issues is the harm principle. I don't want government to interfere with liberty, save where this is necessary to prevent harm to others. That basic proposition might not give you an answer to every civil liberties conundrum, but at least it's a starting point, an overall principle. I 've never heard a government minister really attempt to articulate a philosophical position on civil liberties issues. The danger with not doing so is that the arguments go by default.  In my opinion David Davis is right on 42 days; he's wrong on some other issues, like the DNA database. And his own voting record hardly makes him a paragon of civil liberties. We might not put a candidate up against him, but at least we could attempt to articulate a coherent response to his complaint  that individual liberty is being destroyed.  

On inalienable rights- well, it's a fascinating debate, and I've changed my mind on it at times. Of course, it depends on what the rights in question are - look at the US, where the Supreme Court has just discovered an inalienable right to bear arms. Not one we want in this country is it?
 


[ Parent ]

Re: The Politics of the Judiciary (#13)

by Rathfelder on Sat Jun 28, 2008 at 09:52:51 PM GMT

The idea that Home Secretaries had a noble record of defending civil liberties before 1960 does not quite fit with my recollection of history.  Such notables as Sir William Joynson-Hicks, Churchill in their dealings with the sufragettes, the Chartists, and aliens ever since 1906 spring to mind. 

This debate has been quite philosophical.  There is another side to it.  Repression of civil liberties although popular is rarely effective in achieving its stated ends and is often, in political contexts, counter productive.  CCTV is expensive and makes people feel protected, but I don't think there is much evidence that it has reduced disorder. 

 


[ Parent ]

Re: The Politics of the Judiciary (#5)

by aneurin on Fri Jun 27, 2008 at 01:05:26 PM GMT

It is quite clear that the author of the original post has never actually read the House of Lords judgement on the case of R. V Davis, (which is no big secret as it is available online at http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080618/davis-1.htm) and therefore does not have the faintest clue about the real issues involved.

The point is this. Over the years the judiciary have been persuaded by the Crown Prosecution Service to grant orders which have bestowed varying degrees of anonymity to witnesses. The Law Lords have now ruled that this was contrary to the established principle of common law and indeed article 6.3(d) of the European Convention on Human Rights, and that it was not the job of the judiciary to amend the common law in this way but that of Parliament. They were therefore doing the very reverse of what they are accused of doing, as the ruling in the case of R v Davis effectively amounts to the Law Lords saying that it was in fact Parliament's job to "determine where the public interest lies" and not theirs.

Now personally I have no idea as to whether Mr Iain Davis (whose murder conviction was the subject of the ruling by the Law Lords) really was really the 'single bullet killer'. But what I do know is that Davis was convicted on the testimony of three anonymous witnesses who claimed that he was the gunman who shot and killed two men at Hackney in 2002, whilst Davis himself claimed that he was innocent and that the witnesses were giving false testimony at the instigation of a vengeful ex-girlfriend of his. Unfortunately due to the nature of the restrictions placed on the defence, they did not know who these witnesses were, and were not allowed to ask them any questions regarding any previous connections they might or might not have had with Davis or his ex-girlfriend. Had they been able to do so the defence might have succeeded in showing that these witnesses had good reason to give false testimony. Or perhaps not, nobody knows, and certainly not the jury, which is precisely the point.

Granted there are very good reasons why witnesses need the protection of anonymity in order that we can prosecute and convict those responsible for carrying out certain crimes, but it is also true that it could also be a cloak under which all manner of false and malicous accusations can be made without fear of challenge. It is really up to Jack Straw to come up with some kind of mechanism that both allows witnesses the protection they need and preserves the overall fairness of the trial.


