Persistent Attacks by the Popular Press on Common Law Rules - Essay Example

1 The Justice Process There are a number of issues which are of primary concern to the residents of the UK, and chiefly among them is how much they have had too adjust their lives in the shadows of the ever present thought, surrounding the existence of terrorism. The newspaper articles of three to four years past, (and even today), constantly remind us of our need to be vigilant regarding our safety. The articles in the newspapers which are of particular concern, are addressing human rights matters which are stipulated both in the Human Rights Act of the Uk, and those articles ( primarily 3 & 6), which are contained in the European Convention on Human Rights Act. In this regard, the government has been compelled on a daily basis to address one of the most compelling idioms ever presented to the human race. The matter of being fair to one, without being unfair to the other. The crime control model v. the Due process model. Which comes fist? Is it possible to have a happy co-existence with both models present? The two crime models have been in opposition (of each other) for years. Due process is a principle that states, no person should be deprived of liberty, life, or property without being afforded the proper legal procedures. Moreover, any individual who is charged with a crime, it is required of the criminal justice system to protect the rights of the individual being charged. On the other hand the crime control model is a lot more subjective, as it is based on the reliability of the fact-finding process and procedure of the police. In other words, if the police say, they have collected enough evidence to convince them of a persons level of participation in a criminal act or enterprise, then the person is presumed to be guilty( instead of innocent until proven guilty, by an impartial jury of peers-due process.). 2 “The Emergency law”, which was urged by David Beckett and subsequently passed by the UK Parliament, is a prime example of the practice and implementation of the crime control model.. The law essentially enables the government to”…lock up foreign nationals without charge, or trial, is an exemption from part of the European Convention on Human Rights”1 The advent of the emergency law which obviously runs counter to due process, did not receive a favorable endorsement from all camps; many of the detractors felt the emergency law should be “revoked”, because it explicitly discriminated against foreigners. The individuals were not totally showcasing a stand on altruism, but were dealing with both parochial and international implications of the denial of due process. Moreover, the far reaching ramifications of the policy’s impact on the country’s commitment to the ECHR. Nonetheless, Mr. Blunkett was himself convinced that he was duty bound to protect the indigenous residents of the UK. Implementation of the Emergency law, would exhibit his commitment to his public responsibility. Much to his credit, parliament became complicit in perpetuating this attack on due process. Members of the Privvy Council(whose membership includes former MPs and other assorted types of former public servants), stated”…While this power has not been used injudiciously or excessively it raises difficult issues of principle and it does not meet the fill extent of the threat”2 The Privvy Council was addressing the fact that there were a number of British citizens who were considered to be terrorists, but the emergency law did not acknowledge 1Tempest, M., 2003, Scrap Anti-Terror Laws, Say MPs and Peers, Guardian Unlimited, December 18,2003 2Ibid 3 Their existence, nor did the law mention how, or if these indigenous individuals would be apprehended and dealt with. Joining the list of detractors, Amnesty International characterized the emergency law as one which has created a “Guantanamo Bay in our backyards”3 Politicans often feel compelled to provide solutions to occurrences which they perceive to have had a profound or even devastating affect on the public. To be sure, subsequent to the events of September 11, they were correct in assuming that some safeguards had to be put into place. However, they forgot to consider that the measures should be designed as a precaution and not as punishment. “…Emergency legislation passed as a consequence of a national catastrophe associated with terrorism has a predictable pattern. It involves an unseemly scramble amongst the legislature so that it is seen to be doing something” The law is hastily tightened, with scant recourse to reasoned chamber debate or recognition of standard procedures, in order to respond to media and public outcry. Thus the politicians anxiety to be viewed as resolving the crisis overrides both established process and rational action.”4 It became exceedingly clear that the emergency law, was in need of a pro-active legal perspective, which would render it reasonably broader in its scope and breadth, and afford the persons concerned with the appropriate due process. With the passage of the UK Human Rights Act, the government authorities 3Tempest, H., 2003, Scrap Anti-Terrorists Law, say MP’s and Peers, Guardian Unlimited, December 18,2003 4Thomas P., 2002, Legislative Response To terrorism, Guardian Unlimited, September 11, 2002 4 acquiesced to compliance of the due process model. This model is the guiding framework on which the