The Rashomon effect…

Any credible list of the greatest films of all time must certainly include at least one by the great Japanese director, Akira Kurosawa, and if one is forced to choose only one of his films for such a list then that film would almost certainly be his 1950 classic, Rashomon.

Rashomon’s central theme is compelling in its simple profundity, dealing, as it does, with the difficulty (even impossibility) of obtaining the truth about an event from the conflicting accounts of witness – so profound in fact that the term ‘Rashomon effect’ has entered the lexicon of psychology to describe the effect of the subjectivity of perception on memory by which observers of an event are able to produce very different but equally plausible description of that event.

The relevance of this to a primarily political blogger like myself – aside from my personal liking for Kurosawa’s work – rests in this particular story…

A high court judge last night demolished a central plank of the government’s anti-terror policy when he quashed "control orders" on six suspected terrorists, saying the home secretary "had no power to make them under human rights law".

John Reid launched a furious counter-attack last night, saying he "strongly disagreed" with the ruling by Mr Justice Sullivan, which overturns nearly half the 14 control orders currently in force. He will try to overturn it in the court of appeal next month. Mr Reid said the control order system was needed to deal with international terror suspects who could not be deported on human rights grounds to countries where there was risk of torture.

Or more precisely in the entirely predictable response to be found in today’s Sun…

ONCE again a judge has put the rights of dangerous fanatics ahead of the safety of the British people.

In an outrageous ruling, Mr Justice Sullivan quashed vital control orders against six terror suspects.

In the process he drove a gaping hole through our anti-terror laws, leaving Britain at risk from extremists.

This is the same judge who banned the deportation of nine ruthless Afghan hijackers on human rights grounds.

His ruling flies in the face of common sense. We must count on it being overturned at appeal.

But this is the inevitable consequence of attempts to appease the human rights lobby.

Tony Blair has tied himself in knots trying to square our security with the European Convention on Human Rights.

But the only human right that counts is the safety of the British people. After the carnage of 7/7, the PM vowed to scrap the law if it got in the way of national security.

As the anniversary looms, it’s time to stop talking and take action.

I doubt very much that we need go into too much detail in relation to the general of this editorial, although at the risk of invoking Godwin’s Law one might note that its general tone would not have looked out of place in the pages of the Völkischer Beobachter circa 1934/5, otherwise its just the same old piss-poor polemic against the Human Rights Act and European Convention on Human Rights that we’ve been seeing for months.

What’s rather more interesting, however, is what happens if one seeks to deliberately apply the Rashomon effect to this case and how this might, in turn, alter perceptions of the Sun’s arguments about ECHR.

What actually happened yesterday, in terms of the ruling that was made by Mr Justice Sullivan, is summed up rather nicely in his own words:

Mr Justice Sullivan said: "The freedom to meet any person of one’s choice by prior arrangement is significant. As is the freedom to attend any temple, mosque, church as whatever you choose." He went on: "I am left in no doubt whatsoever that the cumulative effect of the order has been to deprive to respondents of their liberty, in breach of article 5. I do not consider that this is a borderline case." The judge said he had taken into account the importance of the needs of protecting the public from acts of terrorism, but "human rights or international law must not be infringed or compromised".

Article 5 of ECHR, for those unfamiliar with it, states that:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

e. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Just a trifle then, nothing more significant that the right to basic liberty, a fair trial, due legal and judicial process and the right to challenge the legality of arbitrary, extra-judicial detention by the state.

Possibly the most perncious fallacy currently being heavily promoted about the Human Right Acts and ECHR, not just by the Sun of the likes of Mad Mel but by both Tony Blair and David Cameron, is the idea that human rights is somehow a foreign imposition on British society and yet more malign influence from the continent.

This is patently untrue, as even Mad Mel has to acknowledge:

But the idea that this country had no human rights — like fair trials or freedom of speech —before the European Convention was drafted just after World War Two is clearly absurd. Our traditions of justice and liberty are ingrained in British history. Indeed, it was our lawyers who drafted the Convention.