Re: The Politics of the Judiciary (#6)

by richardscorer on Fri Jun 27, 2008 at 02:08:15 PM GMT

A quick response to aneurin- I have read it, and indeed the Court of Appeal judgement which preceded it, and held otherwise, thereby confirming what cannot seriously be in doubt- that judges do not simply 'find' the right answer, as if there is one inevitable right answer to any of these legal conundrums, but apply their own priorities and thinking to the decision which they are called upon to make. You may see this as the Law Lords simply asserting that the matter is one for Parliament, but it's more complicated than that; asserting that something is contrary to the European Convention carries a whole host of political implications, and a whole host of difficulties in changing it, as those judges will be well  aware. It may be that Straw should have the courage to derogate from the ECHR if necessary, but doing so raises a whole series of issues going well beyond this case. So I think that you're being a little unrealistic if you see this as simply a case of the Law Lords just divining what the law is, and Straw changing it if necessary.  

And this is what I have a problem with - not the judicial function per se, which is necessary in any civilised society, but the notion (implicit in an earlier post on Labour home) that somehow judges simply devine  the 'right' answer , and that to disagree with them is to undermine civil liberties. 


[ Parent ]

Re: The Politics of the Judiciary (#7)

by richardscorer on Fri Jun 27, 2008 at 02:27:48 PM GMT

ps Lord Denning once commented that he used to approach the job of judging by deciding what he thought the fair and just decision was, and then working out how to get there, by some fairly creative routes in his case. In his landmark judgements on the position of wives in divorce cases, for example, he knew he had to pay lip service to precedent, but he also knew perfectly well that he was changing the law, not simply restating it, and he sometimes resorted to quite impressive intellectual gymnastics to pretend that his decisions were compatible with precedent. I don't want to imply that judicial decision making is simply about prejudice, of course it's not, it's a dynamic process with various elements: logic, reason, precedent - and the judge's own values. I think we tend to ignore the latter to much. I'm not saying it shouldn't be part of the judicial mix- it's inevitable that it will be, as judges are human beings. That's why my preference would be that we all know far more about them, and that they  reflect our society more than they do.    


[ Parent ]

Re: The Politics of the Judiciary (#8)

by Free Radical on Fri Jun 27, 2008 at 04:31:49 PM GMT

I am grateful to Aneurin for his clarification that, indeed the Law Lords have referred back to Parliament whether "a careful statutory modification of basic common law principles" is needed, since "any further relaxation of the basic common law rule, requiring witnesses on issues in dispute to be identified and cross-examined with knowledge of their identity and permitting the defence to know and put to witnesses otherwise admissible and relevant questions about their identity, is one for Parliament to endorse and delimit and not for the courts to create."

But of course Richard is quite right to point out the complexities of Jack Straw deciding to derogate from the ECHR, or indeed I suppose to make such a "careful statutory modification of basic common law principles." Most of the judgement comprises a review of the case law that shows the relationship drawn between an accused being able to see the evidence against them and for their counsel to be able to question that evidence adequately and the notion of what constitutes a fair trial.

One hopes that Jack Straw will be able find some means of preserving the fairness of a trial while allowing witnesses as much protection as is consistent with this fundamental principle. And this is where I disagree somewhat with Aneurin's formulation "It is really up to Jack Straw to come up with some kind of mechanism that both allows witnesses the protection they need and preserves the overall fairness of the trial" - because this is clearly not going to be possible in every case and we can not end up striking a balance that risks making any trial unfair. It seems to me, as a layman, that we can not try to rectify one injustice (that of fear of witnesses allowing crimes to go unpunished) if it were to mean creating another injustice (that of making a trial unfair and thereby convicting the innocent). Our system of justice surely relies on the principle that it is better to let the guilty go free than for the innocent to be falsely convicted. However, a tabloid newspaper agenda does not necessarily see things in that light.

Coming back to Richard's comments: I agree with much of your thoughtful approach and completely agree that the government ought to hold and articulate a philosophical position with regards to justice and liberty. I had hoped that Gordon Brown had made a start on that with a fine speech to Liberty, but the 42 days legislation have somewhat dashed my hopes on this.

But I must take issue with one important point you make. This is where you state "My own approach to these issues is the harm principle. I don't want government to interfere with liberty, save where this is necessary to prevent harm to others." I believe that this is a poor starting position, since the government might infringe liberty in all sorts of ways with the (admirable) intention of preventing harm. The logic seems weak. If the motor car kills 10 people a day should we ban it? If detaining people without charge for a year might prevent 1 or 100 deaths from a terrorist attack should we therefore do it? The question becomes "what price do we put on liberty?" And since people have seen fit to sacrifice their lives in the past believing they were fighting for liberty (as in the Second World War against Naziism) are we really saying that it should be traded against "harm to others" in this way? Are we becoming so risk-averse that we no longer desire to be free?


