This covert experiment in injustice
01 February 2004
Blunkett's proposals for secret trials will shame the country
Wednesday February 4, 2004
In the course of 12 months, 13 years ago, more than 20 innocent Irish men and women were branded "terrorists" and convicted by English courts. That the evidence was false was known only to the accused and their accusers. For the accusers, even that clarity undoubtedly became blurred, since in their minds the means - twisting and coercing evidence - justified the ends: combating terrorism. Brutality, falsification, exaggeration of scientific evidence, concealment of prosecution evidence and of intelligence pointing in a different direction was the order of the day.
So is it possible that the Home Office is suffering from collective amnesia? What lessons should any home secretary have learnt from these terrible cases? David Blunkett, adopting the same dangerous justification of the means justifying the end, this week proposes trials based on evidence that will never see the light of day, the abolition of juries, substitution by judges, and a reversal of the burden of proof so that suspicion is enough.
The eventual revelation that so many innocent people had been buried alive in English jails was a shaming exercise for the country. Lessons, it was said then, must be learnt. And anyway, those were crude times, when investigators might have resorted to brutality.
Also in question was the ability of the judiciary to correct those injustices. But the judiciary - which Blunkett now proposes to substitute for juries where the issue is terrorism - for decades showed itself as seriously wanting. In the cases of the more than 20 innocent men and women, at least 30 senior judges had come to wrong and unjust conclusions, even where - as happened in the case of the Birmingham and Guildford appeals - they saw evidence that would have driven any jury to acquit. In the Birmingham appeal, for example, a master plan for fabrication of police interviews in the handwriting of the senior officer in charge of interrogation caused the court of appeal only to comment that they did not think that the officer had the brains to orchestrate a conspiracy.
For the Guildford defendants, extraordinary evidence was put before their appeal court. Members of the IRA who had, in fact, carried out the bombings for which the four young defendants had been convicted were prepared to provide compelling detail of their role. Instead of quashing the convictions, the court of appeal returned the four innocent defendants to prison for another 13 years.
There were only two honourable exceptions, seen as critical in guarding against future injustice. The court of appeal, considering the case of Judith Ward, by then imprisoned for more than 18 years, thundered that it would not permit "trial by ambush" in this country. What the prosecution knew, the defence should know.
Equally authoritatively came the voice of Lord Devlin, who saw with a clear eye that juries - constitutionally the arbiters of fact - could not find a substitute in the judiciary. When judges attempted, as happened in appeal after appeal, to consider fresh evidence as if they were a jury, they were committing a constitutional sin in addition to the fact that they then went on to demonstrate grotesque incomprehension of the evidence on which they were commenting.
Those voicing concerns about these new proposals should be aware that they are the second part of an experiment that has been ongoing for the past two years, largely without protest. A number of men, all foreign nationals, have been locked up indefinitely without trial on the basis of the suspicion only of the home secretary that they have links with terrorism.
The suggestion that I and other lawyers are representing them is in itself a travesty; neither they nor we know the evidence against them. We know only that it is claimed to be in large part based upon "intelligence", and this is why - it is<