If ECHR, which was drafted largely by British barristers and to which Britain was the first signatory, could be said to have had an architect then that architect was Winston Churchill, who, for all his faults, was hardly a man who would happily surrender British liberties to foreign authority…

…and so we come to the Rashomon effect and very simple question – is there another perspective on the actions of Mr Justice Sullivan, one rooted not in ECHR but in British, or at least English, Law, by which he could, in the faced of the Home Office’s actions, have arrived at much the same conclusions and, even, outcome.

Well, yes there is – and more to the point, one does not have to look very far at all to find it.

For starters, what actually happened yesterday was that the plaintiffs, who had been made subject to a control order, went to court to challenge the legality of their detention, thereby making use of Acts of Parliament that existed in British/English law long before the advent of ECHR and of which British jurist A C Dicey wrote they they:

declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty.

And what are these most marvellous Acts of Parliament? Quite simply the Habeas Corpus Acts.

The next thing that happened was that, after careful deliberation, Mr Justice Sullivan ruled that the use of control orders, by which the plaintiffs were held under what is effectively indefinite house arrest on the basis of a ministerial edict – such orders being signed by the Home Secretary without recourse to a court of law – is incompatible with ECHR and, by extension, that the Home Secretary has no valid legal authority to issue such orders.

Again, the question is simply whether there is, in British/English law, an alternative to ECHR that could have produced much the same outcome… and, again, the answer is yes. All one need do is refer to article 39 of the much venerated Magna Carta:

No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land.

Now, one could, I suppose, contend that as the Home Secretary’s power to issue control orders is enacted by Act of Parliament then there is no breach of Magna Carta as such orders are issued in accordance with ‘the law of the land’ but it has long been part of British justice that, but for times of emergency – when even habeas corpus has been temporarily suspended – that indefinite and arbitrary detention without charge or trial is unlawful.

Could Mr Justice Sullivan have, then, ruled as he did on the basis of Magna Carta – well, its certainly possible.

Article 39 is one of only four that remain in force having never been expressly repealed and as an article of constitutional law could certainly be given precedence over even powers granted by Act of Parliament as, by convention, ultimate jurisdiction in constitutional matters rests not with the Commons bit with the House of Lords. He could certainly have made the ruling on this basis, but whether that ruling would stand up would ultimately be a matter for the Law Lords who certainly could overrule the Common in this matter on the basis of control orders being ‘unconstitutional’.

Yesterday’s reports also made reference to an earlier case in the same judge struck down a separate control order for a different reason:

It is the second time in three months that Mr Justice Sullivan has criticised the orders. In April he overturned a seventh control order on a British terror suspect known only as "S", calling it an "affront to justice".

On that occasion, the issue was not the legal authority of the Home Secretary but the process by which the control order was issued. which was ruled incompatible with ECHR on the grounds that the individula in question was not afforded a fair hearing.

And again, Mr Justice Sullivan need not have relied on ECHR for his judgement in that case but could have turned, instead to the much older doctrine of natural justice and the legal maxim audi alteram partem (i.e. one must ‘hear the other side’). Natural justice is one of the central planks of the process of judicial review such that, irrespective of what statute law might say, a decision by a government minister or functionary may be challenged in court and quashed by a judge if such a decision is held to have been made without recourse to natural justice.

As should be obvious by now, one could quite easily rewrite the story of Mr Justice Sullivan’s rulling in very different legal terms and still arrive at, potentially, the same outcome by replacing ECHR with habeas corpus and Magna Carta, all of which rather destroys the idea that the government’s wishes are being overruled on the basis of principles that are somehow ‘foreign’ or ‘alien’ to British justice…

…and that being the case, one has to wonder just how the Sun’s editoral might have looked had this ruling been laid down in just such a fashion – after all, surely even the Sun could have no objection  to habeas corpus and Magna Carta – could it?

3 thoughts on “The Rashomon effect…

  1. You appear to be ignorant of implied repeal. Acts of Parliament are good authority for anything; by contrast there is no reason to believe that any provision of the Magna Carta is itself effective. This is why Sullivan J had to rely on the HRA to reach this result.

  2. >>> You appear to be ignorant of implied repeal.

    Not so, Marcin – what little remains of Magna Carta is still relied upon from time to time as per Denning in Gouriet (1977) and Laws J in R. vs Witham (1997).

    In the unwritten order of the British state, at a time when the common law continues to accord a legislative supremacy to parliament, the notion of a constitutional right can

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