[ Parent ]

Re: The Politics of the Judiciary (#9)

by richardscorer on Fri Jun 27, 2008 at 05:25:49 PM GMT

Keep in mind, Aneurin, that if you read any legal judgement it will be framed as simply a delving into precedent to find the 'correct' answer. But there are a multitude of possible 'correct' answers, and in the Davis case the Court of Appeal did not consider that witness anonymity breaches either the common law or the ECHR. The Law Lords have decided upon an interpretation of precedent in this case which, intentionally or not, makes it as difficult as it could be for the government to change the law, since it potentially invoves derogation.

If you read US Supreme Court judgements, they too are always (of course) framed in terms of precedent, or in the case of some justices, as an attempt to the divine the 'original intent' of the founding authors of the US Constitution. But it turns out, quelle surprise, that the dividing lines in that interpretation of precedent are often political. At least in the US, people know and acknowledge what's really going on!

Turning to our other debate, Free Radical , yes I accept that the rather bald statement of principle in my earlier post requires some elaboration. Plainly the issue is balance since as you say, in a totalitarian state in which every human act is monitored to the last degree there would be no car crashes but no worthwhile life either. I'll reflect on how to formulate that balancing test...but right now i'm off for a curry..

(By the way you pose the question of whether it would be right to lock someone up without charge for a year if you could prevent 100 deaths. Actually, I don't think that's the issue, because if I really could prevent 100 deaths by locking someone up for a year, well, maybe I would. But in the real world, that choice never arises. Locking someone up for a year without charge is never going to prevent 100 deaths. It's the torture debate  - Cheney, Rumsfeld et al believe that waterboarding is ok because in the 'ticking bomb scenario' , you'd torture your suspect if you knew that doing it would prevent another 9.11.  But in the real world 'information' disclosed under torture turns out to be totally unreliable, as the US military basically understood until Cheney and his fellow chicken hawks ordered the abuses at Guantanamo . Some restrictions on civil liberty which purport to be aimed at preventing harm to others simply don't work anyway, and should be rejected on those grounds, as well as moral ones..)


[ Parent ]

Re: The Politics of the Judiciary (#10)

by aneurin on Sat Jun 28, 2008 at 03:19:41 PM GMT

There is no doubt that judges are the products of their upbringing, education etc etc, (as is everyone else), and its certainly its possible to argue that certain decisions reached by the judiciary might well have been influenced by their upbringing, education etc etc. It just so happens that the decision reached in R v Davis isn't one of them.

It's evident that there is a common law principle that a defendant has a right to be be confronted by their accusers and challenge their evidence, and the wording of article 6.3(d) of the European Convention on Human Rights is pretty plain when it talks of granting a defendant the right "to examine or have examined witnesses against him". What the law appears to say is quite straighforward, and as The Guardian put it in its leading article on the subject, "the law lords had little choice but to apply it". I'm not so sure that I can see the merit in any argument that suggests that they might have reached a different decision had they all come from some alternative socio-economic background. The Lords were basically faced with the question of whether a fundamental principle of the law should be changed by (what was effectively) government diktat or by Parliament. They chose option b, and I can't see how any democratic socialist can complain about that.

Now I realise that the decision is all very embarrassing for the government and that in its eagerness to appear 'tough on crime'  the Home Office/Justice Dept (I forget who is actually in charge of these things now) has been caught with its pants down; hence the sudden rush for 'emergency legislation' to repair the damage. That might lead us to question why they hadn't thought about the whole issue in the first place, and put some legislation on the statute book. But then hindsight is a wonderful thing.


