Fourthwrite .......................Issue No. 11

  What is happening to the Criminal Justice System

By Siobhan O'Dwyer

  The past two months have seen some interesting events take place in the British Criminal Justice and civil liberties arena. These events, at first sight, seem to take place in very different areas of the justice system but are interlinked and a cause of concern.  It is true to say that law made in an emergency, when the state feels threatened, always leads to bad law and an erosion of our rights and that is what is happening here.

Firstly, in July, we had the ‘victory’ for the detainees under the Terrorism Act 2000 when the British Government were told that their policy of detention without trial (internment) was unlawful.  This is a hollow victory, not just for the detainees who are still in prison but also for those who believe that the criminal justice system can at least act as a barrier against the worst excesses of state power.  The judges decided that this part of the Act was discriminatory as it only applies to foreign nationals and cannot be used against British citizens.  The right of the state to arrest and intern it’s citizens or foreign nationals without recourse to the due process of law was not challenged and therefore is not unlawful.  It is acceptable for all the democratic Western states now to arrest people and hold them for indeterminate periods of time without ever having to produce evidence against them in a court or indeed, to try them for any offence at all. 

The Americans of course, led the way, flying people from Afghanistan half way around the world to Guantanamo Bay without any charge or appearance in a court as well as arresting and holding hundreds of people in the USA itself.  The British quickly followed suit, delighted with the prospect of being able to get ‘undesirables’ off the streets without having to go through the hassle of them doing anything wrong, let alone actually belonging to any ‘terrorist’ group.  The state is now considering  its position but it seems clear that they will be quite happy to expand the group of those who can be detained without trial to British citizens (even if they don’t use it) and that there will be very little outcry against such a move.

The serving of civil writs against five people, accusing them of involvement in the Omagh bombing in 1998, was an unappetising and unpleasant spectacle.  The fact that both parts of Ireland have two of the most unjust and draconian criminal justice systems in the world does not seem to cut any ice with  media commentators or the general public. It is unacceptable to allow trial by media – Panorama- and then for others to be able to use that so called evidence to take a civil case against individuals named in a Hollywood style purge.  Am I the only one who finds it unbelievable that the poor RUC/PSNI and the Gardai are unable to get people to talk to them and therefore can’t build a real case? The truth is that if the slightest real evidence existed, these men would have been arrested and behind bars with the imposition of huge sentences.  It has never been a problem for police before and indeed, Colm Murphy has already had a taste of justice, Irish style, ending with a 14 year sentence for him on the flimsiest of circumstantial evidence.  The state justice systems, North and South, are just as corrupt and unfair as they have always been but yet everyone seems to accept that both state’s hands are tied. These people must be guilty of something because the telly said so, is the general response, and bypassing the criminal justice system is fair enough if it will make some people feel better.   The people detained without trial would not agree with that view and neither would those people served with civil writs as they are on the receiving end of a justice built on hysteria and fear.

In August, David Blunkett, current British Home Secretary published his White Paper which also introduces some interesting attempts at eroding the independence and fairness of the criminal justice system even further.  The White Paper proposes that the right to a jury trial be limited and that the rule of double jeopardy be eroded, among a plethora of other laws designed to improve the chances of the state bringing successful prosecutions despite the evidence provided to a court.  The right to a jury trial is, without question, a basic and fundamental right in democratic nations and is a better system than the Diplock or Special Criminal Court, one judge system that the island of Ireland boasts.  Of course the fact that both the North and South of Ireland have got away with their subverted and unjust system for so long is a balm to the British state who would now like to roll out the same system across the UK.  It is a warning again that once you as a citizen accept that special circumstances call for special unjust laws that you are opening the way for the state to adopt those laws in all circumstances.