European Convention on Human Rights Articles are based. The state or governments autonomy which was enjoyed prior to passage of the UK HRA,(which is superceded by the ECHR) has been negated. If the government authorities are going to institute a war against terrorism, then there must be conformity to macro policies and procedures. “…the rule of law, equality and fairness are challenged by terrorists as well as by ill- conceived legislation. The police and the security services can not be allowed complete freedom through law to tackle terrorists. The European Convention on Human Rights has laid down the limits” “The court, being aware of the danger of such a law poses of undermining or even destroying democracy on the grounds of defending it, affirms that the contracting states may not, in the name of the struggle against terrorism, adopt any measures they deem appropriate”5 The many challenges put forth, regarding the cost of Human Rights, has prompted some politicians to question the perimeters which dictate the powers between the legislative and judicial branches of government. The balance of power struggle which exists between the government officials and the judiciary, is as an indication of one or two things; that some government authorities are either not clear on the exact perimeters, or that they don’t care. In any event, the prevailing theme of government officials is that they are more keen about what the public wants and needs, than do the members of the judiciary. It is ironic that the government 5Thomas P., Legislative Response To Terrorism, Guardian Unlimited, September 11, 2002 5 Authorities have lodged the thrust of their criticism on the very concept which enables the judiciary to be objective. The fact that they are not elected officials, empowers them to approach situations with the absolute long term reasonable good, for a majority of the populace. Among the three branches of government; Executive, Legislative, and judicial, the absolute non-compromising impartiality, can only be found among the latter. “…,When international human rights standards and treaty obligations fall within the jurisdiction of our courts, it is the duty of the judges to decide whether the authorities have acted within the law or not. They (government authorities) feel that the powers conferred by a democratically elected parliament should not be challenged by unelected judges who thereby prevent the government from taking action it deems necessary to protect the public”.6 The House of Lords interpreted the emergency law to be absent of reasonableness, due process and with no regard for the rile of law. While the Lords were not against the intent of the emergency law, they collectively felt that, in its present composition, it was not in the best interest of preserving liberty. “…The House of Lords voted by an eight to one majority that detaining foreigners without charge, or trial breaks human rights laws.” “Lord Bingham says, the antiterrorism law is incompatible with the European Convention on Human Rights because it is disproportionate and discriminates against foreign nationals”7 This declaration from the House of Lords prompted Mr. Clarke to reconsider. He 6Bindman G., 2006, Huama Rights Can We Afford Them, Guardian Unlimited, November 3, 2007 7No Author, 2004, Guatdian Unlimited, December 10, 2004 6 began by acknowledging the obvious omissions and shortcomings of the law. He subsequently made a conciliatory move in view of the declaration from the House of Lords, and attempted to incorporate a more humane approach…”Mr. Clarke outlines plans for tough restrictions that would apply to British citizens and foreigners equally who are suspected of terrorist activity”8 The affect of repealing the Human Rights Act would have dire consequences towards the impact of civil liberties for all resident of the UK. It would without a doubt, have its most significant impact upon those who occupy the working class strata, and among those who belong to diverse minority groups, including women and the aged. The government is structured to assist its citizens with those endeavours and tasks, which may in most instances be too cumbersome and inconvenient for them to handle on there own, or undertake with their own resources. Withdrawing from the ECHR would erode the credibility of the UK, not only in Europe, but around the globe. This is clearly not an option. Politicians have attempted to alter the balance of power and to implement the crime control model in the UK, under the guise of an all out attack on terrorism. They were not successful in establishing a precedent with the emergency law. Reasonableness, in the form of the Due Process model has once again prevailed. 8No Author Time line, Guardian Unlimited, February 25, 200 Word count 1750 Works Cited Bindman, Geiffrey, Human Rights Van We Afford Them? 2006, retrieved on line on November 3, 2007, from www.opendemocracy.net Guradian Unlimited, Legislative Response to Terrorism, December 16, 2004, retrieved on line on November 3, 2007, from www.guardianunlimited.com Tempest, Matthew and Agencies, Scrap anti-terror laws, says MPs and Peers, Guardian Unlimited, December 23, 2003, Retrieved on line on November 3, 2007, from www.guardianunlimited.com Thomas, Philip, Legislative Response to Terrorism, Guardian Unlimited September 11,2002, Retrieved on line on November 3,2007 from www.guardianunlimited.com Read More