[ Parent ]

Re: The Politics of the Judiciary (#11)

by richardscorer on Sat Jun 28, 2008 at 04:18:51 PM GMT

Well, it's manifestly untrue to say that no other decision was possible; see the Court of Appeal decision (which also answers your question as to why no legislation had previously been considered necessary; http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2006/1155.html&query=EWCA+Crim+ 1155&method=all On the general point, I possibly sounded a bit over reductive in arguing that judges' decisions are influenced by their background, although background is clearly a factor (as I think you would agree). But it's not a simple equation (as in posh judges don't care about poor people,therefore happy to get rid of witness anonymity). That would be over reductive and clearly untrue since the Court of Appeal judges, who held that witness anonymity is compatible with common law and ECHR, are equally posh! It might be a reasonable comment on the Court of Appeal's judgement, however, to suggest that they appear to have the wider social context of gun crime more at the forefront of their thinking.


[ Parent ]

Re: The Politics of the Judiciary (#12)

by richardscorer on Sat Jun 28, 2008 at 04:38:36 PM GMT

Back to the debate on a formula for government interference with civil liberty. I'd suggest (tentatively) that interference with liberty can be justified to prevent significant harm (i'm using the formula from child care cases here-children can be taken into care if they're at risk of 'significant' harm). Significant harm can involve a large amount of harm to a small number of people, or a lesser amount of harm to a larger nuimber of people. The DNA database can prevent people being murdered and raped- fairly small numbers of people, but a great evil is prevented. The smoking ban prevents lesser harm but to a larger number of people. Clearly, the degree of interference has to be proportionate to the amount of harm to be prevented;and the greater the interference with liberty the stronger must be the safeguards against abuse. Importantly, there should be persuasive evidence that the interference with liberty will actially prevent harm; this rules out 42 days (no evidence at all). By contrast, the DNA database would pass this test, at least in my view. CCTV- not sure. I'd have to see what the evidence is. Voters say that they want more CCTV, they believe it helps fight crime. I've never seen the evidence of this, facts as opposed to assertion. In an interesting piece in the Guardian today, Marina Hyde suggests that street lighting is 7 times more effective in preventing crime than CCTV. Home Office's own figures apparently.. And the interference with liberty shouldn't, of course, prevent other desirable anbd socially necessary activites (banning cars would prevent 10 deaths on the roads every day, but the society would grind to a halt). Any thoughts on these general propositions? Any advance of my initial starting point or just a series of banal and rather obvious platitudes? If you look at ECHR jurisprudence, there are frequest references to 'proportionality' (restriction of a Convention right must be proportionate).but this is just another way of framing the same point (and going back to my original post, permits quite alot of judicial discretion).


[ Parent ]

Re: The Politics of the Judiciary (#15)

by Free Radical on Sun Jun 29, 2008 at 12:38:27 PM GMT

I think to get to the bottom of this question of the justification for interference in civil liberties we should really go back to the discussions over the past thousand, or two thousand years, of moral philosophy. Now, I am not a moral philosopher and risk getting out of my depth here! But I know that people like Plato, Aristotle, Aquinas, Hobbes, Locke, Hume and Rouseau grappled with such issues - and came to some radically different conclusions. There is a good analysis of liberalism at the Stanford Encycopedia of Philosophy http://plato.stanford.edu/entries/liberalism/.

I don't mean to dodge these issues, but I think they could well make for an excellent symposium of Labour Party members - and I think we are rather short of such deep thinking in the party - though maybe the Fabians have discussed this.

My own view, as a left-wing liberal and socialist, is that the role of the state is necessary in tempering the gross inequalities produced by the market, and in ensuring justice (despite possible class bias of institutions) but the Twentieth Century shows in striking way the dangers of the power of the modern state, in the Holocaust and the Gulag and countless other examples. For me this concern is reinforced by my reading of Theodor Adorno who points to the tendency of the modern state to fascism.

But to come back to your question of how we might find or discuss a formula for the state's limitations on liberty - there would seem to be two basic views.

The first would be a view of philosophical liberalism that rights are inalienable - somehow inherent or natural - as expressed with such force and poetry United States Declaration of Independence, July 4, 1776:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
 
Now, it is hard to demonstrate or prove such natural or inalienable (unalienable) rights. Nevertheless it is a concept that is politically useful to a liberal, as it attempts to ringfence certain rights from interference by the state - though of course the Declaration of Independence argues that Government is set up to actually secure those rights. However such a government derives its just powers from "consent of the governed."

A second, rather different way of arguing is to invoke, as I think you are doing, utilitarian principles - often formulated as the "greatest good for the greatest number." This argument has the merit of affording the possibilty of debate and exchange if the principle is accepted and its meaning agreed. However we should not think of utility as necessarily an immediate thing - i.e. passing of a law to restrict habeas corpus preventing deaths from terrorism - but in relation to an overall notion of what constitutes a decent society. On that basis utilitarian arguements about preventing harm to individuals from terrorism should include the threat of harm to the whole of society caused by an undermining of justice.

We might also argue that, just as crimes by policemen or judges are especially abhorent, injustice inflicted by the state is especially abhorent. This is because it is the role of the state to uphold justice, and also because the state is in a uniquely powerful position and has a uniquely high responsibility.

To sum up my position - I am attracted to the idea of inalienability of rights as a politically useful tool even if hard to demonstrate rationally, because it tends to limit the oppressive power of the state and draws a line in the sand against encroachments on rights that I feel are important. I know this is not a particularly coherent rational position, but emotionally it draws me.

But even if we take a utilitarian argument, such as you propose, we must weigh up the overall impact on the decent just and free society to which we aspire - in other words harm itself cannot be the sole determinant.

This leaves aside the other important consideration - which is whether in practice the curtailing of liberty is even effective. In Northern Ireland there is much evidence I think that it was actually counterproductive.


[ Parent ]

Re: The Politics of the Judiciary (#17)

by richardscorer on Sun Jun 29, 2008 at 07:26:29 PM GMT

Plenty of food for thought here, thanks for that.

Re Northern Ireland, I'd agree with you, internment was the best recruiting sergeant the IRA ever had. And the broadcasting ban just made the law look an ass, whilst probably just delaying Sinn Fein's transition to democratic politics. So effectiveness is crucial. 

Going back to Rathfelder's point, I'd caution against the notion of a golden age of British liberty- you mentioned about Churchill and travelling around the country unimpeded. People talk about the erosion of liberties now. But go back to the 80s: section 28, and striking miners prevented from travelling freely on the motorways. The 70s: miscarriages of justice caused by police brutality  and the admissability of uncorroborated confession evidence. The 60s: the Lord Chamberlain censoring theatrical productions in the West End, and backstreet abortions. The 50s: men being jailed for consenting homosexual acts, and Derek Bentley being hung for a crime he never committed.  There was never a golden age, and our society in many ways is much freer and it ever was in the past. 


 


[ Parent ]

Re: The Politics of the Judiciary (#18)

by Free Radical on Sun Jun 29, 2008 at 08:23:39 PM GMT

Richard

I agree that society is more socially liberal in some ways, gay rights for example, or censorship, than ever before, which of course I strongly welcome.

The miners strike showed vividly the lengths to which even a democratic state will go to abuse basic rights in certain circumstances - and our knowledge of that should make us even more cautious about shifting the balance towards further authoritarianism.

You are right of course that there has never been a golden age, and Churchill, who in many respects I admire, advocated some policies that I find completely unacceptable (if I remember rightly he advocated in his younger days some aspects of eugenics - then very much in vogue). He opposed Indian independence and so on. Going back further in history the Star Chamber (referred to by the Law Lords) was initially popular before becoming detested and repealed by the Long Parliament in 1641.

But, overall it seems to me that, over the past 40 years, while some aspects of liberty have improved (one might say those that carry little political threat to the state) other civil liberties (those that limit the power of the state) appear to have been progressively undermined - since the first Prevention of Terrorism Act. Reversals like the ending of the "Sus" laws, were soon replaced by other legislation that covered the same ground. It is true that the signing up to the ECHR has provided some underpinning of civil liberties. But, my contention is that the overall direction has been worringly towards restriction of civil liberties.

I have always taken the threat of terrorism seriously, even before 7/7 (though I have also been alarmed at the way in which many aspects of our foreign policy appear to have needlessly aggravated the situation). But, there are few scenarios in which the threat is anything like as great as a conventional war (such a scenario would be terrorist acquisition of a nuclear weapon - which, to be fair to Blair, was something I think he was genuinely concerned about). I believe our current loss of civil liberties is disproportionate. But, worse, there is little evidence that these attacks on civil liberties improve the situation, and some suggestion that they may make things worse - by diminishing sources of intelligence, alienating some people and generating a sense of injustice.

Maybe some debate could be organised somewhere to air these issues in a thoughtful way?


[ Parent ]

Re: The Politics of the Judiciary (#14)

by aneurin on Sun Jun 29, 2008 at 01:00:47 AM GMT

Of course the House of Lords could have reached a different decision, no one is denying that. All I can say is that having read what the law has to say on the subject and the facts of the Davis case, I for one see their decision as being entirely objective. And of course, no doubt the government believed that they had they had the judiciary 'on side', but there was always the possibility that these "protective measures" would be challenged at some time (all the way to Strasbourg), and one would have rather hoped that Jack Straw's reaction to the news would have been to have told us all that this eventuality had been anticipated, and here's plan B, rather than runnning around like a headless chicken for a day or two.

But in any case you are still missing the point. The decision in R v Davis wasn't really about whether "witness anonymity is compatible with common law and ECHR", but about how witness anonymity is made compatible with common law and ECHR; specifically that it's Parliament's job to do so. The House of Lords appears to be of the opinion that there is "scope within the Human Rights Convention" to modify the common law, it's simply kicked the ball over to the legislature.

Now there might well be a case to make regarding the unrepresentative nature of the judiciary and that they are therefore poor judges of the public interest. But let me put it this way. If you had a case where, for example, some wealthy businessman was charged with mowing down two office cleaners in his BMW as they finished work early one working, and the courts made certain rulings favourable to his defence, you might be able to cite that as an example of how "posh judges don't care about poor people". But in this case the alleged perpetrator is just as black as the victims, and neither does there appear to be any evidence that he was better or worse off than the two men he allegedly shot. The shooting took place at a private party, so all those present likely came from the same social milieu, so there's no question of any kind of socio-economic prejudice whichever side you come down on. It's just a bad example to support the case you are trying to make.

And that's all I have to say on the subject.


[ Parent ]

Re: The Politics of the Judiciary (#16)

by richardscorer on Sun Jun 29, 2008 at 05:51:49 PM GMT

You say that the decision in Davis "wasn't about whether witness anonymity is compatible with common law/ECHR, but whether it is made compatible". But the two issues are self evidently the same, because if anonymity is compatible with common law/ECHR (as the Court of Appeal held), it dosen't have to be "made compatible".and moreover, because of the Law lords decision, making it compatible with ECHR is probably impossible. The HL had 4 possible decisions open to them-hold anonymity to be compatible with common law and ECHR (thus reaffirming the Court of Appeal), holding it to be incompatible with both (as the HL decided), or holding it to be compatible with one, and not with the other, or vice versa. The law lords made the one decision of these four which, because of the probable derogation problem, makes restoring witness anonymity as difficult as possible for Parliament. If you think the law lords don't know that they're doing that, with respect I think you're being rather naive. The law lords are political animals (remember Lord Hutton?). Your other point is that because Davis involved balancing the rights of two sets of poor black people, by definition it can't be a case where political, class or racial bias plays a part. An interesting point, and I'd answer it in this way. The US Supreme Court has recently considered the issue of laws restricting gun ownership, and has (by a narrow majority) found an inalienable right to bear arms. One of the cases before the Court concerned the balance between the rights of a (black controlled) city authority and those amongst its population who wish to bear arms. Now, most people, not unreasonably, think that the Supreme Court is pursuing a right wing political agenda. But on your logic, by siding with the right to bear arms, the Court is siding with the rights of black drug dealers, and therefore pursuing a liberal, right-on agenda...of course,leaders of black communities are trying to fight back against gun crime. They need the tools to do it- witness anonymity in the UK, gun control in the US. And the respective highest courts in the UK and US are denying them those tools.A political decision? Absolutely.


[ Parent ]

Re: The Politics of the Judiciary (#19)

by jkitleft on Thu Jul 03, 2008 at 10:00:35 PM GMT

The problem is with our defenitions of liberalism, is that they change over time. Orwell didn't particuarly like homosexuals, but he's still one of my heroes. Look at the Chartists: at the time, I would have whole-heartedly supported them. But what would happen to a major party now if they promised votes for every male over 21? They would never recover.

The US constitution is the epitome of liberalism. But it effectively rights off black people as three-fifths of a white person. It disappoints me that the preamble didn't begin "We hold these truths to be self-eviident, that all men and women are created equal."

We have to accept modern threats. I was against 42 days. The McShanes constantly asked those against government plans: why not 29 days, or 30 days? Indeed, it begs the question, why not 100? 500? Why not have no limit at all? Noone can accuse me of being soft on terror. I constantly criticise Islamism. I argue those who think that suicide bombings are to do with Bush and Blair (it was due to the foreign policy post World War 2, as we subdued democracy for oil, and the only political opposition came from Islamic extremists).

Although I am back on the anti-war side on Iraq, I say that I would've supported intervening, but the pro-war side should have said "In a post 9/11 world, we cannot allow Saddam Hussein to be in power any longer. UNICOM says he still may have weapons. We cannot be sure. But we know he would use them if he had them. We know he has harboured terrorists. We know he would, and has invaded foreign countries. We know he has perpetrated genocide. He is a constant threat, in that he has day after day, ordered British and US planes over the no-fly zone to be shot down. He has previously ordered the assassination of George Bush Sr. But it is the human cost, that has been perpetrated on Iraq, that should be reversed. Whether he remains a major security threat, this is an oppertunity to rid the world of a sadistic dictator." If this line had been kept, a multilateral coalition would've been more likely. We didn't need the UN for Kosovo, because Russia and China had very subjective reasons to stop intervention in Kosovo, and besides, we had major support from NATO, and across Europe. I would've taken the Robin Cook line.

I constantly write about how we should defend democrats in the Middle East. I constantly write about how Islamism is a hotbed for misogyny and gay hatred, which runs counter to every social democrat bone in my body. I constantly write about how Islam is not a race, and therefore how criticising Islam is not racist.

Ironically, it is precisely because I find Islamic extremism so illiberal, that it would take quite a nerve for me to support 42 day detention. The best way to counter Khalid Sheikh Mohammed, who refuses to allow a lawyer who swears alliegance to a constitution that doesn't forbid homosexuality, is to try him in a fair court, and show Islamists, our contempt for hand chopping, and wife beating, and beheading, as well as kangaroo courts, by the enhancement of habeas corpus.

But, sometimes departing from the common law can enhance our freedoms. Aboloshing slavery is a good example. or, to put it better, there is such a thing as state enforced liberty, such as with universal healthcare and public education. Wiretap evidence in court would enhance habeas corpus, as it would allow for terrorist suspects not to be held indefinitely.

Anonymous witnesses, also enhance liberty. I was sceptical until this evening. Today, my sister received an apology, through e-mail from an old friend. They both had a mutual friend. This mutual friend, was about 10 years ago, with the person who sent the e-mail, an another person. A gang started yealling at them. They then started yelling anti-semitic taunts about my sister's friend's mother. My sister's friend, who was drunk, then allegedly attacked them with a broken bottle.

This gang threatened the two friends, and their families, through various means (like through throwing bricks through their houses) when the case was coming to court. Consequently, the only witnesses who could have disproved the GBH allegation, wouldn't testify. I am not sure what happened. But it seems clear to me, that according to the judge's discretion, according to the case, that anonymous witnesses should be allowed. My sister's friend may not have been in jail for 2 years, if habeas corpus had been enhanced through the use of anonymous witnesses.


The Politics of the Judiciary | 19 comments (19 topical)